Prudent is as Prudent Does: Divided Sixth Circuit Affirms Summary Judgment in Favor of State Street in Post-Dudenhoeffer Review Based on Prudent Process

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In 1995, the Third Circuit adopted the presumption that an employee stock ownership plan (“ESOP”) fiduciary’s decision to remain invested in the employer’s securities was prudent. Over the following years, a number of other circuits adopted this presumption of prudence. However, in June 2014, the Supreme Court issued a unanimous decision in Fifth Third Bancorp v. Dudenhoeffer, holding that fiduciaries of ESOPs are not entitled to a presumption of prudence. Despite this rejection of the presumption of prudence, the Supreme Court provided clear guidance to the lower courts, instructing [...] Read more

‘Fiduciary’ Defined: DOL’s Proposed New Rule Creates More Questions Than Answers

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This article, written by Patrick DiCarlo and Emily Costin, discusses the recent regulations proposed by the Department of Labor defining who is considered a “fiduciary” when providing “investment advice for a fee.”   The article was published in the Summer 2015 edition of the Benefits Law Journal.

To read the article, please click here.

Illinois Supreme Court Affirms Constitutional Protection of Public Pensions

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This article, written by David Godofsky and Emily Hootkins from Alston & Bird, was recently published in the Benefits Law Journal.  The article discusses the recent decision from the Supreme Court of Illinois in In re Pension Reform Litigation.  In a 7-0 opinion, the court rejected the state’s attempt to reduce public employee pension benefits.  This article discusses the background to the case, the case holding, and policy implications.  As states struggle with pension obligations, the issues presented in this case are likely to be relevant in states across the country.    To [...] Read more

Third Circuit – Failure to Identify Plan’s Limitation Period in Denial Letter Precludes Enforcing Deadline

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In 2013, the Supreme Court reaffirmed that ERISA plans can impose shorter limitations periods than would otherwise be the case if the plan was silent. Nevertheless, the United States Court of Appeals for the Third Circuit recently held that, even though there was evidence that a claimant had notice that of the plan’s limitations period, which had expired, that limitations period could not prevent his lawsuit. What led the Court to this decision? Read on to find out. In Mirza v. Insurance Administrator of America, Inc., No. 13-3535, 2015 WL 5024159 (3d Cir. Aug. 26, 2015), the plaintiff was [...] Read more

Preserving The Role Of The Independent Fiduciary Post-Dudenhoeffer

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In the wake of Fifth Third v. Dudenhoeffer, a complaint that seeks to hold an ERISA fiduciary liable for failing to divest a plan of employer stock based solely upon publicly available information fails to state a plausible claim.  An “independent” fiduciary – by the very nature of his outside status – only has access to public information.  For this reason, claims that an independent fiduciary breached his ERISA fiduciary duties in connection with publicly traded company stock necessarily fail post-Dudenhoeffer.    In this article, recently published in the Summer 2015 Edition of [...] Read more

DOL “Best Interest” Exemption Not The Best Way To Get Sued

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The Department of Labor recently proposed a new regulation to define when financial advisers are considered “fiduciaries” under the ERISA and the Internal Revenue Code. The proposed regulation also includes new prohibited transaction exemptions (PTEs), as well as revisions to, and elimination of, certain existing PTEs. The primary PTE available to most financial advisers, should the DOL’s proposals become effective, is the proposed best interest contract prohibited transaction exemption (the “best interest contract PTE”). This PTE provides a broad prohibited transaction exemption (but [...] Read more

Advisory: Department of Labor Proposes New Regulation Governing When Financial Advisors Are Subject to Fiduciary Requirements

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The Department of Labor (DOL) has now proposed long-anticipated changes to the regulation that delineates when financial advisors become fiduciaries to certain benefit plans (such as retirement plans and Health Savings Accounts). This is an important distinction because fiduciary status imposes a number of requirements and implicates certain prohibited transaction rules (particularly concerning the receipt of fees). Under ERISA, a person can become a fiduciary in three general ways: (1) they can be designated as such in the plan documents; (2) they can be a “functional fiduciary” in the [...] Read more

Recent Developments in Employee Benefits Law

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This article, which was recently published in the ABA Tort, Trial & Insurance Practice Law Journal, surveys recent developments in employee benefits law from Fall 2013 through Fall 2014.  The first portion of the survey reviews two important Supreme Court cases from last term, Fifth Third Bancorp v. Dudenhoeffer and Heimeshoff v. Hartford Life & Accident Insurance Co.  The second portion of the survey reviews eight important decisions issued by the appellate courts during the last year.  The final portion of the survey reviews a proposed rule from the Department of Labor that would [...] Read more

Pat DiCarlo and Emily Hootkins Published in Law360 – “6th Circ. Rejection Of Disgorgement Brings ERISA Relief”

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On rehearing en banc, the Sixth Circuit has restored order for individual benefits cases by rejecting a judgment ordering Life Insurance Co. of North America to disgorge nearly $3.8 million in profits after wrongfully withholding long-term disability benefits from a plan participant. The majority agreed that allowing a disgorgement award in addition to requiring the insurer to pay the individual disability benefits would be an “impermissible duplicative recovery” under ERISA. To read the full article, please click here. [...] Read more