Author: National Law Forum

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Second Circuit's Citigroup Decision Endorses Presumption of Prudence, Upholds Dismissal of Disclosure Claims

Posted this week at the National Law Review by Morgan, Lewis & Bockius LLP regarding the decision that employer stock in a 401(k) plan is subject to a “presumption of prudence” that a plaintiff alleging fiduciary breach:

 

 

 

In a much-anticipated decision, the U.S. Court of Appeals for the Second Circuit joined five other circuits in ruling that employer stock in a 401(k) plan is subject to a “presumption of prudence” that a plaintiff alleging fiduciary breach can overcome only upon a showing that the employer was facing a “dire situation” that was objectively unforeseeable by the plan sponsor. In re Citigroup ERISA Litigation, No. 09-3804, 2011 WL 4950368 (2d Cir. Oct. 19, 2011). The appellate court found the plaintiffs had not rebutted the presumption of prudence and so upheld the dismissal of their “stock drop” claims.

BACKGROUND

The Citigroup plaintiffs were participants in two 401(k) plans that specifically required the offering of Citigroup stock as an investment option. The plaintiffs alleged that Citigroup’s large subprime mortgage exposure caused the share price of Citigroup stock to decline sharply between January 2007 and January 2008, and that plan fiduciaries breached their duties of prudence and loyalty by not divesting the plans of the stock in the face of the declines. The plaintiffs further alleged that the defendants breached their duty of disclosure by not providing complete and accurate information to plan participants regarding the risks associated with investing in Citigroup stock in light of the company’s exposure to the subprime market. On a motion to dismiss, the district court found no fiduciary breach because the defendants had “no discretion whatsoever” to eliminate Citigroup stock as an investment option (sometimes referred to as “hardwiring”). Alternatively, the lower court ruled that Citigroup stock was a presumptively prudent investment and the plaintiffs had not alleged sufficient facts to overcome the presumption.

SECOND CIRCUIT DECISION

Oral argument in the Citigroup case occurred nearly a year ago, and legal observers have been anxiously awaiting the court’s ruling. In a 2-1 decision, with Judge Chester J. Straub issuing a lengthy dissent, the Second Circuit rejected the “hardwiring” rationale but confirmed the application of the presumption of prudence, which was first articulated by the Third Circuit in Moench v. Robertson, 62 F.3d 553 (3d Cir. 1995). The court also rejected claims that the defendants violated ERISA’s disclosure obligations by failing to provide plan participants with information about the expected future performance of Citigroup stock.

Prudence

Joining the Third, Fifth, Sixth, Seventh, and Ninth Circuits,[1] the court adopted the presumption of prudence as the “best accommodation between the competing ERISA values of protecting retirement assets and encouraging investment in employer stock.” Under the presumption of prudence, a fiduciary’s decision to continue to offer participants the opportunity to invest in employer stock is reviewed under an abuse of discretion standard of review, which provides that a fiduciary’s conduct will not be second-guessed so long as it is reasonable. The court also ruled that the presumption of prudence applies at the earliest stages of the litigation and is relevant to all defined contribution plans that offer employer stock (not just ESOPs, which are designed to invest primarily in employer securities).

Having announced the relevant legal standard, the court of appeals dispatched the plaintiffs’ prudence claim in relatively short order. The plaintiffs alleged that Citigroup made ill-advised investments in the subprime market and hid the extent of its exposure from plan participants and the public; consequently, Citigroup’s stock price was artificially inflated. These facts alone, the court held, were not enough to plead a breach of fiduciary duty: “[T]hat Citigroup made a bad business decision is insufficient to show that the company was in a ‘dire situation,’ much less that the Investment Committee or the Administrative Committee knew or should have known that the situation was dire.” Nor could the plaintiffs carry their burden by alleging in conclusory fashion that individual fiduciaries “knew or should have known” about Citigroup’s subprime exposure but failed to act. Relying on the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the court of appeals held these bald assertions were insufficient at the pleadings stage to suggest knowledge of imprudence or to support the inference that the fiduciaries could have foreseen Citigroup’s subprime losses.

Disclosure

The court’s treatment of the disclosure claims was equally instructive. Plaintiffs’ allegations rested on two theories of liability under ERISA: (1) failing to provide complete and accurate information to participants (the “nondisclosure” theory), and (2) conveying materially inaccurate information about Citigroup stock to participants (the “misrepresentation” theory).

As to the nondisclosure theory, the court found that Citigroup adequately disclosed in plan documents made available to participants the risks of investing in Citigroup stock, including the undiversified nature of the investment, its volatility, and the importance of diversification. The court also emphasized that ERISA does not impose an obligation on employers to disclose nonpublic information to participants regarding a specific plan investment option.

