RESOURCES & NEWS
- Litigation Outlook for 2013: Obamacare, Banks, Pensions Will Make Lawyers Rich,
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Forbes - Williams Report: Pension News Update
- STATE UPDATES: Florida, Louisiana, & Maine
ForbesPENSION BACKGROUND
State Budget Solutions released a report in August 2012 finding that state pension liabilities represent trillions of dollars of unfunded state debt. The U.S. Census Bureau, Government Accountability Office, Federal Reserve Bank of Cleveland, and Mossavar-Rahmani Center for Business and Government at the Harvard Kennedy School detail the long-term chance of failure of the public pension system and the resulting state government fiscal crisis in a May 2012 report. Additional resources are available at the end of this update.
In attempts to reign in the costs of pensions, state lawmakers legislate pension reform. Challengers to those reforms often bring suit, alleging violations of state law, contracts, and the Constitution. Lawsuits also arise regarding the investment of pension funds, involving fiduciary duties of private investment firms as well as oversight liability of governments. As pension reform becomes more crucial to the fiscal solvency of the states, more litigation is inevitable.
STATE-BY-STATE ANALYSIS
6.27.12 Mobile County Circuit Judge James Woods is suing the Retirement Systems of Alabama based on a state law enacted last year that increases the amount that judges must pay toward their pensions from 6% of their salary to 8.5%, claiming that the increase violates a state Constitution prohibition against diminishing a judge’s pay during his term of office. The RSA counters that the pension increase is not a pay reduction, but a retirement benefit. PENDING.
Tonya Denson and members of the Alabama Retirement System v. the Retirement System of Alabama filed 6.17.11 ISSUE: Whether Retirement Systems of Alabama executives improperly invested billions of dollars in public employees’ retirement funds over 15 years by earning lower than average returns in violation of the “prudent man rule,” dictating that investments must be consistent with those a prudent man acting in like capacity would make. Case is PENDING in Circuit Court.
Katie Barnes, et. al. v. Arizona State Retirement System filed 8.11.11 ISSUE: Whether HB 2264 may constitutionally require public employee contribution increases, effectively implementing a 50/50 contribution scheme between employees and employers. HOLDING: The Maricopa County Superior Court held that the law changing the contribution scheme of pensions unconstitutional, and thus a violation of the state constitution and state statutes.
Arkansas Teacher Retirement System v. State Street Corporation filed 2.11.12 ISSUE: Whether State Street Bank violated Massachusetts law by maintaining a foreign exchange practice of inflating foreign exchange purchasing rates and deflating foreign exchange rates when selling currency, affecting the investments of the ATRS pension funds. Class action suit is PENDING in District Court for the District of Massachusetts. Oral arguments scheduled February 24, 2012. SETTLEMENT NEGOTIATION? State Street has entered settlement talks with a mediator over ATRS allegations as of August 9, 2012. NO SETTLEMENT: As of November 13, 2012, the private mediation talks failed.
In re JPMorgan Chase & Co. Securities Litigation filed August 22, 2012 (Arkansas, Oregon & Ohio) ISSUE: Whether JPMorgan engaged in high risk and speculative trades and made false statements after disclosing trading losses to six public pension funds, amounting to $4.4 billion in actual losses. (Arkansas Teacher Retirement System, State Teachers Retirement System of Ohio, School Employees Retirement System of Ohio, Ohio Public Employees Retirement System, Oregon Public Employee Retirement Fund and Swedish Pension fund Sjunde-AP-Fonden). Case is PENDING in U.S. District Court, Southern District of New York. A Bloomberg BusinessWeek article was published October 2, 2012 claiming that this JPMorgan Chase & Co. case will serve as a template for suits against other issuers, allowing “recycling” of claims. ALLEGATIONS that JPMorgan Chase & Co. turned its chief investment office into a secret hedge fund that cause more than $6.2 billion in losses were alleged in a revised class action complaint of a number of state pension funds against the bank, published November 21, 2012.
EXPECTED LITIGATION: In September, Governor Brown signed a bill reducing the amount employees are able to increase their pension plans, to take effect January 1, 2013. The law was passed within a larger measure to fix a loophole in the pension programs. Now, employees can no longer “cash in” unused holiday and vacation time to boost pension payments. California employees affected by the measure are expected to file suit shortly. November 19, 2012.
