Employee Retirement Income Security Act (ERISA) Defense Attorney

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that protects employees' retirement and health benefits by imposing strict fiduciary, reporting, and disclosure requirements on employers and plan administrators.

While most ERISA disputes are resolved through civil litigation, certain violations can trigger criminal investigations and federal prosecution.

When allegations involve intentional misconduct, fraud, embezzlement, false statements, or obstruction, the Department of Labor (DOL) and the Department of Justice (DOJ) may pursue criminal charges that carry prison sentences, massive fines, restitution orders, and lifetime career consequences.

If you are an employer, executive, plan fiduciary, trustee, or service provider facing ERISA scrutiny, early legal intervention is critical.

Your best hope for a favorable outcome is with a highly experienced criminal defense attorney at Eisner Gorin LLP. To schedule a consultation, call (818) 781-1570 or contact us here.

When Do ERISA Violations Become Criminal?

Not every ERISA violation results in criminal liability. Federal prosecutors focus on cases involving willful misconduct, including:

Intentional misuse of plan assets
False or misleading ERISA filings
Kickbacks or bribery involving plan decisions
Retaliation against plan participants or whistleblowers
Destruction or concealment of plan records

Criminal ERISA enforcement often begins quietly through DOL audits, participant complaints, or whistleblower referrals, before escalating into DOJ investigations.

Key Takeaways for Employers and Fiduciaries

ERISA violations can result in both civil and criminal enforcement
Criminal cases frequently overlap with DOL investigations and civil lawsuits
Executives and fiduciaries face personal liability, not just corporate exposure
An early defense strategy can prevent escalation to criminal prosecution

Criminal Statutes Commonly Used in ERISA Prosecutions

Embezzlement or Theft of Plan Assets

18 U.S.C. § 664

One of the most frequently charged ERISA-related crimes, this statute prohibits the theft, misuse, or conversion of employee benefit plan assets.

Common examples include:

Failing to deposit employee 401(k) contributions
Using plan funds to cover business expenses
“Borrowing” plan assets with the intent to repay

Penalty: Up to 5 years in federal prison plus fines and restitution.

Kickbacks and Illegal Payments

18 U.S.C. § 1954

This statute criminalizes giving or receiving anything of value to influence decisions involving an employee benefit plan.

Typical cases involve:

Trustees steering contracts to favored vendors
Investment advisors accepting secret payments
Service providers bribing plan fiduciaries

Penalty: Up to 3 years in federal prison per offense.

False Statements and Concealment

18 U.S.C. § 1027

Knowingly making false statements or concealing material facts in ERISA-required documents—such as Form 5500 filings—is a felony.

This charge is often paired with:

Embezzlement
Fraud
Obstruction allegations

Penalty: Up to 5 years in federal prison.

Willful Reporting and Disclosure Violations

ERISA § 501

Intentional violations of ERISA reporting obligations can result in severe criminal penalties, particularly when used to conceal fraud.

Penalty: Up to $100,000 in fines and 10 years in prison.

Coercive Interference with Plan Rights

29 U.S.C. § 1140 (ERISA § 510)

It is illegal to intimidate, retaliate against, or discriminate against a plan participant for exercising ERISA rights or cooperating with an investigation.

Penalty: Criminal prosecution when the interference is willful.

Fraud and Obstruction Charges

Prosecutors frequently add general federal crimes, including:

Wire fraud (18 U.S.C. § 1343)
Mail fraud (18 U.S.C. § 1341)
Health care fraud (18 U.S.C. § 1347)
Obstruction of justice (18 U.S.C. §§ 1505, 1519)

These charges can dramatically increase sentencing exposure—up to 20 years per count.

Penalties for Criminal ERISA Violations

Convictions can result in:

Federal prison sentences
Six- and seven-figure fines
Mandatory restitution to plan participants
Permanent reputational damage
13-year ban on serving as a fiduciary or service provider
Loss of professional licenses and executive roles

For many professionals, the collateral consequences are career-ending.

Defending Against ERISA Criminal Allegations

An effective ERISA criminal defense focuses on early intervention, factual development, and intent analysis.

Common defense strategies include:

Demonstrating a lack of criminal intent or knowledge
Showing good-faith compliance efforts
Challenging DOL investigative procedures
Contesting whistleblower credibility
Negotiating a civil resolution to avoid a criminal referral

Early representation can mean the difference between regulatory resolution and federal indictment.

Why Choose an Experienced ERISA Defense Attorney?

ERISA criminal cases sit at the intersection of:

Federal criminal law
Labor and benefits law
Regulatory compliance
White-collar investigations

Defense counsel must understand both ERISA's technical framework and federal prosecutorial strategy. These cases are rarely “simple compliance disputes”—they are often treated as fraud cases by the government.

Contact an ERISA Defense Attorney

Eisner Gorin LLP is a federal criminal defense law firm based in Los Angeles representing employers, plan administrators, fiduciaries, trustees, and executives in ERISA investigations and prosecutions.

We advise clients on:

DOL audits and subpoenas
DOJ criminal investigations
ERISA embezzlement and fraud allegations
Fiduciary liability and enforcement defense

If you are facing ERISA scrutiny—or believe an investigation may be coming—early legal guidance is essential.

To schedule a consultation, call (818) 781-1570 or contact us here.

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