Just as more complaints roll in regarding the Department of Labor’s planned release of revised fiduciary rules for retirement accounts, a federal district court in Philadelphia has ruled in favor of a DOL fiduciary breach suit brought in 2009, levying a $39.8 million judgment in the case.
After nearly six years of litigation, the court on Feb. 6 entered a $39.8 million judgment, protecting the rights of workers who participated in more than 400 death benefit plans mismanaged by lawyer John J. Koresko V and the companies he controlled, as well as a former associate, Jeanne Bonney.
The judge ruled that Koresko of Bridgeport, Pennsylvania, and other defendants diverted tens of millions of dollars in plan assets through more than 21 accounts using more than 18 different entities at more than eight different banks.
“Spanning more than 12 years, the scheme saw assets from the plans’ trusts, used for real estate purchases in South Carolina and the Caribbean island of Nevis, to pay outside attorneys, lobbying expenses, operational expenses of Penn-Mont Benefit Services Inc., and Koresko’s law firms, and for Koresko’s personal expenses, such as boat rentals and utilities,” the order states.
“The defendants completely disregarded the duty of loyalty they owed to the employee benefit plans and the workers who rely on them,” said Phyllis Borzi, Assistant Secretary of Labor for Employee Benefits Security, in a statement. “In an ideal world, this does not happen. When it does, there is justice in undoing this massive fraud, and in banning the defendants from coming anywhere near employee benefits again.”
The plans primarily provided death benefits to participants nationwide and were established in connection with Koresko’s Regional Employers’ Assurance Leagues Voluntary Employees’ Beneficiary Association and Single Employer Welfare Benefit Plan, the order states.
The court found that Koresko and the following defendants, all fiduciaries, transferred plan assets out of the plans’ trusts, in violation of the Employee Retirement Income Security Act:
- Penn-Mont Benefit Services, Inc., of Bridgeport, which is owned by Koresko;
- Koresko’s current and former law firms;
- Jeanne Bonney, an attorney formerly associated with the law firms; and
- Penn Public Trust, a company controlled by Koresko.
Nearly $20 million of the amount due to the plans is frozen in accounts under the control of an independent fiduciary, after a July 2013 court order. The Feb. 6 decision found the defendants, with the exception of Bonney, liable for $19,852,114 in restitution for losses and disgorgement of profits, which represents the remaining balance of the total diverted assets.
The DOL’s redraft of its rule to amend the definition of fiduciary under ERISA is expected to be filed at the Office of Management and Budget for a 90-day review any day now. Once OMB reviews the redraft, DOL will put it out for public comment.
The law firm Debevoise & Plimpton told the Financial Services Roundtable in a Wednesday memo that proponents of the “expansive new [DOL fiduciary] rules are likely failing to consider that without the encouragement that financial professionals provide to low- and moderate-income investors, these individuals would save less or not at all.”
Wrote Debevoise in its memo: “Any change to current rules that would increase the regulatory burdens on financial professionals who service small plans and low- and moderate-income retirement savers will, in turn, likely result in knowledgeable and experienced financial professionals ceasing to make their services available to such plans and retirement savers.”
Moreover, the memo states that “any change in the current rules that would have the effect of prohibiting the receipt of compensation through ‘revenue sharing’ services that financial professionals provide will likely result in a substantial increase in the out-of-pocket costs borne by these retirement savers.”
But in a Jan. 13 internal memo to senior White House advisors, Jason Furman, chairman of Obama’s Council of Economic Advisers, states that DOL’s redraft “represents a middle ground,” and that he agrees with DOL that the current regulatory environment allows brokers to give “conflicted” advice, which costs retirement savers more than $6 billion a year.
Marcus Stanley, policy director of Americans for Financial Reform, a coalition of more than 250 national, state and local groups who advocate for reform of the financial sector, told ThinkAdvisor in a Wednesday email message that Debevoise is analyzing a proposal that “they haven’t even seen yet,” adding that the “high-priced” law firm’s concerns are “hypothetical scare stories about what the unreleased proposal might contain, along with unsubstantiated speculation that it might reduce savings.”
But Kent Mason, a partner with Davis & Harman in Washington, says that Debevoise “makes a compelling case regarding the potential harm that could be done by the DOL fiduciary project if the project eliminates access to investment assistance for low and middle-income individuals.”
--- Check out Watchdog Slams Sen. Johnson for DOL Fiduciary Comments on ThinkAdvisor.