PBGC Launches Amicus Brief Program Seeking Plan Sponsor Involvement

The Pension Benefit Guaranty Corporation has launched a program to allow plan sponsors to request for the agency to file an amicus brief in legal disputes that could have implications for the wider private pension system.

The PBGC announced it intends to focus on requests that concern significant or newer legal arguments, with a particular interest in complaints before U.S. circuit courts of appeals and the Supreme Court. However, the PBGC will consider filing supporting legal arguments at the district court level if the dispute involved is significant enough to merit the PBGC’s input.

“The Amicus Curiae Program underscores PBGC’s commitment to serving as a resource for our stakeholders,” PBGC Director Janet Dhillon said in the announcement. “We intend to leverage PBGC’s expertise and insight on the defined benefit pension system to strengthen retirement security for the nation’s workers, retirees, and their families.”

The decision to launch an amicus brief program aligns with a recent trend from other retirement regulators. The Department of Labor’s Employee Benefits Security Administration has actively filed amicus briefs over the last year in cases concerning the Employee Retirement Income Security Act, such as those challenging plan sponsors’ use of retirement plan forfeitures. Although EBSA’s approach does not specifically seek requests from plan sponsors for federal involvement, it has also focused on cases that reach federal appellate courts.

The announcement of the amicus program followed the PBGC’s March resumption of its long-dormant Opinion Letter Program after it went unused for more than 20 years. That initiative mirrored actions of other regulators: The Department of Labor announced in June that five of its agencies would participate in opinion letter programs to boost compliance efforts.

In recent years, DB-related ERISA litigation has centered on the selection of annuity providers in pension-risk transfers. 

Plan sponsors can submit requests to the PBGC by sending an email to AmicusRequest@pbgc.gov. The agency stated it will also intervene in some cases, even if no plan sponsor request is made.