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Text of Amicus Brief Urging Supreme Court Review of Ninth Circuit Decision Allowing Participant to Seek Recovery of Benefits from Claims Administrator (PDF)

26 pages. "The question in this case is not whether an ERISA plan beneficiary may bring suit under 29 U.S.C. Section 1132(a)(1)(B) to recover benefits due to him. Rather, the question is who he may sue.... The Ninth Circuit's reasoning appears to rest on a misconception that amici and their members are uniquely positioned to dispel. The panel seemed to believe that there is no difference between an ERISA plan administrator and a mere claims administrator.... As amici's members know well from serving as plan sponsors, insurers, and claims administrators, those roles are different indeed. In fact, the record in this very case highlights the stark contrasts between plan administrators and claims administrators. Unfortunately, however, the panel failed to appreciate that crucial distinction." [Spinedex Physical Therapy USA Inc. v. United Healthcare of Arizona, Inc., No. 12-17604 (9th Cir. Nov. 5, 2014; cert. pet. filed Apr. 24, 2015)]

Structuring a Settlement to Fund a Special Needs Trust May Not Work to Block ERISA Plan's Recovery

"[The participant] entered into a settlement with a third party for $294,440, but did not reimburse the ERISA group health plan for the $50,076 in medical expenses it paid.... [T]he settlement required the defendant to purchase an annuity from an unrelated insurer.... [The participant's] attorney indicated that the settlement was specifically structured to avoid any equitable lien claimed by the ERISA group health plan.... [T]he plan sued the trustee of the plan participant's special needs trust.... [T]he Fifth Circuit concluded that it was appropriate equitable relief under ERISA to impose a constructive trust on ... the proceeds from the annuity as they are paid into the special needs trust." [ACS Recovery Services, Inc. v. Griffin, No. 11-40446 (5th Cir. May 7, 2013)]

'Windfall' Recovery No Defense Under ERISA to Funds' Claim for Unpaid Contributions

"The employer ... had maintained health insurance and a 401(k) plan for its nonunion employees [outside the funds to which it had not made contributions]. These alternative benefits should offset the total award to the funds, the employer said. Otherwise, the employer reasoned, the funds would receive an unjust windfall recovery of contributions on behalf of employees for whom they had provided no benefits. The appellate court rejected this argument and affirmed the lower court's judgment in favor of the funds." [Kelly v. Gas Field Specialists, Inc., No. 17-2654 (3d Cir. June 19, 2018)]

District Court Within the Ninth Circuit Holds That Priority Language Overrides the Make-Whole Rule

Excerpt: A recurring issue for health plan subrogators is what language is sufficient to override the make whole rule. On the one hand, Circuits like the Fifth Circuit have held that no particular language is required to overcome the make whole rule. In the Fifth Circuit (and others like it), plan language simply providing for 100% recovery is sufficient.

Retirement Plan Design for Prevailing Wage Contractors

"In the prevailing wage hourly rate is a benefits component. These benefits dollars are first used to pay for medical, dental, disability or life insurance premiums. Benefits dollars remaining after premiums are paid can be deposited to the company's retirement plan on the employee's behalf.... By designing the retirement plan to treat the prevailing wage contributions in this fashion, the company owners and office staff who are not subject to the prevailing wage reap the benefits too."

Failed Say-on-Pay Votes: Revisiting the Road to Recovery (PDF)

"[T]his is a good time to look back at companies that failed to secure majority support for their SOP proposals and assess what they did to turn things around the following year. [This article reviews] at those companies whose SOP votes failed during the 2012 proxy season [to] see how their SOP votes fared in 2013, as well as follow up to see how the companies with failed SOP votes in 2011 continued to fare in 2013. Finally, [this article looks] at the updated quantitative tests being used by ISS (Institutional Shareholder Services Inc.) to evaluate SOP proposals and the implications of such tests for companies trying to recover from a failed SOP vote and/or trying to avoid a SOP failure in 2014."

Acknowledgment of Health Plan's Lien on Tort Recovery Did Not Require Attorney to Reimburse Plan (PDF)

"[The employer-sponsored health plan ("Drury")] is essentially attempting to impose personal, or legal, liability on [the employee's attorney ("Casey")] for the benefits it conferred on [the covered employee for his health care costs]. After receiving the settlement funds from [the employee's] personal injury law suit, Casey initially held in trust the $11,423.79 to which Drury claims an interest, but he eventually disbursed the entirety of that sum to [the employee, who subsequently filed for bankruptcy]. Casey thus no longer has any money to which Drury claims an interest." [Treasurer, Trustees of Drury Industries, Inc. Health Care Plan and Trust v. Gooding, No. 11-2885 (8th Cir. Sept. 7, 2012).]

Employee Enrollment: Another Fiduciary Responsibility

"A successful employee enrollment meeting isn't hard to stage. It requires a little preparation, and a little time. The effort to hold a meeting is insignificant in comparison to the benefit gained -- the employees understand the Plan so much better if they hear about it first-hand than if they're just handed a stack of papers."

Impact of a Merger or Acquisition on Company Retirement Plans

"Let's outline some of the options available in a merger or acquisition strategy utilizing a case study.... There are two basic types of corporate transactions: Stock sale [and] Asset sale.... There are many nuances to both of these types of sales, and this is not a treatise on which type is better than the other, but merely lays the groundwork for how the retirement plan may be impacted under one option or the other."

Five Things to Do Before Year End for a Healthy Retirement Plan

"[1] Take inventory ... [2] Document notice delivery ... [3] Preliminary contributions or testing ... [4] Distribution processing ... [5] Data gathering."