ERISA Newsletter for Retirement Plan Service Providers August 2013

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1 ERISA Newsletter for Retirement Plan Service Providers August 2013 Dear Reader: Service providers continue to be the focus of DOL guidance either because the guidance is directed at them or because they bear the burden of complying with the guidance. For example, the DOL continues to work on its fiduciary advice regulation, which will directly impact service providers to retirement plans and particularly to 401(k) plans. In terms of a burden, the DOL has issued an advanced notice concerning projections of retirement income on participant statements. While the legal responsibility for those projections will be placed on plan sponsors, the practical responsibility for compliance will be placed squarely on the shoulders of recordkeepers. In addition, the Department is investigating service providers including recordkeepers, investment advisers and broker-dealers on a variety of issues. For example, the DOL is currently investigating a number of recordkeepers concerning their handling of abandoned plans. There have also been recent complaints and court decisions concerning providers. For example, a complaint was filed against Fidelity for its practices in handling float on contributions and distributions and a recent court decision involved Transamerica s recordkeeping division on a number of issues, such as the removal and replacement of investments in its offering. Because of this increasing focus on service providers and because of the increasing role of service providers in the delivery of 401(k) and 403(b) plans, we believe that the practices of service providers will continue to be closely scrutinized. This newsletter is intended to help service providers understand the ERISA compliance burdens and their potential consequences. In This Issue Page Fred Reish Chair, Financial Services ERISA Team (310) SEC Staff Examination Priorities Are There Changes Ahead for Unregistered Retirement Plan Recordkeepers 3 408(b)(2) Change Disclosures 4 Closing Thoughts: Practical Tips for Service Providers in Winding Up a DOL Investigation 5 Why the IPS Should Address AAMs 6 Simple Steps to Effective Risk Management 7 Retirement Income Projections: The DOL s Notice 8 Fiduciary Obligation to Select Appropriate Share Classes 9 Around the Firm Financial Services ERISA Team 1

2 Drinker Biddle Welcomes Fran LaFleuer. The firm is pleased to announce that Frances LaFleuer joined our Employee Benefits & Executive Compensation Practice Group in Chicago. Fran advises clients on retirement, executive compensation and health and welfare plan issues, as well as ERISA fiduciary government matters. SEC Staff Examination Priorities Are There Changes Ahead for Unregistered Retirement Plan Recordkeepers The Issue By Mark F. Costley (202) The Securities and Exchange Commission ( SEC ) staff recently has been focusing increasing attention on the various arrangements that mutual funds, and/ or their direct service provider (collectively, Fund Complexes ) enter into in with third-parties to provide certain services to the Fund Complex related to shareholder servicing. While the SEC staff s interest is not focused solely on retirement plan recordkeepers ( Recordkeepers ), the SEC staff has indicated that they are concerned with, among other things, the nature of the services provided in these arrangements, and the nature and amount of the compensation paid for these services. In each of these points of emphasis, the SEC staff has, either explicitly or implicitly, called into question whether Recordkeepers that are not registered with the SEC in some capacity should be registered as either broker-dealers or transfer agents. The Solution The SEC staff s focus on shareholder servicing arrangements may have business-model implications for unregistered Recordkeepers, and we believe that unregistered Recordkeepers should monitor the SEC staff s future statements related to this issue, and they may want to review their arrangements with Fund Complexes to assess them in light of the SEC staff s increased focus and stated concerns. Analysis These services provided by Recordkeepers that are of interest to the SEC staff are primarily the processing of plan participant instructions as to purchases or sales of investments held in plan participants accounts, the transmission of aggregate plan orders to the mutual fund distributor or other agent of the mutual fund, and the maintenance of plan participant account records. The SEC staff has raised the question of whether the provision of these services may be sufficient to cause the Recordkeeper to be required to register with the SEC in some capacity. In its 2013 Examination Priorities Letter, the SEC staff stated that, in connection with its investment company and investment adviser examinations, it would ask for information on thirdparty administrators, and may use this information to consider whether entities that provide these services are appropriately registered or exempt from registration. The compensation received by Recordkeepers also is receiving increased focus from the SEC staff. Recordkeepers are compensated for the services that they provide to retirement plans in a variety of ways. Of particular interest to the SEC staff are the payments that Recordkeepers receive payments from the Fund Complexes whose mutual funds are held in their clients accounts for providing services to those plan clients that the Fund Complex would otherwise need to provide. These payments for services from Fund Complexes are subject to a variety of SEC rules, and the SEC staff will be focusing on whether the Fund Complexes are making these payments in a compliant manner. The SEC staff has indicated that they will assess whether such payments are made in compliance with regulations, Financial Services ERISA Team 2

