Publications

Section Newsletter Articles on ERISA

ERISA to the rescue: Preemption of state law prevails By James Baker, Douglas Darch, and Miriam G. Petrillo Employee Benefits, April 2015 The recent case of Sherfel v. Newson reinforces the existing interpretation of ERISA and highlights the challenges facing multi-state employers.
Paid sick time laws sweep the nation By Jenni Field Employee Benefits, April 2015 Employers with locations in multiple jurisdictions with paid sick leave laws will have to craft separate sick leave policies for each location.
Supreme Court update—The day the ERISA presumption of prudence died By James Baker Employee Benefits, April 2015 ERISA plaintiffs’ lawyers have a new hill to climb—framing ERISA fiduciary breach claims that comport with the insider trading restrictions contained in federal securities laws.
Federal case update By Michael Bartolic Employee Benefits, January 2015 Recent cases of interest.
History of the formation of the Employee Retirement Income Security Act of 1974 as Amended (ERISA) and some important ERISA and Internal Revenue Code issues By Bernard G. Peter Employee Benefits, January 2015 A review of how ERISA came to be, and answers to some frequently asked questions. 
Supreme Court update—The ERISA plan sponsor can now control the game clock By James Baker Employee Benefits, January 2015 The U.S. Supreme Court, in Heimeshoff v. Hartford Life & Accident Insurance Co., determined that the limitations period at issue was not unreasonably short.
Smith v. Aegon Companies Pension Plan: Enforceability of venue selection clauses By Nancy G. Ross and Samuel P. Myler Employee Benefits, December 2014 While some district courts, such as the Northern District of Illinois in Coleman v. Supervalu, Inc. Short Term Disability Program have agreed with plan participants that venue selection clauses are inconsistent with ERISA, the Sixth Circuit’s recent 2-1 decision in Smith v. Aegon Companies Pension Plan lends strong support for the prevailing view among the district courts that such clauses are enforceable.
The “construction exemption” for contractor unfunded pension withdrawal liability By Stanley N. Wasser Construction Law, October 2014 A look at some of the basic concepts that must be understood for advising construction contractor clients whether the “construction exemption” will protect their client from unfunded pension withdrawal liability.
History of the formation of the Employee Retirement Income Security Act of 1974 as Amended (ERISA) and some important ERISA and Internal Revenue Code issues By Bernard G. Peter Corporate Law Departments, September 2014 A review of how ERISA came to be, and answers to some frequently asked questions. 
Five proven tactics to minimize ERISA litigation risk By James Baker and Lisa Brogan Employee Benefits, June 2014 Companies can improve their employee benefit plan offerings and, at the same time, minimize ERISA litigation risk by making small changes to their employee benefit plan documents.
A warning to public sector employers: ERISA can apply to you By Benjamin E. Gehrt Employee Benefits, June 2014 Many HR professionals, elected officials, and even some attorneys share a common belief: ERISA does not apply to public sector employers. Unfortunately, they are wrong.
Time is not relative for ERISA statutes of limitation By James Baker and Lisa Brogan Employee Benefits, May 2014 On Dec. 16, 2013, the U.S. Supreme Court announced that an Employee Retirement Income Security Act plan’s own contractual time period for contesting plan benefit disputes is enforceable.
Federal case update By Michael Bartolic Employee Benefits, February 2014 Recent cases of interest to employee benefits practitioners.
A summary of the anti-cutback rule By Patrick Colgan Employee Benefits, February 2014 A brief overview of some of the components that have been included in a court’s analysis of the anti-cutback rule including examples of that analysis.
Federal successor liability under ERISA and the MPPAA By Donald S. Rothschild and Brian M. Dougherty Labor and Employment Law, July 2013 This article will explore the history of ERISA and the MPPAA, how successor liability has evolved under federal law and what needs to be proven in order to hold a successor company liable for withdrawal liability.
