Blog

The ERISA world focused much energy and attention on the U.S. Supreme Court’s decision in Hughes v. Northwestern University, in which the Court reinstated a fiduciary suit against Northwestern University. In the aftermath of the Court’s decision, many analysts concluded that the decision would make life even more difficult for plan fiduciaries seeking to fend off litigation. However, in recent...

The Supreme Court’s decision leaves unanswered many difficult questions facing fiduciaries.

In recent settlements both the SEC and NYS Attorney General determined that TIAA misled participants and violated federal and state law. These settlements highlight the corrosive effects of conflicted retirement plan providers--who offer products and services that compete with (and are more profitable than) the services provided to employer-sponsored plans.

Once again, it’s time to talk about data and fiduciary responsibility. This is prompted by several recent events: The GAO issued a new report in February calling for more guidance from the Department of Labor on plan fiduciaries’ responsibilities with respect to cybersecurity and data protection. The report focused on two specific areas--clarifying fiduciary responsibility for cybersecurity risks and providing...

A recent court case (Wehner v Genentech) provides some potentially valuable insights into ways plan fiduciaries (and their attorneys) can approach fiduciary litigation. In order to fully understand the significance of this case, this blog will need to discuss some inside lawyer stuff; bear with me on this--it is key to understanding how to protect plan fiduciaries. The Motion to Dismiss...

Over the past few months the Department of Labor has issued three pieces of guidance that are (potentially) significant for plan sponsors and plan fiduciaries. These include final regulations describing new restrictions on the use of environmental, social and governance factors (“ESG”) in the selection of plan investments, an interpretative bulletin) containing new rules for plan fiduciaries with respect to proxy voting, and a class-wide prohibited transaction exemption permitting fiduciaries to receive (otherwise prohibited) forms of compensation--such as commissions. These three pieces of guidance may prove to be significant--if they are ever allowed to go into effect.

The Department of Labor’s efforts to define when an investment adviser is a plan fiduciary--and the standards that must be followed by investment fiduciaries-- have taken a new turn with the release of new guidance. Background Fiduciary status under ERISA represents a significant responsibility: fiduciaries must act for the “exclusive benefit” of participants and beneficiaries--considered the highest standard of responsibility...

The Department of Labor has issued new proposed regulations intended to guide plan fiduciaries seeking to invest in funds that utilize environmental, social and governance (“ESG”) considerations. In some ways, the proposed regulation rehashes some fundamental fiduciary principles: that in selecting investment options, fiduciaries must act for the “exclusive purpose” of providing benefits to participants. However, the proposed regulations targets...

On May 15 the Department of Labor finalized new “safe harbor” rules for the use of electronic media to provide documents required under ERISA. These new rules represent a potentially important easing of the efforts needed for plan administrators to meet disclosure obligations under ERISA. However, a more careful review of the rules raises significant questions about whether the new...

The SECURE Act (“Setting Every Community Up for Retirement Enhancement Act of 2019”) has now been signed into law and the benefits community is buzzing with opinions and planning ideas in response to the Act. This blog will provide a brief overview of key provisions of the Act and their potential implications. Multiple Employer Plans The costs and administrative burdens...