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Sunday, May 28, 2023
A Grab-Bag of Recent References - Guardians, Jeopardy, and Pearls/Swine
Monday, March 13, 2023
Death Benefits at the Oscars
ERISA covers certain death benefits. Slasher films and zombie movies involve death (and undeath, if you will). There, connection made. (This isn't the first time I've used an arguably attenuated (to say the least) ERISA connection to post about things that realllllly interest me.)
In watching the Oscars, I came upon two winners that brought me back to all-time Favorite movies of mine. To wit:
- As I've said, the Zack Snyder remake of Dawn of the Dead gets my vote as the Best Zombie Movie of All Time. And now I get to see Sarah Polley win a screenplay Oscar!
- As I've said, John Carpenter's Halloween soundtrack is quite simply unsurpassed. More generally, the movie's utterly iconic status is indisputable. And now I get to see Jamie Lee Curtis go from acting in her very first role to getting an Oscar!
Much of the evening focused on movies, performances and other things that (with the exception of Brendan Fraser's (say "razor") turn in The Whale) didn't quite do it for me. So you go ahead and pay attention to the various ancillary moments from the evening, like Best Director, Best Picture, etc. I'll just focus on the things that interest me.*
Thursday, January 19, 2023
Six Degrees of Kevin Bacon Makes Its WIld Way to ERISA
Sunday, December 25, 2022
Xmas Music, Etc. - 2022 Edition
Merry Christmas! In the past, I've done some ERISA and non-ERISA posts with some Holiday music and other Holiday-themed nuggets. Sometimes, I go for the obscure. To wit:
- 2020 (this year's Holiday gift from Messrs. Kurstin and Grohl starts here) (special attention to Night Seven please)
And here are some new entries for you:
- from Sershen & Zaritskaya (as then known) to Daria and the others in (the) Ukraine, be safe and well) - here and here and (with Holocene) here
- from Augie Bello - here
Merry and Happy ChristmaHanuZaa, and Happy New Year!!
Tuesday, December 20, 2022
401(k)s in Jeopardy?!?
As noted previously, IRAs have made their way onto Jeopardy. Now, while IRAs got their own column all to themselves, 401(k)s apparently (with apologies to Weird Al (and indirectly Greg Kihn)) didn't want to lose at Jeopardy and wanted their day in the sun, even if just for one answer. So, under Words with Greek Letters, for $800, we get: "3M, B-52 & 401(k) all have this quality, which begins with two Greek letters". (I might've preferred "B-52s".) The question - What is ALPHA/NU/meric? Not the most dramatic ERISA reference ever, but I'll take what I can get.
Saturday, December 3, 2022
Tim Conway's 35-Year-Old Orphan as . . . Independent Fiduciary?!?
Friday, October 21, 2022
Shark Tank and 401(k)s/IRAs
There's a disturbing aspect of Shark Tank, which is generally a great show (but may have Jumped the . . . ahem . . . Shark* when it did it's live show (oh my, about as bad an hour of television, particularly from a good/great show as you'll ever see)). The aspect in question involves - you guessed it - retirement savings. I'm talking about the prideful statements from some participants that they've wiped out their 401(k) and IRA savings in order to fund their respective shoot-the-moon ventures. And then we have to watch the Sharks sit there and droolingly applaud the participants' purportedly wonderful commitment to entrepeneurship.
OMG get a grip. This reminds me of all of the entertainers who, having indeed hit the lottery on their one-in-a-million dreams, then go and encourage their fans to do take similar risks. "Yeah, go and quit your job; go and ditch your families; go and mutilate your bodies - follow your dreams, just like me!" Yeah (with acknowledgment to Jon Levitz), THAT's the ticket. Except here's the thing: you, oh successful entertainer, were either talented or lucky enough to get where you got. The odds are that any particular adoring fan is not so much so.
So, coming back to Shark Tank, we have a bunch of super-rich people, who are talented or lucky enough to have gotten there, encouraging random potentially untalented and unlucky people to wipe out their tax-subsidized retirement savings in order to take a chance on the next Scrub Daddy. And, maybe worse, some of these people indeed succeed, so the seductive aspect of the encouragement to wipe out tax-advantaged savings in a way that is irreplaceable (at least, as to the tax consequences) ratchets up still more. Sorta like where you're at risk for being addicted to gambling, and then you're neighbor wins a million at the slot machine.