The evolving and murky world of ERISA damages . . . . I mean equitable remedies By Glenn R. Gaffney Federal Civil Practice, March 2013 This article outlines the court’s evolving use of equitable terms and concepts so as to provide jilted plan beneficiaries with make-whole relief resulting in a monetary judgment under ERISA’s statutory provision of “other appropriate equitable relief.”
Case update: In Re: Citigroup ERISA Litigation By Maria M. Gonzalez Employee Benefits, November 2011 The In Re: Citigroup decision contains the most substantive discussion of the Court’s analysis addressing the legal standard governing breach of fiduciary duty claims brought against plan administrators of 401(k), ESOP and other forms of eligible individual account plans that maintain company stock in the plan when there is a substantial decline in price of the stock.
CIGNA Corp. v. Amara case update By Richard Toth Employee Benefits, September 2011 The case signals a likely expansion of the remedies under ERISA’s § 502(a)(3), which provides for “appropriate equitable relief.”
Single employer defined benefit plan fiduciaries’ exposure to risk of liability to participants under the Pension Protection Act of 2006’s mandatory benefit restrictions By Michael Bartolic Employee Benefits, September 2011 Plan sponsors and fiduciaries should be careful to take precautions to avoid unnecessary impositions of the Pension Protection Act’s mandatory benefit restrictions because of statutory presumptions of the Adjusted Funding Target Attainment Percentage.
DeBofsky offers testimony on reforming ERISA By Mark D. DeBofsky Insurance Law, February 2011 Read the transcript of Mr. DeBofsky's testimony before the Senate Finance Committee.
Books Employee Benefits, September 2010 Some suggestions for which books to use when beginning your ERISA research.
ERISA withdrawal liability—The labor dispute exemption By Douglas A. Darch Employee Benefits, June 2010 What happens if an employer ceases making payments to its multi-employer pension plan because its employees are on strike?
ERISA update By Amy L. Blaisdell and Wendy S. Menghini Business Advice and Financial Planning, December 2009 During the economic downturn, it has become commonplace for putative class action lawsuits to be filed under the Employee Retirement Income Security Act of 1974 (“ERISA”) on the heels of federal securities cases against publicly traded companies and the directors and officers at their helm.
The Efficient Market Hypothesis and ERISA Employee Benefits, September 2009 EMH holds that the price of a stock incorporates all publicly available information about the company; it follows that plan fiduciaries are entitled to rely on that valuation and are not required to second-guess the market.
Privacy: Social Security numbers Employee Benefits, September 2009 ERISA has a little-known privacy provision in Section 106(b) which restricts the disclosure of certain information about participants.
401(k) Fiduciary Duties: Continuum of Ambiguities By Melissa Caldwell Employee Benefits, June 2009 401(k) revenue sharing and plan fiduciary duty litigation is becoming a complex area of law. With an increasing number of claims alleging breach of fiduciary duties and fee disclosure, employers and plan sponsors are looking for direction in this confusing area of ERISA law.
Enforceability of ERISA waiver provisions in antenuptial agreements By Michael DiDomenico Family Law, March 2009 It is appropriate to recognize an action in breach of contract against spouses for failure to waive their ERISA benefits as promised in a prenuptial agreement.
Section 502(a)(1)(B) claims—Proper defendants Employee Benefits, March 2009 There are numerous, contradictory decisions within the Ninth Circuit concerning the proper defendant in a suit for benefits under section 502(a)(1)(D).
ERISA and the Common Fund Doctrine: A precept By D.J. Evans Civil Practice and Procedure, October 2008   If you have dealt with a so-called ERISA lien before, you are trained to spot these liens from a mile away and already know the consequences. However, if this is your first heavyweight bout with the albatross which is referred to as the ERISA lien, you simply have no idea what you are about to encounter.
Employer’s test for tobacco use might violate ERISA By Michael R. Lied Labor and Employment Law, June 2008 A summary of Rodrigues v. The Scotts Co., LLC and EG Sys., Inc., d/b/a Scotts Lawnservice.