ERISA plan sponsors may be liable for breach of fiduciary duty if the investments selected for an employee retirement plan are “objectively imprudent.” A decision last week by the Eleventh Circuit makes a defendant’s path for obtaining summary judgment on such a claim more difficult. In Johnson v. Russell Investment Mgt., LLC, 2026 WL 2387006…
Category: Employment Law and Employee Benefits
ERISA’s “Actuarial Equivalent” Requirement Demands Reasonable Assumptions
In Drummond v. Southern Company Services, Inc., No. 24-12773 (11th Cir. May 26, 2026), the Eleventh Circuit held that a plan converting one form of annuity into its “actuarial equivalent” under the Employee Retirement Income Security Act of 1974 (“ERISA”) must use the kind of assumptions a reasonable actuary would actually employ. ERISA requires retirement…
Prior Employment Retaliation Action Precludes False Claims Act Qui Tam Action
A False Claims Act (“FCA”) qui tam action may be barred by res judicata because of a prior employment retaliation action, the Eleventh Circuit held in Milner v. Baptist Health Montgomery, 132 F.45h 1354 (11th Cir. 2025). A physician brought suit against his former employer-hospital, alleging that he was fired for whistleblowing on a scheme…
Insurance Company Providing 401(k) Retirement Plans Not an ERISA Fiduciary with Respect to Foreign Tax Credits from Mutual Fund Shares
In Romano v. John Hancock Life Insurance, 120 F.4th 729 (Oct. 30, 2024), the Eleventh Circuit held that an insurance company providing investment and record keeping services is not an ERISA fiduciary as it relates to the application and retention of foreign tax credits. John Hancock provided investment and recordkeeping services to 401(k) retirement plans,…
NLRB’s Severance and Retention of Remedial Issue Does Not Deprive Court of Appellate Jurisdiction Over Resolved Issues
In National Labor Relations Board v. ArrMaz Products, Inc., 2024 WL 5116732 (11th Cir. Dec. 16, 2024), the Eleventh Circuit held that it had jurisdiction to review a decision of the National Labor Relations Board (“NLRB”) that employees of a wholly owned subsidiary were not eligible to vote in a union-representation election, where the NLRB…
But-For Causation Required for Employees to Succeed on FMLA Retaliation Claims
An employee bringing a retaliation claim under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-54 must prove that the retaliation was the but-for cause of termination. Lapham v. Walgreen Co., 2023 WL 8609244 (11th Cir. 2023). Doris Lapham, an employee of Walgreens for almost ten years, sought leave under FMLA so that…
Sarbanes-Oxley Whistleblowers Required to Allege Fraud
The Eleventh Circuit clarified the reasonable-belief standard for whistleblowers alleging unlawful retaliation under the Sarbanes-Oxley Act, in Ronnie v. Office Depot, LLC, No. 20-14214, ___ F.4th ___ (11th Cir. Sept. 25, 2023). SOX broadly prohibits discrimination against employees for providing information that they “reasonably believe[] constitutes” mail, wire, bank, or securities fraud (or a violation of…
No Special Tolling for Plaintiff Who Brings an Untimely FLSA Action After Previous Timely Action Is Dismissed
The Fair Labor Standards Act’s statute of limitations is not tolled when a plaintiff files an FLSA action that is later dismissed and then files a new, untimely, action. This was the court’s holding in Wright v. Waste Pro USA, Inc., 696 F.4th 1332 (June 13, 2023), which also rejected the plaintiff’s request for equitable…
ERISA Beneficiary May Recover as “Appropriate Equitable Relief” Benefits Lost Due to Fiduciary’s Breach
The Eleventh Circuit has joined every other Court of Appeals to consider the issue by holding that an ERISA beneficiary may recover under ERISA’s Section 1132(a)(3), which permits an action for “appropriate equitable relief,” benefits lost as a result of a breach of fiduciary duty. Gimeno v. NCHMD, Inc., 38 F.4th 910 (11th Cir. June…
“Business Development Managers” Fall Under FLSA Administrative Exemption, Not Entitled to Overtime
In Brown v. Nexus Business Solutions, LLC, 2022 U.S. App. LEXIS 8777 (11th Cir. Apr. 1, 2022), the Eleventh Circuit held that “business development managers,” tasked with persuading corporate customers to purchase General Motors vehicles for their fleets, are not entitled to overtime compensation under the Fair Labor Standards Act (FLSA). The business development managers…