Category Archives: ERISA

6th Circuit Says Girl Scouts Trapped in Hotel California-Style MEP

That hotbed of ERISA litigation, the U.S. Court of Appeals for the 6th Circuit, released another ERISA opinion on Oct. 23, 2014, which brings to mind that line by the Eagles:

“You can check-out any time you like,
But you can never leave!”
- Hotel California, The Eagles

According to the 6th Circuit, in Girl Scouts of Middle Tennessee v. Girl Scouts of the U.S.A., No. 13-6347 (6th Cir., Oct. 23, 2014), the Girl Scouts of the United States of America (GSUSA) sponsor a multiple employer defined benefit plan which any of the regional Girl Scout independent councils can join by signing a Voluntary Participation Agreement.

In 1974, the Girl Scouts of Middle Tennessee, Inc. signed the agreement and joined the GSUSA’s multiple employer plan (or “MEP”).

In 2005, GSUSA reorganized their 312 regional councils, merging and combining regional councils until there were 112 councils remaining. For plan purposes, this reorganization resulted in GSUSA merging councils who were not part of the plan into councils who had joined the plan, making approx. 1,850 nonparticipating employees eligible to receive a lifetime pension annuity benefit under the plan without having previously contributed into the plan.

In 2006, GSUSA amended the plan to add an early retirement benefits.

According to the Girl Scouts of Middle Tennessee, the GSUSA plan started 2007 with a surplus of $150 million in assets, but due to these amendments, by the end of 2011, the GSUSA plan was underfunded by $340 million, resulting in a net decrease in plan assets of approx. $500 million in less than 5 years.

In 2009, GSUSA amended the plan to require the regional councils to arbitrate any disputes over nonpayment or withdrawing from the plan.

In Feb. of 2011, the Girl Scouts of Middle Tennessee notified the GSUSA that they were invoking the language in the plan document which allowed adopting councils to withdraw from the plan by: (1) forming a spin-off plan; (2) transferring the assets and liabilities attributable to that council’s employees to another qualified plan; (3) obtaining the express consent of GSUSA to leave the GSUSA plan; and (4) arbitrate before withdrawing (the Girl Scouts of Middle Tennessee dispute whether GSUSA’s amendment in 2009 which required adopting employers to arbitrate before withdrawing from the plan was a valid amendment).

The reason the Girl Scouts of Middle Tennessee wanted to leave the GSUSA MEP was a classic one – at the end of 2010, the Girl Scouts of Middle Tennessee were one of only 18 councils in the plan with a positive balance, and GSUSA was planning on increasing plan contribution rates for the regional councils from 3% in 2009 to 10% in 2012 to cover the shortfall, with the possibility of a 16% contribution rate by 2023.

When the GSUSA told the Girl Scouts of Middle Tennessee that they could not withdraw from the plan, the Girl Scouts of Middle Tennessee filed a lawsuit in 2012 against GSUSA, requesting:

    1. a declaratory judgment that the Girl Scouts of Middle Tennessee are not obligated to continue to participate in the GSUSA plan in perpetuity, and may withdraw from the plan;
    2. a declaratory judgment that GSUSA is required to spin-off the assets and liabilities attributable to the Girl Scouts of Middle Tennessee’s employees;
    3. a declaratory judgment that GSUSA’s unauthorized amendments to the Plan are not binding on the Girl Scouts of Middle Tennessee; and
    4. a declaratory judgment that GSUSA is required to indemnify the Girl Scouts of Middle Tennessee for any liability resulting from a distressed termination of the GSUSA plan.

The Girl Scouts of Middle Tennessee also asked for an accounting of the financial condition of the plan and for injunctive relief restraining GSUSA from collecting or seeking to enforce contributions from the Girl Scouts of Middle Tennessee which would be used for new participants in the plan or to provide early retirement benefits granted by the 2006 amendment to the plan.

The GSUSA filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for relief, which the district court granted, and the 6th Circuit agreed.

The 6th Circuit said that, as an employer in a multiple employer plan, the Girl Scouts of Middle Tennessee concede that they have no valid cause of action under ERISA, and therefore the Court said that there is no jurisdiction for the Girl Scouts of Middle Tennessee to pursue claims under ERISA. Thus, while the Girl Scouts of Middle Tennessee may want to check out of the GSUSA multiple employer plan, they can never actually leave the plan as an additional adopting employer.

US Supreme Court to Hear Retiree Healthcare Benefits Case in Nov. 2014

In a few weeks, on Nov. 10, 2014, the U.S. Supreme Court will hear oral arguments in M&G Polymers USA, LLC v. Tackett. The case is out of that hotbed of ERISA litigation, the U.S. Court of Appeals for the 6th Circuit. Officially, the Question Presented to the Court is:

“Whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold.”

