On January 15, 2025, the Employee Benefits Security Administration (EBSA) published a final rule updating its Voluntary Fiduciary Correction (VFC) Program (the “Updated VFC Program”), based on proposed rules issued in November of 2022. The Updated VFC Program will take effect on March 17, 2025. The most significant changes to the VFC under the Updated VFC Program are the addition of two new self-correction features for common plan failures: Other changes under the revised program include (i) alternative corrections for prohibited transactions involving certain plan loans made at below-market interest rates, (ii) corrections for purchase and sale transactions involving the plan and parties in interest, and certain clarifying changes. This article focuses on the new self-correction opportunities. VFC Application Process.  Under the prior version of VFC (effective through March 16, 2025), plan fiduciaries were permitted to correct certain fiduciary breach violations and prohibited transactions under the Employee Retirement Income Security

The United States District Court for the District of New Jersey dismissed without prejudice, and with leave to amend, Ann Lewandowski’s breach of fiduciary duty claims against Johnson & Johnson and its Pension & Benefits Committee (the “Health Plan Fiduciaries”), stating that she lacked Article III standing.  (Lewandowski v. Johnson & Johnson, et al., D.N.J., No 3:24-cv-00671) (The “J&J Case”).  The focus of the lawsuit was the allegation that the Health Plan Fiduciaries  entered into an agreement with the pharmacy benefit manager (PBM) for the health plans that required the health plans and the participants to overpay for the costs of prescription drugs. The Complaint in the J&J Case.  The First Amended Complaint alleged the following breaches of fiduciary duties by the Health Plan Fiduciaries: The allegations are based on the ERISA requirement that fiduciaries must “discharge [their] duties with respect to a plan solely in the interest of the participants

If all had gone according to the Department of Labor’s (the “DOL’s”) plan, the final Retirement Security Rule issued on April 25, 2024[1] (2024 Fiduciary Rule) would currently be the law of the land, replacing the near fifty-year-old regulatory test (the “1975 Regulation”) defining an investment advice fiduciary. However, on two consecutive days this past summer, July 25 and 26, 2024, district courts in the Eastern District (Consumer Choice[2]) and Northern District (American Council[3]) of Texas granted plaintiffs’ motions to stay the 2024 Fiduciary Rule’s September23, 2024, effective date, which ostensibly stopped application of the rule and its accompanying regulatory package in its tracks.[4] These two cases are far from novel, resembling the 2018 Chamber case which ultimately led to the demise (vacatur) of the 2016 Fiduciary Rule regulatory package.[5] Brushing up against the 60-day window to appeal, on September 20 and 21st, 2024, the DOL filed notices of appeal