MEMORANDUM AND ORDER
MORAN, District Judge.
Plaintiff, a former executive secretary at National Business Lists ("NBL"), brings this action against Market Data Retrieval ("MDR") (NBL's successor), MDR Liquidating Corporation, and its former president. In her complaint plaintiff seeks damages for wrongful denial of severance pay benefits (count I), breach of fiduciary duties (count II) and failure to provide documents in violation of federal law (count III). Federal jurisdiction is predicated on the Employee Retirement Income Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq.
Currently before the court are cross-motions for summary judgment on count I and defendants' motion to dismiss counts II and III. For the following reasons, we deny all motions.
NBL and MDR were both in the business of compiling and selling mailing lists. Plaintiff began working for NBL on January 20, 1969, and continued in its employ for approximately 15 years as an executive secretary to NBL's president, Leo Ganz.
In 1984 NBL started down a staggered path to dissolution. MDR's president, Herbert Lobsenz, entered into negotiations for the purchase of NBL, and in June 1984 NBL Acquisition Corporation, a whollyowned subsidiary of MDR, purchased almost all of NBL's stock. Soon thereafter NBL Acquisitions Corporation and NBL merged. The newly-formed NBL remained a subsidiary of MDR, although it is unclear to what extent it retained a separate existence. For example, at some point after the sale employee paychecks were paid out of MDR's bank account and the business telephones were answered "NBL-MDR," rather than "NBL."
On June 10, 1986, MDR entered into a purchase agreement to sell substantially all of its assets to Dun & Bradstreet ("D & B"). The proceeds from the sale were placed in MDR Liquidating Corporation, which was later converted to its successor, MDR Liquidating Trust.
Plaintiff continued to work as Ganz's secretary for approximately six months after the sale of NBL's stock to MDR. When Ganz ceased working plaintiff worked as an executive secretary for MDR at the same salary, although the parties dispute whether the benefits remained substantially the same (pl. stmt. of mat. facts at 3, n. 2). The parties also dispute whether plaintiff's responsibilities remained the same as they were prior to the sale of NBL to MDR. Plaintiff contends that with MDR, and certainly later with D & B, she ceased working as an executive secretary for the president of the company and began working for a variety of people in capacities for which she was over-qualified. After the sale to D & B she reported for work at a new address once, merely to protest her new assignment and to see whether she would be placed in a position to her liking. On October 27, 1986, she ceased working because matters had not improved.
Plaintiff subsequently applied for unemployment benefits. A claims adjudicator of the Illinois Department of Labor denied her claim, finding that she had voluntarily quit her job with MDR without cause. This decision was based on written submissions by plaintiff and defendant, and no evidentiary hearing was held. Plaintiff later failed to appear at an appeal of this denial.
NBL had a tradition of providing a number of its valued long-term employees with pensions or severance pay upon termination of their employment. Although there was no written NBL policy on these matters prior to its sale to MDR, Ganz had a practice of rewarding some retiring or departing employees with pensions based upon their length of service and devotion to NBL (Ganz dep. at 71-74). This concern for NBL employees was present during the negotiations for sale of NBL to MDR. Ganz contacted the personnel director at NBL to obtain a list of all employees who had served more than five years (Ganz dep. at 32). After some negotiations with Lobsenz, Ganz inserted into the purchase agreement a provision of rights to a lifetime pension and severance pay for a select
The severance pay policies provide normal severance pay to anyone employed with NBL for more than two years who is "terminated for normal business reasons." The policies also provide special benefits to three named employees — plaintiff included — if "terminated within five years after date of sale." It provides for normal severance pay plus a "lifetime pension" at "20% of her highest annual salary earned while working for NBL" if she is "terminated for any reason except cause" (cplt., exh. 1). The plan does not further define the term "terminated."
On April 24, 1987, counsel for plaintiff wrote Lobsenz requesting severance pay pursuant to the policy, asserting that the sale of the company constituted a termination of plaintiff's employment.
Defendants' actions after receiving this letter are somewhat confusing. Lobsenz stated in his deposition that MDR had an informal claims procedure, yet it is evident from his testimony that MDR had no claims procedure at all, either initially or for review of claim denials. Indeed, Lobsenz refused to recognize counsel's letter as a claim for severance pay, and when pressed to admit that at some point plaintiff's claim was denied, he refused to take responsibility for the decision. The relevant deposition testimony is too lengthy to reproduce here in its entirety. See generally Lobsenz dep. at 74-82. However, some excerpts provide the tenor of Lobsenz's testimony during those proceedings:
After failing to resolve her claim with MDR, plaintiff brought this action to enforce her rights under the severance pay policies.