Turning to the misrepresentation theory, the court found plaintiffs’ allegations that the fiduciaries “knew or should have known” about Citigroup’s subprime losses, or that they failed to investigate the prudence of the stock, were too threadbare to support a claim for relief. Though plaintiffs claimed that false statements in SEC filings were incorporated by reference into summary plan descriptions (SPDs), the court found no basis to infer that the individual defendants knew the statements were false. It also concluded there were no facts which, if proved, would show (without the benefit of hindsight) that an investigation of Citigroup’s financial condition would have revealed the stock was no longer a prudent investment.

IMPLICATIONS

Coming from the influential Second Circuit, the Citigroup decision represents something of a tipping point in stock-drop jurisprudence, especially with respect to the dozens of companies (including many financial services companies) that have been sued in stock-drop cases based on events surrounding the 2007-08 global financial crisis. The Second Circuit opinion gives the presumption of prudence critical mass among appellate courts and signals a potential shift in how stock-drop claims will be evaluated, including at the motion to dismiss stage.[2]

Under the Citigroup analysis, fiduciaries should not override the plan terms regarding employer stock unless maintaining the stock investment would frustrate the purpose of the plan, such as when the company is facing imminent collapse or some other “dire situation” that threatens its viability. Like other circuits that have adopted the prudence presumption, the Citigroup court emphasized the long-term nature of retirement investing and the need to refrain from acting in response to “mere stock fluctuations, even those that trend downhill significantly.” It also sided with other courts in holding that the presumption of prudence should be applied at the motion to dismiss stage (i.e., not allowing plaintiffs to gather evidence through discovery to show the imprudence of the stock). Taken together, these rulings may make it harder for plaintiffs to survive a motion to dismiss, especially where their allegations of imprudence are based on relatively short-lived declines in stock price.

Some had predicted the Second Circuit would endorse the “hardwiring” argument and allow employers to remove fiduciary discretion by designating stock as a mandatory investment in the plan document. The Citigroup court was unwilling to go that far, but it did adopt a “sliding scale” under which judicial scrutiny will increase with the degree of discretion a plan gives its fiduciaries to offer company stock as an investment. This is similar to the approach taken by the Ninth Circuit inQuan and consistent with the heightened deference that courts generally give to fiduciaries when employer stock is hardwired into the plan. Thus, through careful plan drafting, employers should be able to secure the desired standard of review. Language in the plan document and trust agreement (as well as other documents) confirming that employer stock is a required investment option should result in the most deferential standard and provide fiduciaries the greatest protection.

Also noteworthy was the court’s treatment of the disclosure claims. Many stock-drop complaints piggyback on allegations of securities fraud, creating an inevitable tension between disclosure obligations under the federal securities laws and disclosure obligations under ERISA. The Second Circuit did not resolve this tension, but it construed ERISA fiduciary disclosure requirements narrowly and rejected the notion that fiduciaries have a general duty to tell participants about adverse corporate developments. The court made this ruling in the context of SPD disclosures under the 401(k) plan that identified specific risks of investing in Citigroup stock. Plan sponsors should review their SPDs and other participant communications to make sure company stock descriptions are sufficiently explicit about issues such as the volatility of a single-stock investment and the importance of diversification. These disclosures may go beyond what is already required under Department of Labor regulations.

[1]. See Howell v. Motorola, Inc., 633 F.3d 552, 568 (7th Cir.), cert.denied, ­­­2011 WL 4530151 (2011); Quan v. Computer Sciences Corp., 623 F.3d 870, 881 (9th Cir. 2010); Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 254 (5th Cir. 2008); Kuper v. Iovenko, 66 F.3d 1447, 1459-60 (6th Cir. 1995).

[2]. That said, plan sponsors and fiduciaries should continue to monitor future developments in Citigroup in light of Judge Straub’s dissenting opinion and the likelihood of a petition for rehearing (or rehearing en banc), which the Citigroup plaintiffs have indicated they intend to seek. In his dissent, Judge Straub rejected the Moench presumption in favor of plenary review of fiduciary decisions regarding employer stock. He also disagreed with the majority’s interpretation of ERISA disclosure duties.

Copyright © 2011 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Health Care Information Privacy and Security Forum

The National Law Review is pleased to inform you of American Conference Institute’s Health Care Information Privacy and Security Forum Conference on Monday, December 05 to Tuesday, December 06, 2011 at the Union League, Philadelphia, PA.

ACI

Our Nation is poised to harness the power of information technology to improve health care. Transforming our health care system into a 21st century model is a bold agenda… [I]t is more important than ever to ensure consumer trust in theprivacy and security of their health information and in the industry’s use of new technology.

Statement on Privacy and Security, Building Trust in
Health Information Exchange, July 8, 2010.
We Have Entered the Era of Health Information Technology and Face New and Daunting Challenges in Keeping Health Information Private and Secure. Assess Your Current HIPAA Compliance Program to Ensure Best HIT Practices as You Prepare for New Privacy and Security Responsibilities in the Age of HITECH.