This spectacle is, in a word (or two or three), a disgusting one. Look, the federal government devotes trillions of dollars in tax subsidies (through tax deferral) to encourage people to save for retirement and to encourage employers to help them do so. Why? Because this is important stuff. If retirement assets are not available to people as they retire they could, at a time where no other employment is available, literally starve. This potential eventuality would not only be a human tragedy, but could leave these people as wards of the state, which is a result that the government surely doesn't want.
So that's why it's so hard to withdraw these assets prematurely without penalty. The idea is that this money is there for retirement, not for some other (even if valid) propose. The rules are tight. Hey, the government isn't devoting trillions of dollars in subsidies to get you to build up generic savings. The idea is to protect your retirement assets. There are exceptions for real hardships, because at some point penalty-free access really is appropriate. But, as general matter, this is dangerous stuff.
I remember back when the sub-prime crisis hit and people were hurting in the extreme. McCain and Obama were running for President, and both, yes both, we're decrying the cruelty of a system that made it hard for people to get to their own (imagine, their own) savings to help them through. The basic tack was to dump on a retirement system that was inexplicably allowing people to suffer notwithstanding the existence of supposedly available resources. So when the election was over, the rules would obviously be reformed to open up access, right? I mean, both political parties were all over this (how often do you see THAT?), and so it's a no-brainer, right?
And then Obama wins, and, I suspect, policy people (one in particular) in the new administration, said, "Whoa, Nellie. You can't do this. This money has to remain in people's accounts for their retirement. Duh." And so what happened? Essentially nothing. Thank goodness. We've just seen the play out again with the COVID crisis. But in COVIDLand the situation became incredibly politicized and they did eventually wind up allowing early penalty-free access. However, even in this case, if you look at the way the exceptions were ultimately drawn, they were much more narrow, temporary and all-but-unusable than looked like might have been the case when politicians early on climbed up on their soapboxes and started decrying the supposed cruelty of the retirement system.
Essentially, you're killing someone with kindness. Sure you're helping them through hard times now, but maybe they could've struggled through and make it. However, if they lean on early withdrawals of retirement assets, then, when later in life, when they have no chance to replenish their funds, and when they look around to figure out how they're going to eat and otherwise live, there's nothing there. Gee, where'd it all go? Oh, about 25 years ago you decided to use it on other stuff; good luck with the rest of your life.
So you go, Shark Tank people. You go and encourage someone to rip through retirement savings in order to market the next Hula Hoop or Scrub Daddy or whatever. Just don't take time away from your estate to notice that the person, after failing, might well be homeless (or whatever) later in life, with no financial means of support. Yeah. Sure. Right. THAT's the ticket._______________
* Thank you, John Heim.
Tuesday, October 11, 2022
SNL and 401(k)s - SNAP!
Sunday, August 14, 2022
Breaking Bad, Breaking Legs, Breaking HR Rules, Breaking My Heart (just a bit)
So a central part of my life over more than a decade is about to end. On Monday, we get the last episode of Better Call Saul. The Breaking Bad universe has given us historically incredible television, and I await Monday with a strange combination of anticipation and dread. What will the ensuing weeks look like after I have nothing more from Vince G.?!?
Friday, August 5, 2022
A "Search Party" Finds the Pillaging of an Employee Benefit Plan
Sometimes, ya gotta listen really carefully to find ERISA references in unexpected places. In the once-promising Search Party, on HBO Max by way of TBS, the search has indeed turned up such a reference.
The sad thing, for anyone who's watched the first two seasons before HBO took it over, is how this tight clever little series went so completely off the rails, maybe about as much as anything I've seen. Season 3 was obviously different, from everything from affect and tone to even cinematography; Season 4 was worse; and Season 5 became indescribably nuts.
Now, sometimes, as Bilal Hazziez of:90 Day Fiancé fame said, crazy is not always bad. Here, however, crazy was just crazy. And, hey [BIG SPOILER ALERT - read NO farther if you don't want a BIG spoiler], this comment is coming from someone (me) who . . .
