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Cypen & Cypen
February 13, 2020

Stephen H. Cypen, Esq., Editor

Rules Governing Your Participant-Directed 457(b) or Defined Contribution 401(a) Plan
Taking Advantage of Governmental Retirement Plan Contribution Limits
There are several fundamental principles and concepts that governmental plan sponsors and fiduciaries need to bear in mind as they select and monitor their plan providers and the fees that these providers charge. Practically all governmental plan providers use assets under management, or AUM, to measure success. This is what makes larger, more mature, plans attractive to recordkeepers and investment advisors. Based on decades of practice, most plan providers, such as recordkeepers and investment advisors, structure their fee arrangements so that they are paid a percentage of the AUM. The percentage is described in terms of “basis points,” with a basis point being equal to 1/100 of 1 percent. For example, a 25 basis point fee on an AUM of $1 million would be $2,500. Correspondingly, the same fee on a plan with $100 million in assets would be $250,000. The question is whether the plan provider is doing any more work (or providing greater services) in the case of the larger plan than the smaller plan? What if both plans have the same number of participant accounts? Does it cost a recordkeeper or advisor substantially more (i.e., 50 times) to keep track of a $50,000 account versus a $1,000 account? Does your bank charge you more simply because your account has grown? As previously described in earlier blogs posts, the fiduciaries of governmental retirement plans are responsible for ensuring that the fees charged to the plan are reasonable and appropriate. The difficulty with monitoring and evaluating the reasonableness of plan fees is the considerable number of ways in which a provider can structure its compensation. A good basic resource to help you understand the variety of fees and expenses is the booklet, “Understanding Retirement Fees and Expenses,” published by the U.S. Department of Labor. While each plan is different from the next, here are a few things to focus on when it comes to plan fees and expenses:

  • Each provider requires a certain level of fees/revenues to make their engagement worthwhile. If it seems that a particular provider is giving your plan a deal that is “too good to be true,” take note -- they probably are not. For example, it is fairly easy for an insurance company provider explicitly to lower your recordkeeping fees (i.e., reduce the basis point charge) while at the same time reducing the crediting rate or guarantee on the stable value option that many participants utilize. For example, a five basis point reduction in recordkeeping fees for a $100 million plan would save $50,000. But, this savings would be offset or erased if the vendor lowered the guaranteed crediting rate on participants’ stable value fund investments of let’s say $30 million by 17 basis points (0.17 percent). Because stable value funds are not regulated like mutual funds, it is often quite hard to see how much it “costs” the insurer to provide this option.
  • Most administrative service agreements explicitly state that the recordkeeper will get paid certain fees, but they do not always require the recordkeeper to state or disclose that such fees are the “only” fees it is receiving from all sources in connection with the plan. When reviewing or negotiating such fees, make sure that you are “seeing” everything, not just the tip of the iceberg.
  • Like the salespeople at the regional auto mall, the representatives of your plan providers generally are extremely experienced and savvy. You are well advised to obtain the assistance of an independent financial advisor to help you uncover and evaluate the entire fee/expense situation.
  • Unless you understand the exact basis upon which your plan providers are being paid, you cannot evaluate whether the current arrangement is “fair” to your plan participants. For example, a fee arrangement predicated on a “high-profit” stable value fund and very low-cost mutual funds may discriminate against your participants with less investment experience.

Because it is difficult to understand all of the fees and expenses charged to your plan, and to understand how they affect various participants, you may want to obtain assistance with these tasks so that you can better fulfill your fiduciary obligations. Jeff Chang, Focus on Public Benefits, January 13, 2020.

