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Employee Benefits Law Committee Newsletter - Spring 2020

The Rise of Surcharge: Breaches of Fiduciary Duty that Result in Monetary Relief, by Brent Dorian Brehm - Considering how many employers provide ERISA regulated benefits, and the potential complexity in doing so, does it really matter if a mistake is made in administering those plans? After all, a plan administrator operating under a systemic conflict of interest can still enjoy deferential review when it makes a single honest mistake. And the core of ERISA is a careful balancing between ensuring fair and prompt enforcement of rights under a plan and the encouragement of the creation of such plans. This article explores the rising tension between ERISA’s goals in the wake of “equitable surcharge” liability for employers when an honest mistake in plan administration harms a plan participant or beneficiary.

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