A recent Sixth Circuit decision emphasizes the importance of maintaining correct benefit plan delegations to avoid tussles over the correct standard of review for benefit claims. In this case, the Sixth Circuit concluded that no deference was owed to a claim decision made by a company’s benefits department because the plan document neither named the benefits department as the entity with discretionary authority to decide claims nor permitted the benefits committee to delegate its discretionary authority to the benefits department. The case is Laake v. Benefits Committee, Western & Southern Financial Group Co. Flexible Benefits Plan et al., 68 F.4th 984 (6th Cir. 2023).
ERISA
Seventh Circuit Affirms Discretion Over Who Gets Severance Benefits
By Seth Safra & Sydney Juliano on
A recent Seventh Circuit decision affirms the principle that an ERISA severance plan can reserve to the employer discretion over who is eligible for severance benefits. The case is Carlson v. Northrop Grumman Severance Plan, No. 22-1764, __ F.4th __, 2023 WL 3299703 (7th Cir. May 8, 2023).
DOL Proposes Self-Correction Option and Other Changes to Voluntary Fiduciary Correction Program
By Justin Alex & Tanusha Yarlagadda on
The U.S. Department of Labor (the “DOL”) proposed changes to its Voluntary Fiduciary Correction Program (the “VFCP”) in November for the first time since 2006. The most significant change is the addition of a self-correction option for delinquent deposits of participant contributions and loan repayments. The other changes clarify and expand certain existing aspects of…
DOL’s Final ESG Rules Reflect Warmer Attitude Toward ESG, But Maintain Bedrock Principle that Risk and Return Cannot Be Sacrificed
By Ira G. Bogner, Seth Safra, Adam Scoll & Tanusha Yarlagadda on
On November 22, 2022, the U.S. Department of Labor’s Employee Benefits Security Administration (the “DOL”) released final regulations (the “Final Rules”) that are intended to be more supportive of ERISA fiduciaries considering environmental, social, and governance factors (“ESG”) in investment decisions as compared to the Trump administration’s 2020 regulations (the “2020 Regulations”). The Final Rules…
Fifth Circuit Rules that DOL Advisory Opinion Is Subject to Judicial Review and Invalidates DOL Advisory Opinion on Health Insurance
By Myron Rumeld, Tulio Chirinos & Jay Jensen on
On August 17, 2022, the U.S. Court of Appeals for the Fifth Circuit held that a Department of Labor (“DOL”) advisory opinion, which found that an insurance plan was not governed by ERISA, was unenforceable under the Administrative Procedure Act (“APA”). In doing so, the court ruled that the DOL advisory opinion constituted a “final…
Cryptocurrency in 401(k) Plans? Might be More Like “Crypto-nite,” Says the DOL in Its Latest Release
By Paul M. Hamburger & Andrea Ewalefo on
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)…
DOL’s Latest ESG Proposal: The More Things Change, the More They Stay the Same
On October 14, 2021, the U.S. Department of Labor’s Employee Benefits Security Administration (the “DOL”) published in the Federal Register a new proposed regulation (the “Proposed Rules”)[1] on fiduciary responsibility in selecting ERISA plan investments and exercising shareholder rights (proxy voting). The Proposed Rules reflect an effort to “warm” what the current DOL perceives…
Ninth Circuit Enforces Forum Selection Clause in 401(k) Plan
On April 1, 2021, the Ninth Circuit became the third circuit court to conclude that a forum-selection clause in an ERISA 401(k) plan is enforceable. The Ninth Circuit thus denied a petition for mandamus seeking to overturn a district court decision transferring an ERISA action from the Northern District of California to the District of…
Fifth Circuit Rules that Project Completion Bonus is Not an ERISA Severance Plan
By Seth Safra, Russell Hirschhorn & Sydney Juliano on
Whether a one-time payment of benefits constitutes an employee benefit plan under ERISA has been the source of some consternation in the courts for many years. The Fifth Circuit, in Atkins v. CB&I, LLC, recently had occasion to consider the issue and held that a bonus conditioned on completing a project was not an…
What Happens Abroad, Apparently Does Not Stay Abroad – DOL Revokes Trump Administration Guidance That Provided Relief to QPAMs for Convictions Under Foreign Law
On November 3, 2020, the U.S. Department of Labor’s Office of the Solicitor of Labor (the “DOL”) issued an opinion letter (the “2020 Letter”) to the Securities Industry and Financial Markets Association (“SIFMA”) stating that it would not view a conviction under foreign law as a disqualifying event under Prohibited Transaction Class Exemption 84-14 (the…