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Yes, Health Plans, Too: DOL Clarifies Scope of Cybersecurity Guidance

"Citing resistance from health and welfare plan service providers, the DOL updated its 2021 cybersecurity guidance to clarify that it 'generally applies to all employee benefit plans, including health and welfare plans.' This clarification is the only material change in the update. Despite that, the update serves as a useful impetus for employers to survey their current cybersecurity practices with respect to their benefit plans. Why? Security breaches are becoming more common, larger in scope, and resulting in larger liability"

The Fall of Chevron Could Mean Successful Challenges to Rulemaking and an Increase in Subregulatory Guidance

"[A]gencies [may] conclude that in at least some cases a robust rulemaking process is not worth the effort, resulting in fewer rulemaking projects and an increase in the pace and volume of subregulatory guidance, particularly following enactment of new laws or a change in administration. Over time, we may also see the courts develop layers of deference under Skidmore, which could then re-incentivize agencies to engage in a robust rulemaking process." [Loper Bright Enterprises, Inc. v. Raimondo, Sec. of Comm., No. 22-451 (S. Ct. Jun. 28, 2024)]

ERISA Actuarial Assumptions Litigation Nears End of First Phase

"Of the 11 cases that have been filed, three are still in the first phase (motions to dismiss pending or expected to be filed soon), one has settled, and the rest have entered the second phase (discovery and summary judgment underway, but no rulings on summary judgment yet).... [T]he cases are not moving through the litigation phases in unison. However, as the first phase approaches conclusion, we can take an early look at the scoreboard and draw certain conclusions."

Plaintiffs Increasingly Push for Non-Monetary Concessions from Plan Fiduciaries in ERISA Fee Settlements

"Some defendants see non-monetary concessions as a 'cost-free' way to settle a case for a smaller cash payment. But they don’t always account for the soft costs (inconvenience, compliance costs, and the burden of having an adversary looking over your shoulder from inside the tent) when they agree to ongoing non-monetary obligations."

Eighth Circuit Case Highlights Importance of Digging into Third Party Administrator Procedures

"Some TPAs ... have ceased the practice [of cross-plan offsetting] altogether, at least with respect to non-network providers. Others, responding only to the Eighth Circuit's narrow ruling, have taken the position that the practice is still permissible as long as it's specifically authorized by the plan.... [P]lan sponsors looking to minimize risk should opt out or otherwise end the practice of cross-plan offsetting. Even if the plan has already been given the opportunity to opt out, and the window has passed, nothing prevents a plan sponsor from revisiting the issue with the Plan's TPA." [Peterson v. UnitedHealth Group Inc., No. 17-1744 (8th Cir. Jan. 15, 2019; cert. pet. filed May 30, 2019)]