CalPERS sues the city of Compton, California, filed October 30, 2012 in Superior Court in Sacramento County ISSUE: Whether the city of Compton is required to make $1.99 million in pension contributions and $674,000 in health benefit contributions after failing to make these payments since September 21, 2012.
Civil Service Commission Hearing holding 3.16.12 HOLDING: Jeffrey Baker, a county investment officer, calculated risk beyond allowable limits in two sectors of the $8 billion San Diego County pension fund and was terminated for releasing the information outside of the protocols of the San Diego Employees Retirement Association, a firing upheld by the Commission. Baker responded to the ruling by saying he planned to APPEAL his firing in Superior Court.
A 1997 California Court of Appeals ruling held that the Governor cannot delay payments to the pension system to balance the budget because it violates the state employees’ contractual right to an actuarially sound retirement system.
Justus et. al. v. the State of Colorado and PERA filed 3.01.12 ISSUE: Whether SB1 is unconstitutional because it impairs retirees’ contractual right to receive pension benefits as the level promised when employees retired or became eligible to retire. SB1 legislates that COLA drops to the lower of 2% or based on the Consumer Price Index for Urban Wage Earners (CPI-W). COLA could drop to zero if PERA experiences a negative investment return year. DISMISSED by Denver District Court on June 29, 2011 as to the contractual PERA benefits, but PENDING on the non-contractual right to specific COLA benefits. On May 16, 2012, Colorado defendants and PERA defendants filed answer briefs with the Court of Appeals urging further authority and analysis of specific arguments raised by Plaintiffs, including the balancing test used in CO contracts clause cases. On June 15, 2012, Attorneys for Plaintiffs filed the final Reply Brief with the CO Court of Appeals, directly addressing whether a government may fairly impair a contract to which it is a party. HOLDING: On October 11, 2012, the Colorado Appeals Court concluded that the plaintiffs do have a contractual right to COLA benefits, but the court retains the ability to determine whether any impairment of that right is substantial, and if so, whether a reduction is reasonable and necessary to serve a significant and legitimate purpose prior to limiting that right.
COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS
Northern Mariana Islands Retirement Fund, Debtor filed 4.17.12 ISSUE: Whether the Northern Mariana Islands Retirement Fund is a “governmental unit” and therefore not eligible for relief under Chapter 11 of the Bankruptcy Code. As of 7.2.12, a notice regarding fees and expenses of professionals providing services to the debtor in the ordinary course of business was filed. HOLDING: On June 13, 2012, Judge Faris concluded that the fund is a government until, as defined by the Bankruptcy Code, and is therefore ineligible for Chapter 11 relief. The Court focused on whether the fund is an instrumentality of the Commonwealth and concluded that it is because it performs certain functions of the government. “Providing compensation and benefits to government employees is a quintessential government function.”
Office of Connecticut Attorney General: Pension Fund Settlement settled 9.20.04 FACTS: Then Attorney-General Richard Blumenthal sued Forstmann, Little & Co. for losing $125 million in state pension funds by making investments inconsistent with its contract with the state. HOLDING: On July 1, 2004, a Connecticut Superior jury found that the investment firm repeatedly breached its contract with the state, violated its fiduciary duty, and acted with gross negligence, in bad faith, or with willful misconduct. The jury did not award monetary damages. SETTLEMENT: FL&C agreed to pay the Connecticut Pension Fund $15 million to resolve all issues and return to the fund $1.2 million withheld from the state to cover legal expenses stemming from the suit.
George Williams et. al., v. Dept. Mgmt. Services and Florida Retirement System filed 6.30.11 ISSUE: Whether the legislature violated contractual and/or collective bargaining rights when imposed a 3% mandatory employee contribution and eliminating COLA for future services. The lawsuit centers on a 1974 law that halted employee contributions to the retirement system and dictates that the rights of the retirement system are contractual in nature and cannot be altered in any way. HOLDING: 3.6.12 the Circuit Court for the Second Judicial circuit and for Leon County, Florida, granted a motion for summary judgment by Plaintiffs, holding that portions of the SB2100 are unconstitutional as applied to individuals who are members of the FRS prior to July 1, 2011. ORAL ARGUMENTS: The Florida Supreme Court heard oral arguments in the case beginning September 7, 2012, on appeal by the government of a Florida Circuit Court ruling striking down the contribution changes. HOLDING: Florida Supreme Court upheld legislation requiring state employees to contribute 3 percent of their salaries to the state’s pension fund, reemphasizing the authority of the Legislature to long term benefits are not impaired. January 18, 2013.
