Hello to the newest member of our office - Akemi!

Our office has acquired a new member - Akemi, the betta fish! She has been a little quiet around the office so far, but we expect big things from her in the future.

Word to the Wise : When is investment advice subject to a fiduciary standard?

An interesting article here:

http://www.foxbusiness.com/personal-finance/2014/01/07/problem-with-investment-advice/


The article discusses how ERISA holds that people advising employees/retirees on investment accounts are held to a fiduciary standard - meaning they have to put the interests of the client first before their own. However, when is advice really investment advice, and when is it not? Since this is narrowly defined in ERISA, often advice does not meet the criteria of "investment advice", and therefore the advisor is not held to the standard of a fiduciary.

Moral of the story: be careful and do your own research when someone from your financial institution gives you advice or information. It may not always be what is in your own personal best interest - and the advisor does not always need to tell you the motivation behind their advice.

Be wary, investors!

Legal Non-Conforming Use Case

Our legal non-conforming land use law case made the front page of Minnesota Lawyer! Check out the article here.

Big win for property rights in Minnesota!

Our firm is happy to announce we won an important case at the Minnesota Supreme Court involving property rights for Minnesotans! The opinion was announced this morning in White v. City of Elk River.

The case involves a campground that was in existence before zoning was enacted by the City of Elk River. Once zoning was enacted, the campground was neither a permitted nor conditionally permitted use - therefore, it was a legal, non-conforming use. Later, the campground obtained a conditional use permit from the city. The land was then rezoned so campgrounds were again not permitted or conditionally permitted uses.

The question then becomes what happens if the city revokes the conditional use permit?

The Minnesota Supreme Court found that:

"A municipality may terminate a nonconforming use of land in accordance with Minn. Stat. § 462.357, subds. 1d-1e (2012) or Minn. Stat. § 465.01 (2012). But a
municipality lacks the authority to terminate a nonconforming use by requiring the property owner to obtain a conditional-use permit to continue the use and then revoking the conditional-use permit. Respondent therefore lacked the authority to terminate appellants’ nonconforming use by revoking the conditional-use permit."

This opinion shows Minnesota has great respect for property rights, and offers protection for businesses operating a legal non-conforming use. Governing bodies cannot terminate your use simply by requiring you to obtain a conditional use permit and then revoking that permit.


See the whole opinion here

  

Pension Plans and ERISA

ERISA is the federal law that spells out the rules regarding pension plans available to employees through their workplace. While ERISA does not generally regulate the content of plans, it does provide minimum standards for certain aspects of the plan such as how employees are informed about the pension plans, how plans should be funded, and how an employee's pension rights can become vested and therefore cannot be forfeited. ERISA also gives employees the right to sue the plan fiduciaries if they have wrongfully been denied benefits or if the plan fiduciaries have breached their fiduciary duty to plan participants.

Some common issues that employees encounter are miscalculation of benefits due to them under a pension plan or wrongful denial of benefits to which an employee is entitled. If you have been wrongfully denied benefits due to you because the plan has incorrectly determined you are not entitled to benefits, or has miscalculated the amount you are entitled to, you should speak to an attorney who specializes in ERISA who can guide you through what remedies may be available.

The Department of Labor has a wonderful resource for frequently asked questions at http://www.dol.gov/ebsa/faqs/faq_compliance_pension.html.

United States Supreme Court hears New ERISA Case

On October 15, 2013, the Supreme Court heard oral argument on a new ERISA case which will decide when a statute of limitations period will begin to run.

Check out the summary of the arguments here:

http://www.scotusblog.com/2013/10/argument-preview-when-can-an-erisa-limitations-period-start-to-run/

Social Security Disability Insurance and Long-Term Disability Benefits: Differences and Similarities

Social Security Disability Insurance and Long-Term Disability Benefits: Differences and Similarities

            Many people who qualify for long-term disability benefits may also qualify for Social Security Disability Insurance (or SSDI) benefits.  The definitions of disability are similar in most disability policies to the definition of disability used by the Social Security Administration (SSA). However, there are some notable differences between the two systems namely:

·        The SSA takes into account your age at the time you apply for benefits.  As a result, the older you are, generally the easier it will be to qualify for benefits.

·        Many disability policies separate the definition of disability into two time periods: the “Own Occupation period” and the “Any Occupation period.”  When you first apply for disability benefits, you are disabled if you cannot do your own job (this is the “Own Occupation period”) and at some point in the future, the definition often changes so that you will only be found to be disabled if you cannot do any job (this is the “Any Occupation period”). This split definition differs from the definition used by the SSA which is based on not being able to do any job. 

·        Both the SSA and your disability insurer can obtain opinions from doctors they hire or consult to give an objective opinion of your health condition and whether you are disabled.  However, the SSA is supposed to give more credit to the records and opinions of your treating doctors than to the opinions of a doctor who is not your treating physician.  In contrast, a disability insurer can generally rely on whatever doctor the insurer deems appropriate.

·        The definitions of disability in these two benefit systems are similar, but not exactly the same.  So it is possible to qualify for one type of benefit but not the other.

When applying for benefits under a long-term disability plan, it is important to let the insurance company know if you have been approved for SSDI benefits.  The insurance company does not have to agree with the SSA’s determination of disability, but a finding of disability by the SSA is important evidence that cannot be simply ignored by an insurer when making its own determination of disability.

      If you have applied for both SSDI and long-term disability benefits and been denied by one or the other, you should consult an attorney with knowledge of the procedures for appealing the denial of benefits.