ERISA Litigation: How Low Will 'They" Go?

The ERISA litigation field in recent years has seen copycat filings, plagiarism in pleadings, factual flaws, and misleading assertions—but to my eyes, we’ve just hit a new low.

I’m speaking of what appears to be a new strategy, at least in this area of the law. Specifically, a California law firm by the name of Lieff Cabraser Heimann & Bernstein is in the midst of what appears to be a pre-trial “shakedown.”

More specifically—brought to my attention by Daniel Aronowitz (writing for The Fid Guru Blog)—Leiff Cabraser is currently engaged in a letter writing campaign to plan sponsors, alerting them to a series of assertions about ERISA litigation, allegations about the fees paid by participants in their plans (relative to a standard that has been repeatedly criticized in that context at trial)—all alongside the fact that they’ve allegedly found an as-yet-unnamed plaintiff-participant in the plan in question that is said to be willing to represent a class action alleging the plan’s fiduciary breach. 

Oh—and the purpose of this campaign? Why, according to the letter, Lieff Cabraser Heimann & Bernstein is “open to discussing our client’s ERISA claims in hopes of reaching an early resolution…before a great deal of time and expense is incurred by any party in litigating this matter.” 

And if the threat of litigation was not sufficient to garner their attention, the letter closes, “This may be the last time that the parties have total control over the outcome of this matter without leaving it up to the Court. A settlement now, before the parties have incurred significant litigation expenses, will benefit both parties.”

Perhaps, but I’m guessing one party in particular.

Sadly, there’s nothing illegal in this approach—even though it smacks of extortion. As for the recipients of these letters, they may well know that the fees their plans/participants are actually paying are much different than the letter suggests, but they may NOT know of the shortcomings in the way the 401(k) Averages Book data is presented (though already noted by more than one court) and applied to their plans (Mr. Aronowitz does an artful job of explaining that, however, and it’s worth a look!). However, they probably ARE aware of the headlines that appear with distressing regularity tracking this type of litigation and may well have a sense of the multi-million-dollar settlements—whose pace and frequency seem to be quickening with each passing month. 

Looking at the arguments presented in most of these actions, it’s hard to dismiss the feeling that most are, in fact, (just) playing for that quick settlement; half of their filings (and most are pretty short) are simply a cut and paste regarding ERISA’s obligations alongside an inference (and sometimes more than an inference) that the plan fiduciaries in question (and those who appointed them) have fallen short of those obligations. They cite plans that are supposedly comparable (at least in size and participant count), extract numbers from government filings that don’t capture the full picture of costs (or services), lay those down next to data from sources known to have shortcomings for those purposes, toss in some “best practice” commentary from a trade publication or two, and rely on the forbearance of the judiciary to open the door to the more intrusive (and costly) process of discovery, deposition, and at some point, trial. 

That’s been the way of this type of litigation for awhile now, where it is simply easier—and, sadly, cheaper—for plan fiduciaries (and their insurers) to just settle and move on, though that process inevitably serves to fund the plaintiffs’ bar’s next “foray.”

Consequently, it’s been refreshing of late to see some federal district courts require more to establish a “plausible” argument to get past that point—to call for not only an accounting of fees, but of the services rendered for those fees. That surely complicates matters for the plaintiffs’ bar—but then, why should they be able to drag firms through the arduous process of discovery and depositions with no more than regurgitated copy, sweeping generalizations, and a table or two cobbled from unrelated sources? 

But now it seems that this law firm at least doesn’t even want to go through that exercise—and why should they if they can simply unleash a correspondence campaign that stands to bring in a payoff from who knows how many plans without even the bother of a court filing or appearance?

I know it’s easy to sit here and carry on as to why plan fiduciaries need to stand up to this kind of practice—to applaud the actions of federal judges who can see what’s going on here, and hope they continue to demand more than mere allegations and flawed assumptions. Unfortunately, this most recent undertaking is perhaps an obvious progression of a sad, regrettable trend.

But I can promise you that if this “works”—it won’t be the last.

- Nevin E. Adams, JD

The Biggest Surprise About (My) Retirement

My “retirement” isn’t even a year old—and for the most part, it’s played out pretty much as planned.  There was, however, an area that caught us a bit flat-footed.

For us (and this has very much been a joint effort between me and my wife), that surprise was…Medicare. 

Don’t get me wrong; to date the coverage has compared favorably with what we had pre-retirement—mostly because we coupled “standard” Medicare with a Medicare Advantage plan (which has actually provided some nice enhancements over our pre-retirement coverage). 

That said, here are some things we’ve learned along the way that we either didn’t know or hadn’t thought about “before”:

Medicare isn’t free. 

Well, technically speaking, some of Medicare comes without additional premiums/cost, at least if you’ve worked at least 10 years and paid into that system. 

