Retirement Security Law Commons^™

Why Is There So Much Pre-Retirement Liquidity In The U.S. Pension System?, Kathryn L. Moore, John Turner

Law Faculty Books and Chapters

Some analysts argue that there is a retirement savings crisis in the United States. While the extent of the crisis is contested, most analysts agree that retirement savings in this nation is inadequate. Although the reasons for the retirement savings shortfall are many and complex, this paper focuses on one factor that leads to inadequate retirement savings in the United States: pre-retirement liquidity or leakage.

Pre-retirement liquidity or leakage refers to the ability of individuals to withdraw money from their retirement savings account prior to retirement and use that money for nonretirement purposes. The Employee Benefit Research Institute (EBRI) writes, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Cranston Police Retirees Action Comm. V. City Of Cranston, 208 A.3d 557 (R.I. 2019), Tyler Martin

Roger Williams University Law Review

No abstract provided.

Regulating Retirement: Understanding The Impact Of New Best Interest And Fiduciary Standards On Retail Investors, Michael Lichtmacher

St. Mary's Law Journal

Abstract forthcoming

Richard Kilgore V. Eleni Kilgore, 135 Nev. Adv. Op. 47 (Oct. 3, 2019), Aariel Williams

Nevada Supreme Court Summaries

NRS 286.510 provides that the eligibility depends on an employee spouse’s effective date of membership in Nevada Public Employees’ Retirement System (“PERS”), profession, number of years served, and age. The Court determined that the time does not depend on whether the employee spouse’s PERS account has fully matured. NRS 125.155 provides district courts with discretion to deny or reduce a non-employee spouse’s request for pension payments before the employee spouse’s retirement. Further, under NRS 125.150(3), a party can seek adjudication of an asset mistakenly omitted from the divorce decree within three years of discovering the mistake. The Court determined that …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

The Venue Shuffle: Forum Selection Clauses & Erisa, Christine P. Bartholomew, James A. Wooten

Journal Articles

Forum selection clauses are ubiquitous. Historically, the judiciary was hostile to contracts limiting a plaintiff’s venue options. The tide has since turned. Today, lower courts routinely enforce such clauses. This Article challenges this reflexive response in the special context of ERISA cases. It mines ERISA’s statutory text, rich legislative history, and historical context to supply an in-depth exploration of ERISA’s unique policy goal of providing employees “ready access to the Federal courts.” The Article then explains how forum selection clauses undermine this goal and thus should be invalid under controlling Supreme Court jurisprudence.

Reforming Pensions While Retaining Shareholder Voice, David H. Webber

Faculty Scholarship

Public pension and labor union funds have been the driving force in diversified shareholder activism. They have also fended off attacks on jobs and proactively created jobs for fund contributors. These funds currently represent almost $4 trillion in assets over which workers have substantial control. That worker control - and the collective nature of defined benefit pension plans - is the necessary precondition for their shareholder activism. Both worker control and collective investment are directly threatened by the rise of defined contribution funds, particularly by well-funded efforts to promote the 401(k) in the public sector, the last bastion of the …

Energy Re-Investment, Hari M. Osofsky, Jacqueline Peel, Brett H. Mcdonnell, Anita Foerster

Indiana Law Journal

Despite worsening climate change threats, investment in energy—in the United States and globally—is dominated by fossil fuels. This Article provides a novel analysis of two pathways in corporate and securities law that together have the potential to shift patterns of energy investment.

The first pathway targets current investments and corporate decision-making. It includes efforts to influence investors to divest from owning shares in fossil fuel companies and to influence companies to address climate change risks in their internal decision-making processes. This pathway has received increasing attention, especially in light of the Paris Agreement and the Trump Administration’s decision to withdraw …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

State Automatic Enrollment Iras After The Trump Election: Are They Preempted By Erisa?, Kathryn L. Moore

Law Faculty Scholarly Articles

In recent years, a number of states have sought to close the retirement savings funding gap by enacting legislation mandating that employers that do not sponsor a voluntary pension plan for their employees automatically enroll their employees in a state-administered IRA program. This Article focuses on the most serious legal challenge these programs face: ERISA preemption.

