Category Archives: Litigation

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.

New IRS Amendment Info on Supreme Court’s Decision on Same-Sex Marriage for 401k’s

On Friday (April 4, 2014), the IRS issued Notice 2014-19, addressing how the U.S. Supreme Court’s decision on same-sex marriage in U.S. v. Windsor and IRS Rev. Rul. 2013-17 affects retirement plans and pension plans, including 401(k) plans. Notice 2014-19 is 7 pages long.

Last year, When the IRS issued Rev. Rul. 2013-17, the Service left a number of questions unanswered for qualified plans, including how far back Windsor should be applied, and whether plan sponsors need to adopt an amendment to comply with Windsor. This led to a lot of debate, especially over whether, when and how plans should/could/must apply Windsor retroactively. After all, when the U.S. Supreme Court decides something is unconstitutional, and has always been unconstitutional, that ruling normally applies back to the inception, not to a specific date. As a practical matter, which is not suppose to factor in when correcting unconstitutionality, asking retirement and pension plans to review every distribution, loan, and spousal consent obtained since the Defense of Marriage Act was signed into law in 1996, and making correcting distributions when warranted, would be an immense burden on our industry (again, how difficult, time-consuming and expensive for an industry to correct an unconstitutionality should be irrelevant).

In Q&A-2 of Notice 2014-19, the IRS tells us that “a retirement plan will not be treated as failing to meet the requirements of section 401(a) merely because it did not recognize the same-sex spouse of a participant as a spouse before June 26, 2013″. I’m not sure what the federal court system will do with this pronouncement, but it is what the IRS has given us to work with for now. I think best practices for any qualified plan this year is to update all spousal consents and beneficiary forms.

As for if/when amendments must be adopted, Q&A-8 of Notice 2014-19 says “the deadline to adopt a plan amendment pursuant to this notice is the later of (i) the otherwise applicable deadline under section 5.05 of Rev. Proc. 2007-44, or its successor, or (ii) Dec. 31, 2014.”

On May 8, 2014 from 2pm to 3:40pm, we are holding a live web seminar to discuss Notice 2014-19. We have divided this seminar into 2 parts of 50 minutes each to allow attendees to earn 1 CE credit if they want to attend only 1 part.

In Part 1 of this live web seminar, we discuss the requirement of Q&A-8 of Notice 2014-19 which states that some plans may need to adopt an amendment by the later of: (1) the deadline under section 5.05 of Rev Proc 2007-44; or (2) Dec. 31, 2014, including discussing how to determine what plans may need to adopt this amendment, the deadline to adopt the amendment, how to determine which deadline applies, what a sample amendment may say, and how the restatement period which just started for defined contribution plans affects this amendment since the language in IRS pre-approved PPA prototype and volume submitter defined contribution plan documents was approved prior to the release of Notice 2014-19.

In Part 2 of this live web seminar, we discuss how IRS Notice 2014-19 addresses various issues which the IRS states the decision in Windsor caused for qualified plans, including discussions of Internal Revenue Code section 401(a)(11) qualified joint and survivor annuities (QJSA) spousal consent rules; the spousal consent rules of Code section 417(a)(4) for plan loans; the spousal consent rules of Code section 401(a)(11)(B)(iii) for designating a beneficiary for purposes of QJSAs and QPSAs; the surviving spouse rules for required minimum distributions under Code section 401(a)(9); and the attribution rules of Code section 1563(e)(5) for determining whether a spouse is treated by the IRS as owning shares owned by the other spouse for purposes of determining whether corporations are members of a controlled group under Code section 414(b).

The cost to attend our live web seminar on Notice 2014-19 is $50 for each individual, which includes both Part 1 and Part 2. Individuals registered for our 16 Credit Hours for $195 seminar package can attend as part of their package at no additional charge. Group packages are available.

You can reserve a seat in this seminar, or see what live web seminars we have coming up, here.

