The Internal Revenue Code provides significant tax benefits for both employers and employees participating in a 401(k) or 403(b) plan. In exchange for these tax benefits, the plan must satisfy a litany of requirements, notably that a plan be administered in accordance with its plan document. Failure to do so could result in the plan’s loss of its tax-qualified status, which would result in adverse tax consequences for the employer and plan’s participants. A common failure is not following the participant’s contribution election, or perhaps failing to auto-enroll a participant otherwise eligible to be. So how do employee contribution failures occur, and how are they typically corrected? How do the IRS correction procedures treat automatic deferral plans? Grab your cup of coffee and tune in to hear Richard and Sarah chat with Seyfarth colleague Sarah Magill about these pressing questions and more!
Seyfarth has announced that it has added a veteran employee benefits and executive compensation lawyer to its San Francisco office. Marc Fosse, who headed Trucker Huss’ Executive Compensation practice, joins as a partner in the Employee Benefits & Executive Compensation Department. Fosse will co-chair the Executive & Equity Compensation practice at Seyfarth.
Fosse concentrates his practice on tax, securities, corporate and accounting issues associated with executive and equity compensation arrangements. He advises in the design, implementation, and operation of domestic and international executive nonqualified and supplemental deferred compensation plans, as well as equity-based and other long-term incentive compensation arrangements. His client base includes publicly traded, private, non-profit and government organizations.
“Executive compensation is a complex and an increasingly critical matter for clients of all sizes in all sectors that requires a high level of legal understanding and pragmatic considerations,” said Diane Dygert, chair of Seyfarth’s Employee Benefits & Executive Compensation Department. “Both Seyfarth and our clients will benefit greatly from Marc Fosse’s leadership skills as well as his ability find practical solutions for clients on matters relating to all elements involved in employee benefits.”
Fosse collaborates with clients to draft and negotiate executive employment, retention, change in control and severance agreements and programs. He commonly advises clients on how to handle employee benefit matters in corporate mergers, acquisitions, divestitures, initial public offerings, and other corporate transactions.
He frequently appears in legal trade publications as a quoted source. Fosse regularly presents to professional audiences and publishes on issues related to employee benefits. Fosse earned a J.D. from University of Wyoming, College of Law, a Taxation LL.M an with Employee Benefits Certificate from Georgetown University Law Center and a B.A. from Brigham Young University.
Seyfarth Synopsis: Under a Tri-Agency Proposed Rule, health plans could be required to report information relating to air ambulance services by March 31, 2023. As this proposed deadline approaches, plan sponsors should reach out to their third party administrators to determine what assistance, if any, will be provided relating to these reporting requirements.
Just as health plans wrap up their 2020 and 2021 prescription drug reports, attention must now shift to the impending air ambulance reporting requirements under the No Surprises Act (“NSA”). The NSA requires health plans and health insurance issuers to disclose certain data to the Department of Health and Human Services (HHS) regarding the use of air ambulance services. In 2021, the Departments of Treasury, Health and Human Services, and Labor issued a Proposed Rule requiring health plans and issuers to report data relating to air ambulance services for the 2022 plan year by March 31, 2023. Although the Proposed Rule has not yet been finalized, plan sponsors should start preparing for the reporting requirements and understanding their obligations under the NSA.
In order to satisfy reporting requirements under the Proposed Rule, plan sponsors will need to submit data for each air ambulance claim received or paid for during the applicable reporting period, including:
- Plan name;
- Plan market type (e.g., large or small, fully insured or self-funded);
- Date of service;
- Billing National Provider Identifier (NPI);
- Current Procedural Terminology code (CPT);
- Transport information;
- Whether the air ambulance provider was contracted with the plan; and
- Information on claim adjudication and claim payment.
Similar to the prescription drug reporting requirements, many plan sponsors might expect their third party administrators or insurance carriers to either complete these filings or assist them with the reporting requirements. However, while the insurer will be responsible for reporting on behalf of fully-insured plans, plan sponsors of self-funded plans will retain responsibility for the reports. We encourage plan sponsors of self-funded plans to reach out to their third party administrators now in order to determine whether the TPA will file the air ambulance reporting on behalf of their plans, or just assist (e.g., provide necessary information) the sponsor in filing the report. Plan sponsors should consider a written agreement if the third party administrator will be submitting the reports on the plan’s behalf. If not, plan sponsors should begin gathering the necessary data from their third party administrators and understanding what assistance, if any, their brokers, consultants, or other vendors might provide with respect to the reporting obligations.