Privacy and security of health care information are critical concerns for HIPAA covered entities and an ever expanding circle of business associates.  Knowing the basics of the HIPAA are no longer enough in the age of HITECH when mandates giving rise to the predominance of EHRs and HIEs are taking center stage in the privacy and security challenges with which privacy, information, and security officers, and their counsel must contend every day.  The modes and modalities for storing health care information are becoming more and more complex in the age of HIT — as are the safeguards for keeping this information from unauthorized disclosure.

Now is Not the Time for Regulatory Paralysis, but for Action.

Industry stakeholders are analyzing their obligations under the draft accounting and disclosure rule and awaiting the release of the final HIPAA privacy rule. However, they know that they cannot remain paralyzed with anticipation, but must act upon the information they have and that which they are already obligated to do. Now is the time to ensure that all systems are in compliance with existing law and regulation and flexible enough for reconciliation with new requirements.

Attend ACI’s Health Care Privacy and Security Forum and Get the Critical Information that You Need to Meet Your HIPAA
and HITECH Privacy and Security Challenges Head-On. 

ACI’s Health Care Privacy and Security Forum has been designed to help you navigate the legal and business complexities associated with HIPAA, HITECH (as well as state privacy and security laws and regulations) and the ever evolving legal and regulatory privacy and security landscape. Our faculty of privacy and security experts will walk you through legal and business challenges associated with the anticipated regulations; HIT infrastructure and EHRs; HIEs; business associates; breach; encryption; and enforcement.

Benefit from Special Training and Strategy Sessions that Will Address the Essentials of HIPAA and HITECH and Critical Privacy and Security Compliance Audit Competencies.

To enhance and complete your conference experience, we are pleased to offer the following training and strategy sessions:

•    HIPAA and HITECH Boot Camp: Intensive Training in Privacy and Security Essentials for Health Care Professionals which will provide you with the legal and regulatory backdrop for the more in-depth HIPAA and HITECH controversies discussed in the main conference. This is the perfect course for attendees who are new to health care privacy and security matters or for more experienced professionals who are in need of a refresher; and

•    The Working Group on Auditing, Updating and Perfecting Your Existing HIPAA / HITECH Privacy and Security Compliance Program which will help you implement best practices to ensure that your current health care privacy and security program is in-check with current law and regulations and prepare you for HITECH-mandated HHS compliance audits applicable to both HIPAA covered-entities and business associates.

As an added bonus, your conference registration includes
your choice of one of these sessions.

Reserve Your Place Now at this Critical HIPAA and HITECH Event.
Clearly, this is the health care privacy and security conference that every legal or business advisor to a HIPAA covered entity or business associate cannot afford to miss. Register now by calling 1-888-224-2480, faxing your registration form to 1-877-927-1563 or logging on to www.AmericanConference.com/HIPAA-HITECH.

Medicare Part B premiums for 2012 lower than projected

Recently posted in the National Law Review an article by U.S. Department of Human & Health Services regarding Medicare Part B premiums:

Health & Human Services

Affordable Care Act helps keep Medicare affordable 

The U.S. Department of Health and Human Services (HHS) announced that Medicare Part B premiums in 2012 will be lower than previously projected and the Part B deductible will decrease by $22. While the Medicare Trustees predicted monthly premiums would be $106.60, premiums will instead be $99.90. Earlier this year, HHS announced that average Medicare Advantage premiums would decrease by four percent and premiums paid for Medicare’s prescription drug plans would remain virtually unchanged.

Thanks to the Affordable Care Act, people with Medicare also receive free preventive services and a 50 percent discount on covered prescription drugs when they enter the prescription drug “donut hole.”  This year, 1.8 million people with Medicare have received cheaper prescription drugs, while nearly 20.5 million Medicare beneficiaries have received a free Annual Wellness Visit or other free preventive services like cancer screenings.

“The Affordable Care Act is helping to keep Medicare strong and affordable,” said HHS Secretary Kathleen Sebelius. “People with Medicare are seeing higher quality benefits, better health care choices, and lower costs. Health reform is also strengthening the Medicare Hospital Insurance Trust Fund and cracking down on Medicare fraud.”

Medicare Part B covers physicians’ services, outpatient hospital services, certain home health services, durable medical equipment, and other items. In 2012, the “standard” Medicare Part B premium will be $99.90. This is a $15.50 decrease over the standard 2011 premium of $115.40 paid by new enrollees and higher income Medicare beneficiaries and by Medicaid on behalf of low-income enrollees.

The majority of people with Medicare have paid $96.40 per month for Part B since 2008, due to a law that freezes Part B premiums in years where beneficiaries do not receive cost-of-living (COLA) increases in their Social Security checks. In 2012, these people with Medicare will pay the standard Part B premium of $99.90, amounting to a monthly change of $3.50 for most people with Medicare. This increase will be offset for almost all seniors and people with disabilities by the additional income they will receive thanks to the Social Security cost-of-living adjustment (COLA). For example, the average COLA for retired workers will be about $43 a month, which is substantially greater than the $3.50 premium increase for affected beneficiaries. Additionally, the Medicare Part B deductible will be $140, a decrease of $22 from 2011.

