Fiduciary and ERISA Consulting

U.S. Supreme Court Considering Three ERISA Cases in October Term 2019

JOSEPH C. FAUCHER and BRIAN D. MURRAY, November, 2019 The Employee Retirement Income Security Act of 1974 (ERISA) has generated numerous U.S. Supreme Court decisions since its enactment, and this year’s term is no exception. The Court is currently considering three ERISA cases involving a range of significant issues. First, in Retirement Plans Committee of […]

Arbitrability of ERISA Fiduciary Breach Cases

JOSEPH C. FAUCHER and DYLAN D. RUDOLPH, February, 2019  This article was first published by the Journal of Pension Benefits: Issues in Administration, Design, Funding, and Compliance, Autumn 2018, Vol. 26, No. 1. Although the viability of arbitration rather than litigation in ERISA fiduciary breach claims remains to be seen, there are several considerations for employers who […]

IRS Rules That Student Loan Program under 401(k) Plan Does Not Violate the Contingent Benefit Rule, but Important Compliance Issues Are Left Unanswered

NICHOLAS J. WHITE, October, 2018   Research shows that student loan debt is now second only to mortgages in consumer debt. More than 44 million Americans owe collectively $1.5 trillion in student loan debt, with the average student in the Class of 2016 owing over $37,000. Many of these individuals cite their outstanding student loans (or […]

ERISA Stock Drop Cases Since Dudenhoeffer: The Pleading Standard Has Been Raised

JOSEPH C. FAUCHER AND DYLAN R. RUDOLPH, DECEMBER 13, 2017   This article analyzes the Dudenhoeffer pleading standard and “stock drop” cases. It was first published by Wolters Kluwer in the Journal of Pension Benefits, Spring 2017, Vol. 24, No. 3. I. Introduction  Before 2014, most of the federal Courts of Appeals applied a “presumption of prudence” when […]

DOL Fiduciary Rule – Still Very Much Alive

ROBERT R. GOWER, December 7, 2017   On November 29, 2017, the Department of Labor (the DOL) released a final rule (the “final rule”) extending the transition period for compliance with certain requirements of the Conflict of Interest Rulemaking package (commonly known as the “Fiduciary Rule”) by 18 months to July 1, 2019.1 While certain […]

Fiduciary Rule to Go Live June 9, 2017

NICHOLAS WHITE, ROBERT GOWER and ADRINE ADJEMIAN, May 2017    Following months of uncertainty stemming from a February 3, 2017, Presidential memorandum ordering the Secretary of Labor to conduct a review of the final fiduciary advice regulatory package (the “Final Rule”), including a 60-day delay in its applicability date, it seems all but certain the […]

DOL Issues Temporary Enforcement Policy Regarding the Fiduciary Rule

ROBERT R. GOWER, March 2017    On Friday, March 10, 2017, the Department of Labor (“DOL”) published on its website Field Assistance Bulletin 2017-01 (“the FAB”) providing a temporary enforcement policy for the DOL’s Fiduciary Rule and related Best Interest Contract Exemption (“BICE”). The Fiduciary Rule and BICE, which have become the subject of reevaluation […]

DOL Proposes a 60-Day Delay in Implementation of the Fiduciary Rule

NICHOLAS J. WHITE, February 2017    Just a few hours before our webinar on March 1st, entitled What Comes Next? — Lessons Learned & Practical Implications of the Fiduciary Rule Under Review, the Department of Labor (DOL) released a proposed rule extending the April 10th applicability date of the Fiduciary Rule (the “Rule”) by 60 […]

The Fiduciary Rule Is Under Review, but What Does that Mean?

ROBERT R. GOWER, February 2017   On Friday, February 3, 2017, President Trump signed an executive order calling for the United States Department of Labor (“DOL”) to review the DOL Fiduciary Rule (the “Rule”), which is scheduled (by its terms) to become applicable on April 10, 2017. The implications of the request for review may […]

Are Trustees’ Employees Fiduciaries Under ERISA?

JOSEPH FAUCHER, November 2016  ESOPs have been a “national project” of Department of Labor (DOL) enforcement since the 1980s. But unlike other regulatory agencies, the DOL has put off issuing clear guidance—other than a proposed regulation that has never been finalized—regarding how fiduciaries should meet the standards articulated in ERISA… Click to Read More.  Published […]

DOL Issues Final Fiduciary Rule

ADRINE ADJEMIAN, April 2016 – On Wednesday, April 6, 2016, the Department of Labor (DOL) issued a pre-publication version of its long-awaited controversial final fiduciary advice regulatory package. The package is scheduled for publication in the Federal Register on April 8, 2016. This rule is the first meaningful update to retirement advice regulations since 1975, […]

The DOL Clarifies Its Safe Harbor Guidance for Selecting Annuity Providers and Contracts for Defined Contribution Plans

NICHOLAS J. WHITE, October 2015 — In 2008, the Department of Labor (DOL) issued a safe-harbor regulation for plan investment fiduciaries regarding a prudent process for selecting and monitoring annuity providers and contracts for defined contribution plans (the “Safe Harbor Rule”). In Field Assistance Bulletin (FAB) 2015-2 (the “FAB”), issued this past summer, the DOL […]

DOL Proposed Fiduciary Rule: A Significant Second Take

ROBERT R. GOWER, May 2015 — After years back at the drawing board following the withdrawal of proposed fiduciary regulations issued in 2010, on April 20, 2015, the United States Department of Labor (“DOL”) issued a new proposed rulemaking package that more broadly defines the circumstances in which a person who provides “investment advice” may […]

A Win for Plan Sponsors: Supreme Court Upholds Plan’s Contractual Limitations Period in Heimeshoff Case

On December 16, 2013, the Supreme Court ruled in Heimeshoff v. Hartford Life & Accident Ins. Co., — S. Ct. —, 2013 WL 6569594 that a limitations period for bringing suit that is written into an employee benefit plan document, even a limitations period that starts to run before a cause of action accrues, is […]

Update: Ninth Circuit Revisits Harris v. Amgen

As reported in our August 1, 2013 newsletter, the U.S. Court of Appeals for the Ninth Circuit on June 4, 2013 reinstated an ERISA class action in Harris v. Amgen, Inc., 717 F.3d 1042 (9th Cir. 2013), alleging that the defendants breached their fiduciary duties by continuing to offer company stock in two company-sponsored plans […]

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