. . . likes zombies!! On the other hand, maybe Search Party itself, in "Kings" (also from Season 3), provides a responsive parry to my critique. There, we get Jeff Goldblum's Tunnel Quinn (Jeff Goldblum?!?) uttering: "[P]eople confuse ambition for psychopathy. So maybe you're not crazy." Could be one of the better lines of all time!*
Anyway, here's the ERISA reference to which my NeverEnding search for ERISA references in pop culture recently led me:****
Chantal Witherbottom - Wait, what did I do?
FBI agent - You're being charged with the following felony counts: securities fraud, investment-adviser fraud, mail fraud, wire fraud, international money laundering to promote specified unlawful activity, money laundering, false statements, making a false filing with the SEC, theft from an employee benefit plan -
Chantal - I don't remember doing any of that!
* Maybe even has an ADA-type quasi- ERISA angle?
** Don't remember stealing from an employee benefit plan?!? Who do you think you are, Jimmy Hoffa?
Saturday, July 2, 2022
SNL's Hobson's Choice - 401(k) Contributions or Scratch-Off Lottery Tickets
I happened to find my way to an old Saturday Night Live bit, and was surprised to see my practice area find a way to wheedle its way in. Leave it to SNL to address in a resonant way the conundrum involving the advisability of making 401(k) contributions and the reality of needing current cash. While my own view is that you should beg and borrow to increase your 401(k) contributions, here's another view, courtesy of SNL's utterly hilarious Black Jeopardy:
Sasheer Zamata's Keeley: [L]et’s stay with "You Better" for $400.
Kenan Thompson's Darnell Hayes: Okay, the answer, your job wants to take $40 a month out of your check for a 401(k). [buzzer] Shanice.
Leslie Jones' Shanice: What is, "You better give me that money so I can buy me some scratch offs"?
Darnell: Yeah, you d**n right. You d**m right. I mean, why do I need a retirement plan when I got Monopoly Millionaire’s club?
Tom Hanks' Doug: Yeah, I play that every week.
Darnell: Well, that’s good for you. . . .
I found myself laughing out loud throughout the skit at various points, but I would really commend you to watch the interplay between Thompson and Hanks when Darnell goes to shake Doug's hand. (Hopefully, the PC police will allow me to point some of this stuff out.) Anyway, enjoy . . .
Saturday, December 18, 2021
Some "Cause" for Checking Out a New "Urban" Legend
Friday, December 10, 2021
Can I See the Baroness von Hellman's Form of Employment Contract?
Sunday, December 5, 2021
A Metal Christmas Via the . . . Chipmunks?
Monday, November 29, 2021
Maxwell's Not So Smart
As we head into the Ghislaine Maxwell trial (it certainly has been quite the trials arc we're in), let us not forget the connection (in addition to that little Epstein connection) to pension fraud.
Ghislaine's beloved father, Robert, ran such enterprises as Macmillan Publishers, the Daily Mirror and the New York Daily News. After taking on large amounts of debt and experiencing a series of failures, he took to moving money around, and proceeded to loot £460m from the Mirror Group pension funds, resulting in huge reductions in pension payments.
He eventually was reported missing from his yacht in 1991, and his body was discovered in the Atlantic Ocean. Maybe an accident; maybe a suicide (sound a little familiar?). His sons eventually declared bankruptcy but were acquitted of wrongdoing. Various other rollicking family hijinks are the subject of a report here. Quite the ol' Silver Hammer for the Maxwell clan!
And now, the Ghislaine trial. As with so many things - yes, you guessed it - it all (sorta) started in the pension world.
Enjoy the trial!
Monday, November 22, 2021
Control: Let's Take It from Britney to . . . VCOCs?
OK, I admit it. I like Britney Spears. I like her music, and she seems (or at least at one time seemed) very nice. I thought South Park nailed the feeding frenzy that surrounded her (gee, South Park getting something exactly right; what a shock), and I even felt an affinity to the Leave Britney Alone guy.
The thought of family and hangers-on trying to control her really bothered me, as did her descent that followed. I guess these stories get to me - I was (and there's no sarcasm here) also pretty broken up about the whole Anna Nicole Smith thing. Oh well - a cross to bear, I guess.
