February 10, 2020

Equivalence Suits Target ERISA Fiduciaries
February 10, 2020

Michelle C. Yau

It is important for Taft-Hartley plan trustees to be informed of developments related to ERISA fiduciary liability. Cohen Milstein continuously monitors ERISA lawsuits, and in this issue of the Shareholder Advocate, we summarize developments related to several lawsuits concerning actuarial equivalence rules found in certain ERISA provisions. Over the last year, there were nine class cases filed that allege pension plans are violating ERISA by paying less than actuarially equivalent benefits to defined benefit plan participants. Plaintiffs in these lawsuits generally allege that plan fiduciaries and sponsors of their defined benefit plans violate ERISA when a plan uses outdated mortality tables to calculate alternative forms of benefits or “form factors,” which are predetermined factors used to convert normal form benefits into alternative forms. The plans at issue in these lawsuits are those sponsored by household names, such as American Airlines, U.S. Bancorp, AT&T, Metropolitan Life Insurance Company, Anheuser-Busch, Raytheon Company, and Huntington Ingalls Industries.

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ERISA and Health Plans: The Latest Cigna Case Illustrates the Changing Landscape of ERISA Litigation
February 3, 2020

In a 150-page complaint filed on December 31, 2019, styled Advanced Gynecology and Laparoscopy of North Jersey.et. al. v. Cigna Health and Life Insurance, Cigna is accused of violations of  the Employee Retirement Income Security Act of 1974 (ERISA), of acting in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), and of committing a variety of state law violations. The Complaint accuses Cigna of engaging in several “brazen embezzlement and conversion schemes, through which it maximizes profits by defrauding patients, healthcare providers, and health plans of insurance out of tens of millions of dollars every year.”

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Did You Receive a ‘Surprise’ Medical Bill?
February 1, 2020

  • Patients sometimes get surprise medical bills after receiving care from an out-of-network doctor or visiting an out-of-network facility.
  • The main cause of surprise bills is a practice called “balance billing.” This often occurs when you are seen by an out-of-network doctor at a medical facility in your health plan’s network.

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Cross-Plan Offsetting and ERISA
February 1, 2020

  • Cross-plan offsetting occurs after a plan’s carrier or TPA determines that an out-of-network provider received an overpayment; the overpayment is “reimbursed” by offsetting the amount owed with another payment owed to the same provider under a different health plan. 
  • Many times, the alleged overpayments are made from an employer’s fully insured plan and the offset is taken from an employer’s self-funded plan. This can result in self-funded plan participants facing large “balance bills” or “surprise bills” if the provider seeks to recover the remainder of its charges that were offset by the TPA.

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ERISA and Your Duty to Monitor TPA’s Working on Your Health Plan
February 1, 2020

  • Your fiduciary duty begins when you hire the TPA – best hiring practices include, but are not limited to, obtaining competitive bids and ensuring the TPA has all the proper credentials.
  • Make sure the TPA you hire charges reasonable fees and provides only the services necessary to operate the plan. Verify that there are no hidden fees in the contract.

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Employer-Sponsored Health Care, Participant Data, TPAs and Service Providers, and ERISA
February 1, 2020

  • Fiduciaries of ERISA-covered health plans have a duty to implement cybersecurity measures. Fiduciaries are also obligated to ensure that third-party administrators (“TPA”) or service providers do not use participant information without permission.
  • The selection and monitoring of a benefit plan’s TPAs/service providers is a key fiduciary responsibility; this includes prudently selecting a TPA/ service provider that has appropriate systems to maintain electronic plan data securely and privately.

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Engaging and Monitoring Health Plan TPAs: Understanding Your Fiduciary Obligations
January 30, 2020

Since the passage of the Employee Retirement Income Security Act of 1974 (ERISA), the Department of Labor (DOL) and private litigants have focused mainly on pension plans and more recently, 401(k) plans. But ERISA was enacted to protect the interests of employees and their beneficiaries in all employee benefit plans, including health plans. 

Recently, DOL has shown a heightened interest in investigating health plans governed by ERISA for compliance. ERISA fee litigation is also shifting into the health plan arena, and litigation accusing health plan fiduciaries of paying or charging excessive or hidden fees is becoming more common. Investigation of self-funded health benefit plans and the fees charged by the third-party administrators (TPAs) that serve them is one of the focus areas.

