dol investigations of employee benefit plans: navigating...

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DOL Investigations of Employee BenefitPlans: Navigating Enforcement Actions,Audits and Settlements

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TUESDAY, JUNE 7, 2016

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Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

Ivelisse Berio LeBeau, Esq., Sugarman & Susskind, Miami

José M. Jara, Partner, FisherBroyles, New York

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DOL Investigations of EmployeeDOL Investigations of EmployeeBenefit Plans: NavigatingBenefit Plans: Navigating

Enforcement Actions, Audits andEnforcement Actions, Audits andSettlementsSettlements

Tuesday, June 7, 2016Tuesday, June 7, 2016

DOL Investigations of EmployeeDOL Investigations of EmployeeBenefit Plans: NavigatingBenefit Plans: Navigating

Enforcement Actions, Audits andEnforcement Actions, Audits andSettlementsSettlements

Tuesday, June 7, 2016Tuesday, June 7, 2016

Ivelisse Berio LeBeau, Esq. José M. Jara, Esq.Sugarman & Susskind, PA FisherBroylesMiami, FL New York, NY

Background: DOL and EBSABackground: DOL and EBSA

U.S. Department of Labor has many sub-agencies, including: Employee Benefits Security

Administration (EBSA)◦ Charged with investigating ERISA violations◦ Subpoena Power

Office of the Solicitor of Labor (SOL)◦ “in house” DOL counsel◦ Independent litigation authority

U.S. Department of Labor has many sub-agencies, including: Employee Benefits Security

Administration (EBSA)◦ Charged with investigating ERISA violations◦ Subpoena Power

Office of the Solicitor of Labor (SOL)◦ “in house” DOL counsel◦ Independent litigation authority

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EBSAEBSA National Office

◦ Different divisions with different missions Regional Offices

◦ Regional Directors◦ Pension Benefit Advisors “customer service”; handle calls

◦ Investigators Usually attorneys or accountants

◦ Supervisors Usually former investigators

National Office◦ Different divisions with different missions Regional Offices

◦ Regional Directors◦ Pension Benefit Advisors “customer service”; handle calls

◦ Investigators Usually attorneys or accountants

◦ Supervisors Usually former investigators

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EBSA: Civil and CriminalEBSA: Civil and Criminal

EBSA has broad investigative authority Most EBSA investigations are civil, but

EBSA also has authority to conductcriminal investigations◦ Same investigators◦ Some different rules for criminal cases◦ Criminal cases go to the U.S. Attorney’s Office

instead of DOL Solicitor’s

Enforcement Manual on website

EBSA has broad investigative authority Most EBSA investigations are civil, but

EBSA also has authority to conductcriminal investigations◦ Same investigators◦ Some different rules for criminal cases◦ Criminal cases go to the U.S. Attorney’s Office

instead of DOL Solicitor’s

Enforcement Manual on website

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EBSA Enforcement StatisticsEBSA Enforcement Statistics For FY2015 EBSA EBSA reports:

◦ Over $696 million recovered for direct paymentto plans, participants, beneficiaries

◦ Over $837 million in assets recovered and planassets protected

◦ Over 2, 400 civil cases closed◦ 90 federal lawsuits filed◦ 61 indictments

Presentation describes EBSA regional officeinvestigations that led to these results

For FY2015 EBSA EBSA reports:◦ Over $696 million recovered for direct payment

to plans, participants, beneficiaries◦ Over $837 million in assets recovered and plan

assets protected◦ Over 2, 400 civil cases closed◦ 90 federal lawsuits filed◦ 61 indictments

Presentation describes EBSA regional officeinvestigations that led to these results

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Why me? (or who does EBSAWhy me? (or who does EBSAinvestigate?)investigate?) EBSA investigators likely will not tell you

why your plan is being reviewed Reasons for initiating reviews:

◦ Employee/Participant Complaints Other Complaints

◦ Targeted: National Office Enforcement Projects Regional Office Enforcement Projects Information Reported on Form 5500s