There are two “core” parts to Medicare; what are affectionately referred to as Part A (hospital coverage)—which is “free” (in that your historical payroll deductions fund it) and Part B (medical insurance, which covers outpatient care, services from doctors and health care providers, some preventative services)—which, like your current health insurance, has premiums that you have to pay.  More on that in a minute.

While certainly of benefit, those coverages won’t replace everything covered by the health insurance you’ll have carried pre-retirement (those are likely included in what are called Part C (vision, hearing, dental, and Part D (prescription drug coverage). The bottom line here is that your post-retirement spending plans need to include something for health insurance (more precisely, your Social Security benefit will be reduced by that amount). You can find out more at: https://www.medicare.gov/basics/costs/medicare-costs

You (may) need to apply for Medicare before you “take” Medicare.

Once you start receiving Social Security benefits, you are automatically enrolled in Medicare A. But if you work past age 65 (as I did) and don’t start taking Social Security (like me), then you have to sign up for Medicare—even if you’re still working, have insurance, and don’t plan to use Medicare (this will, of course, confuse your current health care providers, at least momentarily. Everyone assumes when you turn 65, you’re on Medicare). 

There’s a seven-month initial enrollment period that begins three months before the month you turn 65 and ends three months after your birthday month. Now, there are some exceptions to that timing, but—the bottom line is, you’ll likely find it to be less complicated to sign up around your 65^th birthday, and then you don’t have to worry that you’ll run afoul of deadlines that can cost you a lot later on.

There are no Medicare “family” plans.

You may be accustomed to choosing workplace health insurance based on the needs of your family, or at least you and your spouse. For years I have “delegated” that responsibility to my wife, who has always had a better sense for the family doctors and our coverage needs. But we each had to sign up for Medicare separately (though we did “coordinate”).

That said, there can be complications if you are retiring at a different time than your spouse, particularly if you’ve shared coverage under a family plan. We had planned to let my wife (who is the same age, though she maintains that the five-month differential in our dates of birth makes her younger) go on Medicare while I continued with my workplace plan. Now, there is a process that allows for this, but it’s a bit of an exception and—well, we got close to the deadline, and rather than have coverage at risk, we just waited until we could both switch at the same time.

Your Medicare premiums are based…on your income.

One of the biggest surprises (to me, anyway) was to find my Medicare health insurance premiums were based on income. And if you’ve filed jointly, BOTH of your premiums are based on your adjusted gross income (AGI). But that wasn’t the biggest surprise… 

Your Medicare premiums are based on your income…from two years ago.

When it comes to figuring out your income for establishing your Medicare premiums, you might expect that a government agency would turn to an official government record of your income—and that turns out to be your AGI, as noted above. The jaw-dropper (this was the biggest surprise) was that it was our AGI from TWO YEARS AGO. 

Now, mind you, we’ve planned our retirement income needs just fine—but my AGI this year is going to be significantly less than it was when I was employed full time. And that makes a BIG difference in those monthly Medicare premiums. 

Fortunately, there is an appeals process—and even more fortunately, with my wife’s persistence we were able to rectify that situation BEFORE the first premium came due. It’s something you’ll want to get a jump on, as gathering the data/proof, getting it to Social Security—not to mention getting it to the attention of someone at Social Security—can be time consuming. For more information on that process, see https://www.ssa.gov/medicare/lower-irmaa or on the issue here.

The bottom line is that you want to start thinking about Medicare BEFORE you start filing for it. 

- Nevin E. Adams, JD

Does TikTok Really Hate the 401(k)?

A recent MarketWatch article poses the intriguing question: “Why does TikTok hate the 401(k) so much?”

Now, as social media platforms go, I’ve pretty much avoided TikTok. Oh, I’ve swung by it from time to time just to see what the “fuss” is, but generally speaking (and even in “retirement”), I’ve better ways to spend my day than scrolling through two-minute videos of—well, to my eyes, pretty insipid stuff.

On the other hand, I’ve long “dabbled” in social media platforms, and by dabbled, I mean I have established accounts, moseyed around, and ultimately “engaged” (some of you may (hopefully) even have noticed that I’ve been doing two-minute videos on LinkedIn for the past several months)—it’s just never been my “day job.” I’ve been on Twitter since 2008—LinkedIn even longer. Facebook (yes, I AM a Boomer, after all) since my kids got on it, and Instagram once Mr. Zuckerberg shackled that app to Facebook. I’ve read books on the subject of social media, attended conferences and training sessions (live and online) about how to use/leverage these tools—and still spent a lot of time over the past couple of decades waiting for the day when the actual response to a LinkedIn (or Twitter) post…mattered. I don’t mean the “likes” that Twitter shares, or the “impressions” or number of “followers” these platforms attribute to one’s account. They’re valuable metrics, of course—widely shared (and sometimes trumpeted). 

