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Cypen & Cypen
NEWSLETTER
for
July 4, 2019

Stephen H. Cypen, Esq., Editor

1. IRS REMINDS TAXPAYERS TO ADJUST TAX WITHHOLDING TO PAY THE RIGHT TAX AMOUNT:
With this year’s average tax refund around $2,700, the Internal Revenue Service reminds taxpayers they have options to control the amount of their take-home pay and the size of their tax refund by adjusting their tax withholding. A Paycheck Checkup using the IRS Withholding Calculator can help taxpayers determine the right amount of tax they should have their employer withhold from their paychecks. Taxes are pay-as-you-go. This means taxes must be paid as income is earned or received during the year, either through withholding or estimated tax payments. As of May 10, nearly 101.6 million taxpayers received federal tax refunds. With the average refund around $2,700, some taxpayers received a refund that was much larger than they expected, which means they paid too much tax throughout the year and took home less money in their paychecks. To help taxpayers who want to change this amount, the Withholding Calculator will offer recommendations for adjusting withholding. A taxpayer who wants to increase the amount of their paychecks would pay less tax throughout the year by increasing the number of allowances on Form W-4. A taxpayer who would prefer a larger refund when they file would decrease their withholding allowances on Form W-4. Decreasing the number of allowances means paying more tax throughout the year and receiving a smaller paycheck. A taxpayer’s unexpected tax surprise or larger-than-usual refund may be due to life changes such as getting married, having or adopting a child, or it may be from changes included in the Tax Cuts and Jobs Act (TCJA). The TCJA made changes to the tax law, including increasing the standard deduction, eliminating personal exemptions, increasing the child tax credit, limiting or discontinuing certain deductions and changing the tax rates and brackets. These changes affected 2018 returns and are also in effect for 2019. It’s important to check withholding every year. Just because these changes didn’t affect a taxpayer last year doesn’t mean they won’t apply this year.
 
Sooner is better
Checking and adjusting tax withholding as early as possible is the best way to avoid having too little or too much tax withheld from paychecks. Too little withheld could result in an unexpected tax bill or penalty at tax time next year. Taxpayers can help manage and adjust their tax withholding by using the IRS Withholding Calculator. It’s helpful if taxpayers have their completed 2018 tax return available when using the Withholding Calculator to estimate the amount of income, deductions, adjustments and credits to enter. Taxpayers also need their most recent pay stubs to compute their withholding so far this year. Based on the Withholding Calculator’s recommendations, taxpayers can then fill out and submit a new Form W-4 to their employer. The Withholding Calculator does not request personally identifiable information, such as name, Social Security number, address or bank account number. The IRS does not save or record the information entered on the calculator.
 
Estimated taxes
Some workers are considered self-employed and are responsible for paying taxes directly to the IRS. Often, this includes people involved in the sharing economy. One way to pay taxes directly to the IRS is by making estimated tax payments during the year. TCJA changed the way tax is calculated for most taxpayers, including those with substantial income not subject to withholding. As a result, many taxpayers may need to raise or lower the amount of tax they pay each quarter through the estimated tax system. The revised estimated tax package, Form 1040-ES, on IRS.gov is designed to help taxpayers figure these payments correctly. The package includes a quick rundown of key tax changes, income tax rate schedules for 2019 and a useful worksheet for figuring the right amount to pay.
 
Estimated tax penalty
Taxpayers should keep in mind that if not enough tax is paid through withholding and estimated tax payments, a penalty may be charged. A penalty may also be charged if estimated tax payments are late, even if a refund is due at tax time.
 
Pay electronically anytime 
Taxpayers can pay their 2019 estimated tax payments electronically anytime before the final due date for the tax year. Most taxpayers make estimated tax payments in equal amounts by the four established due dates. The two remaining due dates for tax year 2019 estimated taxes are Sept. 16, and the final payment is due Jan. 15, 2020. Direct Pay and EFTPS are both free payment options, and taxpayers can schedule their payments in advance as well as receive email notifications about the payment. Visit IRS.gov/paymentsto schedule electronic payments online, by phone or via the IRS2go mobile app.
 