◦ Random?◦ Referrals from other agencies

EBSA investigators likely will not tell youwhy your plan is being reviewed Reasons for initiating reviews:

◦ Employee/Participant Complaints Other Complaints

◦ Targeted: National Office Enforcement Projects Regional Office Enforcement Projects Information Reported on Form 5500s

◦ Random?◦ Referrals from other agencies

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EBSA Enforcement ProjectsEBSA Enforcement Projects Available on EBSA website National Enforcement Projects on:

◦ Employee Contributions◦ Plan Investments Conflicts◦ Health Benefits Security (Part 7)◦ ESOPs◦ Bankruptcy (REACT)◦ Service Providers◦ Abandoned Plans◦ Voluntary Fiduciary Correction

Available on EBSA website National Enforcement Projects on:

◦ Employee Contributions◦ Plan Investments Conflicts◦ Health Benefits Security (Part 7)◦ ESOPs◦ Bankruptcy (REACT)◦ Service Providers◦ Abandoned Plans◦ Voluntary Fiduciary Correction

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Investigation SubjectsInvestigation Subjects All Types of Employee Benefit Plans:

◦ Retirement, Health, Apprenticeship, Legal Plan Sponsors Plan Trustees Named Fiduciaries Functional Fiduciaries Plan Administrators Service Providers

◦ Consultants Custodians◦ Investment Advisors Directed Trustees

All Types of Employee Benefit Plans:◦ Retirement, Health, Apprenticeship, Legal Plan Sponsors Plan Trustees Named Fiduciaries Functional Fiduciaries Plan Administrators Service Providers

◦ Consultants Custodians◦ Investment Advisors Directed Trustees

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What are they looking for?What are they looking for?

Focus on investigating potential breachesof ERISA fiduciary duty Violations of: ERISA §404 Fiduciary Duties ERISA §406 Prohibited Transactions ERISA §405 Co-Fiduciary Duties ERISA Part 7 Health Plan Requirements

Focus on investigating potential breachesof ERISA fiduciary duty Violations of: ERISA §404 Fiduciary Duties ERISA §406 Prohibited Transactions ERISA §405 Co-Fiduciary Duties ERISA Part 7 Health Plan Requirements

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WhatWhat are they looking for?are they looking for? Common Scenarios:

◦ Delinquent Employee Contributions◦ Excessive Service Provider Fees◦ Imprudent Investments◦ Plan Sponsor Bankruptcies◦ Part 7 violations in Health Plans◦ Abandoned Pension Plans◦ Hard to Value Assets

Common Scenarios:◦ Delinquent Employee Contributions◦ Excessive Service Provider Fees◦ Imprudent Investments◦ Plan Sponsor Bankruptcies◦ Part 7 violations in Health Plans◦ Abandoned Pension Plans◦ Hard to Value Assets

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EBSA Investigative ProcessEBSA Investigative Process

EBSA Enforcement Manual on website Initial Contact

◦ Usually a letter/could be a phone call

Request for Documents◦ Standard and non-standard requests◦ If don’t cooperate expect a subpoena◦ Accommodation subpoenas

EBSA Enforcement Manual on website Initial Contact

◦ Usually a letter/could be a phone call

Request for Documents◦ Standard and non-standard requests◦ If don’t cooperate expect a subpoena◦ Accommodation subpoenas

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DocumentsDocuments Does request ask for copies to be sent to

EBSA office or for on-site review?◦ Pros and Cons to both◦ Copying Costs/Electronic Media

Standard Requests:◦ Governing Plan Documents Plan Document/Amendments Trust Document/Amendments SPD/SMMs

Does request ask for copies to be sent toEBSA office or for on-site review?◦ Pros and Cons to both◦ Copying Costs/Electronic Media

Standard Requests:◦ Governing Plan Documents Plan Document/Amendments Trust Document/Amendments SPD/SMMs

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DocumentsDocuments

Standard Requests◦ Required Reporting 5500s Annual Funding Notices SBCs Participant Statements SARs

