Illinois ERISA Lawyer Blog

State employees in Chicago and all over Illinois with retirement plan benefits will most likely experience some sort of change to the State pension system. The Illinois House passed S.B. 1, which is estimated to completely shore up the various pension funds' $150 billion shortfall over the next 30 years. The competing Senate bill, S.B. 2404, is estimated to reduce the funds' deficit by $50 billion, of the $150 billion, over the next 30 years. The less aggressive S.B. 2404 has union support and a vow by the unions not to challenge the bill, if enacted, as unconstitutional. The competing S.B. 1, on the other hand, may draw constitutional challenges if enacted.

Under bill 2404, current employees must select one of three retirement options:
• A 3% simple cost-of-living adjustment, have future salary increases accrue towards pensions, and receive continued access to retirement health care;
• A 3% compounded cost-of-living adjustment, have future salary increases accrue towards pensions, but sacrifice continued access to retirement health care; or
• A 3% compounded cost-of-living adjustment with a three-year delay, have future salary increases accrue towards pensions, and receive continued access to retirement health care, and pay an additional 2% of salary towards their benefits.

Under bill 1, there is no option to employees. The bill would require:
• An increase in employee contributions by 2% of salary;
• An increase in the retirement age, on a sliding scale based on the current employee's age;
• Cost-of-living adjustments would be limited to 3% compounded, or $30 times the number of years of service, whichever is less; and
• Delay benefit increases until age 67 or 5 years after retirement

Whether the Illinois House and Senate will pass one of these bills, or compromise and reconcile the two, will likely unfold later this year. The question remains if there is a compromise bill, whether it would be challenged as unconstitutional. The Illinois Constitution prohibits any diminution in retirement benefits. Where under federal ERISA law, there is only a rule prohibiting a cutback on the actual accrued benefits, Illinois courts have construed this constitutional provision more broadly, making it apply to even unaccrued benefits for current employees.

If you have questions regarding your state pension, contact a reputable pension lawyer.

State employees in Chicago and the rest of Illinois should closely monitor developments in Illinois pension law reform. Recently, Govern Pat Quinn released a proposal to manage the State's pension woes. The five state pension systems impacted would be the State Employees Retirement System of Illinois, , State Universities Retirement System, Judges Retirement System, the Teachers Retirement System, and the Public School Retirement System (for cities over 500,000 inhabitants).

Currently, Illinois faces $83 billion in unfunded pension liability, largely created by failure to make contributions in the past and declining asset values in recent years. Governor Quinn has cited the increased annual cost of maintaining the pensions, becoming 15% of state expenditures as opposed to 6% several years ago. This increase comes as a result of a few factors, though: retiring baby boomers, and previous failures to adequately fund the plan.

The current proposal aims to achieve full funding within 30 years. In addition to modifying entitlements, it does so by mandating contributions sufficient to achieve full funding status by 2042. One of the reasons the plans are so underfunded is because of the lack of required funding as is present in federal ERISA governed plans. The proposal modifies entitlements in the following ways. Employees must increase their own contribution by 3% of salary. Retirement age is increased to 67. Cost of living adjustments would be capped at the lesser of 3% or half the consumer price index. Also, the adjustments would not kick in until the later of age 67, or five years after retirement. Also, the funding obligation for local schools, colleges, and universities will be shifted to the employer, rather than the state. This last measure will eliminate abuses that have been present whereby the schools would negotiate early retirement for an employee by artificially raising the employee's final earnings, thereby boosting the pension, in exchange for the employee voluntarily leaving the employer early. It was a loophole whereby many schools reduced their own budget by increasing the state's pension obligation.

This proposal has already been criticized by unions as unconstitutional, though it appears to have governmental support. The criticizers, however, have not come forward with an alternative proposal, and have not yet proceeded with a court challenge, as it is not law yet. The state believes it can overcome any unconstitutional challenge because the reform will be "opt in" for any employees. They would have to elect to have the entitlements modified in return for continued retiree health care subsidies from the state. If this proposal becomes enacted, it surely will make its way to the Illinois Supreme Court. In this author's view, with so many employers terminating defined benefit plans in favor of 401(k) style plans, a measure that preserves lifetime income for employees through a sustainable and funded system is a better measure than the plan terminations, freezing, and conversions present in the private sector. If you are a state employee and have questions about how the pension modifications could affect you, contact a pension lawyer.