3 including Investment Company Act Rule 12b-1, or whether they are instead payments for distribution and preferential treatment. Should the SEC staff become of the opinion that payments received by an unregistered Recordkeeper constitute payments for the distribution of mutual fund shares, this would call into question whether the Recordkeeper should have been registered as a broker-dealer to receive such compensation. Mark, working out of the Washington, DC Investment Management Practice Group, focuses his practice on the representation of financial services companies on matters relating to the development and offering of investment products and services. Mark has over 25 years of experience in the financial services industry. He represents a wide variety of broker-dealers and investment advisers in all aspects of their businesses. He also regularly advises mutual funds and exchange-traded funds. Mark advises clients on the distribution of securities, regulatory investigations and enforcement proceedings. 408(b)(2) Change Disclosures Everyone who reads this article probably heaved a sigh of relief on July 1 of last year -- when they completed their initial wave of 408(b)(2) disclosures. I know that we did and our clients did. The Issue By Fred Reish (310) However, we are now starting to receive questions about the little-publicized 408(b)(2) requirement for subsequent disclosures of changes. For example, we are getting questions about situations where broker-dealers have negotiated revenue sharing or other financial arrangements with mutual funds that were not included on the original disclosure list. Similar circumstances could affect recordkeeper for example, a change in the payments from mutual funds or their affiliates, or compensation from new or replacement investments in a plan s lineup. The Solution Under the 408(b)(2) regulation, a covered service provider such as a broker-dealer or a recordkeeper must provide additional written disclosures to plan sponsors (or responsible plan fiduciaries, as the regulation refers to them) whenever there is a change to the required information. Analysis These changes would include any increases or decreases in the compensation to the broker-dealer or recordkeeper. That would also include changes to any indirect payments being received by the brokerdealer or recordkeeper. As a result, it could include an increase or decrease in a percentage or dollar amount -- or a new type or source of payment that was not previously made. Obviously, newly negotiated payments from mutual fund families would be such a change. There are similar issues for RIAs, broker-dealer and TPAs where they qualify for bonus payments, or subsidies, from recordkeepers or insurance companies because of the level of production or relationships with the provider if the disclosures were not previously made. However, it is only a change for the plan it affects. So, if a covered service provider provides services to 1,000 ERISA retirement plans, but only 50 of those plans are affected by a new arrangement with a mutual fund (that is, if only 50 of the plans hold that particular mutual fund), the written disclosure only needs to be made to those affected plans. As a result, providers will need to keep records of which plans hold which investments. As with any 408(b)(2) disclosure of indirect compensation, the change disclosures must include: Payer Payee Amount (which can be expressed as a percentage or formula) Services to the plan Arrangement with the payer (that is, why is the payer making the payment?) Also, and somewhat problematic, the disclosures have to be made within 60 days of the provider becoming aware of the change. Unfortunately, that provision is difficult to confidently apply to this type of situation. Arguably, the provider became aware of the change when the new agreement with Financial Services ERISA Team 3

4 the mutual fund or its affiliates was executed and that is the start of the 60-day disclosure period. We are often asked if those disclosures can be made once a year. As the 60-day rule suggests, the answer is no. The written disclosures must be made in accordance with the 60-day requirement. Also, the disclosures cannot just be posted on a website. Our reading of the 408(b)(2) regulation (which, admittedly, is not entirely clear) is that they should be delivered to the responsible plan fiduciaries. Fortunately, though, they can be delivered via . As a result, service providers should collect and maintain addresses for the responsible plan fiduciaries for their ERISA plans. Post Script: The change requirement applies to all covered service providers. For example, if an RIA agrees to provide new services (e.g., an RFP for a provider or a fee and expense analysis), that is a change for which a 408(b)(2) disclosure is required. Fred is