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Could We Have a New ESG Regulation by Year-End?

By Nevin E. Adams, JD 10/7/2022

A recent development regarding a rule by the Employee Benefits Security Administration suggests that we could have a final regulation from the Labor Department by year-end. The regulation, submitted for review on Oct. 6 to the White House’s Office of Management and Budget as “Prudence and Loyalty... READ MORE

Fiduciaries Fend Off Another Excessive Fee Suit — for Now

By Nevin E. Adams, JD 10/5/2022

A federal court decision establishing a new, higher burden of proof in excessive fee suits has — for now — handed fiduciary defendants another win. The win in this case — Baumeister v. Exelon Corp., N.D. Ill., No. 1:21-cv-06505, 9/22/22—was a suit filed by participant-plaintiffs Fred Baumeister,... READ MORE

Generation Grasp

By Nevin E. Adams, JD 10/3/2022

We deal with a lot of gaps in our lives—gaps because there is a difference between what we want and/or expect and reality. Among others, there are wealth gaps, communication gaps, generation gaps, and — when it comes to retirement — coverage gaps. But when it comes to helping people make good... READ MORE

Bill Seeks to ‘Clarify’ 401(k) Investment Classes—Including Crypto

By Nevin E. Adams, JD 9/30/2022

A trio of Republican legislators have introduced a bill that would widen the acceptable investment classes in defined contribution plans to, well, pretty much anything—including “digital assets.” The Retirement Savings Modernization Act was just introduced by U.S. Sens. Pat Toomey (R-PA) and Tim... READ MORE

The Most Important Retirement Number

By Nevin E. Adams, JD 9/26/2022

What’s the most important number when it comes to retirement? Once upon a time it might have been considered to be “65”—that traditional age for retirement—but even though it’s the default in many retirement calculators, until recently it hadn’t even been the most common age for actual retirement... READ MORE

Cruise Line Docked with Excessive Fee Suit

By Nevin E. Adams, JD 9/23/2022

The plan size somewhat smaller, the plaintiff’s law firm relatively unknown in these matters—but the claims are familiar. This time the plaintiff bringing suit is Grace Angelo—the targeted plan, the NCLC 401(k) Plan, as well as NCL Corporation LTD, and the Plan’s administrator, NCL (BAHAMAS) LTD... READ MORE

Three 401(k) Excessive Fee Suits Settle

By Nevin E. Adams, JD 9/23/2022

We don’t know all the particulars yet, but a number of pending excessive fee suits have announced settlements. In a case of good news, bad news, the pace of excessive fee settlements seems to be accelerating (that would be the bad news), but the size of those same settlements seems to be declining... READ MORE

Goldman Sachs Sacks 401(k) Excessive Fee Suit

By Nevin E. Adams, JD 9/23/2022

Another excessive fee suit—and this one involving proprietary funds—has been decided in favor of the plan fiduciaries. The victor here—Goldman Sachs and its $7.5 billion 401(k) plan on behalf of some 35,000 participants, according to the lawsuit—another filed by Nichols Kaster PLLP (and MKLLC Law... READ MORE

‘Standing,’ Still

By Nevin E. Adams, JD 9/19/2022

Our industry has long fretted over how 401(k) participants will respond to volatile markets. And perhaps not surprisingly, these days the headlines are, generally speaking, full of “stay the course” assurances. That said, as recently as a month ago the headlines — even OUR headlines read things... READ MORE

DOL Pushes Back on Cryptocurrency Suit

By Nevin E. Adams, JD 9/15/2022

Having been sued for issuing its Compliance Assistance Release on cryptocurrency by cryptocurrency recordkeeping platform provider ForUsAll, the Department of Labor (DOL) is pushing back. In fairness, ForUsAll describes itself a little differently — as a “modern” 401(k) provider that also offers... READ MORE

Proprietary Funds Draw Another 401(k) Excessive Fee Suit

By Nevin E. Adams, JD 9/15/2022

A new suit claims that the decision to retain proprietary funds in the 401(k) was “polluted by self-interest,” driven by a “blind preference” and that “defendants’ favoritism has led to the payment of excessive investment management fees. This time the plaintiff is current participant Sandy... READ MORE

5 Dangerous Fiduciary Assumptions

By Nevin E. Adams, JD 9/12/2022

There’s an old saying that when you assume… well, here are some assumptions that can create real headaches for retirement plan fiduciaries. Assuming that the Worst-Case Deadline for Depositing Participant Contributions Is the Deadline for Depositing Participant Contributions The legal... READ MORE

Appellate Court Backs Beneficiary Designation

By Nevin E. Adams, JD 9/9/2022

There are plenty of cautionary tales about beneficiary designations and unintended consequences—here’s another. It seems that Sally A. Hogen made contributions to a 401(k) plan during her employment at Honeywell International Inc. She originally designated her husband (Clifford C. Hogen) as the... READ MORE

Principal Prevails (Yet) Again in Fiduciary Suit

By Nevin E. Adams, JD 9/7/2022

A case that hinged on the determination of fiduciary status based on control of plan assets—has been decided—again—in favor of the defendants. The original suit (Rozo v. Principal Life Ins. Co., S.D. Iowa, No. 4:14-cv-00463-JAJ-CFB, 5/12/17), was brought by plaintiff Frederick Rozo[1] on behalf... READ MORE

Seventh Circuit Gives Oshkosh Another Excessive Fee Suit Win

By Nevin E. Adams, JD 9/6/2022

A federal appellate court took another look at an excessive fee case it had dismissed—and found nothing in a recent Supreme Court decision to change its mind. It was, in fact, the same appellate court (the Seventh Circuit) that had its judgement in the Hughes v. Northwestern University decision in... READ MORE

Appellate Court Backs ERISA Account Garnishment

By Nevin E. Adams, JD 9/2/2022

ERISA’s anti-alienation provisions generally serve to protect/shield retirement assets from garnishment—there is, however, an exception—and Evan Greebel just found out the hard way. In 2017, Evan Greebel was convicted of Conspiracy to Commit Wire Fraud and Conspiracy to Commit Securities Fraud as... READ MORE

Fiduciary Rule Challenge ‘Friended’ by ACLI

By Nevin E. Adams, JD 8/31/2022

A lawsuit challenging the Labor Department’s subsequent guidance/application of the so-called fiduciary rule has some support from the American Council of Life Insurers (ACLI). As noted in the filing, the ACLI was one of the lead plaintiffs in the Fifth Circuit decision that vacated the 2016... READ MORE

Could ESG Options Undermine Participant Outcomes?

By Nevin E. Adams, JD 8/29/2022

Despite surveys to the contrary, a new study finds that overall interest in ESG strategies by participants is “relatively weak” and “driven by naïve diversification.” The difference may, of course, be attributed to the difference between what individuals say—and what they actually do. Unlike... READ MORE

A Guide Path for Your Glide Path(s)

By Nevin E. Adams, JD 8/29/2022

A recent report—and a new wave of litigation—reminds us that all target-date funds are not designed the same. We all know that target-date funds are different, even if their names sometimes suggest otherwise. Different management teams both set and monitor asset allocations—allocations that can... READ MORE

Participant Data Claims Dismissed in Excessive Fee Suit

By Nevin E. Adams, JD 8/26/2022

ADP got something of a split decision in an excessive fee case—with a federal judge allowing claims regarding high record-keeping fees and expensive investments to proceed—but culling claims about the use of participant data. The Suit The suit was filed in mid-May 2020 in the U.S. District Court... READ MORE

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