This seminar is 100 minutes long and is designed to meet ASPPA’s and NIPA’s requirements for 2 CPE credits. This IRS has approved this program for 2 CPE credits for Enrolled Retirement Plan Agents and Enrolled Agents.

Top 5 ERISA Opinions in 2013

Employee Benefit News (EBN) posted their top 5 ERISA-related cases of 2013. 3 out of the 5 are opinions released by the U.S. Supreme Court in 2013. One is Fifth Third Bancorp v. Dudenhoeffer, which will be heard by the U.S. Supreme Court in 2014.

EBN’s top 5 are:

1. Heimeshoff v. Hartford Life & Accident Co., Dec. 16, 2013, (U.S. Supreme Court);

2. U.S. Airways v. McCutchen, April 16, 2013 (U.S. Supreme Court);

3. Fifth Third Bancorp v. Dudenhoeffer, decided by the U.S. Court of Appeals for the 6th Circuit on Sept. 5, 2012; to be heard by the U.S. Supreme Court in 2014 (U.S. Supreme Court has not scheduled the specific date as of today ;

4. Tussey v. ABB; U.S. Court of Appeals for the 8th Circuit heard oral argument on Sept. 24, 2013; and

5. U.S. v. Windsor, June 26, 2013 (U.S. Supreme Court).

The full-text of EBN’s article containing their reasons for picking these 5 cases is here.

For more about Tussey v. ABB, a fellow ERISA attorney – Thomas E. Clark, Jr. – actually attended the oral argument and posted his thoughts about it here.

Dudenhoeffer is definitely on my list, but I went to law school in Cincinnati and know a number of people involved on both sides of this case.

Tussey v. ABB does not make my list for 2013. It will probably make my list for 2014.

My top 5 for 2013 includes the U.S. Tax Court opinion on ROBS (rollovers as business start-ups) – Ellis v. Commissioner, T.C. Memo 2013-245 (Oct. 29, 2013). Read the opinion because I think the Tax Court hit the nail on the head with this opinion. I was just sent something on a new iteration of ROBS called RAFTs (rollover IRAs as business start-ups). Let just say, at this point, I am not a fan.

US Supreme Court to Hear Fifth Third Stock Drop Case

The U.S. Supreme Court granted cert. today to the stock drop case – Fifth Third Bancorp v. Dudenhoefer – out of the 6th Circuit Court of Appeals. The case is not assigned a date yet for oral argument, but Lyle Denniston of SCOTUSblog is guessing that the case may be heard in March because there are open dates in March which have no cases assigned for oral argument yet.

The Court granted cert. on this issue:

“Whether the Sixth Circuit erred by holding that respondents were not required to plausibly allege in their complaint that the fiduciaries of an employee stock ownership plan abused their discretion by remaining invested in employer stock, in order to overcome the presumption that their decision to invest in employer stock was reasonable, as required by the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1101 et seq. (“ERISA”), and every other circuit to address the issue; and (2) whether the Sixth Circuit erred by refusing to follow precedent of this Court (and the holdings of every other circuit to address the issue) by holding that filings with the Securities and Exchange Commission become actionable ERISA fiduciary communications merely by virtue of their incorporation by reference into plan documents.”

The 6th Circuit’s opinion in this case is available here. It is one of the best ERISA opinions written by the 6th Circuit, which is one of the most active Courts of Appeal when it comes to ERISA opinions.

Lyle Denniston’s article about the Court granting cert. in this case is posted at http://www.scotusblog.com/2013/12/court-grants-two-cases-8/

District Court Says No to IRS About RTRPs, Are ERPAs, Enrolled Actuaries or EAs Next?

Almost a month has passed since the U.S. District Court of the District of Columbia issued its opinion about IRS Circular 230 on Jan. 18, 2013, and I’m a little surprised by the lack of discussion about this opinion in ERISA circles because it may be a game-changer when it comes to the IRS permitting non-attorneys to practice before the IRS.

