Thursday, July 24, 2008

Lurie's Recent Employee Benefits Articles

Lurie Alvin Lurie has been busy publishing articles on the ERISA and employee benefits front.

The first article, It's a PIP - Or Is It?, concerns "an idea that has been wafting about in legislative halls and hearing rooms, in print and electronic media, and in assorted other venues for several years is to make employers in small businesses set up a payroll deduction facility for their employees not covered by employer-sponsored retirement plans, for the purpose of easing the making of contributions to an IRA established by or on behalf of the employee."

The second one, All in the Family on Foley Square, Lurie discusses the 2nd Circuit's recent cash balance plan decision in Hirt v. The Equitable Retirement Plan:

The 2nd Circuit just resolved a family squabble among its dist rict court judges – five in the SDNY and three in the Connecticut district – involving  an age discrimination issue that has had the pension community across the    country in a tumult for five years. The appeals court affirmed the judgments of two courts of the Southern District of New York in separate cases, Hirt v. The Equitable Retirement Plan and Bryerton v. Verizon Communications, that had ruled that the cash balance plans at issue were not age discriminatory (2008 US App. LEXIS 14325). It thereby settled an issue that had split nine district cases in its circuit (5 in favor of the plans, 4 against), and in so doing sided with the three other circuit courts that had similarly upheld the plan sponsors positions, starting with the seminal decision of the 7th Circuit in the IBM case in 2006.

Finally, in the third one, Triple Play: Stevens to Roberts to Thomas or A View of LaRue, Lurie writes:

One thing that has distinguished employee benefits practitioners from the population at large in the US in the Spring of ‘08 is whom they prefer among the three – actually, what three they’re even talking about. For a remarkably large portion of the benefits community it’s not been McCain, Obama and Clinton, but Stevens, Roberts and Thomas, the latter three the Supreme Court justices who wrote the majority and two concurring opinions for a court unanimous only in its ultimate holding in the LaRue case1 decided this past February. Linda Greenhouse, writing in the New York Times recently on the pattern of recent rulings from the Supreme bench, said:

“The court is by nature an atomistic institution, its actions the aggregation of   determinedly individual decisions.”

If ever words fit actions, those words fit the actions of the justices in LaRue, and she wasn’t even writng about that case. In a supposedly unanimous opinion of the nine justices, they wrote three separate opinions, agreeing only on the ultimate question, but otherwise wildly diverging -- in cohorts of five, two and two – as to why and to what effect.

Alvin brings his mastery and provocative take on all of these issues in these three articles.  I'm quite sure he would like to hear individual's feedback.


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» Notes for a Friday from Boston ERISA Law Blog
I thought I would pass along a couple of things of interest that I read this week, before next week starts up with its own events. Taking up where my comments on the status of extra-administrative record discovery in the... [Read More]

Tracked on Jul 25, 2008 8:51:20 AM


I work for a fairly large company. The company has decided to change 401K plan providers in an effort to save money, and they have published and communicated this fact. This change will be happening very soon with the Blackout period starting in October even though the employees have been given very little information regarding the new company or how their funds will be transfered. If the employees participating in the plan lose money during the transfer process because of volatile market conditions, who is liable for the losses? The employee, the employer, or the 401K provider?

Posted by: Robison Caurso | Oct 14, 2008 9:19:31 AM

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