Murder victim's son can get money from 401(k) linked to killers

The son of a man murdered by a Colombian guerrilla group can obtain money from a 401(k) account connected to the perpetrators, a Massachusetts federal judge ruled, deciding a novel legal question involving federal benefits and anti-terrorism laws.

Fidelity Investments can turn over 401(k) assets to the victim’s son under the Terrorism Risk Insurance Act of 2002 without violating the federal law protecting retirement plan assets from being used for other purposes, Judge Indira Talwani of the U.S. District Court for the District of Massachusetts held last Thursday.

The TRIA begins with a “notwithstanding” opening clause, signaling that it’s intended to override any conflicting federal statutes, including the Employee Retirement Income Security Act, Talwani said.

“Where the clear and broad language of TRIA signals Congress’s intent to override conflicting statutory provisions, the court concludes that ERISA’s anti-alienation provision does not prevent” Antonio Caballero “from executing on the attached assets,” she said.

The lawsuit is an attempt by Caballero to execute a judgment against Fuerzas Armadas Revolucionarias de Colombia and Norte de Valle Cartel for the kidnapping, torture and murder of his father. He asked Fidelity to turn over about $200,000 that it held in connection with these defendants, and Fidelity sought a court ruling on whether it could turn over money held in a 401(k) account without violating ERISA’s anti-alienation rule.

Talwani ruled that Fidelity could distribute the money to Caballero, but only under the same terms that the owner of the 401(k) account would have been able to access the money.

Doherty Law Offices and Zumpano Patricios represents Caballero. Dechert represents Fidelity.

The case is Caballero v. Fuerzas Armadas Revolucionarias de Colombia, 2021 BL 373566, D. Mass., No. 1:21-cv-11393, 9/30/21.

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