Employer not Required to do Emergency Withdrawal Disclosure

May 19, 2010 (PLANSPONSOR.com) – The Bank of America Corp. (BofA) was under no obligation to provide detailed disclosures about its 401(k) Restoration Plan emergency withdrawals.

U.S. District Judge Rebecca R. Pallmeyer of the U.S. District Court for the Northern District of Illinois said Section 102 of the Employee Retirement Income Security Act (ERISA) carries no mandate for such plans to explicitly set out the conditions under which participants can take an emergency withdrawal.

Former BofA employee Jeffrey Wescott alleged in his lawsuit that he made a request for an emergency withdrawal of $165,000 from BofA’s 401(k) Restoration Plan for highly compensated employees. BofA approved Wescott’s request for a withdrawal, but it limited the withdrawal to $25,000.

BofA argued that the plan was a top-hat plan and was exempt from disclosure rules imposed by ERISA Section 102. BofA further argued that even if the plan was found to be subject to Section 102, that provision of ERISA does not require detailed information about emergency withdrawals.

The case is  Wescott v. Bank of America Corp., N.D. Ill., No. 09 CV 3221.