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14 Matching News Items

1.  Fifth Circuit Questions Standing of Parties Defending ACA
Katie Keith, in Health Affairs Forefront Link to more items from this source
June 28, 2019
"On June 26, 2019, the Fifth Circuit Court of Appeals asked the parties in Texas v. United States to respond to three questions ... [relating] to whether the Democratic attorneys general and House have standing to intervene in the case and, if not, what that means for the appeal.... To appeal a decision that the primary party (in this case, the Trump administration) does not challenge, an intervenor must independently demonstrate standing. If intervention is found to be improper, there will no longer be a party defending the ACA." [Texas v. Azar, No. 19-10011 (5th Cir. req. for supplemental briefs Jun. 26, 2019)]
2.  Text of Fifth Circuit Opinion Vacating DOL Fiduciary Rule (PDF)
U.S. Court of Appeals for the Fifth Circuit Link to more items from this source
Mar. 15, 2018
65 pages. "DOL has made no secret of its intent to transform the trillion-dollar market for IRA investments, annuities and insurance products, and to regulate in a new way the thousands of people and organizations working in that market. Large portions of the financial services and insurance industries have been 'woke' by the Fiduciary Rule and BIC Exemption. DOL utilized two transformative devices: it reinterpreted the forty-year old term 'investment advice fiduciary' and exploited an exemption provision into a comprehensive regulatory framework. As in the UARG case, DOL found 'in a long-extant statute an unheralded power to regulate a significant portion of the American economy.' And, although lacking direct regulatory authority over IRA 'fiduciaries,' DOL impermissibly bootstrapped what should have been safe harbor criteria into 'backdoor regulation.' ... The Fiduciary Rule thus bears hallmarks of 'unreasonableness' under Chevron Step Two and arbitrary and capricious exercises of administrative power. "DOL makes no argument concerning severability of the provisions making up the Fiduciary Rule and BICE exemption apart from the illegal arbitration waiver. In any event, this comprehensive regulatory package is plainly not amenable to severance. Based on the foregoing discussion, we REVERSE the judgment of the district court and VACATE the Fiduciary Rule in toto." [Chamber of Commerce of the United States of America, et al. v. DOL, No. 17-10238 (5th Cir. Mar. 15, 2018)]
3.  Texas District Court Rules Individual Mandate is Unconstitutional; White House States the Affordable Care Act Remains the Law of the Land
Accord Link to more items from this source
Dec. 16, 2018
"[T]he District Court ruled that the Individual Mandate was inseverable from the rest of the ACA so the District Court struck down the entire ACA. Subsequently, and most importantly for purposes of employer actions moving forward, the White House has stated that the ACA will remain the law of the land while the District Court decision is reviewed by the United States Court of Appeals for the Fifth Circuit and, then most likely, the Supreme Court of the United States.... [T]he District Court in Texas decided not to grant injunctive relief ... [which] could have invalidated the entire ACA in all 50 States immediately[.]" [Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018)]
4.  Text of Amicus Brief by American Benefits Council to Fifth Circuit on Application of Dudenhoeffer Pleading Standards to Stock-Drop Case (PDF)
American Benefits Council Link to more items from this source
Sept. 3, 2015
45 pages. "This case is important because this Court will be only the second Circuit Court of Appeal to interpret and apply the pleading standards articulated by the United States Supreme Court in [Fifth Third Bancorp v. Dudenhoeffer]. If this Court adopts Plaintiffs-Appellees' interpretation of the Dudenhoeffer pleading standards in employer plan 'stock-drop' suits, plan sponsors are more likely to discontinue offering company stock as an investment option, as their risk of ERISA liability, or the costs of defending claims, would be too great. This is true despite clear congressional support for including employer stock funds in retirement plans." [Whitley v. BP, No. 4:10-CV-4214 (S.D. Tex. Mar. 4, 2015; on appeal to 5th Cir.)]