But as much as I enjoy social media—and relish the relationships that I have found and fostered there, in my experience it's still a bit of an echo chamber—one (still) frequented by people who are already “on” social media. Indeed, it seems for the very most part the people who are “there” are there to promote the use and value of social media to those not yet in that “club.” Not that you won’t find valuable content there—but plan sponsor clients? Participants?

That may be changing, of course. Published reports claim that TikTok has over 1.677 billion users globally out of which 1.1 billion are its monthly active users as of 2023. By any measure, that’s a lot of eyeballs. 

Setting aside the number (or quality) of those eyeballs, DOES TikTok really “hate” 401(k)s? Well, at least according to the article, it’s frequently cast as how the 401(k) menu limits your access to more “exotic” investments, and sometimes how hard it is to tap into those retirement savings. They even pillory the notion that you’ll eventually have to pay taxes on those withdrawals (glossing over the taxes you DIDN’T pay on the contribution and subsequent earnings)—one guy actually disparages (as one of FOUR reasons) 401(k)s as an effective retirement plan because it wasn’t INTENDED to be a retirement plan.  And yes, he has a product to sell/pitch.

That said, the “anti-401(k)” messages to be found on TikTok (and they still seem few and far between) are pretty much the same ones you find on any number of personal finance “guest contributors”—the type frequently crafted by individuals who would very much like to help you find your way to their “better” solution. Even on TikTok there ARE, of course, helpful messages as well—and a number of recordkeepers have already staked out some real estate on that platform.[i] But sadly, there appear to be no barriers or knowledge filters here, nothing to indicate that the purveyors of these solutions have, or should be accorded, any credibility on the topic(s) on which they hold forth. Rather, it seems that all you need is a short, snappy message, a rhythmic dance track in the background, and a steady camera (sometimes not even that) to garner attention.       

As noted above, I’ve been ON TikTok, but not established an actual account as I’ve been sensitive to the cautions about data sharing and privacy associated with that platform (though I’m only a tad less concerned about what American HQ-ed platforms do on that front). Overall, some parts of the TikTok “universe” may well be focused on sneering at the value of 401(k)s—and with audience numbers like those above—and a global reach, it’s easy to understand the appeal to any number of shucksters out there.    

But what I’d advise TikTok users to remember is P.T. Barnum’s observation…a man who knew something about shucksters—that there’s a sucker born every minute. 

- Nevin E. Adams, JD

 

---

[i] Though their followings seem to be pretty modest, and their messages pretty superficial.

 

A Day to Remember

It’s hard for me to believe that next week we’ll mark the 22^nd anniversary of the 9/11 attacks. 

Harder still to comprehend that there are individuals now in the workplace who weren’t even alive on that day, and others so young that they have no memory of it. Other significant dates on the calendar have names affixed to them, two decades later—and likely forever—this one remains simply “nine-eleven.” 

While the events of that day remain seared in my memory, human beings are, for the most part it seems, wired to forget, to “move on,” from our worst memories. Not that that’s necessarily a bad thing, though this is one day I never will.   

In fairness, that wasn’t a “normal” day for me. I was flying—cross-country—on an American Airlines flight to speak at a conference in California. I learned about the attacks while I was running from one terminal to another in Dallas, Texas. Oh, I had out of the corner of my eye wondered why everyone was gathered around those airport TV monitors so early on a Tuesday morning—but it wasn’t until my wife called on my cell (while I was running) to make sure I wasn’t on one of those planes…that I learned the awful truth.

I wasn’t on those planes of course, though I might well have been.[i] There were, after all, a couple of hundred individuals that boarded early flights just like mine that had no comprehension as to how that day would end, not to mention those already at work in the World Trade Center and Pentagon. And of course, there were the 343 members of the New York City Fire Department and 71 law enforcement officers whose work took them to the World Trade Center that fateful day. A day they went to work—but never came home. 

On not a few mornings since that awful day—and pretty much every time I’ve boarded an airplane since—I’ve thought about how on that horrible day so many went off to a normal day of work, how many boarded a plane—as will many on this anniversary—not realizing that they would not get to come home again. How many sacrificed their lives that day so that others COULD go home. How many put their lives on the line every day still, here and abroad, to help keep us and our loved ones safe. Let’s face it—planning for a long retirement is a laudable goal—but sometimes those plans are… “interrupted.”  And more often than not by things as “normal” as a traffic accident, a drunk driver or an unanticipated heart attack.       

We take a lot for granted in this life, perhaps nothing more cavalierly than that there will be a tomorrow to set the record straight, to right wrongs inflicted, to tell our loved ones just how precious they are.

As we remember that most awful of days—let’s also remember to take a moment to treasure what we have—and those we have to share it with still.

