Posts from September 2020.

In March 2020, I posted a blog reviewing the evolution of the legal analysis applied to a retirement plan’s holding of “employer securities” under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).  SeeIf Your Retirement Plan Holds Employer Securities, Keep an Eye on the Jander Case.”  In that blog, I reviewed the “Moench presumption” and the Supreme Court’s rejection of the “Moench presumption” in Fifth Third Bancorp v. Dudenhoeffer, 134 S.C. 2459 (2014).

In Dudenhoeffer, the Supreme Court announced a three-factor standard for ...

The SECURE Act of 2019 made three statutory changes to ERISA regarding lifetime income benefit payments from defined contribution plans (e.g., 401(k), 403(b), profit sharing, and money purchase pension plans).  This blog will cover one of those changes – an amendment to Section 105 of ERISA.  Section 105 requires the plan administrator to issue periodic benefit statements to participants and requires the disclosure of certain information on those statements, such as the participant’s account balance, vesting, and the value of each investment in the account.  The SECURE Act ...

PPP loans under the CARES Act are being audited by the SBA.  All PPP loans over $2 million will be audited, and many more under $2 million will be audited as well.  Applying for forgiveness of a PPP loan increases the likelihood of an audit.

An audit or “review” by SBA of a borrower and its PPP loan can result in an SBA determination that the borrower (1) was ineligible for a PPP loan; (2) was ineligible for the PPP loan amount received or used the PPP loan proceeds for unauthorized uses; (3) is ineligible for PPP loan forgiveness in the amount determined by the lender in its full or partial ...

The Consolidated Omnibus Budget Reconciliation Act (“COBRA”) became law on April 7, 1986.  For most of its nearly 35-year history, litigation involving COBRA has been relatively quiet.  Most COBRA claims are tag-alongs, added as an afterthought to various sorts of discrimination claims, and a few cases involving the definition of “gross misconduct” (essentially the one narrow exception where an offer of COBRA coverage is not required).

In the wake of the pandemic, this is changing.  Recently, there have been a number of cases filed (most filed as class actions) involving ...

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