Posts tagged with "retirement"

Retirement Credits Denied For Teacher In Suspension for Sticky Fingers

In the case of Sekula v. State Teachers’ Retirement Board, a teacher appealed a decision by  the Teacher’s retirement board when it denied his request to purchase retirement credits while he was suspended from teaching. A court’s review of the board’s decision is limited, because the board is an administration. The court may only decide whether the board acted unreasonably, illegally or in abuse of its discretion. In light of these circumstances, the court must confirm the agency board’s decision.

The teacher had been accused of misappropriating some computer equipment belonging to the town. The superintendent of schools requested a municipality’s board of education to consider terminating the teacher’s contract of employment. The teacher and the board of education entered into a settlement agreement. The agreement provided that the teacher was not to receive any seniority or service credit for his employment for a specified school year due to a disciplinary suspension. The teacher attempted to make contributions to the Teachers’ Retirement System and claimed that he was on a “formal leave of absence” as provided by the agency’s rules. The administrator of the system refused to accept the contributions. The teacher claimed that he had wrongfully been deprived of retirement credits.

Based on the evidence in the record and the applicable law and regulations, the court could not conclude that the Board acted arbitrarily or abused its discretion in determining that the teacher’s disciplinary suspension did not constitute a “formal leave of absence” within the meaning of the Teachers’ Retirement Statutes. The teacher had been put on leave for misconduct. There was no other evidence to indicate that the board should have found this “leave” to not be formal. Rather, all events relating to his dismissal proved to the contrary.

This case was not handled by our firm. However, if you have any questions regarding this case, or any education matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.


Source: Sekula v. State Teachers’ Retirement Bd., 1992 Conn. Super. LEXIS 1191, 1992 WL 96731 (Conn. Super. Ct. May 4, 1992)

***All posts for the MayaLaw.com blog are created as a public service for the community. This case overview is intended for informational purposes only, and is not a solicitation of any client.***

State Employee Retirement Benefits Payments are Not Exempt from Garnishment by Victims of Violent Crime

State Employee Retirement Benefits Payments are Not Exempt from Garnishment by Victims of Violent Crime

Klingman v. Winters, KNLCV020560881, 2010 WL 5493498 (Conn. Super. Ct. Dec. 8, 2010)

In a case before the Superior Court of Connecticut, a victim of a violent crime sought to have a wage execution enforced against the retirement payments of her convicted assailant in order to collect the awarded judgment. The court found that the claim for a wage execution was valid and enforceable.

The plaintiff was awarded a $240,000 judgment for injuries she sustained from a physical attack by the defendant. The judgment was entered on a four-count complaint claiming negligence, reckless and wanton assault, intentional assault and violation of the Violence Against Women Act of 1995, 42 U.S.C. § 13981, based upon the applicable Connecticut General Statutes. The defendant declared bankruptcy; however, the bankruptcy court found that the plaintiff’s judgment was not subject to bankruptcy exemptions. In its memorandum of decision, the bankruptcy court characterized the attack as “vicious and brutal” and the injuries inflicted as “willful and malicious.”

A wage execution was entered against the defendant and the defendant’s employer, the State of Connecticut, and was paid to the plaintiff until the defendant retired. The plaintiff applied for a new wage execution, which was served on the State and returned by reason of the defendant’s retirement. The State contended that it discontinued payments on the wage execution because the defendant was placed on hazardous duty disability retirement and the execution was impermissible according to Connecticut law prohibiting assignments of state employees’ retirement benefits, Conn. Gen. Stat. § 5-171.

Under Connecticut law, retirement benefits of state employees are intended to support the member or beneficiary who is entitled to those payments; therefore, any assignment of such benefits is “null and void.” Conn. Gen. Stat. § 5-171. These benefits are “exempt from the claims of creditors.” However, if these general provisions are contrary to the law governing a particular circumstance, the law dictates “any payment shall be exempt to the maximum extent permitted by law.” Id. Connecticut law governing the general availability of retirement income to creditors, Conn. Gen. Stat. § 52-321a, exempts “any pension plan, annuity or insurance contract or similar arrangement … established by federal or state statute for federal, state or municipal employees for the primary purpose of providing benefits upon retirement by reason of age, health or length of service” from the claims of all creditors of the plan beneficiary. Conn. Gen. Stat. § 52-321a(a)(5). However, this law also provides a specific exception for victims of violent crime: “Nothing in this section … shall impair the rights of a victim of crime … to recover damages awarded by a court of competent jurisdiction from any federal, state or municipal pension, annuity or insurance contract or similar arrangement … when such damages are the result of a crime committed by [the] participant or beneficiary.” Conn. Gen. Stat. § 52-321a(b).

