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It's Time for Financial Advice Industry and Regulators to 'Pick a Lane'

"Why is the SEC living in the land of ambiguity? Lead, follow, or step aside.... Ken Fisher ... nailed it in his recent interview ... 'financial advice industry needs "disharmonization",' 'clear, bright, red lines so investors know exactly what they are getting. Advisers versus Advisors language is a start.' ... [The SEC shouldn't] do this in tentative baby steps. Pick a lane, folks."

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DOL Tells Plan Fiduciaries to Stay in Their Lane Regarding ESG Investing

"[W]hile the proposed rule, if adopted, will increase fiduciary pressure for U.S.-based benefit plan investors, it will not directly impose requirements on most external public investment vehicles ... Moreover, absent action by States, it will not apply to state-managed pension funds ... By essentially assuming that ESG factors are non-pecuniary and requiring that their pecuniary nature meet generally accepted investment theories, the proposed rule could inadvertently create support for integrated reporting."  MORE >>

Life (Insurance) in the Fiduciary Lane

"[A] new amendment to the New York State Department of Insurance Regulation [imposes] a mashup of the infamous DOL Rule and the recent SEC regulatory proposals on life insurance salespeople operating in their state. The word 'fiduciary' doesn't appear anywhere. But the gist of the new rules is that life and annuity recommendations, if they are made inside the borders of the Empire State, now have to be in the best interests of the customer. Whoever wrote these regulations knows full well that the life insurance 'advisor' is actually selling products."  MORE >>

401(k) Contribution Limits: A Walk Down Memory Lane

"[T]he 401(k) plan has become the primary tax-deferral retirement savings vehicle in the United States... [This article looks] at the historical limits [to] see how they have evolved from allowing employees to defer up to the annual addition limit to limiting employee contributions to a portion of the permitted contribution total, then gradually increasing the gap between the total contribution limit and the deferral limits."  MORE >>

DB Plan Lump-Sum Payouts Move Into Fast Lane

"The increase in lump-sum payment offers to vested participants in defined benefit plans comes after this summer's highway law allowed more plan sponsors to offer lump-sum payouts than were permitted under the Pension Protection Act. It also included future hikes in premiums.... Employers see cutting the number of participants results paying less in premiums."  MORE >>

Social Security in the Slow Lane - An Analysis of Benefits

Excerpt: Social Security benefits are based on the amount you earn over the course of your career. In calculating benefit amounts, the Social Security Administration considers the 35 years in which you earned the most money, after your earnings are adjusted for inflation.  MORE >>

Report: Health Care in the Express Lane -- The Emergence of Retail Clinics (PDF)

31 pages. Excerpt: This report examines this innovation from a national and California perspective. It provides an overview of in-store clinics and converging trends in retail and health care, and explores the potential for these clinics to succeed as a viable business model.

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District Court Provides Roadmap for Opposing Grant of Attorney Fees Even When Court Grants Benefit Claim

"Should plaintiffs always recover attorney fees when the ultimate decision to deny benefits 'was a close call' …and both sides' positions had merit? No. And this new case explains the point." [Messing v. Provident Life and Accident Ins. Co., No. 20-0351 (W.D. MI Aug. 25, 2023)]  MORE >>

Sixth Circuit: Responding to Procedural Objections to Claim Procedures

"This new case highlights the arguments Plaintiffs' may make in challenging claims handling, and how the Sixth Circuit rejected those arguments." [Avery v. Sedgwick Claims Management Services, Inc., No. 22-1960 (6th Cir. July 24, 2023; unpub.)]  MORE >>

Sixth Circuit Describes Plaintiffs' High Burden of Proof to Establish 'Continuous' Disability During the Elimination Period

"This new Sixth Circuit case explains: the very high burden of proof a Plaintiff must meet to establish 'continuous' disability during the Elimination Period; and when medical evidence obtained after the Elimination Period cannot satisfy the Plaintiff's burden to prove disability during the Elimination Period." [Tranbarger v. Lincoln Life & Annuity Co. of New York, No. 22-3369 (6th Cir. May 18, 2023)]

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How Much Weight Do Independent Doctor Paper Reviews Get, and Should Rule 52 Bench Trials Be Used to Resolve De Novo Review Cases

"A new case highlights that, in cases applying de novo review, Rule 52 bench trials should be used -- especially when there are factual debates on the diagnosis or severity of impairment of a claimant.... [The case also] highlights that Independent Medical Exams (IME) may be needed more frequently, at least in the Fourth Circuit, due some overly broad language in the opinion concerning the weight to be given 'paper reviews.' " [Tekmen v. Reliance Standard Life Ins. Co., No. 20-1510 (4th Cir. Dec. 16, 2022)]

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Ninth Circuit: Why Denial Letters Must Include All Rationale to be Asserted in Litigation

