Archives: ERISA

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Court Rules that One-Time Voluntary Separation Program is Not an ERISA Plan

Whether a one-time voluntary separation program should be treated as an ERISA-covered severance plan depends on whether the program requires an “ongoing administrative scheme” – a requirement first established by the Supreme Court in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987). In Fort Halifax, the Supreme Court held that ERISA does not … Continue Reading

Are You “Doing Enough” to Avoid ERISA Statutory Penalties?

Clients often are surprised to learn they are liable for ERISA statutory penalties associated with participant document requests even though they have retained an independent third party to administer their ERISA welfare benefits plans (such as disability, life, and health plans). It is fairly well established in most of the federal circuits that only the … Continue Reading

The President Urges Regulatory Action to Expand Access to Employer-Sponsored Retirement Plans

On August 31, 2018, President Trump issued an Executive Order (the “Order”) calling on the Department of Labor (“DOL”) and the Internal Revenue Service (“IRS”) to consider issuing regulations and guidance directed at expanding the availability of employer-sponsored retirement plans.  The Order mainly takes aim at the availability of retirement plans to all employees, noting … Continue Reading

Illinois Secure Choice Retirement Savings Program No Longer Mandatory?

The future of the Illinois Secure Choice Savings Program Act (Secure Choice) is uncertain following Governor Bruce Rauner’s amendatory veto which could make employer participation in the Secure Choice program optional. The legislation, as enacted, makes participation in the Secure Choice program mandatory for covered employers that do not offer employees a qualified retirement plan. … Continue Reading

You’ve Discovered A Mistake in Your Plan Administration – Now What?

Occasionally qualified plan administrators discover that their plans have incurred an operational error.  The Internal Revenue Service (“IRS”) recognizes that it needs the help of plan administrators to police the administration of qualified plans and has correspondingly published guidance to help plan administrators take appropriate corrective action where necessary. IRS Correction Alternatives Revenue Procedure 2016-51, … Continue Reading

Financial Conflict of Interest in the Eighth Circuit: Trigger of a Less Deferential Standard of Review or Mere Factor in Determining Plan Administrator Abuse of Discretion?

It is well-established under the Employee Retirement Income Security Act of 1974 (“ERISA”) that when an employee benefit plan grants the plan administrator discretion to decide questions of eligibility for benefits or to construe plan terms, judicial review of the plan administrator’s denial of benefits is generally limited to the deferential abuse of discretion standard … Continue Reading

Changes to ERISA’s Disability Claims Regulations Coming April 1

Employers who offer short-term and long-term disability plans governed by the Employee Retirement Income Security Act (ERISA), and their plan administrators, need to prepare for the approaching April 1st deadline of the new claims handling regulations.  Employer action items can be found in our article posted here. The ERISA regulations were effective January 2017, but were delayed until … Continue Reading

No Standing!

This is the most recent article in our series which focuses on the impact on employers of the downward spiral and death knell of the multi-employer defined benefit plan. The Eleventh Circuit has dealt another blow to employers who contribute to multi-employer defined benefit funds. In Westrock RKT Company v. Pace Industry Union-Management Pension Fund … Continue Reading

Court Rules that Company Discretionary Offer of Voluntary Separation Agreements Does Not Create an ERISA-Covered Severance Plan

It always has been difficult to give a consistent answer as to whether informal severance arrangements have created an ERISA-covered severance plan. In Mance v. Quest Diagnostics Inc., 2017 WL 684711 (DC NJ 2017), the U.S. District Court held that Quest’s decision to provide some departing employees with severance benefits under a voluntary separation agreement … Continue Reading

THE FULL FIFTH CIRCUIT WILL RE-VISIT THE STANDARD OF REVIEW IN DENIAL OF BENEFITS CASES

On July 10, the Fifth Circuit Court of Appeals announced that the full Court would re-hear a recent case concerning the applicable standard of review in an ERISA denial of benefits case – which is often outcome-determinative in favor of insurers and benefit plans. As we previously reported, in Ariana M. v. Humana Health Plan … Continue Reading

An Update on the DOL’s Fiduciary Rule

The DOL’s much anticipated (or maligned depending on the audience) Fiduciary Rule expands the definition of what constitutes investment advice under ERISA and thereby increases the number and types of retirement plan service providers that are considered ERISA fiduciaries (see our prior coverage of the Fiduciary Rule here, here and here).  It also imposes stringent … Continue Reading

Tenth Circuit Follows Majority of the Circuit Courts and Holds Plaintiff Bears the Burden of Proving Causation in ERISA Breach of Fiduciary Duty Cases

