"The Seventh Circuit Court of Appeals will hear oral arguments on the remanded case from the Supreme Court on the morning of Tuesday, November 29. It is the long-awaited opportunity to learn how the Seventh Circuit will respond to the Hughes v. Northwestern January decision by the Supreme Court. The argument is more compelling now that the Seventh Circuit has issued the Oshkosh decision in which it rejected similar claims of excessive recordkeeping and investment fees in a plan with actively managed fees that were above the industry average." [Hughes v. Northwestern Univ., No. 19-1401 (S. Ct. Jan. 24, 2022; remanded to 7th Cir. Divane v. Northwestern Univ, No. 18-2569)]

"The new PCORI fee for policy and plan years that end on or after October 1, 2022, and before October 1, 2023, is $3.00; an increase of $.21 per covered life assessed on or after October 1, 2021, and before October 1, 2022 ($2.79)."

"Regarding fiduciary duties as they relate to voting of proxies on securities held in employee benefit plan investment portfolios and exercising other shareholder rights, the final rule is substantially similar to the proposal, with some minor changes.... The proxy voting provisions may impact ERISA health and welfare plans that hold corporate stock. This includes: Health plans that hold corporate stocks directly. Stocks held by health plans that participate in certain ERISA-covered intermediary investment arrangements"

"There is a big problem at the heart of ESG -- there is no way you can measure how well the ESG scores measure anything. At least with credit scores, one can check default and delinquency rates. ESG scores don't really have an external result you can check against."

"The environmental, social and governance movement's noble intentions are running into stiff resistance with growing backlash while a [DOL] rule moves ahead that would allow limited ESG goals in investing.... The [SEC] missed its October deadline for finalizing [its] rule because it was inundated with comments and had to reopen the comment period because of a system glitch. The SEC is also reviewing the implications of the West Virginia v. Environmental Protection Agency case, which limited the reach of government agencies.... Meanwhile, ... states are getting into the fray by restricting investments of public pensions under their purview."

"[T]he self-correction contemplated by the VFCP update differs from the self-correction afforded under EPCRS, because it would still require a submission to the DOL -- albeit a streamlined one.... The DOL pointed out that the VFCP still does not include a correction for delinquent matching employer contributions, which are operational failures under the Internal Revenue Code (rather than fiduciary breaches under ERISA) for which correction is only available under EPCRS."

"The information on Form 5498 is submitted to the IRS by the trustee or issuer of your individual retirement arrangement (IRA) to report contributions, including any catch-up contributions, required minimum distributions (RMDs), and the fair market value (FMV) of the account."

"In addition to allowing for self-correction, the proposed amendments would clarify that certain transactions are eligible for correction under the VFCP, expand the scope of other transactions that are eligible for correction, and simplify certain administrative or procedural requirements for participation in and correction of prohibited transactions under the VFCP.... [T]he proposed amendments would allow for VFCP excise tax relief even if the applicant had received relief under the VFCP within the prior three years."

"Relying on the governor's Nov.11, 2022, modification of his emergency declaration to 'refocus the state's efforts on recovery and incorporate Respiratory Syncytial Virus (RSV), influenza, and other respiratory illnesses in Colorado into the disaster declaration,' the CDLE clarified that 'means [employees] can use their 80 hours for a broader range of conditions' than just COVID, including 'flu, respiratory syncytial virus ('RSV'), and similar respiratory illnesses.' "

"The 2022 IRS Required Amendments (RA) List (Notice 2022-62) identifies no changes in statutory or regulatory requirements for individually designed retirement qualified and ... Section 403(b) retirement plans. This means most employers will not have a Dec. 31, 2024, deadline for required amendments."

"[C]areer development is emerging as a space that leaders need to consider and take seriously as they develop their approach to total rewards.... [N]early 1 in 5 employees reported prioritizing careers and career growth above all other things -- including pay, benefits, emotional wellbeing and social responsibility."

"The Final Rule addresses how plan sponsors can respond to participant demand for ESG investment options by adding a new provision that says plan fiduciaries do not violate their duty of loyalty under ERISA solely because they take participants' preferences into account when constructing a menu of prudent investment options.... This new language may ease the decision-making process for plan sponsors where the participant population wants the opportunity to invest in alternative assets, whether that is private equity, hedge funds, impact investments, or cryptocurrency."

"[T]he federal government is expected to stop purchasing and distributing vaccines for free as early as January 2023. Pharmaceutical companies are expected to set new prices for the commercial market. Plans need time to fully negotiate costs with manufacturers, pharmacies and wholesalers. Administration oversight and action will be important to avoid inflated costs. A clear picture of frequency of vaccines and boosters will be key in supporting effective price negotiations."

