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Saturday, July 4, 2009

Endings - Kennedy v. DuPont and its Progeny, and Lynyrd Skynyrd; Batman Redux

Kennedy and the Law of Unintended Consequences

When I first saw that Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 497 F.3d 426 (5th Cir. 2007) was making its way to the Supreme Court, I didn't understand all the controversy. There, a participant died leaving his former wife, Liv, as the beneficiary, notwithstanding a pretty clear intent, in my view, that she not continue to be the beneficiary.*

I figured Kennedy would be an opportunity for the Court to straighten out all those silly lower courts and reaffirm that ERISA means what it says - that the QDRO is the only way in which ERISA benefits may be moved around in the domestic-relations setting. Here, hadn't the Fifth Circuit actually gotten it right? After all, the Court had already forcefully validated ERISA's preeminent status in the domestic-relations area with Boggs v. Boggs, 520 U.S. 833 (1997). Right?

Well, wasn't I surprised when in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 129 S. Ct. 865 (2009), the Court held that the QDRO rules were irrelevant to the case, and that the case is resolved straightforwardly under ERISA's "plan documents" rule in Section 404(a)(1)(D) thereof? The funny thing was that, after reading the case and actually taking the time to try to understand the underlying law (silly me), it seemed apparent to me that I had been quite wrong and that the Court indeed got it right. See also my prior post on Kennedy and certain other recent cases.

Whether or not Kennedy is ultimately defensible or right or obvious or whatever, it now seems like its impact may be quite substantial. Estate of McCalip, No. 08-12806 (S.D. Mich. June 30, 2009), is demonstrative. There, a former spouse had walked away from life-insurance benefits in a domestic relations order, but had been maintained as the beneficiary vis a vis the plan. While the apparently intended beneficiary may have had a shot at some kind of claim against the former spouse, the benefits, at least in the first instance, went to such spouse.

This result seems unfortunate and frightening, regardless of if it's correct, especially since by hypothesis the deceased participant's wishes are frustrated without any ability of the participant to correct matters. DomRel lawyers are used to viewing divorce decrees as ineffective on pensions, because of the QDRO rules. I doubt they're used to the same regarding life insurance and similar benefits. There's bound to be a bunch of unchanged designations out there. Hmm . . . . I wonder whether there needs to be some kind of coordinated and extensive educational effort in the DomRel world to impress upon the attorneys in that world the utter importance of having participants in troubled relationships attend to their beneficiary designations - not only in the pension area, where the issue's been more front-and-center by virtue of the need to deal with the QDRO rules, but also in the welfare area, which has proceeded in more of a stealth manner over the years when it comes to these issues.

Lynyrd Skynyrd and Other Endings

While on the subject of unhappy endings, and with no disrespect intended regarding the true and horrible tragedy that befell them, Lynyrd Skynryd comes to mind here regarding a more light-hearted issue - the . . . ending . . . of their seminal, even momentous, song, Free Bird. As great as Free Bird is (lighters on!), the fade at the end is frustrating to me, especially in light of the great ending in the live version. Well, for those of you who agree, you need to listen to what they call the "outtake version," which appears on Skynyrd's Innyrds. The ending there, which shadows the approach in the live version, brings it all the way home, instead of (inexplicably) fading into oblivion too soon. If you're going to get up to nine minutes and change, why the heck not go to 10 and change if there's great stuff there (which there is)?! See also Lynyrd Skynyrd, Pronounced Leh-Nerd Skin-Nerd (2001 remaster) (including an even longer "live demo version"). You'll never volitionally choose the "album version" again.

Postscript - Batman Redux

Been watching The Dark Knight on HBO. Heath Ledger was even better than I remember. See my prior post on The Dark Knight, which followed my maiden post, also with a Batman spin. He didn't even have to be talking; his posture alone in scene after scene was spectacular. And that's to say nothing of his expressions. It is unimaginable what the world lost when it lost him - and we'll never know, because the "sliding door" of this timeline closed before he died simply is not one which we will ever get to observe. See also my post with a reference to Sliding Doors and the prior post with more of a discussion thereof.

. . . and . . .

With the utmost respect, R.I.P. - Farrah Fawcett, Michael Jackson, Billy Mays, Ed McMahon.

* Maybe Nilsson would have said that he couldn't . . . ahem . . . Liv without her? - so many double entendres, so little time. (By the way, ya gotta love this area, don'tcha? - Carmona v. Carmona, 544 F.3d 988 (9th Cir. 2008), for example, deals with a dispute between a participant's eighth and ninth wives.)

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