Title: DOL Investigations
1DOL Investigations
- 2006 Western Benefits Conference
- July 17, 2006
- Presented by
- Jean Ackerman, EBSA
- R. Bradford Huss, Esq., APM
2Introduction
- Employee Benefits Security Administration
- ERISA Enforcement
- Todays Topics
- National Enforcement Projects
- West Coast Regional Enforcement Projects
- Criminal Investigations
- The Investigative Process
- Other Hot Issues
- Voluntary Fiduciary Correction Program
3EBSA National Enforcement Projects
- Employee Contributions Project
- REACT (Bankruptcy)
- Abandoned (Orphan) Plans
- Health Fraud/MEWAs
- Employee Stock Ownership Plans (ESOPs)
4Delinquent Employee Contributions
- Failure to forward employee withholds in a timely
manner
- ERISA Reg. 29 CFR 2510.3-102
- Advisory Opinion 2002-02A (May 2002)
- Field Assistance Bulletin 2003-2 (May 2003)
5Bankruptcy and Financially Distressed Plan
Sponsors
- Rapid ERISA Action Team (REACT)
- Preserve plan assets
- Determine whether the sponsor has made all
required contributions
- Ensure plans rights are protected
- Identify responsible fiduciaries
6Bankruptcy and Financially Distressed Plan
Sponsors
- Abandoned (Orphan) Plans
- Actions by EBSA
- Locate a Plan fiduciary
- If necessary, obtain a court-appointed
Independent Fiduciary
- Correct ERISA violations
7Bankruptcy and Financially Distressed Plan
Sponsors
- Effective May 22, 2006
- Voluntary program for DC plans
- Financial institutions holding plan assets
- Determine abandonment
- Terminate plan
- Distribute account balances
8Overview Terminating Abandoned Plans
QTA determines that the plan has been abandone
d
QTA winds up the plans affairs
After 90 days, plan is deemed terminated
QTA Notifies EBSA
QTA Notifies EBSA
QTA Qualified Termination Administrator
9Health Fraud/MEWAs
- Civil Enforcement Actions
- Temporary Restraining Order (TRO)
- Pursue Monetary Judgments
- Bar from future Plan association
- Appointment of Independent Fiduciary
- Criminal Enforcement Actions
- Seizure of Assets
- Forfeiture of Assets
- Criminal Penalties
- 13 year bar
- Knowing violation of bar causes additional
criminal violations
10Employee Stock Ownership Plans
- Potential ERISA Violations
- Failure to properly value employer security
- Fraudulent valuations
- Optimistic valuations
- Dated valuations
- Refinancing of ESOP loans
- Application of FAB 2002-1
11West Coast Regional Projects
- Taft-Hartley Plan Administration
- Focus on Administrative Practices
- Monitoring service providers
- Monitoring plan investments
- Internal controls
- Policies and procedures that ensure plan
participants receive benefits promised
- Understanding and monitoring plan expenses
12West Coast Regional Projects
- Demutualization
- Management and Administration of Plan Assets
Received as a Result of a Demutualization
- Plan assets include funds received from Insurance
Company as a result of a demutualization to the
degree the funds represent Plan participant
premium payments - Plan fiduciaries have a responsibility to handle
these assets in accordance with ERISA
13West Coast Regional Projects
- Fees
- Settlor Fees
- AO 2001-01A 1/1/2001
- Plan decisions/activities vs Sponsor/Employer
decisions/activities
- Float Fees
- Field Bulletin 2002-3 11/5/2002
- Obligation to Disclose
14West Coast Regional Projects
- Fees
- Allocation of Expenses to Defined Contribution
Plans
- Field Bulletin 2003-3 5/19/03
- The allocation of expenses among Plan
participants
- Payment of Direct Expenses
- AO 89-9A 6/13/1989
- Reimbursement to SP sponsor for administration
services is not necessarily prohibited
- AO 93-06A 3/11/1993
- Reimbursement to SP sponsor for investment
manager is not necessarily prohibited
15West Coast Regional Projects
- Corporate Fraud
- Focus of Investigations
- Decline in Plans employer stock holdings
- Fraud or Mismanagement
- Accounting Irregularities
- Misrepresentations or Omissions from Financial
Statements
- Fraudulent or Corrupt Business Practices
16Criminal Investigations
- ERISA Criminal Statutes
- Section 411 ERISA Bar
- Section 501 Reporting
- Section 511 Coercive Interference
17Criminal Investigations
- Title 18 The Big Three
- 18 USC Sections 664, 1027 1954 Embezzlement
False Records Kickbacks
- Health Care Penalties
- 18 USC Sections 669, 1035, 1347 Embezzlement,
False Records, Health Care Fraud
- Other Relevant Criminal Statutes
- Mail, Wire, Conspiracy, Money Laundering, etc.
-
18Red Flags
- Concealment
- Falsification, false statements, destruction of
records
- Extravagant personal gain
- Flagrant disobedience of instructions
- Others
- Transactions different from usual course of
action
- Evasiveness, unresponsiveness
- Missing records
- Flight
19Investigative Process
- Statutory Grant of Investigative Power
- ERISA section 504(a)
- Subpoena authority
- Disclosure of information between IRS and DOL
20Investigative Process
- EBSA Investigative Procedure
- Enforcement Guidelines
- Nondisclosure of basis of investigation
- Enforcement Manual
21Potential Areas of Investigation
- Fiduciary Duties
- Co-fiduciary Liability
- Plan Expenses and Operations
- Plan Investments
- Prohibited Transactions
- Employer Securities
- Real Estate Holding
- Claims Procedures
- Bonding, Reporting, Disclosure
22Document Requests
- Plan Documents
- Financial Records
- Accountants Records
- Service Agreements and Contracts
- Claims Payment Records
- Minutes of Meetings
- Plan Asset Records, including appraisals
- Fidelity Bond
- IRS Determination Letter
23Interviews
- Explain fiduciary decisions
- Describe processes
- Forwarding employee contributions
- False Statements
- 18 USC Section 1001
24Resolution of the Investigation
- No violations
- Violations detected but no further action
warranted
- Voluntary Compliance settlement
- Civil litigation
- Civil money penalties
- IRS referral
- Disclosure of investigative results
25Correction of Violations
- General Rule
- The Plan must be made whole
- Prohibited Transactions
- DOL PTCE 94-71
- Civil Penalties
- ERISA Section 502(l)
- Amount
- Waiver or Reduction of Penalty by DOL
- Penalty Offset by PT Excise Tax
26Other Hot Issues
- Trading practice issues
- Insurance broker practices
- PTE 77-4 Investment in proprietary mutual
funds
- Fees and expenses
- Selection and monitoring of service providers
- See DOL and SEC Tips for Selecting and Monitoring
Pension Consultants
27Voluntary Fiduciary Correction Program
- Avoid investigation
- Avoid civil penalty
- Avoid excise tax
- Do the right thing!
28Contact Points
- EBSA website www.dol.gov/ebsa
- Technical Assistance nationwide-
- 1-866-444-EBSA (3272)
- Publications 1-800-998-7542
- Kansas City Office (816).426-5131
- Los Angeles Office (626) 229-1000
- San Francisco Office (415) 975-4590
- Seattle District Office (206) 553-4246