◦ Audits◦ Fidelity Bond/Fiduciary Liability Policy◦ Service Provider Contracts

Standard Requests◦ Required Reporting 5500s Annual Funding Notices SBCs Participant Statements SARs

◦ Audits◦ Fidelity Bond/Fiduciary Liability Policy◦ Service Provider Contracts

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DocumentsDocuments Standard Requests:

◦ Plan Contribution records Employee contributions CBAs

◦ Meeting Minutes◦ Participant Loan records◦ Income/Expenses/Journals◦ Appraisals◦ Part 7/ACA related◦ COBRA/HIPAA/other notices◦ Correspondence/E-mails

Standard Requests:◦ Plan Contribution records Employee contributions CBAs

◦ Meeting Minutes◦ Participant Loan records◦ Income/Expenses/Journals◦ Appraisals◦ Part 7/ACA related◦ COBRA/HIPAA/other notices◦ Correspondence/E-mails

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DocumentsDocuments Standard Requests:

◦ Bank Accounts/Statements◦ Investment Accounts/Statements◦ Real Property Records◦ Securities/Bonds◦ Claims Adjudication Records Non-standard requests

◦ Requests that refer to anything specific, suchas a specific investment/type of investment; aspecific claim or type of claim; specific plandetails

Standard Requests:◦ Bank Accounts/Statements◦ Investment Accounts/Statements◦ Real Property Records◦ Securities/Bonds◦ Claims Adjudication Records Non-standard requests

◦ Requests that refer to anything specific, suchas a specific investment/type of investment; aspecific claim or type of claim; specific plandetails

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OnOn--site Reviewsite Review

Most investigations will include an on-sitereview◦ “desk audit” exception

What to Expect:◦ Usually at primary place of business◦ Can last days or weeks◦ Investigator will likely review documents◦ Investigator may conduct interviews

Most investigations will include an on-sitereview◦ “desk audit” exception

What to Expect:◦ Usually at primary place of business◦ Can last days or weeks◦ Investigator will likely review documents◦ Investigator may conduct interviews

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InterviewsInterviews

Typically interviews held on-site,sometimes at EBSA office◦ Voluntary◦ Not recorded◦ Not under oath◦ No time limit

Attorney Present?◦ Who’s the Client?

Typically interviews held on-site,sometimes at EBSA office◦ Voluntary◦ Not recorded◦ Not under oath◦ No time limit

Attorney Present?◦ Who’s the Client?

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Common interview subjects:◦ Plan Administrator If in-house or entity, could interview several people

who perform different functions

◦ Trustees If board usually designee or officers; could interview

all

◦ Fiduciaries◦ Plan Sponsor

Common interview subjects:◦ Plan Administrator If in-house or entity, could interview several people

who perform different functions

◦ Trustees If board usually designee or officers; could interview

all

◦ Fiduciaries◦ Plan Sponsor

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Standard Procedures/Disclosures Circumstances matter:

◦ Tone of interviewer◦ Attitude of interviewee◦ Point of investigation◦ Nature of Review

Practice Tips Administrative Depositions

Standard Procedures/Disclosures Circumstances matter:

◦ Tone of interviewer◦ Attitude of interviewee◦ Point of investigation◦ Nature of Review

Practice Tips Administrative Depositions

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Follow Up (and why does it take soFollow Up (and why does it take solong?)long?) There will be follow up questions There will likely be follow up requests for

documents There could very likely be long periods of

time between requests, contactsWhat’s happening at EBSA?

◦ Reports- Investigator, Supervisor, National◦ Reviews-Supervisor, Regional, National

There will be follow up questions There will likely be follow up requests for

documents There could very likely be long periods of

time between requests, contactsWhat’s happening at EBSA?

