Fiduciary and ERISA Consulting

A Closer Look at Arbitration Provisions in ERISA Breach of Fiduciary Duty Claims

BRIAN D. MURRAY and ANGEL L. GARRETT, December 19 2023 As plan sponsors increasingly look to arbitration provisions to avoid costly class action litigation, courts across the nation have weighed in on whether plan-wide claims for breach of fiduciary duty under ERISA § 502(a)(2) can be subject to mandatory arbitration.  ERISA § 502(a)(2) provides that […]

INVESTMENT ADVICE FIDUCIARY RULE, ROUND THREE — Retirement Security Rule: Definition of an Investment Advice Fiduciary & Proposed Amendment to Prohibited Transaction Exemption 2020-02

YATINDRA PANDYA and ROBERT GOWER, November 30 2023 Introduction On October 31, 2023, the Department of Labor (DOL) released its proposed rule (the “Proposed Rule”) providing a draft new regulatory definition of an “investment advice fiduciary” under the Employment Retirement Income Security Act of 1974 (ERISA). The Proposed Rule breathes new life into the DOL’s […]

More Time to “Catch-Up”

ZACHARY ISENHOUR and ROBERT GOWER, August 29, 2023 On August 25, 2023, the Internal Revenue Service (IRS) released Notice 2023-62 (the “Notice”), providing eagerly awaited relief on the implementation timeline for the catch-up contribution provisions under Section 603 of the SECURE 2.0 Act of 2022 (“SECURE 2.0”). The catch-up contribution provisions under Section 414(v) of […]

Ninth Circuit Decision in AT&T Case Could Open Up Potential New Attacks on Retirement Plan Fiduciaries: What Fiduciaries Need to Know

DYLAN D. RUDOLPH and JOSEPH C. FAUCHER,  August 10, 2023 On August 4, 2023, the Ninth Circuit Court of Appeals revived a lawsuit against AT&T Services Inc. and its retirement plan fiduciaries (together, “AT&T”), reversing a district court’s order granting summary judgment in AT&T’s favor. This decision, which is published and binding on cases located […]

Reinterpreting ESG: DOL Releases Flexible Final Rule While Maintaining Long-Held Principles

ZACHARY ISENHOUR and ROBERT GOWER, November 29, 2022 On November 22, 2022, the United States Department of Labor (DOL) issued a new final rule (the “2022 Rule”) concerning climate change and environmental, social, and governance (ESG) considerations in selecting investments and exercising shareholder rights (including voting proxies) for plans subject to the Employee Retirement  Income […]

DOL Releases RFI on Possible Agency Actions to Protect Life Savings and Pensions from Threats of Climate-Related Financial Risk

YATINDRA PANDYA, May 26, 2022  On February 14, 2022, the Department of Labor (DOL) Employee Benefits Security Administration (EBSA), which is responsible for administering, regulating and enforcing the provisions of Title I of the Employee Retirement Income Security Act of 1974 (ERISA), published a Request for Information on Possible Agency Actions to Protect Life Savings […]

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 requirements […]

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 […]

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