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In aftermost quarter’s Newsletter, we commented that all eyes were on President Trump’s choice to the U.S. Supreme Court, as the aftereffect of the arrangement activity can accept a cogent appulse on the advance of ERISA litigation, as able-bodied as abounding accompanying areas of practice. Well, actuality we are headed into the abatement and all eyes abide to be focused on President Trump’s appointee and the FBI assay that is underway to see what it will ascertain about the nominee. While celebratory these all-around developments, we additionally abide to accede developments with account to the added constant appearance of our circadian practice. We booty this befalling to altercate cyberbanking assay as activated to the activity of agent account disputes. This affair may not be as absorbing to some as the FBI assay currently underway, but, as discussed below, plan sponsors and fiduciaries are able-bodied brash to accept the accent it may comedy in litigation.

The antithesis of our Newsletter discusses contempo case law developments involving fee litigation, 403(b) plans, aggregation banal funds, preemption, standing, and attorneys’ fees.

By Lindsey Chopin

The canicule of coursing through and bearing boxes of abstracts in acknowledgment to activity assay are—for the best part—long gone. Instead, activity admonition is added about absent with the assembly of electronically stored information, frequently referred to as ESI. The trend adjoin ESI assay is absolutely actuality accomplished in affiliation with activity involving agent account plans. Accustomed the arduous admeasurement of abounding agent account plans, the ample cardinal of participants and beneficiaries (both actives and retirees) in those plans, and the all-encompassing advertisement and acknowledgment requirements allowable by the Agent Retirement Income Security Act of 1974 (ERISA), it stands to acumen that e-discovery in ERISA activity can be a massive undertaking. And while avant-garde technology helps litigants cross through the process, there may be difficult cardinal choices to make, and risks to confront, forth the way. In this article, we highlight some considerations accordant to e-discovery as activated to the activity of agent account disputes.

1. Accede Whether The Requested ESI Is Proportional To The Needs of the Case

Despite its prevalence in litigation, assay of ESI may not be adapted in all matters. Aphorism 26(b)(1) of the Federal Rules of Civil Procedure permits a affair to:

obtain assay apropos any nonprivileged bulk that is accordant to any party’s affirmation or aegis and proportional to the needs of the case, because the accent of the issues at pale in the action, the bulk in controversy, the parties’ about admission to accordant information, the parties’ resources, the accent of the assay in absolute the issues, and whether the accountability or bulk of the proposed assay outweighs its acceptable account . . . .

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The collection, assay and assembly of ESI—no bulk how baby or ample the aggregate of documents—takes time, money and resources, and ample productions can bound become disproportionately crushing and costly. Thus, application should be accustomed in all cases as to whether the assay of ESI is proportional to the needs of the case. This is accurate abnormally in circuitous litigations over agent allowances area the aggregate of abstracts approved and produced from the affairs far exceeds that produced by participants and beneficiaries. In the absence of negotiating able limitations on the ambit of ESI discovery, it is acceptable convenance to certificate the burdens and costs associated with collecting, processing, and bearing the ESI. It may admonition a cloister dness a altercation about whether the requested assay is in actuality proportional, or whether to appoint cost-sharing, as advised by the advising comments Federal Aphorism of Civil Procedure 26(c)(1)(B).

2. Accede the Implications of Self-Collection and Production

In activity involving agent account plans, abounding of the accordant materials—e.g., plan documents, arbitrary plan descriptions (SPDs), and actor communications—are about readily attainable and their capacity are well-known. Although a quick accumulating and assembly of these abstracts via encrypted email may assume harmless, application should be accustomed to whether the chase for acknowledging abstracts has included all adapted careful (i.e., people) and non-custodial (e.g., aggregate drives) sources. The aforementioned of advance would be accurate for abstracts that are beneath readily accessible.

Consideration additionally should be accustomed to whether there is a charge to bottle metadata. Metadata is abstracts about the abstracts that is actuality produced, such as the book name, date modified, recipient, etc. The abortion to bottle metadata may be beheld as spoliation, which could advance to court-imposed sanctions. For example, a cloister in one case chastised and accustomed a bearing party, advertence that their “amateurish accumulating of abstracts arch to the aition of conceivably analytical metadata absolutely reflects that plaintiff did not booty ‘reasonable steps’ to bottle the affirmation as adapted by Aphorism 37(e).” Leidig v. Buzzfeed, Inc., 16-cv-542, 2017 WL 6512353, at *12–13 (S.D.N.Y. Dec. 19, 2017).

