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Checklist: Precautions against Benefit Plan Litigation

In order to better position to control their litigation risks, employers should consider including provisions such as the following not only in their ERISA plans but also in equity and other non-ERISA plans, as well as employment-related agreements:


Provisions to Consider for Plans, Employment Agreements, and Releases
 Forum SelectionEmployers are generally able, under applicable court precedent, to enforce plan and award provisions that designate a forum for litigating claims. See ERISA Forumand Non-ERISA Forum Selection Clauses.

 Consent to

 Jurisdiction

In tandem with forum selection clauses, plans and awards may provide that those who receive benefits or awards are deemed to consent to personal jurisdiction in the designated forum. 

 Claims Limitations

 Periods

Employers may encourage employees to promptly pursue claims by designating periods (as short as 60 to 90 days) within which plan participants must make their initial claims for plan benefits. These are called "internal statutes of limitations" because they are internal to a plan's claim procedure mechanism, with a 2013 Supreme Court supporting their enforcement if reasonable. 

 Shortened Statute

 of Limitations

A plan may shorten an otherwise applicable statute of limitations within which civil claims may be brought to collect plan benefits.  See Claims Limitation Periods

 Expense Shifting

 (to winner)

It often encourages the settlement of litigation if a plan or award entitles the substantially-prevailing party to recover attorneys' fees and other expenses.

 Arbitration




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Reasonable minds will differ on whether to arbitrate claims, and which employment or plan-related claims will be resolved through arbitration. The best employers avoid a patchwork of inconsistent approaches and instead develop a wholistic approach. See Arbitration.

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