Fiduciary Duty

News & Analysis as of

Education is an important part of the fiduciary process

Advisors ask me all the time of the role of education in participant directed 401(k) plans. Participant directed 401(k) plans that are governed under ERISA §404(c) offer the plan sponsors liability protection based on a...more

Delaware Law Updates – Pleading Breach of the Implied Covenant of Good Faith and Fair Dealing in the Publicly Traded Master...

In Dieckman v. Regency GP LP, --- A.3d ---, 2017 WL 243361 (Del. Jan. 20, 2017), the Delaware Supreme Court reversed the Court of Chancery[1] and held that the common unitholder plaintiff’s complaint properly stated a claim...more

A Rule Deferred: Department of Labor Delays Implementation of Fiduciary Rule

As we previously discussed in our May 19, 2016 SW Benefits Update, the Department of Labor (the “Department”) previously issued final regulations on fiduciary conflicts of interest in retirement programs. The rules, which...more

Delaware Supreme Court Wastes No Words: Summarily Affirms In re Volcano Corp. Stockholder Litigation, Upholding Business Judgment...

On February 9, 2017, the Supreme Court of Delaware summarily affirmed the Court of Chancery’s decision in In re Volcano Corp. Stockholder Litigation which had dismissed plaintiffs’ complaint on defendants’ 12(b)(6) motion to...more

DOL Issues New Guidance on Plan Fiduciaries' Proxy Voting Policies

The Employee Benefits Security Administration (EBSA) published Interpretive Bulletin (IB) 2016-1 on Dec. 29, 2016, relating to the exercise of shareholder rights and written statements of investment policy, including proxy...more

New laws may give fiduciaries power to access digital assets

Historically, estate planning has been concerned with tangible assets, such as real estate and personal property, and intangible assets, such as securities and other investment assets. In the digital age, estate planning...more

Stockholder Merger Vote Sets High Bar for Post-Closing Claims

The Delaware Supreme Court's decision in Corwin v. KKR Financial Holdings , 125 A.3d 304 (Del. 2015), reaffirmed the power of fully-informed, uncoerced, disinterested stockholder approval to immunize M&A transactions against...more

Update on the USDOL Conflict of Interest Rule and Related Exemptions

There were two key developments last week concerning the ongoing challenges to the U.S. Department of Labor (USDOL) conflict of interest rule and related exemptions:  a Presidential Memorandum calling for a review of the...more

NC Fiduciaries Have a Duty to Explain Arbitration Agreements in Contracts

The Supreme Court of North Carolina recently issued an opinion that could have a substantial impact on the enforceability of arbitration agreements when a fiduciary relationship exists, particularly in the context of consumer...more

T&E Litigation Newsletter - February 2017

Several recent decisions serve as a good reminder that it is not only the Probate and Family Court that addresses important T&E issues in Massachusetts. In the consolidated matters of Hanna et al. v. Williams et al.,...more

First Department Opens the Door a Bit Wider to “Disclosure-Only” Settlement Agreements in Class Action Cases

On February 2, 2017, the New York Supreme Court, Appellate Division, First Department, approved a “disclosure-only” settlement agreement in Gordon v. Verizon Communications, Inc., 2017 N.Y. App. Div. LEXIS 740 (1st Dep’t Feb....more

First Department Adds Two New Factors to New York’s Standard of Review for Non-Monetary Settlements of Shareholder Class Actions

On February 2, 2017, the Appellate Division, First Department issued a unanimous decision in Gordon v. Verizon Communications, Inc., No. 653084/13, 2017 BL 31251 (1st Dep’t Feb. 2, 2017) that may have significant consequences...more

Corporate Law & Governance Update - February 2017

THE #1 FIDUCIARY DUTY ISSUE OF 2017 - Positioning boards to exercise heightened engagement within the current “climate of uncertainty” is possibly the most important health system governance challenge of 2017. To...more

Race to the Exit as Professional Practice Falters

Does a shareholder have a fiduciary duty not to exercise a contractual right under the shareholders’ agreement to resign and demand a buy-out of his shares by the financially distressed corporation, particularly when the...more

Maintaining family harmony: Balance beneficiaries’ needs with a total return unitrust

A traditional trust can sometimes create a conflict among the lifetime and remainder beneficiaries. This makes it more difficult for an estate plan to achieve its objectives and places the trustee in a difficult position. The...more

Fiduciary Imprudence: When the Sale of an Asset Results in a Surcharge

Although one of the many duties and responsibilities of an executor is to marshal and appraise estate assets, and, depending upon the dispositive terms of the governing instrument, liquidate them for purposes of distribution,...more

Being a Plan Sponsor is all about the Process

Imagine a diet where it doesn’t matter how much weight you lost. Imagine a golf game that wasn’t about your score. Imagine about a job and not how much money you make. Being a plan sponsor isn’t about a specific result, it’s...more

DOL Fiduciary Rule Still On for April 10 Implementation

The Department of Labor’s Fiduciary Duty Rule remains on track for April 10 implementation, notwithstanding a maelstrom of hype about it. Nearly everyone expected the new administration would delay the Rule – and many...more

Implications of Trump's Memorandum on Status of Fiduciary Rule

President Donald Trump issued a memorandum on Feb. 3, 2017, directing the U.S. Department of Labor (DOL) to reconsider the regulations that change the definitions of fiduciary and fiduciary advice. The regulations,...more

“But Our Vendor Handles Everything — How Can We Still Have Fiduciary Liability?”

As the rules governing retirement and health plans grow more complex, employers often need professional help in order to keep up with the day-to-day management of the employee benefit plans they sponsor. From third-party...more

Advisors Advantage - February 2017

Concepts That Retirement Plan Advisors Shouldn't Focus On. It would be a detriment to focus only on this stuff. Being a financial advisor isn't as easy as many people on the outside think. There are so many things you ...more

"Change in Administration Presents Opportunity to Revisit DOL Fiduciary Rule"

In 2016, regulatory developments introduced fundamental changes in the legal standards that govern the relationship of broker-dealers with their customers. Although the changes are not applicable until April 10, 2017, most in...more

Court Of Chancery Holds That Wrong Forward Looking Statement Insufficient To Support Records Inspection

It is not enough that certain forward-looking statements failed to come true to justify requiring an inspection of corporate records. More evidence of wrongdoing is needed if your inspection is based on a theory of...more

President Trump Calls for a Review of DOL’s Fiduciary Rule

On February 3, 2017, President Trump signed a presidential memorandum (Memorandum) ordering the U.S. Department of Labor (DOL) to review its conflict of interest rule defining the term “fiduciary” for retirement investment...more

Gordon v. Verizon: New York Parts Company with Delaware

On February 2, 2017, the New York Appellate Division, First Department, issued a decision in Gordon v. Verizon Communications, Inc., No. 653084/13, 2017 WL 442871 (1st Dep’t 2017), approving the settlement of litigation over...more

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