Millions of Americans have lost a significant amount of their retirement savings due to the collapse of the subprime mortgage backed securities market. While several groups of plaintiffs (either plan participants or other plan fiduciaries) have challenged the prudence of plan fiduciaries' and money managers' decision to expose the plan to risks of those securities, those challenges have largely failed. A recent decision held that Citigroup did not breach its fiduciary duty to its retirement plan participants by leaving its own company stock in its retirement plan after it allegedly knew the stock price would tumble because of the company's heavy exposure to subprime mortgages. In re Citigroup ERISA Litigation, 662 F.3d 128 (2d Cir. 2011). But most recently, following a trial, a judge in New York determined that State Street Bank breached its fiduciary duty to its clients by ignoring stated risk guidelines and failing to diversify the assets in several of its bond funds because those bond funds were between 70% and 80% invested in mortgage backed securities. In re State Street Bank & Trust Co. Fixed Income Funds ERISA Litigation, 2012 U.S. Dist. LEXIS 13556 (S.D.N.Y. Feb. 3, 2012).

This decision is finally some consolation to the plan participants who lost so much money in their retirement savings. Prior cases have been distinguishable, though, because they largely involved claims that an employer imprudently continued to offer its own stock as a retirement investment despite knowing it would lose value. Unfortunately, where a plan explicitly states that offering employer stock is part of the plan, or so "hardwired," many courts imply a presumption of prudence on behalf of the administrator for leaving that stock in the plan, also known as the Moench presumption. While many pension practitioners have long questioned whether the typical retirement landscape today, which has transitioned from the traditional defined benefit pension plan to the individual account structure (such as a 401(k), can really provide the original stated objectives of ERISA--retirement income security. More and more baby boomers are delaying retirement to recoup investment losses because otherwise they will not have enough income to last them through retirement. Is this system really working?

If you have questions about the assets in which your retirement plan is invested and the prudence of such investments, contact an ERISA lawyer.

Employees in Chicago and the Midwest often find themselves making difficult decisions with regard to compensation and pension benefits in jobs. Sometimes you must sacrifice lucrative benefits for either better job security, more money, or to even have a job at all. Employers are constantly looking for ways to save money, and sometimes even customers of your employer may look for ways to save money. Recently, a local Teamsters union challenged actions taken by BNSF Railway Company as unlawfully interfering with union members' protected benefits under ERISA. Teamsters Local Union 705 v. BNSF Ry. Co., 2011 U.S. Dist. LEXIS 12750 (N.D. Ill. Nov. 3, 2011).

BNSF cancelled a service contract with Rail Terminal Services, and shortly after Rail Terminal Services discontinued its operations. BNSF then hired many of the former employees of Rail Terminal Services to perform essentially the same work they had done before. The difference was that Rail Terminal Services was subject to a collective bargaining agreement, and the employees were receiving pension, health, and other benefits through the union plan. But when BNSF hired them, it did not provide the same level of benefits, thereby reducing its cost.

The Court held this was not an unlawful interference with the employees' benefits. BNSF's cancellation of the service contract was lawful. Not to say that the action taken by BNSF could never be an unlawful interference with benefits, but in this case the Teamsters did not offer any evidence that BNSF intended to interfere with the benefits.

If you have questions about your employee benefits rights, speak with a lawyer concentrating in ERISA.

Employees in the Chicago area who participate in an employer-sponsored 401(k) or profit sharing plan almost never have to ask any questions about how to make contributions to the plan. Upon commencing employment, the employer provides you with paperwork including election forms that will designate how much of your salary you wish to defer into the plan. Most of these types of retirement plans, though, provide that if you leave that particular employer, you can either leave the money in that plan, or request a distribution. The plans typically provide a procedure for requesting a distribution. It is not usually as simple as telling Human Resources you want your account balance out. There will typically be at least one form you must fill out to properly make the request under the terms of the plan. But the question arises: where do you get the form? The answer is that the employer must provide it to you, and a failure to do so could result in the employer's liability for breach of fiduciary duty. Such was the case in Kujanek v. Houston Poly Bag I Ltd., 658 F.3d 483 (5th Cir. Sept. 27, 2011).

