On April 3, 2024, the U.S. Department of Labor (the “DOL”) published in the federal register a final amendment to Prohibited Transaction Class Exemption 84-14 (the “QPAM Exemption”) that makes considerable changes to the exemption’s conditions (the “Final Amendment”). Although the Final Amendment trims back some of the more onerous requirements floated in the proposed
Retirement Plans
California District Court Denies Motion to Dismiss 401(k) Excessive Fee and Underperformance Claims
A California district court recently denied a motion to dismiss claims that the fiduciaries of a 401(k) plan breached their ERISA fiduciary duties of prudence and loyalty by selecting underperforming, high-cost investments and causing the plan to pay excessive fees for services. The decision is notable for illustrating how pleading standards in investment performance and…
Wisconsin Federal District Court Issues Five Rulings on Motions to Dismiss 401(k) Investment and Fee Cases – Is There a Way to Reconcile Them?
Defense counsel frequently lament the difficulties of defending 401(k) investment and recordkeeping fee litigation when different judges render conflicting rulings on motions to dismiss seemingly indistinguishable complaints. Even when the judges purport to apply the same legal standards, the outcomes can differ. For that reason, we thought it would be interesting to track the decisions…
Act Fast (If You Get the Letter)! IRS Pre-Examination Retirement Compliance Pilot Program is Extended
On February 7, 2024, the IRS announced the second phase of its Pre-Examination Retirement Compliance Program (we discussed phase one in our earlier post here). Under this program, sponsors will be notified that their plan is selected for examination and will have 90 days to review and correct any plan document or operational errors…
Notice 2024-02: IRS Offers Guidance on (Some) SECURE 2.0 Questions
Approximately one year after Congress enacted the SECURE 2.0 Act of 2022 (“SECURE 2.0”), the IRS issued Notice 2024-02, which addresses SECURE 2.0 implementation issues and extends the plan amendment deadline. Although Notice 2024-02 offers helpful guidance for employers and plan administrators, it does not include hotly anticipated guidance on SECURE 2.0 overpayment and…
Putative ESOP Class Action Dismissed for Failure to Exhaust Administrative Remedies
The decision in Bolton v. Inland Fresh Seafood Corp. of America Inc., No. 22-cv-4602 (N.D. Ga. Dec. 5, 2023)should serve as a reminder to all ERISA practitioners that, if litigating in courts of the Eleventh Circuit, participants must exhaust a plan’s claims procedures before commencing a lawsuit—regardless of the type of ERISA claim asserted.…
Congress Proposes SECURE 2.0 Technical Corrections Bill
As previously discussed, the SECURE 2.0 Act of 2022 (“SECURE 2.0”) was signed into law on December 29, 2022 as part of the 2023 Consolidated Appropriations Act, and included a myriad of required and optional plan design changes for retirement plan sponsors and employers (described in more detail here). After a closer read, several…
IRS Proposes 401(k) Plan Regulations Implementing Long-Term Part-Time Employee Eligibility Requirements
The day after Thanksgiving, while many of us were fortunate enough to be reaching for leftover pie, the IRS released proposed regulations implementing the requirement that 401(k) plan sponsors permit “long-term part-time employees” to make elective contributions to a 401(k) plan. These proposed regulations arrive just one month before the statutory requirements are set to…
Game of Tomes: A Guide to the DOL’s Retirement Security Rule Proposal
The new “retirement security rule” package, issued by the U.S. Department of Labor (the “DOL”) on October 31, 2023, is the latest chapter in an almost 15-year effort by the DOL to amend the five-part test in its 1975 regulation for determining whether a person is a “fiduciary” by reason of providing “investment advice” for a fee (the “Five-Part Test”). (For more on the history, see here, here, and here.) The package includes a proposed new fiduciary “investment advice” rule (the “Proposed Rule”) and proposed amendments to certain prohibited transaction exemptions.
Very generally speaking, the Proposed Rule would significantly expand the circumstances under which a person could be treated as providing “investment advice” that is subject to ERISA’s fiduciary standards (including the self-dealing prohibited transaction rules). In particular, the Proposed Rule would replace the Five-Part Test’s requirements that advice be provided (1) on a “regular basis” pursuant to (2) a “mutual agreement, arrangement or understanding” that (3) it would serve as “a primary basis for investment decisions” with a much broader test that is based on the retirement investor’s reasonable expectations and context. The Proposed Rule would specifically cover a recommendation to roll over an account from an employer-sponsored plan (e.g., a 401(k) plan) into an individual retirement account (an “IRA”).
IRS Releases Annual Increases to Health FSA and Transportation Fringe Benefit Limits for 2024
On November 9th, the IRS announced additional inflation adjustments for 2024, including to the annual contribution and carryover limits for healthcare flexible spending accounts and the monthly limit for qualified transportation fringe benefits. The IRS did not increase the annual contribution limit for dependent care flexible spending accounts because that limit is not indexed to…