More information:

Issue number: IR-2019-111, IRS Newswire, June 13, 2019.
 
2. FEDERAL EFFORTS TO CONTROL ELDER ABUSE:
June 15 was Elder Abuse Awareness Day. It’s estimated that as many as 1 in 10 adults age 60 and older are abused each year in the United States. 

How older people are targeted
Elder abuse can include physical, sexual and emotional abuse; neglect; and financial scams. Such abuse can occur at the hands of trusted individuals, like family guardians or caregivers. But it can also be carried out by strangers or international criminal enterprises. Older adults are particularly attractive targets for financial scams--they tend to have more wealth than younger people, and the incidence of Alzheimer’s and other dementias that impede judgment gets higher with age. There are many types of financial scams, but most of them are generally designed to deceive victims and convince them to send money to strangers and international criminal networks. For example, scammers may convince victims that their grandchild is in trouble and needs money or trick victims into paying money for taxes they don’t actually owe.

Government’s role in combatting financial crimes against older adults
State and local governments are at the forefront of investigating and prosecuting all forms of elder abuse. However, the federal government may need to get involved in cases with complex financial crimes, including financial scams. DOJ plays a lead role in the federal criminal justice system as well as in federal efforts to address elder justice related to financial crimes such as Medicare fraud and international schemes that affect older victims. We found that DOJ has established several efforts related to elder justice and has dedicated staff to the issue. For example, DOJ investigates and prosecutes financial crimes against older adults and provides elder justice training and grants to state and local entities. However, we also found that DOJ’s planning and assessment of its elder justice efforts could be improved. We recommended that DOJ develop goals and outcome measures to improve how DOJ works on elder abuse issues. Want to know more? Check out our key issues page on elder abuse. U.S. Government Accountability Office, Watch Blog, June 13, 2019.
 
3. ALTERNATIVE REALITIES--THE IMPACT OF EXTREME CHANGES IN DEFINED CONTRIBUTION PLANS ON RETIREMENT INCOME ADEQUACY IN AMERICA: 
 
Summary

  • In recent years there have been a number of policy proposals that call into question the value of existing defined contribution plans. However, the suggested alternatives do not provide a detailed analysis of the impact of terminating defined contribution plans on retirement income adequacy for American households. Previous research by the Employee Benefit Research Institute (EBRI) has provided some tangential evidence with respect to the potential impact. In 2014 EBRI provided simulation analysis of the serious error introduced by models that ignored future contribution activity from defined contribution plans. In 2017 EBRI produced simulation results showing that, if there were no employer-sponsored retirement plans (defined benefit as well as defined contribution) and individuals were assumed to behave in the manner observed for those with no access to such plans, the aggregate retirement deficits would jump from $4.13 trillion to $7.05 trillion (an increase of 71 percent).
  • In contrast, this Issue Brief provides a comprehensive exploration of the impact on retirement income adequacy for various cohorts of American households if defined contribution retirement plans were completely eliminated. As expected, the results are significantly greater for younger cohorts, since they would lose potential access to defined contribution plans for a longer period.  The youngest age cohort (those currently ages 35–39) would suffer the most, with average retirement deficits increasing 23 percent from $49,182 to $60,253. Older cohorts would experience less of an impact: those ages 40–44 would have an increase of 18 percent, while those ages 45–49 would have a 13 percent increase. The average deficits for households above age 50 would increase but by less than 10 percent.
  • The results are also analyzed by preretirement income quartile and breakouts into the following categories: single male, single female, widow, and widower. We find that elimination of defined contribution plans would have the most negative impact on single females.
  • The Issue Brief then analyzes the opposite end of the defined contribution access spectrum by exploring the impact of a universal defined contribution scenario where every employer (with the exception of those that already sponsor a defined benefit plan) is assumed to sponsor a defined contribution plan. Again in this scenario, the youngest age cohort and single females would experience the largest change in retirement income adequacy.
  • The youngest age cohort would benefit the most from this scenario, with average retirement deficits decreasing 24 percent from $49,182 to $37,506. Older cohorts would experience less of an impact: those ages 40–44 would have a decrease of 19 percent, while those ages 45–49 would have a 16 percent decrease and those ages 50–54 would have a 12 percent decrease. The average deficit for households above age 55 would decrease but by less than 10 percent.

