The U.S. Supreme Court has agreed to address a significant legal conflict among lower courts regarding the standards plaintiffs must meet to pursue claims against employee benefit plans accused of engaging in prohibited transactions. These cases often involve transactions between the benefit plans and third-party companies regulated under federal law. The court’s decision could clarify how strictly these claims should be evaluated under the law.

The Cornell University Case: Dismissal by the Lower Court

The Supreme Court will review a ruling from the 2nd U.S. Circuit Court of Appeals, which dismissed a class-action lawsuit involving 28,000 Cornell University employees. The plaintiffs accused the university’s retirement plans of paying excessive fees for recordkeeping services, violating the federal Employee Retirement Income Security Act of 1974 (ERISA). According to the plaintiffs, these fees were unnecessary and prohibited under ERISA’s regulations.

What is ERISA, and Why is it Relevant?

ERISA governs employer-sponsored retirement plans and prohibits certain transactions with third parties unless necessary for the plan’s operation and involves reasonable costs. The Cornell plaintiffs argue that the retirement plans’ fees were excessive and should have been barred under ERISA. However, the 2nd Circuit Court’s dismissal adds to the uncertainty surrounding the interpretation of the law.

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Split Among Federal Courts: A Key Issue for the Supreme Court

A central issue in the Cornell case is the differing interpretations of ERISA by federal appeals courts. Some courts, including the 2nd Circuit, have ruled that plaintiffs must prove that an employer engaged in a prohibited transaction with the intent to benefit a third party, such as a recordkeeper. In contrast, at least two other appeals courts have held that plaintiffs only need to allege the occurrence of a prohibited transaction to proceed with their claims.

Plaintiffs’ Argument to the Supreme Court

In their petition to the Supreme Court, the Cornell plaintiffs argued that the 2nd Circuit had wrongly placed the burden of proof on the plaintiffs to disprove any exemptions from liability. The plaintiffs assert that it should be the defendants’ responsibility to demonstrate that their actions were exempt under ERISA. The case could set an important precedent for similar lawsuits, including those involving excessive fees or mismanagement of retirement plans.

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Broader Impact of the Case

This lawsuit is part of a larger wave of ERISA-related claims filed against universities and colleges, which began around 2016. These lawsuits accuse institutions of failing to properly oversee retirement plans, including not dropping underperforming investments or limiting fees. Similar cases have been settled by universities like Duke, Columbia, and the University of Southern California, with settlements reaching up to $13 million, though the universities denied any wrongdoing.

Previous Supreme Court Ruling on ERISA

In a related case in 2022, the Supreme Court ruled unanimously that offering a broad range of investment options in retirement plans does not protect employers from claims of imprudence, especially when certain investment options carry high fees. This decision, involving Northwestern University, underscores the court’s attention to how ERISA is applied in managing retirement benefits.

Looking Ahead

The case, Cunningham v. Cornell University, is now set for review by the U.S. Supreme Court (No. 23-1007). The outcome could bring much-needed clarity on the standards for evaluating prohibited transactions under ERISA. Attorneys representing the plaintiffs and Cornell will present their arguments, and the case is expected to have implications for future lawsuits involving retirement plan management.

This legal battle is part of the ongoing scrutiny over how retirement plans are administered, especially in educational institutions. A ruling by the Supreme Court could have a profound impact on employee benefit plan litigation and the financial responsibilities of universities and other large employers.

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Employers managing 401(k) assets forfeited by former employees are encountering a surge in lawsuits. These litigations claim misuse of plan funds and highlight judicial disagreements regarding the legitimacy of these practices. The central issue is whether plan sponsors can use forfeited funds to cover their own contributions rather than offsetting costs for current employees.

Legal Precedents and Court Rulings

Recent cases illustrate the legal ambiguities. HP Inc. successfully defended its use of forfeited 401(k) assets to fund its plan contributions. A US District Court for the Northern District of California judge ruled on June 17 that this practice aligns with the Employee Retirement Income Security Act (ERISA). Conversely, in May, a judge in the Southern District of California required Qualcomm Inc. to justify its use of forfeited 401(k) assets, suggesting the company prioritized its financial interests over its employees.

