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Supreme Court Confirms Ongoing Duty to Monitor Investments

In Tibble v. Edison International, announced on May 18th, the U.S. Supreme Court confirmed that fiduciaries have an ongoing fiduciary duty to monitor investments in retirement plans and to remove imprudent investments. ?áThe Court held that fiduciaries will not avoid potential liability simply because the six-year ERISA limitations period has run from the time the investment alternative for the retirement plan was originally selected, even if that original selection was prudent. ?áThe Court did not provide any further guidance on what the “duty to monitor” entails and instead remanded the case to the lower court to determine whether the fiduciaries in the case satisfied their duty to monitor. ?áThe opinion can be found here.

Preventive Services (Including Contraception Methods) That Must Be Provided Without Cost-Sharing

New guidance issued by the federal government clarifies what preventive care items and services must be covered, without cost-sharing, for compliance with the Affordable Care Act under an employer-sponsored group health plan. Of note, BRCA genetic testing must be covered if appropriate for women with a personal history of cancer, well-woman visits (including preconception and prenatal care) must be covered as appropriate for dependent children, and anesthesia performed in connection with a preventive colonoscopy must be covered, each without cost-sharing. In addition, a plan must cover, without cost-sharing, at least one form of contraception in each of the 18 FDA-approved methods. The coverage must include the clinical services and patient education and counseling needed for provision of the contraceptive method. Affordable Care Act Implementation FAQ Part XXVI is available here.

IRS Releases 2016 Inflation Adjusted Amounts for HSAs and HDHPs

The IRS issued Revenue Procedure 2015-30, which sets the 2016 calendar year limits on (1) annual contributions that can be made to a health savings account (?Ç£HSA?Ç¥) and (2) annual deductibles and out-of-pocket maximums under a high deductible health plan (?Ç£HDHP?Ç¥). The 2016 limit on contributions to an HSA for an individual with self-only coverage under an HDHP remains unchanged at $3,350, whereas the limit for an individual with family coverage under an HDHP is increased from $6,650 to $6,750. The minimum annual deductibles for a plan to qualify as an HDHP in 2016 remain unchanged at $1,300 for self-only coverage and $2,600 for family coverage, whereas the annual out-of-pocket maximums under an HDHP are increased from $6,450 to $6,550 for self-only coverage and from $12,900 to $13,100 for family coverage. Revenue Procedure 2015-30 is available here.

Five Tips For Lenders Seeking Insurance Coverage For Defense Costs In Foreclosure Actions

While the worst of the housing crisis may be over, a significant number of existing foreclosures remain, and new foreclosures continue apace.?á According to RealtyTrac, there were 122,060 new foreclosure filings in March 2015,[1] and there are 842,773 properties in the U.S. in some stage of foreclosure.[2]?á For those properties that are subject to judicial foreclosure, many will involve borrowers, who have asserted a variety of counterclaims against the mortgagee.?á These counterclaims may include allegations of breach of contract, fraud, misrepresentation, unjust enrichment, breach of duty of good faith and fair dealing, and the violation of numerous statutes, such as the Truth in Lending Act (TILA) and Real Estate Settlement Procedures Act (RESPA), among others.?á Lenders have paid millions in attorneys?ÇÖ fees defending against such counterclaims. Fortunately, many mortgagees are protected by lender title insurance policies, which not only insure against defects in title, but also cover the cost of… Continue Reading

IRS Issues Guidance Regarding Hardship Withdrawals and Participant Loan Documentation

A recent issue of the IRS Employee Plans News publication reminded retirement plan sponsors that they are ultimately responsible for maintaining required documentation of hardship withdrawals and participant loans, even if they rely on a third-party administrator to approve and process such transactions. ?áThe article listed certain records that must be obtained to document hardship withdrawals and participant loans, and noted that an employee’s electronic self-certification is insufficient documentation to substantiate a hardship withdrawal. ?áThe IRS’s statement regarding self-certification with respect to hardship withdrawals has generated controversy, and plan sponsors and their legal counsel should remain on alert for future guidance on this topic. ?áIn the meantime, plan sponsors are reminded that additional documentation should always be requested, particularly if the plan sponsor has notice that the self-certification or other documentation provided by a participant requesting a hardship withdrawal or loan may be false or internally inconsistent. ?áAny improper distribution… Continue Reading

SEC Proposes Rules Requiring New Pay-for-Performance Disclosure

On April 29, 2015, the U.S. Securities and Exchange Commission (the “SEC“) voted to propose rules under Section 953(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, requiring companies to disclose the relationship between executive compensation actually paid and the financial performance of the company. ?áThis new “pay-for-performance” disclosure (the “Disclosure“) would include information for the company and peer group companies set out in a table that is incorporated into the proxy or other information statements in which executive compensation disclosure is required. ?áThe Disclosure would present (a) executive compensation actually paid for the principal executive officer (i.e., the total compensation as disclosed in the proxy statement’s summary compensation table (the “SCT“), with adjustments for pension and equity award amounts); (b) the average compensation actually paid to the remaining named executive officers identified in the SCT; and (c) the total annual shareholder return of the company and its… Continue Reading

Excluding Interns from Health Coverage this Summer?

Remember that paid interns who work at least 30 hours per week are considered to be ?Ç£full-time employees?Ç¥ who could trigger employer penalties under the Affordable Care Act (the ?Ç£ACA?Ç¥). Employers may thus want to consider (1) implementing measurement periods to exclude seasonal employees (including interns) or (2) offering health plan coverage to interns, who are likely still covered under their parent?ÇÖs insurance or school insurance. If an employer does neither (1) nor (2) and continues to exclude interns from health plan coverage, one of two employer penalties may apply. The first penalty could apply if the excluded interns (plus any other excluded full-time employees or contractors reclassified as employees by the IRS) exceed 5 percent (30 percent for 2015 only) of the total full-time employee population in any month (generally determined on an individual employer basis for related employers). The second penalty could apply if any of the excluded… Continue Reading

May 2015