Collection of Obligations under a MEWA

[Guest mcw]

ERISA §§ 515 & 502(g)(2) cover collection, attorney's fees, etc. for multiemployer plans. Is there a similar provision for a MEWA? It is my understanding that becuase the MEWA is not Union, it is not a multiemployer plan and therefore 515 would not apply. Am I correct?

[Ron Snyder]

For retirement plans, ERISA pre-empts state laws purporting to address the issues you raise. Since the Secretary of Labor has declined to assert ERISA pre-emption with respect to MEWAs, such state laws are not pre-empted.

Multiemployer plans are definitely collectively-bargained plans and would be regulated by the DOL. Multiple-employer plans are not collectively bargained and may be regulated by both the DOL and the states.

[KJohnson]

Interesting issues post-Great West. Years ago I represented MEWA's suing employers for delinqeunt contributions. We sued under ERISA 502(a)(3), obtained a judgment, and were typically successful in having the Court award fees under ERISA's discretionary standards. We argued that the the Congressional policy that mandates an award of fees in a multiemployer situation (515/502(g)(2)) counseled for a discretionary award in a multiple employer situation.

Now, post-Great West you would have to "re-think" the approach under 502(a)(3) and see if you could fashion your approach as one for equitable restitution or some other equitable cause of action.

You could put an attorneys' fees provision as part of your plan/trust and attempt to sue under state contract law. However, I think you may still run into problems. I have not reviewed all recent MEWA material, but it is my understanding that MEWA's are only exempt from preemption with regard to "laws that regulate insurance." If you are not suing under a law which regulates insurance you may still face preemption issues in a state law cause of action.