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DISCLAIMER: This blog is published for general information only - it is not intended to constitute legal advice and cannot be relied upon by any person as legal advice.  U.S. Treasury Regulations require us to notify you that any tax-related material in this blog (including links and attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding tax penalties, and may not be referred to in any marketing or promotional materials.  While we welcome you to contact our authors, the submission of a comment or question does not create an attorney-client relationship between the Firm and you. 


Near Unity Among the Circuits: Anti-Assignment Provisions are Enforceable

U.S. Courts of Appeals in all but four Circuits have now held that anti-assignment provisions in health insurance plans governed by ERISA are enforceable.  In American Orthopaedic & Sports Medicine v. Independence Blue Cross Blue Shield, No. 17-1663, 2018 WL 2224394 (3d Cir. May 16, 2018) the Third Circuit joined the First, Second, Fifth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals in holding that an anti-assignment provision effectively prevents a plan participant from assigning her right to sue for benefits under ERISA to a third party. 

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Socially Responsible Investing and the Plan Fiduciary

In the wake of mass shootings, environmental disasters, industrial accidents, drug and tobacco use pandemics, and other tragedies, retirement plan investors are paying more attention to selecting or rejecting investments based on perceived public policy benefits or detriment.  For example, investors are more focused than ever on the larger implications of a mutual fund’s holdings in arms manufacturers and diamond mine operators. Retirement plan fiduciaries increasingly find themselves in the difficult position of having to respond to these concerns when they are raised by plan participants and beneficiaries while fulfilling their fiduciary duties under ERISA. In fact, ERISA plan fiduciaries and the Department of Labor have been wrestling with the concept of socially responsible investing for many years.

The DOL’s most recent guidance on the subject was released on April 23, 2018 (Field Assistance Bulletin 2018-01). This FAB is the latest in a series of pronouncements that includes opinion letters and prohibited transaction exemptions in the 1980s, and ERISA Interpretive Bulletins in 1994, 2008 and 2015. Consistent with the purpose of a Field Assistance Bulletin, FAB 2018-01 purports to interpret rather than replace prior guidance. Nonetheless, it may have a chilling effect on plan fiduciaries who have relied on the 2015 guidance to consider one or more socially responsible investments for retirement plans.

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Wellness Programs: Where are we now?

Wellness programs are governed by overlapping and, at times, maddeningly inconsistent regulations and agency guidance.  Litigation challenging the wellness program rules issued by the EEOC in 2016 has added another layer of complexity for employers attempting to design and administer wellness programs in compliance with applicable law.  Nevertheless, wellness programs remain extremely popular among employers of all sizes and across all industry groups.  Below is a brief overview of the current state of the law governing wellness plans and a few practical recommendations to employers for navigating the evolving regulatory environment. 

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Lisa S. Boehm Named Employee Benefits Lawyer of the Year

Lisa S. Boehm, a Partner in Verrill Dana's Employee Benefits and Executive Compensation group, has been named 2018 Portland, Maine Employee Benefits (ERISA) Law "Lawyer of the Year" by Best Lawyers®.  This is the second time that Ms. Boehm has been named "Lawyer of the Year," having been honored by selection in 2015.  Three other members of the Employee Benefits and Executive Compensation Group have been recognized as "Lawyer of the Year" in the group's home market:  Eric Altholz (2017), Suzanne Meeker (2013), and Gregg Ginn (2011).  

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Fifth Circuit Vacates DOL Conflict of Interest Fiduciary Rule

The Fifth Circuit vacated the Department of Labor’s long-suffering conflict of interest rule (commonly referred to as the “fiduciary rule”), holding that the rule exceeds the scope of DOL’s regulatory authority. The decision means that the expanded definition of fiduciary, the elevated standards of conduct for certain investment advisors, and the accompanying prohibited transaction exemptions are not enforceable in the Fifth Circuit, at least for the time being.

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