December 09, 2019 Issue: Holiday 2019

Pushing “Relates to” About As Far As it Will Stretch

By: James M. Nelson, Greenberg Traurig

As our loyal readers have experienced, the last edition of this newsletter each year usually has a lighter tone. Sometimes that is because more rigorous content generation from our volunteer (and invariably time compressed) authors becomes even more challenging to obtain this time of year. The material must still have some benefits or Committee related nature.

We continue that tradition this year and in doing so we rely heavily on Justice Scalia’s observation (joined by Justice Ginsburg of all people) in his concurring opinion in California Department of Labor Standards Enforcement v. Dillingham Construction (95-789), 519 U.S. 316 (1997) that the phrase “relates to” in the preemption clause is challenging because, “[a]s many a curbstone philosopher has observed, everything is related to everything else.”  

This is an employee benefits “related” article because it arose from a discussion at the American College of Employee Benefits Counsel annual induction dinner.  One of our co-editors encouraged another co-editor to share a story about his sailing adventures, and this was taken as a lawyerly challenge to see just how far "relates to" can stretch.  It is in that spirit we explore (with pictures) one of the great employee benefit mysteries, specifically, what does that opening stanza of the Crosby, Stills & Nash classic “Southern Cross” really mean.

As a refresher the lyrics are:

Got out of town on a boat for the Southern Islands
Sailing to reach before a following sea
She was makin' for the Trades on the outside
And the downhill run to Papeete
Off the wind on this heading lie the Marquesas”

It’s actually less complicated than IRC 409A or the required minimum distribution rules. And since one of your editors is providing insight and the photos and did think about his 401(k) plan a couple of times in order to solve this mystery, it is “related” to an employee benefit plan. OK, OK, it is a stretch but we have seen and perhaps made more tenuous preemption arguments, right?

Got out of town on a boat for the Southern Islands
The story goes that Stephen Stills wrote the song in 1981 about a sailing trip he took after his divorce. That would have preceded enactment of the Retirement Equity Act by a couple of years so no QDRO was in play. Your editor and his long-suffering spouse did the journey together in the spring of 2019. The “Southern Islands” referenced are The Marquesas, Tuamotus, and Society islands also known as French Polynesia and are in the center.

The Pacific Puddle Jump route.

The Pacific Puddle Jump route.

Every year a couple of hundred folks (some are in fact benefit lawyers in some years) depart the West Coast of the New World on an event known as The Pacific Puddle Jump heading down what is sometimes called the Coconut Milk Run. Many depart from Puerta Vallarta some from Panama and a few from as far north as Southern California. Under way it tends to look a bit like this on the chart plotter:

Image of wind force.

Image of wind force.

The little diagonal lines with other perpendicular lines coming out from the longer ones indicate wind force. It was very windy around Hawaii that day. The place where the colors end is the outer range of satellite feed from Sirius Weather once you cross that the weather data must come via satellite phone through to the tablet if it comes at all. If this were a 13th Century paper map, the cartographer would have drawn dragons and sea serpents into the white space signifying the unknown. If this were the late 1980s a cite to the original Section 89 proposed regulations may have appeared here.

“Sailing to reach before a following sea”

The song suggests Mr. Stills left from Catalina Island (“In a noisy bar in Avalon I tried to call you”) which is not that far from the office of former Newsletter editor and former Committee co-chair, Ron Dean. The prevailing wind in that area is from the Northwest and the current is from the North to Northwest as well. For our non-sailing readers, the point of sail when the wind is coming towards the side of the boat is called a reach and since the Marquesas are Southwest of Catalina a few thousand miles you would be sailing on a reach for a week or two with a following sea. For days and days, it looks something like this.

Sailing southwest of Catalina.

Sailing southwest of Catalina.

“She was makin' for the Trades on the outside”

Passage navigation, like defined benefit plan actuarial work, is less about hitting a precise target than it is about not being off target in the wrong direction. Making for the Trades refers to the prevailing westerly trade winds in the northern part of the western South Pacific off the coast of South America coming out of the west. And you want to find that on the western or outside part of the islands. So, like the actuary, one wants to pick up the Trade Winds somewhere well west of the Marquesas and it would be bad to be pushed east toward or past them.

Doing that, of course, means crossing the Inter Tropical Convergence Zone (ITCZ) and the Equator.

The ITCZ is a bit like finding oneself accidently becoming a withdrawing employer in a defined benefit plan. The convergence part of the zone is where Southern Hemisphere winds and currents mix with Northern Hemisphere winds and currents. Sometimes everything cancels out and you have no wind or current. . . present value of assets matches present value of liabilities. Other times, squalls and worse appear out of nowhere and from pretty much any direction. Akin to Critical Status. Below it was sunny where the boat was at the center of the radar screen but it was real sporty to the east. There was some chance by the time we got there the trailing edge of the squall would have passed across the bow.

