Nevin & Fred

By Nevin AdamsBusiness

Nevin & Fred episodes

May 03, 2024 Season 4, Episode 6: Live from Music City - Part 2
On April 7, 2024, Nevin (Adams) & Fred (Reish) took their popular podcasting platform on the road to Nashville,
Tennessee, for a live version at the NAPA 401(k) Summit—in the middle of a solar eclipse!
In the second part of an expanded session, the prolific podcasting pair pointed to some takeaways from recent litigation trends including:
The importance of fiduciary training New Fiduciary Suits, TDF Demographics and a Prudent Process Primer |
National Association of Plan Advisors (napa-net.org)
The meaning of “meaningful benchmarks” Lack of ‘Meaningful Benchmark’ Bounces (Another) 401(k) Excessive Fee Suit | National Association of Plan Advisors (napa-net.org)
Not to mention some predilections and predictions about the pending popularity and proclivities of pooled employer plans (PEPs). PEPs Will Match Single Employer Plan Adoption in 5 to 10 Years: Fred | National Association of Plan Advisors (napa-net.org)
22 min
May 01, 2024 Season 4, Episode 5: Live from Music City
On April 7, 2024, Nevin (Adams) & Fred (Reish) took their popular podcasting platform on the road to Nashville, Tennessee, for a live version at the NAPA 401(k) Summit—in the middle of a solar eclipse!
During an expanded session, the prolific podcasting pair pointed to some takeaways from recent litigation trends including:
Why it’s important to know/read your plan document
(forfeiture reallocation suits);
Why you may not need an investment policy statement (but should have an investment policy and an engaged committee);
How participant demographics could (should?) influence your target-date fund selection.

31 min
April 02, 2024 Season 4, Episode 4: Could a Predominant PEPs Prediction Prove Positive?
In a recent article on NAPA-Net, Fred Reish opined that PEPs—pooled employer plans—would come to dominate new plan adoption in the next five to 10 years. In this episode, Nevin (Adams) and Fred explore that possibility.
To make his case, Fred posed a counter-intuitive
argument, supposing that if we had started with a PEP architecture—one in which
most of the liability (and decisions and administrative work) was left to others—and holding forth an opinion that if we HAD started there, would plan sponsors have ever wanted to take on that “extra” work and liability.
Well, regardless of what you think about that premise,
the reality is that we didn’t, and that might well change the outcome—or will it? In this episode Nevin & Fred will talk about PEPs’ prospects, the possibilities, the potential problems, and more.
30 min
March 05, 2024 Season 4, Episode 3: More Proof Prudence Prevails in 401(k) Litigation
Some recent suits – and federal court rulings – provide some timely reminders about the importance of a prudent process and following the plan document.
In this podcast episode, Nevin (Adams) & Fred (Reish) discuss the background, issues, and implications behind:
(1) Suits regarding reallocation of forfeitures - offsetting employer contributions: 401(k) Forfeiture Fiduciary Breach Suit Now Targets Tetra Tech | National Association
of Plan Advisors (napa-net.org)
(2) The importance of following the plan document: DOL Successfully Sues Employer for Misuse of Forfeitures | National Association of Plan Advisors (napa-net.org)
(3) Fiduciary defendants prevail in two separate (and very different) cases because they had prudent, documented rocesses in place: Prudent Process Prevails (Again) in Proprietary Fund Suit | National Association of Plan Advisors (napa-net.org)
Breaking News: flexPATH Prevails in Suit Brought by Schlichter | National Association of Plan Advisors (napa-net.org)
(4) Participant suit challenging ESG “bias” of investment manager proxy voting clears motion to dismiss American Airlines Pilot’s 401(k) ESG Suit Clears Motion to Dismiss | National Association of Plan Advisors (napa-net.org)
UPDATE: American Airlines Moves (Quickly) for Summary Judgment in ESG 401(k) Suit | National Association of Plan Advisors (napa-net.org)

