At the end of August, I made my first trip to Burning Man, an annual event held in the Black Rock Desert of northern Nevada. With 10 guiding principles, it involves art, music and free-spiritedness. This experiment in temporary community sees 65,000+ attendees converge on a dried-up lake bed, build a temporary city and leave behind no trace that it ever existed only a couple of short weeks later. Katie Couric, Chris Taylor and Grover Norquist describe it better than I could.
Topic Archive: ERISA
Ever see the movie Men In Black? One of my favorite lines is when Tommy Lee Jones says to Will Smith, “Fifteen hundred years ago, everybody knew the Earth was the center of the universe. Five hundred years ago, everybody knew the Earth was flat; and fifteen minutes ago, you knew that humans were alone on this planet. Imagine what you'll know tomorrow.”
Back in March, Assistant Secretary of Labor Phyllis Borzi testified before a Senate committee, expressing concern about whether open MEPs can be treated as single plans under ERISA since there is no commonality among adopters. A recording of her testimony is here, with the MEP comments beginning around the 36th and 43rd minutes. Some commentators thought the testimony was a sign of what DOL’s official position would be, while others suggested it gave no cause for concern, because the Internal Revenue Code does not require the commonality that Asst. Sec. Borzi described.
“Real estate doesn't interest me. It's no doubt a great flaw in my personality, but I can't think in terms of boundaries. Those imaginary lines are as unreal to me as elves and pixies.” -- Kurt Vonnegut, Jr.
My good friend and benefits attorney Ilene Ferenczy sends out an e-newsletter from time-to-time. The Ferenczy Flash always includes timely, practical information for plan sponsors and service providers. The edition she sent earlier this week highlights a very important point that often gets lost in the 401(k) shuffle - while all of the fiduciary rules are important, it is failing to comply with the Tax Code that is more likely to land most plan sponsors in hot water.
I was recently asked to write an article on ERISA Section 404(c). As I contemplated how to approach the article, I recalled many situations in which I have heard 404(c) pitched as the mythical silver bullet to save plan fiduciaries from the specter of liability associated with participant-directed investments.
An article appeared yesterday on CFO.com entitled “New 401(k) Obligations Heaped on CFOs” and it carried a tagline stating “New disclosure rules abound, but pay close attention or you could be sued by plan participants.”
As the EGTRRA restatement window closes for pre-approved DC plans and begins to open for pre-approved DB plans, I thought I would pontificate on the importance of the plan document. Qualified plans are required to be maintained pursuant to a written plan document. Operating the plan inconsistent with terms in that document is an operational failure that can threaten a plan’s qualified status.
Several weeks ago, I had a lengthy conversation with a prospective client (we’ll call her Alice) and her investment advisor. After the standard dialogue about fees, service guarantees, etc., the discussion inevitably turned to the retirement plan “F” word – FIDUCIARY. Alice had read this article and wanted to know if the advisor would be a 3(21) or 3(38) fiduciary.
Crikey! We’ve just discovered the rare non-ERISA 403(b) plan meandering along, oblivious to such details as filing Form 5500 or worrying about fiduciary responsibility. Wait…could it be this harmless creature only offers investments from a single vendor? Danger! Danger! Danger!