New data on unionization from the Bureau of Labor Statistics show that in 2019, 16.4 million workers in the United States were represented by a union. There was very little change in this figure from 2018 (+3,000). However, because workers entered the workforce faster than the number of workers represented by a union increased over this period (1.2% vs. 0.02%), the share of workers represented by a union ticked down between 2018 and 2019, from 11.7% to 11.6%. In the private sector, the number of workers represented by a union increased by 50,000 in 2019, or 0.6%. But due to the 1.5% increase in private-sector employment, the share of private-sector workers represented by a union fell slightly, from 7.2% to 7.1%. The biggest gains in private-sector unionization were in healthcare and social assistance, while the biggest losses were in retail trade. The total number of public-sector workers who were represented by a union declined by 47,000 in 2019, or -0.6%. However, employment in the public sector declined at almost the same rate, so the share of public-sector workers represented by a union held steady at 37.2%. The share of workers represented by a union in 2019 was similar among men and women, with 12.1% of men and 11.0% of women represented by a union. By race and ethnicity, black workers experienced the biggest decline in union coverage in 2019, declining from 13.8% to 12.7%. Nevertheless, among major racial and ethnic groups, black workers still had the highest rate of union coverage at 12.7%. Asian workers had the lowest rate, at 10.0%, but Asian workers also experienced the biggest coverage rate increase in 2019, rising from 9.5% to 10.0%. The union coverage rate for Hispanic workers was 10.2%. By age, there was an increase in union coverage among workers under the age of 45 (+127,000), while workers age 45 or older saw a decline (-125,000). “The share of workers covered by a union contract is well less than half of what it was 40 years ago--caused in large part by fierce corporate opposition spending millions of dollars on anti-union campaigns and lobbying the government to weaken labor laws,” said Heidi Shierholz, EPI’s Director of Policy. “Despite this attack on unions, we’ve seen a surge of strikes in the last two years, showing that workers understand the importance of joining together with their coworkers to demand better wages and working conditions.” Survey data show that 48% of nonunion workers would vote to join a union in their workplace if given the opportunity to do so. A recent EPI report, however, found that employers spend roughly $340 million annually on “union avoidance” consultants and are charged with breaking the law in 41.5% of union elections. This combination of illegal conduct and legal coercion has ensured that union elections are characterized by employer intimidation and are a strong departure the democratic process guaranteed by the National Labor Relations Act. EPI, Press Release, January 22, 2020.

The General Services Administration (GSA) has worked in recent years to improve reliability of the Federal Real Property Profile (FRPP), which tracks federal real property assets. However, numerous errors in the database were carried into the public version. GSA extracted data from the FRPP’s 398,000 civilian federal assets to create a public database to be used, for example, by researchers and real estate developers. However, GSA’s data verification process did not address key errors. GAO found that 67 percent of the street addresses in the public database were incomplete or incorrectly formatted. For example, the database lists “Greenbelt Road” as the address for over 200 buildings at NASA’s Goddard Space Flight Center, but the road stretches over 6.3 miles, thereby reducing a user’s ability to locate specific buildings. The public database is not complete because GSA and selected agencies decided not to provide certain useful information. Specifically, GSA withheld assets’ information without consulting those agencies managing the assets and allowed agencies to withhold information that is already publicly available. For example, GSA withheld the name “Goddard Space Flight Center” from the public database, but NASA’s website lists this name and the Center’s location. Unnecessarily withholding information limits the database’s utility and undermines analysis. The public database’s usefulness is further limited by how GSA presents the information. Because the database does not identify if an asset is part of a secure installation, the public does not know if assets, such as the unnamed buildings at Goddard, are accessible to the public. Unless GSA improves the public database’s accuracy, completeness, and usefulness, its benefits may not be realized. The lack of reliable data on federal assets is one of the main reasons Federal Real Property Management remains on GAO’s high risk list. In 2016, legislation required GSA to publish a single, comprehensive, and descriptive database of federal real property that would be available to the public. The database could be used for research and other potential applications. GAO was asked to study the public database. This report assesses (1) GSA’s efforts to improve the reliability of FRPP’s data and the public database, (2) the public database’s completeness and (3) the presentation of the data in the public database. GAO reviewed federal laws, documents, and data, including GSA’s fiscal years 2017 and 2018 FRPP and public databases. GAO interviewed officials at GSA and from six federal agencies selected in locations with enough questionable data in the public database to analyze, among other things, and studied assets in Washington, D.C., Illinois, and New Mexico. GAO also interviewed selected stakeholders involved in federal real property management, such as real estate brokers.GAO is making six recommendations to GSA, including improving the accuracy of the database, consulting with agencies on assets’ information withheld from the database, and improving the public database’s presentation. GSA agreed with five of the recommendations. GAO clarified the recommendation on withholding information on agencies’ assets, to address GSA’s comments. Lori Rectanus, GAO-20-135, United States Government Accountability Office (GAO), February 2020.
Dutch pension fund Stichting Pensioenfonds ABP, Europe’s largest pension fund with €466 billion ($514.6 billion) in assets, has unveiled a plan to cut its equity portfolio’s 2015 CO2 emissions levels by 40% by 2025, and become entirely “climate neutral” by 2050. To help achieve its goals ABP will phase out investments in coal mines and tar sands, and said that within 10 years it will no longer be invested in coal for electricity producers in Organization for Economic Co-operation and Development (OECD) countries. “We are sticking our neck out by setting goals for 2050 and 2030. With our previous sustainability plan, we did not dare to look further than five years,” Corien Wortmann-Kool, CEO of ABP, said in an interview with Dutch newspaper de Volkskrant. “So, this is not a five-year plan, but a 30-year plan. I think that makes us a real forerunner.” Wortmann-Kool said the fund will provide an update on the progress of its plan in 2022 to “see if any tightening is required.” The fund sees three major transitions in the coming years that are crucial for companies to be able to create long-term value:

  1. The need to transition to new energy generation and renewable energy sources.
  2. Preservation of natural resources in connection with increasing scarcity of resources and food, and the need to deal with natural resources differently.
  3. The digitization of society, in which technology is playing an increasingly important role.
  4. ABP said that by 2050 the global economy must be climate neutral, and that energy must be affordable for everyone. To help achieve this goal, the fund said that it is reducing its investments in coal mines with sales of more than 30% and tar sands with sales of more than 20%. It is also establishing additional inclusion criteria to better assess companies’ climate change responses. It will invest €15 billion in sustainable and affordable energy, for example, through investments in green bonds. ABP said that by 2025 it plans to invest more in companies with circular business models and other innovative solutions for food and raw material shortages. It will double its real estate investments that have a “green building certificate,” and establish criteria to assess companies for demonstrably more efficient, sustainable, and socially responsible use of natural resources. Besides climate change, ABP will focus more on human rights. “In 2050 all companies must demonstrably respect human rights,” said ABP. “We will be addressing companies more and more often about this. This means that companies must identify, prevent and address human rights risks.” ABP does not invest in producers of weapons that are prohibited under international treaties signed by the Netherlands. This applies specifically to companies involved in making cluster bombs, land mines, and chemical and biological weapons. From 2019, ABP no longer invests in tobacco companies, and companies involved in the production of nuclear weapons. It also does not invest in government bonds of countries subject to a binding arms embargo from the European Union or UN Security Council.

Chief Investment Officer, February 5, 2020.

When taxpayers complete their tax returns, some of them will owe money when they file. Here’s the thing…they have the right to pay only the amount of tax that is legally due. This is one of ten Taxpayer Bill of Rights. They are fundamental rights taxpayers have when dealing with the IRS. One of which is the right to pay only the amount of tax legally due, including interest and penalties, and to have the IRS apply all tax payments properly.
This means taxpayers are entitled to:

  • File for a refund if the they believe they overpaid.
  • Write or call the IRS office that sent the taxpayer a notice or bill. Taxpayers can do this if they believe the notice or bill is incorrect in any way. When challenging information in a bill or notice, taxpayers should be ready to provide copies of any records that may help correct the error. If the taxpayer is correct, the IRS will make the necessary adjustment to their account and send a corrected notice.
  • Amend a tax return if they discover an error. They can also amend this return if there were mistakes in their filing status, income, deductions or credits.
  • Request any amount owed be removed if it’s more than the correct amount due.
  • Request the IRS remove any interest from their account if the IRS caused unreasonable errors or delays.
  • Submit an offer in compromise, asking the agency to accept less than the full tax debt, if the taxpayer believes they don’t owe all or part of the debt.

