A recently filed lawsuit related to Swiss Re’s 401(k) plan stands out because of the extensive assortment of allegations. These allegations against Swiss Re, its 401(k) plan fiduciaries, and the plan’s recordkeeper include:
the plan paid excessive recordkeeping fees;
the plan’s investment options, including its target date funds, underperformed;
some of the plan’s investment options offered lower cost share classes than the share class available in the plan;
the plan failed to utilize the assets in the forfeiture account;
the plan’s recordkeeper misused participant data to market its Roth IRAs to participants; and
the plan’s fiduciaries failed to monitor the recordkeeper’s misuse of participant data.
https://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.png00Alex Smithhttps://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.pngAlex Smith2025-04-01 14:24:002025-04-01 14:24:00Every Little Thing … Employer Considerations as New 401(k) Lawsuit Includes Extensive Claims
Over the past several months, numerous large employers and their health plan fiduciaries have faced lawsuits regarding their health plan’s tobacco surcharge. A tobacco surcharge wellness program typically charges a higher monthly premium to employees and covered dependents who smoke or otherwise use tobacco products to account for some of the higher medical costs associated with tobacco use. Tobacco users can typically avoid the surcharge by completing a smoking cessation program, regardless of whether they actually quit.
This wave of putative class action lawsuits began earlier this year even though employer health plan tobacco surcharges have been around for years and the HIPAA regulations permitting the surcharges were last updated in 2013. Since then, numerous lawsuits challenging employer health plan tobacco surcharge programs have been filed. Courts have yet to rule on the recently filed lawsuits, with the plaintiffs voluntarily dismissing one of the lawsuits prior to the court ruling on the employer’s motion to dismiss. Read more
https://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.png00Alex Smithhttps://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.pngAlex Smith2024-12-17 15:04:352024-12-17 15:04:35Smoke ‘Em One By One … Navigating the Wave of Tobacco Surcharge Lawsuits
Over the past year, numerous employers and their 401(k) plan fiduciaries have faced lawsuits regarding how forfeited employer contributions to their 401(k) plan are utilized. This wave of lawsuits began approximately a year ago when a plaintiff’s law firm filed putative class action lawsuits raising this novel claim against multiple large employers, including Intuit, Clorox, and Thermo Fisher Scientific in California federal courts. Since then, this claim has been included in numerous 401(k) plan lawsuits even though none of these lawsuits have reached a final judgment on the merits and only five have had decisions on motions to dismiss.
These lawsuits allege that the employer and its 401(k) plan fiduciaries breached their fiduciary duties under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), by using forfeited employer contributions to the 401(k) plan to offset future employer contributions instead of using the forfeited amounts to offset 401(k) plan expenses that were charged to participant accounts. The plaintiff’s counsel alleges that the employer and 401(k) plan fiduciaries are violating ERISA’s fiduciary requirements to make decisions for the benefit of plan participant because the employer benefits from a reduction in its future employer contributions at the expense of plan participants who have to pay for certain expenses that are charged to their 401(k) accounts. Read more
https://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.png00adminhttps://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.pngadmin2024-10-01 13:15:062024-10-01 13:15:06Heads California, Tails Carolina… Employer Considerations Following Wave of 401(k) Forfeiture Lawsuits
New guidance from the Employee Benefits Security Administration (EBSA) affirms that both sides—retirement plans and welfare plans—must take steps to secure participant data from cybercrime.
