ERISA Statute of Limitations Case Relating to a Ponzi Scheme

A Fourth Circuit decision (unpublished) which you can access here provides an interesting discussion of the statute of limitations issues that can arise with respect to bringing suit under ERISA for plan losses resulting from a Ponzi scheme. The case provides a summary of the various Courts of Appeals’ positions on the issue of what constitutes “actual knowledge of the breach or violation” under Section 413 of ERISA.

In addition, as Eleanor Roosevelt once said: “Learn from the mistakes of others. You can

Government Links Pertaining to ARRA’s COBRA Subsidy

Here are some helpful links I have run across pertaining to the new COBRA Subsidy:

IRS Website Links

  • News Release
  • COBRA Health Insurance Continuation Premium Subsidy
  • Answers for Employers
  • Form 941 for 2009: Employer’s Quarterly Federal Tax Return
  • Instructions for Form 941

  • DOL Website Links

  • General Webpage on the COBRA Subsidy
  • Text of ARRA Pertaining to COBRA Subsidy
  • COBRA Premium Reduction Fact Sheet
  • Job Loss Poster
  • New FAQs for Employees

  • Obama Proposing Tax Increases to Fund Health Reform

    From the Wall Street Journal:

    President Barack Obama will propose a combined $634 billion in upper-income tax increases and cuts to government health spending over 10 years to fund a new program aimed at getting health coverage to all Americans, a senior administration official said Wednesday.

    The spending cuts are aimed not just at raising money for the new program but also at curbing health-care spending overall, something that the president and many experts believe is critical to the nation’s long-term financial health. The cuts would affect a range of interests, including managed care companies, prescription drug manufacturers and hospitals.

    The proposed tax change would limit the deductions available to people in the highest income tax brackets.

    Article Advocates Going After Personal Injury Attorneys as ERISA Fiduciaries

    Please note this article: “Can You Recover Under ERISA When The Settlement Money Is Spent?- ERISA Recovery in a Post Sereboff World.” At the end of the article, there is a discussion of how health plans and administrators should try to pursue the personal injury attorney as an ERISA fiduciary, once the personal injury attorney has been paid settlement funds on behalf of his or her client. It is apparently an old theory of recovery advocated in the 1990s, but, according to the author of the article, could be given new life by the post-Sereboff caselaw which is developing.

    Hearings on Retirement Security

    You can access testimony in yesterday’s hearing on Retirement Security conducted by the House Education and Labor Committee in this link here. More here.

    Plan Sponsor has a good summary of some of the testimony here: “House Committee Advised Not to Scare Participants.”

    Madoff-related ERISA Litigation Case Filed

    Kevin Lacroix of D & O Diary is keeping track of the Madoff-related litigation here. He writes a post here about a new ERISA case filed in the Eastern District of Pennsylvania. Excerpt:

    There are a number of interesting things about this lawsuit. The first is that it seeks relief under ERISA. So far as I am aware, this is the first Madoff-related lawsuit asserting claims under ERISA. The interesting thing about an ERISA class action, as opposed to a securities class action, is that the ERISA action is not subject to the PSLRA’s discovery stay and other procedural requirements. So the ERISA plaintiff is free to conduct discovery even while the dismissal motion is pending.

    The opportunity under ERISA to avoid some of the challenges of litigating under the federal securities laws clearly was one of the plaintiffs’ attorney’s motivations in bringing the action. The article linked above quote the attorney as saying that ERISA provides “an easier and quicker route in repairing the damage.”

    Additional excerpt:

    The final interesting thing about this lawsuit is what it says about just how broad the pool of Madoff-related defendants has become. The plaintiff pension fund in this lawsuit did not invest with Madoff. It did not even invest with a Madoff feeder fund. Instead, it invested with an investment advisor that invested with a feeder fund that in turn invested with Madoff. (Got that?) The sheer span of these increasingly remote connections required to establish the Madoff-related link underscores just how widespread the Madoff litigation may yet become.

    You can access the complaint here and a copy of the press release here from the law firm bringing the case.

    The plaintiff, a pension fund, is alleging breach of fiduciary duty under ERISA for failure “to sufficiently investigate the Madoff-related funds to insure that they were a safe, prudent, honest and suitable investment for employee pension benefit plans and their participants and beneficiaries” and for failure “to locate or give sufficient attention to warning signs about the unreliability of Madoff-related funds as investment vehicles.”

    Summary of ARRA ‘s Tax Provisions

    Iowa State’s Center for Agricultural Law and Taxation has posted a great summary of ARRA’s tax provisions here. (Hat Tip: Tax Update Blog)

    Reporting and Disclosure Guide for Employee Benefit Plans

    Did you know that the DOL has posted an updated “Reporting and Disclosure Guide for Employee Benefit Plans“? It was updated as of October of last year. With the passage of ARRA and CHIPRA, it will now need to be further updated.

    IRS Issues Final Regulations Governing QACAs and EACAs

    The IRS has issued final regulations (copy via relating to automatic contribution arrangements. The regulations affect 401(k) plans and other eligible plans that include an automatic contribution arrangement.

    Effective Dates: The regulations have a general effective date of February 24, 2009. However, except as provided in §§1.401(k)-3(j)(1)(i) and 1.401(m)-2(a)(6)(ii), the final regulations relating to qualified automatic contribution arrangements (“QACAs”) apply to plan years beginning on or after January 1, 2008. The regulations relating to eligible automatic contribution arrangements (“EACAs”) apply for plan years beginning on or after January 1, 2010.

    The regulations go on to provide that, for plan years that begin in 2008, a plan must operate in accordance with a good faith interpretation of Internal Revenue Code Section 414(w). The regulations state that , for this purpose, a plan that operates in accordance with the proposed regulations under §1.414(w)-1 or these final regulations will be treated as operating in accordance with a good faith interpretation of Code Section 414(w).

    Participants of Retirement Plans Resilient

    This article here from Vanguard reports on participant behavior in 2008. Despite the extreme volatility of the markets in 2008, the study conducted by the Vanguard Center for Retirement Research indicated that the overwhelming majority of participants “stayed the course.”

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