IRS Tax Tips, Issue Number: Tax Tip 2020-14, IRS.Gov, February 5, 2020.
All but one charge against Voya Financial has been dismissed in a lawsuit alleging that asset-based fees led to a 19-participant retirement plan paying $1,819 per participant for recordkeeping services in 2015. The decision by U.S. District Judge Colm F. Connolly of the U.S. District Court for the District of Delaware says the Cornerstone Pediatric Profit Sharing Plan retained Voya to provide administrative and recordkeeping services to the plan pursuant to a group annuity contract. The plan sponsor also used Voya to prepare and deliver Rule 404a-5 participant fee disclosures. For the services it provides the plan, Voya charges a maintenance fee of $15 to $30 per participant per year, as well as an asset-based fee, referred to in the contract as a “Daily Asset Charge.” The Daily Asset Charge varies by the level of plan services provided and the total value of the assets held under the contract and certain other related contracts. The plaintiff, a participant in the plan, first alleged that Voya breached its fiduciary duties under the Employee Retirement Income Security Act (ERISA) by charging excessive fees. But “a party does not act as a fiduciary with respect to the terms in the service agreement if it does not control the named fiduciary’s negotiation and approval of those terms,” Connolly wrote in his opinion, citing Renfro v. Unisys. He noted that the fees Voya charges the plan and its participants were set in the contract, and at the time the fee schedules were proposed, Voya had no relationship with the plan or its participants and could not have been a fiduciary. Connolly rejected the plaintiff’s argument that because Voya can charge different Daily Asset Charges over the lifetime of the plan, it has discretion over the plan and is therefore a fiduciary. He pointed out that the Daily Asset Charge is set by a schedule the plan agreed to in the contract, and the only changes to the Daily Asset Charge occur based on the total asset value of the plan. “Because Voya was not a fiduciary of the plan with respect to the fees, it cannot be liable for breach of fiduciary duties for charging excessive fees,” Connolly concluded. The plaintiff also alleged that Voya is liable for breach of co-fiduciary duties by charging excessive fees and providing “false and misleading” disclosures that violate Rule 404a-5. To be liable for a claim of breach of co-fiduciary duties, one must be a fiduciary, Connolly said. Because Voya was not a fiduciary with respect to the fees charged under the contract, Voya cannot be liable for breach of co-fiduciary duties for excessive fees. However, the co-fiduciary issue did not need to be decided with regard to Voya providing “false and misleading” Rule 404a-5 disclosures, because the judge found Voya is a fiduciary in that matter. First, Connolly explained that Voya’s Rule 404a-5 disclosures include the “total gross annual operating expenses” and the “total net annual operating expenses” for each fund represented as percentages. For example, the 404a-5 disclosure reproduced in the amended complaint stated that the total net annual operating expenses for Vanguard VIF–Equity Income Port was 2.16%. But this figure did not represent just the operating expenses for the Vanguard VIF–Equity Income Port fund. Instead it represented the combination of the operating expenses for Vanguard VIF–Equity Income Port (which were 0.27%) and Voya’s asset-based fees (which were 1.49%). The plaintiff’s theory is that by combining the funds’ operating expenses with Voya’s fees rather than listing them separately, Voya is misleading the beneficiaries into thinking that the combined number only represents the operating cost of the fund. Voya argued that it is not a fiduciary because preparing 404a-5 disclosures is a purely ministerial function. But the amended complaint alleges that “VOYA maintains discretion to determine the contents of the disclosures to plan participants required by ERISA, including the fee disclosures required by ERISA, and in fact prepares and distributes the disclosures to plan participants.” Connolly concluded that because the plaintiff alleged that Voya prepares and delivers the disclosures to plan participants and has discretionary authority to determine the contents of the disclosures, the plaintiff has properly alleged that Voya is a fiduciary with respect to the 404a-5 disclosures. The judge rejected Voya’s argument that even if it is a fiduciary, its disclosures satisfy the requirements of 404a-5 and thus it has satisfied its fiduciary duties pertaining to the 404a-5 disclosures. Connolly said breach of fiduciary duties does not turn on whether the disclosure satisfies rule 404a-5. “The Third Circuit has explained that although ERISA ‘articulates a number of fiduciary duties, it is not exhaustive,’” he noted. “Rather, Congress relied upon the common law of trusts to define the general