Thomas Hopson of SCOTUSblog summarizes the issue this way:

“what language in a union collective bargaining agreement will cause health-care benefits to vest – that is, continue as long as the beneficiary remains a retiree?”

SCOTUSblog has put together a terrific page on this case, including all of the briefs and a copy of the lower court opinion, and I am going to defer to them instead of reposting all of the materials here – SCOTUSblog on M&G Polymers USA, LLC v. Tackett

There have been a number of amici curiae briefs filed in this case, including briefs filed on behalf of the:

    - Council on Labor Law Equality and the Society for Human Resource Management;
    - ERISA Industry Committee and the American Benefits Council;
    - Chamber of Commerce of the United State of America, and the Business Roundtable;
    - National Association of Manufacturers;
    - Whirlpool Corporation;
    - Fox Retiree Committee;
    - American Federal of Labor and Congress of Industrial Organizations; and
    - the Labor and Benefits Law Professors, authored by Susan E. Cancelosi (Wayne State University Law School), David Campbell and Kathleen Phair Barnard, and Charlotte Garden (Seattle University School of Law).

On a personal note, one of the attorneys representing Tackett is David M. Cook, who attended the University of Cincinnati College of Law a few years ahead of me, and has represented Mr. Tackett in the lower courts.

Today in ERISA History

Jan. 6, 2006 – The Dept. of Labor issues Advisory Opinion 2006-01a. It addresses whether a real estate transaction between an Individual Retirement Account (IRA) and an S-Corp and an LLC owned in part by the same person is a prohibited transaction under Internal Revenue Code section 4975.

The idea proposed by the parties was that several individuals would form an LLC, which would purchase land, build a warehouse, and lease the warehouse to a S-Corp.

The LLC owning the property would be partially financed by self-directed IRAs owned by the individuals who owned or managed the S-Corp. Specifically, the investors in the LLC would be:

    Individual A’s IRA: 49%
    Individual B’s IRA: 31%
    Individual C: 20%

The S-Corp leasing the property is owned by:

    Individual A and his wife: 68%
    Individual C: 32%

The individuals with management responsibility for both the LLC and the S-Corp were:

    Individual B, who was the comptroller of the S-Corp.
    Individual B and Individual C, who managed the LLC.

In Advisory Opinion 2006-01a, the Dept. of Labor discusses the Internal Revenue Code’s prohibitions against any direct or indirect sale, exchange or leasing of any property between a plan and a “disqualified person”, and determines that this leasing of property between the LLC and the S-Corp would be a prohibited transaction under Code section 4975 for Individual A’s IRA.

On Feb. 3, 2011, the Dept. of Labor releases Advisory Opinion 2011-04a, which cites to Advisory Opinion 2006-01a in finding that another real estate transaction between an IRA held by a family trust purchasing the promissory note secured by an apartment building owned and managed by the trustees of the family trust was a prohibited transaction.

Today in ERISA History

Jan. 3, 1973 – ERISA, the Employee Retirement Income Security Act of 1974, is introduced in the U.S. House of Representatives by Rep. John Herman Dent (PA-21) as H.R. 2.

On the same day, it is referred to the House committee on Education and the Workforce.

One of the interesting things about ERISA as a bill is that it only had one co-sponsor – Carl D. Perkins representing Kentucky’s 7th Congressional District.

John Herman Dent was born in 1908. Before being elected to Congress, he was a member of the United Rubber Workers and held a number of leadership positions in that union. He served as Congressman for Pennsylvania’s 21st district from Jan. 27, 1958 until Jan. 3, 1979. He died on April 4, 1988. (Hat tip to Wikipedia)

Happy 39th Birthday ERISA

President Ford signing ERISA into law
Happy birthday ERISA! The Employee Retirement Income Security Act of 1974, was signed into law by President Gerald Ford on Sept. 2, 1974 and became Public Law 93-46.

401(k) Hardship Distributions to Repair Storm Damage from Sandy

With so much damage caused by Hurricane Sandy, many people will be exploring every possibility, including their 401(k) plan account balance, to pay for repairs. Hardship distributions are an optional provision in 401(k) plans, meaning that 401(k) plans can permit hardship distributions but they are not required to permit hardship distributions. So the first step is checking the plan document to see if the plan permits hardship distributions.

If the 401(k) permits hardship distributions, Treas. Reg. 1.401(k)-1(d)(3)(iii)(B)(6) says one of the reasons a 401(k) plan can make a hardship distribution is:

“(6) Expenses for the repair of damage to the employee’s principal residence that would qualify for the casualty deduction under section 165 (determined without regard to whether the loss exceeds 10% of adjusted gross income).”

In a Retirement Plans FAQs Regarding Hardship Distributions posted on the IRS’ website, the IRS says:

“8. Are there special hardship distributions available for hurricanes and natural disasters?

