Employee Benefits & Executive Compensation Blog

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

Category Archives: Disclosure

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Practical Considerations for New Pay vs. Performance Disclosure Requirement

The SEC’s final rule on Pay Versus Performance becomes effective on October 8, 2022, and will require new executive compensation disclosures for the upcoming proxy season (for annual proxy statements that include executive compensation disclosure for fiscal years ending on or after December 16, 2022). The new rule implements a requirement of the 2010 Dodd-Frank … Continue Reading

A Conjunction is Worth Thousands of Dollars: Recent Case Highlights Significance of “And” vs. “Or”

You do not need a Lexis or Westlaw subscription to know that major cases and significant judgments have sometimes hinged on the meaning of a single word, or the placement of a single Oxford comma. We have a recent case to add to the list: Weinberg v. Waystar, Inc., et al., which was an executive … Continue Reading

DOL Announces Temporary Enforcement Policy and Guidance to Address New Compensation Disclosure Requirements for Service Providers to Group Health Plans

On December 30, 2021, the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2021-03 (“FAB”), announcing its temporary enforcement policy for group health plan service provider disclosures under ERISA section 408(b)(2)(B). The Consolidated Appropriations Act of 2021 (“CAA”) amended ERISA section 408(b)(2) to require “covered service providers” to disclose all direct or indirect … Continue Reading

ERISA Disclosure Requirements for Service Providers Extended to Group Health Plans

The recently enacted Consolidated Appropriations Act of 2021 (“CAA”) requires new disclosures for brokers and other consultants providing services to certain group health plans.  Under the CAA, “covered service providers” must disclose their “direct” and “indirect” compensation above $1,000 received during the term of the contract or arrangement to a responsible plan fiduciary of a … Continue Reading

Delegating Fiduciary Responsibilities Related to ESOP Results in Dismissal of ERISA Stock-Drop Claims

Among the many lawsuits Boeing confronted following the disclosure of problems with the 737 Max was a class action brought by participants in the Boeing Voluntary Investment Plan who invested in the Boeing ESOP.  The plaintiffs alleged that the Boeing defendants breached their ERISA fiduciary duties by concealing problems with the 737 Max, which allegedly … Continue Reading

Side by Side Comparison: Electronic Disclosure Rules for Pension & Welfare Plans

The DOL recently provided retirement plans with a new method to comply electronically with certain participant disclosure and notice requirements. See our blog post outlining the new DOL rule. This new method adds to the previously issued DOL safe harbor and the IRS rules.  Below is a side-by-side general comparison to help plan administrators keep … Continue Reading

Department of Labor Finalizes New Safe Harbor for Electronic Delivery of Retirement Plan Disclosures

On May 21, 2020, the U.S. Department of Labor (the “DOL”) finalized its proposed regulation expanding electronic delivery for retirement plan disclosures.  On balance, the final regulation is generally consistent with the proposed regulation, although there are a number of key differences, including the addition of a new “direct email” delivery option not included in … Continue Reading

Guide to DOL’s New “Notice and Access” Proposal for Electronic Delivery

On October 23, 2019, the Department of Labor published a new proposed regulation that paves the way for “notice and access” electronic delivery of certain disclosures for retirement plans.  The proposal is welcome news for plan sponsors and administrators who have been frustrated by the existing “opt-in” regime for electronic disclosure.  But the proposal is … Continue Reading

ERISA’s Duty To Inform – Distinguishing Between Existing and Possible Benefits

A recent ERISA opinion gives us occasion to point out the important distinction under ERISA concerning fiduciary duties as they pertain to existing benefits and possible benefits.  In this case, the plaintiff alleged that defendants misrepresented to her that her retirement benefit plan would not change or would only change to her advantage after the … Continue Reading

District Court Rules Privately-Held Stock Plan Fiduciary May Have Affirmative Duty To Disclose

A federal district court in Georgia held that plan fiduciaries of a closely-held company’s single stock ERISA fund may have a duty to disclose material, non-public information concerning the value of the company’s shares when the information could have a potentially extreme negative effect on a plan participant.  The plaintiffs were participants in defendant Stiefel … Continue Reading

Death, Taxes and …ERISA Disclosure Regulations?

There are few sure things in life, and although it is probably safe to say that ERISA disclosure regulations would not be considered one of them, there has certainly been a steady stream of new ERISA-related disclosure and reporting obligations being imposed on plan fiduciaries. The latest installment from the U.S. Department of Labor came … Continue Reading

District Court Finds Fiduciaries Have No Duty to Investigate False Sale Allegations for ESOP Investment

In Malcolm v. Trilithic, Inc., 2014 WL 1324082, No. 1:13-cv-00073 (S.D. Ind. Mar. 31, 2014), the Southern District of Indiana held that plan fiduciaries were under no duty to investigate allegations that a false sale had been included in the company’s records as a way of “puff[ing] up [its] receivables account and profitability” to present … Continue Reading

Second Circuit Dismisses Stock-Drop Claim Based on Moench Presumption of Prudence

In Slaymon v. SLM Corp., 2012 WL 6684564 (2d Cir. Dec. 26, 2012), the Second Circuit Court of Appeals affirmed dismissal of an employer-stock class action in a summary order. Plaintiffs were employees of SLM Corp. (also known as Sallie Mae) who alleged that the fiduciaries of two Sallie Mae retirement plans breached fiduciary duties … Continue Reading
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