When historians look back upon the Employee Retirement Income Security Act, they will view the 1990s as ERISA's financial age, said David A. Hildebrandt.
Mr. Hildebrandt is a senior partner in the law firm of Dow, Lohnes & Albertson, Washington, and legal counsel for the Profit Sharing Council of America, Chicago.
The "huge amount of assets set aside and dedicated to qualified plans will be looked at by the Congress as a potential source for funding the deficit, and will be looked at by the Department of Labor as a breeding pool for blue- (and white-) collar criminals anxious to access its assets for their own illicit purposes," he said.
In a speech to the PSCA's March Midwest conference, Mr. Hildebrandt predicted development in ERISA enforcement over the next five years in the following areas:
more participant suits under federal common law;
an increase in Labor Department enforcement initiatives from local and regional offices;
new Internal Revenue Service enforcement programs, with an emphasis on monetary penalties as an alternative to tax disqualification.
"After 20 years under ERISA, a body of common law has not arisen," said Mr. Hildebrandt. Participants may soon have greater access to legal remedies for ERISA violations, said Mr. Hildebrandt, and a heightened awareness of using the court system for addressing issues.
"If federal common law in the securities area is followed, ERISA plaintiffs will not need to establish a clear connection between their damages and an action of the plan administrator, but will only need to show there has been a technical violation of the rules, and that they have been harmed in some way," he said.
