Division of Plan Benefits Security

The Plan Benefits Security Division (PBS) protects the rights of America's workers and retirees to their pension, health and other employment-related benefits under the Employee Retirement Income Security Act of 1974 (ERISA) through federal district court enforcement litigation, appellate and amicus curiae litigation, and advice and opinions with respect to statutory changes, ERISA regulations, sub-regulatory guidance, and interpretations of ERISA issued by the Secretary of Labor. Under ERISA, the Secretary is responsible to protect the participants and beneficiaries of over 650,000 retirement plans and approximately 2.3 million health and welfare plans and their interests in the over $8.7 trillion in assets held by those plans. In carrying out its mission, the Division's enforcement efforts, appellate and amicus practice, and regulatory and advice work cover the full range of ERISA issues. A few major areas include:

• The fiduciary responsibility provisions of ERISA, which require persons who manage ERISA-covered retirement and healthcare plans to adhere to a high fiduciary standard of prudence and undivided loyalty to the participants and beneficiaries in managing plans and their assets;
• The prohibited transaction provisions of ERISA, which bar certain transactions between an employee benefit plan and related persons or entities that are inherently subject to abuse and prohibit fiduciaries from self-dealing with plan assets and receiving kickbacks;
• Healthcare provisions of ERISA, which ensure health benefits plans abide by certain standards and provide certain benefits, including those required by the Affordable Care Act of 2010 (ACA) which became part of ERISA;
• The claims procedure regulations of ERISA, which govern the process fiduciaries must undertake to ensure full and fair review of plan participants' claims for benefits;
• Anti-retaliation provision of ERISA, which protects whistleblowers and employees who exercise their rights under ERISA from retaliation by their employers;
• Reporting provisions of ERISA, which require benefit plans to file annual public reports in an effort to create transparency for plan participants and beneficiaries about their plans' assets and recent actions;

Our client agency is the Employee Benefit Security Administration (EBSA). For more details about the work of the Division, please see the "What We Do" section below.

Accomplishments

• Successfully litigated and recovered over $200 million dollars on behalf of the employees of Enron who lost their retirement savings because their retirement plan had invested in Enron stock (in cooperation with other governmental agencies and private lawyers) (Enron opinion, press release);
• Successfully litigated and recovered over $250 million on behalf of employees who lost their retirement savings because their investment managers had invested with Bernard Madoff (in cooperation with private attorneys and other governmental agencies) (Ivy Asset Management press release; Austin press release);
• Successfully litigated and recovered millions of dollars for employees whose pension plans overpaid for their employers' stock while also establishing standards for fiduciaries who oversee employee stock ownership plan (ESOP) transactions (Bruister opinion, brief; Sierra Aluminum press release);
• Successfully investigated and recovered $84 million for the benefit of employee benefit plan customers whose foreign exchange trades were generally prices at or near the worst exchange rates at which currencies had traded in the market. (The Bank of New York Mellon press release);
• Successfully used the amicus program to advocate for monetary remedies for plan participants hurt by fiduciary breaches, which culminated in a favorable Supreme Court decision (CIGNA v. Amara) and afterwards in numerous favorable circuit court decisions (Silva opinion, brief; Kenseth opinion, brief; McCravey opinion, brief; Geralds opinion, brief);
• Successfully used the amicus program to file briefs arguing against a presumption that shielded fiduciaries from liability for imprudently investing pension savings into their own companies' stock, which culminated in a favorable decision by the Supreme Court rejecting the rule. (Dudenhoeffer opinion, brief).
• Provided extensive legal advice and drafting assistance in major rulemakings that, for example:
  • Developed the Conflict of Interest rule which requires fiduciaries to provide investment advice that is in the best interest of the consumers, and successfully helped defend this rule from several legal challenges (NAFA opinion, brief; Market Synergy opinion, brief).
  • Developed the rules that require investment managers to disclose their fees included in the investment products that they sell to retirement plans and retirees;
  • Developed guidance on changes to healthcare coverage in employee healthcare and disability plans as a result of the Affordable Care Act (ACA), including the procedures for processing claims for disability and insurance market reforms
  • Strengthened the current claims procedure for disability claims, including that (1) decision makers be independent and impartial; (2) the plan fully explains reasons for denial of claim; (3) claimants have access to their entire claim file and are allowed to present evidence and testimony; and (4) claimants have an opportunity to respond to any new adverse evidence or rationales for a denial;

What We Do

The Division's attorneys handle:

Federal Trial Court Litigation

• Preparing and filing complaints and conducting discovery, motions practice, and trials in U.S. District Court ERISA enforcement actions throughout the nation, which recover monetary losses caused by ERISA violations and obtain other monetary relief and significant injunctive relief for plans and their participants and beneficiaries;
• Participating in settlement negotiations and formal mediation conferences, often involving multiple parties and insurers; and
• Providing legal advice to EBSA in their investigations before filing suit to assist EBSA in building viable cases, conducting administrative depositions, and enforcing subpoenas for documents.

Federal Appellate and Amicus Litigation

• Briefing and arguing all appeals before U.S. Courts of Appeals arising from ERISA enforcement litigation;
• Preparing recommendations to the U.S. Solicitor General for amicus participation, writing amicus briefs, and presenting oral argument in in the U.S. Courts of Appeals in ERISA cases brought by private parties which involve important and difficult legal issues of interest to the Secretary (see links to briefs below); and
• Preparing draft briefs, participating in moot courts, and providing legal assistance to the U. S. Solicitor General's Office when the United States is filing a brief and arguing in an ERISA case before the Supreme Court.

Administration Litigation

• Litigating actions before Administrative Law Judges to recover penalties from plan administrators who fail to comply with ERISA's reporting obligations and administrative appeals in these actions.

Regulations, Opinions and Advice

• Reviewing all regulations, sub-regulatory guidance, and interpretations proposed by EBSA and providing legal advice and assistance in drafting those proposals to protect them from potential legal challenges;
• Reviewing or assisting in the drafting of proposed legislation and Congressional testimony that implicate employee benefits laws;
• Providing legal advice on a variety of issues related to employee benefits laws, such as:
  • Agency policies;
  • Enforcement initiatives;
  • Internal guidance to investigators, and
  • Materials for employees, their beneficiaries, employers, fiduciaries, and those who serve plans to assist them in understanding their rights and responsibilities under ERISA.

Division staff attorneys generally engage in all the functions of the Division, though staff attorneys primarily focus on either litigation or regulatory work. They receive individual or team assignments from the Division's supervisory counsels, senior attorneys in the Division, and sometimes directly from the Associate or Deputy Associate Solicitor. Trial and appellate court litigation require travel as dictated by the demands in each case.

ERISA Litigation and Significant Issues in Litigation

Summaries of SOL's federal court ERISA cases pending during the past year can be found at 2022 ERISA Litigation and Significant Issues in Litigation.

DOL Agencies Supported

• Employee Benefits Security Administration (EBSA)

Law Student Internship Program

The Plan Benefits Security Division may select law student interns throughout the school year and over the summer. For more information, please contact the Division.

Contact Information

PUBLISHED LEGAL BRIEFS: