Month: August 2003

You can access this transcript of a CNBC interview with Seventh Circuit Judge Richard Posner entitled “Richard Posner discusses his position on law, pragmatism and democracy” at this link. (Thanks to Howard and JD2B for the link.) The interview occured Monday, July 28th, prior to the issuance of the opinion in the Xerox case, Berger et al. v. Xerox, which was written by Judge Posner. Mario Bartiromo for CNBC asked Judge Posner about how he views cases involving employees who are suing pension funds over reduced payments. You can read his response at the link above. Interestingly enough, as mentioned here before, Judge Posner may also be one of the judges who will decide the appeal in Cooper et al. v. IBM Personal Pension Plan et al. since that case will go to the Seventh Circuit as well.

This article–“What is Participatory Journalism?“–by J.D. Lasica for Online Journalism Review discusses when a blog becomes journalism. (Thanks to Ernie Svenson for the link. Ernie discusses the article here.)

Today’s Federal Register.

More on the IBM Cash Balance Plan Decision:

The Wall Street Journal has an intriguing article today that raises all sorts of questions in my mind: “Memos Sent to IBM Show Awareness Of Pension Moves.” (Subscription required.) While I am sure that there are many other ERISA cases where memos/emails from non-lawyer professionals have turned out to be terribly damaging to a defendant’s cause, one comes to mind which has been in the news lately. Would these cases have had different results if the defendants’ attorney(s) had hired the consultants to do the analysis so that the correspondence would have been protected by the attorney-client privilege?

In another article, Ari Weinberg for Forbes reports: “Pension Plans Wade Into Murky Water.” The article quotes James Klein, president of the American Benefits Council, as saying that even though the IBM decision issued last week really “flies in the face of other court decisions,” critics of cash balance plans will try to play it for all that is worth. The article suggests plaintiffs’ attorneys may attempt to bring more lawsuits in the cash balance plan arena.

Mary Deibel for Scripps Howard News Service via the Albuquerque Tribune also has this article entitled “Pension tension prompts legal fight.” The article contains some information regarding the cash balance plans for Verizon and FedEx which give older workers a choice between the old formula and the cash balance plan formula.

Andrea Coombes for CBS Marketwatch reports: “Cash-balance plans under fire: Court ruling against IBM could invalidate all such plans.

On other news:

While hardly anything new could be said about expensing stock options, this article–“Unhatched Chickens“–breathes some new life into a subject we are all tired of hearing about–stock option expensing. The op-ed by Stephen W. Stanton for Tech Central Station says that stock option expensing can be likened to the “mandatory counting of unhatched financial chickens.” The article also reports that while William Donaldsen, the SEC’s Chairman, is a proponent of stock option expensing, Bush is not.

With all of the worry about retirement plan investment returns, there seems to be a greater focus on controlling plan expenses as was reported about here yesterday and now in this article at 401khelpcenter.com: “What Does Your Plan Really Cost, And How Can You Lower It?”

“In 10 Years, Family & Medical Leave Act Has Transformed Lives, Workplaces“: a very interesting article by Kenneth Aaron for Times Union via the International Foundation of Employee Benefits Plans about how the Family and Medical Leave Act has changed the workplace.

The Wall Street Journal also reports: “EEOC Sees Rise in Complaints Involving Intrarace Color Bias.” (Subscription required.)

There is an interesting discussion going on at the Message Boards for Benefitslink.com on the recent IBM cash balance plan decision which you can access at this link.

In a letter to the IRS dated August 6, 2003, ASPA requested guidance from the IRS that will enable plan sponsors to administer cash or deferred arrangements in accordance with USERRA. The issues addressed include: year to which the make-up employee deferrals relate; required timing of employer contributions, whether they constitute discretionary profit sharing, QNEC, or matching; and testing implications of a brief military leave.

“Pay to U.S. Directors Reveals Back-Scratching“: an op-ed by Graef Crystal for Bloomberg.com. Mr. Crystal makes a very interesting statement: “There would be nothing wrong, and a lot right, with the idea of requiring that shareholders approve the pay of the outside directors, after being provided a reasoned justification by the directors themselves. That would remove a significant conflict of interest in which every board finds itself these days.”

Monday, Howard posted his 20 Questions for Circuit Judge Gerald Bard Tjoflat of the U.S. Court of Appeals for the Eleventh Circuit. As usual, it is very enjoyable reading. I particularly liked this statement by Circuit Judge Tjofliat:

. . .for justice to be done in a case three things are required: (1) a fair and impartial judge; (2) lawyers who adhere to the highest ethical and professional standards; and (3) witnesses who testify truthfully. I likened these requirements to a three-legged stool. If one leg breaks, the stool collapses.

Circuit Judge Tjoflat also expresses his views on the Feeney Amendment which was apparently adopted by Congress in April to strengthen judges’ adherence to new, stricter sentencing guidelines and which was the subject of this Wall Street Journal article today. (Subscription required.)