"ERISA was enacted `to promote the interests of employees and their beneficiaries in employee benefit plans' and `to protect contractually defined benefits.'" Firestone Tire and Rubber Co. v. Bruch, ___ U.S. ___, 109 S.Ct. 948, 955, 103 L.Ed.2d 80 (1989) (citations omitted). Although defendants argue (in their supplementary memorandum) that NBL's severance plan lies outside the ambit of ERISA, it is clear from almost every case cited herein that severance policies are "employee welfare benefit plans" under ERISA. 29 U.S.C. § 1002(1). Lobsenz was therefore a plan fiduciary, and pursuant to this federal statute he had an obligation "to discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and ... in accordance with the documents and instruments governing the plan." 29 U.S.C. § 1104(a)(1).
Prior to the Supreme Court decision in Firestone almost every court of appeals construing ERISA employed a deferential standard when reviewing a plan administrator's interpretation of a severance policy — upholding it unless arbitrary or capricious. E.g., Sly v. P.R. Mallory & Co., 712 F.2d 1209 (7th Cir.1983); Simmons v. Diamond Shamrock Corp., 844 F.2d 517 (8th Cir.1988); Accardi v. Control Data Corp., 836 F.2d 126 (2d Cir.1987); Adcock v. Firestone Tire and Rubber Co., 822 F.2d 623 (6th Cir.1987); Holland v. Burlington Ind., Inc., 772 F.2d 1140 (4th Cir.1985), cert. denied sub nom., Slack v. Burlington Industries, Inc., 477 U.S. 903, 106 S.Ct. 3271, 91 L.Ed.2d 562 (1986); Jung v. FMC Corp., 755 F.2d 708 (9th Cir.1985).
These authorities make clear that severance policies are generally instituted to meet two different interests: to tide employees over during a period of unemployment
Courts that employed the deferential "arbitrary or capricious" standard were split when the plan failed to express a specific concern for either the "protection from unemployment" or "reward for past services" purposes. Some upheld the management's interpretation. See, e.g., Henne v. Allis-Chalmers Corp., 660 F.Supp. 1464, 1479 (E.D.Wis.1987) ("plaintiffs ... have provided no evidence supporting their position that severance pay is intended to constitute a "bonus" for past services). However, in Bennett v. Gill & Duffus Chemicals, Inc., 699 F.Supp. 454 (S.D.N.Y.1988), the court declined to find unemployment a prerequisite to benefits. The court there applied the arbitrary and capricious standard, albeit recognizing that certiorari had been granted in Firestone. Bennett rejected application of the so-called "sale of business" rule and held that the employees were "terminated" after the sale of the company whether or not they were rehired by its successor.
The New Standard
Firestone, decided after the initial briefing on the instant cross-motions, rejected mechanical application of the "arbitrary and capricious" standard, finding no basis for it in the strict statutory mandates of ERISA. Instead, the Supreme Court in Firestone directed district courts to review fiduciary decisions de novo unless the plan instrument expressly empowers the administrator to construe uncertain terms or otherwise mandates a more lenient standard. 109 S.Ct. 956.
For decades prior to the enactment of ERISA severance policy enforcement was relegated to state courts, which reviewed them pursuant to ordinary rules of contract construction. As noted in plaintiff's supplemental briefs, those state courts uniformly held that the sale of the employers business terminates the employee's relationship with that employer, whether or not he or she was rehired by the successor. See Dahl v. Brunswick Corp., 277 Md. 471, 356 A.2d 221, 225 (1976) ("there is ample support ... for the position that when part or all of a company is sold and the employees are told that they cannot remain with their old employer, their employment has been terminated even though they immediately begin to work for the new owner"); Mace v. Conde Nast Publications, Inc., 155 Conn. 680, 237 A.2d 360, 363 (1967) ("There can be no question that, as a result of the licensing agreement with Butterick, the defendant permanently terminated its
Ironically then, the enactment of ERISA — a statute clearly intended to provide protection for employees' rights to pensions and benefits — led at first under the pre-Firestone deferential standard to a body of case law which made it easier for management to avoid payment even though state courts would have enforced the employees' rights to those benefits under the same policies. See, e.g., Simmons v. Diamond Shamrock Corp., 844 F.2d 517 (8th Cir.1988) (upholding the denial of severance benefits to former employees despite prior state court ruling that other similarly situated employees of the same company were entitled). That legal incongruity was rectified by the Supreme Court in Firestone, and we now apply a de novo standard consistent with the cited state court decisions:
Firestone, 109 S.Ct. at 955 (citations omitted).
