Employee Benefits & Executive Compensation Blog

The View from Proskauer on Developments in the World of Employee Benefits, Executive Compensation & ERISA Litigation

[Podcast]: Cross-Border Asset Deals

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In this episode of The Proskauer Benefits Brief, partner David Teigman, senior counsel Nick LaSpina, and special international labor & employment counsel Nicola Bartholomew, discuss differences between asset sales in the US and the UK, with respect to transfers of employees.  In short, there are significant differences that are not necessarily intuitive to US practitioners.  In the US, parties will have commercial freedom to make offers of employment and negotiate terms, whereas in the UK employees will transfer automatically as a result of TUPE and a number of significant protections and obligations apply that will need to be factored into the deal. So be sure to tune into this informative discussion about employment and benefits issues in asset sales in the US and the UK.


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Sixth Circuit Rejects Arbitration for Proposed Fiduciary Breach Class Action

The Sixth Circuit, in a matter of first impression for that Circuit, held an arbitration clause contained in an individual employment agreement did not apply to ERISA fiduciary breach claims brought on behalf of a defined contribution plan.  The case is Hawkins et al. v. Cintas Corp., No. 21-2156, __ F.4th __, 2022 WL 1236954 (6th Cir. 2022).

Plaintiffs, former Cintas Corp. employees, sued the company and its investment committee under Section 502(a)(2) of ERISA on behalf of its 401(k) plan, alleging that defendants breached their fiduciary duties of prudence and loyalty with respect to the management of the plan.  Cintas moved to compel arbitration, arguing that an arbitration clause in plaintiffs’ employment agreements covered the claims they now sought to bring.

Last year, a judge in the Southern District of Ohio denied defendants’ motion to compel arbitration, reasoning that individual arbitration agreements could not cover claims under Section 502(a)(2) because such claims are brought on behalf of the plan.

The Sixth Circuit affirmed.  While the court stopped short of deciding whether Section 502(a)(2) claims could ever fall within the scope of an arbitration clause in an individual employment agreement, it held that plaintiffs’ claims did not fall within the arbitration clauses here.  The court reasoned that because such claims “belong” to the Plan, they cannot be forced into arbitration based on agreements that bind only individual participants.  Moreover, the court found that, in this case, the agreements established only plaintiffs’ consent to arbitration, but not the plan’s.

Proskauer’s Perspective

The Sixth Circuit’s decision is notable in several ways.  For one, it joins the Second, Seventh, and Ninth Circuits in rejecting arbitration of Section 502(a)(2) claims based on a clause in an individual employment agreement, though these courts reached the same result based on varied reasons, including that the clause did not reach ERISA claims (as opposed to typical employment-related claims) and that the clause violated the “effective vindication” exception to the Federal Arbitration Act where it would limit the relief authorized under Section 502(a)(2) (see our previous blog posts discussing the Second and Seventh Circuit decisions).

Additionally, the Sixth Circuit explicitly limited its decision to the arbitration clause contained in the employment agreements but left open the question of whether an arbitration clause in a plan document would lead to a different result, as it did in the Ninth Circuit in 2019 (see our previous post).  Given the increased use of arbitration clauses and frequency with which plaintiffs bring ERISA fiduciary breach claims, courts outside the Ninth Circuit may very well face this question in the near future.

Ninth Circuit Revives Second Excessive Fee 401(k) Plan Litigation

On Friday, for the second week in a row, the Ninth Circuit reversed dismissal of a 401(k) plan excessive fee litigation challenging the offering of retail share classes of mutual funds instead of cheaper institutional share classes.  As with its decision reviving the other 401(k) plan litigation (discussed in detail here), the Ninth Circuit declined to consider at the pleading stage defendants’ explanation that it offered the more expensive retail share classes because they paid revenue sharing to the plan’s recordkeeper, which helped offset plan recordkeeping and administrative fees. The case is Kong v. Trader Joe’s Co., No. 20-56415 (9th Cir. Apr. 15, 2022).

Ninth Circuit Revives Fee Challenge to Salesforce.com 401(k) Plan

On Friday, the Ninth Circuit became the first circuit court to rule in a 401(k) plan fee and investment litigation following the Supreme Court’s January 2022 decision in Hughes v. Northwestern University, 142 S. Ct. 737 (2022).  In Davis v. Salesforce.com, Inc., No. 21-15867 (9th Cir. Apr. 8, 2022), the Ninth Circuit, without discussing Hughes, upheld the viability of the types of claims that Hughes reinstated and remanded for further review.  A discussion of Hughes can be found on our blog here.

