Many sponsoring employers and other fiduciaries of welfare benefit plans are being offered the choice of approving or disapproving programs offered by mutual (or member-owned) insurance companies to convert the insurers to publicly held corporations. This process, commonly called "demutualization," allows policyholders, including sponsoring employers, to receive a distribution or allocation of stock or cash of the restructured insurance company. BEWARE! Behind the "yea" or "nay" vote regarding approval of the demutualization program (as well as the choice to receive cash or stock in the process) lurk legal landmines for the unadvised. To make matters worse, demutualization programs are being implemented without the benefit of any meaningful official guidance from either the Department of Labor or the Internal Revenue Service. A sponsor of a contributory welfare benefit plan, for example, tempted to accept a relative windfall on an insurance policy, may find both the Department of Labor and the Internal Revenue Service ready to pounce if a distribution is elected without implementing the requisite fiduciary safeguards designed to protect the interests of plan participants. If plan participants have paid any portion of the premiums, that portion will be considered a plan asset subject to ERISA requirements. Therefore, unless the distribution is structured carefully, the employer may be facing charges of plan asset reversion, prohibited transactions and fiduciary breach, resulting in fines, penalties and 100% excise taxes, not to mention possible negative press and damaged employee relations. The income tax consequences of a distribution under a demutualization program should also be taken into account. Each demutualization program must be reviewed carefully to avoid the pitfalls briefly mentioned in this Report. Documentation of the reasons behind any decision to approve or disapprove a demutualization program (and to elect cash or stock) is essential to evidence fiduciary compliance under ERISA. Other offered alternatives (such as policy credits or premium stabilization reserves) should be considered. Employee communications are critical in the process. We welcome any questions and urge you to contact us if you receive materials or election forms regarding an insurance company's demutualization program. Contacts: New York: Washington, DC: San Francisco: Click here to find out more about Thelen Reid & Priest's Employee Benefits Group.
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Demutualization Elections: Traps for the Unwary
This article was edited and reviewed by FindLaw Attorney Writers | Last reviewed March 26, 2008
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