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Ruling Gives Ammunition in Fights Over Health Insurer Clawbacks

A recent ruling from a New Jersey federal district court gives ammunition to providers fighting to stop insurers from engaging in cross-plan offsetting, a common billing practice where health insurers attempt to claw back overpaid claim money from one patient by withholding payment from another patient in a different health plan.

The ruling—which found that the practice violates the Employee Retirement Income Security Act (ERISA)—could lead to more lawsuits and changes to plan documents. McDermott partner Judith Wethall said in a recent Bloomberg Law article the ruling was more significant than the U.S. Court of Appeals for the Eighth Circuit’s 2019 ruling in Peterson v. UnitedHealth Group, Inc.

Access the article.




Global Employment Law Update

Employment law continues to evolve, and it can be a challenge amid an ever-changing landscape of local employment laws for human resources executives and employment counsel at multinational businesses to maintain a consistent global corporate culture.

McDermott’s Global Employment Law Update brings you the key highlights from across Asia, Africa, Europe, Latin and North America. Developed in collaboration with peer firms operating in more than 50 countries, this resource guide contains summaries of the laws and significant court decisions that impacted employers and employees all over the world. It includes:

  • COVID-19 legislative updates
  • Remote work and telecommuting policies
  • Data privacy protections
  • Minimum wage and salary compensation updates
  • Changes to labor protection laws
  • Sexual harassment modifications

Access the report.




EBSA Privacy and Cybersecurity Guidance

Andrew C. Liazos, partner at McDermott Will & Emery, recently moderated an American Bar Association panel on the new cybersecurity guidance for retirement plan sponsors issued by the Department of Labor (DOL). The panel slides included 10 takeaways for the new DOL guidance.

Access the slides.

As a background, the DOL’s new guidance formalized its long-held view that retirement plan fiduciaries have an obligation to ensure proper mitigation of cybersecurity risks. More specifically, the DOL expects retirement plan fiduciaries to select and monitor the cybersecurity practices of their service providers.

The DOL guidance is in three parts.

  • The first part provides plan fiduciaries with a framework for reviewing a vendor’s cybersecurity practices.
  • The second part provides a robust list of cybersecurity “best practices” for record keepers and other vendors responsible for plan-related IT systems and data. For example, the DOL recommends that all retirement plan vendors with critical participant data conduct a reliable annual third-party audit of their security controls.
  • The third part provides security tips for participants and beneficiaries who manage their retirement accounts online.



Final Rule for Selecting Retirement Plan Investments Leaves “ESG” Behind

In recent guidance, the Department of Labor clarified the retirement plan standards for environmental, social and corporate governance (ESG) investing without mentioning the term ESG. The new guidance provides that, when selecting and monitoring plan investments, an Employee Retirement Income Security Act (ERISA) fiduciary must never sacrifice investment returns, take on additional investment risk or pay higher fees to promote non-pecuniary benefits or goals.

Teal Trujillo, an incoming associate in our Chicago office, also contributed to this On the Subject.

Access the article.




DOL Creates Path for 401(k) Plans to Offer Private Equity Investment Options

In June, the US Department of Labor issued an information letter indicating that it will allow defined contribution retirement plans (such as 401(k) plans) to indirectly invest in private equity funds. While information letters are not binding, this new guidance creates a significant opportunity for plan sponsors to consider investment options that include private equity funds. However, it will be important for both plan sponsors and funds to carefully evaluate potential investments for compliance with fiduciary requirements.

Access the article.




DOL Proposed Regulations on Proxy Voting

The Department of Labor (DOL) issued a proposed rule with 30-day comment period to address the application of fiduciaries’ duties with respect to proxy voting and exercises of other shareholder rights. The proposal requires fiduciaries to vote any proxy where the matter being voted upon would have an economic impact on the plan and prohibits fiduciaries from voting any proxy that does not have an economic impact on the plan. In our recent webinar, we reviewed the proposal and explained what the changes mean for plan sponsors.

View the slide deck here.




ESOP Litigants Play by Their Own Valuation Rules

Imagine if you were playing on a baseball team and the opposing players argue that you are violating the rules of soccer. That’s what it’s like when private parties and the Department of Labor (DOL) challenge Employee Stock Ownership Plan (ESOP) valuations. Plaintiffs play a very different valuation ballgame, which confounds experts who go up against them in a dispute involving allegations that an ESOP paid more than “fair market value” for stock of the sponsor company. In a recent webinar, McDermott attorney Richard Pearl discussed valuation concepts and some fundamental issues under the Employee Retirement Income Security Act.

Read more.




Updated PBGC Guidance for Defined Benefit Plans

Earlier this year, the US Pension Benefit Guaranty Corporation (PBGC) issued a final rule, modifying PBGC regulations that apply to defined benefit pension plans. Among those changes were revisions to: (i) the reportable event notification requirements; (ii) annual financial and actuarial information (Form 4010) reporting; (iii) single-employer plan termination rules; and (iv) the premium rate calculation rules. The rule was generally effective on March 5, 2020, but some provisions have different applicability dates.

Access the article.




How Advisers Serving MEPs and PEPs Can Be Conflicted

The most obvious potential conflict of interest for advisers setting up or serving pooled employer plans is if their practice is affiliated with the investments being selected—but there are other potential pitfalls to acknowledge.

In a recent article, Erin Turley, a partner with McDermott Will & Emery, said a potential conflict of interest for advisers to PEPs would be if they were acting as either a 3(21) or 3(38) fiduciary to help select investments and were paid from plan assets.

Access the article.




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