Employee Benefits & Executive Compensation Blog

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

Russell Hirschhorn

Russell Hirschhorn

Partner

Russell L. Hirschhorn represents plan fiduciaries, trustees, sponsors and service providers on the full range of ERISA and state law benefit and fiduciary issues. From single plaintiff to litigation and arbitration to complex class action litigation, he provides practical guidance, develops unique litigation defense strategies and, when appropriate, mediates successful resolutions.

Russell represents clients across a wide array of publicly-held, multi-national companies and privately owned companies across a multitude of industries including, banking, finance and investments, pharmaceuticals, retail products and construction, to name just a few. In addition, he also counsels benefit plan clients on a host of compliance and federal and state government agency enforcement matters, including complex and lengthy investigations and audits by the U.S. Departments of Justice and Labor.

Russell is management co-chair of the American Bar Association Employee Benefits Committee. He also writes on cutting-edge ERISA litigation issues, serving as the co-editor of the Firm’s Employee Benefits & Executive Compensation Blog and as a contributing author and a past chapter editor to Employee Benefits Law (BNA Third Edition).

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Best Practices in Administering Benefit Claims #8 – Facing Litigation of Benefit Claims

Up to now, our blog series has focused on best practices for implementing a plan’s claims and appeals procedure.  We shift gears this week to see how following these best practices pays dividends if a participant’s (or beneficiary’s) claim is denied and the participant decides to pursue the claim for benefits in court (or, if … Continue Reading

Best Practices in Administering Benefit Claims #7 – Understanding Attorney-Client Privilege in the Benefits Claims Process

When a plan administrator is attending to a benefit claim and thinks it is time to call in an attorney, are those discussions privileged and protected from disclosure to claimants?  In this week’s blog, we take a look at some of those communications between attorneys and plan administrators and examine whether or not they are … Continue Reading

Best Practices in Administering Benefit Claims #6 – Distinguishing an Inquiry from a Claim

It’s Week #6, and we have turned the corner in our Top 10 Best Practices in Administering Benefit Claims.  In case you missed any (or all) of the first five best practices, links to each of them appear below.  This week we discuss how to distinguish an inquiry from a claim for benefits. The claims … Continue Reading

Best Practices in Administering Benefit Claims #5 – Establishing (and Following) a Good Claims Process

This week we discuss the importance of establishing good claims procedures and the benefits of following those procedures. A plan’s claims procedures should be spelled out clearly in both the plan document and the summary plan description (where the two documents are not one in the same).  In addition to setting all of the applicable … Continue Reading

Best Practices in Administering Benefit Claims #4 – Know (and Understand) the Law: Full and Fair Review

This week in our blog series on best practices in administering benefit claims, we discuss the importance of knowing and, importantly, understanding the laws governing benefit claim administration. Section 503 of ERISA sets forth the general guidelines for a plan’s claims and appeal procedures.  It requires that a plan provide adequate written notice of the … Continue Reading

Best Practices in Administering Benefit Claims #3 – Dealing with Benefit Assignments

Our blog series on best practices in administering benefit claims has thus far stressed the importance of knowing and reading the plan document and summary plan description.  This week, we take a look at a plan term that has been the subject of frequent dispute in health and welfare benefits claim litigation—interpretation of plan provisions … Continue Reading

Best Practices in Administering Benefit Claims #2 – Know (and Read) Your SPD

Last week, we kicked off our blog series on the fundamentals of benefit claim administration with an explanation of how important it is to know and read your plan document.  The plan document is the legally binding contract that describes each participant’s rights and benefits under the plan. It also guides the legal obligations and … Continue Reading

Best Practices in Administering Benefit Claims #1 – Know (and Read) Your Plan Document

Our ERISA Practice Center blog posts often discuss many complex, and sometimes esoteric, substantive and procedural ERISA issues, as well as related agency guidance and case law.  In this new ten-part blog series, however, we take a step away from the complex and esoteric in order to review some of the fundamentals of benefit claim … Continue Reading

Ninth Circuit Enforces Hawaii Anti-Reimbursement Statutes Against Insured Plan

ERISA health care plans typically include reimbursement and subrogation clauses, which give plans a right to reimbursement of medical expenses paid on behalf of a beneficiary where the injury is caused by a third party.  While such provisions are common in ERISA health care plans, they sometimes conflict with state laws that prohibit plans and … Continue Reading

Third Circuit Upholds Health Plan’s Anti-Assignment Clause

The Third Circuit recently held that anti-assignment clauses in ERISA-governed healthcare plans are enforceable as long as they are unambiguous.  The Court concluded that the anti-assignment clause clearly stated that participants could not assign their rights under the plan; and the plan’s statement that payments made directly to a provider did not transfer to that … Continue Reading

Third Circuit Resuscitates Claims Against University 403(b) Plan Fiduciaries

Over the past several years, the ERISA plaintiffs’ bar has targeted university-sponsored 403(b) plans, arguing that the plan fiduciaries breached their fiduciary duties and engaged in prohibited transactions in connection with offering certain investment options and the administrative fees associated with such plans. Among other things, they have argued that the plan fiduciaries offered too … Continue Reading

