Many with Suspended 401(k) Matches Still Get DB Benefits

A new research report suggests that many workers at companies suspending their 401(k) match are nonetheless covered by a traditional pension plan.

The Employee Benefit Research Institute (EBRI) report says that of the of 251 401(k) plan sponsors that have suspended matching contributions for their approximately 4.4 million workers, those employing 50% of the workers also maintained an open defined benefit plan.

An additional 16% of workers were with employers funding a frozen defined benefit plan and 8% of the workers were with an employer that had both an open and a frozen defined benefit plan that carried funding obligations, according to EBRI.

Never miss a story — sign up for PLANADVISER newsletters to keep up on the latest retirement plan adviser news.

The report says that of the approximate total of 4.4 million workers in the surveyed firms, 20% are with an employer offering an open traditional defined benefit plan and 30% are with an employer with an open cash balance plan. An additional group of workers, which could be as high as 730,000, work for employers that have some union workers and may be required to contribute to multi-employer defined benefit plans.

For the 16% of workers employed by a firm where the only defined benefit plan is frozen (as opposed to those employers that have both an open defined benefit plan and a frozen defined benefit plan), the loss of the 401(k) match is most serious for those who do not have a frozen benefit in the frozen plan because they were hired after the date of the freeze, the report says.

“For the 20% to 30% who are with an employer where the only retirement plan appears to be a 401(k) plan, suspension of the matching contribution likely means no employer contribution to retirement for workers unless and until the match is resumed,” the EBRI research notes.

The report is available here.

Broker Copyright Infringement Claim not Time-Barred, Court Rules

A three-judge court of appeals ruled that a federal district court should not have reversed a copyright infringement case brought by broker The Graham Co. against broker USI Holdings Corp.

In this case, insurance brokerage USI infringed copyright law by using client proposal templates from Graham, an insurance brokerage firm that provides property and casualty insurance services to businesses.

Background

Never miss a story — sign up for PLANADVISER newsletters to keep up on the latest retirement plan adviser news.

Thomas Haughey worked for Graham as a producer—serving as an intermediary between clients and insurance companies—until 1991, according to the court opinion. Graham’s president, William Graham, developed a template called the Standard Works to be used by producers for client-specific proposals.

After Haughey left the firm, he continued to use the Standard Works, distributing it to employees at his new employer, insurance brokerage firm Flanigan, O’Hara & Gentry (FOG). In 1995, FOG was acquired by USI Holdings, and the Standard Works were made available to USI employees. Graham did not discover USI’s infringement until November 2004, when a client showed one of Graham’s producers a copy of a USI proposal to the client.

The Case

The Copyright Act only allows a three-year window for civil action—however, in this case, Graham said it discovered the infringement within three years of bringing suit. The court had to decide whether the three years count from the discovery of a copyright infringement, rather than the actual infringement.

The District Court concluded that the discovery rule applied to civil actions under the Copyright Act, and the case proceeded to a jury trial, according to the court opinion. The jury concluded that Graham’s infringement claims were not time-barred and awarded him $16.6 million against USI and another $2.3 million against Haughey.

However, a district court overturned that finding, ruling that Graham was time-barred from recovering for acts of infringement that occurred more than three years before it filed suit.

The case went to a second jury trial for damages for the three-year before Graham’s filing, and Graham was awarded $1.4 million against USI and $268,000 against Hauhney.

Last week, the 3rd Circuit Court of Appeals reversed the district court’s ruling, saying that the court erred in ruling that Graham’s claims were time-barred. The court is sending the case back to the district court to reconsider.

The case is William A. Graham Company d/b/a The Graham Company v. Thomas P. Haughney; USI MidAtlantic Inc., No. 08-2007.

«