Page Title


 Click here to view materials from our previous presentations.

Page Content

Major Universities Become Focus of Breach of Fiduciary Duty Claims Arising Out of Failure to Monitor their 403(b) Plans


Since August 2016, district courts across the country have been grappling with a wave of cases filed against private universities that sponsor 403(b) plans subject to ERISA. These actions allege in part that the university 403(b) plans, most with significant assets, have not been managed prudently or for the exclusive purpose of providing benefits to participants and their beneficiaries, in violation of ERISA. Each complaint contains similar allegations that attack common 403(b) plan investment practices and plan design features. This article by Kathy Aslinger and Jenna Macnair explores the primary themes of these lawsuits.

Health Care Reform Developments under the Trump Administration


Unless you've somehow managed to avoid the buzz, you probably know that the Affordable Care Act ("ACA") is still alive and well (for now). What you may not know is exactly what the Trump Administration has been able to accomplish with respect to its health care reform goals. This article intends to recap what has been done and clarify what hasn’t been done since inauguration day.

Governmental Plan QDROS: Not Your Typical Retirement Plan Division


Prior to July 1, 2015, Tennessee law effectively prohibited a Tennessee governmental plan from complying with a domestic relations order except in very limited circumstances related to child support or alimony. That all changed in July of 2015 with a change in Tennessee Code Annotated § 26-2-105, which now requires all Tennessee governmental plans to recognize QDROs. This law change did not, however, subject governmental plans to the same ERISA and Code requirements as private plans. Rather, governmental plans have significantly more leeway in restricting the types of QDROs they will recognize and determining how and when benefits will be paid. Because of that leeway, different governmental employers may have very different rules. These tips may help you navigate this complicated area. Click above to read the full article

Major Changes to Appellate Rules


On July 1, 2017, the Tennessee Rules of Appellate Procedure will undergo two fundamental changes that affect both civil and criminal appeals. First, the location for initiating an appeal will change. Second, the appellant will be responsible for paying a filing fee with the clerk of the appellate court rather than posting a bond for costs. For any Tennessee lawyer whose practice includes appellate work, it is important to understand and be prepared for these changes. Click above to read the full article


Healthcare Reform: Where Are We Now?


On March 6, 2017, House Republicans announced their plan to repeal the Affordable Care Act (“ACA”) and replace it with the American Health Care Act of 2017 (“AHCA”). Less than three weeks later, on March 24, House Speaker Paul Ryan pulled the bill from the floor mere moments before a vote took place... Click above to read the full article

Using Irrevocable Trusts to Qualify for Medicaid and VA Benefits


Individuals seeking asset protection cannot afford to ignore the potentially devastating costs of nursing home and other long-term care. Nursing homes are among the most common and largest creditors an average American is likely to face in his or her lifetime, but only about 10% of the population has long-term care insurance. For the other 90%, Medicaid is the primary source of payment, so a basic understanding of the Medicaid asset protection process is vital. Click above for more information.

The ACA: What's new?


The Affordable Care Act ("ACA") and its implementing regulations have created an ever-evolving, shifting, expanding piece of legislation that is nearly impossible for employers, and their lawyers, to keep up with. This article is meant to serve as your cliffs notes guide to what the Departments of Labor, Treasury and Health and Human Services (the "Departments") were up to in 2015.

The Affordable Care Act Employer Reporting Requirements


The deadline is quickly approaching for employers to comply with the Affordable Care Act’s employer reporting requirements. Although this may seem like just another IRS filing, the information required to complete the IRS forms may not be readily accessible for some employers and the instructions to the forms are detailed, often confusing and filled with caveats, exceptions and special rules. This presentation by Ashley Trotto focuses on reporting for large employers.

A Cautionary Tale for Governmental Agencies: How Non-Compliance with the Tennessee Public Records Act Could Cost Taxpayers


The Tennessee Court of Appeals recently released two opinions awarding attorneys’ fees to citizens after finding that two separate local governmental agencies willfully refused to provide access to public records required to be disclosed under the Tennessee Public Records Act. The TPRA requires governmental agencies to disclose all public records not specifically exempted from disclosure. These cases should be a cautionary tale to all Tennessee governmental agencies. This Governmental Law Newsletter by Briton Collins discusses these cases.

