Judge: Pension Funds Not Shielded for Restitution Payment

June 13, 2003 (PLANSPONSOR.com) - ERISA's anti-alienation provision doesn't shield a participant whose only assets are in a pension fund from having to make court-ordered restitution, according to a federal judge's ruling.

>US District Judge Shira Scheindlin of the US District Court for the Southern District of New York said the anti-alienation provision applies only to actions brought against a retirement plan, not to those against a beneficiary, as in the current case involving Ghanshyam Kalani. Kalani was ordered by the court to make a lump-sum payment of $60,000 in restitution and to pay 10% of his earnings through his period of supervised release.

>Scheindlin turned aside Kalani’s arguments that ERISA would protect approximately $67,000 he had in his pension. Scheindlin pointed out that the restitution order did not direct Kalani to liquidate his pension funds to make the payment. How Kalani obtained the money was up to him, Scheindlin said.

>The judge also indicated that Kalani had approximately $60,000 in his checking and savings accounts. If Kalani had paid the money, as he was required to do, his pension assets would not have been at issue, the court said. “To reward Kalani for dissipating assets that could have been used to pay restitution would be a troubling result,” Scheindlin wrote.

The case is U.S. v. Kalani, S.D.N.Y., No. S3 98 CR 1238-06 (SAS), 5/23/03).

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