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Current Trends in Actuarial Equivalence Suits

"A group of cases, all having been dismissed by district courts, are on appeal in the U.S. Courts of Appeal for the Sixth and Eleventh Circuits ... What remains at stake is whether sponsors may rely on legacy mortality tables and interest assumptions embedded in plan documents or whether, as plaintiffs contend, ERISA compels the use of reasonable and contemporary assumptions for the two forms of benefit have equal present value when payments begin."

A New Chapter at EBSA: Dan Aronowitz Cleared by Senate to Take the Helm

"Aronowitz's appointment signals a potential turnaround in EBSA's regulatory posture, with implications for ongoing litigation, compliance strategies and fiduciary risk management. His leadership is expected to bring a more pragmatic and business-friendly approach to EBSA's enforcement and rulemaking priorities."

IRS Section 457(F) Plans: An Update Amid Regulatory Uncertainty

"In light of the IRS' proposed regulations and the FTC's pending noncompete ban, plan sponsors ... face increased compliance risk. These employers must closely assess whether noncompete provisions used to structure [substantial risks of forfeiture (SRFs)] remain enforceable under state law and whether they satisfy the IRS' standard for deferral eligibility."

Retirement Plan Alternative Asset Investment Options: Plan Fiduciary Considerations

"[T]his policy shift does not change the scope of any fiduciary duties and could easily add to the ever-evolving list of litigation concerns that plan sponsors and fiduciaries must consider.... Alternative assets present unique considerations that require careful evaluation, and a solid foundation in these concepts will make future guidance on expanding access to alternative investments more actionable."

Sixth Circuit Reverses Dismissal of ERISA Healthcare Fee Suit Against Third-Party Administrator (PDF)

"The court reasoned that 'contractual duties and ERISA fiduciary status are not mutually exclusive.' Rather, 'an administrator's performance (or nonperformance) of its contractual obligations can illuminate whether it was acting as an ERISA fiduciary.' On this point, the court agreed with the [DOL's] argument in its amicus brief -- 'to hold that an administrator like BCBSM insulates itself from ERISA liability because a contract governs its relationship with its customer would "gut ERISA's fiduciary provisions." ' " [Tiara Yachts, Inc. v. Blue Cross Blue Shield of Mich., No. 24-1223 (6th Cir. May 21, 2025)]

DOL Weighs in on 401(k) Forfeiture Class Actions

"The U.S. [DOL] recently weighed in for the first time on plaintiffs' forfeiture claims in its amicus brief filed in one of the Ninth Circuit appeals ... Additional decisions on motions to dismiss have been issued in the last month.... While courts continue to disagree over how to handle the plaintiffs' theory ... plan sponsors and plan fiduciaries might have cause for some cautious optimism, as the tide seems to be turning in the defendants' favor on these claims."

HIPAA's Reproductive Health Rule Is Vacated Nationally

"Though the heightened protections for reproductive health information under HIPAA's Reproductive Health Rule have been eliminated, healthcare providers and others must continue to comply with HIPAA's Privacy Rule with regard to the privacy of PHI and heed state laws that may provide enhanced privacy for this specific category of health information." [Purl v. HHS, No. 24-0228 (N.D. Tex. Jun. 18, 2025)]

Eli Lilly Strikes Back Against Pharmacy Compounders and Telehealth Platforms

"Telehealth companies selling compounded drugs are making modest inroads into the market for popular weight loss drugs that big pharma spent decades and billions of dollars to develop and bring to market. The compounded products, with fewer barriers to entry, are reaching a broader consumer market than U.S. Food and Drug Administration (FDA)-approved glucagon-like peptide-1 (GLP-1) products, and at least one brand pharma player -- Eli Lilly and Company (Lilly) -- is turning the courts to reverse the trend."

Sixth Circuit Reverses Dismissal of ERISA Healthcare Fee Suit Against Third-Party Administrator

"The court focused on Tiara Yachts' allegations that BCBSM's 'self-dealing was nefarious: BCBSM intentionally inflated the pool of overpayments from which it could profit. The more overpayments BCBSM made on the front-end while processing claims, the more money it could receive on the back-end through the SSP.' The court found that these allegations were sufficient to support BCBSM's fiduciary status with respect to its own compensation."  [Tiara Yachts, Inc. v. Blue Cross Blue Shield of Mich., No. 24-1223 (6th Cir. May 21, 2025)]

IRS Proposes Key Changes to Roth Catch-Up Contributions Under SECURE 2.0

"The IRS recently clarified several key aspects of this rule: [1] Only FICA wages paid by the plan-sponsoring employer (e.g., the participant's common law employer) count toward the $145,000 threshold.... [2] Participants without FICA wages (e.g., partners who have only self-employment income) are not subject to the Roth requirement.... [3] The $145,000 threshold is not prorated for employees who worked only part of the year.... [4] New hires who have no income from the employer sponsoring the plan for the preceding calendar year are not subject to the Roth requirement."