Defense of Marriage.....Again

The parents of Sarah Ellyn Farley, a partner at Cozen O'Connor, P.C., who passed away and left her estate to her wife are fighting both Pennsylvania law and the Federal Defense of Marriage Act which do not recognize same-sex marriage. The firm brought an interpleader action to determine who is entitled to the benefits under the Cozen O'Connor Profit Sharing Plan.

Ms. Farley had not submitted a beneficiary designation form to the firm prior to her death on September 13, 2010. After her death her parents presented an executed beneficiary designation form bearing the date September 12, 2010, a day prior to her death.

The Cozen O'Connor Profit Sharing Plan document provides that upon the event of death of a participant the account will be distributed to the designated beneficiary, and in the absence of such designation the account shall be paid to the participant's surviving spouse. The Plan document defines spouse as "the person to whom the Participant has been married throughout the one-year period ending on...the date of the Participant's death."

The Defense of Marriage Act defines "spouse" as a person of the opposite sex who is the husband or wife. However, the Act left open the ability of the employer to extend benefits to same-sex spouses and domestic partners. If state law does not prohibit extending benefits to same-sex spouses, there is a chance that the same-sex partner will be recognized as a spouse for purposes of an employee benefits plan. In this case, however, Pennsylvania law does not recognize same sex marriage. Therefore, this case is a challenge to both federal and state law regarding ERISA benefits for same-sex spouses.

This case was filed in January 2011 and is still in the preliminary stages. Amy Whelan of the National Center for Lesbian Rights is representing Jennifer Tobits, the surviving spouse, and Randal Luke Wenger subbed in on August 8, 2011, as counsel for the parents, David and Joan Farley. So far there has only been a complaint, amended complaint, and answer filed.

Ninth Circuit Rules Again that Cashed Out Participants Have Standing under ERISA

In line with its 2008 decision in Vaughn v. Bay Environmental Management, Inc., 544 F.3d 1008 (9th Cir. 2008), the Ninth Circuit ruled that participants who voluntarily cash out their defined contributions plans have statutory and constitutional standing to assert breach of fiduciary duty claims under ERISA section 502(a)(2) even if relief is available under 502(a)(1)(B).

(Steve Harris, et al. v. Amgen, Inc. et al., 2009 U.S. App. LEXIS 15499)

The Eighth Circuit May be Next to Rule on 401(k) Plan Fees

The Wal-Mart 401(k) plan is one of the largest plans in the U.S., with over 1 million participants and almost $10 billion in assets under the plan. The Eight Circuit will hear the issue of excessive fees after the case was quickly dismissed by the district court on a motion to dismiss. The appeal is focusing on the plans size in reviewing its ability to have negotiated the fees to the participants. The Wal-Mart 401(k) plan offers 10 mutual funds, a common/collective trust, Wal-Mart common stock, and a stable value fund. The opening brief sets forth that Merrill Lynch, the Plan's Trustee, had a revenue sharing arrangement with the mutual fund company it chose for the investment line up and, therefore, had "corrupted" the plan's fund selection process. The brief further argued that the mutual fund options were chosen based on the agreement to pay a kickback to the Trustee instead of choosing those options that would have better served the participants. The Department of Labor has filed an Amicus Brief urging the Eighth Circuit to reverse the District Court's dismissal.

(Braden v. Wal-Mart)

Tyco Fiduciaries NOT Shielded by ERISA section 404(c)

The U.S. District Court fo the District of New Hampshire appears to be in line with the Department of Labor's position on the extent of protection offered by ERISA section 404(c). In a case against Tyco for offering company stock as an investment option in the plan, the district court held that Tyco could not used 404(c) as a defense for choosing poor investment options for the plan. The court in Tyco gave deference to the DOL's position.

(In re Tyco International Ltd. Multidistrict Litigation, D.N.H., No. 02-1335-PB)

Department of Labor Critical of Seventh Circuit Ruling

The Department of Labor spoke out against the ruling in the Seventh Circuit regarding ERISA section 404(c) regulations. Timothy Hauser of the DOL said that he was disappointed in the Seventh Circuit to failure to give deference to the DOL's definition of the word "control" in ERISA section 404(c). The Seventh Circuit held that participants had "control" over the investments and, therefore, ERISA section 404(c) shielded the fiduciaries from liability. In a nutshell, the participants alleged that the fiduciaries breached their duties by failing to informt he participants of the fees associated with the investments in their accounts. The DOL stated that it is the employer not the participant who "controls"the investment menu. It appears to be the DOL's position that since it is the employer choosing the investment line up within the plan, ERISA section 404(c) cannot shield the employer from choosing investments that have excessive fees. The Seventh Circuit did not agree.

The District Court of New Hampshire seems to be inline with the Department of Labor's view on this one. See next Blog regarding the Tyco Case.

Class Certified in Action against Lockheed Martin

Continuing the long line of cases regarding excessive 401(k) fees, 100,000 employees filed suit against Lockheed Martin claiming breach of fiduciary duty for failure to ensure that the employees were not harmed by the excessive fees charged by the plan providers. The U.S. District Court for the Southern District of Illinois certified the class (Abbot v. Lockheed Martin Corp., S.D. Ill., No. 06-cv-0701-MJR). The court certified two of the three claims, the third being a claim for imprudently diluting the returns of the company stock funds. The court ruled there was a conflict between the parties in the class with regard to who had invested in the company stock funds.

Obama signs Lilly Ledbetter Fair Pay Act

Obama signed the Fair Pay Act, which overrules the Supreme Court case of Ledbetter v. Goodyear Tire & Rubber Company, Inc., which limited the time for which pay discrimination claims could be brought. This new law is not just limited to salary, it also applies to payment under benefit plans. The full Bill can be found at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h2831ih.txt.pdf