Jack VanDerhei, EBRI, June 13, 2019.
 
4. SC CAN NO LONGER HIDE FROM PENSION OBLIGATION:
The little-known number at the root of S.C.’s biggest problem: Seven and a quarter percent. That’s the official “assumed rate of return” for South Carolina’s retiree pension system. In other words, state officials tell us the system should expect to earn 7.25 percent on its assets for decades to come. It’s a safe bet that most folks have never given a thought to this number and what it means. But while obscure to most people, it’s at the heart of our state’s most serious financial problem. I’ll explain. Most state retirees’ pension benefits are paid from a plan operated by the South Carolina Retirement System. This plan is funded by three revenue sources: Employees contribute 9 percent of each paycheck to it, and the state, i.e. the taxpayers, kick in an amount equal to 14.5 percent of that same paycheck. That money is invested by an eight-member commission, and the investment earnings are the third revenue source. State lawmakers adopt an official assumption of investment earnings, ostensibly to calculate how much money will eventually be on hand to cover the benefits promised to retirees. Their assumption affects the rates that employees and taxpayers contribute to the plan. Unfortunately, few things in government escape the tinge of political calculation, and the assumed rate of return is no exception to the rule. Thus, this projection has historically been kept unrealistically high. Why? Because, in general, politicians like to pretend they’ve got more money than they do. It lets them spend more freely--in this case, to bestow retirees with benefit increases without setting aside money to cover them. The downside, of course, is that it causes us to shortchange the system. Our actual investment returns have been far short of projected returns--with the five-year average being less than six percent--yet we haven’t done anything to make up the difference. Today, the pension system faces a whopping $24 billion shortfall. It’s a big problem. If we’re to honor our commitments to past and current employees, somebody will have to pay up. There are no painless options. This problem isn’t unique to South Carolina. Other public pension plans across the country are caught in similar crises, largely for the same reasons. Yet the folks who oversee these plans often revise their projections downward only reluctantly and modestly, knowing a change of even a quarter of a percent can reveal billions in previously concealed “unfunded liabilities”--the gap between how much is owed in benefit payouts and how much real money is likely to be available to cover the payouts. In South Carolina, the assumed rate of return has been gradually reduced from 8 percent a decade ago to today’s 7.25 percent. Still, many experts believe it’s unreasonable to count on plan assets earning an average of 7.25 percent annually going forward, and that a 4-5 percent return is more realistic. In 2016, a noted public pension expert advised S.C. legislators they should reduce their inflated assumption significantly. That advice apparently fell on deaf ears. That’s a shame. Given the terrible consequences associated with using inflated revenue assumptions, adjusting to a more conservative rate would much better serve the state’s interests. Again, the price of failing to address the crisis directly could be a steep one. Consider some of the harsh measures taken by states and local governments who were forced to play catch-up after years of ignoring their pension woes: tax hikes costing property owners hundreds of dollars a year indefinitely; layoffs of employees, including those in public safety; and cuts in services, including even reducing the school week to four days. Legislators must accept reality and adopt a more reasonable forecast for the state’s investments. While they’re at it, they should put future projections entirely in the hands of actuarial professionals, removing themselves--i.e. removing politics--from the process. And they must start paying down our unfunded liability now, rather than allowing it to continue to swell. But first things first: It’s time to pull our heads out of the sand and acknowledge the problem and its magnitude. Politicians hate to discuss unfunded pension liabilities; it’s not a well-understood issue to them, nor are there any simple fixes. But it’s our most critical challenge, and the consequences of allowing it to grow like an untreated disease will be severe and long-lasting. Lawmakers who have the state’s best interests at heart will put the pension system’s deficit front and center.  Richard Eckstrom is a CPA and the state’s Comptroller.  The Berkeley Independent, June 12, 2019. 
 