Idaho Education Association v. the state of Idaho and C.L. Butch Otter, Governor filed 9.30.11 ISSUE: Whether SB1108 violated the Constitution when it effectively impaired existing and contractual obligations to teachers, specifically the IEA, by repealing the Early Retirement Incentive Program for public school educators. HOLDING: Idaho District Judge Hansen ceded that the law caused substantial contractual impairments, but that the Constitution allows for such action when it serves a key public purpose. The state has a significant and legitimate public purpose in imposing the regulation as a means of promoting efficiency and accountability within the public school system. APPEAL: 4.27.12 IEA appealed for declaratory judgment and injunctive relief. See complaint.
Proposition 1 & 2 known as the Idaho Teachers’ Collective Bargaining Veto Referendums, will be on the November 6, 2012 ballot in Idaho as veto referendums. One measure will repeal the newly passed law ending tenure and removing issues like workload and class size from contract negotiations. The second referendum will repeal the law dealing with collective bargaining.
The Chicago Teachers Pension Fund notified teachers who retired between June 2000 and August 2004, who were paid on a regular school calendar, that they may have been overpaid because their pensions were calculated differently than the Chicago Board of Education felt they should be. After seven years of litigation following a suit filed in 2004, CTPF accepted a settlement agreement on December 6, 2012 allowing for the recalculation of pensions. In addition to recalculations, the Board of Education will not seek overpayments from anyone who retired in 2000 to 2012.
Chicago Teachers Union v. Chicago Public Schools filed Wednesday, 10.31.12 ISSUE: Whether the a law passed by the Illinois General Assembly barring Chicago Public School teachers from participating in the public pension plan after going on leave to work for the Chicago Teachers Union is unconstitutional. The effect of the law prior to appeal was to allow labor union leaders to collect public pension benefits based on significantly higher union salaries.
Illinois reported that it owes $83 billion to its five public pension funds. Under new Governmental Account Standards Board and Moody’s Investment Services requirements, the state’s pension debt will more than double.
Board of Education of Chicago v. Public School Teachers’ Pension & Retirement Fund filed January 2005 ISSUE: Whether the Board of Education violated its legal duty under the Illinois Pension Code submitting a contribution that was $40,635,883 short of the requirement with unilateral authority. PENDING: Currently in procedural battle over whether the Board must redraft its complaint to name all 3,400 teachers as defendants, meaning they must find and serve each one with a copy of the suit. (10.12.11). Oral arguments are scheduled August 2, 2012.
Kentucky Retirement Systems, et. al., v. EEOC filed 6.19.08 ISSUE: Whether using age as one factor in retirement plan is arbitrary, thereby rendering the plan discriminatory on its face in violation of the Age Discrimination in Employment Act. HOLDING: The Supreme Court of the United States held in a 5-4 decision that the Kentucky system does not discriminate against workers based on age. The differences in treatment were not motivated by age, but rather by pension status.
Louisiana Court Rules Cash Balance Plan Is Unconstitutional on Technicality. 1.25.13. A Louisiana district court judge struck down as unconstitutional a recent law establishing a cash balance plan for some employees: $13.9 billion Louisiana Teachers’ Retirement System, $9.6 billion Louisiana State Employees’ Retirement System, and the $1.5 billion Louisiana School Employees’ Retirement System in Baton Rouge. The suit alleged that the votes received for the bill in the House of Representatives to move the bill to the Senate was insufficient under state law, which requires a 2/3 majority. No reference was made to the substantive proposals in the bill.
Louisiana Pension Funds Success in Merger Lawsuit published 10.11.12 According to the complaint filed by the City of Monroe Employees Retirement System and the Louisiana Municipal Police Employees Retirement System, the Goldman Sachs investment firm advised against a more lucrative investment opportunity because it stood to recognize a substantial benefit from an alternative investment. Although the defendants denied any wrongdoing, they SETTLED the lawsuit by modifying the terms of the $4.46 billion acquisition and cutting a $49 million fee from the agreement.