In 2021 the Department of Labor (DOL) introduced new guidance on best practices for maintaining cybersecurity, which included tips to participants who check their retirement accounts online. From this, many plan sponsors and service providers concluded that the guidance was only applicable to retirement benefits (such as 401(k), profit sharing, and pension plans). Read more
https://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.png00adminhttps://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.pngadmin2024-09-10 11:07:242024-09-10 11:07:24Both Sides Now… Must Be Alert to Cybersecurity
Last week, former Wells Fargo employees filed a class action lawsuit against Wells Fargo and its health plan fiduciaries alleging that Wells Fargo’s self-funded health plan violated ERISA by paying its pharmacy benefits manager (PBM) excessive administrative fees and excessive fees for prescription drugs. This lawsuit appears to be similar to a lawsuit filed against Johnson & Johnson and its health plan fiduciaries earlier this year. Both lawsuits allege that the health plan paid its PBM exponentially more for certain prescription drugs than the price charged by certain retail pharmacies for the same drugs. Coincidentally, both lawsuits indicate the health plans are funded through a voluntary employees’ beneficiary association (VEBA) trust. See our prior blog post for more information on the heightened health plan fiduciary standards that may be driving these lawsuits. Read more
https://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.png00Alex Smithhttps://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.pngAlex Smith2024-08-08 11:56:462024-08-08 11:56:46Hole in the Bottle… Employer Considerations After Another Lawsuit Against an Employer Health Plan
The Department of Health and Human Services issued a final rule amending the HIPAA privacy rules (“2024 Privacy Rule”). The 2024 Privacy Rule limits the use or disclosure of an individual’s PHI in connection with reproductive healthcare for certain non-healthcare purposes, where such use or disclosure could be detrimental to the privacy of the individual, or another person, or the individual’s trust in their healthcare providers. Among other changes, the 2024 Privacy Rule added a new category of prohibited uses and disclosures of PHI, which prohibits the use or disclosure of PHI for any of the following activities:
to conduct criminal, civil, or administrative investigations into any person for the mere act of seeking, obtaining, providing, or facilitating reproductive healthcare, where such healthcare is lawful under the circumstances in which it is provided;
to impose criminal, civil, or administrative liability on any person for the mere act of seeking, obtaining, providing, or facilitating reproductive healthcare, where such healthcare is lawful under the circumstances in which it is provided; and
to identify any person for the purpose of conducting such investigation or imposing such liability.
https://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.png00Leslie Thomsonhttps://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.pngLeslie Thomson2024-07-25 12:45:172024-07-25 12:45:17P-R-I-V-A-C-Y is Priceless to Me: The 2024 Privacy Rule
Congratulations! You made it to summer, that wonderful time of year when things at work (hopefully) slow down a bit and you’re able to take some well-deserved time off. Though before you Go-Go(‘s) (do you see what I did there?), be sure your July employee benefits compliance deadlines are covered.
July 29 – Summary of Material Modifications (SMM) – Were any of your organization’s plans materially amended last year? If so, you may be required to furnish an SMM to participants (or a revised summary plan description). Those SMMs must be provided no later than 210 days after the end of the plan year in which the change was adopted. So, for a 2023 change, the SMM deadline would fall on July 29 (you get an extra day this year because 210 days falls on July 28, a weekend). Read more
https://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.png00Benjamin Gibbonshttps://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.pngBenjamin Gibbons2024-07-11 09:31:122024-07-11 09:31:12Vacation, All I Ever Wanted – But Don’t Forget Your July Compliance Deadlines
Every Little Thing … Employer Considerations as New 401(k) Lawsuit Includes Extensive Claims
/in 401(k) Plans, Corporate Governance in Benefits, DOL, ERISA, Fees, Fiduciary Duties, Investments, IRS, Litigation, Retirement Plansby Alex Smith
A recently filed lawsuit related to Swiss Re’s 401(k) plan stands out because of the extensive assortment of allegations. These allegations against Swiss Re, its 401(k) plan fiduciaries, and the plan’s recordkeeper include:
Read more
Smoke ‘Em One By One … Navigating the Wave of Tobacco Surcharge Lawsuits
/in Corporate Governance in Benefits, DOL, ERISA, Fees, Fiduciary Duties, Health & Welfare Plans, IRS, Litigationby Alex Smith
Over the past several months, numerous large employers and their health plan fiduciaries have faced lawsuits regarding their health plan’s tobacco surcharge. A tobacco surcharge wellness program typically charges a higher monthly premium to employees and covered dependents who smoke or otherwise use tobacco products to account for some of the higher medical costs associated with tobacco use. Tobacco users can typically avoid the surcharge by completing a smoking cessation program, regardless of whether they actually quit.
This wave of putative class action lawsuits began earlier this year even though employer health plan tobacco surcharges have been around for years and the HIPAA regulations permitting the surcharges were last updated in 2013. Since then, numerous lawsuits challenging employer health plan tobacco surcharge programs have been filed. Courts have yet to rule on the recently filed lawsuits, with the plaintiffs voluntarily dismissing one of the lawsuits prior to the court ruling on the employer’s motion to dismiss. Read more
Heads California, Tails Carolina… Employer Considerations Following Wave of 401(k) Forfeiture Lawsuits
/in 401(k) Plans, Corporate Governance in Benefits, DOL, ERISA, Fees, Fiduciary Duties, IRS, Litigation, Retirement Plansby Alex Smith
Over the past year, numerous employers and their 401(k) plan fiduciaries have faced lawsuits regarding how forfeited employer contributions to their 401(k) plan are utilized. This wave of lawsuits began approximately a year ago when a plaintiff’s law firm filed putative class action lawsuits raising this novel claim against multiple large employers, including Intuit, Clorox, and Thermo Fisher Scientific in California federal courts. Since then, this claim has been included in numerous 401(k) plan lawsuits even though none of these lawsuits have reached a final judgment on the merits and only five have had decisions on motions to dismiss.