"A DB plan calendar provides key 2023 dates for plan years starting Jan. 1. A separate DC plan calendar supplies 2023 deadlines for plan years starting Jan. 1."

"In this post, [the authors] examine the implied interest rate assumptions built into [online quotes] as of November 25, 2022 and compare the quotes and the implied interest rates with the results ... as of July 25, 2022.... The key takeaway ... is that implied interest rates (rates of return) on SPIAs have increased significantly so far this year."

"The new rules significantly relax restrictions on ESG investing, eliminating special restrictions on ESG investments in defined contribution default investments (such as 401(k) plan target date funds), making the 'tie-breaker' rule -- which allows consideration of non-financial issues in certain circumstances -- more flexible, and eliminating recordkeeping and disclosure requirements with respect to the tie-breaker rule. [This article reviews] the highlights of the new rules, focusing on what changes the 2022 rules make to the 2020 rules."

"[This article focuses] on the court's decision and supporting legal analysis, and on the key legal issue: in fee-based ERISA prudence claims, what must a plaintiff plead to survive a motion to dismiss? ... Plaintiff must allege facts showing that comparators are in fact comparable.... A simple comparison of 'net fees' (expense ratio minus revenue sharing) is not, without more, adequate to state a claim.... The Supreme Court's [Northwestern decision] is limited." [Albert v. Oshkosh Corp., No. 21-2789 (7th Cir. Aug. 29, 2022)]

"The decision is notable for delivering defendants a victory in the Third Circuit ... and for citing favorably to recent defendant-friendly opinions from the Sixth, Seventh, and Eighth Circuits." [Krutchen v. Ricoh USA, No. 22-678 (E.D. Pa. Nov. 15, 2022)]

"[T]he letter of the Rule is less provocative than advocates have been implying.... A simple reading of the Rule will tell you that the DOL appears to have removed a major fiduciary roadblock to including ESG-focused investments on retirement plan menus.... The door to the conversation may now be open, but the 800-pound gorilla remains in the room. The onus of fiduciary duty continues to restrain plan sponsors."

"Optimizing the integration process of health and welfare plans can make a significant impact on the cost and efficiencies of the plan, reduce employee attrition, increase the perceived value, and limit the burden on HR leadership.... Health and welfare/employee benefits due diligence ... Synergies/dis-synergies associated with health plan integration ... Integration timeline ... Compliance."

"As the world's largest self-insurance event, SIIA drew a diverse audience from within the self-insurance marketplace. These perspectives provided insights and key takeaways. [1] The Independent Dispute Resolution (IDR) process is ineffective ... [2] The process is occurring piecemeal ... [3] No reporting yet of any decisions."

"[T]he Final ESG Rule moves the ball away from a 2020 DOL rulemaking in this area and toward a position that is more supportive of ESG investing. The Final ESG Rule provides fiduciaries with an interpretation of ERISA’s fiduciary standards that could allow for the consideration of ESG factors without violating those duties."

"EBSA is proposing numerous changes to the VFCP in an effort to streamline the program and encourage plan fiduciaries to correct breaches and reimburse plan losses.... EBSA reiterated that all welfare and pension plans may use the VFCP if they have a fiduciary breach for which there is an eligible transaction. The proposals would make only minor changes to the eligible transactions for welfare plans -- one of which involves delinquent participant contributions to an insured health plan."

"The Ninth Circuit emphasized that when a court is conducting a de novo review of a benefit denial, 'it evaluates the plan administrator's reasons for denying benefits without giving deference to its conclusions or opinions.' ...Ultimately, the Ninth Circuit concluded that '[t]he district court's task is to determine whether the plan administrator's decision is supported by the record, not to engage in a new determination of whether the claimant is disabled." [Collier v. Lincoln Life Assurance Company of Boston, No. 21-55465 (9th Cir. Nov. 21, 2022)]

"Pharmacy Benefit Manager (PBM) reform ... remains at the forefront of the healthcare pricing debate ... Specific drug pricing/PBM-related legislation [likely to] either receive consideration in the lame duck or be reintroduced in the 118th Congress includes: [1] the Lower Costs, More Cures Act of 2021 (HR 19) (S 2164), [2] the Pharmacy Benefit Manager Transparency Act of 2022 (S 4293), [3] the Shaheen-Collins INSULIN bill [not yet filed], and [4] Rep. Harshbarger's PBM Transparency, Accountability, and Reform Act [not yet filed]."