scope of trustees’ and other fiduciaries’ authority and responsibility.” Connolly pointed out that among the common-law duties incorporated into ERISA is the duty to disclose material information, which “entails not only a negative duty not to misinform, but also an affirmative duty to inform when the trustee knows that silence might be harmful.” In addition, he said he is not bound by, and disagrees with, a 7th U.S. Circuit Court of Appeals decision in Hecker v. Deere & Co. quoted by Voya that said, “The total fee, not the internal, post-collection distribution of the fee, is the critical figure for someone interested in the cost of including a certain investment in her portfolio and the net value of that investment.” Connolly said, “There is a substantial likelihood an employee looking at these disclosures would think the listed fees were paid only to the listed funds as opposed to the listed funds and Voya. If that were the case, then the employee would be unlikely to complain about Voya’s fees to her trustee and advocate for a change in service provider, because she would not realize how much Voya was charging her. Accordingly, plaintiffs have at least established materiality to the degree required to survive a motion to dismiss.” The plaintiff’s fourth and final claim for relief is that Voya is a party in interest within the meaning of ERISA and violated its prohibited transaction provisions by charging an unreasonable fee for services. Connolly pointed out that the parties agree that to state a claim under those provisions, the plaintiff must first allege that Voya was a party in interest. And, they also agree that Voya was not a party in interest prior to entering the contract. “Because Voya was not a party in interest when it negotiated the contract--including the fee schedules--Voya cannot be held liable under [the prohibited transaction provisions] for charging excessive fees,” Connolly concluded. Rebecca Moore, Plansponsor, February 5, 2020.
In the first of a series of staff studies to be released to the public, the Federal Deposit Insurance Corporation (FDIC) today published a comprehensive history of how the agency assessed banks to build FDIC's now 85-year-old Deposit Insurance Fund (DIF) and help achieve its mission of protecting depositors and resolving failed banks. A History of Risk-Based Premiums at the FDIC chronicles the evolution of how the agency has set premiums that reflect the risk banks pose to the DIF, without relying upon taxpayer support. The study traces the decisions and motivations behind this evolution--from an assessment system where all banks paid the same rate to the risk-based system in place today. For nearly 60 years, the FDIC assessed all insured institutions at the same rate, regardless of the degree of risk they posed to the fund. Following banking crises in the 1980s and early 1990s, Congress required the FDIC to implement its first risk-based system in 1993, based on an institution's capital levels and supervisory ratings. Since then, the FDIC has incorporated data and experience gained over nearly 25 years--including two banking crises--with the goal of improving the system and making assessments fairer and more accurate. From the first risk-based approach to the most recent changes implemented in 2016, the study also dives into the policy debates leading to each change, how the assessment system was revised to incorporate new experience, and the FDIC's evaluation of the changes against the system in place at the time. As the banking industry evolves, the FDIC will continue to monitor the assessment system's ability to measure risk and consider ways to improve risk-based pricing. FDIC will publish future papers on an ongoing basis by FDIC researchers, staff, and Center for Financial Research Advisors and Scholars covering a wide range of banking topics of general interest. Congress created the Federal Deposit Insurance Corporation in 1933 to restore public confidence in the nation's banking system. The FDIC insures deposits at the nation's banks and savings associations, 5,256 as of September 30, 2019. It promotes the safety and soundness of these institutions by identifying, monitoring and addressing risks to which they are exposed. The FDIC receives no federal tax dollars--insured financial institutions fund its operations. FDIC press releases and other information are available on the Internet at www.fdic.gov, by subscription electronically (go to www.fdic.gov/about/subscriptions/index.html) and may also be obtained through the FDIC's Public Information Center (877.275.3342 or 703.562.2200). Brian Sullivan, Media contact, (202) 898.6534, brsullivan@fdic.gov, PR-8-2020, Federal Deposit Insurance Corporation, February 3, 2020.
