The Employee Benefits Practice is pleased to present the Employee Benefits Developments Newsletter for the month of March 2019.

Court Holds Notice of Withdrawal Liability Assessment to Certain Controlled Group Members Serves as Adequate Notice to Other Controlled Group Members

If a contributing employer withdraws from a multiemployer pension plan, the contributing employer may be subject to withdrawal liability for its proportionate share of the plan’s unfunded vested benefits.  If withdrawal liability exists, the pension plan’s trustees are required to notify the withdrawing employer of the amount of the withdrawal liability and the schedule for making withdrawal liability payments.  If the employer has objections to the withdrawal liability assessment, it may file a request for review with the pension plan.  If the employer’s objections are not resolved upon a request for review, the employer may then commence arbitration to contest the withdrawal liability assessment.  Importantly, not only is the contributing employer liable for any withdrawal liability, but any member of the contributing employer’s controlled group is jointly and severally liable for any withdrawal liability.

In a recent case, T&W Edmier Corp. (T&W) and The E Company operated a construction business.  T&W was a party to a collective bargaining agreement that required T&W to contribute to a multiemployer pension plan.  The E Company agreed to assume joint and several liability for T&W’s obligation to contribute to the pension plan.  In 2014, however, T&W and The E Company both ceased operations and, as a result, withdrew from the pension plan.

On April 30, 2015, the pension plan’s trustees mailed a notice of withdrawal liability assessment to the two companies, a related company, and the companies’ owners (the “Notice Parties”).  A past due notice was then sent on August 17, 2015, which was followed by a default and acceleration notice sent on November 12, 2015.  Each of these notices was ignored by the Notice Parties.  The pension plan then filed suit in district court against the Notice Parties and certain related companies to recover the unpaid withdrawal liability, together with interest, liquidated damages, attorneys’ fees, and costs.  The district court entered summary judgment in favor of the pension plan and awarded the relief requested by the pension plan.

On appeal, the Seventh Circuit Court of Appeals affirmed the district court’s holding.  In doing so, the Court held that notice to the Notice Parties was sufficient to hold the related non-Notice parties liable for the withdrawal liability.  And, since the Notice Parties had not contested the withdrawal liability assessment by timely commencing arbitration, the Non-Notice Parties had similarly waived their right to contest the withdrawal liability assessment.  In so holding, the Court did note that, in certain limited circumstances where a party would not have reason to believe it was a member of a controlled group with another controlled group member, notice to the other controlled group member may not be sufficient notice to the unsuspecting controlled group member.  In the present case, though, the non-Notice Parties were not the type of unsuspecting parties that were entitled to this relief.  Trustees of the Suburban Teamsters Northern Illinois Pension Fund v. The E Company et al. (7^th Cir.)

Federal District Court Denies Motion to Dismiss Fiduciary Breach Lawsuit Against Owners of Company Who Transfer of Overvalued Stock to ESOP

The owners of Bowers + Kubota Consulting, Inc. sought to dispose of their interest in their company by forming an ESOP.  They appointed attorney, Saakvitne as trustee of the ESOP and obtained a valuation of the company before negotiating the sale of their shares to the ESOP.  The Department of Labor sued the owners, company, and trustee for breaches of fiduciary duty and prohibited transactions in Hawaii federal district court.  The DOL alleged that the appraisal of company shares used to fund the ESOP was flawed, resulting in an inflated value for the company’s stock because the appraiser used unreasonable revenue projections and improperly applied a 30% control premium when no change in control of the company occurred.

The federal court denied defendants’ motion to dismiss the fiduciary breach and prohibited transaction claims, and concluded that the company was properly joined as a defendant.  First, the court found that the company was a necessary party to the lawsuit.  Using a legal standard that permitted joinder of a party when “desirable in the interests of just adjudication,” the court concluded that the company’s presence in the suit was necessary to enable the DOL to seek modification of the ESOP contracts to remove improper indemnification provisions in favor of defendants, as a form of equitable relief.

Next, the court rejected the owners’ motion to dismiss the fiduciary breach claims on the grounds that they could not be held accountable as fiduciaries for allegations related to conduct before the ESOP was funded.  The court explained that ERISA defines fiduciary in functional terms and requires an examination of defendant’s control and authority over the plan.  As the owners were the sole members of the company’s board of directors and had been primary decision makers in the formation of the ESOP, selection of the trustee, and management and disposition of the plan’s assets, the court concluded the owners were fiduciaries. 

The court refused to dismiss claims against the owners based on breaches as fiduciaries, and as co-fiduciaries to the trustee.  Allegations that the owners knowingly provided the trustee with flawed information about the company, which led to the trustee to direct the ESOP to purchase the shares for an inflated valued were sufficient to survive a motion to dismiss.  The court found significant the DOL’s allegations that neither owner made an effort to correct the valuation information, or to remedy the breaches made by the trustee.  On similar grounds, the court refused to dismiss the prohibited transaction claims based on the owners’ intimate involvement in the establishment of the ESOP and negotiation of the overstated sales price. 

The court’s decision allows the DOL to proceed to attempt to make its case that defendants committed fiduciary breaches and prohibited transactions, based on a flawed company valuation that resulted in a loss to the plan.  Acosta v. Saakvitne, Case Civ. No. 18-00155 SOM-RLP, D. Hawaii (January 18, 2019).

Insurance Agents Properly Classified as Independent Contractors

A common practice of many insurance companies is to structure their sales force to provide that its agents are independent contractors as the companies believe that the best way to sell insurance is through independent contractor agents. 

In 2013 current and former agents of American Family Life Insurance brought a class action claiming that they were misclassified as independent contractors and sought a determination that they were employees for purposes of the Employee Retirement Income Security Act of 1974 (ERISA) and should be covered by American Family’s employee benefit plans such as its 401(k) plan, group life plan, group health plan, group dental plan, and long term disability plan. 