chair of our Financial Services ERISA practice. Fred has been recognized as one of the Legends of the retirement industry by both PLANADVISER magazine and PLANSPONSOR magazine. He was selected as one of the top ten most influential individuals in the 401(k) industry for 2012 by RIABiz. Fred has also received the IRS Commissioner s Award and the District Director s Award; the Eidson Founder s Award by the American Society of Professionals & Actuaries (ASPPA); the Institutional Investor and the PLANSPONSOR magazine Lifetime Achievement Award; and the ASPPA/Morningstar 401(k) Leadership Award. Closing Thoughts: Practical Tips for Service Providers in Winding Up a DOL Investigation By Joshua J. Waldbeser (312) The Issue The Department of Labor ( DOL ) continues to investigate service providers to ERISA plans, including investment advisors, broker-dealers, recordkeepers and TPAs. Any money recovered for a plan (due to a fiduciary breach or prohibited transaction) may be subject to an additional 20% penalty if the recovery results from a settlement or a court order. Entering into a settlement agreement or becoming a defendant to litigation may also damage a provider s reputation. The Solution Providers who are being investigated by the DOL should work with knowledgeable attorneys to voluntarily comply with reasonable DOL requests. It is especially important to consult with experience ERISA lawyers before entering into a settlement agreement or litigation. The DOL s findings during an investigation may include purported violations but a closer analysis would reveal that they are not in fact violations of ERISA. Even if there is a violation, it may be possible to negotiate the terms of the correction without incurring the 20% penalty. Analysis DOL investigations of investment advisers and brokerdealers (collectively, advisors ) are currently focused on identifying prohibited transactions under ERISA Section 406(b). These violations arise when a fiduciary advisor increases its compensation (or that of its affiliates) through its activities. Most typically, this occurs when an advisor recommends investment products to a plan that pay referral fees, revenue sharing or other indirect compensation to the advisor that are not offset against the fees the advisor would otherwise receive from the plan. The DOL also continues to investigate nonfiduciary providers such as recordkeepers and TPAs. ERISA Section 502(l) provides that, when money is recovered on behalf of a plan due to a breach of ERISA s fiduciary standards or certain other violations (including prohibited transactions), a penalty of 20% of the applicable recovery amount (a 502(l) penalty ) is assessed against a breaching fiduciary or other parties who knowingly participated in the violation. However, the applicable recovery amount is limited to funds that are recovered through a settlement or a court order. Financial Services ERISA Team 4

5 To avoid 502(l) penalties, it is best to resolve issues informally with the DOL and not with a settlement agreement. However, providers should also work with legal counsel to ensure that all the DOL s findings of ERISA violations are accurate before agreeing to voluntarily comply. These issues are very factspecific and can be legally complicated as well, so it is crucial to maintain an environment of cooperation while still defending the provider s rights. Even if a 502(l) penalty is assessed, the DOL may reduce the penalty under certain circumstances. In any case, avoiding litigation or a formal settlement should help mitigate public damage to the provider s reputation. Joshua has been in the Employee Benefits and Executive Compensation Practice Group in our Chicago office since Prior to this he worked for the U.S. Department of Labor, Employee Benefits Security Administration. Joshua s practice focuses on working with plan sponsors and service providers with respect to Title I of ERISA and the IRS qualification requirements for retirement plans. Why the IPS Should Address AAMs The Issue Asset allocation models (AAMs) take many different forms. Some AAMs are considered designated investment alternatives (DIAs) of the plan while others function as a service that enables participants to allocate among the plan s DIAs. In either case, the responsible plan fiduciary (i.e., the plan sponsor or plan committee) has a fiduciary duty to prudently select and monitor the AAM and therefore, needs to understand how the AAM functions. The Solution By Joan M. Neri (973) This article discusses how RIAs can assist plan sponsor clients in carrying out this fiduciary duty by developing selection and monitoring criteria for AAMs in the investment policy statement (IPS). Analysis Under ERISA, the plan sponsor must engage in a prudent process in the selection and monitoring of plan investment options. If an AAM is a DIA, then this same prudent process applies to the selection and monitoring of the AAM. This means that the plan sponsor needs to evaluate the AAM s asset classes (e.g., stocks, bonds, cash), the underlying investments held by the AAM and the principal strategies and risks of those investments. Also, the plan sponsor needs to understand the fees and expenses of the AAM, including the expense ratios of the individual component funds. RIAs can assist the plan sponsor in performing this evaluation by developing criteria