Judicial Discrepancies and Broader Implications

The contrasting decisions from different courts underscore a broader uncertainty, leading to similar lawsuits against other major employers like Wells Fargo & Co., Tetra Tech Inc., and Honeywell International Inc. Caroline Wong, a senior managing associate at Sidley Austin LLP, noted that these cases challenge practices generally accepted under federal regulations, creating unexpected legal challenges for plan sponsors.

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Treasury Regulations and Employer Practices

Under current and proposed Treasury regulations, plan sponsors are permitted to use forfeited funds for administrative expenses or to offset their contributions. The decision against HP highlighted that these actions do not constitute prohibited transactions under ERISA. However, Qualcomm’s defense emphasized that the existing regulations allow such uses of forfeited assets without breaching fiduciary duties.

Impact on 401(k) Plan Administration

401(k) plans often include provisions that allow forfeited funds to cover administrative expenses or employer contributions. A 1963 Treasury regulation mandates the use of forfeited assets to reduce employer contributions. A proposed IRS rule from February 2023 aims to clarify that plan sponsors can use these assets for various purposes, aligning with the plan’s terms. This rule, if finalized, could bolster the defense against litigation concerning forfeited funds.

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Department of Labor’s Role

The Department of Labor (DOL) typically enforces fiduciary standards under ERISA but has remained relatively quiet on the issue of asset forfeitures, aside from advisory opinions. However, past DOL actions, such as the lawsuit against Sypris Solutions Inc. in 2017, show the agency’s potential involvement. In that case, the employer was ordered to compensate participants and pay penalties for misusing forfeited funds.

Legal Interpretations and Future Outlook

The divergent court rulings raise questions about ERISA’s fiduciary standards. According to Christine Cushman, counsel at Bricker Graydon LLP, the key issue is whether employers adhere to their plan documents. If plan documents permit the use of forfeited funds for specific purposes, arguing a fiduciary breach becomes challenging. Ensuring compliance with plan provisions is essential to avoid litigation risks.

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Summary of the Article

A recent breach exposing over a thousand Walmart 401(k) participants’ Social Security numbers highlights regulatory gaps that impede accountability for plan service providers. The incident, caused by a Merrill employee’s email error, underscores the frequent vulnerability of retirement plans managed by third-party providers. While the Department of Labor’s 2021 cybersecurity guidance targets plan sponsors, the responsibility often falls on them rather than the service providers. Legal actions against companies like JP Morgan and Alight Solutions are testing the extent of fiduciary liability under ERISA. State data privacy laws and industry standards offer additional avenues for holding recordkeepers accountable, but experts call for more robust ERISA-specific regulations to safeguard sensitive data effectively.

Walmart 401(k) Data Breach Exposes Regulatory Gaps

A significant data breach affecting over a thousand Walmart 401(k) participants has brought attention to the regulatory shortcomings that make it difficult to hold plan service providers accountable when human error leads to a breach. The incident occurred due to a mistake by an employee of Merrill, the plan recordkeeper, who inadvertently disclosed sensitive information in an email. Merrill’s parent company, Bank of America, reported the breach last month, marking the latest in a series of retirement plan breaches involving third-party service providers.

The Role of Third-Party Vendors in Data Breaches

The US Labor Department issued its first cybersecurity guidance for retirement plans in 2021, focusing primarily on plan sponsors, who have a fiduciary duty to the participants and beneficiaries of the plans they manage. However, recent breaches indicate that third-party vendors are often responsible for data mishandling. Large recordkeepers handling vast amounts of personally identifiable information and assets can easily expose this data to bad actors through simple mistakes.

Contractual Loopholes and Fiduciary Obligations

Service providers typically avoid fiduciary obligations in their contracts, bypassing direct Department of Labor (DOL) oversight. The DOL’s stance is that it is the plan sponsors’ responsibility to prevent data breaches, as emphasized by Joseph Lazzarotti, a principal at Jackson Lewis P.C. Lazzarotti likened a retirement plan to a chain, with multiple entities involved, including the employer and the recordkeeper, where data moves from one to the next. The ultimate responsibility for data protection, according to Lazzarotti, falls on the plan sponsor.