So I was really quite happy to see Britney's conservatorship end. The end of this tragicomic* and horrifically public spectacle was a welcome end to the conservatorship chapter of her life, and we'll see if she's able to shed her anger and recapture herself.
All of which inexorably now brings me to, of course (!), the topic of VCOCs. Let's continue to talk about control.
A pet peeve of mine involves the question under the Plan Assets regulation of whether, under the vanilla opco rule (the first sentence of 29 C.F.R. § 2510.3-101(c)(1)) and its "majority owned" language, a parent must own a majority of the value, the vote or both of the operating subsidiary. To me, it's a matter of value, not vote, and here's my thinking:
- The DOL seemed to be looking for a simple, non-technical approach to vanilla opcos, an approach that's in pretty stark contrast to the one used in respect of VCOCs and REOCs. In the base case for vanilla opcos, the plan is investing in a widget or services company that's just going about doing its business. While the majority-ownership thing could cause unexpected hiccups in some circumstances (where, for example, there are material subs. that are not majority owned), the ordinary expectation is that when the plan makes an investment in a widget or service company, the company's assets won't be plan assets that are subject to ERISA. I don't think that the rules are looking for the plan fiduciary to call up the management of the target and start asking odd questions about the affiliated group's control structure. Thus, for example, the preamble to the final reg. homes in on the factual nature of the analysis and the "vast number of different activities" in which companies engage; and states that, "other than with respect to [REOCs] and [VCOCs] [!], it would be impractical to provide detailed guidance concerning the types of activities necessary for characterization as an operating company." (I take the point that the DOL was focusing on the nature of business "activities" rather than on organizational structure, but I would suggest that, consistently with the brevity of the governing rule in the first sentence of -101(c)(1) without any meaningful additional regulatory color, there's a general and palpable tilt towards a simplistic and streamlined regulatory approach to vanilla opcos.)
- I think it's worth further comparing the general vanilla opco rule to the VCOC/REOC rules. VCOCs and REOCs are different from vanilla opcos at the core. They are creatures of detailed regulatory provisions that serve as ERISA-specific exceptions (and, apparently, begrudgingly included exceptions) to being covered by the full panoply of ERISA's rules. The VCOC/REOC exceptions generally have no meaning outside of the plan-assets reg.,** and were apparently included by the DOL only begrudgingly. I frankly think that what I perceive to be an analytical disconnect here is that ERISA lawyers are often only really unpeeling the analytical onion regarding vanilla opcos in the context of exploring whether the opco is a qualifying VCOC investment. So, the basic context in which the opco is being examined is marked by the control-type and highly detailed thinking surrounding VCOCs. And then I think that color finds its way over to the consideration of the first sentence of -101(c)(1). But I would respectfully suggest that that's missing the forest for the trees. The vanilla opco rules just don't have all of this trouble-making baggage. Again, in the base case, the plan is investing directly in a company that's just going about doing its business; there's not VCOC at all. The reg. protects that company and the people running it, totally separate and apart from whether that company could be tucked under a VCOC. Thus, the single sentence that governs vanilla opcos has fundamental import and meaning totally outside of the regulatory regime for VCOCs and REOCs, and, for me, should be applied intuitively, straightforwardly and simply, without the laying of complicated and potentially treacherous control notions over basic concepts of economic ownership.
- With that said, and taking a step back, I would argue that, intuitively, ownership for these purposes is economic ownership. If some asks me if I own something, I look to whether or not I have the economics of the thing. Indeed, engrafting a control requirement under the "majority owned" rule could have the perverse consequence of rendering a parent not an opco, even where that same parent could be a VCOC. In this regard, let's say (see also the 95-04A discussion below) an entity owns 99% of an operating subsidiary as an LP. If the entity gets management rights, it could be a VCOC. Are we really suggesting that the very same entity, which could be a VCOC under the specific and delineated requirements applicable to hybrid operating companies / investment funds, can't be a vanilla opco, under rules where the bar is so much lower?***
- Maybe most significantly in respect of the structure and text of the reg., the DOL darn well knew how to worry about control-type considerations in the operating-company rules of the reg. Indeed, arguably at the very heart of the VCOC/REOC rules are the rights "to substantially influence"**** downstream activities. It would have been so easy for the DOL to establish express control/influence requirements in the first sentence of (c)(1), but the DOL rather proceeded with a "majority own[ership]" approach. I think that reading a control requirement into that generic language is unwarranted.