and guidelines that take into account these factors. These guidelines should be reflected in an IPS to support the plan sponsor s prudent process. Although there is no specific requirement in ERISA that a plan have an IPS, it is a best practice to have one -- as long as it is followed. AAMs that are DIAs are subject to detailed participant disclosures about expense ratios, performance history, portfolio turnover rates and more. In our experience, most RIAs do not object to presenting this detailed investment information, but many recordkeepers do not have the systems in place to capture and report it. For this reason, many RIAs are structuring AAMs in a way that is intended to avoid DIA status. DOL guidance indicates that, to avoid DIA status, an AAM must be clearly presented to participants as an investment service that helps participants allocate their accounts among the plan s DIAs. Also, it must have the following characteristics: It cannot use investments that are not in the Plan s line-up of DIAs; It cannot be unitized meaning that it does not have its own trading value and operate like an investment The DOL guidance further indicates that to avoid DIA status, the plan must provide participants with an explanation of how the AAM functions and how differs from the plan s DIAs. The plan sponsor has a fiduciary responsibility to prudently select an AAM service that is appropriate for plan participants. Also, the plan sponsor must understand how the AAM service will be presented to participants - i.e. through a website, on an election form, etc. - and the characteristics that impact the way the AAM service will function so that it can be adequately described to participants consistent Financial Services ERISA Team 5

6 with the DOL guidance. For instance, many AAMs have a re-balancing feature that restores the participant s account to its original allocation. Also, if one or more of the underlying DIAs are replaced, this could impact the status of the AAM. These features must be described to participants, so that the participants can determine whether to use the asset allocation service. RIAs can assist plan sponsors in carrying out these fiduciary responsibilities by developing guidelines that can be reflected in the IPS to support a prudent process in selecting the AAM service. These guidelines should also include an evaluation of factors that impact the functioning of the AAM service (e.g., rebalancing, DIA replacement) and the fees charged in providing the service to participants. Also, the IPS description of the AAM service should be consistent with the description provided to participants. In conclusion, RIAs can add real value by developing IPS guidelines that plan sponsors can follow in selecting and monitoring AAMs to support the plan sponsor s prudent process. Joan is in the firm s Financial Services ERISA Team. With more than 24 years of experience, Joan counsels clients on all aspects of ERISA compliance including fiduciary responsibility and plan operational issues. A part of Joan s practice includes representing registered investment advisors in fulfilling their obligations under ERISA. Joan is a frequent speaker throughout the country on legislative and regulatory developments impacting ERISA fiduciaries. Financial Services ERISA August 2013 Simple Steps to Effective Risk Management The Issue: Are there simple steps that service providers can implement into their day-to-day processes that can help them effectively manage risk? The Solution By Joseph C. Faucher (310) Three simple steps can help service providers manage risk. Those steps are (1) assume there is a reason for every contact from the client, and look to provide solutions even when not asked to do so; (2) document your conversations and the course of action you decide upon, even if the decision is to take no action, and; (3) don t overstate your role. Analysis In a cross-country presentation, Fred Reish, Brad Campbell and Bruce Ashton presented a webinar on Surviving DOL Service Provider Investigations on June 26, 2013, co-hosted by Federated and Drinker Biddle and Reath. Almost 1,000 people registered for this webinar. If you are interested in the recording, visit www. drinkerbiddle.com/surviving-dol-investigations. Summer Conley and Joshua Waldbeser joined Fred, Brad and Bruce in a follow-up presentation on July 31, That recording is available at 1. Assume there is a reason for every contact from the client but do not assume it is the reason the client mentioned Assume that a financial adviser recommends that his client invest her assets in a portfolio made up largely of aggressive growth stocks. The client loses her high paying job, and calls the adviser to let him know about this change in her status. She later tells the adviser that she may have to take a loan from her 401(k) account in order to meet current expenses. Meanwhile, the stock portfolio suffers losses due to a downturn in the market. In the client s mind, the adviser should have suggested reducing the portfolio s exposure to aggressive growth stocks when he learned that the client had lost her job. In the adviser s mind, the aggressive growth portfolio was not intended to be tapped into to meet short term obligations, but instead, was intended as a long-term vehicle to supplement her retirement. Financial Services ERISA Team 6