In determining employment status, the Courts look at the degree to which the hiring party retains the right to control the manner and means by which the service is accomplished.  This standard comes from the Supreme Court decision in 1992 in Nationwide Mutual Insurance Company v. Darden.  The Darden case outlined eleven factors that a Court should consider when deciding whether the hiring party retains the right to control the manner and means by which the service is accomplished.  These factors are:

1. The skill required;
2. The source of the instrumentalities and tools;
3. The location of the work;
4. The duration of the relationship between the parties;
5. Whether the hiring party has the right to assign additional projects to the hired party;
6. The extent of the hired party's discretion over when and how long to work;
7. The method of payment;
8. The hired party's role in hiring and paying assistants;
9. Whether the work is part of the regular business of the hiring party;
10. The provision of employee benefits; and
11. The tax treatment of the hired party.

In the American Family case, the District Court empaneled an advisory jury to answer the question as “yes” or “no”: Did plaintiffs prove by a preponderance of the evidence that they are employees of defendant American Family?  The jury answered yes and, while not bound by the jury’s recommendation, the District Court held that the agents were employees for purposes of ERISA.

The District Court’s decision was appealed to the Sixth Circuit.  The Sixth Circuit, in a split decision, reversed and remanded finding that American Family had correctly classified the agents as independent contractors.  The Sixth Circuit decision involved a review of the Darden factors and also indicated a reluctance to depart from prior precedents holding that insurance agents have typically been classified as independent contractors.

The classification of a service provider as an employee or independent contractor is always very fact specific.  Companies which treat service providers as independent contractors should carefully weigh the factors identified in Darden and continually review their practices in order to avoid a misclassification of service providers.  Jammal v. Am. Family Ins. Co., 6th Cir. 2019.

Fidelity “Infrastructure Fee” Is the Subject of Government Examinations and Participant Lawsuits

Qualified retirement plan fiduciaries, in fulfillment of their ERISA fiduciary duties, are under increasing pressure to fully understand the investment and other service provider fees that are being paid from plan assets, and to ensure those fees are reasonable – plan fiduciaries are facing lawsuits from dissatisfied plan participants, as well as scrutiny by field examiners for government agencies such as the Employee Benefit Security Administration (EBSA).  Recent reports in the mainstream press that Fidelity Investments may be facing multiple government investigations from EBSA and the Massachusetts Secretary of the Commonwealth, as well as a multiple lawsuits for its “infrastructure fee,” serves as a reminder that qualified retirement plan fiduciaries, including 401(k) plan fiduciaries, need to be vigilant in their review and monitoring of plan fees.

The Fidelity “infrastructure fee” that is garnering scrutiny and claims of possible impropriety is a fee that Fidelity charges to third-party mutual funds that wish to make use of the Fidelity Investment platform as a means for investors, including retirement plans, to invest plan assets in those mutual funds.  To the extent that the infrastructure fee is passed on by the fund to the ultimate plan investor, those fees presumably reduce a fund’s net returns.  From the perspective of EBSA and the DOL, there is a specific concern as to whether the “infrastructure fee” is being adequately disclosed to investors, including plan investors.  Fidelity’s public responses to the criticisms of the “infrastructure fee” include statements asserting the fee is needed for Fidelity to maintain the infrastructure that allows the third-party mutual funds to be available to investors using the Fidelity platform, and all necessary disclosures of the fees are being made.  No details on the status of the government investigations of the Fidelity fee are currently available.

Multiple lawsuits also have been filed in connection with the Fidelity “infrastructure fee,” including a class action lawsuit filed in Massachusetts by a participant in a 401(k) plan sponsored by T-Mobile USA, Inc. in which the plaintiff alleges, among other things, that the “infrastructure fees” are secret kickback payments that violate ERISA rules (including the prohibited transaction and fiduciary rules), and ultimately result in increased expenses that reduce returns on plan investments.

Court Rules State Law Privacy Claim Not Preempted by ERISA

The District Court for the Middle District of Florida recently ruled that a plaintiff’s state law invasion of privacy claim was not preempted by the Employee Retirement Income Security Act (ERISA).  In this case, the plaintiff was mailed a letter from his health insurer where the address window on the envelope containing the letter was too large and showed the plaintiff’s private health information, including information related to the plaintiff’s HIV status.  The plaintiff brought a number of state law claims against the insurer including breach of contract, negligence, negligent infliction of emotional distress, and invasion of privacy.  The defendant insurer argued that these state law claims should be dismissed because they are preempted by ERISA.  By way of background, ERISA (a federal law) contains preemption provisions, meaning that ERISA takes precedence over state laws that relate to employee benefit plans.  One of ERISA’s preemption provisions, ERISA § 502, generally applies to actions brought by an ERISA participant to recover benefits due under the terms of a plan, to enforce rights under the plan, or to clarify rights to future benefits under the terms of a plan.  In this case, the court agreed with the defendant that the state law negligence and breach of contract claims should be preempted by ERISA § 502 because those claims related to plan terms.  However, the plaintiff’s state law invasion of privacy claim was allowed to proceed in state court because the privacy claim did not depend on the terms of the benefit plan.  Rather, the privacy claim was based solely on the insurer’s statutory obligations under state law.  This ruling is significant because it provides a path for the plaintiff to sue based on a disclosure of private health information.  Generally, when discussing the disclosure of sensitive health information, it is in the context of a breach of HIPAA’s privacy and security rules.  Although the Department of Health and Human Services might assess a significant penalty for a HIPAA breach, most courts have ruled that HIPAA does not provide a basis for an individual to sue.  Doe v. Aetna Life Ins. Co. (M.D. Fla. 2018).