5. PHILADELPHIA’S ROAD TO PENSION RECOVERY:
Philadelphia has taken steps to put its underfunded public employee pension system on what will be a long road to recovery. Will those efforts work, and can the city stick to the plan? The Pew Charitable Trusts brought together about 40 city policymakers, municipal union leaders and public finance experts to discuss these questions and others. The conversation followed the release of Pew’s pension “stress test” analysis of the Philadelphia municipal system. This analytical tool looks at a range of scenarios for economic projections and investment returns to provide insight into potential long-term liabilities and costs. The analysis showed that the city should move toward full funding over the next 15 to 20 years--even under the more pessimistic scenarios--if leaders continue to make large contributions and maintain other reforms. “The city is taking its medicine,” said Greg Mennis, director of Pew’s public sector retirement system project. “On the other hand, it can be hard to stick to the plan. Stress testing is … really a reminder of what could go wrong.” Officials from the city’s Board of Pensions and Retirement, AFSCME District Council 47, the administration of Mayor Jim Kenney, and city council staff, along with public finance experts, took part in the discussion in Pew’s Philadelphia office. Attendees welcomed the stress-test research and raised concerns about how to lock in the changes--which include increased contributions by the city and all employees, as well as restructured benefits for some new hires--to ensure retirees’ welfare. Philadelphia’s pension system has below-average funding compared to major cities. At the start of the current fiscal year, the city had about $5.4 billion on hand to cover an estimated $11.5 billion in liabilities to future retirees. That’s a funding ratio of 46.8 percent, far below that of many other cities. The funding ratio dropped below 50 percent following the 2008 market crash. And that followed a long decline attributable in part to years when the city deposited less than needed, as previous Pew research found. Philadelphia’s system provides retirement income for around 37,700 beneficiaries who worked for the city, airport system or water department. (Employees of Philadelphia Gas Works and the school district have separate funds.) The municipal system is funded by contributions from roughly 28,800 current workers through paycheck withholding; city taxes; and returns on stocks, bonds, and other investments managed by the city pension board. In recent years, Philadelphia has paid more into the fund than statutorily required, opting to use a special formula to calculate a higher contribution to attain a healthier funding ratio. As mandated by Pennsylvania law, the city also has been directing some sales tax revenue to the fund. In addition, the city pension board--consisting of the finance director, solicitor, controller, personnel director, managing director, and four labor representatives--has adjusted how it invests the money. And, starting in 2016, administration and union negotiators agreed on higher contributions from current workers and creation of a “stacked hybrid” plan for newly hired, nonuniformed workers. That plan combines elements of a traditional defined benefit and a lower cost 401(k).  By fiscal 2018, the last full year available, the city’s total contribution reached $782 million--an inflation-adjusted increase of 57 percent from a decade earlier, consuming a rising share of city revenues and crowding out other spending needs. From fiscal 2008 to 2018, the share of local revenues contributed to the fund rose from 11 percent to 15.5 percent. As part of the stress test analysis, Pew found that city contributions will remain high for many years under various economic scenarios, but eventually will decline as a share of local revenues. In February, the city controller’s office released a report finding that changes to the system had resulted in positive cash flow and a safer investment strategy, although the report also said additional changes were needed. Both analyses confirmed the pension board’s projections of an 80 percent funding ratio by the early 2030s under various scenarios. “Philadelphia’s current policies offer a sustainable path to full funding, even if [market] returns don’t meet expectations,” David Draine, a senior researcher at Pew and author of the report, said in presenting the stress test findings. Attendees discussed steps that the city might take to ensure it sticks to the recovery plan, such as codifying current contribution policies into law, formalizing the annual stress tests, and better integrating them into the annual budgeting process. Mennis noted that seven states now mandate the use of pension stress tests, which can provide legislators with detailed financial information and economic projections for their pension systems to use in budgeting decisions. “That’s the big piece that we’re seeing [in other places], which would allow us to view the pension system squarely in the context of the city budget,” Mennis said. Most Philadelphia employees have shouldered additional pension costs or risks in recent years, either by paying a higher percentage of salary into the fund or by shifting their contributions into the 401(k)-style account. Newly hired, nonuniformed employees in the hybrid plan get a traditional defined benefit pension on earnings up to $65,000, and the defined contribution plan for earnings above that level. Total annual employee contributions between fiscal 2015 and 2018--from the previous contract period to the current one--rose from $58.6 million to $83.3 million. One attendee noted that shifting some of the investment risk to workers, as the hybrid plan does, exposes them more directly to the ups and downs of the stock market. The pension board, which uses staff and external financial experts to manage its assets, has made several changes to its investment practices in recent years. These include a small annual reduction in its assumed annual rate of return, a shift of assets into lower-fee “passive” investments, and a transition from hedge funds into real estate funds. The assumed rate of return affects investment decisions as well as the amount the city needs to contribute. The rate, set by the pension board in consultation with the administration, is now 7.6 percent—still above most other systems’ rates, according to the pension board. The city’s actual returns have swung from a 20 percent loss (down $864 million) after the 2008 market crash to a 19 percent gain (up $699 million) after the 2010 rally.  Of all the steps Philadelphia has taken to shore up the pension fund, the most important, Mennis told the group, is the city’s commitment to make higher contributions, including sales tax revenues. Maintaining the course will be a difficult but essential part of the challenge ahead. Larry Eichel is the project director and Thomas Ginsberg is a senior officer with The Pew Charitable Trusts’ Philadelphia research initiative. The PEW Charitable Trusts, June 11, 2019.
 