In Loving v. Internal Revenue Service, No. 12-385 (Jan. 18, 2013), the U.S. District Court of the District of Columbia granted summary judgment to three paid tax return preparers who complained that the 2011 addition of section 10.3(f) to IRS Circular 230, creating the category of Registered Tax Return Preparer, would force them to close their businesses if they were forced to comply with Circular 230. Specifically, the Court enumerated the new Circular 230 requirements imposed on those three paid tax return preparers as “annual fees, the entrance exam, and the hefty continuing-education requirement”.

To those of us who practice before the IRS on a daily basis, complying with IRS Circular 230 is nothing new. In my History of Circular 230 class, I was taught that the IRS promulgated Circular 230 in 1966. According to the Court’s 22-page opinion, Circular 230 actually has its origins in an 1884 statute, 31 U.S.C. section 330, which “allows the IRS to regulate “representatives” who “practice” before it.” (quotation marks around “representatives” and “practice” provided by the Court).

Section 10.2(a)(4) of Circular 230 defines practice before the IRS as:

“(4) Practice before the Internal Revenue Service comprehends all matters connected with a presentation to the Internal Revenue Service or any of its officers or employees relating to a taxpayer’s rights, privileges, or liabilities under laws or regulations administered by the Internal Revenue Service. Such presentations include, but are not limited to, preparing documents; filing documents; corresponding and communicating with the Internal Revenue Service; rendering written advice with respect to any entity, transaction, plan or arrangement, or other plan or arrangement having a potential for tax avoidance or evasion; and representing a client at conferences, hearings, and meetings.”

The Court stated the issue before it “turns on whether certain tax-return preparers are representatives who practice before the IRS, and thus are properly subject to the new IRS regulations.” (the new IRS regulations are the 2011 changes to Circular 230). Even though the three tax return preparers are in the business of preparing and filing IRS Form 1040s for unrelated taxpayers, the Court found that they are not representatives who practice before the IRS, and thus were not subject to the new IRS regulations.

According to the Court’s opinion, the IRS argued that “each agency has inherent authority to regulate those who practice before it.” Unlike most agencies, who permit only attorneys to represent the interests of unrelated parties, the IRS has always taken a more pragmatic approach, permitting non-attorneys to represent the interests of unrelated parties before the IRS based upon criteria stated in Circular 230. For example, many years ago, the IRS recognized that Enrolled Actuaries bring a unique understanding to the application of 22 different Internal Revenue Code sections as they pertain to pension and retirement plans, and thus added Section 10.3(d) to Circular 230. This pragmatic approach turned out to be cost-effective for everyone involved. Namely, the IRS could speak directly with the Enrolled Actuary for the plan instead of taking the more circuitous route of speaking to an attorney who could call the Enrolled Actuary for the plan, relay the IRS’ question about an actuarial calculation, obtain the Enrolled Actuary’s response to the question, and then relay the response to the IRS.

Several years after the IRS added Section 10.3(d) to Circular 230, it then added section 10.3(e), permitting Enrolled Retirement Plan Agents, or ERPAs, to practice before the IRS.

In determining whether the IRS can permit non-attorneys to practice before the IRS, the Court focused on the language of 31 U.S.C. section 330(a)(2), which “allows the Secretary to ‘require that the representative demonstrate…(D) competency to advise and assist persons in presenting their cases.” The Court says that it is this language, which “does not disclose who these covered ‘representatives’ are. But it does tell us what the representatives do – what their “practice” is, in the words of both subsections: representatives ‘advise and assist persons in presenting their cases.”

The Court then goes on to say that:

“This statutory equating of ‘practice’ with advising and assisting the presentation of a case provides the first strike against the IRS’ interpretation. Filing a tax return would never, in normal usage, be described as ‘presenting a case.’ At the time of filing, the taxpayer has no dispute with the IRS; there is no ‘case’ to present.”