Louisiana Legislative Auditor Pension Report released 3.28.12 The report considers the likelihood of litigation resulting from the proposed legislation affecting public pension benefits, specifically: 1) increasing the minimum retirement age, 2) increasing employee contributions, 3) increasing the number of years used to calculate final employee average compensation, and 4) the merger of two independent public retirement systems.
Maine Association of Retirees v. Maine Public Employee Retirement System filed 2.13.12 ISSUE: Whether the legislature may constitutionally eliminate retired state employees’ and public school teachers’ COLA for three years and thereafter reduce the adjustments to 3% on the first $20k of a retirees’ pension. Prior to the change, the retirement system was authorized to grant COLA of up to 4% per year. PENDING in Maine District Court. MOTION FOR LEAVE TO INTERVENE filed 4.4.12 by Plaintiffs to allow additional plaintiffs to intervene, arguing that participation of additional union-intervenors will help to develop facts. See motion here. MOTION TO INTERVENE GRANTED. The Maine State Employees Association, Maine Education Association, and Maine State Troopers were granted permission by U.S. District Judge Nancy Torrensen to intervene in the lawsuit. GRANTED CLASS ACTION STATUS: A federal judge granted class action status in a ruling on Wednesday, November 21, 2012. Discovery will be complete March 27, 2013 and the expected trial date is August 5, 2013.
General Retirement System of Detroit v. the state of Michigan filed 4.18.11 ISSUE: Whether the Local Government and School District Fiscal Accountability Act Public Act 4 may constitutionally and unilaterally require the municipal government to transfer the assets of the local retirement system to another retirement system for any reason under certain circumstances. PENDING in the U.S. District Court Eastern District of Michigan Southern Division.
Swanson v. PERA filed 6.30.11 ISSUE: Whether the Minnesota legislature has the authority to amend the pension statutory formula used to calculate and adjust future pension benefits. HOLDING: the Ramsey County District Court rejected the suit, backing the Legislature’s policy-making authority, emphasizing that statutes are not contracts absent plain and unambiguous terms that show intent to contract. Plaintiffs will not appeal the court decision.
Firemen’s Retirement System of St. Louis Board of Trustees v. City of St. Louis filed 1.2.13 ISSUE: Whether Board Bill 109, Ordinance 69353, unconstitutionally impairs the contractual rights of firefighters to maintain current pension benefits and unconstitutionally allows the City of St. Louis to control the pension, as opposed to the state of Missouri. PENDING.
American Federation of Teachers v. State of New Hampshire filed 7.30.12. ISSUE: Whether the legislature violated the Contracts Clause, Takings Clause, Due Process Clause, and the state’s Contracts Clause in HB 653 and 1645 recalculating cost of living adjustments and redefined compensation. DECLINED INTERLOCUTORY TRANSFER on 9.26.2012. The parties briefs were due on December 14, 2012.
Professional Firefighters of NH, et. al., v. state of New Hampshire filed 2.13.12 ISSUE: Whether the legislature may withdraw more from the paychecks of veteran public employees to support pension reform. HOLDING: Merrimack County Superior Court held that it is illegal for the legislature to increase contributions for all employees who had worked for at least 10 years. The ruling declared legal the Legislature’s ability to affect new hires, including increasing the retirement age and reducing their ability to pad the future pension amounts. At this point, it is unclear whether the Attorney General will appeal.
Future litigation? Towns across NJ failed to cut hundreds of lawyers and other professionals from the public pension system despite a law passed five years ago requiring them to do so. The improper enrollments could cost the state $1.9 million annually. July 17, 2012.
Paul DePascale v. state of New Jersey filed 10.18.11 ISSUE: Whether the state may constitutionally compel judges to pay more towards pension and health benefits as a deduction that comes directly from their salaries. HOLDING: Mercer County Superior Court held that the salary diminishment is unconstitutional, as it is not a tax imposed on all citizens of the state of NJ, but a legislative action in contravention of the Constitution. Specifically, the court noted that while NJ may be facing difficult economic conditions, it couldn’t justify violating the portion of the Constitution that does not allow judges’ salaries to be reduced during their term.
