Nevin & Fred

By Nevin AdamsBusiness

Nevin & Fred episodes

January 22, 2025 Season 5, Episode 1: Can Duties of Prudence and Loyalty Diverge?
Could plan fiduciaries violate their duty of loyalty to plan
participants despite a prudent process? A recent federal judge says yes. Nevin (Adams) & Fred (Reish) discuss.
Participant-plaintiff (and pilot) Bryan P. Spence filed suit in the U.S. District Court for the Northern District of Texas in June 2023 against Defendants American Airlines, Inc., American Airlines Employee Benefits Committee, Fidelity Investments Institutional, and Financial Engines Advisors, LLC (he subsequently dropped the latter two).
The suit alleged that they “breached their fiduciary duties
in violation of ERISA by investing millions of dollars of American Airlines employees’ retirement savings[i] with investment managers and investment funds that pursue leftist political agendas through environmental, social and
governance (‘ESG’) strategies, proxy voting, and shareholder activism—activities which fail to satisfy these fiduciaries’ statutory duties to maximize financial benefits in the sole interest of the Plan participants.”
And now—following a four-day bench trial during which there was “testimony from multiple witnesses and examined numerous exhibits,” a review of the record in its entirety and where the Court “has observed the witnesses to assess their credibility and weigh their testimony”—that same Judge O’Connor has now determined what appears to be an unusual divergence.
So, what’s going on with this case, and what does/should it
mean for retirement plan fiduciaries? Nevin (Adams) and Fred (Reish) discuss.

Episode Resources:
Judge Says American Airlines 401(k) Fiduciaries ‘Blinded’ by
ESG Focus
31 min
December 18, 2024 Season 4, Episode 15: A Christmas (k)arol
With apologies to Charles Dickens, Nevin & Fred have
done a special year-end tribute (of sorts) to the “ghosts” of retirement past, present – and future.
Several weeks back Brian Brashaw issued a challenge (of sorts) to the podcasters of the retirement industry. Specifically, he expressed an interest in that unique and special group doing a podcast “visited by three spirits: ghosts of 401k past, present and future.”
To date, we’ve seen interest, but no “takers” – but here’s
the Nevin & Fred option.
Episode Resources
An ‘Unintended’ Consequence - https://www.napa-net.org/news/2024/11/talking-points-an-unintended-consequence/
4 Things You Need to Know About Default Funds https://www.napa-net.org/news/2019/2/4-things-you-need-know-about-default-funds/
How to SECURE 'Better' Retirements https://www.napa-net.org/news/2024/6/talking-points-how-secure-better-retirements/
Myth Understandings https://www.napa-net.org/news/2019/2/myth-understandings/
36 min
December 04, 2024 Season 4, Episode 14: A Fiduciary Naughty and Nice List
It’s the holiday season, and Santa isn’t the only one making
a list and checking it twice.
Let’s face it, SECURE 2.0 has a LOT of good, interesting—and
potentially complicated options. But there are some that AREN’T optional, like the requirement that new plans
adopted after the signing of the legislation into law have to automatically enroll eligible participants beginning in January 2025.
What happens if you forget? What happens if the business is
below the threshold—and then goes above it—and then slips below it? And there’s something “special” about the
selection of the default investment fund.
And then, there’s the so-called fiduciary rule (also known
as the Retirement Security rule). Even if (and it’s still an “if”) it’s allowed to languish, there are still standards of care with regard to rollovers.
There are also some “nice” things in SECURE 2.0 with regard
to the ability to fix things you don’t get right the first time.
In this engaging episode, Nevin (Adams) & Fred (Reish)
will help you make sure your list is complete —and that you don’t wind up on the “naughty” list.
P.S. Oh, and Fred Reish has gotten some AI assistance in composing a song about retirement (lyrics below)!