Please reach out to the author or to your Seyfarth Employee Benefits attorney if you have any questions about the upcoming air ambulance reporting requirements under the Proposed Rule.
Seyfarth Synopsis: A recent district court decision highlights the continued uncertainties about what it means to include an arbitration clause in an ERISA plan. While courts generally agree that such clauses are, in theory, enforceable, the extent to which courts will enforce a specific clause remains uncertain given divergent outcomes of decisions regarding motions to compel arbitration.
In Burnett v. Prudent Fiduciary Services LLC, et al., the Plaintiffs (current employees of Western Global Airlines who participated in the Company’s employee stock ownership plan (“ESOP”)) broadly allege that Defendants caused the ESOP to pay too much for shares of company stock. Plaintiffs assert claims under ERISA, purporting to do so individually, on behalf of a putative class of participants, and as representatives of the ESOP. Plaintiffs seek a number of remedies, including restoration of money to the ESOP as a whole, and removal of the Defendants as fiduciaries.
On January 25, 2023, a Magistrate Judge in the District of Delaware recommended that Defendants’ Motion to Compel Arbitration be denied. Although the Court found that “ERISA claims are arbitrable,” and said that it was not “declining to send this case to arbitration because of something unique about ERISA,” it ultimately found that arbitration could not be compelled because the ESOP’s arbitration provision operated to prospectively waive substantive rights provided for under ERISA. Specifically, the Court found the provision invalid as its language prohibiting ESOP participants from (1) bringing claims “in a representative capacity,” or (2) “seek[ing] or receiv[ing] any remedy which has the purpose or effect of providing additional benefits or monetary or other relief” to anyone other than the plaintiff, prevented participants from seeking substantive statutory remedies provided by ERISA.
The opinion, and the litigation that lead to it, presents a microcosm of the current state of the law with respect to arbitration clauses in ERISA plans. At a foundational level, courts—including the Courts of Appeals for the Second, Third, Fifth, Sixth, Seventh, Eighth, and Ninth Circuits—have consistently acknowledged that, generally speaking, arbitration clauses are enforceable as to ERISA claims. However, what that means in practice is often subject to extensive litigation (and related expense), with significant uncertainty and some growing inconsistency in the ultimate result of efforts to compel cases to arbitration. Indeed, on January 9, 2023, the Supreme Court declined to hear a case in which the petitioner argued that the differing rulings over enforcement of arbitration clauses in ERISA plans has created a circuit split on the issue.
Much of this uncertainty stems from the language of ERISA itself, and its empowerment of participants (and other identified individuals) to bring suit on behalf of the plan. As a result of this language, some courts have held that, to be enforceable, there must be evidence that the plan (and not, for example, the individual employee who filed suit) consented to arbitrate claims. And, as in Burnett, some courts have also held that the empowerment to sue on behalf of the plan carries with it the ability to seek plan-wide relief, such that provisions that limit claims to seeking only individual remedies are invalid (potentially limiting the benefit of enforceable class action waivers). Other courts have reached opposite results. All this serves to underlay that—for plan sponsors—there is much to consider when deciding whether to include an arbitration clause in a plan document, and—if one is included—what it should say.
By: Ryan Tikker
2022 has seen an increase in putative class actions brought under the Employee Retirement Income Security Act (ERISA) (29 U.S.C. §§ 1109 and 1132) against plan fiduciaries. Plaintiffs typically allege that plan fiduciaries breached the duties that ERISA imposes of employee retirement plans, namely, that the fiduciaries breached their duties of loyalty and prudence by including subpar investment options in employee 401(k) plans. These suits are seemingly driven by Monday-morning quarterbacking, where disillusioned plan participants with the benefit of hindsight contend that investment decisions were imprudent. In fact, since 2019, over 200 lawsuits challenging retirement plan fees have been filed against employers in every industry.1
A 401(k) fee case involving such a dispute, Matney v. Barrick Gold of N. Am., Inc., 2022 WL 1186532 (D.Ut. Apr. 21, 2022), and the corresponding appeal filed to the Tenth Circuit Court of Appeals, is garnering significant attention from the U.S. Chamber of Commerce and several other business groups. The Chamber of Commerce, the American Benefits Counsel, the ERISA Industry Committee, and the National Mining Association recently filed an amicus brief in November 2022 urging the Tenth Circuit Court of Appeals to affirm the district court’s decision to dismiss the ERISA lawsuit against Barrick Gold of North America, Inc.
