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Robert J. Zebrowski, et al. v. Evonik Degussa Corporation Administrative Committee

September 10, 2012

ROBERT J. ZEBROWSKI, ET AL.
v.
EVONIK DEGUSSA CORPORATION ADMINISTRATIVE COMMITTEE, ET AL.



The opinion of the court was delivered by: Ludwig, J.

MEMORANDUM

This is an ERISA action, 29 U.S.C. §§ 1001-1461. Jurisdiction is ERISA § 502(e)(1), 29 U.S.C. § 1132(e)(1) and federal question, 28 U.S.C. § 1331.

Defendants move for summary judgment on both the complaint and defendant Evonik Degussa Corporation Administrative Committee's counterclaim (doc. no. 33). Fed. R. Civ. P. 56. Plaintiffs cross-move for partial summary judgment (doc. no. 38) on defendants' liability for pension benefits, ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B); violations of ERISA's anti-cutback rule, ERISA § 204(c)(3), (g), 29 U.S.C. § 1054(c)(3), (g); breach of fiduciary duties, ERISA § 404(a), 29 U.S.C. § 1104(a); and "other appropriate equitable relief," ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3).

Plaintiffs are Robert J. Zebrowski, Robert A. Woodruff, and Gregory Bialy, former executives of RohMax USA, Inc.*fn1 According to the complaint, defendant Committee wrongfully denied payment of plaintiffs' vested retirement benefits and violated its duties as administrator and fiduciary of the other two defendants Evonik Degussa Corporation Retirement Plan (pension plan) and Evonik Rohmax USA, Inc. Non-Qualified Pension Plan (top hat plan).*fn2 The Committee's counterclaim against plaintiff Zebrowski asserts that a portion of his top hat benefits were overpaid and should be paid back by him -- among other requests for equitable relief under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3) (doc. no. 18 at 41-53).

The complaint further alleges: defendant Committee misinterpreted the top hat plan benefits formula, improperly amended the July 1, 1999 top hat plan document on December 30, 2008, and wrongly construed the formula's factor "B" as an off-set of pension plan lump sum payments that included cost-of-living adjustments (COLAs). Also, the Committee misinterpreted the top hat and pension plans as a combined "total retirement benefit," which lowered the benefit amounts payable to plaintiffs. Compl. ¶¶ 26, 30, 37, 41, 48, 53. Moreover, the Committee did so by incorrectly deciding that the addition of COLAs to pension plan lump sums reduced the corresponding top hat lump sums by the same amount. Id. The complaint avers that using this method to calculate benefits constructively amended the pension plan in violation of ERISA's anti-cutback rule*fn3 : "The amendment conditioned receipt of the lump sum Pension Plan benefit on non-receipt of a significant portion of [top hat plan] benefits and thus reduced the value of accrued and protected Pension Plan benefits." Compl. ¶¶ 53, 57. This, essentially, is the parties' dispute.

I. Summary Judgment Findings of Fact

1. Defendant Committee is the administrator and named fiduciary of both the pension plan and the top hat plan and acts as statutory fiduciary of the pension plan. ERISA § 3(16)(A), (21)(A), 29 U.S.C. § 1002(16)(A), (21)(A); ERISA § 402(a), 29 U.S.C. § 1102(a). Undisputed Facts.

2. Both plans are "defined benefit"*fn4 as well as "pension benefit plans" within the meaning of ERISA §§ 3(2), 23(A), 35, 29 U.S.C. §§ 1002(2), 23(A), 35. However, the top hat plan, as its title suggests, provides post-retirement income for a limited number of senior executives such as plaintiffs. The pension plan qualifies for favorable tax treatment under the Internal Revenue Code, 26 U.S.C. § 401; the top hat plan does not.*fn5 Undisputed Facts, as applicable.

3. Under both plans, a participant, upon retirement, may elect to receive a monthly annuity or a lump sum representing the annuity's present value. See Article 7.2.2 of the 1999 top hat plan, pls. mot., Ex. 1, doc. no. 39-1 at 14; Articles 7.1.1 and 6.1 of the pension plan, pls. mot., Ex. 2, doc. no. 39-2 at 20, 22; Articles 10.2, 10.2.3.3 of the 1999 top hat plan, doc. no. 39-1 at 18-19; Articles 10.1, 10.1. 4 of the pension plan, doc. no. 39-2 at 28. See also Undisputed Facts.