Some recent suits – and
federal court rulings – provide some timely reminders about the importance of a
prudent process and following the plan document.
In this podcast episode,
Nevin (Adams) & Fred (Reish) discuss the background, issues, and
implications behind:
(1) Suits regarding
reallocation of forfeitures - offsetting employer contributions:
401(k)
Forfeiture Fiduciary Breach Suit Now Targets Tetra Tech | National Association
of Plan Advisors (napa-net.org)
(2) The importance of following the plan document:
DOL Successfully Sues Employer for Misuse
of Forfeitures | National Association of Plan Advisors (napa-net.org)
(3) Fiduciary defendants prevail in two separate (and very
different) cases because they had prudent, documented processes in place>
Prudent Process
Prevails (Again) in Proprietary Fund Suit | National Association of Plan
Advisors (napa-net.org)
Breaking News: flexPATH
Prevails in Suit Brought by Schlichter | National Association of Plan Advisors
(napa-net.org)
(4) Participant suit
challenging ESG “bias” of investment manager proxy voting clears motion to
dismiss
American Airlines
Pilot’s 401(k) ESG Suit Clears Motion to Dismiss | National Association of Plan
Advisors (napa-net.org)
UPDATE: American Airlines Moves
(Quickly) for Summary Judgment in ESG 401(k) Suit | National Association of
Plan Advisors (napa-net.org)