The Matney Decision
The plaintiffs in Matney alleged that the plan fiduciaries violated ERISA when it failed to monitor, investigate, and ensure plan participants paid reasonable investment management fees and recordkeeping fees during a period of time. The plaintiffs alleged that each plan participant’s retirement assets covered expenses incurred by the plan, including individual investment fund management fees and recordkeeping fees, which were allegedly excessive, costing the proposed class millions of dollars in direct losses and lost investment opportunities. In support of their claims, the plaintiffs provided example of fees (measured as expense ratios) charged by a select group of funds in the plan, compared to fees charged by other funds in the marketplace. Id. at *5.
In April 2022, U.S. District Judge Tena Campbell dismissed the suit, finding that the plaintiff participants had failed to state a claim. Judge Campbell found that the plaintiffs made “apples to oranges” comparisons that did not plausibly infer a flawed monitoring decision making process.” Id. at *10. The court ultimately found that ERISA does not require plan fiduciaries to offer a particular mix of investment options, whether that be ones that favor institutional over retail share classes, ones that favor collective investment trusts (CITs) to mutual funds, or ones that choose passively-managed over actively-managed investments. Id.
As to the plaintiff participants’ concerns over allegedly improper recordkeeping fee arrangement with Fidelity, Judge Campbell dismissed this claim as well, finding that the court could not infer that the process was flawed, or that a prudent fiduciary in the same circumstances would have acted differently.
Finally, Judge Campbell found that in the context of the participants’ allegations of violations of ERISA’s duty of loyalty, they did not allege facts creating a reasonable inference that the plan fiduciaries were disloyal to the plan participants. On the contrary, Judge Campbell concluded that their allegations of disloyalty were conclusions of law or altogether conclusory and unsupported statements. Id. at *14.
The Matney Amicus
The Amicus Brief filed in support of the Defendants-Appellees noted that in many ERISA fee cases like the plaintiff participants in Matney, the complaint contains no allegations about the fiduciaries’ decision-making process, which is a key element in an ERISA fiduciary-breach claim Instead, complaints including the one in Matney typically contain allegations with the benefit of 20/20 hindsight that plan fiduciaries failed to select the cheapest or best-performing funds, or the cheapest recordkeeping option, often using inapt comparisons to further the point. Then, the plaintiffs ask the court to make a logical leap from the circumstantial allegations that the plan’s fiduciaries must have failed to prudently manage and monitor the plan’s investment line-up.
The Amicus Brief further averred that allowing suits to proceed like the 401(k) fee dispute case in Matney risks having the effect of severely harming employees’ retirement savings. Indeed, failing to dismiss meritless cases at the pleading stage would invite costly discovery and pressure plan sponsors into a narrow range of options available to participants, like passively-managed, low cost index funds.
We are closely watching the pending Matney appeal in front of the Tenth Circuit. Following the United States Supreme Court’s decision in Hughes v. Northwestern Univ., 142 S.Ct. 737 (2022), we have been monitoring how courts have interpreted this ruling and its impact on the 401(k) excessive fee space. The Hughes case requires a context-specific inquiry to assess the fiduciaries’ duties to monitor all plan investments and remove any imprudent ones and ultimately reaffirmed the need for courts to evaluate the plausibility pleading requirement established by Rule 8(a), Twombly, and Iqbal. It remains to be seen how other Circuit Courts interpret Hughes and how they will respond to this recent flurry of 401(k) fee cases.
1 See Jacklyn Willie, Suits Over 401(k) Fees Nab $150 Million in Accords Big and Small, Bloomberg Law (Aug. 23, 2022), https://bit.ly/3Uel7y5.