Episode Resources:
A Country and Western Retirement lyrics: https://fredreish.com/the-last-rodeo/
Things I Worry About:
SECURE 2.0 automatic enrollment requirements https://fredreish.com/things-i-worry-about-2-automatic-enrollment/
How automatic enrollment requirements will be applied: https://fredreish.com/things-i-worry-about-2-automatic-enrollment/
Automatic Enrollment corrections: https://fredreish.com/things-i-worry-about-3-automatic-enrollment-3/
The SEC Requirements for Rollover Recommendations https://fredreish.com/best-interest-standard-of-care-for-advisors-97/
Staff Bulletin: Standards of Conduct for Broker-Dealers and
Investment Advisers Account Recommendations for Retail Investors https://www.sec.gov/about/divisions-offices/division-trading-markets/broker-dealers/staff-bulletin-standards-conduct-broker-dealers-investment-advisers-account-recommendations-retail
IRS Issues Guidance on Expansion of EPCRS https://www.napa-net.org/news/2023/5/irs-issues-guidance-expansion-epcrs/
How to Correct Enrollment Errors for Long-Term, Part-Time
Employees https://www.napa-net.org/news/2023/12/how-correct-enrollment-errors-long-term-part-time-employees/
IRS Releases Q&A Guidance on Key SECURE 2.0 Provisions https://www.napa-net.org/news/2023/12/breaking-irs-releases-qa-guidance-key-secure-20-provisions/
31 min
October 30, 2024 Season 4, Episode 13: Nevin & Fred “Live” at ASPPA Annual
On October 21, the dynamic podcasting duo of Nevin (Adams) & Fred (Reish) brought their engaging, informative, and occasionally alliterative discussion to ASPPA Annual.
As one might expect from a crowd composed of the nation's leading recordkeepers and third party administrators (and a bunch of experts that help them succeed), the discussion was, as always, wide-ranging, including constantly compelling topics like:
Latest Lessons from the Litigation Landscape – fending off fiduciary forfeiture suits
Fiduciary Faux Pas, Pitfalls and Best Practices
Scary stuff from SECURE 2.0 – implications of
auto-enrollment for all plans, LTPT employee tracking, etc.
Things I Worry About: Automatic Enrollment (1)  https://fredreish.com/things-i-worry-about-automatic-enrollment-1/
Nevin & Fred: Forfeiture Litigation, Meeting Minutes and
More  https://www.napa-net.org/news/2024/10/nevin--fred-forfeitures-meeting-minutes-and-more/
What Expenses Can Be Paid from Plan Assets?
7 Steps to Reduce Fiduciary Exposure
DOL Successfully Sues Employer for Misuse of Forfeitures
Limiting Fiduciary Liability (Costs)
IRS Proposes Regs to Clarify Timing and Use of
Forfeitures
Expert Opinions
The Forfeiture Suits to Date
36 min
October 15, 2024 Season 4, Episode 12: Forfeitures, Meeting Minutes & More
In a “live” version of the Nevin & Fred podcast at the
Strategic Retirement Partners (SRP) annual conference, Nevin & Fred (& Bonnie Treichel & Tom Clark) covered recent litigation trends—and more!
In recent months, the plaintiffs’ bar has “discovered” a new litigation target: the use of forfeitures to offset employer contributions, rather than to offset plan fees
or to reallocate them to the remaining participants in the plan. The expanded expert podcast panel reviews the
current status, the trend(s), and what plan fiduciaries can/should do about it.
And—on a related topic—what should/shouldn’t be included in committee meeting minutes!