◦ Reports- Investigator, Supervisor, National◦ Reviews-Supervisor, Regional, National

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After the investigation is completeAfter the investigation is complete

Most investigations lead to a letter fromEBSA reporting the results Possibilities:

◦ No findings/Closing letter◦ Findings but no action/Closing letter◦ Voluntary Compliance Request◦ Referral to Solicitor’s Office for litigation

Most investigations lead to a letter fromEBSA reporting the results Possibilities:

◦ No findings/Closing letter◦ Findings but no action/Closing letter◦ Voluntary Compliance Request◦ Referral to Solicitor’s Office for litigation

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Voluntary ComplianceVoluntary Compliance EBSA encourages voluntary compliance Offered in almost all mattersWork with the investigator and correct

issues identified in the review◦ Change procedures◦ Adopt policies◦ Enforce policies◦ Restore assets◦ Repay monies◦ Correct prohibited transactions

EBSA encourages voluntary compliance Offered in almost all mattersWork with the investigator and correct

issues identified in the review◦ Change procedures◦ Adopt policies◦ Enforce policies◦ Restore assets◦ Repay monies◦ Correct prohibited transactions

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Voluntary ComplianceVoluntary Compliance

Submit response to VC Letter◦ Address all issues raised◦ Include any defenses to claims◦ Describe voluntary compliance actions◦ Include exhibits◦ Include additional information as

relevant to address issues raised

Submit response to VC Letter◦ Address all issues raised◦ Include any defenses to claims◦ Describe voluntary compliance actions◦ Include exhibits◦ Include additional information as

relevant to address issues raised

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Voluntary ComplianceVoluntary Compliance

If money is paid to address issues—◦ Recoveries generally go to an employee

benefit plan◦ Recoveries could go to a person◦ Recoveries do not go to the DOL or Treasury

If address issues to EBSA’s satisfaction,EBSA will issue a No Action letter

If money is paid to address issues—◦ Recoveries generally go to an employee

benefit plan◦ Recoveries could go to a person◦ Recoveries do not go to the DOL or Treasury

If address issues to EBSA’s satisfaction,EBSA will issue a No Action letter

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502(l)502(l)

ERISA §502(l) requires that the DOLassess a 20% penalty on amountsrecovered by settlement agreement orcourt order Are voluntary compliance actions taken in

response to a VC letter from EBSA asettlement agreement? EBSA discretion to reduce penalty

ERISA §502(l) requires that the DOLassess a 20% penalty on amountsrecovered by settlement agreement orcourt order Are voluntary compliance actions taken in

response to a VC letter from EBSA asettlement agreement? EBSA discretion to reduce penalty

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Referral to Solicitor’s OfficeReferral to Solicitor’s Office

If voluntary compliance efforts fail, orEBSA does not seek voluntarycompliance, EBSA refers matter toSolicitor’s Office for litigation Office of the Solicitor

◦ National Office/Pension Benefits SecurityDivision (PBSD)

◦ Regional Offices◦ Represent DOL in federal court cases

If voluntary compliance efforts fail, orEBSA does not seek voluntarycompliance, EBSA refers matter toSolicitor’s Office for litigation Office of the Solicitor

◦ National Office/Pension Benefits SecurityDivision (PBSD)

◦ Regional Offices◦ Represent DOL in federal court cases

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Solicitor’s Office (SOL)Solicitor’s Office (SOL)

SOL attorney will receive all investigationmaterials, interview reports, anddocuments, along with EBSA reportdescribing investigation and findings SOL attorney will conduct independent

review of facts and claims SOL attorney will likely reach out to

subjects of investigation

SOL attorney will receive all investigationmaterials, interview reports, anddocuments, along with EBSA reportdescribing investigation and findings SOL attorney will conduct independent

review of facts and claims SOL attorney will likely reach out to

subjects of investigation

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SOL response may include:◦ Request for tolling agreement◦ Request for documents◦ Request for meeting to discuss issues◦ Filing case in federal court

Cases frequently settle with SOL◦ Both before and after filing in federal court

SOL response may include:◦ Request for tolling agreement◦ Request for documents◦ Request for meeting to discuss issues◦ Filing case in federal court