Ultimately the issue presented by this case is whether plaintiff was "terminated" within the meaning of NBL's severance policy, entitling her to benefits. The answer depends upon our gleaning the intent of the drafters by reviewing the objective terms of the policy. Since there are no terms committing the payment decision to the discretion of MDR, we determine de novo whether the sale of NBL to MDR, its subsequent sale to D & B, or the reformulation of plaintiff's duties activated plaintiffs' entitlement under the policies. We find genuine disputes over the intent behind the policies and we therefore deny the cross-motions for summary judgment.
The word "terminated" is not itself ambiguous. As the pre-ERISA state court
However, the other terms of the policies are sufficiently inconsistent to present a genuine dispute over the drafters' intent, warranting the denial of plaintiff's cross-motion.
Plaintiff is not without evidentiary support indicating an intent to reward past services, as contrasted with an intent to protect againt unemployment. NBL's tradition of providing pension and severance pay to its valued employees and the provision of a lifetime pension, payable every month, with no reference to other employment, bolster plaintiff's position. However, these factors simply raise a dispute about an obligation to pay benefits on the initial sale to MDR, and in a similar vein in the later sale to D & B. We must leave to the trier of fact the harmonizing of these inconsistencies and the determination of whether the sale of the business triggers the plan payments.
However, even if defendants can prove that the sale of the business alone is insufficient, plaintiff may still be entitled to judgment on count I if she can prove that the change in her position at MDR and D & B brought her within the coverage of the severance pay policies. We are unsure, as we have said, of the legal effect of the prior Illinois unemployment insurance decision, given the limited nature of the proceeding before the claims adjustor. The issue of whether she left D & B voluntarily does not, however, preclude a finding that the change in her duties amounted to a "termination" within the contemplated meaning of the word. The change in her duties, it would seem, need not rise to the level of constructive discharge to constitute termination in that sense.
Finally, we are troubled by the evidence indicating defendants' failure to provide plaintiff with any documents or summaries concerning her rights under the plan. Would she have stayed on at D & B if she had known the terms of her entitlement? Defendants cannot escape their severance obligations because plaintiff failed to satisfy the plan's terms if they failed to inform her of those severance conditions. This too is a factual question precluding summary judgment.
Breach of Fiduciary Duty
In count II plaintiff alleges that Lobsenz, as president and director of MDR and MDR Liquidating Corporation, had fiduciary duties to plan participants and beneficiaries — including the duty to establish, organize,
In Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985), the Supreme Court held that a plan beneficiary was not entitled to an award of extra-contractual damages for breach of fiduciary duty under § 409 of ERISA, 29 U.S.C. § 1109. The text of that provision states that fiduciaries who breach their ERISA-imposed duties are "liable to make good to such plan any losses to the plan resulting from such breach" (emphasis added). Because Congress provided for payment only to the plan in this section, the Court held that a plan beneficiary could not obtain extra-contractual damages for his or her injury. However, both the Court and the concurrence made clear that the holding was limited to § 1109 and that the determination as to whether extra-contractual damages were available under a different ERISA section was left for another day. Russell, 473 U.S. at 139, n. 5, at 157, 105 S.Ct. at 3089, n. 5, at 3098 (Brennan, J., concurring). See also Pokratz v. Jones Dairy Farm, 771 F.2d 206, 210 (7th Cir. 1985).
Judge Bua has read Russell to mean "damages owed by a fiduciary for breach of duty are payable to the plan, not the beneficaries" even under § 1132. Mehl v. Navistar International Corp., 670 F.Supp. 239, 242 (N.D.Ill.1987). In so doing the court rejected the reasoning of Judge Barrington Parker in Foltz v. U.S. News & World Report, 627 F.Supp. 1143, 1165-67 (D.D.C.1986), who held that Russell applied only to § 1109 and did not preclude actions for breach of fiduciary duty by plan beneficiaries under § 1132. See also Bartucca v. Katy Industries, Inc., 668 F.Supp. 111, 113 (D.Conn.1987). This court has previously held that there was no case law to suggest that punitive damages were possible under § 1132. See Bradley v. Capital Engineering & Mfg., 678 F.Supp. 1330 (N.D.Ill.1988). However, that decision did not constitute a clear finding that such an award is unavailable and we are open to is reconsideration.
We are inclined to agree with the views expressed in Foltz and by Justice Brennan concurring in Russell that actions for breach of fiduciary duties may be maintained by plan beneficiaries under § 1132. ERISA was intended in large part to incorporate the common law of trusts, see, e.g., Russell, 473 U.S. at 152-53, n. 6, 105 S.Ct. at 3096, n. 6 (Brennan, J., concurring); Central States Pension Fund v. Central Transport, Inc., 472 U.S. 559, 570, 105 S.Ct. 2833, 2840, 86 L.Ed.2d 447 (1985). Federal courts must develop the common law of fiduciary obligations under ERISA and we would turn to traditional concepts of trust law espoused by pre-ERISA state court decisions to determine whether plaintiff is entitled to extra-contractual damages under § 1132.
