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ERISA Perspectives
Perspectives on employee benefits, executive compensation and ERISA litigation to help you attract and retain talent.
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Cybersecurity and Privacy Protection: the Barbarians are at the Gate

I had the opportunity to attend The Cybersecurity and Privacy Protection Conference at Cleveland-Marshall College of Law this week, and thought I would share a Top 10.

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DOL Final Rule: ‘Fiduciary' Definition; Conflict of Interest Rule for Retirement Investment Advice

The Department of Labor has rolled out its final ERISA fiduciary rule and related guidance, and our friends at BenefitsLink.com have done a great job aggregating links to 1,045 pages of regulations and other documentation.  Not a typo: 1,045 pages.  Click to link here.

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The Next PPACA Constitutional Hurdle: Employer Due Process vs. Taxpayer Privacy

The Patient Protection and Affordable Care Act (“PPACA”), on its face, acknowledges a constitutional issue with employer shared responsibility: protecting employers’ due process rights, while protecting employees’ taxpayer privacy rights.

Recognizing the potential enormity of this hurdle, the drafters directed the Secretary of the Department of Health and Human Services (“HHS”) to address this issue in a report to Congress by January 1, 2013, and to work with the Department of Treasury and other agencies to establish an advance notice and appeal process in compliance with employees’ and employers’ rights.

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Gobeille v. Liberty Mutual Ins. Co. – U.S. Supreme Court Restores ERISA Express Preemption's Superpower

On March 1, 2016, in Gobeille v. Liberty Mutual Insurance Company, the U.S. Supreme Court gave ERISA’s express preemption provision back its superpower that had been stolen in a series of decisions starting in 1995. 

The Court held that ERISA preempts Vermont’s health care reporting requirement as to ERISA plans. This is great news not only for the sponsors and participants of ERISA self-insured health care plans, but for the sponsors and participants of all ERISA benefit plans.

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‘The Free Market Is Always One Step Ahead of Regulators'

On February 24, Scott was quoted in a BenefitsPro article, “The Free Market is Always One Step Ahead of Regulators.” The article suggests that the focus on 401k fee litigation has obviated the need for the Department of Labor’s proposed fiduciary rule.

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4 Takeaways from the U.S. Supreme Court's Montanile Decision Regarding ERISA Plan Reimbursement/Subrogation Claims

The decision by the U.S. Supreme Court in Montanile answered the question of whether reimbursement of ERISA benefits can be recovered from a personal injury settlement as “equitable relief” if the settlement funds have already been spent.

The Supreme Court’s answer was a very clear “no.” But the clarity of that decision causes concern and confusion for ERISA practitioners going forward. Here are four takeaways:

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IRS Finally Sees Reason; Allows Safe Harbor Plans to Make Additional Mid-Year Changes

As every safe harbor 401(k)/(m) plan sponsor knows, the IRS has long considered it a cardinal sin to make virtually any mid-year changes to the plan, regardless of whether they have any effect on the plan’s safe harbor benefits. Well, folks, wonders never cease!

The IRS, in a Notice released January 29, 2016, seems to have found the light of reason.
 

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Ann Caresani Quoted in SHRM Online on Why the U.S. Supreme Court's Decision on Vermont's Health Care Data Reporting Statute is So Important

Ann Caresani was quoted in the Society for Human Resource Management (SHRM) on ERISA’s effect on the collection of health claims data.

The U.S. Supreme Court heard oral arguments on December 2 in a case to decide if ERISA prohibits the state of Vermont from requiring self-insured health plans to submit claims data, a costly practice for both insurers and employers. 

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Scott Stitt Quoted In SHRM Online on U.S. Supreme Court ERISA Case

On November 11, Scott Stitt was quoted in “Justices Hear ERISA Reimbursement Case,” published in SHRM Online.

The article explores a United State Supreme Court review of an ERISA case “asking whether a man injured by a drunk driver, who received a settlement from that driver, is required to reimburse his health plan administrator for medical expenses.” (Montanile v. Bd. of Trs. of Nat’l Elevator Industry Health Benefit Plan, U.S., No. 14-723)

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The Greatest Cybersecurity Risk Comes From Within

When businesses think of data security, they often think first and foremost of protecting the valuable, often intangible assets that make up the essence of the business from theft and release by malevolent outsiders. 

What typically does not come to mind first is protecting the enormous amounts of data that businesses collect on a regular basis about their employees. The employee data that businesses collect contains a wide array of sensitive and private information about what is arguably any business’ most valuable asset: its people. Read the article here.

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