The Ninth Circuit’s decision in Davis addressed whether plaintiffs plausibly alleged that fiduciaries of Salesforce.com’s 401(k) plan breached their fiduciary duties by:  (i) offering and retaining more expensive share classes of mutual funds despite the availability of lower-cost share classes of the same mutual funds; (ii) offering actively managed funds instead of cheaper index funds; and (iii) offering mutual funds instead of available collective investment trusts.

A federal district court in California previously ruled (twice) that plaintiffs’ complaint did not meet the plausibility standard, by:  (1) accepting defendants’ “obvious explanation” that more expensive share classes were selected because they paid revenue sharing that was in turn used to offset recordkeeping and administrative fees; and (2) concluding that it was improper to compare the two management styles (passive versus active) and investment vehicles (mutual fund versus collective investment trust), and even if the comparisons were appropriate, plaintiffs did not allege long-term and/or material underperformance sufficient to state a plausible claim of imprudence.

In an unpublished opinion, the Ninth Circuit reversed the district court’s dismissal of two of the three claims and remanded the case, based on the following conclusions:

First, the Ninth Circuit found it inappropriate to consider, on a motion to dismiss, defendants’ argument that the challenged share classes were selected because they made revenue sharing payments to the plan that were used to pay for recordkeeping and administrative services, as opposed to the lower cost share classes that did not pay revenue sharing.  The Ninth Circuit explained that where there are two “alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6).”  The Ninth Circuit did not, however, cite to or try to reconcile its holding with its 2018 unpublished decision in White v. Chevron Corp., 752 F. App’x 453 (9th Cir. 2018), in which it upheld the dismissal of similar mutual fund share class claims and appeared to give weight to defendants’ alternative explanations by ruling that where there are “two possible explanations, only one of which can be true and only one of which results in liability, plaintiff[] cannot offer allegations that are ‘merely consistent with’ [its] favored explanation but are also consistent with the alternative explanation. . . . [s]omething more is needed, such as facts tending to exclude the possibility that the alternative explanation is true . . . in order to render plaintiffs’ allegations plausible within the meaning of Iqbal and Twombly.”

Second, the Ninth Circuit held that defendants’ reasons for not switching from mutual funds to collective trusts, or not doing so sooner, were factual issues not appropriate for resolution at this stage.

Third, the Ninth Circuit found plaintiffs’ allegation that defendants should have invested in passively managed funds instead of actively managed funds was not sufficient to state a claim, for the same reasons provided by the district court.

Proskauer’s Perspective

While the decision is unpublished (and technically non-precedential under Ninth Circuit appellate rules), the Ninth Circuit ruling furthers the increasing concern among plan sponsors and fiduciaries that even the most bare-bones claims challenging the fees and investment offerings of 401(k) plans will withstand motions to dismiss.  Of particular concern is the courts’ increasing tendency to allow claims challenging the use of higher-cost share classes to proceed, even where the complaint makes no effort to consider the likelihood that these share classes generate revenue sharing payments that offset any higher fees to plan participants.  If, at the motion to dismiss stage, courts will refuse to consider even the most obvious explanations for the challenged decisions, defense practitioners may want to consider holding their power on motions to dismiss and instead filing summary judgment motions in the early stages of discovery, when the courts may be more likely to evaluate these explanations.

Ninth Circuit Defers to Plan Design and Administrative Discretion on Bounds of Mental Health Coverage

A recent decision by the U.S. Court of Appeals for the Ninth Circuit (Wit et al. v. United Behavioral Health and Alexander et al. v. United Behavioral Health) exemplifies the challenge in balancing a desire to cover evolving treatments for mental health and substance abuse disorders against plan sponsors’ and insurers’ general authority over plan design and the administrator’s discretion to interpret the plan and decide claims.  The case involved United Behavioral Health’s (“UBH”) complete or partial denials of claims related to treatment for mental health and substance abuse.

A federal district court (see here and here) had ordered UBH to reprocess over 50,000 claims on the ground that UBH’s guidelines for making coverage determinations did not comport with generally accepted standards of care (“GASC”).  The district court concluded that UBH’s guidelines improperly applied cost-benefit analysis to reject coverage for more comprehensive treatments.  For example, the district court concluded that UBH’s guidelines overly emphasized treatment of acute symptoms over treatment of underlying conditions and inappropriately did not include level-of-care criteria specifically tailored to children.

Among other things, UBH argued on appeal that: (1) the ERISA beneficiaries lacked standing to pursue their claims; and (2) the trial court had failed to correctly apply the abuse of discretion standard in connection with its reprocessing order.

