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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. 


Sound Process and Good Recordkeeping Demonstrate Compliance with COBRA Notice Requirements

Earlier this year the Eleventh Circuit Court of Appeals provided a reminder of how important it is for an employer to establish and follow proper COBRA notice procedures and preserve some type of evidence that the procedures are followed.  Employers who do those things will find that their efforts are rewarded if a COBRA beneficiary claims the employer failed to comply with COBRA's notice requirements.

In DeBene v. BayCare Health System, Inc., the Eleventh Circuit upheld a summary judgment issued against Paul DeBene, a former employee of BayCare Health Systems.  Among other claims, DeBene alleged that he did not receive the required COBRA notice after terminating employment.  In ruling for BayCare the court cited BayCare’s notice procedures, evidence that those procedures were followed, and evidence that other notices sent on the same day successfully reached their intended recipients.  The court determined that such evidence was sufficient to show that BayCare met its obligations under COBRA, regardless of whether DeBene actually received the notice.

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Supreme Court Upholds ERISA Exemption for Church Plans in Advocate Health Care Network v. Stapleton

In this Verrill Voices podcast, Eric Altholz and Misti Munster discuss the implications of the recent Supreme Court decision in Advocate Health Care Network v. Stapleton, which held that a plan established by a church-affiliated organization can qualify as a church plan exempt from ERISA. 

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Supreme Court’s Church Plan Decision Restores Order (But It May Not End the Litigation)

Earlier this week, in a unanimous decision, the U.S. Supreme Court overturned decisions by three federal Circuit Courts of Appeals and held that an employee benefit plan maintained by a church-controlled or church-affiliated organization can qualify as a “church plan” exempt from ERISA regardless of who establishes the plan.  Advocate Health Care Network v. Stapleton, No. 16-74, 581 U.S. ___ (2017).  In a concise and clearly written opinion, Justice Elena Kagan restored order in the church plan universe – and validated nearly 40 years of administrative decisions by the Internal Revenue Service, the Department of Labor, and the Pension Benefit Guaranty Corporation – by explicitly affirming that church-affiliated hospitals and other organizations can establish benefit plans that should be accorded the same treatment as plans actually established by a church.  The Stapleton decision completely shut down the primary line of argument pursued by plaintiffs in a series of class action lawsuits.  The plaintiffs challenged the status of pension plans maintained by hospitals and other church-affiliated organizations as church plans, and sought to bring those plans into the strict regulatory framework of ERISA.  Nevertheless, the decision leaves open one final line of argument that could be pursued by attorneys representing aggrieved plan participants in church plan cases.  So the discussion, and the litigation, may not end here.  

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PODCAST: Ins & Outs of Socially Responsible Investing for Retirement Plans

Verrill Dana employee benefits attorneys Eric Altholz and Chris Lockman discuss the inclusion of socially conscious/socially responsible investment options in 401(k) and 403(b) plans in their latest podcast for Verrill Voices.  The podcast explores Department of Labor guidance regarding this category of investments, identified by the DOL as Economically Targeted Investments (ETIs), including a brief history of ETIs and DOL Interpretive Bulletins 94-01, 08-01, and 2015-01.  Eric and Chris also provide examples of the different types of ETI funds and offer practical advice that will help plan fiduciaries comply with the fiduciary standards under ERISA when selecting ETIs.


PODCAST: 403(b) Plan Fee Litigation Update

Verrill Dana Employee Benefits attorneys Eric Altholz and Chris Lockman provide a brief update on class action lawsuits alleging various breaches of fiduciary duties under ERISA pending against a dozen major universities.  All of these lawsuits are related to the administration of the 403(b) plans maintained by the universities, but these issues are not limited to higher education institutions.  Tax-exempt employers, including health care organizations, whose 403(b) programs may include multiple vendors and a large number of investment options should reduce the risk of “analysis paralysis” and high fees that may result from offering a large number of vendors and funds.  In this podcast, Eric and Chris offer thoughts about how retirement plan fiduciaries can assess and improve their practices regarding the investment of plan assets in 403(b) and 401(k) plans.