“Thanks in part to the Affordable Care Act, people with Medicare are going to have more money in their pockets next year,” said Centers for Medicare & Medicaid Services (CMS) Administrator Donald Berwick, M.D. “With new tools provided by the Affordable Care Act, we are improving how we pay providers, helping patients get the care they need, and spending our health care dollars more wisely.”

Today, CMS also announced modest increases in Medicare Part A monthly premiums as well as the deductible under Part A. Monthly premiums for Medicare Part A, which pays for inpatient hospitals, skilled nursing facilities, and some home health care, are paid by just the 1 percent of beneficiaries who do not otherwise qualify for Medicare. Medicare Part A monthly premiums will be $451 for 2012, an increase of $1 from 2011. The Part A deductible paid by beneficiaries when admitted as a hospital inpatient will be $1,156 in 2012, an increase of $24 from this year’s $1,132 deductible. These changes are well below increases in previous years and general inflation.

For more information on how seniors are getting more value out of Medicare, please visit:http://www.healthcare.gov/news/factsheets/2011/10/medicare10272011a.html

For more information about the Medicare premiums and deductibles for 2012, please visit:https://www.cms.gov/apps/media/fact_sheets.asp

© Copyright 2011 U.S. Department of Human & Health Services

Protecting Your Brand in the New .XXX Top-Level Domain

Recently posted in the National Law Review an article written by atttorneys  Lee J. Eulgen, Antony J. McShane and Katherine Dennis Nye of Neal, Gerber & Eisenberg LLP regarding  ICANN’s established procedures for the use of .XXX as a new top-level domain :

 

The Internet Corporation for Assigned Names and Numbers (ICANN) recently established procedures for the use of .XXX as a new top-level domain (TLD) like .COM, .NET, and .ORG. However, unlike those other TLDs, .XXX has been designed to clearly signal adult content on the Internet. Given the connection between .XXX and adult content, many brand owners outside the adult industry have reasonable concerns about protecting their name and brand from use with the .XXX TLD.

In part to allay some of these fears, the company behind .XXX, ICM Registry, has created a sunrise period, which has just opened, to help protect brand owners from the use of their trademarks with the .XXX TLD. Between Sept. 7 and Oct. 28, 2011, trademark owners that are not in the adult industry can “reserve” their trademark for a one-time fee of approximately $250. For example, if the fictional ABC Company owns a U.S. federal trademark registration covering the mark ABC, it could reserve www.abc.xxx so that no one else can register or use that domain name for at least the next 10 years.

One important exception to the reservation process is that if two trademark owners both own the same mark, the one that wants to actually register and use the .XXX domain will prevail over the one that simply wants to reserve the same domain. For example, assume the fictional Acme Adult Magazine and Acme Family Restaurant both own U.S. federal trademark registrations for the mark ACME. If the restaurant applies to reserve www.acme.xxx and the magazine applies to register the same domain, ICM Registry will permit the magazine to register and use the domain, and the restaurant will lose its reservation fee.

Failure to reserve important trademarks during this sunrise period could have serious consequences. Most fundamentally, failure to reserve .XXX domain names corresponding to your trademarks could of course lead to undesirable usage of your marks in connection with domain names corresponding to adult web sites. Although brand owners may be able to recover .XXX domain names from others who register and use those domains in bad faith – just as brand owners can in domain name disputes over .COM or .ORG domains – the damage to a brand may be greater from misuse of a trademark in connection with the .XXX TLD by an adult content site than from misuse with another TLD. Furthermore, regardless of what TLD is at issue, the process of forcibly obtaining a domain name through legal means can be expensive. Thus, trademark owners should consider carefully whether reserving their marks during the .XXX sunrise period makes sense for their brands. 

© 2011 Neal, Gerber & Eisenberg LLP.

The U.S. Has a New Patent Law

Posted in the National Law Review on October 27, 2011 an article regarding the Patent Reform Act of 2011 by Taylor P. Evans of Andrews Kurth LLP:

President Obama signed the Patent Reform Act of 2011 into law on September 16, 2011. Below is a summary of selected provisions of the Act.

First to File

Effective March 2013, the U.S. patent system will change from a first-to-invent to a first-to-file system. This means that if two people make the same invention and there has been no public disclosure of the invention, and both describe and claim that invention in separate patent applications, the inventor that filed his patent application first gets the patent. Thus, filing early will be more critical than ever before. Companies should consider filing a provisional application for an invention as early as possible, possibly followed by additional provisional applications as the technology of an invention develops, with a non-provisional application within a year of the first provisional application. The first-to-file provision will have no effect on existing patents or applications filed before March 2013.