- Under 95-04A, I can run a VCOC through a wholly-owned sub., and have the sub. essentially be completely disregarded. Footnote 8 of the AO expressly contemplates a GP not owned by the VCOC. So the DOL is allowing an entity controlled to no extent by the VCOC (so long as there is mere substantial influence) to be used as a way of having the VCOC make qualifying investments, and yet an entity that is a 99% LP in an operating entity is somehow not an "operating company"? I'm not saying it's steel trap, because the VCOC-related considerations do not foursquare line up with the considerations surrounding vanilla opcos, but I would suggest that the 95-04A footnote pushes you away from control concerns, except where the control-related requirements are specified expressly in the rules.
For me, some ERISA lawyers who day in and day out deal with complicated control/influence issues under the VCOC/REOC rules may be making unnecessary mischief under a simple rule (in the first sentence of -101(c)(1)) for run-of-the-mill operating companies. I would suggest that, if I own most of the economics of a company, I, simply put, majority-own the company. Sometimes, the obvious and straightforward answer really is the right answer.
Sunday, November 21, 2021
Gary Gulman, . . . ADA Expert?!?
So we just saw Gary Gulman earlier tonight. We've been fans of his for what seems like centuries, ever since his initial appearances on Last Comic Standing. [spoiler alert - I'm about to ruin a joke] Hooked ever since his quip that what he wants for Hanukkah is Christmas. Genius. When I see that he was the comedian heckled by Joaquin Phoenix's Arthur Fleck in Joker I could not believe it. And his HBO entry, "The Great Depresh", was remarkable for its combination of depth and humor.
[spoiler alert - I'm about to ruin a joke]
So now he launches into this bit about UFOs and IFOs and FOs and flying saucers, and he's remarking that, notwithstanding the talent of aliens to travel across the galaxy, they can't seem to do better with their flying saucers than slowly descending ramps. He then noted that, well, the ramps are ADA-compliant.
So he's an ADA expert, too! Who knew? I mean, I knew he was worldly and smart (so many grammar jokes; right up my alley), but . . . the ADA?!? Cool.
Saturday, November 20, 2021
Pension Investing for "Succession" Planning
Friday, November 12, 2021
ESPN's Max Kellerman on Aaron Rodgers and HIPAA
During the November 4, 2021 installment of ESPN's Keyshawn, JWill and Max, we get a well-placed HIPAA reference from Max Kellerman regarding the Aaron Rodgers debacle: "[Rodgers] hides behind 'it's a personal [thing]'. We're not talking about HIPAA rights everybody. This is a public pandemic. It's a health crisis, a public health crisis." Spoken like a true HIPAA wonk, Max.
Wednesday, November 10, 2021
Body Heat - Not About ERISA but About . . . the Rule Against Perpetuities?!?
Previously, I've pointed out movies that are ERISA-centric, with my favorite example being Wall Street (a pension-overfunding movie*). See also a follow-on post (focusing on Casino). Well, I am now pushed to venture out into the non-ERISA world, as my friend Phil S. has pointed out to me that Body Heat** is a movie that is about . . . are you ready? . . . the Rule Against Perpetuities!!!!*** It turns out that the estate-planning mistake in the movie centered on the Rule. Wow.
In terms of my own fascination with the Rule, when I was in law school my T&E professor cited us to the case of Lucas v. Hamm (thanks to Jed B. for knowing the long-forgotten citation), which in effect stands for the proposition that, since negligence is a standard that harkens back to what the reasonably prudent person might do, and that in turn arguably looks to how the general populace (or maybe a subset thereof) acts, mistakes relating to the Rule Against Perpetuities don't rise to the level of legal malpractice because: NO ONE understands the Rule Against Perpetuities! Hilarious - absolutely hilarious.
Sorry for the non-ERISA distraction here, but this is just too good to pass up.
Tuesday, November 9, 2021
Working at a Pension Fund Goes Straight into the Toilet at SNL
Sunday, April 18, 2021
From CIGNA v. Amara to . . . Leo Moracchioli?!?