If, as the Court says, filing a tax return was not included in the statutory framework of Circular 230 practice before the IRS, and if practice before the IRS only includes representing taxpayers who are involved in a dispute with the IRS, such as an appeal, then filing a determination letter application or an EPCRS VCP Application with IRS Employee Plans would also not be included.

After the opinion was issued by the Court, a representative of the IRS said the Service will be working with the Dept. of Justice to appeal this decision.

Court Finds Third Party Administrator Liable as Fiduciary

Despite language in their contract which expressly states that they are not a fiduciary, yesterday the Court of Appeals for the 6th Circuit found Professional Benefits Administrators (PBA) was a fiduciary when it misappropriated funds meant to pay medical claims for 4 companies whose plans PBA administered. Guyan International v. Professional Benefits Administrators, Nos. 11-3126/3640 (Aug. 20, 2012).

PBA is a third party administration firm which entered into a Benefit Management Service Agreement with 4 companies – Guyan International (Permco), Precision Gear, Pritchard Mining Company, and Hocking Athens Perry Community Action Agency (HAPCA). Under the Agreement, PBA would establish a segregated bank account for each plan and the companies would deposit employer contributions and employee payroll contributions into that account. PBA would then pay medical claims presented to the plans by writing checks from this account.

Instead, according to the companies, PBA misappropriated the funds in the account for their own purposes. Permco was the first to file a lawsuit against PBA, alleging that PBA was a fiduciary under ERISA, that PBA had breached its fiduciary duties, that Permco and its Plan had been damaged by this breach, that ERISA pre-empted Permco’s breach of contract claims and that PBA had misappropriated $501,380.75 from Permco. The U.S. District Court for the Northern District of Ohio (Akron) agreed, and granted partial summary judgment to Permco on the ERISA breach of fiduciary duty claim.

Pritchard, HAPCA and Precision Gear than filed their own lawsuits, and were also granted partial summary judgments. The district court awarded $501,380.75 to Permco, $409,943.88 to Pritchard, $384,574.17 to HAPCA and $44,290.12 to Precision Gear.

PBA appealed to the Court of Appeals for the 6th Circuit, requesting that the 6th Circuit reverse the district court’s determination that PBA was a fiduciary under ERISA when it managed or disposed of the plan assets.

The 6th Circuit agreed with the district court, finding that:

“PBA was a fiduciary under ERISA because it exercised authority or control over Plan assets. PBA had the authority to write checks on the Plan account and exercised that authority. Moreover, PBA had control over where Plan funds were deposited and how and when they were disbursed.”

The Court further found that because PBA used plan funds in ways contrary to the Benefit Management Service Agreement, it demonstrated that PBA had practical control over Plan assets once they were received from the companies. Even though the agreement specifically stated that PBA was not a fiduciary, the Court, citing Briscoe v. Fine, 444 F.3d 478 (6th Cir. 2006), said that language in a contract expressly limiting fiduciary status does not override a third party administrator’s functional status as a fiduciary.

Carl H. Gluek, Jennifer L. Whitney and Olivia Lin represented Pritchard Mining Company, Hocking Athens Perry Community Action Agency, Precision Gear and Merit Gear before the 6th Circuit.

Peter Turner represented Guyan International (Permco) before the 6th Circuit.

Steven G. Janik, Crystal l. Nicosia, Colin P. Sammon and Ellyn Mehendale represented Professional Benefits Administrators and Robert Hartenstein before the 6th Circuit.

Court Finds ERISA Plans Invested with Madoff not Madoff Customers

If you’ve been wondering about whether the qualified plans invested with Bernard L. Madoff Investment Securities LLC would be able to recover some of their losses through the $500,000 maximum made available by the Securities Investor Protection Act of 1970 (SIPA) to customers of failed brokerage firms, the U.S. District Court for the Southern District of New York has answered “no” in an opinion issued on July 25, 2012.