Registering Trade and Service Marks in Tennessee: A Brief How-to Filing Guide


Trademarks are important to protecting and preserving the brands and reputations of businesses ranging from small start-ups to established multinational companies. State and federal trademark registration help protect marks by providing statutory protections on top of established common law rights. In this article, Zack R. Gardner and Prof. Brian Krumm (University of Tennessee College of Law) briefly discuss trademarks and provide a how-to practitioners guide to state and federal trademark registration.

What The NLRB Thinks About Your Employee Handbook


The National Labor Relations Board’s General Counsel recently released important guidance on employee handbook provisions that have been found unlawful. Ben D. Cunningham’s memo discusses the General Counsel’s guidance and its implications for all private employers.

An Introduction to the Ministerial Exception


The ministerial exception prevents the application of anti-discrimination laws to the employment relationship between religious institutions and their ministerial employees. In this month’s KM Church Law Newsletter, Michael R. Crowder and Zack R. Gardner discuss generally the background behind the ministerial exception, recent developments to the doctrine, and the ambiguities that still exist.

Ministerial Housing Allowance: A Brief Overview


Federal law allows members of the clergy to exclude a “ministerial housing allowance” from income for federal income tax purposes. In this month’s KM Church Law Newsletter, Zack R. Gardner discusses generally what constitutes a “ministerial housing allowance”, who may take the allowance, and the rules governing when the allowance may be taken.

QLACs (Qualifying Longevity Annuity Contracts)


Recent IRS regulations provide longevity protection by allowing individuals to defer required minimum distributions from certain qualified retirement plans past age 70 1/2. The attached memo by Michael Crowder discusses QLACs.

The Affordable Care Act’s Look-Back Measurement Method: Do You Know Who Your Full-Time Employees Are?


Determining who an employer’s full-time employees are is no simple task and will likely require substantial administrative preparation. If an employer is ill prepared and incorrectly identifies its full-time employees, the resulting penalties may be substantial.

Churches and the FMLA’s New Definition of “Spouse”


The Department of Labor recently published a new rule under the Family Medical Leave Act amending the definition of “spouse” for FMLA purposes. Michael R. Crowder and Zack R. Gardner discuss the new rule and its implications for Churches and Church-related organizations in this month’s KM Church Law Newsletter.

Executive Compensation - Best Practices for Nonprofits


This program covers what nonprofit organizations need to know about executive compensation. We focus on the best practices to follow when setting executive compensation and the underlying Tennessee state and IRS rules.

COBRA Continuation Coverage: Incapacity Exception for Premium Payments


What is COBRA continuation coverage, and who pays for it? What is a timely COBRA payment? Is there an exception to the timely payment rule on account of a participant’s incapacity? When might a court toll the time period for paying COBRA payments on account of the participant’s incapacity? What steps should insurers take when dealing with late COBRA payments?

Public Chapter 995 - Tennessee Human Rights Act (“THRA”)


Effective July 1, 2014, Public Chapter 995 amends several of Tennessee’s existing employment statutes to bring them in line with their related federal counterpart. Specifically, the Tennessee Human Rights Act (“THRA”) has been amended to remove liability for individual supervisors or agents for claims against the employer.

The Supreme Court’s Decision Overturning Yard-Man


On January 26, 2015, the Supreme Court of the United States rejected the rule established by the Sixth Circuit in International Union, United Auto., Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F.2d 1476 (1983). In M & G Polymers USA, LLC v. Tackett, the Court rejected the Sixth Circuit’s inferences concluding that (i) if a benefit plan’s provisions were silent as to termination, then those benefits were to vest for life and (ii) provisions were “illusory” if they benefit one class while not benefiting another...

Certificate of Employability


Tennessee’s general assembly passed a new statute allowing convicted criminals to apply for a certificate of employability and providing protection to employers who hire employees who have received a certificate of employability. Ben Cunningham’s memo, attached, discusses the new statute.