The plaintiff argued that the defendant’s retirement payments should be garnished pursuant to the Connecticut law governing the availability of retirement income to creditors, Conn. Gen. Stat. § 52-321a. She asserted that this law governed her particular circumstance as a victim of violent crime, and established an exception to the exemption of state employee retirement benefits stated in Section 5-171.

The plaintiff’s argument raises an issue of first impression in the Connecticut. Connecticut appellate courts have not addressed the specific issue of a victim’s right to enforce a withholding order pursuant to law governing the availability of retirement income to creditors, Conn. Gen. Stat. § 52-321a. Discussion of the general applicability of this law has been limited to trial court decisions regarding alimony and child support obligations. These cases have consistently found that pension benefits covered by Section 52-321a are not exempt from income withholding orders. See, e.g., Sinicropi v. Sinicropi, 23 Conn. L. Rptr. 49 (Conn. Super. Ct. 1998); Foley v. Foley, 20 Conn. L. Rptr. 644 (Conn. Super. Ct. 1997).

The court found that the plaintiff was a victim of a crime; therefore, her claim for a wage execution upon the retirement benefits of the defendant fell within the statutory exception of Section 52-321a(b) and constituted a particular circumstance that fell within the statutory exception of Section 5-171. The court ordered that a wage execution may issue against the retirement benefits payments to the defendant by the State of Connecticut.

Should you have any questions relating to personal asset protection issues, please do not hesitate to contact Attorney Susan Maya, at SMaya@Mayalaw.com or 203-221-3100, and Attorney Russell Sweeting, at RSweeting@Mayalaw.com or 203-221-3100, in the Maya Murphy office in Westport, Fairfield County, Connecticut.

Continue Reading

In Divorce Action, Family Business Deemed Marital Asset, Wife Entitled to One-Half Interest

Written by Lindsay E. Raber, Esq.

In a recent divorce action, the Superior Court of Connecticut, Judicial District of Stamford-Norwalk at Stamford declared, as a marital asset subject to division, a business the husband formed and from which he officially retired but continued working for thereafter. The plaintiff wife and defendant husband were married for thirty-eight (38) years and resided in Stamford. The husband was the primary breadwinner and controlled finances within the marriage. Among a number of businesses and properties in which the husband held interest was one he formed in the early 1990s. This family-run business venture provided lucrative income for the husband, which supported a very comfortable lifestyle. Until the time he retired, the husband was the principal officer of the business, and on January 1, 2012, the husband retired “with the intention of turning it over to his elder daughter.” However, evidence was presented that despite his official retirement the husband remained active with the company, including check-signing power.

In its findings, the trial court did not find credible the husband’s testimony regarding his retirement from the family business, and believed he “continues to play and will continue to play a significant role in the business.” As such, the court believed it proper to consider the husband’s earning capacity while crafting alimony and child support orders. It deemed the business a marital asset, to which the wife had a fifty (50) percent interest in the net proceeds from its sale. The trial court enjoined and prohibited the husband from selling or transferring his interest in the company. If the husband attempted to do so without court approval, it would be in violation of automatic orders, and the sale or transfer would be treated as void ab initio, or from the beginning.