"[T]his new Ninth Circuit decision indicates for the first time that it is 'clear error' for a district court to adopt 'newly presented rationale when applying de novo review.' Even rationale focused on a claimant's credibility must be affirmatively stated in the claim denial, if considered, or it will be deemed a 'newly presented rationale' and must be excluded from consideration by the district court if asserted in the litigation." [Collier v. Lincoln Life Assurance Company of Boston, No. 21-55465 (9th Cir. Nov. 21, 2022)]

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Ninth Circuit: Denial Letters Must Include All Rationale to Be Asserted in Litigation

"[T]his new Ninth Circuit decision indicates for the first time that it is 'clear error' for a district court to adopt 'newly presented rationale when applying de novo review.' Even rationale focused on a claimant's credibility must be affirmatively stated in the claim denial, if considered, or it will be deemed a 'newly presented rationale' and must be excluded from consideration by the district court if asserted in the litigation." [Collier v. Lincoln Life Assurance Company of Boston, No. 21-55465 (9th Cir. Nov. 21, 2022)]  MORE >>

Fifth Circuit: District Court Must Remand Claim Back to the Administrator

"Sometimes an ERISA-governed disability benefit claim is denied on a specific issue that precludes the need for a full development of the record on the merits of the claim. E.g., claimant was not eligible for benefits because he was not a full-time employee at the time of disability. But when should courts order remand, after determining the claimant may be eligible for benefits? This new decision provides some helpful guidance." [Newsom v. Reliance Standard Life Ins. Co., No. 20-1994 (5th Cir. February 18, 2022)]  MORE >>

Responding to ERISA Claims: Why You Should Bring Rule 52 Motions Instead of Rule 56 Summary Judgment Motions

"[A] new case highlights why Rule 52 motions may be the preferred motion to efficiently resolve ERISA benefit claims.... In most circuits, with cases involving de novo review, the safer practice is to bring Rule 52 motions for judgment, which allows the court to assess the weight and credibility of the evidence and requires the court to issue findings of fact and conclusions of law." [Avenoso v. Reliance Standard Life Ins. Co., No. 21-1772 (8th Cir. Nov. 30, 2021)]

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Fifth Circuit: Plan Administrators Do Not Waive Exclusions That Develop as a Result of Court Decisions Affecting the Disability Claim

"What happens when an ERISA-governed disability claim is denied solely under the 'own occupation' provision, but a reviewing district court concludes the claimant is entitled to 'own' occupation benefits? Does an insurer 'waive' an evaluation of the 'any occupation' provision because the insurer denied the claim solely on the 'own occupation' standard? ... Can the district court evaluate and award continued benefits under the 'any occupation' standard when the insurer has not yet made that assessment?" [Martinez v. Standard Ins. Co., No. 20-10475 (5th Cir. Oct. 5, 2021; unpub.)]

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District Court Finds Repeated Calculation Errors Do Not Involve 'Fiduciary Duties'

"[W]hen Aetna discovered its repeated calculation errors and overpayment, it began reducing monthly payments to Morris. Morris sued alleging she was entitled to the higher benefit, and also asserted an ERISA 502(a)(3) claim seeking equitable remedies, like estoppel and waiver, claiming Aetna breached its fiduciary duties to her." [Morris v. Aetna Life Ins. Co., No. 20-821 (C.D. Cal. Aug. 9, 2021)]

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Using the 'National Economy Standard' to Defeat Disability Claims

"What happens when the claimant is 'disabled' from performing her job with her current employer… but can perform that same job with another employer? This issue highlights the importance of the 'national economy' definition of disability as found in most long term disability policies.... (This decision also provides good defense responses to criticisms of benefit denials based solely on medical record reviews rather than independent medical exams.)" [Holden v. Unum Life Ins. Co. of America, No. 20-6318 (6th Cir. Jul. 8, 2021; unpub.)]  MORE >>

Benefits at Tiffany's: Equitable Relief Under ERISA 502(a)(3) Does Not Support Money Damages

"You know that a claimant must exhaust administrative remedies before filing a suit. But is an appeal 'optional' when the denial letter says that claimant 'may request a second level review'? ... And what's with 502(a)(3) breach of fiduciary claims anyway?" [Benson v. Tiffany and Company SPD, No. 20-1289 (S.D.N.Y. May 10, 2021)]  MORE >>

Awarding Attorney Fees to the Plan When Plaintiff Refuses to Drop Suit After Reinstatement of Benefits

"What happens when the ERISA claimant files suit after the disability claim has been denied, and then the ERISA claims administrator reinstates benefits retroactively? Doesn't reinstatement 'moot' the issues in the lawsuit, or make claims regarding future benefits unripe -- requiring dismissal of the suit? YES it should. And a Plaintiff's decision to continue the case after reinstatement may expose the plaintiff to an award of attorney fees to the defendant." [Peer v. Liberty Life Assurance Co. of Boston, No. 19-13974 (11th Cir. Apr. 6, 2021)]  MORE >>