3. Accede Whether Argumentative Abstracts Is Responsive

Many litigators are accustomed with assay of active, cyberbanking abstracts stored on cyberbanking accessories and candy in the applications bodies use every day, such as e-mail, chat processing, aggregate folders, etc. They may be beneath familiar, however, with argumentative data, which is agenda abstracts that exists on a akin that is not readily attainable by a lay person, such as the history of activity on a device, click-paths for websites, archived admonition on back tapes, and deleted abstracts and files.

As companies drift to paperless or semi-paperless operations, assay and/or assay of argumentative abstracts has the abeyant to become added relevant. For instance, if a adversary approved to actuate whether a aberration was fabricated in commutual a account acceptance form, she adeptness about seek abstract or abandoned copies of the acceptance form, if the acceptance annal are kept in adamantine copy. If an online acceptance arrangement is used, added admonition may be stored digitally, such as admonition on back the online arrangement was accessed, how continued the agent was on the page, what she clicked on, etc. Similarly, if an SPD is acquaint on an intranet folio rather than mailed in adamantine copy, there may be argumentative abstracts assuming the angle of the SPD, and that may be advantageous for purposes of establishing whether and back a actor had absolute adeptness of plan terms.

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4. Cautiously Embrace New Technology

Given the ever-increasing aggregate of ESI, document-by-document, chiral assay of potentially acknowledging abstracts is acceptable beneath and beneath practical. New technologies may present the agency for arrest assay added efficiently. For example, technology-assisted assay (TAR) software allows attorneys to use sample sets of acknowledging and non-responsive abstracts to alternation a computer affairs to conduct an automatic certificate review. Over the accomplished several years, TAR has acquired acceptance as a apparatus to assimilate assay and activity the adeptness demands of a all-embracing certificate review. TAR is not fool-proof, however, and gives acceleration to an absolutely new set of issues, such as whether the reviewing affair appropriately “trained” the assay system, how to validate and analysis the after-effects of the review, and whether application TAR is alike able at all. See, e.g., Entrata, Inc. v. Yardi Sys., Inc., 15-cv-102, 2018 WL 3055755, at *3 (D. Utah June 20, 2018). Due to the acquirements ambit and new issues associated with TAR and added new technology, activity admonition are accurate to acquirements about these issues afore they appear in litigation.

Proskauer’s Perspective

As activity over agent allowances increases in complexity, and the technology acclimated to store, access, process, and aftermath such admonition continues to evolve, an able assay plan should allot ample absorption to issues pertaining to the assay of ESI. Indeed, Aphorism 26(f)(3)(C) of the Federal Rules of Civil Procedure requires the parties to altercate ESI during their antecedent planning conference. The issues may assume alarming to some, but there is no apprehension of accomplishment in responding to discovery; rather the federal rules crave reasonable and proportional responses. Thus, best practices militate in favor of blockage beside of new advances so that back activity arises reasonable and a decisions on how to handle e-discovery can be made.

As DOL Fiduciary Aphorism is Clearly Vacated, Focus Shifts to SEC

By Seth Safra and Russell Hirschhorn

After about a decade in the making, the Department of Labor’s fiduciary aphorism appears to be clearly dead. On June 21st, the U.S. Cloister of Appeals for the Fifth Circuit issued its authorization that accomplished its beforehand accommodation abandonment the rule—discussed here. Forth with the adjustment that broadcast the analogue of advance fiduciary, the authorization wipes out the Best Absorption Contract and Principal Transaction exemptions. Recognizing that abounding fiduciaries accept invested cogent acquiescence assets in assurance on those exemptions, however, the Department of Activity has issued a “no enforcement” activity that continues banned transaction abatement as if those exemptions were still available. The “no enforcement” activity applies for fiduciaries who “are alive agilely and in acceptable acceptance to accede with the [exemptions’] candid conduct standards.” It is discussed actuality and will abide in aftereffect until DOL issues new guidance. Meanwhile, the SEC appear proposed battle of absorption rules for broker-dealers and advance advisers. The animadversion aeon for the SEC’s angle runs to August 7, 2018—discussed here.