Legal Challenges and Fiduciary Liability

Lawsuits from the DOL and plan participants against recordkeepers like JP Morgan and Alight Solutions challenge the existing regulatory framework. Under the Employee Retirement Income Security Act of 1974 (ERISA), fiduciary liability can extend to other parties if they are found to have exercised control over plan assets during a breach. A recent lawsuit against JPMorgan alleges that the company failed to prevent a breach affecting 451,000 participants. However, federal courts have not defined whether data is considered a “plan asset” under ERISA.

State Privacy Laws and Industry Standards

Outside of ERISA, state data privacy laws and banking regulations provide mechanisms to hold recordkeepers accountable for breaches. These laws require companies to inform data owners of breaches and can revoke licenses if negligence is found. Industry standards also play a role in setting expectations for data protection. The 2021 DOL guidance was partly based on norms established by the Society of Professional Asset Managers and Recordkeepers.

The Need for ERISA-Centered Cybersecurity Regulations

Existing frameworks like the Securities and Exchange Commission’s Regulation S-P and the Cybersecurity and Infrastructure Security Agency’s Zero Trust Maturity Model offer technical controls to safeguard data. However, experts argue for a dedicated ERISA-centered regulation to clarify the responsibilities of recordkeepers and third-party service providers. Carol Buckmann, a Cohen & Buckmann P.C. partner, highlighted the need for formal regulations rather than informal guidance to ensure robust data protection measures.

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In a recent legal triumph, Cornell University emerged victorious in a lawsuit that alleged mismanagement of its retirement plan. This victory has ignited a broader discussion on the ability to challenge routine contracts between employers and retirement plan service providers under ERISA rules. The debate centers on whether such challenges can curb conflicted and self-interested transactions within retirement plans.

Second Circuit’s Landmark Decision

The US Court of Appeals for the Second Circuit issued a groundbreaking decision on November 14, settling a crucial question of first impression within the circuit. The court addressed what plaintiffs must adequately allege to demonstrate that a retirement plan’s arrangement with a service provider violates ERISA rules prohibiting transactions between plans and interested parties. According to the Second Circuit, a claim based on prohibited transactions must include allegations that either the services were unnecessary or the compensation was unreasonable.

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This decision is particularly significant because employers routinely engage third-party service providers to manage various aspects of retirement plan administration. The Second Circuit’s opinion, three months after the Ninth Circuit provided its perspective on similar issues, deepened the divide among circuits on the ease of challenging these arrangements in court.

Growing Circuit Split

Circuits are currently divided on interpreting an Employee Retirement Income Security Act (ERISA) rule prohibiting transactions furnishing goods or services between a benefit plan and an interested party. The divergence arises from the broad definition of prohibited transactions in one section of ERISA and multiple exemptions in another section that can render a transaction legal under certain conditions, such as reasonable compensation.

The Cornell decision from the Second Circuit starkly contrasts the approach taken by the Eighth Circuit in Braden v. Wal-Mart Stores, Inc. (2009). In the plaintiff-friendly Braden ruling, it is easier for retirement plan investors to advance past a motion to dismiss without proving that the arrangement was overpriced or unreasonable. This creates incentives to file and settle claims within that circuit.

Burden of Proof Shift

The Second Circuit’s decision places a higher burden on plaintiffs, differing significantly from the Braden approach. Plaintiffs in the Second Circuit must now demonstrate that the defendant has the ultimate burden of persuasion regarding exemptions while still raising these exemptions in their complaint.

This shift in burden has raised concerns about a potential collision between the Second Circuit’s analysis and the long-held doctrine of the Department of Labor. The department traditionally maintains that all transactions between a plan and a party in interest are prohibited, placing the burden on the defendant to prove the applicability of a statutory exemption.

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Varying Approaches Across Circuits

Various appeals courts have adopted divergent approaches to similar issues. The Third, Seventh, and Tenth Circuits have recently rejected prohibited transaction claims that lack indications of conflict of interest or ill intent. In contrast, in its Cornell opinion, the Second Circuit emphasized that prohibited transaction claims don’t require specific allegations of self-dealing or disloyal conduct.

The Ninth Circuit, in an August decision involving AT&T Services Inc.’s 401(k) plan, revived prohibited transaction claims. The Ninth Circuit asserted that ERISA’s broad and unambiguous rules encompass arm’s-length service transactions between plans and vendors. However, the court left room to consider whether the arrangements were reasonable and backed by fair compensation.