In an unpublished decision, a Ninth Circuit panel rejected UBH’s standing argument, but still reversed the order to reprocess claims, because—

  • Under the applicable plans, compliance with GASC was required but not sufficient to justify coverage—e., services could be covered only if they were within the scope of both GASC and what the plan covered; and
  • The plan administrator’s application of the plan’s standards could be reviewed only for abuse of discretion. This meant that, even if the court disagreed with UBH’s balancing of costs and benefits or its final decision, the court could not overturn the administrator’s decision unless it was unreasonable.

The Ninth Circuit also held that an alleged conflict of interest based on UBH serving as both plan administrator and insurer/payer was not sufficient to change the outcome on the facts of the particular case.

The Ninth Circuit’s decision illustrates how claims for coverage, especially for mental health services, are inherently fact-specific because they require analysis of the patient’s medical needs, medical necessity, and sufficiency of alternative treatments.  Rather than address the merits of any particular claim, the Ninth Circuit simply concluded that in light of the discretion conferred to UBH to interpret the plans, it was not appropriate to send over 50,000 claims back to UBH for review en masse.

Congress Reopens Door For HSA With No-Deductible Telehealth, But With a Hole

Effective April 1, 2022, high-deductible health plans can once again offer first-dollar coverage for telehealth and other remote services without making participants ineligible for health savings account (“HSA”) contributions.  The relief runs only through the end of 2022, and the regular high-deductible health plan requirements generally apply for the months of January through March 2022.  (But there is no gap if the plan’s current plan year started before January 1, 2022.)

By way of background, to be eligible to make or receive contributions to an HSA, an individual must be covered by a high-deductible health plan.  Subject to limited exceptions, coverage under a health plan before the minimum deductible is satisfied would make plan participants ineligible to make or receive HSA contributions.  If contributions are made while a participant is ineligible, the contributions would have to be included in the participant’s income (i.e., subject to income tax) and the contributions would be subject to a 10% additional tax.

Section 223 of the Internal Revenue Code includes exceptions to the minimum deductible requirement for preventive care, employee assistance programs, and certain other “permitted insurance.”   The 2020 CARES Act (Coronavirus Aid, Relief, and Economic Security Act) added an exception for telehealth and other remote services, but that exception applied only from enactment of the CARES Act through the last plan year that started before January 1, 2022.

The Consolidated Appropriations Act of 2022 (signed into law on March 15th) restores the exception for telehealth and other remote services, but only for the period from April 1 through December 31, 2022.  This means that if a plan’s year started at any time from January 1, 2022 through March 31, 2022, and the plan did not impose the minimum deductible for telehealth or other remote services from the start of the plan year through March 31, 2022, the plan would not be a high-deductible health plan for that period.  Consequently, participants covered by the plan would be ineligible to make or receive HSA contributions for that period.

Plan sponsors who were expecting the telehealth exception to be restored back to January 1st should consult with counsel on practical ways to ensure that participants retain their eligibility for HSA contributions.

Cryptocurrency in 401(k) Plans? Might be More Like “Crypto-nite,” Says the DOL in Its Latest Release

Kryptonite is a fictional substance that causes the mighty Superman to lose all his strength. According to a recent release from the U.S. Department of Labor Employee Benefits Security Administration (“DOL”), cryptocurrency might carry similar dangers for otherwise strong and healthy 401(k) plan accounts. That is, in DOL’s view, the benefits of cryptocurrency in 401(k) plans may prove to be just as fictional as kryptonite, thereby causing significant risks of losses for retirement security.

On March 10, 2022, DOL issued Compliance Assistance Release No. 2022-01 (the “Release”) to caution plan fiduciaries to exercise extreme care before considering whether to include investment options like cryptocurrency as part of a 401(k) plan’s investment menu. In so doing, DOL raised five key concerns associated with offering these types of investment options.

DOL’s 5 Reasons Why Cryptocurrencies Might be Like “Crypto-nite” to Participant Retirement Accounts:

  1. Digital Assets Are Highly Speculative and Volatile

After noting that the SEC has also warned of the highly speculative nature of cryptocurrency, DOL cautioned that the extreme price volatility of cryptocurrency investments can have a devastating impact on participants with significant allocations to cryptocurrency. According to DOL, this volatility might be attributable to the many uncertainties surrounding the valuation process, fictitious trading practices, and widely published reports of theft and fraud, among other factors.

  1. Obstacles Inhibit Participants From Making Informed Decisions

The Release noted that cryptocurrencies are often presented to investors as “innovative investments” that provide “unique potential for outsized profits;” resulting in participants having high return expectations with little appreciation for the unique risks and volatility associated with cryptocurrencies. DOL also pointed out that these investments do not have the types of traditional data that novice and expert investors alike rely on to adequately evaluate future potential investment options.