On June 5, 2017, in Pioneer Centres Holding Co. Employee Stock Ownership Plan & Trust v. Alerus Fin., N.A., Case No. 15-1227, the U.S. Court of Appeals for the Tenth Circuit held that the plaintiff bears the burden on each element of its breach of fiduciary duty claim under ERISA. Plaintiff brought suit for breach … Continue Reading

THE FIFTH CIRCUIT CALLS INTO QUESTION ITS STANDARD OF REVIEW IN ERISA DENIAL OF BENEFITS CASES

Explaining that “[a]s any sports fan dismayed that instant replay did not overturn a blown call learns, it is difficult to overcome a deferential standard of review,” a panel of the Fifth Circuit Court of Appeals has called for a re-examination of the Court’s standard of review in ERISA denial of benefits cases where the … Continue Reading

DISGORGEMENT CLAIMS CONTINUE TO CONFOUND COURTS IN ERISA CLASS ACTIONS

Courts continue to be split over the availability of disgorgement and “accounting for profits” in ERISA class actions involving in-house investment plans. On March 3, 2017, in Brotherston v. Putnam Investments, LLC, No. 1:15-cv-13825-WGY (D. Mass. March 3, 2017), the court declined to resolve the dispute at the summary judgment stage, allowing the certified class … Continue Reading

ANOTHER ERISA CHURCH PLAN CLASS ACTION SETTLES

Citing to the “significant uncertainties in predicting the outcome” of their litigation “where the critical issue is pending before the Supreme Court” (oral argument on the scope of ERISA’s church plan exemption is set in three consolidated cases for March 27), Plaintiffs in Butler et al. vs. Holy Cross Hospital, another church plan class action, … Continue Reading

DOL Fiduciary Rule – A Proposed Delay and Uncertain Future

We’ve previously written about the Department of Labor’s new fiduciary rule, which expands the definition of who is considered a fiduciary under the Employee Retirement Income Security Act, as amended (“ERISA”) and the Internal Revenue Code of 1986, and which addresses related prohibited transaction exemptions. The rule was finalized in April 2016 and is currently … Continue Reading

January 20, 2017; A Historical Day

This is another article in our series addressing the continued deterioration and downward spiral of multi-employer defined benefit pension funds and the resulting impact upon participants, unions and most importantly on employers. As the American public focuses on January 20, 2017 as the beginning of the Trump administration, the day may also have historical significance … Continue Reading

Pension Plan Suffers Cybersecurity Attack, ERISA Advisory Council Offers Cybersecurity Recommendations to DOL

It has been reported that infamous bank robber, Slick Willie Sutton, once said, “I rob banks because that’s where the money is.” Data thieves, understandably, have a similar strategy – go where the data is. The retail industry knows this as it has been a popular target for payment card data. The healthcare and certain … Continue Reading

“Hire Me” Exception Offers Little Real World Protection

Financial Advisers and retail financial services firms face a number of challenges in dealing with the new fiduciary rule the Department of Labor announced this spring. But little did they know that they may confront the issues from their first contact with a potential client. That’s right—even before selling their advisory services, these new fiduciary … Continue Reading

What Does the Supreme Court’s Spokeo Decision Mean in the ERISA Litigation Context?

ERISA practitioners should be aware of the extent to which the United States Supreme Court’s decision in Spokeo, Inc. v. Robins may touch on ERISA claims and defenses. In Spokeo, decided 6 to 2 last month, the Supreme Court addressed the issue of constitutional standing under the Fair Credit Reporting Act (“FCRA”), and our FCRA … Continue Reading

“Off the Rails:” A Plan Administrator’s Burden

When an ERISA plan provides the plan administrator with discretion to interpret the terms of the plan, the administrator’s claims and appeals decisions are generally reviewed by courts under a lenient standard of review such as “abuse of discretion.” In such cases, courts generally will not upset the plan administrator’s decision absent a clear error. … Continue Reading

Tenth Circuit Expands Withdrawal Liability of Construction Industry Employer

In a case of first impression, the United States Circuit Court of Appeals for the Tenth Circuit held that work performed by a non-union company acquired after a construction industry employer ceased contributing to a multiemployer pension plan (MEP) triggered withdrawal liability.  The case, Ceco Concrete Construction, LLC v. Centennial State Carpenters Pension Trust, Nos. … Continue Reading

Multiemployer Pension Plan Lowers Threshold That Triggers Partial Withdrawal Liability Payments

The United Food and Commercial Workers International Union (“UFCW”) National Pension Fund (which, according to its website has over 500 contributing employers and over 100,000 active participants) has adopted a new rule effective as of the plan year ending on June 30, 2014 which increases the risk that a participating employer will unknowingly create a … Continue Reading
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