The Bruce Sallan Radio Show with Jim Scheinberg

From Charlie Sheen to Wesley Snipes – Jim and Bruce talk about turning headlines into teachable moments.

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Have the underpinnings of the global recovery changed?

This and last summer’s stumble on the road to economic recovery were highly disappointing and charged with emotion. But what if recovery is still right around the corner?

Jim and Bruce talk about the volatile markets and where we go from here on today’s radio show.
The Bruce Sallan Radio Show

DOL Delays Plan Fee Disclosure Rules

The DOL has recently announced that it will extend both the fiduciary and participant fee disclosure rules. The regulations under ERISA section 408(b)(2) are extended until April 1, 2012. Participant disclosure regulations are extended to no later than 60 days after a first day of the first plan year beginning on or after November 1, 2011, or 60 days after the effective date of the fiduciary-level fee disclosure rule (i.e., 60 days after April, 1, 2012, which is May 31, 2012).

408(b)(2) will require plan service providers (such as record keepers and broker-dealers) to fully describe their services, disclose sources of compensation and to identify its fiduciary status to their plan sponsor clients. DOL is also providing more time to comply with the plan fee disclosures to employees.

The DOL’s Phyllis C. Borzi said, “We want employers and workers to benefit from the increased transparency provided by these rules as soon as possible.” Additionally, she stated, “We also appreciate that service providers may need more time for compliance efforts…”

Supreme Court Rules on Misleading ERISA Plan Communications

In CIGNA Corporation v. Amara, an ERISA case affecting participant communications, the US Supreme Court ruled that a plan sponsor will not be held liable for misrepresentations in its plan’s summary plan description (SPD) when it conflicts with the terms of its plan document.


In 1998, CIGNA converted its traditional defined benefit plan into a cash balance plan.  A case was filed in 2001 by current and    former employees of CIGNA alleging their employer provided incomplete and misleading information (including the SPD) concerning the benefits of the new plan.

The district court ruled in favor of the plaintiffs, concluding that CIGNA’s communications were inaccurate, intentionally misleading and violated ERISA. The district court then invoked ERISA §502(a)(1)(B)* to reform the plan and pay benefits to the affected parties. An appeals court confirmed the district court’s ruling.

  • ERISA §502(a)(1)(B) states that a participant or beneficiary in a plan may bring a civil action “to recover benefits due to him under the terms of the plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.”

The Court’s Decision

The Supreme Court’s opinion overturned that of the lower courts. It ruled §502(a)(1)(B) did not authorize the lower courts to provide relief to the plaintiffs for the inaccurate information in this case. However, the Court’s opinion did discuss that these violations may give rise to claims for other relief under a related statute – ERISA §502(a)(3).

In addition, the Court found the following:

  • The plan sponsor creates the plan’s terms and establishes a written plan document in its settlor capacity – not as fiduciary subject to ERISA. The plan is administered in accordance with these written terms and communicated to the participants and beneficiaries through plan communications such as the SPD. The plan administrators are fiduciaries and are subject to ERISA.
  • Summary documents provide communications to participants about the plan, but their statements do not constitute the terms of the plan. They cannot be enforced as plan terms under ERISA.
  • ERISA Section 502(a)(1)(B) does not authorize a court to rewrite the terms of a plan.

The case was remanded to the district court to provide equitable relief [under§502(a)(3)], where appropriate.

The verdict appears to overturn the standard imposed by many lower courts in that, if a SPD contained more favorable language to participants over the plan document, then the SPD would automatically prevail.  This ruling is the first time the Supreme Court has identified that compensatory relief is available under ERISA §502(a)(3). As a result, many practitioners believe that this will lead to a significant increase in claims of this nature.

The CIGNA case is advantageous to employers because it found that plan participants cannot bring suit under ERISA §502(a)(1)(B) for misleading or inaccurate plan communications.  The language in a SPD cannot be treated as the terms of the official written plan document. However, due to the Supreme Court’s acknowledgement that other relief may be available in the case of ERISA violations such as these, plan administrators should carefully review their SPDs and other participant communications to ensure that the plan’s terms are described accurately.