Potential Supreme Court Intervention

Legal experts suggest that these conflicting decisions increase the likelihood of the US Supreme Court reviewing ERISA’s prohibited transaction rules in a future case. While a petition for Supreme Court review is considered a long shot, there is a reasonable chance that the court might find this issue worthy of attention.

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The Issue at Hand

At the heart of these lawsuits is the segment of an employee’s 401(k) account funded by their employer’s contributions. Unlike contributions from an employee’s salary, which are immediately vested, employer contributions can remain unvested for a certain period. They can be partially or entirely forfeited when an employee departs from the company after a few months or years.

The crux of the matter is that these lawsuits contend that employers run afoul of the Employee Retirement Income Security Act (ERISA) when they use their discretion over these forfeitures to benefit themselves instead of the workers. It is alleged that these companies have utilized these forfeitures to reduce their financial obligations to the retirement plans rather than allocating these funds to reduce the administrative expenses employees incur.

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It’s noteworthy that the practice of using 401(k) forfeitures to offset employer contributions has been approved by regulators when executed correctly, according to legal experts interviewed by Bloomberg Law. However, this practice has come under scrutiny due to four recent cases initiated by Hayes Pawlenko LLP, a small employment law firm based in California.

The Role of Plan Terms

As with many ERISA disputes, the outcome may largely hinge on the language articulated in the specific plan documents. Numerous 401(k) plans outline how forfeited money should be utilized, whether for covering administrative costs or directing it toward employer contributions. Some documents offer detailed instructions on the matter, while others are more ambiguous and grant a level of discretion.

The legal complaints against Qualcomm, Intuit, Clorox, and Thermo Fisher each argue that the pertinent plan documents bestow discretion upon employers to decide whether forfeitures should be allocated to expenses or contributions. Legal experts emphasize the significance of this particular detail in the cases.

The fact that these companies appear to be acting within the parameters set by their plans might pose a considerable obstacle for the plaintiffs. It remains to be seen if this use of forfeitures is genuinely a violation of ERISA, as indicated by Alex C. Lakatos, a partner at Mayer Brown LLP in Washington.

Fiduciary Obligations Under Scrutiny

ERISA mandates that plan fiduciaries act in the best interests of their participants. The lawsuits posit that if a fiduciary chooses to use funds to lower participants’ expenses instead of its own, it breaches its duties.

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However, some experts argue employers aren’t obligated to provide retirement plans or specific compensation levels within legal limits. Decisions regarding benefit levels are primarily questions of plan design rather than fiduciary actions.

The flexibility given to employers in utilizing plan forfeitures doesn’t necessarily signify that they are acting in a fiduciary capacity under ERISA. Guidance from the Internal Revenue Service underscores that employers have discretion concerning these forfeitures.

While some experts express skepticism about the success of these cases, others contend that the legal theory advanced in these lawsuits could be viable if specific conditions are met. According to Brock J. Specht, a partner at Nichols Kaster PLLP in Minneapolis, a fiduciary’s primary duty is to use the money in the participants’ interest, not for the employer’s benefit.

What’s Next?

The world of class litigation under ERISA often follows patterns. Recent cases have targeted various aspects of retirement plans, including those sponsored by universities, those offering specific investment options, and pension plans utilizing outdated life expectancy data. As more cases arise under particular statutes, smaller law firms may take the opportunity to file similar cases, potentially leading to the emergence of novel legal theories.

Plaintiffs’ firms are incentivized to uncover common practices that may not adhere to legal standards, potentially fueling a new wave of litigation. If a widespread practice is deemed improper by a court, it could herald the “next era” of litigation, according to experts in the field.

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Summary: What practice areas are most desirable for law firms looking for lateral hires?

Read the full report by Harrison Barnes here: The BCG Attorney Search 2017 State of the American Lateral Law Firm Legal Market Report.

The practice of law is going to change in 2017. That’s according to industry expert Harrison Barnes of BCG Attorney Search. Barnes has recently published an analysis of the 2017 legal market and the hot and weak practice areas. He noted that it is normal for all practice areas to go through cycles; and this year, niche areas with few attorneys such as employment, ERISA/executive compensation, and healthcare were in high demand. This year, he stated that generalists will have a hard time if they wanted to move laterally.