Cases frequently settle with SOL◦ Both before and after filing in federal court

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Complaint/Consent Judgment◦ If enter into negotiations before SOL files in

federal court◦ SOL will file complaint with allegations◦ Simultaneously file negotiated consent

judgment◦ Several non-negotiable items: No denials of liability DOL will issue press release DOL will assess 502(l) penalty

Complaint/Consent Judgment◦ If enter into negotiations before SOL files in

federal court◦ SOL will file complaint with allegations◦ Simultaneously file negotiated consent

judgment◦ Several non-negotiable items: No denials of liability DOL will issue press release DOL will assess 502(l) penalty

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If negotiations with SOL fail, or if notolling agreement reached, or if factsshow exigent circumstances, SOL will filecomplaint in federal courtWill proceed as any other federal

litigation Any settlement of case after filing will

require settlement agreement with sameparameters/limitations

If negotiations with SOL fail, or if notolling agreement reached, or if factsshow exigent circumstances, SOL will filecomplaint in federal courtWill proceed as any other federal

litigation Any settlement of case after filing will

require settlement agreement with sameparameters/limitations

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Related concernsRelated concerns Internal Revenue Service

◦ DOL only acts on its own behalf◦ Issues in DOL matter could raise excise tax

concerns, i.e. Section 4975 if any prohibited transactions Section 4980D if any health plan violations

◦ Tax qualification issues are referred to IRS Participant Complaints

◦ DOL action does not bind Plan participants◦ Participants can’t get same recovery twice

Internal Revenue Service◦ DOL only acts on its own behalf◦ Issues in DOL matter could raise excise tax

concerns, i.e. Section 4975 if any prohibited transactions Section 4980D if any health plan violations

◦ Tax qualification issues are referred to IRS Participant Complaints

◦ DOL action does not bind Plan participants◦ Participants can’t get same recovery twice

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Voluntary Fiduciary CorrectionVoluntary Fiduciary CorrectionProgram (VFCP)Program (VFCP)

The VFCP is NOT available if a plan isalready under review If Plan is already being reviewed and

attempt VFCP it will be denied If have self-identified fiduciary violations,

and not under review, consider enteringthe VFCP and addressing the issues raisedbefore EBSA opens an investigation!

The VFCP is NOT available if a plan isalready under review If Plan is already being reviewed and

attempt VFCP it will be denied If have self-identified fiduciary violations,

and not under review, consider enteringthe VFCP and addressing the issues raisedbefore EBSA opens an investigation!

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Questions?Ivelisse Berio LeBeau, Esq. José M. Jara, Esq.Sugarman & Susskind, PA FisherBroyles100 Miracle Mile, Suite 300 445 Park Avenue, 9TH Fl.Coral Gables, FL 33134 New York, NY [email protected] [email protected] (646) 942-3270

Questions?Ivelisse Berio LeBeau, Esq. José M. Jara, Esq.Sugarman & Susskind, PA FisherBroyles100 Miracle Mile, Suite 300 445 Park Avenue, 9TH Fl.Coral Gables, FL 33134 New York, NY [email protected] [email protected] (646) 942-3270