Health Plan Identifiers: Are Your Clients Prepared for Implementation?


If you ask an employer about compliance obligations under the Affordable Care Act (“ACA”), he or she will likely tell you about the Employer Mandate. If you ask a particularly astute employer, you may also hear about additional fees and taxes required by the ACA. You are not likely, however, to have a discussion on the ACA’s changes to the administrative simplification rules of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).

DOL Notice of Proposed Rulemaking: Changes to the Family Medical Leave Act (FMLA) Regarding the Definition of “Spouse” and Applicability of FMLA Leave Provisions to Same-Sex Spouses


In the wake of the United States v. Windsor decision striking down Section 3 of the Defense of Marriage Act (DOMA), the Department of Labor (DOL), on June 26 2013, revised the definition of spouse for FMLA purposes to include same-sex spouses legally married and residing within a state that recognizes same-sex marriages.

Affordable Care Act Update


Final Regulations Published on the 90-Day Waiting Period Limitation

"Church Plans" and ERISA


A “church plan” is generally exempt from the requirements of the Employee Retirement Income Security Act (“ERISA”) unless the plan sponsor affirmatively elects ERISA coverage.

Retirement Plan Options for Tax Exempt Entities


Which plan is right for you and your employees?

Obamacare’s Individual Mandate: The Fine Print


As this issue’s feature article makes clear, there are still many unknowns with the Patient Protection and Affordable Care Act (the “Act”). The following are some surprising issues that you and your staff may encounter now that the Individual Mandate has taken full effect.

The Fiduciary Exception to the Attorney-Client Privilege: Who is the Client in the Administration of ERISA Benefits?

The Fiduciary Exception to the Attorney-Client Privilege: Who is the Client in the Administration of ERISA Benefits?


Imagine the following scenario: Janet, the employee benefits plan administrator for ABC Corporation, meets with Steve, an attorney, for legal assistance in deciding whether to deny benefits to Tom, an ABC Corporation employee who is appealing a prior denial of benefits. After conferring with Steve, Janet decides to deny Tom benefits. Tom subsequently brings an Employee Retirement Income Security Act (ERISA) claim against the plan to recover his benefits, and he demands access to the contents of Janet and Steve’s prior communications. Is Tom entitled to access?

Employee Benefits FAQs on Same-Sex Marriage


Which states recognize same-sex marriage? Does Federal law recognize same-sex marriages? How does the Windsor decision affect payment of federal taxes? Does Windsor impact employee benefit plans? How does Tennessee treat same-sex marriages? Do any local governments in Tennessee provide benefits to the same-sex spouses of their employees? Has anyone ever challenged the Tennessee constitutional language prohibiting same-sex marriages?

Agricultural Contract Clauses for Supplying Energy Crops to the Biofuels Industry: Part II


As important as technology advancement and biorefinery business formation are to the future of the biofuels industry, success is also wholly dependent on enormous quantities of biomass being produced by America’s farmers. The purpose of this article is to further thinking and discussion on the essential terms of biomass supply arrangements among all parties – farmers, biorefinery owners, seed suppliers, feedstock supply companies, bankers, lawyers and public officials.

Employee Benefits FAQs on Required Minimum Distributions


What are RMDs, and when does a retirement plan participant/IRA owner begin withdrawing RMDs? How are RMD amounts calculated? What consequences do plan participants and plan sponsors face after failing to withdraw full and timely RMDs? What are the RMD rules for retirement accounts and IRAs that are inherited?

Agricultural Contract Clauses for Supplying Energy Crops to the Biofuels Industry

Agricultural Contract Clauses for Supplying Energy Crops to the Biofuels Industry


The discussion of appropriate terms to include when contracting for biomass is one that must be continued among farmers, feedstock suppliers, bankers and biomass conversion facility owners as the industry progresses, to eventually find a middle ground on which all parties can agree.

Kennerly Montgomery is LexisNexis Peer Review Rated for Ethical Standards and Legal Ability   Kennerly Montgomery Top Listed in Best Lawyers