“Going into 2017, the practice of law seems to be changing for lateral attorneys—law firms in the last four months of the year were hiring more attorneys in niche practice areas, or with niche skills (in major practice areas), than at any time I have ever seen in the past. Firms were avoiding generalists. The majority of attorneys hired in every practice area had some sort of “niche” skill that was not normally found in the market,” Barnes stated.

In his report, Barnes concluded that Employment Law was a “very vibrant” practice area in 2017. From 2015 to 2016, BCG Attorney Search saw a 45.25% growth of employment attorney placements and a 74.13% growth of interviews in that area.

“There is enough demand in the market that unlike litigation and corporate, for example, law firms do not necessarily require the attorneys they hire to have “high-brow” qualifications,” Barnes said. “For example, we saw several major law firms hire attorneys from second-tier law schools and smaller law firms. Attorneys with top law school and firm qualifications can practically write their tickets at the associate level in this practice area.”

Another hot practice was ERISA/Executive Compensation.

“By every single measure, this practice group went gangbusters in 2016. Whether the attorney was senior with more than 10 years of experience, or junior with only one year of experience—firms at every level were “biting” and eager to hire attorneys in this practice area,” Barnes said. “Compliance has become extremely important in the ERISA and executive compensation field, and this is keeping attorneys busy.”

Healthcare is another hot area for lateral attorneys this year. According to Barnes, this market is the best it has ever been, and lateral healthcare attorneys are desired all over the country. Additionally, because of the new presidential administration, there is likely to be changes with the Affordable Care Act. This will result in even more demand for this specialty.

In addition to the aforementioned fields, data privacy, finance, immigration, insurance coverage, technology transactions, and trust and estates are also hot areas in 2017.

Source: BCG Attorney Search

• Related: Top Law Firms Consider 6 Questions When Hiring Lateral Lawyers
• Related: Confidence Is the Number One Trait to Be Successful

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Summary: Experienced ERISA litigator Russ Buhite has joined Ogletree Deakins as a shareholder in the Tampa and Seattle litigation group.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. has further expanded its ERISA Litigation Group. Russ Buhite will be working out of the Tampa and Seattle offices as a shareholder. Ogletree Deakins is one of the largest labor and employment law firms in the U.S. that focuses on representing management.

Buhite was the managing partner of the Tampa office of Marshall Dennehey Warner Coleman & Goggin, P.C. He brings over 25 years of experience in ERISA litigation and employment law to Ogletree. His practice will focus on life, disability, and health insurance coverage litigation, including benefit, compliance, and breach of fiduciary duty claims.

As a seasoned ERISA litigator, Buhite will advise employers on compliance matters like pension and welfare benefit. He has gone before state agencies, the EEOC, and state and federal courts to defend employers in employment law matters, insurance coverage, and bad faith litigation.

Kim Ebert, managing shareholder of Ogletree Deakins, states, “We are confident that Russ will establish a beachhead for benefits litigation in the Pacific Northwest and will add great value for our clients in Washington and throughout the West Coast.” Buhite will start out in the Tampa office but transition to the newly opened Seattle office by springtime.

He earned his J.D. from Washington University School of Law and his B.A. from Rice University.

Source: http://www.ogletreedeakins.com/press-releases/ogletree-deakins-strengthens-erisa-litigation-group-adds-russ-buhite-as-shareholder

Photo: southflorida.citybizlist.com

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Summary: The addition of Theresa S. (Tess) Gee to Miller & Chevalier’s Employee Benefits practice will prove herself to be a valuable source of knowledge of ERISA matters for the firm.

Law firm Miller & Chevalier has brought on a new member to their Employee Benefits practice. Theresa S. (Tess) Gee is joining the firm with a vast amount of knowledge to help the firm navigate certain operations. She previously worked at O’Melveny & Myers LLP and the US Department of Labor.

Just some of Gee’s expertise includes litigating Employee Retirement Income Security Act matters and counseling on the fiduciary responsibilities for clients created by the ERISA. As the Deputy Associate Solicitor at the DOL’s Office of the Solicitor, she was primarily responsible for ERISA litigation and advice.