The Article begins by providing an overview of the state automatic enrollment IRA programs. It then discusses a regulatory safe harbor created for these programs in 2016 and disapproved under the Congressional Review Act in 2018. It then turns to the question whether, in …

A More Secure Choice: Minnesota’S Two-Pronged Approach To State Level Retirement Savings Programs, Chad Burkitt

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Cutting Pension Rights For Public Workers: Don't Look To The Courts For Help, Ronald H. Rosenberg

Faculty Publications

Every day we rely on public employees to provide us with a broad range of services necessary to daily life. These workers include public school teachers, fire and police, emergency medical technicians, park rangers, nurses just to name a few. As public employees, these people work for local and state government and they are compensated by us for their services through the taxes we pay. In general, these are modestly paid workers who also receive pensions when they retire after many years of work. Following the financial crisis of 2008-2009, government retirement trust funds significantly lost value and their long-term …

First Rock To The West, Straight On 'Til Morning: Westrock Draws Potential Roadmap To Substantive Challenges Of Erisa Rehabilitation Plans Under Section 1132, Michael Berthiaume

Mercer Law Review

Since its enactment, the Employee Retirement Income Security Act (ERISA) has confused and frustrated practitioners, businesspeople, and citizens alike. This convoluted statute encompassing over 1,000 pages has become increasingly more difficult through several amendments as new Congresses continue to patch the statute and "kick the can" of retirement benefits to later sessions.

In WestRock RKT Co. v. Pace Industry Union Management Fund, WestRock RKT Company (WestRock), a contributing employer, brought an action against Pace Industry Union Management Fund (The Fund) arguing a violation under ERISA, which sets minimum standards for pension plans in private industries. WestRock pursued this action …

A Lesson From Goodfellas: Why Current Illinois Consideration Based Pension Reform Proposals Still Fail, Lari A. Dierks

Northwestern Journal of Law & Social Policy

No abstract provided.

Op-Ed: California’S Most Powerful Voice On Wall Street? Its Pensions, David H. Webber

Shorter Faculty Works

The fight over public pensions in California is almost exclusively described as a dispute between people worried about tax hikes and public servants wanting to get paid what they were promised. But this is only part of the pension story — one focused on the “liability” side of the balance sheet.

The Real Reason The Investor Class Hates Pensions, David H. Webber

Shorter Faculty Works

No issue in America today better illustrates the divergent interests of working Americans and the 1 percent than pension reform. Substantial empirical evidence shows that America’s favored retirement vehicle — the 401(k), recently renounced by its own inventors — is grossly inadequate and will leave tens of millions of Americans with insufficient retirement assets. And yet states and cities are busy converting traditional pensions into these failing 401(k)s or equivalents, to the great benefit of money managers and the finance class.

How Special Is The Special Timing Rule? Analyzing The Timing Of Fica Taxation In Nonqualified Deferred Compensation Plans, Alan J. Ponce

Georgia State University Law Review

Many employers offer nonqualified deferred compensation plans as a benefit to select employees, and those plans allow the employees to prepare for retirement in a tax-efficient manner. For employers,designing and administering such plans in compliance with federal law represents a paramount concern in order to achieve the tax advantages such plans entail. However, for these employers, there remains an inherent ambiguity in the tax code regarding how and when employers should withhold Federal Insurance Contribution Act (FICA) taxes—that is, Social Security and Medicare taxes—on deferred compensation in nonqualified retirement plans.

Tax regulations provide two distinct methods for withholding FICA taxes …

Untrustworthy: Erisa’S Eroded Fiduciary Law, Peter J. Wiedenbeck

William & Mary Law Review

The trust law analogy has come to dominate judicial thinking about employee benefit plans. Yet despite its rise to rhetorical prominence, ERISA fiduciary law has been dramatically transformed by a series of uncoordinated, low-visibility judicial decisions on multiple fronts. These apparently unconnected case law developments reveal a startling pattern of mutually reinforcing restrictions on ERISA’s protection of pension and welfare benefits. This study chronicles ERISA’s trust law turn to expose how untrustworthy workers’ benefit safeguards have become. Both the scope and the intensity of fiduciary oversight have been radically pruned back in the courts. Notwithstanding the congressional declaration that attempts …

Promoting Retirement Security For Low-Income Workers In Illinois: An Analysis And Lessons For Other States, Philip C. Aka, Chidera V. Oku, Murna Habila

Akron Law Review

This Article makes suggestions for promoting retirement security among low-income workers in Illinois with pointed lessons for workers in other U.S. states. Adapting a framework from a previous study by the principal author, the Article portrays retirement preparedness for low-income workers in Illinois as a function of changes in Social Security, employer-sponsored pensions, and personal assets—the famed “three-legged stool” of retirement income—synchronized with reduction of disparities between socioeconomic groups in education, healthcare, and housing. Many studies on retirement security focus excessively on the national level sometimes at the expense of the subnational phenomena that complicate retirement security and increase the …