substantial evidence in the form of expert affidavits and deposition testimony showing that their calculations were reasonable. I find that this evidence raises a genuine issue as to the material fact of whether defendants' calculations were reasonable and summary judgment on count III is therefore inappropriate.
C. Counts I & II: Reporting and Disclosure Violations
In counts I and II of the complaint, plaintiffs allege that defendants failed to satisfy ERISA's reporting and disclosure requirements. 29 U.S.C. §§ 1021-1024(b)(4). They seek an injunction ordering the defendants to produce various plan materials and conforming plan documents. They also seek imposition of the statutory penalty in the amount of $ 100 per day. See 29 U.S.C. § 1132(c)(1).
ERISA imposes certain substantive requirements. For instance, the plan administrator must, upon written request of any participant, furnish the participant with a copy of certain plan documents. 29 U.S.C. § 1024(b)(4). In addition, the plan administrator must periodically submit documents that contain plan information to both the government and the plan participants. 29 U.S.C. §§ 1021-1024. If a plan administrator fails to comply with any of these requirements, a plan participant can seek injunctive and monetary relief under 29 U.S.C. §§ 1132(a)(1), 1132(c)(1) (discretionary $ 100 per day penalty for failure to report requested documents).
Defendants argue that plaintiffs are not participants within the meaning of section 1132 and, therefore, they may not pursue the disclosure and reporting claims.
ERISA defines a "participant" as "any employee or former employee of an employer . . . who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer." 29 U.S.C. § 1002(7). The Supreme Court has explained that a former employee is a "participant" under ERISA if he has a "colorable claim" to vested benefits. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989). In Firestone, the Court went on to note that in order to establish that he may become eligible for benefits, a claimant must have a colorable claim that he will prevail in a suit for benefits. Id. Plaintiffs argue that count III of their complaint -- involving early retirement benefits -- is a colorable claim to vested benefits which makes them "participants." Defendants contend that count III of plaintiffs' complaint is not a "claim for benefits," as is required to attain "participant" status, but is instead a claim for the transfer of assets.
Although defendants are correct -- a claim for assets is distinct from a claim for benefits -- their conclusion is flawed. If plaintiffs prevail on count III, defendants' purported transfer of liability would not have been valid under 29 U.S.C. § 1058. If the transfer was not valid, then defendants are still liable to plaintiffs for their outstanding early retirement benefits. Thus, count III, while on its face challenging the sufficiency of an asset transfer, actually involves a claim for benefits. This claim is colorable in light of the Third Circuit's opinion in Gillis v. Hoechst Celanese, 4 F.3d at 1147, which explicitly recognized that early retirement benefits must be considered when evaluating the sufficiency of an asset transfer on a termination basis. Thus, count III is a colorable claim for benefits which means that plaintiffs are "participants" within the meaning of 29 U.S.C. § 1132.
Plaintiffs have standing to pursue their reporting claims -- i.e., as participants, they were entitled in 1990 to the plan documents that they requested and may now, under section 1132, seek civil enforcement for any Hoechst Celanese failure to produce section 1024(b)(4) documents. To the extent that defendants have not already complied with plaintiffs 29 U.S.C. § 1024(b)(4) document requests, they now will be required to do so. I conclude, however, that it is premature to impose the discretionary statutory penalty on defendants for the reporting. violations. Defendants have admitted that they were three months late in disclosing certain requested documents.
It is unclear, however, exactly what caused this delay and whether defendants were otherwise cooperative with other ERISA disclosure requirements. I will direct the parties to submit whatever documents or exhibits they believe to be appropriate to provide a basis for a future ruling on defendants' liability for the statutory penalty.
I turn now to the alleged disclosure violations -- i.e., plaintiffs' claim that certain Hoechst Celanese Plan documents do not conform with ERISA's disclosure requirements. Plaintiffs seek to compel Hoechst Celanese to produce new plan documents that correct alleged deficiencies.
Plaintiffs are no longer Hoechst employees and once the early retirement asset transfer issue is resolved, they will have no relationship with Hoechst. Therefore, the information that Hoechst discloses to its employees and plan participants is of no concern to plaintiffs. Under these circumstances, plaintiffs may not require defendants to amend existing Hoechst Celanese Plan documents. I will therefore deny plaintiffs' request for injunctive relief to modify any existing Hoechst Celanese Plan documents.
An appropriate order follows.
AND NOW, this 26th day of June, 1995, it is hereby ordered that:
1. plaintiffs' motion for summary judgment on count III is denied;
2. plaintiffs' motion for summary judgment on counts I and II is granted and judgment is entered for plaintiffs and against defendants on these counts;
3. to the extent that they have not already done so, defendants will give plaintiffs the requested section 1024(b)(4) documents;
4. the parties shall submit within 20 days of this order their stipulations, additional evidence, and briefs concerning the impositions of the statutory penalty that may be imposed under the provisions of 29 U.S.C. § 1132(c)(1);
5. on July 6, 1995, I will meet with the parties in my chambers to discuss settlement and set a final date for trial if necessary. Each party shall have a representative capable of authorizing settlement available.
BY THE COURT:
J. William Ditter, Jr., J.