By: Ryan Tikker
Recently, the Ninth Circuit addressed and further clarified the requirement of a “full and fair review” in the context of a long-term disability benefit case under the Employee Retirement Income Security Act (ERISA). In matters that go to litigation, the Ninth Circuit held that a district court may not rely on rationales that the plan administrator did not raise as grounds for denying a claim for benefits. By failing to make arguments during the administrative process, but raising them for the first time at litigation, this can be found to be a violation of the “full and fair review” afforded by ERISA.
In Collier v. Lincoln Life Assurance Co. of Boston, 53 F.4th 1180 (9th Cir. 2022) the Ninth Circuit considered an appeal under the ERISA of a plan administrator Lincoln Life Assurance Company of Boston’s denial of her claim for long-term disability benefits. The participant Collier pursued an internal appeal after Lincoln denied her claim for LTD benefits. Lincoln again denied her claim. On de novo review, Judge James Selna of the Central District of California affirmed the administrator’s denial of her claim, finding that Collier was not credible and that she had failed to supply objective medical evidence to support her claim. The district court concluded that because a court must evaluate the persuasiveness of conflicting testimony and decide which is more likely true on de novo review, credibility determinations are inherently part of its review.
Apparently not so. The participant appealed, and the Ninth Circuit reversed, finding that the district court adopted new rationales that the plan administrator did not rely upon during the administrative process. The Ninth Circuit expressly held a district court clearly errors by adopting a newly presented rationale when applying de novo review.
The Ninth Circuit clarified that when a district court reviews de novo a plan administrator’s denial of benefits, it examines the administrative record without deference to the administrator’s conclusions to determine whether the administrator erred in denying benefits. It wrote that the 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 entitled to benefits. Id. at 1182.
The plaintiff Collier worked as an insurance sales agent when she experienced persistent pain in her neck, shoulders, upper extremities, and lower back, which she contended limited her ability to type and sit for long periods of time. She underwent surgery on her right shoulder and later returned to work, where she claimed that she continued to experience persistent pain. After applying for workers compensation, which recommended her employer institute ergonomic accommodations for Collier to allow her to work with less pain, Collier eventually stopped working, citing her reported pain as the cause.
After engaging in the administrative appeal process with Lincoln, she filed suit in the Central District of California. For the first time in its trial briefs, Lincoln argued that the participant was not credible. It further argued that her doctor’s conclusions were not supported by objective evidence, as they relied upon her subjective account of pain. Finally, Lincoln argued that her restriction could be accommodated with ergonomic equipment, such as voice-activated software. Id. at 1184.
As this was an ERISA action for LTD benefits, the administrative record was the only documentary evidence admitted by the district court. Judge Selna issued a findings of fact and conclusions of law affirming Lincoln’s denial of LTD benefits. Reviewing the decision de novo, Judge Selna concluded that Collier failed to demonstrate she was disabled under the terms of the plan. The court adopted Lincoln’s reasoning in determining she was not disabled, namely relying upon a finding that Collier’s pain complaints were not credible and that she failed to support her disability with objective medical evidence.
In reversing the decision by the district court, the Ninth Circuit wrote that a plan administrator “undermines ERISA and its implementing regulations when it presents a new rationale to the district court that was not presented to the claimant as a specific reason for denying benefits during the administrator process.” The Ninth noted it has “expressed disapproval of post hoc arguments advanced by a plan administrator for the first time in litigation.” Id. at 1186.
While the Ninth Circuit has held that a plan administrator may not hold in reserve a new rationale to present in litigation, it has not clarified whether the district court clearly errs by adopting a newly presented rationale when applying de novo review. It explicitly does so now, finding that a “district court cannot adopt post-hoc rationalizations that were not presented to the claimant, including credibility-based rationalizations, during the administrative process.” Id. at 1188.
The Collier ruling places strict mandates on plan administrators to specifically and expansively delineate the bases for denials at the administrative stage. Simply stating that a claimant does not meet a policy definition, such as the disability standard under the applicable plan, is now not enough.
Seyfarth Synopsis: The billions of taxpayer dollars now flowing out to financially troubled multiemployer plans is good news for those plans, their contributing employers, and plan participants. That said, it is not a “get out of jail free” card for employers considering withdrawing from such plans. Employer beware.