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Ivelisse Berio LeBeau, Esq.Ivelisse Berio LeBeau, Esq.Ms. Berio LeBeau has been working in the employee benefits law field for morn than 20 years.Ivelisse counsels the boards of trustees of jointly administered multiemployer pension and welfarebenefit funds; represents fiduciaries in litigation and in connection with government agencyinvestigations; represents employees in employment law matters, including participants in ERISAbenefit plans; and provides general ERISA compliance advice to plan sponsors. At present herpractice has focused on the requirements and implications of the Affordable Care Act; theresponsibilities of service providers to benefit plans; and representing plans and their trustees ininvestigations conducted by the U.S. Department of Labor.From 1994 to 2007 Ivelisse served as a Trial Attorney in the Solicitor’s Office of the U.S.Department of Labor. At the DOL she represented the Employee Benefits Security Administration(“EBSA”) in lawsuits brought under ERISA alleging that fiduciaries to employee pension and welfarebenefit plans breached fiduciary duties imposed by ERISA or were engaged in transactionsprohibited under ERISA, including actions against fiduciaries who had made imprudent investmentdecisions and against service providers who generated and retained undisclosed indirectcompensation. Ivelisse also worked closely with EBSA investigators providing legal support andassistance during EBSA investigations.In September of 2015 Ms. Berio LeBeau was inducted as a Fellow of the American College ofEmployee Benefits Counsel, an invitation-only organization of nationally recognized employeebenefits lawyers who have made significant contributions to the advancement of the employeebenefits field.Ms. Berio LeBeau is co-editor of Employee Benefits Law, 3d edition, and Editor in Chief of the 2014and 2015 Supplements to Employee Benefits Law, published by Bloomberg BNA Books. This legaltreatise is written using contributions by members of the Employee Benefits Committee of theAmerican Bar Association’s Labor and Employment Law Section. Ivelisse is also a frequent speakeron employee benefits law topics at conferences and seminars, including those sponsored by theAmerican Bar Association, the International Foundation of Employee Benefit Plans, the Florida BarLabor and Employment Section, and local bar and trade organizations.

Ms. Berio LeBeau has been working in the employee benefits law field for morn than 20 years.Ivelisse counsels the boards of trustees of jointly administered multiemployer pension and welfarebenefit funds; represents fiduciaries in litigation and in connection with government agencyinvestigations; represents employees in employment law matters, including participants in ERISAbenefit plans; and provides general ERISA compliance advice to plan sponsors. At present herpractice has focused on the requirements and implications of the Affordable Care Act; theresponsibilities of service providers to benefit plans; and representing plans and their trustees ininvestigations conducted by the U.S. Department of Labor.From 1994 to 2007 Ivelisse served as a Trial Attorney in the Solicitor’s Office of the U.S.Department of Labor. At the DOL she represented the Employee Benefits Security Administration(“EBSA”) in lawsuits brought under ERISA alleging that fiduciaries to employee pension and welfarebenefit plans breached fiduciary duties imposed by ERISA or were engaged in transactionsprohibited under ERISA, including actions against fiduciaries who had made imprudent investmentdecisions and against service providers who generated and retained undisclosed indirectcompensation. Ivelisse also worked closely with EBSA investigators providing legal support andassistance during EBSA investigations.In September of 2015 Ms. Berio LeBeau was inducted as a Fellow of the American College ofEmployee Benefits Counsel, an invitation-only organization of nationally recognized employeebenefits lawyers who have made significant contributions to the advancement of the employeebenefits field.Ms. Berio LeBeau is co-editor of Employee Benefits Law, 3d edition, and Editor in Chief of the 2014and 2015 Supplements to Employee Benefits Law, published by Bloomberg BNA Books. This legaltreatise is written using contributions by members of the Employee Benefits Committee of theAmerican Bar Association’s Labor and Employment Law Section. Ivelisse is also a frequent speakeron employee benefits law topics at conferences and seminars, including those sponsored by theAmerican Bar Association, the International Foundation of Employee Benefit Plans, the Florida BarLabor and Employment Section, and local bar and trade organizations.

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Jose M.Jose M. JaraJara, Esq., Esq.

Mr. Jara has over 20 years of ERISA and employee benefits experience,ranging from governmental compliance, fiduciary liability insurance, tothe application of ERISA’s fiduciary standards and prohibitedtransaction provisions. Mr. Jara has extensive experience resolvingissues for corporate plan sponsors and multiemployer plans beforethe U.S. Department of Labor, where he was formerly a seniorpension law specialist and investigator.

Mr. Jara has over 20 years of ERISA and employee benefits experience,ranging from governmental compliance, fiduciary liability insurance, tothe application of ERISA’s fiduciary standards and prohibitedtransaction provisions. Mr. Jara has extensive experience resolvingissues for corporate plan sponsors and multiemployer plans beforethe U.S. Department of Labor, where he was formerly a seniorpension law specialist and investigator.

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