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ML BeneBits

The Employee Benefits Security Administration (EBSA) at the US Department of Labor (DOL) compiles statistics every year to measure its activities as the agency responsible for investigating and enforcing the fiduciary duties under the Employee Retirement Income Security Act of 1974 (ERISA). Statistics for the agency’s 2017 Fiscal Year enforcement activities are now available here. These statistics affirm that EBSA’s enforcement program remains extremely active, with a particular focus on terminated vested participant investigations.

In particular, these statistics indicate that in Fiscal Year 2017, EBSA recovered $1.1 billion, including $682.3 million in enforcement actions. In obtaining these monetary results, EBSA closed 1,707 civil investigations, with 65.3% of these cases resulting in monetary recoveries or other corrective action. EBSA referred 134 cases for civil litigation, and 50 civil cases were filed. In the criminal area, EBSA closed 307 cases (79 with convictions or guilty pleas) and obtained indictments against 113 individuals.

A few points are notable about EBSA’s reporting on its enforcement activities:

  • First, EBSA’s enforcement activities remain extremely active and underwent a significant increase even after the change in administration.

    For example, as compared to Fiscal Year 2016 (read the report here), total recoveries rose 42%, from $777.5 million in 2016 to $1.1 billion in 2017. This includes enforcement action recoveries, which nearly doubled from $352.0 million in 2016 to $682.3 million in 2017. These numbers suggest that the arrival of the new administration has not yet diminished EBSA’s enforcement efforts, or at least not EBSA’s ability to currently obtain significant enforcement recoveries.

  • Second, in the statistics, EBSA specifically notes that “[o]f the $682.3 million recovered in its investigations, EBSA helped terminated vested participants in defined benefit plans collect benefits of $326.7 million due and owing to them.” As has been previously noted in prior posts regarding DOL investigations, and Internal Revenue Service and Pension Benefit Guaranty Corporation guidance on missing participants, EBSA has made investigations involving such terminated vested participants a significant enforcement priority, and many large ERISA defined benefit plans have been the subject of these investigations. EBSA’s statement trumpeting these recoveries affirms that these investigations are a high priority for the agency; that they are resulting in monetary recoveries; and that these recoveries make up a substantial—nearly half—of EBSA’s Fiscal Year 2017 enforcement recoveries.

More generally, these enforcement statistics affirm that EBSA remains an active enforcement agency, with an extremely robust program to investigate and identify violations of ERISA’s fiduciary duties.