Banking and Finance Law Report : Banking & Finance Lawyer & Attorney : Porter Wright Morris & Arthur Law Firm : Bankruptcy, Commercial Lending

The deadline is quickly approaching for written fee disclosures by covered service providers.  This creates new homework for financial institutions who are plan sponsors–in the form of enhanced fiduciary review obligations and a suggested need to review (and/or create) written service agreements.

By now folks who work in the tax-qualified retirement industry are well (and perhaps painfully) aware that the United States Department of Labor ("DOL") issued final service provider fee disclosure regulations early this year.  As the deadline for service providers to provide the required disclosures (i.e., July 1, 2012) draws close, it seems like an opportune time to consider what plan sponsors should do with all this data, and what other steps they should consider taking.  

Here is a link to an overview of the implications for plan sponsors on one of our sister PWMA blogs that focuses primarily on employee benefit plans:   http://www.employeebenefitslawreport.com/2012/06/fee-disclosures-are-almost-here-what-should-plan-sponsors-do-now/

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Estoppel in ERISA: Simple Mistakes Can Lead to Costly Litigation

Plan administrators need to take steps to ensure that the information they provide to plan participants is accurate. Otherwise, plan participants may use this misinformation to bring an estoppel claim.

In civil litigation, defendants have long relied on equitable estoppel as an affirmative defense. The basic elements of an equitable estoppel defense are:

• a definite misrepresentation of fact made to another person with the expectation that they will rely on it; and
• reasonable and detrimental reliance on the misrepresentation

See, e.g., Heckler v. Community Health Servs. of Crawford County. The rationale behind this defense is that a party who unfairly misrepresents facts should not then be permitted to benefit by means of such misrepresentation.

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The following was recently posted by our colleague Seth Hanft on our sister blog Employee Benefits Law Report . It provides a reminder to in-house counsel addressing employee benefit claims that their communications with their benefits personnel regarding employee benefits claims may not be protected by the attorney-client privilege, an issue frequently encountered by in-house counsel at financial institutions.

Keep in mind that both counsel and benefits managers often wear fiduciary and non-fiduciary hats when addressing benefits plans issues and it is not always clear which hat they are wearing when. Therefore, to avoid potential spill over of this fiduciary exception to their other areas of responsibility, in house – and outside – counsel should : (1) separate advice regarding fiduciary and non-fiduciary (e.g. plan sponsor, settlor, and employment) issues, so that privileged and non-privileged advice is not communicated at the same time and (2) be explicit in written communications as to the non-fiduciary purpose of legal advice being provided regarding non-fiduciary issues.

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