New Jersey Education Association et. al., v. state of New Jersey & Chris Christie filed 7.2.11 ISSUE #1: Whether the NJ legislature impermissibly impaired the obligation of contracts and the right to due process by reducing pension benefits through the suspension of pension adjustments (COLA), increasing contribution of active employees, and increasing contributions of employees with fewer than 20 years of service to pay for medical benefits in retirement. HOLDING: 3.5.12 Defendant’s Motion to Dismiss for lack of subject matter jurisdiction is granted. The U.S. District Court New Jersey finds that the court is without subject matter jurisdiction because the Plaintiffs’ claims are barred by the Eleventh Amendment, there is no contractual right to any of the disputed items (therefore Contracts Clause claims are dismissed, Due Process claims must be dismissed because they cannot survive rational basis review, and the Plaintiffs’ Takings Clause claims must be dismissed because no protectable property interest in dispute items. ISSUE #2: Whether the NJ legislature may eliminate COLA increases for future retirees and those already collecting pensions and increase the retirement age by three years. HOLDING: Superior Court Judge Douglas Hurd upheld the NJ legislature’s ability to withhold COLA adjustments for retired public employees collecting state pensions.
In 1993, the New York Court of Appeals ruled that lawmakers violated the state constitution by trying to change the way government pension fund contributions were calculated. The new method was less expensive for the state, but would damage the pension fund’s fundamental soundness.
Bank of America Settlement, September 28, 2012 Bank of America agreed to pay $2.43 billion to settle a class action lawsuit related to the acquisition of Merrill Lynch at the height of the financial crisis. The lawsuit was filed on behalf of investors who bought or held Bank of America stock when the company announced its plans to buy Merrill Lynch in a $20 billion deal. After ML posted $27 billion in losses, BOA then asked for a bailout in the amount of $20 billion from the government. Two of Ohio’s public pension funds were among the plaintiffs in the case.
Sunyak v. City of Cincinnati, consolidated with Harmon et al. v. City of Cincinnati filed 07.01.11. ISSUE: Plaintiffs contended the changes violated the U.S. Contracts Clause, substantive due process, procedural due process, the Takings Clause, the Ohio Contracts Clause, and Ohio common law causes of action for breach of contract and breach of fiduciary duty. CONSOLIDATED: Amended complaint due by October 1, 2012. Discovery is due by March 1, 2013. Motions due by April 1, 2013. Final pretrial conference is scheduled for September 2013 and jury trial in October 2013.
In re BP, PLC Securities Litigation filed 7.21.10 ISSUE: Whether British Petroleum (“BP”) and its executives made fraudulent statements about the company’s safety measures and about the extent of the Gulf of Mexico spill, leading to losses in the states’ retirement systems between $181-229.4 million in aggregate BP stock. GRANTED MOTION TO DISMISS: 3.30.12 U.S. District Court for the Southern District of Texas granted BP’s motion to dismiss the ERISA stock drop class action lawsuit against BP. The Judge did leave open the possibility that the plaintiffs may refile and adequately allege that the defendants made misrepresentations while acting in a fiduciary capacity and failed to properly monitor other fiduciaries.
