Much has been written over the years about the transition of employees from pension plans to 401(k)s by private industry over the past decade or so, with pensions disappearing and the obligation to fund – and risk of underfunding retirement – passed to employees. There is much to be said both for and against this
Employee Benefit Plans
The Lessons of First Data Corp’s Suspension of 401(k) Contributions
By Stephen Rosenberg on
There is a fascinating story in today’s Wall Street Journal, about First Data Corp. abandoning the practice of making cash contributions to employee 401(k) accounts, as part of cost cutting clearly designed to make the company more profitable (or at least profitable enough) to hold an IPO, which would allow an exit for the leveraged…
Do You Know a Governmental Plan When You See It?
By Stephen Rosenberg on
Posted in Employee Benefit Plans
Years ago, I worked with a client who liked to tell the story of having begun working with ERISA governed plans right after ERISA was enacted. He had been told by his bosses that there is this “new law,” and you are in charge of issues arising under it. That “new law,” of course, was…
My Journal of Pension Benefits Article on Operational Competence after Amara
For years, in speeches and articles, I have preached the gospel of what I have come to call “defensive plan building,” which is the process of systemically building out plan documents, procedures and operations in manners that will limit the likelihood of a plan sponsor or fiduciary being sued while increasing the likelihood that, if…
How to Look Smart About McCutchen and Heimeshoff Without Really Trying
I have often joked that, to seem intelligent at social events, a person really just has to have two things handy – the first, a Noam Chomsky reference, and the second, a Shakespeare quote, preferably from a lesser play. If you are good, you can find a way to fit one or the other into…
Some Thoughts on Kirkendall v. Halliburton
By Stephen Rosenberg on
I have passed along on Twitter (https://twitter.com/SDRosenbergEsq) some of the better reviews that have crossed my desk of the Second Circuit’s recent decision in Kirkendall v. Halliburton, Inc., in which the Court held that a plan participant did not have to exhaust administrative remedies in an ERISA plan where the plan document itself…
On Getting Out of the Pension Business
By Stephen Rosenberg on
Nobody wants to be in the pension business anymore (other than, I guess, vendors who provide defined benefit plan services, annuities, etc. to plans and their sponsors). The Washington Post had an interesting article recently on the vanishing pension, and of course everyone who works in this field has long known that plan sponsors have…
Amnesty and the Fee Disclosure Regulations
By Stephen Rosenberg on
Posted in 401(k) Plans, Employee Benefit Plans
I like this piece here on the question of whether investment and financial advisors who foul up their initial efforts to comply with the fee disclosure regulations should be given a mulligan, and allowed to effectively self-report and correct without penalty. The proposal is to have the Department of Labor essentially run yet another type…
A Focus on Facts in the Seventh Circuit: George v. Junior Achievement of Central Indiana
By Stephen Rosenberg on
An upcoming article of mine in the Journal of Pension Benefits argues that ERISA litigation and potential exposures are moving away from strict constructionism and technical legal arguments to fact based inquiries into potential harms to participants, and traces how we came to that place. This is a more significant change than it may appear…
Stephan v. Unum, the Attorney-Client Privilege, and the Need for Independent Counsel for Company Officers and Plan Fiduciaries
Tidal Wave! Landslide! Look out below!
Pick out the metaphor of your choice, because Unum just got taken out behind the woodshed by the Ninth Circuit and spanked hard. Frankly, the Ninth Circuit’s opinion is a rout in favor of the participant, and participants in general. In many ways, the case presented a perfect storm…