Document Type

Working Paper

Publication Date

4-19-2014

SSRN Discipline

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Abstract

ERISA the comprehensive employee benefits reform statute created a strict fiduciary standard for those involved in the administration or management of employee benefit plans or their assets a standard that requires such actors to make decisions solely in the interests of the plan's participants and their beneficiaries The courts however have held that employer decisions on whether to adopt or terminate a plan or how to design the provisions of a plan are plan "settlor" functions akin to a grantor's design of a trust under the common law and thus not subject to ERISA's fiduciary duties While the settlorfiduciary doctrine has worked well and is not controversial in routine cases the article shows that the doctrine has permitted employers in some cases to bypass express and implied ERISA requirements through artful plan drafting and perhaps more troubling has also permitted employers to exploit ERISA's broad preemption of state law to insulate plans actions from judicial or state legislative oversight even in areas where there is broad national consensus such as limits on claim subrogation and liability for negligent medical decisionmaking The article suggests three limiting principles that courts could use to provide a more nuanced approach to balancing employer and employee interests in and related to ERISA plans These principles would leave intact the core of the doctrine while mitigating its most troubling effects

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