Moreover, the Release asserted that the recent rise of social media and celebrity attention received by digital assets poses additional challenges for investors and plan participants to separate the facts from the hype. When combined with a plan fiduciary’s decision to include cryptocurrency options on a 401(k) plan menu, according to the Release, the message effectively conveyed to plan participants is that “knowledgeable investment experts have approved the cryptocurrency option as a prudent option . . . [which can] easily lead plan participants astray and cause losses.”

  1. Fiduciaries Face Non-Traditional Custodial and Recordkeeping Challenges

Unlike traditional plan assets that are held in trust or custodial accounts, DOL notes that cryptocurrencies generally exist as lines of computer code in a digital wallet. In addition to valuation and liquidity issues, cryptocurrencies “can be vulnerable to hackers and theft,” as well as loss from losing or forgetting a password. DOL contends these differences pose unprecedented challenges for fiduciaries charged with highly regulated custodial and recordkeeping requirements.

In a DOL blog post issued on the same day as the Release, blog author, Acting Assistant Secretary, Ali Khawar, provided further insight into why DOL considers these challenges so significant:

“The assets held in retirement plans, such as 401(k) plans, are essential to financial security in old age – covering living expenses, medical bills and so much more – and must be carefully protected.”

  1. Experts Lack Industry Standard Valuation Models or Accounting Requirements

The Release expressed concerns about the reliability and accuracy of cryptocurrency valuations. Experts are still grappling with the complex and challenging task of solving how to value digital assets, and also admit that none of the existing proposed valuation models are as sound or academically defensible as the discounted cash flow analysis or interest and credit models that are traditionally used.

  1. Regulatory Landscape is Unstable and Swiftly Evolving

Last, the Release warned that, as the rules and regulations governing cryptocurrency markets continue to evolve, some market participants could find themselves operating outside of existing regulatory frameworks or not complying with them. Fiduciaries who are considering whether to include cryptocurrency investment options, according to the Release, must include in their analysis an explanation of the possible application of regulatory requirements on issuance, investments, trading, or other activities, and the possible effects those requirements may have on participant investments in 401(k) plans. An example that is very similar to this highly talked about pending litigation was provided in the Release to illustrate possible risks in this area.

A Word to Fiduciaries Who Have Already Allowed Cryptocurrency on the Investment Menu, Including Through Brokerage Windows

In addition to outlining specific risks raised by cryptocurrency investments in 401(k) plans, the Release announced that DOL expects to conduct investigations specifically targeting plans that offer participant investments in cryptocurrencies and “related products.” Plan fiduciaries should expect to be questioned over how their actions aligned with their fiduciary duties of prudence and loyalty in light of the risks addressed in the Release.

These investigatory warnings also extend to plans and plan fiduciaries responsible for allowing cryptocurrency investments through 401(k) plan brokerage windows. This is concerning and may have broader implications because, as explained in a recently released report by the ERISA Advisory Council, most experts believe that plan fiduciaries do not have an obligation to monitor the underlying investments in a brokerage window, absent “extraordinary circumstances.” The Release’s reference suggests that DOL believes cryptocurrency investment options in brokerage windows may be the type of extraordinary circumstance that warrants a closer look at brokerage windows.

Unanswered Questions

After reading the Release, fiduciaries should also consider many unanswered questions in addition to the specific risks raised.

  1. Can a “Sophisticated Fiduciary” Approve an Investment Option That Has a Small Allocation to Cryptocurrency?

In prior guidance involving private equity investments in 401(k) plans, DOL noted the investment risks but offered a path for fiduciaries to manage the risks. In that context, (see the  June 2020 Information Letter and Supplemental Statement issued in January 2022), although DOL expressed the need to exercise caution, DOL also stated that such potentially risky investment options could be included within a diversified investment option if approved by a “sophisticated fiduciary.” The Release raises “serious concerns” with “direct investments in cryptocurrencies,” as well as “other products whose value is tied to cryptocurrencies,” but it leaves open the question of whether, and to what extent, “sophisticated fiduciaries” could approve funds that include small allocations to cryptocurrency.

  1. How Much Indirect Exposure to Cryptocurrency is Too Much?

As noted above, the Release targets not only “cryptocurrencies” but also “other products whose value is tied to cryptocurrencies.” Left unanswered is whether “other products” would include funds that have any exposure to cryptocurrency as opposed to exposure above a particular threshold.

