Because most benefit plans are structured as “calendar-year plans”, fall is traditionally the busiest season for plan fiduciaries who must deal with issues relating to annual enrollment (typically held in the fall) and comply with various year-end plan filing and employee notification requirements (such as annual notices dealing with automatic enrollment or default investment options). This fall, both the Department of Labor ("DOL") and the courts have issued significant new rulings and proposals that plan Because most benefit plans are structured as “calendar-year plans”, fall is traditionally the busiest season for plan fiduciaries who must deal with issues relating to annual enrollment (typically held in the fall) and comply with various year-end plan filing and employee notification requirements (such as annual notices dealing with automatic enrollment or default investment options). This fall, both the Department of Labor ("DOL") and the courts have issued significant new rulings and proposals that plan fiduciaries should take time to consider:

1. Fiduciary Liability for Failure to Affirmatively Provide Plan Documents – the Kunjanek decision. Of most concern to plan fiduciaries may be a decision of the U.S. Court of Appeals for the Fifth Circuit, Kujanek v. Houston Poly Bag [1], which held a plan administrator liable for breach of fiduciary duty under the Employee Retirement Income Security Act of 1974, as amended ("ERISA") for failing to produce plan documents even though the participant did not submit a written request for the documents. This case is significant because it equates a failure to produce plan documents by a plan administrator to a breach of fiduciary duty under ERISA and is particularly relevant to plan fiduciaries because ERISA provides that plan fiduciaries are personally liable for breaches of fiduciary duty. The relief awarded in this case against the plan fiduciaries appears to be well in excess of the statutory penalty of $110/day. (Orrick's ERISA Litigation Solution)

2. Electronic Disclosure Guidance for Compliance with Participant Fee Disclosure Regulations. Fiduciaries planning for compliance with next year's hotly anticipated plan participant fee disclosures will be interested in the DOL's recent guidance on electronic disclosure requirements under these participant disclosure regulations.

3. Department of Labor Withdraws Controversial Regulation on Definition of Fiduciary. Finally, fiduciaries concerned about last year's DOL controversial proposed regulations on the definition of "fiduciary" that would amend the definition of "investment advice" for purposes of creating fiduciary status under ERISA, discussed here, can rest easy (for now). The DOL has announced that it has withdrawn the current proposal and will re-propose the regulation in early 2012.