Parties in Lawsuit About 401(k) Account Fraud Agree to Settle

According to the complaint, an unknown person or persons stole a participant’s retirement savings by withdrawing a total of $99,000 in three separate unauthorized distributions from her account in the plan.

A former participant in the Estee Lauder 401(k) plan—who sued the plan sponsor and plan providers for failing to safeguard her retirement account—the plan’s recordkeeper Alight Solutions (formerly Aon Hewitt) and Estee Lauder have filed a Notice of Settlement in the U.S. District Court for the Northern District of California.

The notice says the parties will require several weeks to formalize their settlement and complete certain actions required by the agreement. They expect to be in a position to dismiss the case no later than April 10.

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The case was the first of its kind to call into question the cybersecurity defenses a plan sponsor and its providers had in place for retirement account fraud. According to the complaint, in September and October 2016, an unknown person or persons stole the participant’s retirement savings by withdrawing a total of $99,000 in three separate unauthorized distributions from her account in the plan.

The lawsuit claims that the defendants breached their fiduciary duties of loyalty and prudence by causing or allowing the unauthorized distributions of plan assets; failing to confirm authorization for distributions with the plan participant before making distributions; failing to provide timely notice of distributions to the plan participant by telephone or email; failing to identify and halt suspicious distribution requests, such as requests for multiple distributions to accounts in different banks; failing to establish distribution processes to safeguard plan assets against unauthorized withdrawals; and failing to monitor other fiduciaries’ distribution processes, protocols and activities.

The lawsuit originally named State Street Bank & Trust, the plan’s custodian, as a defendant, but according to news report, State Street is no longer a party in the suit.

PBGC and DOL Make Guidance Document Databases Available

An executive order requires each agency to establish on its website a single, searchable indexed database that contains, or links to, all the agency’s guidance documents and provides certain information about them.

Both the Pension Benefit Guaranty Corporation (PBGC) and the Department of Labor (DOL) have issued notices about the availability of guidance document databases.

On October 9, President Donald Trump issued Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” Central principles of the executive order are that the American public should only be subject to binding rules imposed through duly enacted statutes or through regulations that are lawfully promulgated and that Americans should have fair notice of any such obligations. Section 3 of the executive order requires each agency to establish on its website a single, searchable indexed database that contains, or links to, all the agency’s guidance documents and provides certain information about them.

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The PBGC’s guidance document database is at www.pbgc.gov/guidance. The guidance document database contains links to PBGC guidance documents.

The DOL’s notice says it is undertaking a detailed and comprehensive review of guidance documents issued by its agencies to determine whether such guidance aligns with the law and administration policy and otherwise serves an appropriate and useful purpose. Guidance which is outdated, superseded, invalid, unhelpful, confusing, redundant, outside an agency’s appropriate role, or contrary to law or policy is being rescinded or modified.

Any documents still under review will be added to the website when those decisions have been finalized. Guidance documents that are not currently searchable through the search tool will continue to be available on the individual DOL agency websites. The DOL says it will continue to refine its website as needed to enhance user accessibility and usability.

The DOL’s guidance document database is at https://www.dol.gov/guidance.

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