Benefits Blast

Last month, the United States (U.S.) Court of Appeals for the Fifth Circuit partially upheld a lower court ruling in Braidwood Management, Inc. v. Becerra that invalidated the preventive care mandate under the Affordable Care Act (ACA). 

On October 26, 2022, the Securities and Exchange Commission (“SEC”) adopted the long-awaited new Rule 10D-1 (the “Final Rule”), implementing the incentive-compensation clawback rules mandated by Section 10D of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), originally added to the Exchange Act by Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd–Frank Act”). The Final Rule is separate and distinct from the clawback mandates set forth in the Sarbanes–Oxley Act.

Rule 10b5-1 trading plans in essence provide corporate insiders an affirmative defense to insider trading liability in circumstances where, subject to certain conditions, a trade was executed pursuant to a written plan adopted when the executive was not aware of material nonpublic information. Executive officers and directors are not required to complete trades using 10b5-1 plans, but they are quite popular with executive officers and directors because of the protection they provide.

The Benefits Bulletin provides timely and consistent updates on industry hot topics.

Autumn’s chill has settled in, which means the 2022 proxy season is just around the corner. Given (1) the continuing impact of the COVID-19 pandemic and related supply chain issues and (2) the unprecedented interest in issues surrounding executive compensation, it is important to prepare early to avoid any unanticipated hitches and take advantage of opportunities to proactively address compensation matters through effective proxy disclosures, well-executed shareholder engagement, and informed compensation committee actions. 

Recently released FAQs confirm the view of the Departments of Labor, Treasury, and Health and Human Services (the “Departments”) that employers can provide incentives under a group health plan (either in the form of premium discounts or surcharges) to encourage employees to receive COVID-19 vaccines. Such premium discounts or surcharges are permissible if offered through a wellness program as described under the Affordable Care Act (“ACA”) final wellness program regulations.