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that firm engaged to provide advice on asset allocation and investment manager selection was an ERISA fiduciary).

Pharmacy Benefits Manager: Bickley v. Caremark RX, Inc., 416 F.3d 1325 (11th Cir, 2006) (claim that PBM breached duty, as alleged fiduciary, by receiving undisclosed fees dismissed because plaintiff failed to exhaust administrative remedies under plan); Chicago Carpenters Welfare Fund v. Caremark, Inc., 474 F.3d 463 (7th Cir. 2007) (PBM not ERISA fiduciary for purposes of negotiating prices with drug retailers or for purposes of formulary and drug switching features of plan); Glanton v. AdvancePCP, Inc., 465 F.3d 1123 (9th Cir. 2006) (plan participants, who suffered no judicially cognizable injury, lacked standing to sue PBM, as alleged fiduciary, under ERISA).


Regardless of whether a service provider functions as an ERISA fiduciary, the prohibited transaction rules under ERISA §§ 406 and 408 can have the effect of indirectly regulating the compensation that may be paid to a service provider from plan assets. In particular, compensation paid to a party in interest from plan assets must be under a "reasonable arrangement" and in a "reasonable" amount. See 29 C.F.R. § 2550.408b-2 (applying the general statutory exemption for services or office space). DOL has proposed a new regulation that would require, as a condition for the exemption, that the provider disclose the compensation it will receive, either directly or indirectly, and any conflicts of interest. 72 Fed. Reg. 70988 (Dec. 13, 2007).

  • 3.

    ERISA § 103(a)(3) requires the administrator of a plan to engage an accountant to examine plan's financial statements, and ERISA § 103(a)(4) requires the administrator of a defined benefit plan to engage an actuary to prepare the annual actuarial statement reported on Schedule B to Form 5500. ERISA §§ 302-307 (and parallel provisions in Internal Revenue Code) establish minimum funding standards for defined benefit plans, and those standards detail how actuarial statement is to be prepared. New ERISA § 305 establishes additional reporting and certification requirements for multiemployer plan actuaries.

  • 4.

    Where a violation of Title I occurs, ERISA's civil enforcement provisions allow courts to award appropriate equitable relief against a service provider, regardless of whether the provider functions as a ERISA fiduciary. Harris Trust & Savings Bank v. Salomon Smith


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