Court severely limits attorney’s ability to represent employee benefit plans and fiduciaries

ATLANTA – A federal judge has entered a consent order expanding substantially the scope of a previous judgment and order between the U.S. Department of Labor and attorney David R. Johanson and his prior law firm, Johanson Berenson LLP, arising from their involvement in three Mississippi cases.

This judgement settles the department’s allegations that Johanson and his prior law firm committed contempt of the previous consent order. In the expanded consent order, Johanson agreed to some of the broadest restrictions the department has sought to date on an attorney's ability to advise parties concerning transactions that involve employee benefit plans covered by the Employee Retirement Income Security Act.

The order also requires Johanson to disclose to certain clients specific limitations regarding his representation. In addition, in an out-of-court financial settlement, Johanson and his prior law firm will pay at least $2.5 million in restitution for the benefit of the pension plans of Bruister & Associates Inc. 

“This is a victory for the department’s efforts of using all of the tools available to hold fiduciaries, service providers and advisers accountable, ensuring they are acting solely in the best interest of their clients, said Assistant Secretary of Labor for Employee Benefits Security Phyllis C. Borzi.

Johanson’s alleged contempt arose from a lawsuit, brought to establish insurance coverage of an ERISA enforcement suit in which the department had sued Herbert Bruister and others under ERISA for various breaches of fiduciary duties that caused $6.5 million in losses to pension plans of Bruister & Associates Inc. In the insurance suit, Johanson represented Bruister, as trustee of the Bruister and Associates Inc. pension plans, as well as those pension plans themselves. In doing so, he allegedly violated the original consent order, which prohibited him from representing any party other than the plan in a transaction involving a plan. 

The order resulted from an investigation conducted by the Employee Benefits Security Administration’s Atlanta Regional Office. Employers and workers may contact that office at 404-302-3900 or toll-free at 866-444-3272 for help with problems relating to private sector pension and health plans. The Office of the Solicitor, including the Plan Benefits Security Division and the Atlanta Regional Solicitor’s Office, negotiated the expanded consent order.

For information about ERISA enforcement, visit http://www.dol.gov/ebsa/erisa_enforcement.html.

• Solis v. Couturier, Civil Action No. 2:08-CV-2732-RRB-GGH
• Perez v. Bruister, Civil Action No. 3:13-cv-1001-DPJ-FKB
• Rader v. Bruister, Civil Action No. 3:13-cv-1081-DPJ-FKB 
• Bruister, et al. v. Beazley Insurance Co. Inc., 4:10-cv-136-HTW-LRA

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Editor's Note: This release corrects an earlier version that misstated Johansen’s involvment with the ESOP Association.