Whether advancing or defending a pre- or post-judgment motion regarding awards of alimony and assignment of property, a divorced individual is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.
________________________________________________________________________________
Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

Keywords: divorce attorney ct, divorce attorneys in ct, divorce attorneys ct, divorce attorney Connecticut, Connecticut divorce attorney, divorce attorney, divorce attorneys NYC, ct lawyers, Connecticut family attorney, divorce lawyer in ct, free divorce consultation, free consultation family law, divorce in ct, free consultation family law, Connecticut divorce lawyer, divorce attorney for men, divorce attorney for women, free divorce attorney, divorce lawyers in ct, ct divorce laws, ct divorce attorney, family law firm, divorce attorney Fairfield, attorneys in Connecticut, family law office, ct divorce mediation, best divorce attorney in ct, lawyers in ct, uncontested divorce, divorce lawyer nyc, Connecticut divorce laws, best divorce attorney, divorce attorney Hartford, new haven divorce attorney, divorce, lawyer, attorney, law firm ct, law office, legal advice in ct, ct divorce attorneys, family attorney, domestic violence rights, Connecticut, marital property rights, CT divorce mediation, legal separation Connecticut, child custody laws, child support litigation, contested, uncontested, annulments, alimony, mediator, spouse, spousal support law, asset division, visitation right, premarital agreements, prenup, prenuptial agreement, prenup NY, restraining orders, appeals, custody modifications, legal separation CT, prenup in CT, custody in CT, filing divorce in CT, filing, lawyers, attorneys, family law in CT, family in NY, Connecticut divorce attorney, divorce law NY, matrimonial law CT, custody NY, child custody CT, property division in CT, dissolution of marriage in CT, marriage, divorce NY, New York divorce, visitation in CT, visitation rights in CT, post marital agreements, divorce law firm CT, divorce law firm NY

Continue Reading

Federal Court Does Not Vacate FINRA Arbitration Award Denying ERISA Claims

Stephen P. Finkelstein v. UBS Global Asset Management (US) Inc. and UBS Securities LLC, 2011 WL 3586437 (S.D.N.Y. Aug 9, 2011)

In a case before the Southern District of New York, Stephen P. Finkelstein (“Finkelstein”) filed a petition to vacate part of a Financial Industry Regulatory Authority (“FINRA”) Arbitration Award dated October 20, 2010, pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 10. UBS Global Asset Management (US), Inc., and UBS Securities LLC, (collectively “UBS”) filed a cross-motion to confirm the arbitration award pursuant to the FAA, 9 U.S.C. § 9. The court denied Finkelstein’s motion to vacate and granted UBS’s motion to confirm the arbitration award in their favor.

The underlying dispute is based on UBS’s denial of Finkelstein’s claim for a special payment under the UBS severance pay plan, which is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132. Finkelstein began his employment with UBS in 2002. In April 2006, he was internally transferred to a hedge fund as a portfolio manager responsible for a variety of subprime securities. Within a year of his transfer, the hedge fund suspended his trading authority due to losses of over $300 million in his positions. A few months later, UBS closed the hedge fund based on its overall losses; hedge fund employees were either offered new jobs or terminated. Finkelstein was terminated without cause in August 2007.

The UBS separation program contained a provision offering a special payment to employees who were terminated on or after October 1, but before the date on which bonuses are usually paid. As part of the closure of the hedge fund, UBS adopted a supplemental program that amended the special payment provision to provide eligible employees with a special payment at the discretion of the hedge fund’s management, even though these employees were not terminated on or after October 1. The written eligibility requirements of the supplemental program specified dates of employment and involuntary termination; the hedge fund’s management exercised its discretion to define the formula for calculating the amount of the special payment and to exclude employees who were responsible for substantial losses at the time of the hedge fund’s closure. Therefore, despite having satisfied the written eligibility requirements of supplemental program, Finkelstein was offered a separation package that did not include a special payment.

Pursuant to the separation program’s grievance procedures, Finkelstein submitted a claim for benefits demanding a special payment that was equivalent to 25-percent of his 2006 bonus, which was in accordance with the formula determined by the hedge fund management. Although he acknowledged the losses on his 2007 trading book, Finkelstein attempted to explain that greater than half the losing positions were purchased by his partner without his consent and that the remainder of the losses could be recovered over time. The severance committee denied Finkelstein’s claim, stating that the hedge fund’s management had appropriately exercised its discretion in denying him a special payment. Finkelstein requested a review of the severance committee’s denial of his claim, and was again denied his demand for a special payment.

In December 2008, Finkelstein filed a Statement of Claim with FINRA seeking an award of the special payment. FINRA appointed a panel of three arbitrators to hear the matter and, in October 2010, entered an award in favor of UBS without any explanation or rationale.