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Mary Bortscheller Recognized as a “Rising Star” by Law360
September 8. 2019

Law360 has named Cohen Milstein’s Mary Bortscheller to its 2019 list of “Rising Stars.” Ms. Bortscheller, an associate in the firm’s Employee Benefits / ERISA practice, was recognized in the Benefits category.

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Watch These ERISA Cases in 2019
January 1, 2019

Daniel R. Sutter

A number of vexing issues facing ERISA practitioners came to a head in 2018 and are primed to be resolved in the coming year. This article will examine the cases raising these issues, and the impact their resolution in the coming year will have on retirees and the retirement industry.

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Is Congress Protecting Its Constituents or Running Interference for Bad Actors?
November 14, 2018

A group of twenty-seven legislators has authored a letter asking President Trump and the Department of Labor (“DOL”) to provide the ESOP industry with guidance on substantive issues, most importantly the issue of valuation, and to stop engaging in what it termed “regulation through litigation”. The letter asks the DOL to collaborate with the ESOP community and basically requests the President and the DOL to stop engaging in enforcement activities until such meaningful guidance is provided.

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Is My ESOP Account at Risk?
August 30, 2018

An Employee Stock Ownership Plan (“ESOP”) is an ownership program where a company provides its employees with company stock, usually at no cost to the employees.  Shareholders often create an ESOP by selling their shares of stock to the newly created ESOP as a form of an “exit strategy.”  The ESOP may pay the shareholders for these shares of stock by taking out a loan (“leveraged ESOP”).  As the company creates revenue, it repays the ESOP’s loan, and the ESOP releases shares of company stock to its employees.  

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Employee Stock Ownership Plans: Vulnerable to Abuse? 
May 30, 2018

Many traditional 401(K) plans are being replaced with employee stock ownership plans (“ESOPs”). While in many cases an ESOP is a valuable benefit to employees, they are also vulnerable to abuse. 

What is an ESOP?

An ESOP is a qualified defined-contribution employee benefit plan designed to invest primarily in the stock of the sponsoring employer. That means, instead of investing the retirement contributions into traditional investment vehicles like stocks, bonds or money market funds, the retirement contributions are invested back into company stock. ESOPs are “qualified” in the sense that the ESOP's sponsoring company, the selling shareholder and participants receive various tax benefits. For these reasons, ESOPs are often used to give the employees a vested interest in the company’s success and aligning their interests with the company's shareholders. Unfortunately, ESOPs can be used for improper purposes, which harms employees and violates the Employee Retirement Income Security Act (“ERISA”), a federal statute that protects employee retirement assets from abuse.

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ERISA Litigation Trends in 2017 
December 18, 2017

Julie Goldsmith Reiser

During 2017, several trends emerged in litigation under the Employee Retirement Income Security Act. Excessive fee cases remained prevalent, with two types commanding a large percentage of ERISA litigation — cases challenging the inclusion of proprietary funds in a 401(k) plan and cases against universities’ 403(b) plans. The U.S. Supreme Court addressed the interpretation of the church plan exemption, overturning three appellate decisions holding that an ERISA-exempt church plan must be established by a church and causing participants to pursue alternate theories of liability. Outside of litigation, Congress repealed a U.S. Department of Labor rule that established a safe harbor from ERISA coverage for state-sponsored retirement plans. Despite the repeal, eight states are continuing to implement their plans, with Oregon being the front-runner to face ERISA preemption challenges. And finally, after the Supreme Court’s Spokeo decision, Article III standing regained prominence, prompting multiple decisions on when a participant in a defined benefit plan incurs sufficient risk to benefits to confer standing. These trends have developed throughout 2017 and raise issues that will continue through 2018.

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A Rule in Flux: The Department of Labor’s Fiduciary Rule
December 1, 2017

Daniel Sutter

As litigation about the legality of the Department of Labor’s controversial Fiduciary Rule reaches federal circuit courts, the current administration has turned into the Fiduciary Rule’s biggest adversary.

Over a year ago, insurance companies started a broad offensive against the Fiduciary Rule in federal courts across the country. Challengers to the rule have filed six cases in three federal district courts to date. Despite the success of the Department of Labor (“DOL”) in defending the Fiduciary Rule, recent changes of position by the Department of Justice and DOL have cast a shadow over the Fiduciary Rule’s future.

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