ERISA & Employee Benefits

Suggested Administrative Practices in Light of Intel Decision - Ensuring "Actual Knowledge"

by Stephen Wilkes and Livia Aber

Advisors: Time to Finish What was Started….ERISA and Fiduciary Process Have Evolved…Have You?

Over 46 years ago, the Employee Retirement Income Security Act (“ERISA”) was passed overwhelmingly in the House of Representatives by a 376-4 vote.  Congress passed ERISA to empower American workers toward retirement security.  Fast forward, on May 23, 2019, the House of Representatives overwhelmingly passed the Setting Every Community Up for Retirement Enhancement Act (“SECURE Act”) by a vote of ...

Supreme Court's Actual Knowledge Decision Underscores Importance of Plan Administrator Best Practices

The Supreme Court settled the debate over what constitutes "actual knowledge" in the context of an ERISA fiduciary breach claim in a unanimous and simple decision that applied dictionary definitions of the term "actual" to find that the fiduciary breach knowledge requirement means that "the plaintiff must in fact have become aware of that information." The Intel Investment Policy Committee v. ...

Eighth Circuit Delivers Guidance on Whether Rate Setting Amounts to Fiduciary Conduct

Courts have long struggled to set the boundaries at which point ERISA plan service providers exert sufficient control and discretion over plan assets to make them fiduciaries under ERISA 3(21). The significance of being an ERISA fiduciary is self-evident in the litigation context: if an entity is not an ERISA fiduciary, then it cannot be liable for a breach of ERISA's fiduciary duties and ...

SECURE Act Finally to Become Law

Congress is subject to one of the same vices as many Americans, namely, putting off important activities until the last moment. Earlier this year, the House of Representatives by a 417-3 vote, approved the Setting Every Community Up for Retirement Enhancement (SECURE) Act (or “Act”), but it never advanced in the Senate, in part because of reservations as to how it would be paid for. However, this ...

DOL Issues Proposed Regulations Regarding Electronic Disclosure of Pension Plan Information

In 2002, the DOL issued a safe harbor for electronic disclosure that is available only to those participants that have electronic media at work, and those individuals who affirmatively opt in to electronic documentation. There have been calls from many quarters for the DOL to update those regulations to reflect the advances in technology since the 2002 regulations, including an August 2018 ...

Petition For Rehearing and Supporting Amicus Briefs Filed In Schwab ERISA Arbitration Case

In August of this year, a Ninth Circuit three-judge panel ruled in Dorman v. The Charles Schwab Corporation, DC No. 4:17-cv-00285-CW, 2019 WL 3939644 (9th Cir. August 20, 2019) that a plan document's arbitration provision could bar class action allegations of breach of fiduciary duty brought on behalf of the plan under ERISA §502(a)(2). ERISA §502(a)(2) authorizes the Secretary of Labor, ...

When Will a Plan Administrator's Denial of Benefits be an Abuse of Discretion - In Discrete Circumstances Says the Ninth Circuit

Almost every ERISA employee benefit plan contains so-called "Firestone language," which grants discretionary authority to determine eligibility for benefits and construe the terms of a plan. If a plan contains such language, then a plan administrator's interpretation of the plan terms is reviewed under an abuse of discretion standard, which, as discussed below, is a standard that participants ...

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 ...