Two groups of ERISA claimants had been joined together in a motion requesting recovery under SIPA. The first group consisted of individuals who participated in ERISA-regulated retirement plans that had accounts with Madoff. The second group consisted of entities that are ERISA-regulated plans or individual retirement accounts (IRAs) that invested directly or indirectly in a Madoff account-holder entity such as a hedge fund. No one in either group had their own account with Madoff but were invested with Madoff through feeder funds, where the plan had invested in the feeder fund, and the feeder fund had invested with Madoff.

The ERISA claimants said that if the Court correctly applied ERISA, they qualified as “customers” under SIPA’s definition of customer as “any person who has deposited cash with the debtor for the purpose of purchasing securities”. The Court determined that they were not claimants under that definition of “customer”, finding that “one cannot deposit cash with the debtor if this cash belongs to another”. The Court reasoning was that because assets in an ERISA-regulated plan are held and owned by the plan’s trustees, and not by the participants, the participants could not pursue recovery as a “customer” under SIPA.

FedEx Independent Contractor Misclassification Lawsuits Wait for Answer from Kansas Supreme Court

Recognizing that the FedEx independent contractor class action lawsuit “is of great importance not just to this case but to the structure of the American workplace”, the U.S. Court of Appeals for the 7th Circuit has requested input from the Kansas Supreme Court on whether FedEx drivers are improperly classified as independent contractors in Craig v. FedEx Ground Package System, Inc., No. 10-3115 (CA7 July 12, 2012).

Craig v. FedEx Ground Package System, Inc. involves 479 Kansas FedEx drivers who allege that they were improperly classified as independent contractors rather than employees under the Kansas Wage Payment Act. It is one of 21 cases appealed to the 7th Circuit regarding substantially the same issue about whether FedEx misclassified current and former drivers as independent contractors instead of employees. When these class action lawsuits were originally filed in U.S. district courts throughout the United States, the Judicial Panel on Multidistrict Litigation consolidated the actions and transferred them to the U.S. District Court for the Northern District of Indiana. In 2010, the district court granted summary judgment in favor of FedEx, finding that the drivers could not prevail on their claims. The drivers appealed those decisions to the 7th Circuit Court of Appeals.

Explaining that when hearing appeals involving diversity, the 7th Circuit’s “task is to ascertain the substantive content of state law as it either has been determined by the highest court of the state or as it would be by that court if the present case were before it now”, the 7th Circuit found that it is not clear how the Kansas Supreme Court would decide the issues currently before the 7th Circuit in Craig as the caselaw is not clear and the Kansas Supreme Court has applied a facts-and-circumstances test when deciding similar issues in previous cases. For these reasons, the 7th Circuit requested the Kansas Supreme Court answer 2 questions, and has stayed all proceedings in the 21 FedEx appeals, including Craig, until it receives answers to those questions from the Kansas Supreme Court.

The questions are:

    1. Given the undisputed facts presented to the district court in this case, are the plaintiff drivers employees of FedEx as a matter of law under the Kansas Wage Payment Act (KWPA)?
    2. Drivers can acquire more than one service area from FedEx. See 734 F. Supp. 2d at 574. Is the answer to the preceding question different for plaintiff drivers who have more than one service area?

United Employee Benefit Fund, Govt Reach Agreement Over Loan Allegations

What started with a bang has ended with a whimper. It began with the Dept. of Labor issuing a press release on Aug. 30, 2011, announcing that the DOL was seeking “to recover more than $1 million in improper and delinquent loans made from United Employee Benefit Fund.” It ended with an agreement between the parties to pay their own attorneys fees and expenses, amend the plan documents, and issue some 1099s.