6. AMAZON BEATS APPLE AND GOOGLE TO BECOME THE WORLD’S MOST VALUABLE BRAND:

KEY POINTS

  • Amazon has overtaken Google and Apple to become the world’s most valuable brand at $315.5 billion.
  • Apple comes second, valued at $309.5 billion
  • Google is in third place, at $309 billion.

Amazon has overtaken Google and Apple to become the world’s most valuable brand at $315.5 billion, according to a ranking of global companies, up 52% on last year. Apple comes second, valued at $309.5 billion, with Google in third place, at $309 billion, according to the BrandZ Top 100 Most Valuable Global Brand ranking 2019, compiled by WPP research agency Kantar and released Tuesday. Google and Apple had spent a combined 12 years at the top of the list, with Google taking the top spot in 2018. Doreen Wang, Kantar’s global head of BrandZ, said Amazon’s jump was due to it selling a variety of services. “Amazon’s phenomenal brand value growth of almost $108 billion in the last year demonstrates how brands are now less anchored to individual categories and regions. The boundaries are blurring as technology fluency allow brands, such as Amazon, Google and Alibaba, to offer a range of services across multiple consumer touchpoints,” she said in a statement emailed to CNBC. Amazon has been increasing investments in a range of companies as its core business slows, including self-driving car start-up Aurora and electric truck company Rivian, as well as expanding Amazon Air, its airplane business. It bought online pharmacy PillPack for $753 million in 2018 and last month led a $575 million funding round into food delivery company Deliveroo. Four of the BrandZ top ten were made up of more traditional brands including VisaMcDonald’s and AT&T. Microsoft comes in at fourth place, as it did in 2018. Technology companies have always dominated the ranking, with Microsoft taking the top spot when BrandZ began in 2006. This year, Alibaba (valued at $131.2 billion) overtook Tencent ($130.9 billion) to become the most valuable Chinese brand. There is a total of 15 Chinese brands in the list of 100 companies, including mobile handset company Xiaomi (valued at $19.8 billion) and Meituan ($18.8 billion), a tech platform people can use to order food deliveries, book hotel rooms and arrange bike rentals. David Roth, chair of BrandZ, said the companies that did well were those that mastered this new model of different services. “Brands need to understand the value this type of model can create and should embrace its approach to be successful in the future,” he said in an emailed statement. Tech, finance and retail brands dominate the overall ranking, making up more than two-thirds of its value, while luxury is the fastest-growing category. To qualify for the ranking, brands must be publicly traded, or publish their financial results. BrandZ’s list combines measures of brand equity based on interviews with more than 3 million consumers about thousands of brands, with analysis of each company’s business and financial performance, using data from Kantar Worldpanel.
 