A former lawyer at Arent Fox filed a lawsuit that claims that his nerve-compression disability led the law firm to reduce his assignments, change his job duties, and then terminate his employment. Cornell Crosby, an intellectual property lawyer, filed the disability discrimination suit in state court in Los Angeles, Law360 reports. He is seeking $300,000 in economic damages, along with damages for emotional distress. Crosby alleges that the law firm violated California’s Fair Employment and Housing Act by retaliating against him based on his disability, his medical leaves and his accommodation requests. Crosby says he began work at Arent Fox in April 2017 at a salary of $225,000 per year, not including a bonus. He began experiencing pain in his left forearm in August 2017, as well as weakness, numbness and tingling in two of his fingers. He could not perform simple tasks such as buttoning his shirts, opening jars and turning a key in the lock. Sitting for long periods of time caused excruciating pain. An MRI showed the pain was due to compression on of the nerves in his left arm. The first procedure, performed over the Labor Day weekend, was a failure. The pain intensified and, acting on his doctor’s recommendation, Crosby requested a medical leave from January 2018 through August 2018. When Crosby returned to work, a questionnaire completed by his medical provider indicated that he could not engage in prolonged writing, typing and sitting. The questionnaire suggested that Crosby begin by working a part-time schedule, with a return to full-time work after a doctor’s evaluation. Crosby says he requested accommodations that included a standing desk, dictation software, and the ability to take breaks when needed. After his return, Crosby was told he would be working on patent responses rather than higher-fee patent drafting work. Other lawyers appeared to be overworked, but not many assignments were coming his way, the lawsuit says. Despite the reduced work schedule, Crosby’s condition worsened. Crosby underwent a second surgery and took short-term disability leave from February 2019 through May 2019. In June 2019, Crosby was told that his position was being eliminated because the work he was doing had “dried up” and his hours were low, according to the suit. “As a result of Arent Fox’s wrongful termination, Mr. Crosby has suffered severe emotional distress,” the suit says. “Since his termination, Mr. Crosby has found it difficult to deal with his feelings of anguish and humiliation.” Crosby’s suit says he has several years of legal experience in intellectual property, including seven years of practice at Pillsbury Winthrop Shaw Pittman and four years at Seyfarth Shaw. Arent Fox released this statement: “We are aware of this lawsuit, and its claims are meritless. Because this involves pending litigation, we have no further comment at this time.” Debra Cassens Weiss, ABA Journal, January 31, 2020.
A federal court in Los Angeles has dismissed a lawsuit against Northrop Grumman Corp. alleging it breached its fiduciary duties when it failed to provide participants in its pension plan with accurate information regarding the amount of their pension benefits. Plaintiffs Stephen and Laura Bafford claimed that Northrop issued Mr. Bafford pension benefit statements showing that if he worked to at least 55 and elected a 100% joint-and-survivor annuity form of benefit, he would receive lifetime monthly payments of more than $2,000, according to the complaint filed Dec. 7. When Mr. Bafford retired and began receiving his pension, however, he was notified that Northrop had provided incorrect information and that his actual benefit was only $807.79 a month, the plaintiffs alleged. The plaintiffs claimed that Northrop and the administrative committee breached their fiduciary duties by acts and omissions including failing to ensure that participants were provided with "complete and accurate information regarding the amount of the Northrop plan benefit." They filed the lawsuit against Northrop, its administrative committee and Alight Solutions, whose predecessor, Hewitt Associates, provided record-keeping and third-party administration services to the plan. Judge Otis D. Wright II dismissed all claims largely on the grounds that the complaint lacked sufficient facts. For example, in tossing the claim that the administrative committee violated its fiduciary obligations by providing inaccurate pension statements to the plaintiffs, the judge noted that ERISA section 105(a) requires plan administrators to provide participants with a pension benefit statement every three years or upon written request. Since the plaintiffs stated that they used an online platform to request the benefit statements -- and did not “specify whether they actually made any written requests” -- they “failed to adequately plead a cause of action in accordance with ERISA section 105(a),” the judge wrote in his ruling. He didn’t completely close the door on the case, however, giving the plaintiffs 21 days to amend their complaint. Margarida Correia, Pension & Investments, January 9, 2020.
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