ERISA Insights for Internal Trustees

10 ERISA Insights for Employers shares some fiduciary insights from a recent ERISA litigation conference:

1. Make the most of the administrative claims appeal process
2. Coordinate and communicate with your third-party vendors
3. Create facts lessening the "conflict of interest" identified in the U.S. Supreme Court case Glenn v. MetLife
4. Educate the judge
5. Prepare for the "employer stock-drop case"
6. Be diligent in monitoring and evaluating plan fees
7. Be diligent in monitoring your plan's investments
8. Know whether you have the attorney-client privilege
9. Make sure your ERISA fiduciaries are covered by insurance
10. If hit with ERISA litigation, hire an ERISA litigator

The stock-drop litigation discussion is more geared towards having employer stock as a 401(k) investment. Some of the notable takeaways from the article include:

• "Demand that plan fiduciaries pay attention to the stock in the plan, and create a record of procedural due diligence surrounding the stock".
  
• "Finally, if trouble or crisis looms, consider engaging help—both outside counsel to advise the fiduciaries and an independent fiduciary if critical inside information could create conflicts of interest."
  
• Be aware of the administrative claims appeal process as defined in your plan document and explained to the employees in the SPD.
  
• For inside trustees, including an item on their performance appraisal and review process that "makes it clear they are expected to follow their fiduciary duties and not deny claims out of hand or improperly."
  
• Provide fiduciaries with training and guidance on their fiduciary duties.
  
• Consider hiring outside counsel separate from your benefit plan counsel for your plan fiduciaries.
  
• "A common mistake of employers (and many benefits attorneys) is assuming the attorney-client privilege will apply, even if the communications at issue may be subject to the fiduciary exception to the attorney-client privilege." Make sure the plan isn't paying for outside counsel if you want to claim attorney-client privilege.
  
• Be sure you have adequate Fiduciary Liability Insurance.