The world’s most valuable brands 2019

  1. Amazon $315.5 billion
  2. Apple $309.5 billion
  3. Google $309 billion
  4. Microsoft $251.2 billion
  5. Visa $177.9 billion
  6. Facebook $159 billion
  7. Alibaba $131.2 billion
  8. Tencent $130.9 billion
  9. McDonald’s $130.4 billion
  10. AT&T $108.4 billion

Lucy Handley, CNBC, June 11, 2019.
 
7. POTENTIAL UNTAPPED VALUE IN CALIFORNIA’S PUBLIC RETIREMENT SYSTEM:
State, county and municipal plan sponsors parlay their own creditworthiness when they issue Pension Obligation Bonds (“POBs”). If they can issue bonds with an interest (“coupon”) rate that is lower than their respective retirement system’s assumed rate of investment return, they can immediately lower their expected retirement costs by transferring POB proceeds into the retirement system and paying down their unfunded liabilities. And, if the retirement system’s investments return more than the coupon rate, the plan sponsor will have lowered its actual retirement costs with arbitrage profits. The risk of issuing POBs is that the retirement system’s investment returns may underperform the coupon rate, which will lead to an increase in the plan sponsor’s retirement costs. For the bond issuer, a lower coupon rate both decreases risk and increases the potential reward.  Jeffrey R. Rieger, Reed Smith LLP, June 11, 2019.
 
