In a 5-4 decision in Thole v. U.S. Bank N.A., the US Supreme Court has ruled that defined benefit plan participants lack Article III standing to sue for fiduciary breaches that do not harm the individual participants. As the Court noted, “[u]nder ordinary Article III standing analysis, the plaintiffs lack Article III standing for a simple, common-sense reason: They have received all of their vested pension benefits so far, and they are legally entitled to receive the same monthly payments for the rest of their lives. Winning or losing this suit would not change the plaintiffs’ monthly pension benefits.”
It is with extremely heavy hearts that we report the passing of our great friend and retired Employee Benefits practice leader Steve Spencer, who died June 3 in a tragic accident that took him from us much too early. There are no words to make this time any easier for the many of us who thought of Steve as our leader, mentor, teacher, and confidant. He was warm and caring, and always willing to give his time to help his colleagues, our clients, and our community. Steve helped build the careers of many at Morgan Lewis and taught a generation of ERISA lawyers through his work with the American College of Employee Benefits Counsel, American Bar Association, International Foundation of Employee Benefit Plans, and at various universities and law schools. He gave everything he had and more to the practice of law—not only his time and devotion but his sharp humor and wit. Steve was the consummate gentleman who never got flustered and was always the calming voice of reason. Our thoughts and prayers are with his wife, Lynne, and his sons Ryan and Chris at this difficult time. We are heartbroken.
In response to the coronavirus (COVID-19) pandemic, the Internal Revenue Service (IRS) has issued new formal guidance that extends the deadline for providers of individual retirement accounts and individual retirement annuities (IRAs) to file Form 5498.
Read our LawFlash for more information on the new guidance.
Join Morgan Lewis in the coming weeks for these programs on employee benefits and executive compensation:
- Mission Critical Benefits in a Pandemic Economy | May 27 | Webinar presented by Mary B. Hevener, R. Randall Tracht, David B. Zelikoff, Saghi Fattahian and Elizabeth S. Goldberg
- Hot Topics in Employee Benefits: What We’re Seeing – June 2020 | June 9 | Webinar presented by Andy R. Anderson, Brian D. Hector, Daniel R. Salemi, David B. Zelikoff, Claire E. Bouffard and Jacob M. Oksman
The US Department of Labor (DOL) announced publication of a final rule expanding the electronic disclosure options available for retirement plan communications on May 21. The final rule creates a new safe harbor that permits retirement plan administrators to satisfy certain ERISA disclosure requirements by providing individuals with electronic notice and access to documents on a website or by sending an email or other electronic communication with the documents as an attachment or in the body of the communication.
The DOL describes the new safe harbor rule as “fundamentally similar to the proposed rule,” which we previously summarized. However, there are a number of important changes to the proposed rule that will be welcomed by the plan sponsor community. A more in-depth review and analysis of the new safe harbor rule is forthcoming, but in the meantime, we wanted to highlight a few key aspects:
A CARES Act provision offers some relief to employee stock ownership plans by allowing the suspension of required minimum distributions for 2020.
In addition to providing individual stimulus payments and other individual-oriented assistance, the CARES Act contains some provisions aimed at retirement plans, some of which are of particular interest to companies that maintain employee stock ownership plans (ESOPs).
While much of the attention by regulators has been focused on the coronavirus (COVID-19) response and CARES Act/FFCRA guidance, they have not forgotten about the SECURE Act’s introduction of pooled employer plans (PEPs) (centrally administered defined contribution plans that can be joined by multiple unrelated employers).
One of the simplest yet most integral parts of meeting your ERISA fiduciary duties is “sticking to the plan.” Section 402(a)(1) of ERISA requires that every employee benefit plan it covers be established and maintained pursuant to a written instrument.
Establishing a written plan document is a nonfiduciary “settlor” activity. This means that all of the decisions that go into designing the plan are not subject to the ERISA standard of care and cannot be challenged for a breach of fiduciary duty.
On the other hand, following the written plan document in the day-to-day management and administration of the plan is a fiduciary duty under Section 404(a)(1)(D) of ERISA to the extent that it is consistent with ERISA. ERISA requires strict compliance, and veering from the plan’s written terms is generally a per se violation of ERISA. Failure to follow the written plan terms is the most obvious breach of fiduciary duty for a court or regulatory agency to spot and enforce. For example, where a fiduciary’s decision may or may not plainly be a breach of prudence under ERISA, a clear violation of the plan’s written terms may otherwise be the court’s or regulatory agency’s path to finding a breach.
The Coronavirus Aid, Relief, and Economic Security (CARES) Act that was signed into law on March 27 contains several emergency measures affecting retirement plans. The CARES Act gives plan sponsors the option of making available to participants, effective immediately, penalty-free coronavirus-related distributions as well as plan loans increased beyond the amount otherwise permitted under Internal Revenue Code (IRC) 72(p). Plan amendments for these provisions need not be adopted until the last day of the plan year beginning in 2022 (2024 for governmental plans). As plan sponsors eagerly put into place a portion or all of these relief measures, it is important to consider the special mid-year amendment rules that apply to safe harbor 401(k) plans.
Due to widespread court closures as a result of the coronavirus (COVID-19) pandemic, it may be difficult for participants or their attorneys to obtain a certified copy of a domestic relations order that many retirement plans require as part of the procedures for processing qualified domestic relations orders (QDROs). To address this issue, plans might consider adopting temporary procedures that allow for the continued qualification and processing of QDROs during these extraordinary circumstances without creating permanent exceptions to their normal QDRO procedures.