Episode Resources
What Expenses Can Be Paid from Plan Assets? https://www.asppa-net.org/news/2018/10/what-expenses-can-be-paid-plan-assets/
7 Steps To Reduce Fiduciary Exposure https://www.napa-net.org/news/2019/2/7-steps-reduce-fiduciary-exposure/
New Fiduciary Suits, TDF Demographics and a Prudent Process
Primer https://www.napa-net.org/news/2024/4/new-fiduciary-suits-tdf-demographics-and-prudent-process-primer/
Litigation Landscape Some 'Wins,' Some Losses and a New
Litigation Target https://www.napa-net.org/news/2023/11/litigation-landscapesome-wins-some-losses-and-new-litigation-target/
DOL Successfully Sues Employer for Misuse of Forfeitures https://www.napa-net.org/news/2024/1/dol-successfully-sues-employer-misuse-forfeitures/
Limiting Fiduciary Liability (Costs) https://www.napa-net.org/news/2021/8/limiting-fiduciary-liability-costs/
IRS Proposes Regs to Clarify Timing and Use of Forfeitures https://www.napa-net.org/news/2023/2/irs-proposes-regs-clarify-timing-and-use-forfeitures/
Expert Opinions https://www.napa-net.org/news/2019/2/expert-opinions/
The forfeiture suits to date. https://www.napa-net.org/header/search/?q=forfeitures
ERISA Advisory Council testimony by:
Bonnie Treichel - https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/about-us/erisa-advisory-council/2024-qdia-treichel-written-statement-07-10.pdf
Tom Clark: https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/about-us/erisa-advisory-council/2024-qdia-clark-written-statement-07-10.pdf
47 min
August 28, 2024 Season 4, Episode 11: Stop—and Go? The Fiduciary Rule & Forfeiture Suits
The so-called fiduciary rule has been stayed—and legal
challenges regarding forfeiture reallocation are picking up. Nevin & Fred discuss what you should be doing…now.
About a month ago two separate federal judges put a hold on the effective date (09/23) of the Labor Department’s new fiduciary rule—indefinitely. n ordering the stay, United States District Judge Jeremy D. Kernodle explained that “the 2024 Fiduciary Rule suffers from many of the same problems” that were found in the version vacated by the Fifth Circuit back in 2018.
On the other (unrelated) hand, the number of suits alleging a fiduciary breach in the use of forfeitures to offset employer contributions is increasing—and most recently those charges have been appended to the more
“traditional” excessive fee suits. That, and a couple of the original group have now gotten past the motion to
dismiss.
In light of those trends, what should plan fiduciaries
do? In this podcast episode, Nevin & Fred will discuss the trends, the issues, the implications, and some next
steps.
Episode Resources:
Staff Bulletin: Standards of Conduct for Broker-Dealers and Investment Advisers Account Recommendations for Retail Investors https://www.sec.gov/tm/iabd-staff-bulletin
Fiduciary Rule
Federal Judge Slams Brakes on Fiduciary Rule https://www.napa-net.org/news-info/daily-news/breaking-news-federal-judge-slams-brakes-fiduciary-rule
Another Federal Court Slams Fiduciary Rule https://www.napa-net.org/news-info/daily-news/another-federal-court-slams-fiduciary-rule
Department of Labor Releases Final Investment Advice
Fiduciary Rule https://www.napa-net.org/news-info/daily-news/breaking-department-labor-releases-final-investment-advice-fiduciary-rule
Forfeiture Reallocation Litigation
Major Forfeiture Fiduciary Breach Suit Gets Green Light https://www.napa-net.org/news-info/daily-news/major-forfeiture-fiduciary-breach-suit-gets-green-light
Another Excessive Fee Suit (Also) Claims Forfeiture Use a
Fiduciary Breach https://www.napa-net.org/news-info/daily-news/another-excessive-fee-suit-also-claims-forfeiture-use-fiduciary-breach
Nordstrom Nailed With Massive Allegations in 401(k)
Fiduciary Breach Suit https://www.napa-net.org/news-info/daily-news/nordstrom-nailed-massive-allegations-401k-fiduciary-breach-suit
Future Live Appearances:
Strategic Retirement Partners: https://www.srpretire.com/
ASPPA Annual: https://asppaannual.org/
NAPA 401(k) Summit: https://napasummit.org
24 min
July 30, 2024 Season 4, Episode 10: The Demise of Deference
With far-reaching implications—likely including the Labor
Department’s fiduciary rule—the nation’s highest court has set aside a long-standing judicial deference to federal regulators in interpreting the law. In this episode Nevin (Adams) and Fred (Reish) consider the impact(s).