Some things confuse me. Like how I and the rest of the world (the DOL excluded) could've missed CIGNA v. Amara's eventual surcharge solution as the silver bullet to address ERISA's theretofore mission-critical missing-remedy conundrum. Too late for Mrs. Amschwand, but still better late than never, eh?
Then there's - how it can be that Leo Moracchioli is not recognized by the world at large as a, if not the, top rocker on the scene today? I mean, I know his thing is covers rather than originals (more on this in a moment), but there are big-time artists all over the place who don't write their own stuff. And, while I know the turn of phrase is hackneyed, the extent to which he makes other people's stuff "his own" is a thing to behold. His talent level on multiple instruments (every freakin' instrument?) is utterly stratospheric (a trait echoed by certain other members of his Frog Leap band (when he deigns to play with others)).
(OK, OK, I know the Amara/Leo connection is tenuous or maybe even altogether nonexistent, but (i) as I've said, the case is my favorite case and so I'll mention it whenever I get the chance, and (ii) I was going to find a way to talk about Leo no matter what.)
Just for starters, check out Zombie, Africa, Sultans of Swing, What's Up, the Pok[é]mon Theme (yes, that's right; trust me), House of the Rising Sun, Kiss (need to find that one on Facebook for some reason), Thriller, WAP (but be VERY careful with this one and do not not click if you're sensitive or if you have any reasonable sensibilities at all), Tragedy (for you Korn fans) and Hello, to name several from this seemingly endless wellspring. Heck, I don't even like some of these songs, and yet here they're just phenomenal. And, by the way, for those haters who are really dug in on the covers/originals thing, check out the Africa outro, an original that might be one of the finest instrumentals you'll ever hear. (While we're at it, for anyone who's interested, another crazy-good cover team is Sershen & Zarítskaya.)
One disclaimer/warning - once you go down this treacherous path, prepare to give up the rest of your day, as the Leo rabbit hole pretty much has no bottom.
Rock on . . .
Thursday, April 15, 2021
Nobody Can Beat a 401(k) for the Russian Mob (except maybe Bob Odenkirk)!
Tuesday, March 23, 2021
From Spic and Span to SPAC and Spam - Maybe With an ERISA Angle?
Well, the flavor du jour is clearly special purpose acquisition companies ("SPACs"). It's becoming pretty apparent they they raise a variety of issues on the executive-compensation side, and maybe (depending on the facts) even an issue or two on the ERISA "plan assets" side.
So as a result all I'm hearing is SPAC SPAC SPAC SPAC. Here a SPAC there a SPAC everywhere a SPAC SPAC.
Which got me to thinking. Can we get Monty Python or some clever and capable third party (fair use?) to recut the incessant repeats from the Spam sketch (which, as you may or may not know, is. the reason that people refer to junk email as "spam"), but substituting "SPAC" for "Spam"? SPAC SPAC SPAC SPAC; SPAC SPAC SPAC SPAC; etc.*
Just a thought . . .
* We can always clean it up later with some SPAC and Spam - ooh, sorry: Spic and Span.
Monday, January 18, 2021
Tom Brady and Aaron Rodgers Are . . . Diversified 401(k)s?!?
I had to laugh while reading the yahoo!sports commentary on the wins by the Bucs and Packers that have set up a truly epic Conference Championship battle between Tom Brady and Aaron Rodgers.
The set-up for the piece is:
Somewhere behind that collective Champagne pop for the next generation, Tom Brady emerged as the aging “all-in” gamble of a hapless Tampa Bay Buccaneers franchise. And further north, Aaron Rodgers absorbed the Green Bay Packers spending a first-round draft pick on a player who is being groomed to eventually take his job. On Sunday [January 24, 2021], Brady or Rodgers is going to advance from the NFC title game with a shot to break up an NFL party that seems to be trying hard to rage on without them. Regardless of whether the AFC title game produces the Kansas City Chiefs and Mahomes or the Buffalo Bills and Allen, the quarterback storyline is set.
Super (if you'll forgive me) exciting. For me, the Tom Brady storyline is particularly captivating. But whatever your affiliation, there's a truly human element here. 43 (43!) today is just simply not what 43 was yesterday. Even Brees is over 40, and that barely even got noticed because of Brady. (A hilarious take on this can be found with the Blanda/Brady comparison found here.)