7 Even if the client didn t expressly ask for advice or say that she wanted action to be taken regarding her stock portfolio, the adviser would have been less vulnerable to a claim if he had assumed that everything including the stock portfolio was in play in light of this change in the client s circumstances. 2. Document conversations and decisions you make with your clients even if the decision is to take no action In the example above, the client and adviser could decide on any one of several approaches do nothing, watch and wait and reevaluate the client s position after a few weeks or months, make a change to the portfolio, or do nothing at all. Even doing nothing is, however, doing something. From a risk management standpoint, what really matters is that the adviser and the client discussed it and agreed upon a course of action, even if that course of action was to take no action. Ideally, the adviser would document his file and describe what they decided to do and why. Better yet, the adviser would send a short letter or to the client confirming what they discussed, and stating that because the client s stock portfolio was intended to supplement the client s retirement, they mutually decided to make no changes to the portfolio at that time. Doing so would reduce the likelihood that the client would bring a claim against the adviser. 3. Only be the captain of your own ship Service providers sometimes take a somewhat paternalistic approach to their clients, and to try to do all of the thinking for them, to relieve them of inconvenience. That can lead to trouble. In one case we handled, a third party administrator that acted as an employee stock ownership plan ( ESOP ) promoter or facilitator sent an stating that he was the captain of the ship in connection with an ESOP transaction. In another, a third party administrator stated that his client would sign anything I tell him to sign, which implied that the TPA, and not the client, was in charge of the plan s investments. Each of these service providers unwittingly took on responsibility for something beyond the services they were actually hired to provide. Those who know their role, stick to that role, and insist that the client make all the final decisions (even when the client likes the convenience of someone else making decisions for them) are less likely to be sued, than those who see themselves as the captain of the ship. In addition to handling an active litigation practice, Joe regularly consults with third party administrators, registered investment advisers and insurance carriers on ERISA and employee benefit matters and fiduciary liability insurance and ERISA bond issues. Retirement Income Projections: The DOL s Notice By Fred Reish (310) The U.S. Department of Labor recently issued an Advance Notice of Proposed Rule Making concerning the projection of retirement income for participants. In effect, an ANPRM is a discussion draft. In other words, the DOL is providing proposed regulatory language, together with questions for private sector input. This ANPRM is the second of a four-step process. The first step was a request for information -- RFI, where the DOL solicited responses to a list of specific questions about retirement income projections. The second step reflects the responses to those questions and the DOL s thinking about the requirements and safe harbors for the projection of income. The next step will be the issuance of a proposed regulation, and the final step will be the issuance of a final regulation. At each step of the way, there will be additional opportunities for private sector input. Based on the ANPRM, my best bet is that the DOL will ultimately require that participants be given retirement income projections on their quarterly statements. I also believe that the Department will provide safe harbors for plan sponsors, so that they can have assurance that they will not be liable for any projections that are inaccurate. (As a practical matter, projections are necessarily based on assumptions and the odds of the assumptions producing accurate results when compounded over many years, are remote. Nonetheless, since participants will be given projections each quarter, the projections will, over time, be based more on actual results and less on assumptions. In that sense, the projections will be self-correcting.) Financial Services ERISA Team 7

8 At this point, industry trade associations and individual service providers are preparing comments. As a result and based on my understanding of the nature of some of the comments, it appears that the proposed regulation (that is, the next step) will be modified, at least slightly. That will be followed by another comment period and then the final regulation will be issued. At this point, the effective date of the final regulation could be a year and a half away. As a result, this is not an immediate issue for plan sponsors, but it is for service providers since they will bear the burden of preparing and distributing the calculations. Fiduciary Obligation to Select Appropriate Share Classes By Fred Reish (310) Every four to six weeks, I send out an on LinkedIn with a short article concerning a topical issue. If you would like to see all of my LinkedIn posts for the last couple of years, please visit my blog at: fredreish.com/publications/. My April 29, 2013 article which generated a