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Each of the employer and the plan-trustee and the Plan Administrator and the agent and each issuer and any person serving under contract or otherwise with respect to the plan shall not be obligated to incur any cost to defend against or set aside any judgment, decree or order relating to the division, attachment, garnishment or execution of or levy upon the participant’s plan account or any distribution, including (but not limited to) any order in any bankruptcy proceeding of any kind. Notwithstanding the foregoing, if any such person is joined in any proceeding, the party may take such action as it considers necessary or appropriate to protect any and all of its legal rights, and the participant (or beneficiary) shall reimburse all actual fees of lawyers and legal assistants and expenses reasonably incurred by such party.
(Ord. NIRC 97-1, passed 1-15-1997)
(A) By the terms of the plan, the claimant (or other aggrieved person) shall not be entitled to take any legal action (including, but not limited to, instituting any arbitration procedure) or otherwise seek to enforce a claim to benefits or rights under the plan until he, she or it has exhausted all claims and appeals procedures provided by the plan.
(B) In considering claims under the plan, the Plan Administrator has full power and discretionary authority to construe and interpret the provisions of the plan and of any law governing or applying to or relating to the plan.
(Ord. NIRC 97-1, passed 1-15-1997)
(A) To the extent provided by any agreement made or adopted by the participant and to the extent provided by any collective bargaining agreement that covers the participant, for any claim, controversy, disagreement of any kind or dispute of any kind, whether based on statute or public law, or private law, contract, quasi-contract, tort, trust, fiduciary duty, special relationship or any theory at law or in equity (including, but not limited to and without limitation by enumeration, any claim of fraud, estoppel, misrepresentation, fraudulent or negligent inducement, duress), arising out of or related to this plan (for the purposes of this section referred to as a “dispute”), if the dispute is not resolved under this plan’s claims procedures (including any reconsideration, rehearing and appeal procedures provided by the plan or otherwise made available by the Plan Administrator), the claimant shall present the claim under the agreed dispute resolution and arbitration procedure (for the purposes of this section referred to as the “procedure”).
(B) Notwithstanding anything to the contrary in the procedure or otherwise, the arbitrator shall not have any power to order or instruct discovery of any document or other information that is protected by attorney-client privilege, attorney work product privilege, self-evaluative or self-critical analysis privilege or any similar evidentiary privilege under any applicable law or under any rules of professional conduct that apply to any lawyer who prepared, delivered or received the document or information. The arbitrator shall not have any power to award any relief if the relief responds to a claim or dispute that would be precluded by the statute of limitations or statute of repose (as determined under § 35.047) if the claim or dispute were brought before the appropriate court (as determined under § 35.051). The arbitrator shall not have any power to award any kind of injunctive relief. The arbitrator shall not have any power to award any relief contrary to the plan or otherwise that would cause the plan to fail to qualify as an eligible deferred compensation plan within the meaning of I.R.C. § 457(b). Notwithstanding anything to the contrary in the procedure or otherwise, the arbitrator shall not have any power to award damages payable by a person other than an employer. In reaching his or her decision, the arbitrator shall have no power or authority to change or modify any provision of this plan, including, without limitation, any provision concerning limitations on or exculpation from liability or any provision concerning liquidated damages or any provision concerning the allocation of expenses, including, without limitation, litigation expenses or arbitration expenses. The plan shall be construed or interpreted solely according to the provisions of this plan (including §§ 35.080 through 35.088) and shall be governed by § 35.027. If any part of this section is otherwise held to be unenforceable, the rest of this section shall be construed and enforced as if such part(s) were not a provision of this plan, and the unenforceable part shall in no way affect any other duty to mediate or arbitrate or any other provision of this section or otherwise under this plan.
(Ord. NIRC 97-1, passed 1-15-1997)
(A) Unless the employer specifically provides otherwise, the employer shall not incur any expense in the operation and administration of the plan other than for its obligations to make deferrals of compensation and to pay the deferred compensation as provided by the plan. The plan shall make reasonable charges against and from the accounts of participants for any expenses for the administration of the plan. Upon the Plan Administrator’s written instruction, the Plan Administrator (or any party acting for it or under contract to the Plan Administrator or to the employer) shall be reimbursed from the plan assets, except to the extent inconsistent with the enabling statute, for any expense (including actual fees of lawyers and legal assistants) reasonably incurred in performing services with respect to the plan. Except as otherwise provided or permitted by the plan, the reimbursement shall be effected by deducting a charge against all accounts according to an equitable method determined by the Plan Administrator.
(B) If any kind of legal action or other proceeding regarding the plan to which the employer or the Plan Administrator or the plan-trustee or any issuer or any agent (or any other person acting for or at the request of any of them) (each an “indemnified party”) may be a party is brought by a participant or beneficiary (or by a person or entity claiming through a participant or beneficiary), and the legal action is resolved in favor of the indemnified party, each indemnified party participating in or contributing to the defense of the legal action shall be entitled to be reimbursed from the participant’s account for any and all actual fees of lawyers and legal assistants and other expenses reasonably incurred in the defense of the legal action or proceeding.
(C) If the IRS determines, and the determination is not contested, or if contested, is finally upheld (or otherwise finally determined), or if a final court order (that is not appealed) decides that any payment of expenses is a violation of I.R.C. § 457(g), each person who received a payment that was determined to be a violation of I.R.C. § 457(g) shall pay full restitution into the plan to the extent of the improperly paid expense (including fair interest from the date the expense was improperly paid to the date that restitution is made). The Plan Administrator must enforce payment of this restitution.
(Ord. NIRC 97-1, passed 1-15-1997)
To the extent required by applicable state law, if the participant pleads guilty or is convicted of a crime or offense relating to his or her government office or government employment and a court order provides for restitution relating to such crime or offense, the participant (or, after the participant’s death, each beneficiary) shall forfeit his, her or its deferred compensation to the extent that the participant has not timely paid the restitution required by the court order.
(Ord. NIRC 97-1, passed 1-15-1997)
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