Generally, there are no special rules for hardship distributions on account of hurricanes or other natural disasters. You should follow the regular hardship distribution rules and show that you have an immediate and heavy financial need and, in some cases, have exhausted other resources. Your plan will list the specific criteria it uses to determine if a participant is eligible for a hardship distribution. Expenses for repairing damage to an employee’s principal residence may automatically qualify.

Occasionally, when a hurricane or other natural disaster is especially devastating, legislation is passed that provides for special plan distributions and loans that would otherwise not be available to employees. For example, in 2005 a law was passed to help individuals and businesses affected by Hurricane Katrina.

See Tax Relief in Disaster Situations and Publication 547, Casualties, Disasters, and Thefts, for disaster area relief.”

Today in ERISA History

Nov. 13, 1981 – The Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) was introduced in the U.S. House of Representatives by Rep. Pete Stark (CA) as H.R. 4961.

TEFRA was signed into law by President Ronald Reagan on Sept. 3, 1982, becoming Public Law 97-248.

TEFRA modified some of the changes made by the Economic Recovery Tax Act of 1981 (ERTA), which had dramatically lowered income tax rate from a maximum rate of 96% to a maximum rate of 50%. Concerned that such a dramatic reduction in the tax rates would cause large budget deficits, TEFRA was passed to alleviate some of ERTA’s impact by increasing the tax received by the federal government through removing tax deductions and not increasing tax rates.

TEFRA made a number of changes to qualified plans, including adding limits on contributions and benefits, loans to participants, retirement savings for church employees, contributions for disabled employees, partial rollovers for IRA distributions, and new recordkeeping requirements.

TEFRA was incorporated into plan documents as the TEFRA/DEFRA/REA generation of plan documents, which came before the TRA’86 generation of plan document. If you search the current generation of plan documents, the EGTRRA plan documents, you will find a paragraph specifically referencing TEFRA.

Today in ERISA History

Oct. 8, 2008 – The Emergency Economic Stabilization Act of 2008 (EESA), public law 110-343, is signed into law by President George W. Bush. EESA contained a number of provisions, including creating the Troubled Asset Relief Program (TARP) and the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).

MHPAEA amended ERISA section 712 to require that if a group health plan, or health insurance coverage offered in connection with a group health plan, offered coverage for mental health and substance abuse, the coverage must be equal for psychological disorders, alcoholism, and drug addiction. This change was emphasized by MPAEA changing the term “mental health benefits” to “mental health and substance disorder benefits” everywhere in the Code where “mental health benefits” had previously appeared.

MHPAEA was generally effective one year after the enactment date, which meant that it was effective for plan years beginning on or after Oct. 3, 2009. For calendar year plans, this meant MHPAEA was effective for plan years beginning Jan. 1, 2010.

Today in ERISA History

Sept. 4, 2009 – The Dept. of Labor issues proposed regulations on Civil Penalties under ERISA section 502(c)(8). ERISA section 502(c)(8) was added by the Pension Protection Act of 2006. It grants authority to the Secretary of Labor to assess civil penalties not to exceed $1,100 per day against any plan sponsor of a multiemployer plan for violating certain sections of ERISA section 305 and Internal Revenue Code section 432. ERISA section 3(37) defines multiemployer plans as plans to which more than one employer contributes and are maintained pursuant to one or more collective bargaining agreements.

ERISA section 305 sets forth time frames in which the plan sponsor of a multiemployer plan must notify participants, beneficiaries, and the bargaining parties, along with the PBGC and Secretary of Labor about the critical or endangered status of the plan.

These regulations explain how the maximum penalty amounts are computed, identifies the circumstances under which a penalty must be assessed, sets forth certain procedural rules for service by the DOL and filing by a plan sponsor, and provides a plan sponsor a means to contest an assessment by the DOL by requesting an administrative hearing.

The DOL received one comment about these proposed regulations, and they were finalized on Feb. 26, 2010. The final regulations on Civil Penalties under ERISA section 502(c)(8) were effective on March 29, 2010.

Today in ERISA History

Aug. 27, 1976DOL Advisory Opinion 76-1 is published in the Federal Register and becomes effective. In Advisory Opinion 76-1, the Dept. of Labor states the procedures which must be followed when requesting an Advisory Opinion. It is still cited at the bottom of each Advisory Opinion the DOL issues. For example, Advisory Opinion 2012-05A, issued on July 20, 2012, says:

“This letter constitutes an advisory opinion under ERISA Procedure 76-1, 41 Fed. Reg. 36281 (1976). Accordingly, this letter is issued subject to the provisions of that procedure, including section 10 thereof, relating to the effect of advisory opinions.”

It also states the sections of ERISA for which the DOL will not issue an Advisory Opinion.