As DOL Fiduciary Rule is Officially Vacated, Focus Shifts to SEC

After nearly a decade in the making, the Department of Labor’s fiduciary rule appears to be officially dead.  On June 21st, the U.S. Court of Appeals for the Fifth Circuit issued its mandate that finalized its earlier decision vacating the rule—discussed here.  Along with the regulation that expanded the definition of investment fiduciary, the mandate … Continue Reading

New DOL FAB Further Delays Enforcement of Fiduciary Rule, But Does Not Undo The Rule In Its Entirety

On May 7, 2018, the DOL issued a Field Assistance Bulletin (“FAB”) addressing the Department’s enforcement policy on the fiduciary rule that was recently vacated by the Fifth Circuit.  Although the DOL has elected not to continue defending the rule before the Fifth Circuit, the FAB leaves the rule’s status in a holding pattern. Rather … Continue Reading

Confusion Ensues After Appeal Over Fiduciary Rule in D.C. Circuit Dropped

On March 23, 2018, the National Association for Fixed Annuities (“NAFA”) and the Department of Labor filed a Joint Stipulation of Dismissal of litigation involving the Department’s fiduciary rule in the District of Columbia Circuit.  NAFA had appealed a district court decision that dismissed NAFA’s challenge to the fiduciary rule.  The decision to drop that … Continue Reading

Fifth Circuit Vacates DOL Fiduciary Rule

In a 2-1 decision, the U.S. Court of Appeals for the Fifth Circuit vacated the Department of Labor’s fiduciary rule, including the expanded definition of “investment advice fiduciary” and the associated exemptions. The decision nullifies the Department’s 2016 regulation—at least in the Fifth Circuit, which includes Texas, Louisiana, and Mississippi, and arguably nationwide—but is not … Continue Reading

Tenth Circuit Upholds DOL’s Authority to Impose New Conditions for PTEs and Leaves Door Open for Changes to Fiduciary Rule

The Tenth Circuit recently affirmed the Department of Labor’s authority to impose new conditions for exemption from prohibited transaction rules with respect to the sale of annuity contracts. The case related to the Department’s decision, as part of the 2016 “fiduciary rule,” to make sales of fixed indexed annuities ineligible for Prohibited Transaction Exemption 84-24, … Continue Reading

Tackett Redux: Ordinary Principles of Contract Interpretation Mean No Inference of Vesting

In an opinion released yesterday, the Supreme Court reaffirmed that collective bargaining agreements (CBAs) must be interpreted according to “ordinary principles of contract law.” CNH Industrial N.V. v. Reese, No. 17-515, 2018 WL 942419 (U.S. Feb. 20, 2018).  In so ruling, the Court again rejected the Sixth Circuit’s inference from silence that CBAs vested retiree … Continue Reading

Department of Labor Finalizes 18-Month Delay of Fiduciary Rule Exemptions

On November 27, 2017, the Department of Labor (“DOL”) finalized the delay of the applicability date for certain conditions for exemptions to the fiduciary rule until July 1, 2019. This delay was initially proposed in late August as described here. Although certain requirements have been delayed, the fiduciary rule’s broad definition of “fiduciary” and the … Continue Reading

Department of Labor Officially Proposes Delaying Fiduciary Rule’s Exemptions for 18 Months

On August 30, 2017, the Department of Labor (“DOL”) officially proposed delaying the applicability date of exemptions to its fiduciary rule until July 1, 2019. The proposal was expected after DOL stated in a court filing earlier this month that a delay proposal was under review by the Office of Management and Budget. This proposal … Continue Reading

Department of Labor Requests Additional 18-Month Delay of Certain Fiduciary Rule Requirements

On August 9, 2017, the Department of Labor (“DOL”) stated in a court filing that the Office of Management and Budget (“OMB”) is reviewing a proposal to extend the applicability date for certain requirements under DOL’s fiduciary rule until July 1, 2019. As discussed here and here the fiduciary rule’s “impartial conduct standards” have been … Continue Reading

DOL Again Seeks Comments on New Fiduciary Rules and Exemptions

On June 29, 2017, the Department of Labor (“DOL”) requested another round of public comment on its fiduciary rule—this time in the form of a Request (“RFI”) for Information.  The RFI seeks input on (a) whether to extend the January 1, 2018, applicability date for parts of the rule that are not yet in effect, and … Continue Reading

Department of Labor’s New Fiduciary Rule Will Go Into Effect June 9th

The Department of Labor has announced that the new fiduciary conflict of interest rule and related exemptions will begin taking effect on June 9, 2017, ending speculation of further delay. At the same time, the Department announced a relaxed enforcement standard for the rest of 2017.  See our blog post on the delayed effective date … Continue Reading

DOL Fiduciary Rule Delayed, But At Least Parts Might Be Here to Stay

On April 4, 2017, the U.S. Department of Labor issued a final rule postponing applicability of the conflict of interest rule and related exemptions for sixty days, until June 9, 2017.  The stated purpose of the extension is to allow more time to:  (i) complete the examination required by President Trump’s February 3, 2017 memorandum, … Continue Reading
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