significant response -- discussed the fiduciary obligation to select the appropriate share class for a plan. That obligation flows from a series of recent decisions including the Wal-Mart, Edison International and ABB cases. While the courts found that these obligations were a part of the long-standing fiduciary responsibilities of plan committees and companies, this duty may come as a surprise to some advisers and fiduciaries. The body of the April 29 mail follows: ERISA imposes both a fiduciary rule and a prohibition on spending more than reasonable amounts for operating a plan, including the investment costs. The Tibble decision was about the reasonable expense ratios for plan investments. However, rather than looking at the evaluation of mutual fund expenses in the traditional way (that is, comparing expense ratios to those of other funds), the trial court found, and the appellate court agreed, that plans must use their purchasing power to select the appropriate share class. The practical consequence is that advisers should make recommendations based on the share classes available and must educate plan sponsors about the available share classes, including their costs, and plan sponsors (typically acting through their plan committees) must understand that multiple share classes may be available and must investigate which are best for their plan and participants. That could be a daunting task. Just consider that some mutual funds may have 10 or more share classes. That could include, for example, A, B, C, I, R-1, R-2 shares, and so on. This will place an additional burden on advisers... and, in that sense, may favor advisers who focus on retirement plans. But, it is more complicated than that. Share classes for mutual funds and separate account classes for group annuity contracts may, for these purposes, be virtually identical. If that is true, advisers will need to educate plan sponsors on the classes available in group annuity contracts. Then, advisers will need to help plan sponsors select the appropriate separate account class for that particular plan. Since some insurance companies offer group annuity contracts with 10 or even 15 separate account classes, advisers will need to be more attentive to the alternatives that are available and will need to work with plan sponsors to understand the share and separate account classes (including the revenue sharing and compensation aspects) and to select the appropriate classes based on the size and needs of the particular plan. In the future, we could see litigation where advisers did not educate plan sponsors on the availability of alternative classes and do not make appropriate recommendations. I imagine that, by now, you have heard about the Court of Appeals decision in Tibble v. Edison. While the court decided a number of issues, the most important one is that fiduciaries have an obligation to select appropriate share classes for their plans. Closely related to that is the trial court s admonition that fiduciaries must ask about the available share classes. Financial Services ERISA Team 8

9 Employee Benefits & Executive Compensation Around the Firm Chambers USA recognized our Employee Benefits & Executive Compensation practice as a leader in the Illinois market, ranking us Band 1. Described as a solid benefits and compensation team, Chambers noted our strength in transactional matters as well as stock plans and compliance. Partners Michael Rosenbaum and David Wolfe were ranked individually as Band 1, with clients telling Chambers that Michael has great thought leadership, communication and listening skills and that David is just impeccable. The group s chair, Howard Levine, was ranked individually as Band 2. Fred Reish and Joan Neri co-authored an article on Four Services Provided by RIAs Involve Required Participant Disclosures published in the summer 2013 issue of Plan Consultant. Heather Abrigo acted as co-chairperson at the 2013 Western Benefits Conference held in San Diego, CA on July 23 and July 24, We are proud to note that Heather was named recently as a Rising Star in the latest Super Lawyers listing. Joe Faucher also presented the ERISA Litigation Update at the Western Benefits Conference. Ted Becker was quoted extensively in the headline article on ESOPs and the Department of Labor, in the July-August 2013 issue of the Employee Ownership Report, a publication of the National Center for Employee Ownership. We are pleased to announce that Joan Neri has been appointed to the Agenda Team for the 2014 NAPA 401(k) Summit, to be held in New Orleans on March 23-25, Another rising star in the Employee Benefits/Executive Compensation group, Sarah Millar, was selected as one of the Chicago 40 Under 40 by The National Law Journal. A New York Times Article published June 21, 2013 on Limiting the 401(k) Finder s Fee featured quotes from Fred Reish. In mid-june 2013, Joe Faucher spoke to a group of third party administrators in Santa Barbara regarding TPAs who provide ERISA 3(16) Fiduciary Services. Fred Reish was a co-moderator and speaker at the Retirement Plan Summit on June 19, 2013, in Washington, DC. The Summit is part of the Insured Retirement Institute Government, Legal & Regulatory Conference. Fred s topics included The View from Washington, Insurance Contracts and Fiduciary Risks, Fiduciaries in the Distribution Channel, Litigation