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Follow the Numbers: the Evolution in ERISA Law

Excerpt: I have noted two things - well, many things, only two of which are relevant to this post - in the past, one the line that Marx was wrong about a lot of things, but he was right that everything is economics, and the second that we are beginning to see an incremental evolution in the law of ERISA to account for the reality that pensions - predominant at the time of many of the earlier, key court rulings on ERISA - have been supplanted by defined contribution plans.

Law Group Argues That Court Misapplied 'Thole' Ruling in ERISA Case

"A nonprofit law group has asked an appellate court to narrow the standing for plaintiffs suing Universal Health Services over investments in its defined contribution (DC) plan to only those investments in which the plaintiffs were invested." [Boley v. Universal Health Serv. Inc., No. 21-2104 (3d Cir. amicus brief filed Aug. 9, 2021)]

The Wagner Law Group Asks DOL for Cybersecurity Guidance

"A number of legal questions remain unanswered and there is an acute need for comprehensive guidance from the DOL. These questions include: [1] what is the specific personal and/or confidential participant information that must be safeguarded by plan fiduciaries; [2] what standard of care applies to the protection of participant personal information; [3] what is the plan administrator's responsibility with respect to disclosing to participants the unauthorized appropriation of participant information; and [4] whether state cybersecurity, privacy, consumer protection or other laws are pre-empted by ERISA."

Church Plan Litigation: Out of the ERISA Woods Into the State Law Forest

"A recent slip opinion in a case involving a church plan maintained by a hospital in upstate New York reminds us that being a non-ERISA plan brings its own set of challenges because state law is not preempted. In particular, the case illustrates that, if a church plan starts to fail to pay benefits, its sponsor -- as well as related entities such as the church it is controlled by or associated with -- may find themselves subject to various pension-related claims under state law." [Hartshorne v. The Roman Catholic Diocese of Albany, New York, 2021 NY Slip Op. 07329 (3rd App. Div., Dec. 23, 2021)]

Supreme Court Holds That ERISA Does Not Preempt Arkansas PBM Law: The Impact on Employer Sponsored Group Health Plans

"The decision gives the green light for state-by-state regulations of PBM networks and payment practices. The impact of Rutledge on employer-sponsored group health plans, particularly multi-state arrangements, is difficult to underestimate. Employers will need to grapple with the inevitable proliferation of state PBM laws that, while purporting to regulate the relationship between a PBM and a pharmacy, will in all likelihood have unintended and unwelcome consequences for their group health plans." [Rutledge v. Pharmaceutical Care Mgmt. Assoc., No. 18-540 (S. Ct. Dec. 10, 2020)]

Attorney Work Product in the ERISA Context (PDF)

17 pages. "Rooted in the common law of trusts, the fiduciary exception is based upon the rationale that the benefit of any legal advice obtained by a trustee regarding matters of plan administration runs to the beneficiaries. ... Applying the ERISA fiduciary's role to the role of trustees at common law, courts have relied upon one of two related rationales in recognizing the fiduciary exception."

Respondeat Superior in the ERISA Context (PDF)

"Respondeat superior claims in the ERISA context may be made in one of two ways; while there is no circuit split on this issue, there is a split of authority as to the manner in which these claims should be addressed, and this article considers these rulings."

How The ERISA Landscape May Shift This Year (PDF)

"Within the next few months, the U.S. Supreme Court will weigh in for the first time on the pleading standard for challenges to excessive fees in retirement plans.... At the circuit court level, there were important new decisions in 2021 regarding the enforceability of arbitration agreements and class action waivers under ERISA, and the U.S. Court of Appeals for the Third Circuit agreed to hear an important interlocutory appeal regarding whether defined contribution plan participants can challenge investment options in which they were not invested. And there continues to be a steady flow of health plan-related lawsuits in several areas, including with respect to [COBRA] notices and mental health parity."

What Patent Trolls Can Teach Us About Tackling Problems in the ERISA Class Action Industry

"[T]he sheer complexity of ERISA and of its application in specific circumstances often requires multiple decisions by multiple courts before a consensus is reached on what the correct rule on a given issue actually should be.... [P]erhaps the best solution is a structure that feeds any conflicting circuit court opinions automatically to a designated and specialized appellate bench above the circuit courts but below the Supreme Court, to maximize the opportunities for such diverse decisions to be synthesized."

State Law Claims Under Group Life Insurance Policy Were Preempted by ERISA

"On ERISA preemption grounds, a federal court has ruled against state law claims asserted by the beneficiary of a former school teacher who sought benefits from a group life insurance policy.... [A recent case] illustrates how a governmental employee's life insurance benefits may fall within the scope of ERISA when sponsored by a non-governmental 'employee organization' and be subject to the full weight of ERISA." [Woods v. American United Life Ins. Company, No. 1:15-cv-859 (N.D. Ala. Nov. 13, 2015)]