These lawsuits allege that the employer and its 401(k) plan fiduciaries breached their fiduciary duties under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), by using forfeited employer contributions to the 401(k) plan to offset future employer contributions instead of using the forfeited amounts to offset 401(k) plan expenses that were charged to participant accounts. The plaintiff’s counsel alleges that the employer and 401(k) plan fiduciaries are violating ERISA’s fiduciary requirements to make decisions for the benefit of plan participant because the employer benefits from a reduction in its future employer contributions at the expense of plan participants who have to pay for certain expenses that are charged to their 401(k) accounts. Read more
Both Sides Now… Must Be Alert to Cybersecurity
/in 401(k) Plans, Cafeteria Plans, Defined Benefit Plans, DOL, ERISA, Fiduciary Duties, Health & Welfare Plans, Retirement Plansby Becky Achten
New guidance from the Employee Benefits Security Administration (EBSA) affirms that both sides—retirement plans and welfare plans—must take steps to secure participant data from cybercrime.
In 2021 the Department of Labor (DOL) introduced new guidance on best practices for maintaining cybersecurity, which included tips to participants who check their retirement accounts online. From this, many plan sponsors and service providers concluded that the guidance was only applicable to retirement benefits (such as 401(k), profit sharing, and pension plans). Read more
Hole in the Bottle… Employer Considerations After Another Lawsuit Against an Employer Health Plan
/in Corporate Governance in Benefits, DOL, ERISA, Fees, Fiduciary Duties, Health & Welfare Plans, Litigationby Alex Smith
Last week, former Wells Fargo employees filed a class action lawsuit against Wells Fargo and its health plan fiduciaries alleging that Wells Fargo’s self-funded health plan violated ERISA by paying its pharmacy benefits manager (PBM) excessive administrative fees and excessive fees for prescription drugs. This lawsuit appears to be similar to a lawsuit filed against Johnson & Johnson and its health plan fiduciaries earlier this year. Both lawsuits allege that the health plan paid its PBM exponentially more for certain prescription drugs than the price charged by certain retail pharmacies for the same drugs. Coincidentally, both lawsuits indicate the health plans are funded through a voluntary employees’ beneficiary association (VEBA) trust. See our prior blog post for more information on the heightened health plan fiduciary standards that may be driving these lawsuits. Read more
P-R-I-V-A-C-Y is Priceless to Me: The 2024 Privacy Rule
/in Health & Welfare Plansby Leslie Thomson
The Department of Health and Human Services issued a final rule amending the HIPAA privacy rules (“2024 Privacy Rule”). The 2024 Privacy Rule limits the use or disclosure of an individual’s PHI in connection with reproductive healthcare for certain non-healthcare purposes, where such use or disclosure could be detrimental to the privacy of the individual, or another person, or the individual’s trust in their healthcare providers. Among other changes, the 2024 Privacy Rule added a new category of prohibited uses and disclosures of PHI, which prohibits the use or disclosure of PHI for any of the following activities:
Read more
Vacation, All I Ever Wanted – But Don’t Forget Your July Compliance Deadlines
/in 401(k) Plans, 403(b) plans, Defined Benefit Plans, DOL, ERISA, ESOPs, Fees, Health & Welfare Plans, IRS, Retirement Plansby Benjamin Gibbons
Congratulations! You made it to summer, that wonderful time of year when things at work (hopefully) slow down a bit and you’re able to take some well-deserved time off. Though before you Go-Go(‘s) (do you see what I did there?), be sure your July employee benefits compliance deadlines are covered.
July 29 – Summary of Material Modifications (SMM) – Were any of your organization’s plans materially amended last year? If so, you may be required to furnish an SMM to participants (or a revised summary plan description). Those SMMs must be provided no later than 210 days after the end of the plan year in which the change was adopted. So, for a 2023 change, the SMM deadline would fall on July 29 (you get an extra day this year because 210 days falls on July 28, a weekend). Read more