Chair of the firm’s Executive Committee, Anthony F. Shelley, said this of her skills, “Tess’s insight into the way the DOL operates, combined with the excellent counsel she provides clients, provides Miller & Chevalier with an invaluable skill set. Her addition will complement our already strong Employee Benefits and ERISA Litigation practices, and I’m pleased to welcome her to the firm.”

She currently serves as the Management Co-Chair for the American Bar Association’s Employee Benefits Committee. She regularly contributes to ERISA Fiduciary Law. She is also a Board member for the Gary S. Tell Scholarship Foundation, which gives stipends to law students each year that want to focus on ERISA litigation work with the government.

Gee earned her B.A. from the University of California at Berkeley and her J.D. from the University of California, Hastings College of the Law.

Source: http://www.millerchevalier.com/NewsEvents/PressReleases?find=154804

Photo: globalinvestigationsreview.com

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Summary: Charles Eskridge has joined the law firm of Quinn Emanuel Urquhart & Sullivan, LLP in the firm’s Houston office. 

The law firm of Quinn Emanuel Urquhart & Sullivan, LLP has announced that Charles Eskridge has joined the firm as a partner in the Houston office, according to a release from the firm.

Eskridge has extensive experience as a trial lawyer handling issues with complex commercial cases.

He also has experience with appellate advocate issues in both state and federal courts. He comes to the firm from Susman Godfrey, where he has worked since 1994.

To read more about Quinn Emanuel, click here.

His experience involves handling matters of intellectual property, antitrust, trade secrets, patents, securities fraud, aviation disasters, ERISA, the First Amendment, legal malpractice, employment issues, complex contractual disputes, asbestos bankruptcy litigation and insurance issues.

John B. Quinn, the firm’s managing partner, said, “It is rare you have the opportunity to add a partner of Charles’ caliber.  He is a unique talent who will help us service our growing list of Houston based clients.”

Eskridge added, “Frankly, I never thought I would ever leave Susman Godfrey.  I learned so much there and leave behind many good friends.  However, Quinn Emanuel offered something unique—the opportunity to build something from the ground up with all the resources of the world’s largest litigation firm at my disposal.  And to join partners of the caliber of David Gerger and Karl Stern in doing so is a real privilege.”

To read more law firm news stories, click here.

Eskridge earned his law degree from Pepperdine University School of Law after earning his B.S. from Trinity University. Eskridge is also an adjunct law professor at the University of Houston Law Center. He teaches courses on the Federal Courts and the Origins of the Federal Constitution.

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Image credit: Quinn Emanuel, Urquhart & Sullivan, LLP

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Summary: Mayer Brown welcomes veteran litigant Nancy Ross as partner on their ERISA branch in Chicago.

An outfit like Mayer Brown, with its global reach and dominance in the legal sector, carefully selects the partners it brings on board, and has made an especially stellar choice in bringing aboard Nancy Ross to join their Chicago office as a partner. She will bring her intensely focused experience working with the Employee Retirement Income Security Act of 1974 (ERISA) to thicken out Mayer’s Employment & ERISA Litigation practice.

This is a fitting choice considering Ross was named “Lawyer of the year ERISA Litigation – Chicago” by Best Lawyers in 2014. With years of experience advising employers regarding pension plans, ESOPS, fiduciary responsibilities, and the like, she has been eagerly welcomed by her new team.

“The continued increase in litigation under ERISA directly impacts companies in all industries, and Nancy is well-known in the marketplace as a first-rate ERISA and benefits litigator,” said Marcia Goodman, co-leader of Mayer’s ERISA branch. “Her breadth and depth of experience in counseling and litigation for these types of claims will be of tremendous value to clients, and we are thrilled to have her join Mayer Brown.”

Ross’s experience includes a JD from Loyola University of Chicago School of Law, and is broadened with her work on the board of directors on the Chicago Bar Foundation as well as vice chair of their Grants Committee.

“I was especially drawn to Mayer Brown’s collaborative culture, depth and quality of legal services and tremendous platform, which greatly complement my practice” said Ross, in explaining her move. “I look forward to working closely with talented lawyers across Mayer Brown’s various offices and practices to build upon the firm’s established ERISA litigation practice and esteemed reputation in client service.”

The key term here, of course, is “tremendous platform,” which was substantial enough to tempt a lawyer of Brown’s carriage. Having gained reputation and respect in her field, she would naturally choose a firm that can bolster her clout.

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