McDermott Will & Emery’s Michael B. Kimberly, Sarah P. Hogarth and Andrew C. Liazos, are co-counsel on a petition for certiorari before the Supreme Court of the United States on behalf of the ERISA Industry Committee (ERIC). The petition calls for review of ERIC’s legal challenge to the City of Seattle’s hotel healthcare “play or pay” ordinance. The ordinance mandates hospitality employers make specified monthly healthcare expenditures for their covered local employees if their healthcare plans do not meet certain requirements. The petition demonstrates that Seattle’s ordinance is a clear attempt to control the benefits provided under medical plans in violation of the preemption provision under the Employee Retirement Income Security Act of 1974, as amended (ERISA). This case is of significant national importance. Several other cities have proposed making similar changes, and complying with these types of ordinances will substantially constrain the ability of employers to control the terms of their medical plans on a uniform basis. ERIC’s petition is joined by several trade associations, including the US Chamber of Commerce, the American Benefits Council and the Retail Industry Leaders Association.
McDermott Will & Emery’s Andrew C. Liazos, Michael B. Kimberly and Charlie Seidell recently filed an amicus brief in the US Court of Appeals for the 10th Circuit on behalf of the ERISA Industry Committee (ERIC). McDermott filed the brief in response to a US Department of Labor (DOL) amicus brief that advanced a novel interpretation of its regulations which, if adopted through litigation, would change longstanding procedures for benefit determinations under self-funded medical plans sponsored by large employers. The amicus brief focuses on key arguments against the DOL’s attempted regulatory reinterpretation, including that:
- DOL may not rewrite its regulations outside of notice-and-comment rulemaking;
- DOL’s interpretation of its own regulations is inconsistent with the plain text of the regulations;
- There are good policy reasons underlying differential treatment of healthcare and disability benefits determinations; and
- DOL’s interpretation of the regulations in its amicus brief is not entitled to deference under the Supreme Court decision in Kisor.
On October 12, 2017, McDermott Will & Emery filed a lawsuit on behalf of The ERISA Industry Committee (ERIC) challenging new reporting requirements under Oregon law as applicable to retirement plans subject to ERISA. Below is a press release from ERIC and Q&As regarding this litigation.
OregonSaves is the state of Oregon’s state-run retirement program that automatically enrolls employees of employers into individual retirement arrangements (IRAs). Unless an employee opts out of OregonSaves, a portion of each paycheck is added to an IRA account in the employee’s name. Oregon is the first state to establish an auto-enrollment IRA program.
An employer that offers a qualified plan is not required to participate in OregonSaves, but only if it has a valid and current certificate of exemption. Obtaining this exemption depends upon reporting to the state of Oregon regarding an employer’s qualified plan. For employers with 100 or more employees in Oregon, this filing is due by November 15, 2017. The ERIC lawsuit alleges that ERISA’s express preemption provision preempts this reporting requirement.
This is the latest action by a state to impose reporting requirements on ERISA covered plans. Previously the state of Vermont (and other states) sought to require ERISA medical benefit plans to report their claims experience for purposes of compiling a so-called All Payor Claims Database (APCD). In the 2016 case of Gobeille v. Liberty Mutual Insurance Company, the US Supreme Court held that ERISA preempted Vermont’s APCD reporting requirement.
ERIC supports state auto-enrollment programs intended to increase access to retirement savings plans if such programs do not infringe on employers that already provide ERISA-governed retirement plans. Tracking and complying with additional reporting burdens imposed by state-run retirement plans on a state by state basis would be unduly burdensome for employers.
There has been some prominent coverage on this case, including Industry group sues over Oregon retirement plan, Employers sue to block OregonSaves requirements, ERIC files lawsuit against Oregon Retirement Savings Board, ERISA Industry Committee sues to stop OregonSaves reporting demands and Oregon’s retirement-savings plan faces legal challenge. The team will continue to monitor and provide regular updates.
As previously described in this blog earlier this year, a divided Seventh Circuit panel reversed summary judgment in favor of Kraft Foods Global, Inc. in a class action involving allegedly excessive fees in the Kraft 401(k) plan. Shortly thereafter, Kraft petitioned for rehearing of the case by the entire Seventh Circuit Court of Appeals en banc. Further, a “friend of the court” brief submitted jointly by The ERISA Industry Committee (ERIC), the American Benefits Council (ABC), the Profit Sharing/401k Council of America (PSCA), and U.S. Chamber of Commerce urged the Seventh Circuit to rehear the case en banc.
However, on May 26, 2011, in a single page opinion, the Seventh Circuit denied Kraft’s motion, noting that no judge in active service for the Seventh Circuit requested a vote on the petition for rehearing en banc and that the original three judge panel voted 2-1 against rehearing the case – the same split as in the panel’s original order reversing summary judgment.
As a result, the Seventh Circuit’s original order reversing summary judgment will likely be the “go-to” cite for plaintiffs’ attorneys seeking to escape summary judgment on excessive fee claims. However, as noted by the dissent in that order, the Seventh Circuit’s decision “will only serve to steer [fiduciaries’] attention toward avoiding litigation instead of managing employee wealth.”