5.  Supreme Court Opinion Dissolving Injunctions Prohibiting Enforcement of CMS Vaccine Mandate for Healthcare Workers (PDF)
Supreme Court of the United States Link to more items from this source
Jan. 13, 2022
23 pages. "[We] agree with the Government that the Secretary's rule falls within the authorities that Congress has conferred upon him.... The Secretary of [HHS] determined that a COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.... He accordingly concluded that a vaccine mandate is 'necessary to promote and protect patient health and safety' in the face of the ongoing pandemic.... The rule thus fits neatly within the language of the statute.... "We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19.... "The District Court for the Eastern District of Missouri's November 29, 2021, order granting a preliminary injunction is stayed pending disposition of the Government's appeal in the United States Court of Appeals for the Eighth Circuit and the disposition of the Government's petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court. "The District Court for the Western District of Louisiana's November 30, 2021, order granting a preliminary injunction is stayed pending disposition of the Government's appeal in the United States Court of Appeals for the Fifth Circuit and the disposition of the Government's petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court." [Biden v. Missouri; Becerra v. Louisiana, Nos. 21A240 and 21A241 (S. Ct. Jan. 13, 2022; per curium; Justices Thomas, Alito, Gorsuch and Barrett dissent)]  
6.  ACLJ Secures Fifth Injunction Against HHS Mandate
American Center for Law and Justice [ACLJ] Link to more items from this source
Mar. 31, 2013
"[T]he United States Court of Appeals for the District of Columbia Circuit [has] granted an injunction in favor of ... Frank and Phil Gilardi and their two companies, preventing application of the HHS Mandate against them until their appeal is fully resolved. The Mandate was set to apply on April 1st, when the companies' health plans were to be renewed."
7.  Beneficiary Designation Dispute Offers Harsh Reminder Concerning Preventable Plan Administration Expenses
Spencer Fane Link to more items from this source
Nov. 18, 2012
"The plan administrator therefore had to decide which of these two groups was entitled to split Mr. Hunter's money. If the stepsons were his 'children' under the plan, they would be his beneficiaries. If not, then his siblings would receive the benefit. The plan's ambiguity as to the definition of this single word ('children') caused the administrator and sponsor to be dragged into court. The litigation lasted several years, leading all the way to the United States Court of Appeals for the Fifth Circuit -- just one step short of the U.S. Supreme Court."
8.  Avoiding Retaliation Claims Under the Family Medical Leave Act
Jackson Walker Link to more items from this source
Aug. 24, 2021
"The United States Court of Appeals for the Fifth Circuit recently issued two decisions ... which highlight the robustness of the FMLA's anti-retaliation provision, simultaneously emphasizing to employers the importance of avoiding retaliatory conduct under the FMLA." [Lindsey v. Bio-Medical Applications of Louisiana, L.L.C., No. 20-30289 (5th Cir. Aug. 16, 2021); Campos v. Steves & Sons, Inc., No. 19-51100 (5th Cir. Aug. 16, 2021)]
9.  Text of DOL Final Regs: Conflict of Interest Rule -- Retirement Investment Advice: Notice of Court Vacatur (PDF)
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL] Link to more items from this source
June 29, 2020
21 pages. "This document implements the vacatur of the Department's 2016 final rule defining who is a 'fiduciary' under [ERISA] and the Internal Revenue Code ... and reinstates the regulation at 29 CFR 2510.3-21 as it existed before being amended by the 2016 final rule. This document also reflects the removal of two prohibited transaction exemptions (PTEs 2016-01 and 2016-02) published with the 2016 final rule and the return of the amended prohibited transaction exemptions (PTEs 75-1, 77-4, 80-83, 83-1, 84-24, and 86-128) to their pre-amendment form. In addition, this document reinstates in the CFR Interpretive Bulletin 96 -1, which had been removed and largely incorporated into the text of the 2016 final rule. These revisions are ministerial to conform the contents of the Code of Federal Regs and the text of the Department's prohibited transaction exemptions to the vacatur ordered by the United States Court of Appeals for the Fifth Circuit on June 21, 2018, in Chamber of Commerce v. DOL[.]"