Post-Grant Challenges

Effective September 2012, third parties will be able to challenge the validity of patents within nine months of issuance in the Patent Office in a Post-Grant Opposition Review proceeding. Any basis for a validity challenge will be entertained, including questions of novelty and obviousness, as well as challenges based on non-patentable subject matter or an improper written description or other formalities. After nine months, third parties may challenge patents through Inter Partes Review, which will replace existing Inter Partes Reexamination proceedings. In an Inter Partes Review, invalidity challenges must be based only on prior patents and printed publications.

In view of these changes, companies planning to initiate Inter Partes Reexamination proceedings should do so prior to September 2012. In addition, companies should arrange a monitoring program to identify patents that relate to the company’s product line for possible challenge in a Post-Grant Opposition Review proceeding upon issuance. Similarly, patentees should be aware that a significant challenge against their patents in the patent office may develop, and they should be prepared to defend against challenges from competitors when their own patents issue.

False Marking

The new Act severely limits false marking lawsuits. Only the federal government and direct competitors that have been damaged can sue for false marking. Furthermore, non-government litigants will no longer be able to collect five hundred dollars in damages per item. In addition, it is no longer actionable not to remove expired patent numbers from products. The new law also provides for “virtual marking,” by which a company marks its product with “Patent” or “Pat.,” followed by a web address. The corresponding website displays the patent marking information and must be available to the public at no charge. These changes apply retroactively to existing cases.

Disjoinder

The new law bars plaintiffs from suing multiple defendants in the same suit if the only thing that the defendants have in common is that they are alleged to infringe the same patent(s). Courts will also be barred from consolidating cases involving different defendants according to the same criteria, except that unrelated parties may still be joined for purposes of discovery. This provision applies to all suits filed on or after September 16, 2011.

Supplemental Examination

Supplemental examination is a new post-grant procedure that will allow a patentee to cure possible inequitable conduct by presenting previously withheld information to the Patent Office after issuance of a patent. After the previously withheld information is presented, and if the claims are allowed again, that information cannot be used in later court proceedings. Supplemental examination proceedings cannot be commenced or continue once an infringement action has been brought.

Assignee Filing

Under the new Act, a company can file a patent application on behalf of an inventor where the inventor is under obligation to assign its rights to the company and refuses to sign the oath or declaration. This provision will become effective in September 2012.

Fees

Effective September 26, 2011, all Patent Office fees will be subject to a 15% surcharge.

Other Changes

There are numerous other changes to the patent system under the Patent Reform Act of 2011, including, for example, elimination of the “best mode” requirement, and changes unique to specific types of inventions, such as business methods or computers. For additional information or to discuss all the new changes in more detail, please call us.

© 2011 Andrews Kurth LLP

"The Sins of the Father": Third Party Retaliation Claims Allowed to Proceed

Recently posted in the National Law Review an article written by Ralph A. Morris of Schiff Hardin LLP about third-party retaliation claims :

A recent Texas federal court decision has further expanded the bases for Title VII retaliation claims against employers. In Zamora v. City of Houston, Christopher Zamora, a Houston police officer, alleged that the Houston Police Department demoted him in retaliation for the filing of a charge with the U.S. EqualEmployment Opportunity Commission (“EEOC”). In this case, however, the charge was not filed by Christopher Zamora, but by his father, Manuel Zamora, alleging that he, Manuel Zamora, had been discriminated against by the Department.

Earlier this year, in Thompson v. North American Stainless, LP, the United States Supreme Court permitted an employee’s Title VII retaliation claim to proceed where the employee’s fiancee had earlier filed an EEOC charge. The Court held that a Title VII retaliation claim could stand where the employee is subject to an adverse employment action because a co-worker to whom the employee is “closely related” engaged in protected activity.

The Supreme Court decided Thompson while the Zamora case was pending in the U.S. District Court for the Southern District of Texas. After the Thompson decision was issued, the Zamora court reversed its prior determination that dismissed Christopher Zamora’s claim. The court concluded that under Thompson, Mr. Zamora’s retaliation claim could proceed based on his father’s filing of an EEOC charge. Thus, under Zamora, in addition to a fiancee, a parent-child relationship satisfies the “closely related” test enunciated by the Supreme Court in Thompson.

Retaliation charges and lawsuits typically are more challenging to defend because the employee’s burden of proof is not as difficult to meet, as compared with a charge of discrimination. Thompson and Zamora now place an additional burden on employers by holding that employees themselves do not necessarily need to engage in the protected activity to have standing to sue for retaliation. These decisions may have a greater impact on employers that make it a practice to hire family members and friends of existing employees than on those with anti-nepotism policies.

The Supreme Court refrained from identifying a fixed class of relationships for which third-party retaliation claims are viable. Future cases will have to decide how far retaliation claims will be expanded: whether, for example, partners involved in a romantic relationship but who are not engaged, or familial relationships more distant than parent and child, are sufficiently close so as to fall within the zone of protection. Employers can help reduce the risk for these types of claims by reviewing their EEOC and anti-retaliation policies and ensuring that managers are trained and educated on compliance.