33 min
February 02, 2024 Season 4, Episode 2: Glidepaths and “Guide” Paths
Another of the BlackRock TDF suits comes to a conclusion, the WSJ takes a peek at managed accounts—and Nevin and Fred ponder the implications for glidepaths.
To date only one of the dozen or so suits filed against plans that
had BlackRock’s LifePath TDFS have gotten past the motion to dismiss—suits that charged plan fiduciaries with “chasing low fees” and being inattentive to poor performance.
In this episode, Nevin & Fred discuss those outcomes, the issue of TDF glidepaths generally, and the possibilities—and complexities—with a managed account solution, and what
they should include to be more than “just an expensive target-date fund.”
25 min
January 09, 2024 Season 4, Episode 1: Forfeit “Sures?”
Late last year a Pasadena, California, law firm launched a
series of suits alleging that the use of forfeitures to offset employer contributions was a fiduciary breach. Nevin (Adams) and Fred (Reish) look at the issue(s) this raises.
“If this is the law, then that would be news to Congress
and the regulatory agencies, which have declared for decades that forfeitures can be used in this manner,” says a recent motion to dismiss a lawsuit alleging a fiduciary breach in offsetting employer contributions with forfeitures.
The motion to dismiss speaks to charges made in a suit
filed against Intuit, less than two weeks after filing an identical action against the Thermo Fisher Scientific Inc. 401(k)
Retirement Plan. This suit, filed in the Northern District of California, acknowledges that “the Plan provides that forfeited nonvested accounts may be used to pay Plan administrative expenses or reduce future Company matching contributions.” Its language mirrors almost exactly three other such suits filed
in either the Northern or Southern districts in California, including Clorox, Qualcomm and HP, all of which operated with plan documents that permitted—but did not require—that offset.
30 min
November 26, 2023 Season 3, Episode 15: A New Fiduciary Proposal
On October 31, the Biden Administration rolled out its long-anticipated update to the fiduciary rule. While
it’s got a new name (the Retirement Security Rule), it builds on and extends the Labor Department’s reach by both focusing on the needs and perceptions of the retirement investor and eliminating the “regular basis” aspect of the so-called five-part test that has long
been an integral component of what was considered to define an ERISA fiduciary.
In the latest episode Nevin (Adams) and Fred (Reish) consider the historical framework of the ERISA fiduciary definition, how the proposed rule would alter that, and what obstacles lie between that proposal and its ultimate adoption.
EXCLUSIVE Interview on the DOL’s Retirement Security Rule with EBSA’s Tim Hauser
https://www.napa-net.org/news-info/daily-news/exclusive-interview-dol%E2%80%99s-retirement-security-rule-ebsa%E2%80%99s-tim-hauser
Breaking: Biden Administration Previews Fiduciary Rule Rollout
https://www.napa-net.org/news-info/daily-news/breaking-biden-administration-previews-fiduciary-rule-rollout
Fred Reish’s blog posts on different aspects of the DOL proposal:
https://fredreish.com/category/fiduciary/
Links to the proposed guidance, as well as the proposed PTE amendments are below:
Proposed
Retirement Security Rule
Proposed
Amendment to PTE 2020–02
Proposed
Amendment to PTE 84–24
Proposed
Amendment to PTEs 75–1, 77–4, 80–83, 83–1, and 86–128
25 min
November 21, 2023 Season 3, Episode 14: Nevin & Fred Focus on ERISA 403(b)s – Litigation
At the 2023 NAPA/NTSA ERISA 403(b) conference, Nevin & Fred took the podcast LIVE to focus on the differences in SECURE 2.0 for 403(b) and 401(k) plans—with a special guest. And then the focus turned to
litigation. Since late 2016, nearly two dozen excessive fee lawsuits have been filed against major universities, raising many of the issues that had previously been raised regarding major 401(k) plans – but with some unique twists as well. That’s right, we closed out the 2023 NAPA/NTSA ERISA 403(b) conference with a live session joined by the inimitable Kelly Famiglietta and discussed:
Yale Prevails - and a first-ever jury trial - but at what cost? https://www.napa-net.org/news-info/daily-news/yale-prevails-403b-excessive-fee-suit
Northwestern University – and the implications for a “plausible” case https://www.napa-net.org/news-info/daily-news/northwestern-excessive-fee-defendants-win-some-lose-some
Fred’s favorite case (NYU v. Sacerote) – and why.
https://www.napa-net.org/news-info/daily-news/expert-opinions
15 min
November 02, 2023 Season 3, Episode 13: Focus on ERISA 403(b)
At the 2023 NAPA/NTSA ERISA 403(b) conference, Nevin & Fred took the podcast LIVE to focus on the differences in SECURE 2.0 for 403(b) and 401(k) plans – with a special guest.
41 min
September 19, 2023 Season 3, Episode 12: DOL Makes Another Fiduciary Foray
Late one recent Friday afternoon, the Department of Labor
dropped off a package that would redefine fiduciary investment advice under the Employee Retirement Income Security Act (ERISA). In this episode Nevin (Adams) and Fred
(Reish) explore the possibilities – the history and potential future – of this initiative.
Known officially as “Conflict of Interest in Investment
Advice,” according to a post on the Office of Management and Budget’s website, “this rulemaking would amend the regulatory definition of the term fiduciary...to more appropriately define when persons who render investment advice for a fee to employee benefit plans and IRAs are fiduciaries within the meaning of section 3(21) of ERISA and section 4975(e)(3) of the Internal Revenue Code."
As part of that, it purports to consider advisor practices,
plan sponsor and participant expectations, and IRA owners who receive investment advice. It would also consider “developments in the investment marketplace,” including compensation structures that could expose advisors to
conflicts of interest – and evaluate available prohibited transaction class exemptions and propose amendments or new exemptions.
Attempts to update the regulation – given foundation by the
Employee Retirement Income Security Act of 1974 (a.k.a. ERISA) and structure by regulations issued in 1975 (from which the 5-part test came) – are not new. No fewer than four attempts to do so have been made in the past decade across three Administrations.
In this episode, Nevin & Fred look at those developments – both where we’ve been (and why), what’s changed (and hasn’t), and what the future for this latest iteration and its potential import might be.
Episode Resources:
Breaking News: New Fiduciary Rule Sent to OMB by Department
of Labor https://www.napa-net.org/news-info/daily-news/breaking-news-new-fiduciary-rule-sent-omb-department-labor
Court Rolls Back Rollover Rule in 401(k) Fiduciary FAQ Fight https://www.napa-net.org/news-info/daily-news/court-rolls-back-rollover-rule-401k-fiduciary-faq-fight
Rollovers, Regular Basis Focus of DOL Guidance https://www.napa-net.org/news-info/daily-news/rollovers-regular-basis-focus-dol-guidance
DOL Confirms Investment Advice PTE https://www.napa-net.org/news-info/daily-news/dol-confirms-investment-advice-pte
DOL Unwraps New Fiduciary Standard as a PTE https://www.napa-net.org/news-info/daily-news/dol-unwraps-new-fiduciary-standard-pte
32 min