4. Both plans require the forms of payment to be actuarial equivalents. Articles 10.2, 10.2.3 (lump sum) of the 1999 top hat plan, doc. no. 39-1 at 18-19; Articles 10.1, 10.1.4 (lump sum) of the pension plan, doc. no. 39-2 at 28-29.

5. Each plan treated COLAs differently. As to monthly benefits paid by annuity, the pension plan originally added a COLA to be calculated and distributed annually. Pls. Undisputed Facts, ¶ 43. As to lump sum benefits, the pension plan did not contain an actuarial equivalent for annual COLAs. Id. ¶ 44. In 2008, however, the pension plan was amended to include COLA benefits for both forms of payment.*fn6 Id. ¶¶ 46, 47. Top hat participants could elect to receive a monthly annuity with the added benefit of an annual COLA or a lump sum without COLAs. Undisputed Facts.

6. Under both plans, COLAs were distributed each March subsequent to retirement in amounts "equal to the percentage increase in the United States Consumer Price Index for Urban Wage Earners and Clerical Workers . . . from the previous December to the December of the year immediately preceding such March 31 adjustment date," and the adjustment in any year was not "greater than 3%." See Article XI of the 1999 top hat plan, pls. mot., Ex. 1, doc. no. 39-1 at 21; Article XIII of the pension plan, pls. mot., Ex. 2, doc. no. 39-2 at 34-35. See also Undisputed Facts.

7. When plaintiff Zebrowski retired effective December 1, 2006, at age 60, he elected lump sum payments of his retirement benefits under each plan. Undisputed Facts. At that time, the pension plan included COLAs only if the participant elected a monthly annuity. As a result, Zebrowski's pension plan lump sum did not include COLA benefits. Undisputed Facts.

8. However, about two years after Zebrowski retired, the pension plan was amended to allow retroactive COLAs for lump sum payments of benefits earned before December 31, 2008. Answer ¶ 23, doc. no. 18; Schedule F to the 2008 restated pension plan, COLA provisions, doc. no. 4-3 at 42. Undisputed Facts.

9. During the year following the amendment, plaintiffs Woodruff and Bialy also retired. They elected lump sum payments of their retirement benefits. When plaintiff Woodruff retired effective April 1, 2009, at age 62, and plaintiff Bialy retired effective December 1, 2009, at age 62, the pension plan allowed COLAs for lump sum payments. Undisputed Facts.

10. Article VIII of the 1999 top hat plan document: A Participant shall vest in his percentage of his Basic Amount of Normal or Early Retirement Pension in accordance with this Article VIII. A Participant shall be 100% vested in his Basic Amount of Normal or Early Retirement Pension when he is credited with 60 months of Benefit Service.

Doc. no. 39-1 at 16.

11. Also, Article XV of the 1999 top hat plan document, entitled "Administration of the Plan," in part:

Subject to the terms of the Plan, the decision of the Administrative Committee upon any question of fact, interpretation, definition or procedure relating to the administration of the Plan shall be conclusive. The responsibilities of the Administrative Committee shall include the following:

15.2.3. Interpreting the provisions of the Plan in all particulars;

15.2.4. Establishing and publishing rules and regulations for carrying out the Plan . . . .

Article 15.2, doc. no. 39-1 at 25.

12. In addition, Article XVI of the 1999 top hat plan document, entitled "Future of the Plan," provides:

The Company hopes and expects to continue the Plan indefinitely, but necessarily reserves the right at any time to reduce, suspend or discontinue payments to be made by it as provided hereunder. The Company reserves the right to amend or discontinue the Plan at any time.

Doc. no. 39-1 at 27.

13. All of plaintiffs' top hat benefits at issue in this litigation were "earned and vested" within the meaning of Article VIII of the 1999 top hat plan no later than July 1, 2004.

Article VIII of 1999 top hat plan, doc. no. 39-1 at 16.*fn7 Answer ¶¶ 7, 55, 72; Undisputed Facts.

14. By resolution dated December 19, 2007, the defendant Committee approved "key decisions and recommendations" effective January 1, 2005 for the top hat plan, including:

Non-qualified [top hat plan] benefits are reduced by qualified [pension plan] benefits, but are not linked to elections under the qualified [pension plan]. Benefits accrued and vested as of December 31, 2004 will be ...


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