State of Rhode Island and Rhode Island Public Employees’ Retiree Coalition, et. al., v. Lincoln Chafee and Gina Raimondo filed June 22, 2012 ISSUE: Whether the Rhode Island Retirement Security Act violates the state Constitution by suspending COLAs until the pension system is 80% funding and by moving most employees to a hybrid pension plan. The Plaintiffs also allege that State Treasurer, Gina Raimondo, created a “manufactured crisis” in 2011 by dropping the pension fund’s investment outlook from 8.25% to 7.5%, sharply raising the contribution made by taxpayers. In an effort to stop pension reform beginning July 1, 2012, unions sued in Superior Court for a temporary restraining order to suspend the cessation of cost-of-living adjustments, raising of the retirement age, lowering the assumed rate of return on pension funds to 7.5% from 8.25%, and moving state employees onto a hybrid pension benefit plan. HOLDING: Superior Court Judge Sarah Taft-Carter denied the request just hours after unions launched three coordinated lawsuits on behalf of 30,000 state employees, retirees, and emergency responders. Defendants filed OBJECTION TO MOTION TO P’S CONSOLIDATE July 16, 2012, in to object to Plaintiff’s Motion to Consolidate. Defendant’s asked the Court to consolidate for purposes of discovery only and reserve judgment on whether the case should be consolidated for purposes of trial because consolidation is premature and therefore inappropriate. RECUSAL CONCERNS: On October 22, 2012, Judge Taft-Carter held a conference with all attorneys to address the State’s concerns that there was a conflict of interest. The Judge issued a bench decision finding that she is not recusing herself and that all of the pension cases are assigned to her. The State’s MOTION TO DISMISS scheduled for October 30, 2012 was moved to December 7, 2012. STATE REQUESTS HEARING BEFORE SUPREME COURT on November 19, 2012, to make a decision on whether to let Judge Taft-Carter to continue hearing the pension case, based on claims of conflict of interest because her son is a state trooper and mother receives benefits as the widow of the former Mayor of Cranston. SUPREME COURT DENIED REMOVAL of Judge Taft-Carter from presiding over the case, noting a substantial public interest in the pension case “requiring the resolution of complex questions of constitutional law, the speedy, effective, and efficient determination of which is of incalculable importance to all of the state’s citizens.” December 6, 2012. Both parties to the lawsuit agreed to MEDIATION to attempt to resolve issue and reach a settlement. The parties were referred to the Federal Mediation and Conciliation Service in Washington, D.C.; A progress report is due to Judge Taft-Carter by February 1, 2013. December 18, 2012.
South Dakota Retirement System v. state of South Dakota filed 4.12.12 ISSUE: Whether the South Dakota legislature violated the contract between the state and the SDRS when it trimmed the COLA increase for retirees’ in the states’ public pension plan. HOLDING: Circuit Court Judge Mark Barnett held that the Legislature has the constitutional authority to alter COLA benefits, because there is not a contract guaranteeing unchanged COLA benefits.
In re Nortel Networks Corp. ERISA Litigation filed 8.10.11 ISSUE: In a 401k/ESOP class action suit, whether Nortel Network Corp. violated fiduciary duties owed under ERISA to pension plan participants. SETTLEMENT: Related documents available, but specific details of settlement are not available in full.
Commonwealth of Virginia v. the Bank of New York Mellon Corporation filed 8.11.11 ISSUE: Whether BNY Mellon made false claims and statements in violation of the Virginia Fraud Against Taxpayers Act, resulting in harm suffered by the Commonwealth of Virginia, the Virginia Retirement System Fund, the Fairfax County and Fairfax County Retirement System Funds and the Arlington County and Arlington County Employees Retirement System Fund. Virginia asked the court for $120 million plus interest in damages. GRANTED MOTION TO DISMISS: BNY won dismissal of VA’s lawsuit claiming that the bank defrauded state pension funds through foreign currency transactions.
Washington Federation of State Employees v. state of Washington & Governor Christine Gregoire filed 10.12.11 ISSUE: Whether the legislature violated constitutional rights of equal protection and freedom from contract impairment when it ended automatic COLA for retirees in two of Washington’s older pension plans in HB 2021. The bill also raised the minimum benefit for older retirees if they meet certain service and year requirements. FINAL DECISION, PENDING FINAL ORDER: Thurston County Superior Court Judge Chris Wickham ruled that the legislature acted illegally when it eliminated annual increases in benefits to retirees in the PERS 1 and TRS 1 systems. The decision effects current and future retirees, but excludes workers who left government service before 1995. The law was intended to save the general fund $415 million from 2012-13 and another $525 million in 2013-15. It was also expected to reduce the pension plans’ unfunded liability by $3.8 billion.
1972, the Washington State Supreme Court found that the Governor violated the Contracts Clause of the Constitution when he tried to withhold government contributions to the retirement system.
ADDITIONAL RESOURCES:
Resource: Protection of Past and Future Accruals
Resource: Courts and Public Pension Change
Resource: Unfunded Pension Obligations and Chapter 9 Remedy
Please contact Kristie De Peña at kristie@sunshinereview.org with questions or comments.