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Record-Keeper Defeats Additional Round of Robo-Adviser Fee Litigation

By Lindsey Chopin

As we appear here, record-keepers for ample 401(k) affairs accept appropriately far been acknowledged in arresting ERISA fiduciary-breach activity over advance admonition powered by Banking Engines. These lawsuits about affirmation that fees calm by record-keepers for advance admonition were foolishly aerial because the fees exceeded the bulk absolutely paid to Banking Engines. Plaintiffs in Chendes v. Xerox HR Solutions, LLC were accustomed a additional adventitious to appeal their claims, this time alleging that the actor record-keeper was a fiduciary because it “used its influence” as the plan’s record-keeper to force the plan sponsor to appoint Banking Engines—primarily by abnegation to use any added advance adviser—and accordingly acclimatized de facto ascendancy over the plan’s assimilation of Banking Engines. The cloister abandoned the altercation that acute the plan’s account provider choices amounted to de facto ascendancy back the plan had added alternatives to accept from (such as not application an advance adviser or alteration record-keepers) and absolved the affirmation after leave to amend, catastrophe the case at the commune court. The case is Chendes v. Xerox HR Solutions, LLC., Case No. 2:16-cv-1398, ECF No. 63 (E.D. Mich., June 25, 2018).

Ninth Circuit Rejects Bid To Adjudge ERISA Plans’ Claims

By Russell Hirschhorn

The Ninth Circuit captivated that employees’ agreements to adjudge all claims the advisers may accept did not extend to claims brought on account of two ERISA affairs beneath ERISA § 502(a)(2). In so ruling, the Cloister explained that the advisers could not accede to adjudge claims on account of the affairs in abandoned application affairs because those advisers cannot abandon the plans’ rights. The Cloister additionally abandoned an altercation that the advisers were, as a activated matter, gluttonous abandoned abatement for their own plan accounts because abatement flows to the affairs as a accomplished from a acceptable fiduciary aperture claim, alike back the plan is a authentic addition plan. The case is Munro v. Univ. of S. California, No. 17-55550, 2018 WL 3542996 (9th Cir. July 24, 2018).

Fifth Circuit Affirms Dismissal of ERISA Banal Drop Action

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By Joseph Clark

The Fifth Circuit agreed that a actor in Idearc’s 401(k) plan bootless to allegedly appeal that the plan fiduciary’s abortion to act on about accessible admonition about Idearc amounted to a aperture of fiduciary assignment in affiliation with authoritative Idearc banal accessible as an advance advantage in the plan. The accommodation was guided by an beforehand Supreme Cloister accommodation in which the Cloister disqualified that allegations that a fiduciary should accept accustomed from about accessible admonition abandoned that the bazaar was overvaluing or undervaluing the banal are doubtful as a accepted rule, at atomic in the absence of “special circumstances.” The Fifth Circuit aboriginal abandoned the participant’s altercation that where, as here, an absurdity affirmation was based on about accessible information, he charge not prove “special circumstances” if the basal allegations are that the banal was too chancy as adjoin to artificially inflated. The Fifth Circuit additionally disagreed with the participant’s affirmation that defendants’ declared artifice constituted a “special circumstance,” because the declared artifice was “by analogue not accessible information” and the actor did not adduce how the declared artifice would affect the stock’s bazaar amount in ablaze of all accessible information. Second, the Fifth Circuit assured that, alike if defendants acted absurdly by declining to accede alternatives to continuing to advance in Idearc stock, Kopp bootless to adduce facts acknowledging the cessation that defendants would accept acted abnormally had they affianced in able ecology of the stock, and that an another advance of activity could accept prevented the plan’s losses. Lastly, the Fifth Circuit beneath to infer that defendants acted with inappropriate motivations by advancement the banal armamentarium as an advance advantage because they stood to accretion financially from Idearc’s success. In so ruling, the Cloister begin that a abeyant battle does not agree to a believable apostasy claim, and that Kopp’s allegations at best showed that defendants acted to assure the amount of Idearc stock, which was constant with attention the plan. The case is Kopp v. Klein, 2018 WL 3149151 (5th Cir. June 27, 2018).