and Enforcement, and current hot topics. Bruce Ashton was also on the panel for the Litigation and Enforcement segment. Brad Campbell moderated the SEC and DOL Fiduciary Initiatives Panel at the event. Joan Neri spoke at a Plan Sponsor Fiduciary Update in New York on June 18, 2013, co-sponsored by EisnerAmper, Drinker Biddle & Reath and Westminster Consulting LLC. Fred Reish and Bruce Ashton co-authored a white paper for JP Morgan, posted to the Drinker Biddle & Reath website on June 12, 2013, titled Fiduciary implications: Using re-enrollment to improve target date fund adoption. The full version of the white paper may be seen at Three of our Employee Benefits & Executive Compensation Practice Group lawyers, Fred Reish, Brad Campbell and Bruce Ashton, joined the Insurance practice lawyers and spoke at the Drinker Biddle & Reath National Symposium on Life Insurance & Annuities in Chicago, IL on June 11 and June 12, On June 7, 2013, Bruce Ashton was interviewed by the Government Affairs Office for a study on mandatory distribution and automatic rollover issues. In June 2013, Melissa Junge was quoted in a Chicago Grid article titled, Employers Don t Want To See You Blow Your Healthcare Coverage Either. Joe Faucher contributed a feature article, What Plan Fiduciaries Need to Know About Share Classes for Retirement Investment to the June 2013 Thompson publication, The 401(k) Handbook. Fred Reish and Brad Campbell were quoted in a PlanAdviser article titled The Regulators are Coming on May 24, Financial Services ERISA Team 9

10 The firm hosted the fourth in our successful series of Inside the Beltway audio conferences on May 21, Brad Campbell and Fred Reish spoke on relevant developments in Washington. A recording of their interesting debate can be found at In the May 20, 2013 edition of NAPA Net, Fred Reish, Bruce Ashton, Joan Neri and Joshua Waldbeser contributed an article they co-authored, titled Helping Your Plan Sponsor Clients Avoid Prohibited Transactions. The same authors paired up previously on an article published in the April edition of the same newsletter, called ERISA 408(b)(2) After Effects: Form 5500 Filings. Joe Faucher and Heather Abrigo presented a webinar on May 15, 2013, on Lessons From Defendants: How Plan Committees Can Avoid Being Sued For Fiduciary Breach Under ERISA. To hear the recorded event, click www. drinkerbiddle.com/erisa-avoid-being-sued. Fred Reish was quoted in RIABiz May 7, 2013, in the Borzi: Exemptions from Conflict of Interest will be Part of New Fiduciary Proposal article. In a May 3, 2013 AdvisorOne piece, Fred Reish was interviewed for Ruling Forces Advisors to Pick Appropriate Fund Share Classes. Fred Reish gave the keynote address on Hot Issues for Retirement Plan Sponsors and Providers at the 42nd Annual Retirement and Benefits Management Seminar on April 25, 2013 in Charlotte, NC. Heather Abrigo discussed the Affordable Care Act and Elder Care during a San Diego Chapter of the Western Pension & Benefits Council meeting on April 16, Fred Reish and Brad Campbell were quoted in the Retirement Inputs section of the April 1, 2013 Plan Adviser. Inside the Beltway Series Please join us for our fifth session of Inside the Beltway, on Thursday, September 12, In our ongoing series of free audiocasts, we have been discussing developments in Washington that directly impact our industry. During this call, Fred Reish and Bradford Campbell will discuss: Status of the fiduciary advice proposal Focus on distributions and rollovers The DOL proposed guide on 408(b)(2) summary requirements The DOL s focus on abandoned plans The DOL s expansive definition of compensation and the ING settlement Comments received to the DOL proposed lifetime income projections Lessons from recent court decisions Can t make it? The audiocast will be recorded and available to all registrants within a week of the presentation. Date: Thursday, September 12, 2013 Time: Noon to 1:00 PM (ET) RSVP: Register at Financial Services ERISA Team 10

11 Financial Services ERISA Team Heather B. Abrigo (310) Gary D. Ammon (215) Bruce L. Ashton (310) Mark M. Brown (215) Bradford P. Campbell (202) Summer Conley (310) Joseph C. Faucher (310) Mona Ghude (215) Robert L. Jensen (215) Melissa R. Junge (312) Sharon L. Klingelsmith (215) Christine M. Kong (212) Howard J. Levine (312) Sarah Bassler Millar (312) Joan M. Neri (973) Fred Reish (310) Ryan C. Tzeng (310) Joshua J. Waldbeser (312) Employee Benefits & Executive Compensation Practice Group CALIFORNIA DELAWARE ILLINOIS NEW JERSEY NEW YORK PENNSYLVANIA WASHINGTON DC WISCONSIN 2013 Drinker Biddle & Reath LLP. All rights reserved. A Delaware limited liability partnership. Jonathan I. Epstein and Andrew B. Joseph, Partners in Charge of the Princeton and Florham Park, N.J., offices, respectively. This Drinker Biddle & Reath LLP communication is intended to inform our clients and friends of developments in the law and to provide information of general interest. It is not intended to constitute advice regarding any client s legal problems and should not be relied upon as such. Disclaimer Required by IRS Rules of Practice: Any discussion of tax matters contained herein is not intended or written to be used, and cannot be used, for the purpose of avoiding any penalties that may be imposed under Federal tax laws.

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