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If you are a 401(k) or 403(b) plan fiduciary and you have the impression that ERISA litigation has increased in 2020, you are correct. An analysis by Bloomberg Law says that there have already been five times more lawsuits filed in 2020 than in 2019.  Most of these were filed after March, and Bloomberg attributes this increase at least partially to COVID-19.  Since participants have more time to look into and worry about their plans, and litigators are looking for work, we can expect this trend to continue. No steps can guarantee that 401(k) fiduciaries won’t join the list of…
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A year or so working as a reporter at 220 E. 42nd Street around 1993 completely changed my life. It was part of nearly four years I spent on the staff at the Daily News, once one of the largest-circulation publications in the world but already in the midst of a long, slow decline. I was honored to have met most of the “oddballs and brilliant people” that my sometime client, mentor, and extraordinary professor of journalism Tom Robbins describes in his wistful remembrance in the New Yorker. I was humbled every day to be part of a paper…
On August 31, the Commodity Futures Trading Commission’s (CFTC) Division of Clearing and Risk (DCR) issued a no-action letter (No-Action Letter 20-25) relating to the swap clearing requirement promulgated pursuant to section 2(h)(1)(A) of the Commodity Exchange Act (CEA) and codified in Part 50 of the CFTC’s regulations (Clearing Requirement). No-Action Letter 20-25 revises and supersedes in its entirety previously issued CFTC Staff Letter 19-28, which was requested by the Alternative Reference Rates Committee (AARC) and applied to uncleared interest rate swaps (IRS) that were executed prior to an applicable Clearing Requirement compliance date for which swap counterparties subsequently amend…
The coronavirus pandemic has raised many issues for employers and older employees.  Many employees, over the age of 40, are faced with questions and concerns about the potentially discriminatory decisions being made by their employers regarding layoffs, terminations and returning to the workplace. A significant increase in age discrimination lawsuits is expected due to the pandemic. These claims will be based on the federal Age Discrimination in Employment Act (ADEA), which prohibits discrimination against workers age 40 and older, and state and local laws which protect older workers. The number of lawsuits is anticipated to increase in the coming months…
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Can a foreign owner of a U.S. business be liable for a subsidiary’s unpaid pension liabilities? A recent decision by the Court of Appeals for the 10th Circuit, GCIU Employees’ Retirement Fund v. Coleridge Fine Arts/Jelinki Ltd., (No. 19-3161, 4/6/2020) indicates that collecting from an entity located outside the United States may be an uphill battle. ERISA’s Rules. Title IV of ERISA provides that both multiemployer plan withdrawal liability and PBGC’s claims when underfunded single employer plans are terminated can be assessed against all members of a controlled group, generally determined by looking at whether there is at least 80%…
On August 4, the Commodity Futures Trading Commission’s Office of Customer Education and Outreach (the OCEO) issued a Customer Advisory regarding suspicious precious metal recommendations. Due to the relaxed rules under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), unregistered gold and silver dealers have increasingly been encouraging investors (1) to convert their retirement savings into investments of gold or silver coins or into self-directed gold individual retirement accounts, and (2) to make leveraged purchases of physical metals. These schemes often involve expensive premiums and hidden one-time or monthly fees. Further, physical metals such as collectible coins may…
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Many investment advisers and broker dealers recently filed the now-required Form Client Relationship Summary (CRS) with the SEC and began delivering the form to their clients and prospects.  The Form CRS is required by the SEC as part of new conduct rules and interpretations for broker dealers and investment advisers set forth in Reg BI, which requires investment advisers and broker dealers to distribute the Form CRS to their “retail investors.”  The form provides information about the financial service provider and is meant to be a guide in “plain English” that helps “Main Street” investors evaluate their financial service providers…
On July 22, the Commodity Futures Trading Commission adopted rules (Final Rules) that set minimum financial capital requirements for swap dealers (SDs) and major swap participants (MSPs) that are not subject to prudential regulation (each, a “Covered Swap Entity” or CSE). The capital requirements were originally proposed in 2016, as explained in more detail here. The core financial requirement is capital equal to the greatest of $20 million or 8 percent (and in some cases, 2 percent) of the initial margin required on the CSE’s cleared and uncleared swaps, security-based swaps, futures and foreign futures, but the rules permit…
1. Award   Truth: An award is not the only requirement.   Although winning an award is part of the evidentiary criteria, it is not all of the evidentiary criteria. One can qualify for the O-1 without having an award due to the additional evidentiary criteria. Does having the award make the petition stronger? Absolutely, but it is by no means the only way to satisfy the criteria.   2. Quantity vs. Quality of Portfolio  Truth: Select quality achievements to strengthen the portfolio.   Although having multiple achievements is excellent, USCIS officers can sometimes feel overwhelmed analyzing such an extensive portfolio.…
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As of the end of July, there have been nearly 800 COVID-related lawsuits filed in New York. In New York, courts will not hesitate to enforce a release relieving a business from negligence claims. Releases are seen most often in voluntary activities, like sports and other entertainment. So long as the language of a release clearly absolves a business from its own acts of negligence, a plaintiff who is injured during one of these activities will not be able to sue a business for damages for negligence. In the seminal case of Gross v. Sweet, 49 N.Y.2d 102 (N.Y. 1979),…
The purpose of this article is to focus on restricted stock units (RSUs) as “deferred compensation” for purposes of social security taxes (FICA).  Whether the compensation is deferred compensation is particularly important for amounts that vest at the end of a calendar year but are paid shortly after.  The IRS has recently commented on this topic in the form of a generic legal advice memorandum (GLAM), dated May 18, 2020, which covered the timing of income inclusion and of tax deposit obligations for a stock-settled option, stock appreciation right (SAR) and restricted stock unit (RSU). We covered those aspects of…
Somewhere in the world, every three seconds, someone is being diagnosed with dementia. Dementia is a catchall phrase that refers to many types of neurodegenerative diseases. Neurodegenerative diseases bring about the onset of dementia including but not limited to: Alzheimer’s disease, Lewy body dementia, Parkinson’s disease dementia, vascular dementia (currently the second most common form of dementia), amyotrophic lateral sclerosis, and the most recently identified LATE (limbic-predominant age-related TDP-43 encephalopathy) which mimics Alzheimer’s symptoms but is caused by a different brain mechanism. There is a long-held view that cognitive decline is a normal consequence of aging; however, this has been…