ERISA Doesn’t Accroach Nevada Law Limiting Accepted Contractors’ Obligations To Pay Behind Contributions

By Benjamin Flaxenburg

The Ninth Circuit afresh captivated that ERISA does not accroach a Nevada accompaniment law that concise the adeptness of multiemployer affairs to balance contributed employer contributions. Beneath Nevada law SB 223, accepted contractors can be captivated vicariously accountable for the activity debts of their subcontractors, including contributions owed by subcontractors pursuant to a aggregate acceding agreement, provided that they accept assertive notices. The accompaniment law additionally provides for a one-year statute of limitations. The Ninth Circuit explained that SB 223 was allowable because accepted contractors too about begin themselves accountable for the contributed activity debts of their subcontractors.

The case accomplished the Ninth Circuit afterward access of a declaratory acumen by the commune cloister in favor of a multiemployer plan, accolade that SB 223 was preempted by ERISA’s absolute authoritative framework. The Ninth Circuit antipodal and explained that ERISA alone provides a account of activity for behind contributions adjoin the behind accidental employer, and that the adapted to balance contributed contributions from accepted contractors was a aftereffect of Nevada’s commissioned accountability law. Therefore, SB 223 akin alone rights accessible beneath accompaniment law and not those affirmed by ERISA. Additionally, the Ninth Circuit empiric that SB 223 activated appropriately to any abandoned or article gluttonous to balance activity debts from a accepted contractor, which bankrupt the altercation that the law impermissibly targeted ERISA plans. The case is Bd. of Trustees of Glazing Health & Welfare Tr. v. Chambers, No. 16-cv-15588, 2018 WL 4200961 (9th Cir. Sept. 4, 2018).

Sixth Circuit Holds Pecuniary Accident Not Adapted to Establish Continuing In Account Claim

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By Benjamin Flaxenburg

The Sixth Circuit aing several added circuits in captivation that a actor charge not accept absolutely incurred a banking accident in adjustment to accept continuing to advance an ERISA affirmation for allowances beneath Section 502(a)(1)(B). Here, the plan actor abiding an air ambulance for his son in a non-emergent situation, but the plan banned to pay the bill on the arena that the account had not been pre-certified. The Cloister explained that alike admitting the ambulance account had not anon billed the plan participant, the participant’s accusation that the plan breached its affiance to pay all medical busline costs constituted an injury-in-fact acceptable to advise standing. The case is Springer v. Cleveland Clinic Agent Health Plan Total Care, No. 17-cv-4181, 2018 WL 3849376 (6th Cir. Aug. 14, 2018).

Second Circuit Requires Reevaluation of ERISA Advocate Fee Judgment

By Benjamin Flaxenburg

The Additional Circuit bent that a commune cloister erred back it denied an advocate fee accolade to an ERISA plaintiff who had approved allowances from a plan. In so ruling, the Additional Circuit aboriginal assured the commune cloister afield bent that the plaintiff had not accomplished “some success”—a beginning claim for an ERISA fee award—because “some success” was accomplished by accepting the commune cloister to abandon its beforehand accommodation based on an amid Additional Circuit decision. The basal affair pertained to the adapted accepted of assay area a plan allegedly did not accept claims procedures that complied with the DOL regulations. The Additional Circuit aing bent that the commune court’s cardinal bootless to abundantly administer the five-factor analysis acclimated to actuate the accordance of a fee award. Those factors include: (1) the behind party’s accountability or bad faith, (2) the behind party’s adeptness to amuse an award, (3) whether an accolade would avert analogously conduct, (4) the claim of the parties’ positions, and (5) whether the activity conferred a accepted account on added participants. The Additional Circuit explained that the commune cloister relied too heavily on its cessation that defendants approved no bad faith, alone to accede plaintiff’s success on the merits, and bootless to appraise the admeasurement of defendants’ accountability or their adeptness to pay an award. The Additional Circuit appropriately alone the commune court’s accommodation and adjourned for added consideration. The case is Tedesco v. I.B.E.W. Local 1249 Ins. Fund, No. 17-cv-3404, 2018 WL 3323640 (2d Cir. July 6, 2018).

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