© 2011 Schiff Hardin LLP

IRS Announces Retirement Plan Limitations for 2012 Tax Year – Most Limits Increased

Recently posted in the National Law Review an article written by Alyssa D. Dowse of von Briesen & Roper, S.C. regarding the cost of living adjustments for the 2012 tax year:

The Internal Revenue Service (“IRS”) has announced the cost of living adjustments for the 2012 tax year, which affect various dollar limitations for retirement plans. The IRS increased many of these limitations for the first time since 2009. Some limitations remain unchanged. The following chart highlights many of the noteworthy limitations for the 2012 tax year.

Plan Limit

2011

2012
Social Security Taxable Wage Base $106,800 $110,100
Annual Compensation (Code Section 401(a)(17)) $245,000 $250,000
Elective Deferral (Contribution) Limit for Employees who Participate in 401(k), 403(b) and most 457(b) Plans (Code Sections 402(g), 457(e)(15)) $16,500 $17,000
Age 50 Catch-Up Contribution Limit (Code Section 414(v)(2)(B)(i)) $5,500 $5,500
Highly Compensated Employee Threshold (Code Section 414(q)(1)(B)) $110,000 $115,000
Defined Contribution Plan Limitation on Annual Additions (Code Section 415(c)(1)(A)) $49,000 $50,000
Defined Benefit Plan Limitation on Annual Benefit (Code Section 415(b)(1)(A)) $195,000 $200,000
ESOP Distribution Period Rules—Payouts in Excess of Five Years (Code Section 409(o)(1)(C)) $985,000

$195,000

 $1,015,000

$200,000
Key Employee Compensation Threshold for Officers (Code Section (416(i)(1)(A)(i)) $160,000 $165,000

Plan sponsors should review employee communications and update such communications as appropriate based on the 2012 cost of living adjustments. Other cost of living adjustments can be found on the IRS  website: http://www.irs.gov/retirement/article/0,,id=96461,00.html.

©2011 von Briesen & Roper, s.c

 

 

How September 11 Changed Insurance

Recently posted in the National Law Review an article by Jared Wade of Risk and Insurance Management Society, Inc. (RIMS) regarding the impact on the entire insurance industry  after  September 11:

We are now more than 10 years removed from the worst terrorist attack in history. In the days and months following September 11, terrorism insurance weighed so heavily on the mind of both policyholders and insurers that the federal government was forced to add backstop capacity to the market.

But Jeff Beauman, vice president of all-risk underwriting for FM Global, explains that 9/11 affected much more than just one line of coverage. It arguably had a bigger impact on the entire insurance industry than even the vast losses suggest. Contract certainty was something that few talked about — and even fewer expected — prior to the attack.

Most insurance buyers will still tell you that they want their policies quicker, but improvement has been made. Furthermore, the number of lines involved in the claims made every insurer rethink its risk appetite. The industry, like the world, will never be the same.

RM: How did September 11 change insurance?

Jeff Beauman: Probably the biggest change I’ve seen has been a much higher interest in contract certainty. If you remember, in the months following 9/11, the concern that so many clients had, particularly those affected by the event, was that the policies they had purchased had not yet been issued. The industry as a whole had not been very good at getting policies issued quickly. Since that time, the industry has been working very hard to do so.

RM: Are clients still very concerned about contract certainty? How far along has the industry come?

Beauman: It’s always going to vary from one carrier to the next, but I do think that customers are much more appreciative of companies that are able to get policies issued on time-and [those] issuing policies where the language is very well understood by both parties. In terms of FM Global, we’re now issuing about two-thirds of our master policies before the effective date and 90% within 30 days.

What that means is that our clients have the written documentation very quickly after they decide to purchase coverage with us. Generally, I think, whether you talk to policyholders or underwriters, you will find that this emphasis on contract certainty has probably been a good thing for us as an industry.

RM: How so?

Beauman: It caused us to raise our game. Beforehand, you had a process by which policies would be issued “at some point,” and people came to accept it as normal because every [insurer] was equally bad. There was no good way for a client to compare one carrier to the next.

Now, you do have an expectation on the part of clients because, after big disasters, they have seen the importance of having that policy language issued. It’s something they now ask for. It gives the client a greater sense of confidence that they know what they have as part of their overall risk management strategy.

And the terrorism event of 9/11 helped to highlight the weakness the industry had in this area because there were so many claims being made without adequate policy documentation. There were disputes that received a lot of notoriety in the courts. So September 11 helped the industry improve.

RM: Was this because dealing with terrorism claims was so new and the specific policy language was so unfamiliar to everyone? Hurricane Andrew had many claims of its own, but did the particulars of the contract language matter less in that instance because hurricane claims had been dealt with before?