8. LEGAL ALERT: SUPREME COURT WILL AGAIN REVIEW THE PLEADING STANDARD FOR RETIREMENT PLAN “STOCK DROP” CLAIMS:
On June 4, 2019, the US Supreme Court granted the petition for writ of certiorari of the defendant fiduciaries in Retirement Plans Committee of IBM, et al. v. Larry W. Jander, No. 18-1165. The justices will review the Second Circuit’s unexpected holding that a complaint, which alleged that plan fiduciaries violated ERISA by failing to disclose information about overvalued employer stock held in a 401(k) plan, satisfied the high “more harm than good” pleading standard enunciated in Fifth Third Bancorp v. Dudenhoeffer, 134 S.Ct. 2459 (2014). If upheld, this ruling--which runs contrary to the recent trend in employer stock drop cases--likely would lead to an increase in filings of such cases and in the number of such cases that survive early motions to dismiss. The petition arose from the Second Circuit’s opinion in December 2018 in which it reversed a district court order granting petitioners’ motion to dismiss the plaintiffs’ complaint. Jander v. Retirement Plans Committee of IBM, et al. 910 F.3d 620 (2d Cir. 2018). The Second Circuit held that the plaintiffs had satisfied the “more harm than good” pleading standard of Fifth Third Bancorp v. Dudenhoeffer by alleging that a prudent fiduciary of IBM’s retirement plan could not have concluded that disclosing information about financial problems with IBM’s microelectronics business through IBM’s regular securities filings would do more harm than good. The court reasoned that disclosure of the harmful information was inevitable, and this harm would only increase with delayed disclosure due to additional reputational harm that allegedly would result from market perception that the harmful information had been intentionally concealed. Id. at 630-31. By way of background, the Supreme Court in Fifth Third dramatically altered the generally established rules of pleading in the circuits for claims that retirement plan fiduciaries breached their fiduciary duties by permitting a plan to continue to hold employer securities when the fiduciaries possessed inside information that the employer’s securities were overvalued. Rejecting the “presumption of prudence” that applied in many circuits at that time, the Court held that no such presumption was supported by the text of ERISA. Fifth Third Bancorp, 134 S.Ct. at 2467. The Court held that the adequacy of a plaintiff’s allegations should instead be evaluated under the Court’s established guidance for evaluating the sufficiency of a plaintiff’s complaint. Id. at 2471. Critically, however, the Court held that for a plaintiff to state a claim for breach of fiduciary duty based on the failure to disclose non-public information, a plaintiff must plausibly allege an alternative action the defendant could have taken that a prudent fiduciary “would not have viewed as more likely to harm the fund than to help it.” Id. at 2472. The Court’s commitment to apply this rule exactly as written was tested by Harris v. Amgen, in which the Ninth Circuit, in an employer stock drop case remanded for reconsideration in light of the Court’s holding in Fifth Third, held that a plaintiff had adequately pleaded a claim for relief because it was “quite plausible” that the defendants could have taken the alternative action proposed by the plaintiffs “without causing undue harm to plan participants.” 788 F.3d 916, 938 (9th Cir. 2015). On review, the Supreme Court squarely rejected this rewriting of its articulation of the pleading requirements stated in Fifth Third, holding that the circuit court had failed to assess whether the complaint had “plausibly alleged” that a prudent fiduciary “could not have concluded” that the alternative action “would do more harm than good.” See Amgen v. Harris, 136 S.Ct. 758, 759-760 (2016). Since that time, no circuit court has held that a plaintiff successfully satisfied this pleading requirement. In Jander, the Second Circuit refrained from acknowledging any exception to the “more harm than good” standard of Fifth Third, but nevertheless permitted the plaintiffs’ complaint to survive dismissal based only on general allegations that eventual disclosure of the alleged financial misstatements was inevitable and that delayed disclosure resulted in “reputational damage” that no reasonable fiduciary could conclude would not be more harmful than the disclosure through IBM’s quarterly financial statements--the alternative action the plaintiffs alleged the fiduciaries should have taken. 910 F.3d at 630-631. In their cert petition, petitioners argued that the Second Circuit’s holding resulted in a clear circuit split and, if allowed to stand, would completely undermine Fifth Third, allowing virtually any plaintiff to plead around Fifth Third merely by making generalized assertions that delayed disclosure would be more harmful than early disclosure. The resolution of this case is important for plan fiduciaries of retirement plans, such as 401(k) plans, that hold employer securities. Although petitioners’ cert petition possibly overstates the number of cases in which the Second Circuit’s reasoning would permit a plaintiff to artfully plead around the high bar set by Fifth Third, it is undoubtedly true that allowing the ruling to stand will give new life to plaintiffs in employer stock drop cases and likely lead to new filings. Prior to Jander, plaintiffs’ attempts to survive motions to dismiss in employer stock drop cases in the aftermath of Fifth Third have been largely unsuccessful and the Court’s “more harm than good” standard is at the center of numerous rulings dismissing plaintiff complaints. We will continue to watch this case as it progresses in the Supreme Court. Eversheds Sutherland (US) LLP, June 11, 2019.
 
9. DID YOU KNOW BENJAMIN FRANKLIN SAID THIS?:
All mankind is divided into three classes: those that are immovable, those that are movable, and those that move.
 
10. PONDERISMS:
Why is it that when you transport something by car, it's called a shipment, but when you transport something by ship, it's called cargo?
 
11. INSPIRATIONAL QUOTES:
If you don't like something, change it. If you can't change it, change your attitude. - Maya Angelou
 
12. TODAY IN HISTORY:
On this day in 1776, US Congress proclaims the Declaration of Independence and independence from Britain.
 
13. REMEMBER, YOU CAN NEVER OUTLIVE YOUR DEFINED RETIREMENT BENEFIT

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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.


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