Publications

Roundup of Annual Funding Notice Requirements for Defined Benefit Plans: Single-Employer, Multiemployer and SFA Plans

To enhance retirement security and increase transparency, Defined benefit plans covered by the Pension Benefit Guaranty Corporation (“PBGC”) are required to timely furnish an annual funding notice (“AFN”) to participants, beneficiaries, the PBGC and certain other persons for the purposes of enhancing retirement security and increasing transparency by ensuring that workers receive timely and accurate information regarding the funded status of their pension plans.  The AFN must disclose certain information regarding the plan’s funded status, as set forth in Section 101(f) of ERISA, including, among other things, the plan’s funded percentage, assets and liabilities, funding and investment policies, and participant and beneficiary demographics. Recent legislative and regulatory developments, including the American Rescue Plan Act of 2021 (“ARPA”) and the SECURE 2.0 Act of 2022 (“SECURE 2.0”), have significantly updated the AFN requirements, particularly for plans receiving Special Financial Assistance (“SFA”) under ARPA. This article outlines the key changes made to

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Cryptocurrency No Longer a Non-Starter for 401(k) Plans – Real World Implications

On May 28, 2025, the U.S. Department of Labor Employee Benefits Security Administration (EBSA) released its first compliance assistance bulletin under the new presidential administration, Compliance Assistance Release No. 2025-01 (the “New Guidance”), announcing and memorializing EBSA’s revocation of its 2022 guidance cautioning against 401(k) plan investments in cryptocurrencies (Compliance Assistance Release No. 2022-01 (the “Prior Guidance”). The Prior Guidance was issued by EBSA during the last presidential administration in response to a growing number of firms marketing cryptocurrencies as potential 401(k) plan investment options. Citing concerns that cryptocurrencies may have volatile returns, are subject to an evolving regulatory environment, present unique challenges for participants in making informed investment decisions, and have unique custodial, recordkeeping and valuation concerns, EBSA cautioned plan fiduciaries to exercise “extreme care” before considering adding a cryptocurrency to a 401(k) plan investment menu. Notably, in light of EBSA’s concerns, the Prior Guidance warned plan fiduciaries that

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The Agencies Press Pause on the 2024 Final MHPAEA Rule

On May 15, 2025, the Departments of Labor, Health and Human Services, and the Treasury (collectively, the “Departments”) announced a pause in enforcement of the final rule (the “2024 Final Rule”) to the Mental Health Parity and Addiction Equity Act (“MHPAEA”). The 2024 Final Rule was issued in September 2024, and imposed significant new compliance requirements on plan sponsors. The Departments also announced that they would be undertaking a broad reexamination of each Departments’ enforcement approach under MHPAEA. This pause was not unexpected,  as it had been telegraphed a week earlier in a filing by the federal government in a lawsuit challenging the 2024 Final Rule. Below is an overview of this enforcement pause and what it means for plan sponsors. 2024 Final Rule  The 2024 Final Rule amended prior MHPAEA regulations issued in 2013 (the “2013 Final Rule”) and added new rules implementing the nonquantitative treatment limitation (“NQTL”) comparative

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District Court Invalidates Part of the Procedure for Assessing the ACA’s Employer Mandate Penalty

In a decision with far-reaching implications, the U.S. District Court for the Northern District of Texas, issued a decision in Faulk Company, Inc. v. Xavier Becerra et al., invalidating an assessment against Faulk Company for failure to provide its employees with health coverage.​ This assessment, called an Employer Shared Responsibility Payment (“ESRP”), is an excise tax that is assessed against employers of a certain size who fail to offer their full-time employees health coverage that meets applicable requirements of the Affordable Care Act (“ACA”). More importantly, the Court also invalidated the regulations by which the Internal Revenue Service (“IRS”) assesses the ESRP. If not overturned by an appellate court, this decision could arguably result in the invalidation of all ESRPs previously assessed by the IRS. The Court’s decision relies on an interpretation of the interaction between two provisions of the ACA, each under the jurisdiction of a different agency: (i) Section

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ERISA and Prescription Drug Costs: The Latest on Fiduciary Breach Class-Action Lawsuits

Lawsuits over what ERISA group health plans pay for prescription drugs continue full speed ahead, with plaintiffs in Lewandowski v. Johnson & Johnson filing an amended complaint to try to shore up standing, a dismissal in the lawsuit against Wells Fargo, and a new case filed against JPMorgan landing in court just this month. For prior Trucker Huss alerts on the original Lewandowski complaint and the court’s dismissal, see https://www.truckerhuss.com/2024/03/the-cost-of-drugs-johnson-johnson-lawsuit-could-signal-the-opening-of-a-new-area-of-erisa-class-action-litigation-against-health-plan-fiduciaries and https://www.truckerhuss.com/2025/01/lewandowski-v-johnson-johnson-unable-in-first-try-to-pursue-fiduciary-breach-claims-for-high-costs-of-drugs. Lewandowski v. Johnson & Johnson In early 2024, plaintiff Ann Lewandowski filed a class action lawsuit against Johnson & Johnson (J&J) and the fiduciaries of J&J’s prescription drug benefits program (the “J&J Defendants”) in the District of New Jersey (the “Court”). Lewandowski’s claims were premised on an alleged violation of ERISA’s fiduciary duty of prudence. At a high level, Lewandowski claimed that the J&J Defendants acted imprudently by failing to manage the drug costs of two J&J-sponsored health plans. The initial complaint contained many allegations,

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Supreme Court Puts To Rest the Pleading Standard in ERISA Prohibited Transaction Cases And Opens The Door To More Litigation

Over the past two decades, a lot of (very expensive) ink has been spilled in courts around the country in ERISA litigation cases regarding a single question: how much does a plaintiff need to say in a complaint alleging that a prohibited transaction has occurred, to survive an early motion to dismiss? The question seems very academic, at first, but the answer has significant implications for sponsors and fiduciaries of employee benefit plans. On April 17, 2025, a unanimous Supreme Court weighed in, resolved a split between federal circuit courts and put the issue to rest, concluding that plaintiffs alleging violations of ERISA’s prohibited transaction provisions need not plead facts to show that service provider arrangements are unreasonable, but rather that it is the burden of defendants to plead and prove that arrangements between plans and service providers are reasonable and no more than reasonable compensation is paid for those

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