Finkelstein filed a petition in federal district court to vacate the arbitration award on the following three grounds: (a) the arbitration panel decision was in “manifest disregard” of ERISA, 29 U.S.C. § 1145; (b) the arbitration award was procured through the fraudulent concealment of material information by UBS; and (c) the arbitrators refused to hear evidence pertinent and material to the controversy.

Vacating an arbitration award on the basis of manifest disregard of the law requires the challenging party to demonstrate that the arbitrators clearly defied the law either by rejecting precedent or pronouncing a decision that strains credulity. See Stolt–Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85, 92–93 (2d Cir.2008), reversed on other grounds, 130 S.Ct. 1758 (2010). However, even if the arbitrators do not explain the reasons for their decision, the court will uphold the arbitration award “if a justifiable ground for the decision can be inferred from the record.” Id. at 97. In his petition, Finkelstein contended that the FINRA arbitration panel manifestly disregarded ERISA, 29 U.S.C. § 1145, on four different grounds. The most significant basis for his contention was that the arbitration panel should have rejected UBS’s unwritten, oral modification of the ERISA severance pay plan to exclude employees responsible for substantial losses from special payment eligibility. Both the ERISA statute, 29 U.S.C § 1102(a)(1), and recent case law within the Second Circuit require that all amendments to employee benefit plans be in writing. However, the written documents of the hedge fund supplemental program expressly conferred the hedge fund management with certain discretionary powers; therefore, the court determined that it was not erroneous for the arbitration panel to conclude that the unwritten rule excluding employees who incurred substantially losses was a permissible exercise of this discretionary authority, rather than an oral modification of the supplemental program. Because the ERISA provision on oral modifications cited by Finkelstein was inapplicable, the arbitration panel had colorable justification to conclude that it was not violated. Consequently, the court determined that Finkelstein failed to demonstrate manifest disregard of ERISA on these grounds. The court also found that each of the remaining challenged panel determinations was supported by a colorable justification. Therefore, the court concluded that the arbitration award could not be vacated for manifest disregard of the ERISA statute.

Vacating an arbitration award on the basis of fraud under the FAA, 9 U.S.C. § 10(a)(1), requires the challenging party to produce clear and convincing evidence that there was fraud that could not have been discovered during the arbitration process and that such fraud is materially related to the award. Chimera Capital, L.P. v. Nisselson (In re MarketXT Holdings, Corp.), 428 B.R. 579, 590 (S.D.N.Y. 2010) (citing A.G. Edwards & Sons, Inc. v. McCollough. 967 F.2d 1401, 1404 (9th Cir. 1992) (per curiam). Finkelstein alleged that UBS concealed material information relevant to the dispute. However, the court determined that UBS could not have fraudulently concealed information that they had no obligation to disclose, and also determined that UBS did voluntarily disclose the challenged information in an accurate manner. Therefore, the court concluded that the arbitration award could not be vacated on the basis of fraud under the FAA.

Vacating an arbitration award on the basis of refusing to hear evidence pertinent to the dispute, 9 U.S.C. § 10(a)(3), has been interpreted by courts to mean that an arbitration award will not be opened to evidentiary review except “where fundamental fairness is violated.” Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir.1997) (quoting Bell Aerospace Co. Div. of Textron v. Local 516, 500 F.2d 921, 923 (1974)). The arbitration panel denied Finkelstein’s request for production of evidence concerning the value of any parallel investments held by the UBS Investment Bank. He contended this evidence was highly relevant because it would have negated UBS’s assertion that his trading activities sustained substantial losses. It was within the arbitration panel’s broad discretion to determine that the requested materials would have been irrelevant and/or unduly burdensome for UBS to produce. The court determined that the arbitration panel’s refusal to compel UBS to produce this evidence did not deny Finkelstein a “fundamentally fair” hearing because the scope of inquiry afforded him was sufficient to provide him with a reasonable opportunity to be heard and to enable the arbitration panel to make an informed decision. Therefore, the court concluded that the arbitration award could not be vacated on the basis of refusing to hear evidence.

The court denied Finkelstein’s petition to vacate the FINRA arbitration award, and entered judgment to confirm the arbitration award in UBS’s favor.

Should you have any questions relating to FINRA, arbitration or employment issues, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County, Connecticut at 203-221-3100 or at JMaya@Mayalaw.com.

Continue Reading