Beauman: Yes, that’s right. Part of what allowed the industry to not focus on contract certainty [in the past] was that they had some personal, first-hand experience to fall back on. Terrorism was so new to everybody and the event itself was so unusual, that it did cause a wake up. When you don’t have that personal experience to fall back on, you have to rely on policy language.

RM: There must have been a lot of people after 9/11 who believed that they had coverage for terrorism but weren’t sure what it consisted of.

Beauman: Exactly. In terms of the World Trade Center, limits were purchased under the presumption that the two buildings would never be damaged in the same event. And further complicating things was that it was what is considered a “clash event” because there were a lot of lines all involved in the same event, something no one had anticipated.

You had hull coverage for aviation because you had three airplanes involved. You had a lot of automobile policies that were affected. You had life insurance, obviously. You had property insurance. You had fine arts coverage. You had a lot of types of cargo insurance. You just had a lot of smaller lines that are not typically involved in the same occurrence. That forced insurers to re-evaluate their risk appetite and how they go about establishing their maximum lines.

RM: Has there ever been a “clash event” as broad as 9/11?

Beauman: No — and I would hope that none of us ever see an event like it again. It was the worst type of clash event because it was something that had never been imagined beforehand by anyone aside from the people who perpetrated it.

Take a typical event like Hurricane Irene that just happened. Underwriters understand that there is going to be wind damage. They understand there is going to be flood damage. They understand that there is going to be some damage to automobiles and buildings. They understand that there may be some people who lose their lives. Because they can visualize it, they can establish what their risk exposure might be, and they can operate their business comfortably depending on their risk appetite. 9/11 caused all underwriters to reconsider their risk appetite to make sure they weren’t over-extended.

———-

Jared Wade is senior editor of Risk Management.

Risk Management Magazine and Risk Management Monitor. Copyright 2011 Risk and Insurance Management Society, Inc. All rights reserved.

Dodd-Frank Update — Several Regulatory and Legislative Proposals of Note

Recently posted in the National Law Review an article by attorneys  Sylvie A. Durham, Genna Garver and Dmitry G. Ivanov of Greenberg Traurig, LLP regarding  the OCC, FDIC and SEC’s proposed a joint rule implementing theVolcker Rule:

GT Law

REGULATORS PROPOSE VOLCKER RULE:

On October 11, 2011, the Office of the Comptroller of the Currency, Treasury (OCC), Board of Governors of the Federal Reserve System (Board), Federal Deposit Insurance Corporation (FDIC), and Securities and Exchange Commission (SEC) issued a joint proposed rule implementing the long awaited Volcker Rule. This proposal establishes exemptions from the prohibition on proprietary trading and restrictions on covered fund activities and investments as well as limitations on those exemptions. In addition, the proposal requires certain banking entities to report quantitative measurements with respect to their trading activities and to establish enhanced compliance programs regarding the Volcker Rule, including adopting written policies and procedures. Appendices to the proposal provide the quantitative measurements to be used to report trading activities, commentary regarding the factors the agencies propose to use to distinguish permitted market making-related activities from prohibited proprietary trading and the minimum requirements and standards for compliance programs. Comments should be received on or before January 13, 2012. A copy of the proposed rule is available here.

FSOC PROPOSES RULE TO SUPERVISE AND REGULATE CERTAIN NON-BANK FINANCIAL COMPANIES:

On October 11, 2011, the Financial Stability Oversight Council (FSOC) issued its second proposed rule and interpretive guidance to provide additional details regarding the framework that FSOC intends to use in the process of assessing whether a nonbank financial company could pose a threat to U.S. financial stability, and further opportunity for public comment on FSOC’s approach to making determinations to require supervision and regulation of certain nonbank financial companies in accordance with Title I of Dodd-Frank, previously proposed on January 26, 2011. The proposed rule, previously proposed on January 26, 2011, has been modified to provide additional details about the processes and procedures through which FSOC may make this determination under Dodd-Frank, and the manner in which a nonbank financial company may respond to and contest a proposed determination. Importantly, the interpretive guidance sets out a three-stage process of increasingly in-depth evaluation and analysis leading up to a proposed determination that a nonbank financial company could pose a threat to the financial stability of the United States. The first stage would involve a quantitative analysis by applying thresholds that related to the framework categories of size, interconnectedness, leverage and liquidity risk and maturity mismatch. A company will be evaluated further in stage 2 only if it both meets the total consolidated assets threshold ($50 billion in global consolidated assets for U.S. global financial companies or $50 billion in U.S. total consolidated assets for foreign nonbank financial companies) and any one of the other enumerated metrics. Stage 2 would involve a wide range of quantitative and qualitative industry-specific and company-specific factors. Stage 3 would focus on the company’s potential to pose a threat to the U.S. financial system. Comments are due by December 19, 2011. A copy of the proposed rule is available here.