10.  Text of Ninth Circuit Opinion Amending Harris v. Amgen in Consideration of Supreme Court's Dudenhoeffer Decision (PDF)
U.S. Court of Appeals for the Ninth Circuit Link to more items from this source
May 27, 2015
63 pages. Excerpt from the syllabus: "In the amended opinion, on remand from the United States Supreme Court for reconsideration in light of Fifth Third Bancorp v. Dudenhoeffer, the panel reversed the district court's dismissal of a class action brought by current and former employees of Amgen, Inc., and an Amgen subsidiary under [ERISA], alleging breach of fiduciary duties regarding two employer-sponsored pension plans.... The panel held that the plaintiffs sufficiently alleged that the defendants violated their duty of loyalty and care by failing to provide material information to plan participants about investment in the Amgen Common Stock Fund. Agreeing with the Sixth Circuit, the panel held that the defendants' preparation and distribution of summary plan descriptions, including their incorporation of Amgen's SEC filings by reference, were acts performed in their fiduciary duty. The panel also reversed the dismissal of derivative claims, as well as a claim that the defendants caused the plans directly or indirectly to sell or exchange property with a party-in-interest." [Harris v. Amgen, No. 10-56014 (9th Cir. May 26, 2015)]
11.  Recent Case Highlights Split of Authority on Whether Corporate Agreements Can Amend Employee Benefit Plans
McDermott Will & Emery Link to more items from this source
May 15, 2012
"In Sterling Chemicals v. Evans, the U.S. Court of Appeals for the Fifth Circuit found that a paragraph in an asset purchase agreement satisfied the technical requirements for an employee benefit plan amendment, [and even though] it did not state it was intended to amend the plan....[the language] did, in fact, serve to amend the benefit plan.... [T]he First and Sixth Circuits have held that a corporate agreement cannot amend an employee benefit plan without explicitly setting forth the intent to do so. Last month, the Supreme Court of the United States declined to review the Sterling decision, so the question of whether and how a corporate agreement may amend an employee benefit plan will continue to be an issue that employers must consider when drafting and reviewing corporate agreements."
12.  Health Plans' Anti-Assignment Clauses Upheld by Two More Federal Appellate Courts
Spencer Fane Link to more items from this source
May 21, 2018
"Over the past two months, the United States Court of Appeals for both the Ninth Circuit and the Third Circuit have upheld 'anti-assignment' clauses in ERISA-governed health plan documents. These holdings -- which adopt the same position previously taken by the First, Second, Fifth, Tenth, and Eleventh circuits -- are a blow to healthcare providers that attempt to bring suits against employer-sponsored health plans (or the insurance companies funding benefits under those plans) as 'assignees' of individual plan participants."
13.  Ding Dong, the DOL Fiduciary Rule Is (98%) Dead
InsuranceNewsNet.com Link to more items from this source
May 2, 2018
"The Fifth Circuit Court of Appeals rejected last-minute appeals by AARP and three states to intervene and re-argue the need to save the controversial [DOL] fiduciary rule.... The federal government ... opted not to appeal the ruling ... Denying the AARP and states' motions essentially kills the DOL rule for good. The court could decide to re-hear the case on its own, which seems unlikely.... [T]he government has until June 13 to ask the Supreme Court of the United States to take the case. That also seems highly unlikely."
14.  Court Upholds Eroding Defense Expense Provision; ERISA Exclusion Bars Coverage for Constitutional and Statutory Civil Rights Claims
Wiley Rein LLP Link to more items from this source
Mar. 31, 2017
"A number of underlying lawsuits were brought against the insured alleging that it underfunded its retirement plan and trust. The suits alleged beaches of contract and fiduciary duty, as well as violations of the Mississippi and United States constitutions and 42 U.S.C. Section 1983. The insurer defended the insured under a reservation of rights. The insurer then filed an action seeking a declaration that defense costs were included in the limit of liability and that no coverage existed under the EPL coverage part due to the Employee Benefits Law Exclusion.... On appeal, the Fifth Circuit recognized that defense costs erode the limit of liability under the plain language of the policy.... The court further held that the Employee Benefit Law Exclusion barred coverage for claims not only under ERISA and related laws but also based on federal and state constitutions and statutes, including Section 1983 claims." [Federal Ins. Co. v. Singing River Health Sys., No. 15-60876 (5th Cir. Mar. 1, 2017)]

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