So why this post on this site? Well, after the piece's set-up, there's the following passage:
It’s then versus now, with Brady or Rodgers representing the final gasps of a golden era, and Mahomes or Allen repping a budding era of “everything” quarterbacks.
Youth against wisdom.
Porsche 911s against diversified 401ks.
Decades of big-game experience against big bodies, bigger arms and crazy off-script plays.
So Brady and Rodgers are "diversified 401ks"! I had no idea that a core element of my practice area is so coooooooool. Thanks for that, Mr. Robinson! (And I'll try to forgive you the unfortunate reference to the Porsche 911 as opposed to the far preferable reference to the much more desirable Chevrolet Corvette.)
This is turning into quite the postseason - enjoy the upcoming games!
Thursday, December 24, 2020
Bad Cyber Actors Find Their Way to Hollywood ERISA Plan
One of the main ERISA plans for our friends in Hollywood is allegedly at the center of a new cyber breach. The complaint in Gilbert v. AFTRA Retirement Fund sets forth a number of legal claims.
I would note, given some of the data-related ERISA noise making its way into the discourse, some of which comes out of the Vandy settlement agreement (particularly Section 10.9 thereof), that the complaint makes no ERISA allegations. Putting aside for the moment the question of whether that omission is a thoughtful one, I want to take this opportunity to log my own view that any suggestions that plan officials have somehow mishandled "plan assets" if and when data is misused are off-base. While there may or may not be fiduciary aspects to the way the plan is administered in respect of confidential data, I think that the assertion that the data itself is a plan asset is a bridge too far (sorry - needed a movie reference here), and would result in much analytical mischief. Just sayin' . . .
Monday, December 21, 2020
A Holiday Gift from Dave Grohl and Greg Kurstin
Holiday time has returned, and I want again to do a post devoid of an ERISAn theme. In the past I've focused on my own favorite Xmas songs and have even tried to create my own version of a Holiday season.* Now, once again, back to music.
This year, Dave Grohl, working with Greg Kurstin, has bestowed upon us a Hanukkah gift: The Hanukkah Sessions! I honestly think that Grohl may be the single most all-around talent that rock has ever seen.** One can only wonder whether he would have emerged like he has were it not for Nirvana's tragic and untimely demise.***
Anyway, check out the eight offerings. In particular, I'd commend you to Sabotage and Rock and Roll, which bookend the presentation. I'm blown away that he included those on this short list. Sabotage is a Top-10 song for me, and Rock and Roll is a Velvet Underground treasure that more people need to hear.*****
Thank you Dave Grohl, for this***** and for everything else you do.
* What? The David/Seinfeld team can do Festivus and I can't do Snohanumas, just because they're creative and talented and I'm not?!?
** And I guess that Kurstin is the latest Mark Ronson. Guys like that are just incredible.
*** My own personal Grohl faves are All My Life and No One Knows. For me, the SNL performance of All My Life is as good as anything that's ever been, and the drums on No One Knows are as good as it gets. And the way he brings up audience members to play at his concerts is flat-out sick. See, e.g., the "Kiss Guy" performance.
**** Check out what I think is the song's best treatment on the incredible Rock n Roll Animal. And while we're on the topic of the VU's Rock and Roll, let's review the Best of . . . Amputee Songs. Here are three songs, in no particular order. Rock and Roll is clearly on the list ("Despite all the amputations, you know you could just go out and dance to a rock 'n' roll station."). Yet another Lou Reed song appears here as well: She's My Best Friend ("Ah, here's to Mullberry Jane (here's to Mullberry Jane). She made jam when she came. Somebody cut off her feet. Now, jelly rolls in the street."). Then there's a song with what I think are phenomenal lyrics from its beginning to its end, Harvey Danger's Flagpole Sitta ("They cut off my legs, now I'm an amputee God d**n you.").
***** It's fitting that maybe the two best rock poets - Robbie Zimmerman a.k.a. Bob Dylan (not a big fan, but there's no denying his status) and Lou Reed (the ultimate urban poet?) - would wind up in the same compilation.
