ERISA & Employee Benefits

Supreme Court Amicus Brief Shows How High the Stakes Really are for the Future of ERISA's "Actual Knowledge" Requirement

The battle over what constitutes "actual knowledge" of an ERISA fiduciary breach or violation ratcheted up a notch with the filing of an amicus brief in Sulyma v. Intel Corporation Investment Policy Committee, on behalf of several of the largest trade associations in the retirement investment advisory and employee benefits industry. The Intel amicus brief, filed on behalf of large trade ...

Multiple Employer Pension Plan Update

On October 22, 2018, the DOL issued a proposed regulation in response to the August 31, 2018, Executive Order by President Trump to remove regulatory burdens faced by defined contribution multiple employer pension plans ("MEPs"). On July 31, 2019, final DOL regulations on the definition of "Employer" were published in the Federal Register. While there are several possible types of MEPs, the DOL ...

One-Two Punch to Defuse Severance and Other Benefit Disputes

On September 4, 2019, the 5th Circuit Court of Appeals in Bangaru v. Shell U.S. Hosting Company et al, 4:17-cv-00629 (S.D. Tx.), shut the door on a former Shell executive who sought $1.5 million of severance based on his interpretation of the severance laws of his home country (India). The Court described the plaintiff's arguments as confusing and granted summary judgment to Shell. Shell ...

Church Plans Revisited

While the church plan exemption from the Employee Retirement Income Security Act of 1974 (ERISA) has been built into ERISA since its adoption, and the specific provision providing that exemption has not been significantly amended since 1983, it has only been in the last decade or so that there have been a proliferation of cases analyzing whether an employee benefit plan, particularly a ...

DOL Offers Temporary Penalty Relief for All Multiple Employer Plans not Currently in Compliance with the Special MEP Reporting Requirements

Recently, the Employee Benefits Security Administration (EBSA) of the Department of Labor (DOL) announced guidance and relief (Field Assistance Bulletin 2019-01) affecting Form 5500 annual report submission for multiple employer plans (MEPs). The relief applies to any MEP that, in plan years 2014 - 2017, failed to submit with its Form 5500, a list of participating employers in the MEP, and a good ...

Ninth Circuit Changes its Position on the Enforceability of Arbitration of Breach of Fiduciary Duty Claims Under ERISA §502(a)(2)

The Ninth Circuit, in Dorman v. The Charles Schwab Corporation, modified its position on the enforceability of arbitration agreements to ERISA claims of breach of fiduciary duty on behalf of the plan under ERISA Section 502(a)(2). The Court found an arbitration provision in the plan document was enforceable against the plaintiff. The Dorman decision may encourage plan sponsors to amend plan ...

Defining the Limits of Broad, Complete ERISA Preemption in Health Care Excessive Fee Cases

Over several decades, courts have developed a rich history of broad, complete ERISA preemption of any and all claims in state courts as they relate to ERISA plans and participant rights to receive benefits and coverage pursuant to ERISA. Complete ERISA preemption differs from express, conflict ERISA preemption because it allows removal of a case sitting in state court to federal court. It is ...

Does Your Plan use a LIMITED SCOPE AUDIT for Form 5500 Financial Reporting?

There has been a significant new development for employee benefit plan administrators of large plans who opt for a "limited scope audit" by the plan's auditor for Form 5500 reporting of the plan's financial information, as permitted by ERISA Section 103(a)(3(C). This new development only applies in the event that information on the plan's assets is provided by and certified to by a bank or other ...

Proposed IRS Regulation Would Eliminate "One Bad Apple" Rule for Multiple Employer Defined Contribution Plans

On July 3, 2019, the IRS proposed a new regulation addressing one problem experienced by multiple employer defined contribution plans (DC MEPs) which are tax qualified as single plans under Section 413(c) of the Internal Revenue Code (the "Code"). Under 413(c), the failure by one contributing employer to meet the qualification rules would result in the disqualification of the entire plan. The ...

Deal-Breaking M&A Issues Related to Employee Benefit Plans and Executive Compensation

Employee benefit and executive compensation issues can disrupt merger and acquisition transactions when overlooked until the last minute, or cause major post-transaction problems if not properly addressed before closing. The list below is intended to facilitate the detection, negotiation, and resolution of possible employee benefit plan and executive compensation-related problems. As a general ...