PROPOSED LEGISLATION ON TO EXTEND DEADLINE FOR DERIVATIVES RULEMAKING:

A bill was introduced in the Senate to extend the deadline for rulemaking on derivatives to July 16, 2012. The Dodd-Frank Improvement Act of 2011 (S. 1650) would require the SEC, the CFTC and other relevant regulators to jointly adopt an implementation schedule for derivatives regulations by December 31, 2011, which would, among other things, specify schedules for publication of final rules and for the effective dates for provisions in Dodd-Frank on derivatives. The proposed bill would also allow the regulators to issue exemptions with respect to swap transactions, activities or persons from the Dodd-Frank Act derivatives provisions, would exempt end-users of swaps from margin requirements, would revise the definition of major swap participants to “prevent Main Street businesses that are using derivatives to hedge business risks from being regulated like swap dealers,” and would exempt inter-affiliate transactions from the definition of “swaps.” The bill would also create the Office of Derivatives within the SEC to “administer rules, coordinate oversight and monitor the developments in the market.” The text of the bill is available by clicking here.

PROPOSED LEGISLATION TO FREEZE REGULATORY RULEMAKING:

Two bills were introduced in the House of Representatives to freeze regulatory rulemaking actions during a “moratorium period” and to repeal certain existing regulations. The Job Creation and Regulatory Freeze Act of 2011 (H.R. 3194)would establish a moratorium period until January 20, 2013, prohibiting regulators from adopting any “covered regulations,” which would include final regulations that, among other things, would have an adverse effect on employment, economy or public health or are likely to “have an annual effect on the economy of $100,000,000 or more.” At the same time, the bill would allow rulemaking, to the extent necessary “due to an imminent threat to human health or safety, or any other emergency” or if it promotes “private sector job creation,” encourages economic growth or reduces “regulatory burdens.” The Stop the Regulation Invasion Please Act of 2011, or STRIP Act of 2011 (H.R. 3181) would also establish a two-year moratorium period for all new rulemaking, except in certain limited circumstances. In addition, that bill would repeal, with certain exceptions, all rules that became effective after October 1, 1991. The existing rules that would continue in effect would need to be justified before the Congress based on cost-benefit analysis. The H.R. 3194 is available by clicking here; and the H.R. 3181 is available by clicking here.

©2011 Greenberg Traurig, LLP. All rights reserved.

Hooters Sues Competitor over Alleged Trade Secrets Theft after Top Executives Fly Away

Recently posted in the National Law Review an article by Eric H. Rumbaugh, Luis I. Arroyo and Steven A. Nigh of Michael Best & Friedrich  LLP regarding  misappropriating its trade secrets and other confidential business information following the departure of several Hooters executives:

 

Hooters of America LLC has sued a competitor in Georgia Federal Court for allegedly misappropriating its trade secrets and other confidential business information following the departure of several Hooters executives to Twin Peaks Restaurants.

Hooters’ complaint alleges that former vice president of operations and purchasing, Joseph Hummel, gained unauthorized access to Hooters’ computers and took trade secrets and other confidential information. Specifically, Hooters claims that around the time of his departure, Hummel downloaded and transferred confidential sales figures, employee training and retention strategies and purchasing information to his personal e-mail account. The suit also accuses Hummel of additional unauthorized access of private business information following the termination of his employment.

Hummel, as well as Hooters’ former Chief Executive Officer and its general counsel, left the beach-themed restaurant franchise to join up with Twin Peaks, which operates a mountain lodge-themed restaurant chain featuring an all-female wait staff. Hooters contends that Hummel’s alleged theft has allowed Twin Peaks to hit the ground running in its efforts to open 35 restaurants in the next decade, several of which are planned for markets with Hooters restaurants.

The case illustrates the potential damage that departing employees, particularly those with access to sensitive information, can wreak on an employer. Hooters has already taken one step towards protecting itself; before Hummel left, he signed a confidentiality agreement requiring him to return all confidential and proprietary information to Hooters. In addition to confidentiality agreements, employers should consider having their top executives or other employees with access to sensitive information sign non-competition agreements. Moreover, most states’ trade secret statutes require businesses to take steps that are reasonable under the circumstances to protect their confidential information in order to preserve the trade secret status of that information. Accordingly, employers should consider implementing electronic security measures beyond just login credentials; limiting the number of employees who are authorized to access confidential information; and regulating employees’ ability to take information off company premises.

Next, when key employees depart, and especially when they depart for a competitor, businesses should consult with counsel immediately, and before examining (and arguably damaging) electronic evidence. Departing employees who take information often leave a shockingly obvious electronic trail; but that trail can be lost quickly if not preserved, or inadvertently destroyed if improperly accessed.

Lastly, businesses engaging talent, and especially talent that comes from a competitor, cannot be too careful or too forceful in making sure that the incoming talent does not make, retain or transfer any copies of information from their previous employer. Businesses engaging talent that acted improperly on the way out can quickly embroil their new employers in costly and risky litigation.

© MICHAEL BEST & FRIEDRICH LLP