The parties here have not addressed what relief plaintiff could have obtained for breach of fiduciary obligations under pre-ERISA state law decisions, whether that amount would be more than count I relief or whether such relief is inconsistent with the concerns of ERISA. Cf. Kleinhans v. Lisle Savings Profit Sharing Trust, 810 F.2d 618, 627 (7th Cir.1987) (finding generally that punitive damages are unavailable under traditional trust law). We ask the parties to focus further memoranda on
Failure to Provide Documents
In count III plaintiff seeks damages for defendants' alleged violation of 29 U.S.C. § 1024(b)(4). That provision requires plan administrators to furnish, upon request by plan participants or beneficiaries, summary plan descriptions, copies of the plan, annual reports and other information outlining their rights under the plan. To encourage prompt disclosure, ERISA authorizes courts, in their discretion, to impose $100 per day penalties on administrators who refuse to provide requested plan information within 30 days of the request. 29 U.S.C. § 1132(c)(1) (1988 supplement). Plaintiff attaches to her complaint a letter from her attorney dated September 15, 1987, requesting any plan summary, description or any information outlining her severance pay rights. She claims that request remains unanswered. She also attaches a letter from defendants stating that no further information exists relating to her pension rights.
Defendants move to dismiss this count on a number of grounds, none of which warrant dismissal at this stage of litigation. First, they claim claimant was not prejudiced by any refusal to provide plan information. Authorities are split on whether prejudice is a necessary element to claim damages under § 1132(c)(1). Compare Chambers v. European American Bank and Trust Co., 601 F.Supp. 630, 638 (E.D.N.Y.1985) (requiring prejudice, and citing cases constituting the "weight of authority"), with Porcellini v. Strassheim Printing Co., 578 F.Supp. 605, 613-614 (E.D.Penn.1983) (finding prejudice a factor to consider but holding that, due to the punitive purpose behind the provision, it is not required); Bemis v. Hogue 635 F.Supp. 1100, 1106 (E.D.Mich.1986) (following Porcellini). Although we are inclined to agree with the view espoused in Porcellini, we need not resolve the issue since the presence of injury or prejudice to the plaintiff is a question of fact that cannot be resolved on a motion to dismiss. Whether prejudice is a necessary element or a fact for consideration in the court's discretion, defendants' assertion must await the development of a factual record, or at least a proper citation to the factual record through a motion for summary judgment.
Defendants' second argument is that plaintiff through whatever means now possesses all the documents now in existence, namely the policy itself. Plaintiff rejoins that defendants had an obligation to compile additional documents, e.g., a plan summary and the other documents specified by ERISA. We are not at all sure what more needs to be done when the plan itself is short and uncomplicated, somewhat in the nature of a summary itself, but here it is ambiguous and the parties do not go much beyond legal assertions. In any event, however, it is an issue which cannot be dealt with on a motion to dismiss — the "plan" is apparently all there is but we cannot assume that for the purposes of the motion. Again, this is not an issue that can be resolved on a motion to dismiss; whether these documents exist is a question of fact on which this court has not heard evidence.
Finally, defendants contend that plaintiff is not entitled to such documents because the severance policies do not constitute a "plan" under ERISA and she is not a colorable claimant under the plain language of the severance pay policy. As stated in Firestone, to be a participant under § 1132(c)(1), plaintiff must have a colorable claim that she will prevail in a suit for benefits or that eligibility requirements will be fulfilled in the future. 109 S.Ct. at 958. As our ruling on count I makes clear, both of defendants' claims are without merit. Not only does the severance policy fall within the ambit of ERISA, but plaintiff's claim presents a close factual issue of entitlement.
For the reasons stated, defendants' motion for summary judgment on count I and to dismiss counts II and III is denied.
Ultimately, we find the claims adjudicator's determination immaterial. The issue there was whether claimant quit voluntarily within the meaning of Illinois' unemployment program; whereas here the issue is whether plaintiff was "terminated" within the meaning of the severance pay policies. We view these as two distinct questions. We believe that it is entirely possible that plaintiff "voluntarily" left D & B's employment after a change in duties sufficient to constitute a "termination" from her employment as an executive secretary at NBL. Plaintiff is not estopped from pursuing this claim here.
These post hoc explanations are not conclusive as to the meaning of "termination" in the policies. If the policies are so ambiguous that they require reference to parol evidence, we would turn first to the objective manifestations of that intent at the time they were drafted and incorporated into the sales agreement.