While the full implications will take time to emerge, it’s
almost certainly going to produce more litigation, and in the process, less certainty for advisors, plan sponsors and recordkeepers trying to operate within those boundaries.
Why It Matters
Since 1984, courts have adopted a review framework for
challenged regulations. First, to consider whether Congress has directly spoken to the precise question at issue—specifically how the regulation is to be
administered/applied—and if so, the court "must give effect to the unambiguously expressed intent of Congress and reverse an agency's interpretation that fails to conform to the statutory text.” And then, if the statute is ambiguous, the court “may not disturb an agency rule unless it is, 'arbitrary or capricious in substance, or manifestly contrary to the statute.’”
Under the new Supreme Court decision, those administrative agency perspectives can, but do not have to, be considered in deciding the case. In sum, courts will no longer be required to defer to the judgement of
the regulatory agencies in terms of applying/interpreting ambiguous laws.
31 min
July 09, 2024 Season 4, Episode 9: SECURE 2.0 Choices and Savings Trends
The SECURE 2.0 Act of 2022 included dozens of new OPTIONAL plan design choices for plan sponsors. Nevin (Adams) and Fred (Reish) explore the findings of a new survey of which plan design choices plan sponsors are most likely to adopt.
To gain a better understanding of which optional provisions of the SECURE 2.0 Act plan sponsors are most likely to adopt, Fidelity Investments recently invited more than 2,000 clients to participate in a survey, and from that derived the top-five-ranked optional provisions. In this episode, Nevin (Adams) and Fred (Reish) talk about
those options—and THEIR favorites.
In this episode we also talk about some of the big defined contribution plan trends captured in Vanguard’s annual
How America Saves report—things like the growth of automatic savings features; higher participation and savings rates; expansion of Roth availability; and trends in target-date funds, advice and managed accounts.
If you’re looking to know what’s going on—and what’s coming up—you won’t want to miss this episode of Nevin & Fred!
36 min
June 18, 2024 Season 4, Episode 8: Forfeitures, Managed Accounts and a "New" Fiduciary Rule Challenge
In this episode, Nevin & Fred discuss new lawsuits regarding fiduciary breaches on the use of plan
forfeitures, a managed account default – and the Labor Department’s new fiduciary rule.
In late May a motion to dismiss the suit in one of the half-dozen (and counting) suits challenging the use of plan
forfeitures to reduce employer contributions was itself dismissed, with a federal judge deciding that the plaintiffs had made a plausible case to proceed.
Also in late May, participant-plaintiff Debra Hanigan claimed that the plan fiduciaries of the $5.1 billion Bechtel Trust and Thrift Plan “breached their fiduciary duty of
prudence to Plaintiff and other Plan participants, causing tens of millions of dollars of harm to Plaintiff and Class Member’s retirement accounts” – by defaulting participant investments into a managed account option that she claimed was nothing more than an expensive target-date fund.
And then in late April, the Labor Department’s new Retirement Security Rule (generally referred to as the
fiduciary rule) got its first challenge in Federal Court. Claiming that the rule was “contrary to law and arbitrary and capricious,” the suit seeks “preliminary and permanent injunctive relief to prevent the DOL from attempting to enforce these unlawful rules and regulations.”
Whew!
34 min
May 29, 2024 Season 4, Episode 7: The Fiduciary Rule—Here We Go Again
In late April the Department of Labor (DOL) released the Retirement Security Rule, generally referred to as the “fiduciary rule.” Nevin (Adams) and Fred (Reish) take a look at what’s changed —what hasn’t—and what it all means for retirement plan advisors.
This now-final rule updates and broadens the definition of an investment advice fiduciary under the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (IRC). In this new podcast episode, the
prolific podcasting pair ponder:
The impact(s) to retirement plan advisors who are already ERISA fiduciaries, and compliant with PTE 2020-02,
How the five-part test has changed,
The implications of the so-called “Hire Me” exception,
What changes to the “regular basis” criteria mean to the “drive-by” plan sale to plan sponsors.
30 min