****** So this Hanukkah treasure joins the unsurpassed Chanukah Song by Adam Sandler for non-Xmas Holiday fare. And while we're on the topic of Sandler, you must check out his tribute to Chris Farley, if you haven't already. I don't care if you don't even know who Farley (maybe a Top-5 physical comic of all time?) is - if this heart-felt memorial doesn't bring tears to your eyes you're a tougher soul than am I.
Friday, November 27, 2020
Bruce Willis Promotes Retirement Savings
Saturday, November 21, 2020
ADEA or A/D-EA? - the AC/DC in Employment Act of 2020
I will choose to remember an otherwise horrific 2020 as the AC/DC in Employment Act ("A/D-EA"). I've been listening to AC/DC's tantalizing teasers, and then to Shot in the Dark since the day it was released. I tuned in in real-time to watch the premier of the Shot in the Dark video and listened to the entire PWR UP album on it's release date. Even generated myself a pretty cool logo. Try it.
I really believe that what this greatest-of-all-time band has done here is unprecedented. These guys are from 63 to 73 years old and sound like they just got together yesterday. The album doesn't sound in the least bit tired or hackneyed, and maybe even sounds fresher than some of their older stuff. And Shot in the Dark is right there with their all-time best. Sure, it all sounds like AC/DC, but - important message - that's a GOOD thing.
Getting Rudd back (from God-knows-where) was key. (No disrespect there to Slade, who's great.) And Brian Johnson at 73 might well sound as good or better than Brian Johnson at 30. (Sorry, Axl, but this is Brian's (and before him, Bon's) band when it comes to vocals.) Stevie is right there alongside of dear departed Uncle Malcolm (who lives on in the riffs used here) and Cliff is as always spot on (Thom, when ARE you going to get me to meet him?!?). And then there's Angus ('Nuff said).
But what's truly unprecedented is that this new music 50 years later is not some dinosaur-like homage to days gone by. No, it's a current release that's great in its own right. People from 8 to 80 are going to bang heads to this music, and it will soon become hard to remember what's from the fifth-plus decade and what's from earlier times gone by. There's no wistfulness for better times in these tunes; rather, there's just a celebration of some great new rock 'n' roll. With all due respect to the Stones (nice COVID song, I guess), no one's ever done anything quite like this at this stage of their careers and lives, and I wonder if anyone else ever will.
So, at Thanksgiving, let's give thanks to those who can show us that you never need to grow old in the head - age is just a number. Congress may not do much, but now we've got a whole brand-new A/D-EA.
Better than a walk in the park. Crank it (PWR it) UP, and rock on . . .
Saturday, October 3, 2020
How Not to "Gett" Out of a Multiemployer Plan
Sometimes the dissolution of the marriage between an employer and a multiemployer plan can end in a messy divorce.
In American Federation of Musicians & Employers Pension Fund v. Neshoma Orchestra & Singers, Inc., No. 19-1093 (2d Cir. Sept. 3, 2020), a Jewish wedding band from Long Island was held to have failed timely to challenge a $1.1 million withdrawal-liability assessment. The band had contested the liability by sending a letter to the pension fund - rather than by filing an arbitration demand with the American Arbitration Association within 60 days of the receipt of the assessment, as the applicable contract provisions had required.
Wednesday, August 5, 2020
Dividend Equivalent Rights II, the 409A Sequel; and Toy Story 3, the Oscar-Nominated Sequel
Monday, June 29, 2020
Idris Elba Took Your 401(k)
* . . . as Angela Kinsey's Angela Martin so informs.
** Research discloses that someone else with clearly too much time on her hands also noticed this loss of 401(k) benefits, although she did so in a much more timely fashion.
Saturday, June 6, 2020
Slayer, Part II - The Karavas File
Sunday, May 31, 2020
A Hater CARES Maybe Too Much While Swimming with the Sharks
Sunday, April 19, 2020
Planning for Education in the Ozarks
Sunday, April 12, 2020
"The Good Place" to Retire
I guess I'll just stay here forever, you know? Putter around doing mundane things like some sad old retiree. Maybe I'll have Janet make me a hardware store so I can buy a hex wrench that I don't really need.
Thanks, Michael, for giving me my retirement moment during the finale of the Smartest Television Show Ever.
And stay safe and well, all . . .