Radar screen.

Radar screen.

And such events can yield some good sunsets like those who hoped they would have retiree health benefits once dreamed of enjoying.

Sunset at sea.

Sunset at sea.

There is still the matter of crossing the equator.

Crossing the equator.

Crossing the equator.

Top center of the screen is the notation S 0°00.002.” One minute of latitude or longitude equals one nautical mile. GPS antenna is on the back of the boat. So, assuming all our navigational and actuarial assumptions are reasonable in the aggregate, we are in the southern hemisphere hoping the Trade Winds will fill in soon. Of course, and inconveniently we got to this point at 08:40 GMT/UTC which was 10:40 PM locally and as dark as one would expect.

And the downhill run to Papeete

Once one does pick up the Trade Winds the hardest part of the 3,400 mile journey is done, . . . usually. So, in that sense it is “downhill.” However, it is also true that when the Trades do fill in you can “turn right” and the now northerly current becomes less of a factor and the wind is more or less behind you. The point of sail is called a run. That means you can raise the pretty multicolored asymmetrical spinnaker and really get the boat moving. This is also known as “popping the kite.”  Papeete is, of course Tahiti.

The run.

The run.

“Off the wind on this heading lie the Marquesas”

You almost cannot avoid a stop in the Marquesas because it is necessary to clear in with customs and immigration. Candidly, after 23 days of 24 hour a day sailing (The floating Four Seasons at 5 degrees north and 130 degrees west was closed for renovations) a break was in order. So one comes off the downwind trades a little to reach the Marquesas. Actually, a break had occurred which is why this lifestyle is also called fixing boats in exotic places.

Exotic places you may find.

Exotic places you may find.

Mast work in Daniel’s Bay Nuku Hiva which is the government seat of the Marquesas. It has its charms. No that is not an ERISA lawyer up there.

Arriving at Marquesas.

Arriving at Marquesas.

The dinghy “dock” in Taihoe Bay Nuku Hiva is not really one of those charms but the ever present black tip sharks (because the fisherman cleaning fish toss the extraneous parts to them in the water) do tend to keep one focused when climbing up the ladder.

The dinghy “dock” in Taihoe Bay Nuku Hiva.

The dinghy “dock” in Taihoe Bay Nuku Hiva.

For those in urgent need of a purpose for a mandatory minimum distribution that departs from Tahiti, instead of Puerta Vallarta or Panama, the Paul Gauguin Cruise Line visits these and other remote places. https://www.pgcruises.com/tahiti/itineraries?gclid=EAIaIQobChMIpf6BhqaQ5QIVFqSzCh2spQhnEAAYASAAEgLx1_D_BwE and they do not make you experience the dinghy ladder. That’s an observation not an endorsement as I’ve seen them go by but have not stepped aboard or spoken to anyone who has sailed on one of their ships. For Bill Kinney, Mark Casciari and other of our nautically inclined members the 2020 Puddle Jumpers will be starting to look for crew any day. http://www.pacificpuddlejump.com/

And eventually, duty calls, the typhoon season approaches, and the benefits lawyer needs to park the boat for the season, complete repairs and return to more directly EBC related endeavors.

Docked.

Docked.

What’s left. Ah yes, a pair of quotes from two who would have been great benefits lawyers but were a bit ahead of their time: Sarah Frances Brown and John Paul Jones.

Although often attributed to Mark Twain our penultimate piece of inspiration cannot be verified as having been penned by him. It can be verified to have sold a lot of boats and it is as follows:

“Twenty years from now you will be more disappointed by the things you didn’t do than by the ones you did do. So throw off the bowlines. Sail away from the safe harbor. Catch the trade winds in your sails. Explore. Dream. Discover.

Indeed.

As for Captain Jones, he was unsurprisingly more direct:

“I wish to have no connection with any ship that does not sail fast; for I intend to go in harm's way.

We do not intentionally go in harm’s way but its comforting to know we can out run harm a lot of times if harm has ambitions of coming our way.

Let’s see now, we have decoded a classic rock song’s nautical lyric with some plausible if not compelling employee benefits references. We have a respectable number of footnotes with information of little value (like many serious articles). We avoided diluting mid-winter meeting attendance as you would not want to go to these places until late March or April due to the typhoon season. We also filed out a Winter Edition of the Newsletter.

See All Y’all at the Midwinter Meeting.