Christmas came early this past year for some financially troubled multiemployer pension plans, thanks to newly available Special Financial Assistance (SFA) under the American Rescue Plan Act. President Biden recently announced, for example, that the Central States, Southeast and Southwest Areas Pension Fund would receive $35 billion in SFA. Similarly, the New York State Teamsters Pension Fund in November learned it would receive $963.4 million in SFA.
As of December 30, 2022, PBGC has approved over $45.6 billion in SFA to plans that cover over 550,000 workers, retirees, and beneficiaries. By the time the application process for SFA is over, the PBGC estimates that more than 200 plans covering more than 3 million participants and beneficiaries will receive some $94 billion in SFA.
This windfall may cause contributing employers participating in these plans to wonder how this effects them. There is a lot for contributing employers to be grateful for:
- Multiemployer plans receiving SFA, if all goes as planned, should receive sufficient funds to cover all participant benefits due through 2051. Even if the SFA amounts received are insufficient to cover benefits payable through the next 28 years, one would hope the financial relief received would cover benefits at least through the vast majority of that time;
- Multiemployer plans receiving SFA are limited both in how they invest SFA money and in increasing benefits, so as to reduce the chances these multiemployer plans run out of money too soon;
- Participating employees and retirees should actually receive their full pension benefits for the foreseeable future. Employers need not fear that the benefits they are paying for are illusory;
- These multiemployer plans will not become insolvent like they would have without SFA, and that reduces the risks of mass withdrawal; and
- The SFA program was paid for entirely by taxpayer dollars.
What SFA does not do, however, is make it any less expensive to exit these funds — at least initially. While the Central States Pension Fund, for example, may have just gone from being 17% funded to roughly 78% funded, that is not going to equate to a similar immediate reduction in employer withdrawal liability. This is due to two new PBGC withdrawal liability rules for funds receiving SFA:
- The discount rate to determine unfunded vested benefits for withdrawal liability must be the PBGC’s very conservative mass withdrawal interest assumptions that approximate the market price that insurance companies charge to assume a similar pension-benefit-like liability for withdrawals. For many multiemployer pension plans, this is a lower discount rate than they would otherwise use for funding purposes, and will result in a higher calculated amount of unfunded vested benefit liability. This rule remains in effect until the later of ten years or when the plan projects it will exhaust any SFA assets (assuming plan benefits and expenses are paid exclusively from SFA assets until exhausted).
- Multiemployer plans, at least those receiving SFA under the PBGC final rule as opposed to the old interim rule, will not initially credit all of the SFA assets for withdrawal liability purposes. Instead, the SFA will be phased in, with the phase-in period beginning the first plan year in which the plan receives SFA, and extending through the end of the plan year in which the plan expects SFA funds to be exhausted (assuming plan benefits and expenses are paid exclusively from SFA assets until exhausted). Depending upon the multiemployer plan, it could be several years or even well over a decade before most or all of the SFA assets are counted for withdrawal liability purposes. This will mean employers withdrawing shortly after plans receive SFA will see little benefit to the SFA reflected in their assessments.
Every multiemployer plan’s situation is different, but most contributing employers should not assume a withdrawal — especially if their share of unfunded vested benefit liability is so high their payment schedule is capped at 20 years — will immediately be less expensive post SFA. At a minimum, they should consult with counsel and actuaries to determine what the SFA means, and does not mean, for them.
While contributing employers may not benefit from multiemployer plans receiving SFA in the form of immediately reduced withdrawal liability, both contributing employers and employees will certainly still benefit from participating in plans that will now how have sufficient assets to pay full benefits for decades to come. That is something everyone can be thankful for.
Seyfarth Synopsis: Plans have been scrambling to gather data and work with providers in preparation for the December 27, 2022 deadline to report prescription drug and health care spending information. Just in time for the holidays, the Departments of Labor, Health and Human Services, and Treasury (the “Departments”) have issued FAQs related to Prescription Drug and Health Care Spending Reporting under Title II (the “Transparency Requirements”) of the Consolidated Appropriations Act of 2021 (CAA). The FAQs grant extensions to various reporting and compliance deadlines and good faith relief relating to the Transparency Requirements.
The Transparency Requirements require group health plans to report to the Departments certain information related to prescription drug and other health care spending. For example, group health plans must report to the Departments the 50 most frequently dispensed brand prescription drugs; the 50 most costly prescription drugs by total annual spending; the 50 prescription drugs with the greatest increase in plan expenditures over the preceding plan year; and the impact on premiums of rebates, fees, and any other remuneration paid by drug manufacturers to the plan or coverage or its administrators or service providers .
