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Respond to Subpoena


Guest Kela
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Guest Kela

As a TPA, are we allowed to (required to) provide retirement plan history data to an outside party that was delivered to us by subpoena? This subpoena was issued by a local child support enforcement agency.

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As a TPA, are we allowed to (required to) provide retirement plan history data to an outside party that was delivered to us by subpoena? This subpoena was issued by a local child support enforcement agency.

That's more of a tricky question than most would think. The answer is a "cautious" maybe. If the subpoena is validly issued, was properly served upon your organization (and that includes actually making your organization the reponsible party pursuant to the subpoena (I've seen the "plan" being the entity served with a subpoena, with the TPA expected to comply - which it isn't), and you actually, as a service provider have the data being requested (and not that you can go and get it), then yes, you must comply. BUT, the subpoena can't make you obtain data not within your area of responsibility. For example (and this just came up with a TPA that I work with), a subpoena that requests participant level information over a specified period of time, including transaction details, was not valid with respect to the TPA because they don't deal in participant level information (even though they could get that info from the recordkeeper). That subpoena should have been directed to the recordkeeper, and we (properly, and politely) refused to comply (letting them know where the info could be obtained).

I certainly would suggest that it be run by counsel, and the plan sponsor/fiduciary for the plan involved.

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The recordkeeper I used to work for had similar issues when they received subpoenas addressed to the mutual fund company. It's pretty common for the people requesting information to have no idea who might have it, or who they should be contacting.

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As a TPA, are we allowed to (required to) provide retirement plan history data to an outside party that was delivered to us by subpoena? This subpoena was issued by a local child support enforcement agency.

This is why you need to have a close relationship with an attorney, even possibly on retainer.

There is no way you should make this decision without competent counsel.

William C. Presson, ERPA, QPA, QKA
bill.presson@gmail.com
C 205.994.4070
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  • 4 weeks later...
As a TPA, are we allowed to (required to) provide retirement plan history data to an outside party that was delivered to us by subpoena? This subpoena was issued by a local child support enforcement agency.

That's more of a tricky question than most would think. The answer is a "cautious" maybe. If the subpoena is validly issued, was properly served upon your organization (and that includes actually making your organization the reponsible party pursuant to the subpoena (I've seen the "plan" being the entity served with a subpoena, with the TPA expected to comply - which it isn't), and you actually, as a service provider have the data being requested (and not that you can go and get it), then yes, you must comply. BUT, the subpoena can't make you obtain data not within your area of responsibility. For example (and this just came up with a TPA that I work with), a subpoena that requests participant level information over a specified period of time, including transaction details, was not valid with respect to the TPA because they don't deal in participant level information (even though they could get that info from the recordkeeper). That subpoena should have been directed to the recordkeeper, and we (properly, and politely) refused to comply (letting them know where the info could be obtained).

I certainly would suggest that it be run by counsel, and the plan sponsor/fiduciary for the plan involved.

Regardless of who is resonsible for providing the information requested in the subpoena, the bottom line with child support enforcement orders is that the employer is liable for any payments that are not withheld by the pension plan. Need to consult counsel to find out what happens if the failure to provide information results in the state agency not collecting the funds owed.

However child support orders are only enforceable if benefits can be distributed.

mjb

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  • 9 months later...

The subpoena is preempted by ERISA. If you are pressed, make sure you go before the judge and tell her she has no authority over you because you are governed by ERISA. Use these words:

"Judge, you have no authority over me. You have no jurisdiction. ERISA preempts anything you do with respect to the plan."

Then you'll get your answer. You may, however, have to repeat the same thing to the bailiff as he takes you to jail. If that doesn't work, scream it through the bars at the sheriff or the guard on duty. Keep doing this until it works. Don't let them get you.

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