Posted on November 26th, 2007 by Tim Eavenson | No Comments »
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Just got this email from Marc DeBofsky (ERISA case law wizard and CE’s Benefits Litigation professor) and thought I’d pass it along:
From a friend of mine –
Just got back from the oral argument in LaRue [v. DeWolff, Boberg & Associates]
Court asked lots of questions whether the claim should be brought under A(1)(b) versus (a).
Section 502(a)3 was barely discussed and I would doubt that the court will reach that issue at all.
Prediction — a win under [502](a)2. Votes – 5-4 or 6-3. Kennedy asked no questions.
Anybody else see the show? Any predictions, eye-witness or otherwise, feel free to leave in the comments.
For all the discrimination lawyers out there, LaRue is the ERISA case asking whether individual plaintiffs should be allowed to recover money they would have gained if the 401(k) plan administrators had followed their investment instructions properly. LaRue lost pretty big when his retirement wasn’t invested according to his specs.
If you’re thinking anything like “well, of course they can, why would congress pass a law to protect people where plaintiffs can’t recover under common law theories…” let me just stop you right there. You are entering a world of pain. Just stop. Don’t look up the annotated statute or try and find a treatise or anything. Ignorance is bliss, I promise you.
Posted on October 23rd, 2007 by Tim Eavenson | No Comments »
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That collective sigh of relief you heard yesterday came from the community of Executive Compensation practitioners in response to the IRS extension of the 409A compliance deadline for nonqualified deferred compensation plans to December 31, 2008.
They have the Major Firms – and their clout with the IRS – to thank.
Buried deep in the 600 pages comprising the American Jobs Creation Act of 2004 (many like to say that the Act did, in fact, create jobs…for lawyers, HA!), are found 6 pages constituting 409A of the Internal Revenue Code. This section of the Code was passed to regulate the elections, distributions, and notice requirements of the nonqualified deferred compensation plans loved so much by executives. Congress passed this portion of the Act because it did not like the fact that these execs retained so much control with respect to this supposedly “deferred” compensation.
Bringing affected plans into compliance has proved to be no small task, however, because of a lack of understanding and the sheer number of affected plans. And it didn’t help that the Final Regulations under 409A were just passed in April of this year. Those regulations required compliance by December 31, 2007. However, practitioners remained hopeful (and confident) that this deadline would be extended as it seemed unrealistic. Then, on September 10th, the IRS teased practitioners with Notice 2007-78, which allowed for a documentary compliance extension to December 31, 2008. Unfortunately, what really mattered, operational compliance, was not extended.
Finally, a letter was sent to the IRS signed by most major law firms asking for a realistic extension to the end of next year. The IRS listened. On Monday, Notice 2007-86 was published and, among other things, it finally extended the deadline for documentary and operational compliance until the end of next year. Until the deadline comes, plans may rely on “good-faith” compliance with the regulations.
Posted on October 9th, 2007 by Tim Eavenson | No Comments »
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The 2007-2008 Term is officially in full swing, so we thought we’d better do our blogitory duty and sum up the Supreme Court’s October Docket for you.
We were a little worried about this term. There’s been all this talk about the Roberts Court being more interested in business cases, but before last Tuesday the Court had only granted cert to two employment cases, which is pretty low. On 9/25, however, the Supremes tripled their employment-law workload, bringing the total up to seven. That may still seem low, but it’s actually a lot compared to past sessions.
We’ve pored over all the records [read: scanned BNA summaries* while drinking] to bring you as in-depth an analysis as possible, and one thing is very obvious about the new Supreme Court: they are really, really worried about growing old. (Maybe send a gift with that Petitioner’s brief?)
An explanation and the case summaries is after the jump.
[*BNA Labor Report - subscription req'd.]
With three employment cases having something to do with the Age Discrimination in Employment Act, and an ERISA case about who can sue for botched 401(k) investments, the Silver Set is definitely taking center stage (for employment cases, which means “far-left stage past the bathrooms” to everybody else).
There’s Kentucky Retirement Sys. v. EEOC, a 6th Circuit case that mashes the ADEA, pension benefits and state public employment into one giant mess. This one could be big – the question presented:
Whether any use of age as a factor in a retirement plan is “arbitrary” and thus renders the plan facially discriminatory in violation of the Age Discrimination in Employment Act?
Federal Express v. Holowecki involves whether an “intake questionnaire” and affidavit submitted to the EEOC can be considered a discrimination charge under the ADEA even when the aged discriminitee didn’t mean it to. Administrative procedure is obviously the coolest area of the law, so we’re sure this will get tons of press.
Gomez-Perez v. Potter asks whether the ADEA prohibits federal employers from retaliating against employees who complain of age discrimination. What? This is a question? Apparently – the 4th Circuit held the ADEA doesn’t protect federal employees like it does private ones. Plus, it’s not like the government feels the need to live up to its rules for the private sector in other areas… God, it never stops sucking to work for the government, does it?
The term’s token ERISA case is a potential barn burner – LaRue v. DeWolff, Boberg & Associates will settle the question of whether the totalitarian regime that is ERISA allows an employee to sue for losses based on his employer’s failure to carry out his 401(k) investment instructions. The case got interesting when LaRue moved to dismiss after the Court granted cert, noting that the plaintiff took all the funds out of his 401(k) while the case was pending at the circuit court. The amici came out of the woodwork, and the Court recently denied the motion. For real, keep an eye on this one.
There are two other cases – Sprint/United Management v. Mendelsohn and CBOCS West v. Humphries – that raise game-changing issues in evidence and retaliation, and a state/federal jurisdiction case that is hiding an eminent judicial figure. Since none of them have anything to do with old folks, and this post is getting so dang long, we’ll save these three cases for their own post later today.
Finally, the Court denied cert. in Jennings v. Dorrance, the discrimination case against the UNC soccer coach filed by former players. That sends it back to the District Court for trial. It’s title IX, which is outside our purview (or interest, honestly) but we knew we’d get emails if we didn’t put it in here.
