Season 5, Episode 4: Nevin & Fred - Live from Las Vegas
Nevin (Adams) & Fred (Reish) brought their prolific,pugnacious, and provocative perspectives in a live podcast format to the record-breaking NAPA 401(k) Summit.That’s right, at the mid-point of the 2025 NAPA 401(k)Summit, the precocious podcasting pair talked about a number of lessons to be learned from recent litigation, including:Who bears the burden of proof in ERISA litigation—according to the United States Supreme Court (bad policy, but "good" law)? A rare jury trial—and a BIG settlement. Why they’re rare (but may become more common). Oh, and it involved a multiple employer plan (MEP).Fred clarifies his prediction on PEPs (but he's still a fan).And that’s just Part 1! Episode Resources Burden of Proof RulingSupremes Back Cornell Plaintiffs in ERISA Burden of ProofStandardOral arguments in the case: Supremes Hear ERISA Burden of Proof CaseThe Cornell University Litigation “Saga” https://www.napa-net.org/header/search/?q=cornellERISA Jury TrialsJury Slaps Pentegra with $39 Million in Damages in MEPExcessive Fee SuitFidelity Wins Motion on Jury DemandPEP PerspectivesNevin & Fred: Could a Predominant PEPs Prediction ProvePositive?PEPs Will Match Single Employer Plan Adoption in 5 to 10 Years: Fred Reish
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Season 5, Episode 3: Pondering Participant Data Protocols & PRT
As interest rates rise, so has interest in pension risktransfer (PRT)—and litigation. Nevin & Fred take a look at what’s underlying (and undermining) that focus, aswell as a new suit alleging aggressive participant marketing.Pension risk transfer is an aptly named process undertakenby an organization that wants to transfer its pension obligations to another entity, typically an insurance company. The process itself is a fiduciary decision requiring carefulconsideration of the entity to which those obligations are transferred—and therein lies the basis of a recent spate of litigation regarding those choices (and during a period of time in which PRT volumes have been setting records). For those not familiar with the underpinnings of the pensionrisk transfer (PRT—because we need another acronym), IB 95-1, issued by the Department of Labor in 1995 (in the wake of the Executive Life collapse), outlines the fiduciary standards to be used in selecting an annuity provider for a pension risk transfer. That includes considerations of the provider’s investment portfolio, size relative to the annuity contract, level of capital and surplus, liability exposure andavailability of state government guaranty associations.In 2024, and in accordance with the provisions of the SECURE2.0 Act of 2022, the Labor Department basically concluded that while it was open to, and still considering, potential updates to Interpretive Bulletin 95-1, it felt that that document “continues to identify broad factors that are relevant to a fiduciary’s prudent and loyal evaluation of an annuity provider’s claims-paying ability and creditworthiness.” Additionally, EBSA found it “desirable for guidance in this area to remain principles based.” In this episode, Nevin (Adams) and Fred (Reish) talk about the trends and issues here. They also look at a new lawsuit that brings up an old issue—a recordkeeper’s access toparticipants and alleged promotion of their offerings. Episode Resources:Another Pension Plan Popped by Pension Risk SuitVerizon Pension Risk Transfer Challenged in CourtFiduciary Duty a Factor in Pension Risk TransfersNew ERISA Suit Alleges High Fees, Low Performance, Improper Forfeitures
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Season 5, Episode 2: Some New Twists on Forfeiture Reallocation Litigation
A “new” entrant to the forfeiture reallocation suit “suite”—and a decision in favor of fiduciary defendants. Nevin & Fred review the latest developments.Yet another 401(k) forfeiture fiduciary breach suit has beenfiled—but there are some key differences: The plaintiffs are represented by the law firm of Schlichter Bogard, LLC. The plan involved was the largest targeted by this type of litigation to date (nearly $8 billion). The plan document language prohibited use of forfeitures to offset employer contributions before offsetting administrative expenses (at least according to the suit).And then there is a case that has been through severalrounds of adjudication—and though winning, has had to keep going back to court. But HP finally prevailed, and though the actions regarding the application of forfeitures were seen as fiduciary decisions—well, there was a bit of a “new” twist in how the judge viewed them.In this episode Nevin (Adams) & Fred (Reish) examine theissues and potential implications, as well as a quick review of some recent updates.Episode ResourcesSchlichter Targets Massive 401(k) Plan With Forfeiture Suit401(k) Fiduciaries Fend Off Forfeiture Reallocation SuitSome “new” News:DOL Pushes Pause on 401(k) Fiduciary Rule SuitsBreaking News: White House Nominates Next EBSA AssistantSecretarySupremes Hear ERISA Burden of Proof Case
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Season 5, Episode 1: Can Duties of Prudence and Loyalty Diverge?
Could plan fiduciaries violate their duty of loyalty to plan
participants despite a prudent process? A recent federal judge says yes. Nevin (Adams) & Fred (Reish) discuss.
Participant-plaintiff (and pilot) Bryan P. Spence filed suit in the U.S. District Court for the Northern District of Texas in June 2023 against Defendants American Airlines, Inc., American Airlines Employee Benefits Committee, Fidelity Investments Institutional, and Financial Engines Advisors, LLC (he subsequently dropped the latter two).
The suit alleged that they “breached their fiduciary duties
in violation of ERISA by investing millions of dollars of American Airlines employees’ retirement savings[i] with investment managers and investment funds that pursue leftist political agendas through environmental, social and
governance (‘ESG’) strategies, proxy voting, and shareholder activism—activities which fail to satisfy these fiduciaries’ statutory duties to maximize financial benefits in the sole interest of the Plan participants.”
And now—following a four-day bench trial during which there was “testimony from multiple witnesses and examined numerous exhibits,” a review of the record in its entirety and where the Court “has observed the witnesses to assess their credibility and weigh their testimony”—that same Judge O’Connor has now determined what appears to be an unusual divergence.
So, what’s going on with this case, and what does/should it
mean for retirement plan fiduciaries? Nevin (Adams) and Fred (Reish) discuss.
Episode Resources:
Judge Says American Airlines 401(k) Fiduciaries ‘Blinded’ by
ESG Focus
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Season 4, Episode 15: A Christmas (k)arol
With apologies to Charles Dickens, Nevin & Fred have
done a special year-end tribute (of sorts) to the “ghosts” of retirement past, present – and future.
Several weeks back Brian Brashaw issued a challenge (of sorts) to the podcasters of the retirement industry. Specifically, he expressed an interest in that unique and special group doing a podcast “visited by three spirits: ghosts of 401k past, present and future.”
To date, we’ve seen interest, but no “takers” – but here’s
the Nevin & Fred option.
Episode Resources
An ‘Unintended’ Consequence - https://www.napa-net.org/news/2024/11/talking-points-an-unintended-consequence/
4 Things You Need to Know About Default Funds https://www.napa-net.org/news/2019/2/4-things-you-need-know-about-default-funds/
How to SECURE 'Better' Retirements https://www.napa-net.org/news/2024/6/talking-points-how-secure-better-retirements/
Myth Understandings https://www.napa-net.org/news/2019/2/myth-understandings/
Ireland