A new report in Pensions and Investments should be an eyeopener for sponsors of 401(k) and 403(b) plans who haven’t yet gotten the message that even responsible fiduciaries can be sued. I previously wrote that 2020 promises to be a banner year for 401(k) plan litigation. Now P&I reports that fiduciary liability insurance premiums are up 35% as a result of costly awards and settlements. Plan sponsors are also being required to pay more-P&I gives an example of a $2 million payment- just to be able to renew policies. This trend can only accelerate as 2020 fiduciary breach lawsuits continue…
On October 21, the Division of Swap Dealer and Intermediary Oversight (DSIO) of the Commodity Futures Trading Commission issued an advisory to futures commission merchants (FCMs) regarding the holding of virtual currency in segregated accounts. The advisory, Letter No. 20-34, provides guidance to FCMs on how to hold and report certain deposited virtual currency from customers in connection with physically delivered futures contracts or swaps and how to maintain appropriate risk management programs concerning the acceptance of virtual currencies as customer funds. Consistent with the existing requirements for customer funds held by FCMs, DSIO advised FCMs that, among other things:…
On October 22, the Commodity Futures Trading Commission and the Securities and Exchange Commission, at their first-ever joint open meeting, approved (1) a joint final rule to lower the margin requirement for an unhedged security futures position from 20 percent to 15 percent, which was approved over the dissents of Commissioners Lee and Crenshaw of the SEC; and (2) the issuance of a joint request for comment on the portfolio margining of uncleared swaps and non-cleared security-based swaps. The CFTC press release and access to the Federal Register releases are available here. The SEC press release is available here
Mayor De Blasio recently signed legislation amending NYC’s paid safe and sick leave law. The new changes took effect on September 30, 2020 and bring NYC’s law more into line with NYS’s paid sick leave law. Key Changes to Be Aware of The key changes in the law that employees in NYC should know about are the following: Employees begin accruing leave immediately upon starting a job and can use the leave as soon as it is accrued; the previous requirement that an employee work for 80 hours to be eligible for safe/sick leave has been removed. Employers with…
It is, of course, illegal to discriminate against an employee because they have a disability—to fire someone because the employer learns they have been diagnosed with schizophrenia, for example.  But what about when the disability causes conduct that might otherwise be a legitimate basis for an action like firing? What if, for example, that schizophrenia… Continue reading Does the ADA Require More Flexible Employee “Misconduct” Rules? →
Is bullying illegal? The short answer is no. However, bullying in the workplace can constitute as unlawful harassment if it leads to a hostile work environment and/or if it is on the basis of a protected category, such as sex, race, religion, nationality. What Is Bullying and How Is It Different From Harassment? Bullying is defined as a pattern of an undesired and aggressive behavior “that involves a real or perceived power imbalance.” Bullying can take verbal, social, and physical forms. According to the CCOHS bullying in the workplace includes verbal comments or actions in an effort to “mentally hurt…
Partners Sandra Cohen & Carol Buckmann were recognized in the “Elite Boutique” category for their achievements in establishing a leading boutique focused on providing sophisticated advice on employee benefits, executive compensation, health plans, and pension plans. This honor was published in the National Law Journal October 2020 issue. Sandra and Carol co-founded Cohen & Buckmann in 2016 after recognizing that, even though their practice skill set is usually found at large Wall-street type law firms, many other firms also deserve sophisticated ERISA and compensation advice for their clients and transactions. Cohen adds, “We have since become the go-to employee benefits…
Do private equity funds engage in a trade or business?  If so, and if those trades and businesses are part of a controlled group as defined in ERISA, they could be liable for unfunded pension liabilities of their portfolio companies. These issues have been litigated in four separate decisions by federal courts in the First Circuit. The courts were ruling on a multiemployer plan’s attempt to collect withdrawal liability from two Sun Capital Partners funds. The funds had invested in a bankrupt portfolio company called Scott Brass. After the most recent decision found that the funds were not liable, the…
Emilio’s Pizzeria & Ristorante, located in Long Island, New York, is facing criticism after the owner reportedly insulted and physically attacked a gay employee. Michael Abenante had worked at Emilio’s as a waiter since 2017. Abenante, who identifies as gay, wore the wrong shoes to work in November 2019. In response to this mistake, the restaurant owner, Emilio Branchinelli, allegedly yelled “F—king f—got, I’ll murder you!” Then, Branchinelli allegedly kicked Abenante in the back and punched him in the face. Abenante lost a tooth due to this physical altercation with his boss. After this serious violation of his dignity and…
On October 15, the Commodity Futures Trading Commission adopted new rules on position limits. As described in greater detail in Katten’s advisory, CFTC Adopts New Position Limit Requirements, the new rules (1) set forth federal position limits for 25 different futures contracts; (2) enhance the roles played by exchanges in setting limits and granting exemptions; (3) modify exemptions from federal position limits; and (4) eliminate Form 204 (Statement of Cash Positions in Grains) and portions of Form 304 (Statement of Cash Positions in Cotton). More information, including a link to the new position limit rules, is available here.…
On October 15, at the same open meeting in which it approved the final rule on position limits, the Commodity Futures Trading Commission unanimously approved two other unrelated final rules. The first final rule extends the compliance date one year, from September 1, 2021 to September 1, 2022, for margin requirements for uncleared swaps for swap dealers and major swap participants for which there is no banking regulator. This rule will be effective 30 days after publication in the Federal Register. The second final rule amends the registration exemptions available under CFTC Regulation 3.10(c) (collectively, 3.10 Exemption) for certain foreign-located…
On October 13, the Division of Market Oversight (DMO) of the Commodity Futures Trading Commission issued two no-action letters that provide limited relief from swap transaction and pricing data reporting requirements for specific derivatives clearing organizations (DCOs) and market participants that take part in upcoming DCO auctions intended to assist in transitioning certain cleared swaps away from discounting using the Effective Federal Funds Rate and instead using the Secured Overnight Financing Rate (such auctions, Transition Auctions). This transition in discounting methods is an important step in the broader initiative to transition swaps that reference interbank offered rates, like the London…
One of the really great things about the O-1 visa or the artists visa, is the ability to really explore different opportunities in your career. The reason why you can do that is because O-1 petitions can be filed through an agent petitioner, which allows you to work with multiple employers and different projects throughout your O-1 validity period.   O-1B Petitions filed with an Agent    If you have filed with an agent petitioner, you can add additional performances and engagement to your petition, even if those new additional performances and engagements weren’t included in your original itinerary.…