For example, the June 2020 Information Letter provided that private equity must be a small component – perhaps not more than 15 percent – of a designated investment alternative to potentially be permissible in 401(k) plans. Is it possible, then, for a target date fund that invests in collective investment funds, one of which contains a very small percentage (less than 15 percent) of its assets in cryptocurrency, to be an acceptable “other product”? If not, it is possible that a number of diversified investment options could be swept into the broader “other” category. Fiduciaries should review whether any funds in their plans’ lineups have exposure to cryptocurrencies.

  1. What About Defined Benefit Plans and Other Fund Types?

Finally, the Release specifically focuses solely on 401(k) plan investments in cryptocurrencies and related products. What about defined benefit plan investment funds? What about investments held by welfare benefit funds (VEBAs)? A number, albeit not all, of the five DOL concerns expressed in the Release apply similarly to these other types of plans; but the Release did not focus on those types of plans.

For now, plan sponsors and fiduciaries should keep an eye on new developments. If DOL does launch an investigatory program for cryptocurrency investments, it is possible that this guidance might take the form of audit questions for plan fiduciaries. Regardless, fiduciaries need to be ever vigilant in monitoring plan investments and making investment decisions.

[Podcast]: Employee Retention Issues

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In this episode of The Proskauer Benefits Brief, Proskauer partner David Teigman, senior counsel Nick LaSpina, and special guest Michelle Garrett, a principal at the compensation consulting firm Semler Brossy, discuss employee retention. It seems like there is an article almost every day talking about the “great resignation.”  In a nutshell, there have been far more job transitions recently than there have been in the past. Tune in as we discuss what employers can do to help retain employees in this working environment.


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[Podcast]: Key ERISA Fee and Investment Litigation Developments and the Impact of Hughes v. Northwestern University

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In this episode of The Proskauer Benefits Brief, Myron D. Rumeld, partner and co-chair of Proskauer’s ERISA Litigation group and senior associate Tulio D. Chirinos, review the current state of affairs with respect to the litigation challenging the fees charged and investments offered in defined contribution plans; and The Supreme Court’s recent decision in Hughes v. Northwestern University where the court reversed and remanded the Seventh Circuit’s decision affirming dismissal of a 403(b) plan excessive fee litigation.


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Ninth Circuit Agrees with Third Circuit that “Highest Contribution Rate” for Withdrawal Liability Payment Calculations Excludes PPA Surcharges

On January 31, 2022, the Ninth Circuit affirmed the lower court’s finding that surcharges imposed by the Pension Protection Act (“PPA”) are excluded from the determination of an employer’s “highest contribution rate” for withdrawal liability payment calculations. While the Multiemployer Pension Reform Act (“MPRA”) explicitly excluded surcharges that accrued after 2014 from such calculations, this case concerned surcharges that accrued before 2015 – which remains relevant even today because the highest contribution rate is determined using a ten-year lookback period.

Withdrawal liability represents an employer’s allocable share of a multiemployer pension fund’s underfunding. However, a withdrawn employer is generally permitted to pay its withdrawal liability in installments that are determined using a different formula where the employer’s annual payment amount is the product of: (1) the highest consecutive three-year average of its contribution base units during the ten plan years prior to the employer’s withdrawal and (2) the employer’s highest contribution rate during the ten plan years ending with the year of the employer’s withdrawal.

The PPA imposes a 5-10% surcharge on contributions for employers that contribute to a multiemployer pension fund in “critical” status until the employer adopts a collective bargaining agreement that incorporates the rate increases required by the pension fund’s rehabilitation plan.

In this case, an employer had withdrawn from a pension fund in “critical” status to which it previously paid the PPA surcharge for a number of years. In calculating the employer’s withdrawal liability installment payment, the pension fund included the surcharge in the determination of the employer’s highest contribution rate. The arbitrator and the lower court agreed that the PPA surcharge was not part of the highest contribution rate for purposes of calculating withdrawal liability.

In affirming the lower court’s findings, the Ninth Circuit looked to the statutory language and determined that the surcharge was not a “contribution rate” because the PPA surcharge is calculated and paid after the total amount of contributions have been calculated.  In doing so, the court agreed with a similar opinion from the Third Circuit from 2015 (Bd. of Trs. of IBT Local 863 Pension Fund v. C & S Wholesale Grocers, Inc.) that the PPA surcharge “is not the ‘highest contribution rate’ because it is not a ‘contribution rate’ at all.”

The case is Bd. of Trs. of the W. States Office & Prof’l Employees Pension Fund v. Welfare & Pension Admin. Serv,, Inc., No. 20-35545 (9th Cir. Jan. 31, 2022).

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