On July 2, 2012, the Dept. of Labor and United Employee Benefit Fund entered into a Consent Order in the U.S. District Court for the Northern District of Illinois, Eastern District, resolving issues the DOL alleged United Employee Benefit Fund had in administering loans within their plan. Specifically, the DOL alleged that United Employee Benefit Fund had issued at least 194 loans from the fund to individual participants between Jan. 1997 and Dec. 31, 2009, some of which lacked proper documentation, were delinquent, or had exceeded 50 percent of the value of the participants’ accrued benefit. In the Consent Order, United Employee Benefit Fund agreed to amend the loan provisions in their plan documents, issue 1099s to participants whose loans are delinquent for more than 120 days, and provide copies of those 1099s to the DOL within 45 days after the 1099 is issued. As part of the agreement, both parties will pay their own attorneys fees, costs and expenses.

The Consent Order does not include any fine or penalty to be paid by UEBF, and the agreement states that it is not binding on any other agency, including the IRS.

The United Employee Benefit Fund was established by the Professional Workers Master Contract Group and the National Production Workers union Local 707 to provide welfare, medical, death, disability and child care facility benefits to the fund’s participants. As of Dec. 31, 2009, UEBF had approx. 281 participants.

Supreme Court Likely to Release Affordable Care Act Opinion on Monday

If you’ve already made your pick in your office pool about when the U.S. Supreme Court will release its opinion regarding the Affordable Care Act, you may not want to read the rest of this post. The Supreme Court has an interesting history when it comes to releasing ERISA-related opinions in June. Consider that the Supreme Court released the following opinions in June:

  • June 2, 1997 – Boggs v. Boggs, 520 U.S. 833 (1997) (Monday);
  • June 2, 1997 – De Buono v. NYSA-ILA Medical and Clinical Service Fund, 520 U.S. 806 (1997) (Monday);
  • June 3, 1985 – Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985) (Monday);
  • June 7, 2007 – Central Laborers’ Pension Fund v. Heinz, 541 U.S. 739 (2004) (Thursday);
  • June 8, 1998 – Geissal v. Moore Medical Corp., 524 U.S. 74 (1998) (Monday);
  • June 10, 1996 – Lockheed Corp. et al. v. Spink, 517 U.S. 882 (1996)(Monday);
  • June 11, 2007 – Beck v. PACE, Int’l Union, 551 U.S. 96 (2007) (Monday);
  • June 12, 2000 – Pegram v. Herdrich, 530 U.S. 211 (2000) (Monday);
  • June 12, 2000 – Harris Trust and Sav. Bank v. Salomon Smith Barney Inc., 530 U.S. 238 (2000) (Monday);
  • June 15, 2006 – Howard Delivery Service v. Zurich Amer. Insurance Co., 547 U.S. 651 (2006) (Thursday);
  • June 18, 1984 – Pension Benefit Guaranty Corp. v. RA Gray & Company, 467 U.S. 717 (1984) (Monday);
  • June 18, 1990 – Pension Benefit Guaranty Corp. v. The LTV Corp., 496 U.S. 633 (1990) (Monday);
  • June 19, 2008 – Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008) (Thursday);
  • June 20, 2002 – Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002) (Thursday);
  • June 21, 2004 – Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) (Monday);
  • June 24, 1983 – Shaw v. Delta Air Lines Inc., 463 U.S. 85 (1983) (Friday); and
  • June 25, 1998 – Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) (Thursday);

Of these 16 opinions:

  • 11 were released on a Monday;
  • 5 were released on a Thursday; and
  • 1 was released on a Friday.

When it comes to ERISA, Monday at the U.S. Supreme Court could be called ERISA-Monday.

Another truism about the U.S. Supreme Court is that the Court is completely unpredictable when it comes to releasing opinions in specific cases, so while this analysis would indicate the Court will release the Affordable Care Act opinion on Monday (since it is the last Monday in June this year), it is also possible that the Court will release the opinion on Tuesday, Wednesday, Thursday or Friday. In fact, as I write this, the Court may be releasing its opinion in the Affordable Care Act cases. On the other hand, you know which day I have in the office pool.