- Nevin E. Adams, JD

 

---

[i] I’d spend the next three days living out of a hotel room in Dallas, with flights all cancelled for the foreseeable future, and me unable even to find a car to rent—literally separated from home and family by hundreds of insurmountable miles for three interminably long days. As that long week drew to a close, I finally was able to acquire a rental car and begin a long two-day journey home. During that long, lonely drive, I had lots of time to think, to pray, and yes, to cry. Most of that drive is a blur to me now, just mile after endless mile of open road. I’ve shared before the story of that drive home—where, somewhere in the middle of Arkansas, a large group of bikers was coming up around me—the kind you generally aren’t happy to see coming up behind you on a lonely, deserted highway. But unfurled behind the leader of that group on his Harley was an enormous American flag. And at that moment, for the first time in 72 hours, I felt a sense of peace—the comfort you feel inside when you know you are going…home.

Happy Birthday, ERISA!

Pensions were not on my mind in 1974, certainly not on Labor Day of that year. 

While I was pondering my new college textbooks (and trying to figure out how I was going to pay for $.55/gallon gasoline), President Gerald R. Ford, less than a month in that role—and, appropriately enough on Labor Day, signed into law the Employee Retirement Income Security Act of 1974—better known to most of us as ERISA.

Little did I know at the time that that law—and the structure it provided to the nation’s private pension system—would, in the years to follow, play such an integral role in my life. And yet, in a wide variety of positions, and a handful of different organizations and locations, from that first college internship in 1977 to—well, today—retirement has been my career.

ERISA did not create pensions, of course; they existed in significant numbers prior to 1974. A major motivation for ERISA was the termination of the Studebaker[i] pension plan for its hourly workers in 1963.  At the time, the plan covered roughly 10,500 workers, 3,600 of whom had already retired and who—despite the stories you sometimes hear about Studebaker—received their full benefits when the plan was terminated.

However, some 4,000 workers between the ages of 40 and 59—didn’t. They only got about 15 cents for each dollar of benefit they had been promised, though the average age of this group of workers was 52 years with an average of 23 years of service (another 2,900 employees, who all had less than 10 years of service, received nothing). And so, armed with the real life example of those Studebaker pensions, highlighting what had been a growing concern about the default risk of private sector plans (public sector programs weren’t seen as being vulnerable to the same risk at that time)—well, it may have been a decade before ERISA was to become a reality, but the example of Studebaker’s pensions provided a powerful and on-going “real life” reminder of the need for reform.

In fact, ERISA was designed to regulate what was there and would yet come to be—to protect the funds invested in those plans for the benefit of participants and beneficiaries with a consistent set of federal standards. And, as part of that protection, to establish the Pension Benefit Guaranty Corporation (PBGC).  As President Ford said at the time, “It is essential to bring some order and humanity into this welter of different and sometimes inequitable retirement plans within private industry.”

Has ERISA “worked”? Well, in signing that legislation, President Ford noted that from 1960 to 1970, private pension coverage increased from 21.2 million employees to approximately 30 million workers, while during that same period, assets of these private plans increased from $52 billion to $138 billion, acknowledging that “[i]t will not be long before such assets become the largest source of capital in our economy.” Today, that system has grown to exceed $12 trillion (and another 11.5 trillion in IRAs, much of which came from that private retirement system), covering more than 97 million active workers (142 million in total) in more than 746,000 plans. 

The composition of the plans, like the composition of the workforce those plans cover, has changed significantly over time. While much is made about the perceived shortcomings in coverage of the current system, the projections of multi-trillion dollar shortfalls of retirement income, the pining for the “good old days” when (people act like) everyone had a pension (that never really existed for most), the reality is that ERISA—and its progeny—have unquestionably allowed more Americans to be better financially prepared for a longer retirement. Indeed, the Labor Department recently reported that plans disbursed $266 billion more than they received in contributions[ii] during 2020.

Forty-nine years on, ERISA—and the nation’s retirement challenges—may yet be a work in progress. But it’s hard to imagine American retirement without it, and the individuals who gave it “birth.” 

Happy birthday, ERISA!

- Nevin E. Adams, JD 

---

[i] I’d wager that a majority of Americans have never even heard of a Studebaker, and the notion that a major U.S. automobile maker once operated out of South Bend, Indiana would likely come as a surprise to most. The Studebaker brothers (there were five of them) went from being blacksmiths in the 1850s to making parts for wagons, to making wheelbarrows (that were in great demand during the 1849 Gold Rush) to building wagons used by the Union Army during the Civil War, before turning to making cars (first electric, then gasoline) after the turn of the century. Indeed, they had a good, long run making automobiles that were generally well regarded for their quality and reliability (their finances, not so much) until a combination of factors (including, ironically, pension funding) resulted in the cessation of production at the South Bend plant on Dec. 20, 1963.

[ii] Though in total, contributions (DB and DC) increased by 3.2%, to $694.2 billion.