Some Transparency Requirements under the CAA applicable to group health plans overlap with the “transparency in coverage” cost-sharing disclosures under the Affordable Care Act. In November of 2020, the Departments issued Final Transparency in Coverage Rules (TiC Rules) which require group health plans and health insurance issuers to disclose cost-sharing information to participants, beneficiaries, and, in some cases, the public. Additionally, Title I of the CAA (No Surprises Act) which protects plan participants from surprise medical bills for services provided by out-of-network or nonparticipating providers and facilities, contains extensive provisions regarding reporting and disclosure of charges and benefits. For more information regarding the TiC Rules and No Surprises Act, see our prior posts here and here.
In August 2021, the Departments issued FAQs related to the TiC Rules, No Surprises Act, and Transparency Requirements which extended various compliance deadlines. The Departments announced that they would not bring enforcement actions against group health plans that complied with the Transparency Requirements for the 2020 and 2021 reference years by December 27, 2022. For more information regarding previous FAQ guidance from the Departments which extended compliance deadlines, see our prior post here.
On December 23, 2022, just four days before the reporting deadline for the 2020 and 2021 reference years, the Departments issued FAQs related to Prescription Drug and Health Care Spending Reporting. The key takeaways from the FAQs are:
- Nonenforcement Policy. The Departments will not take enforcement action with respect to any plan that uses a good faith, reasonable interpretation of the regulations and the Prescription Drug and Health Care Sending Reporting instructions in making its submission for the 2020 and 2021 years by December 27, 2022.
- Good Faith Relief and Grace Period. There will be a submission grace period through January 31, 2023 in which a plan will not be considered out of compliance if a good faith submission of 2020 and 2021 data is made on or before January 31, 2023.
- Flexibilities for 2020 and 2021 Data. The following clarifications and flexibilities apply for the 2020 and 2021 reference years:
- Multiple submissions are permitted for the same reporting entity;
- Multiple reporting entities can submit the same data file type on behalf of the same plan;
- If there are multiple reporting entities, aggregation may be conducted at a less granular level than that used by the reporting entity that is submitting the total annual spending data;
- Group health plans or their reporting entity that submit only the plan list, premium and life-years data, and narrative response may make a submission by email;
- Vaccine reporting is optional; and
- Reporting entities do not need to report a value for “Amounts not applied to the deductible or out-of-pocket maximum” and the “Rx Amounts not applied to the deductible or out-of- pocket maximum.”
These compliance deadline extensions, clarifications, and flexibilities are welcome relief for group health plans that are required to complete Prescription Drug and Health Care Spending Reporting under the Transparency Requirements. For assistance with these reporting obligations, please reach out to the employee benefits attorney at Seyfarth Shaw LLP with whom you usually work. To stay up to date with future guidance related to the TiC Rules, No Surprises Act, and Transparency Requirements, be on the lookout for additional Seyfarth Legal Updates.
Seyfarth Synopsis: Recently the U.S. Treasury Department (Treasury) and Internal Revenue Service (IRS) issued regulations (the “Final Regulations”) which finalized previously proposed relief for furnishing Forms 1095-B and 1095-C to individuals. Notably, the Final Regulations provide a permanent 30-day extension to the due date for furnishing Form 1095-C to individuals. This extension was previously granted in the 2021 final instructions for completing Forms 1094-C and 1095-C for 2021 (see our blog here) issued in December 2021.Continue Reading Permanent Extension to the ACA Reporting Deadline
‘Missing’ or lost participants often raise a handful of legal and administrative issues for plan sponsors. The lack of definitive guidance has led to confusion for plan sponsors in deciding what to do about missing participants. While the IRS and DOL have their own separate concerns, both agencies are concerned and likely to inquire about a plan’s missing participants upon audit. What steps should plan sponsors take to decrease the chance that a participant will go missing, and what does the IRS and DOL expect you to do to find missing participants? Grab your cup of coffee and tune in to hear Richard and Sarah chat with their first external guest, Gary Chase of Willis Towers Watson, about these pressing questions that frankly, every retirement plan struggles with.