As We Go To E- Press--A Few Items from the Editors of the EBC Newsletter
As is the custom, the editors have identified a few recent items worthy of mention but perhaps not extensive discourse. That does not mean these developments are unimportant but rather that they are, to a large degree, self-explanatory or both too important and too new to address fully. It is also the case for those in "Well, what about . . . .?" mode that our criteria for inclusion are relatively loose and we make no effort to track every development across the spectrum of concerns covered by JCEB in real time. We are however very interested in what interests you so please let us know what we left out and whether you know someone who might be interested in developing the omitted item for later article treatment. In that spirit we offer the following for consideration:
- The Court decided U.S. Airways v. McCutchen and summarized its own holding as follows:
Our holding today has two parts, one favoring US Airways, the other McCutchen. First, in an action brought under §502(a)(3) based on an equitable lien by agreement, the terms of the ERISA plan govern. Neither general principles of unjust enrichment nor specific doctrines reflecting those principles--such as the double-recovery or common-fund rules--can override the applicable contract. We therefore reject the Third Circuit's decision. But second, the common-fund rule informs interpretation of US Airways' reimbursement provision. Because that term does not advert to the costs of recovery, it is properly read to retain the common-fund doctrine. We therefore also disagree with the District Court's decision. In light of these rulings, we vacate the judgment below and remand the case for further proceedings consistent with this opinion.
- We also continue to await decisions in Hollingsworth v. Perry, and U.S. v. Windsor on issues related to same sex marriage and both the Defense of Marriage Act and California's Proposition 8.
- The Court also granted certiorari in Heimeshoff v. Hartford Life Insurance Co., F.3d___, 2012 WL 4017133 (2d Cir. 2012), on the following question: "When should a statute of limitations accrue for judicial review of an ERISA disability adverse benefit determination?"
- IRS continues to keep many of us busy with more PPACA guidance including:
- "Shared Responsibility for Employers Regarding Health Coverage: Proposed Rule" 78 Fed. Reg. 218 (January 2, 2013);
- "Health Insurance Premium Tax Credit: Final Rule" 78 Fed. Reg. 7264 (February 1, 2013); and
- "Shared Responsibility Payment For Not Maintaining Minimum Essential Coverage: Proposed Rule" 78 Fed. Reg. 7314 (February 1, 2013)