Mr. Kujanek left his employer and communicated his intent to take a distribution from the plan. The employer would not distribute the funds, because a distribution required completing a request for distribution form, but the employer would not give Kujanek the form. He contacted the plan's third party administrator to request the form. The administrator contacted the employer, but the employer still would not provide the form. In the meantime, the securities in which Mr. Kujanek's account was invested significantly dropped in value.

The United States Court of Appeals for the Fifth Circuit held that the employer breached its fiduciary duty, and was liable to Kujanek for the difference between the account balance when Kujanek tried to request a distribution, and the time when the distribution finally took place. The employer had a fiduciary duty to provide Kujanek with the forms and tools necessary to properly make his request for distribution, especially when it knew he was trying to make such a request.

If you have experienced problems obtaining a distribution from your plan, speak with an experienced ERISA lawyer today.

Employees of Chicago companies who participate in a 401(k) holding employer stock or an Employee Stock Ownership Plan are often attracted to owning stock in their employer because of the significant upside for the staff doing a good job for the employer. You are there at work every day, and you see how the business operates. So you can see how your (and your colleagues') efforts will pay off. But holding employer stock in your retirement plan does not come without its risks. For example, one might say you have all your eggs in one basket. If your employer goes bankrupt, you not only are out of a job, but your retirement savings could be decimated. Fiduciaries of an ERISA retirement plan owe a duty of prudence with respect to the investments in the plan, and failing to take employer stock out of the retirement plan can be a breach of your employer's, or some individuals who make such decisions, fiduciary duties.

Many employer plans "hard wire" the holding of employer stock into the terms of the plan. This means the plan document states one of the purposes of the plan is to hold employer stock. In such cases, the fiduciaries are given a broader deference in their decision over when they should make the decision to stop including employer stock in the plan, a so called presumption in favor of the retention of employer stock being reasonable. The seminal case on that point is Moench v. Robertson, 62 F.3d 553 (3d Cir. 1995). Recently, the Second Circuit Court of Appeals (a significant court that sits in New York City) adopted that rule in Gearren v. McGraw-Hill Cos., 660 F.3d 605 (2d Cir. Oct. 19, 2011). Plaintiffs in that case alleged it was a breach of fiduciary duty for fiduciaries of the McGraw-Hill 401(k) plan to not remove employer stock from the plan when the stock dropped 64% in value following the subprime mortgage crisis. The Second Circuit held that this presumption applies at the pleading stage, meaning it can cause a case to be dismissed if the proper facts are not pled.

Where the plan is subject to the Moench presumption, a plaintiff will generally have to allege that the employer stock faced a dire situation that was foreseeable to the fiduciaries. This is, of course, pretty vague language, and what it means can only be discovered through the case-by-case examples. If you have questions about your retirement plan including your employer's stock, consult an ERISA lawyer.

Employees in the Chicago area, and elsewhere, come to expect that when their employer sponsors a pension plan, or other type of benefit plan, and promises a benefit, that the employer will honor that promise. That is, unfortunately, not always the case. The first question, though, is what to do about it when the employer, which is usually acting as the plan's administrator, clearly says it will not pay the benefit? The natural inclination is to want to file a lawsuit, and many people have done that immediately, only to be disappointed by having wasted so much time by failing to exhaust administrative remedies. But why should a claimant have to make an administrative claim to the plan when the employer unequivocally states it will not pay a benefit? The Eight Circuit Court of Appeals analyzed this very issue in Angevine v. Anheuser-Busch Companies Pension Plan, 646 F.3d 1034 (8th Cir. 2011).

In Angevine, Anheuser-Busch was the pension plan sponsor and administrator. The plan provided that if the company were sold or there was otherwise a change in control, participants would get an enhanced pension benefit, a 5+5 benefit (i.e., five years of age and service added to the employee's current count). When InBev bought out Anheuser-Busch, the company sent an email out to many employees, including Mr. Angevine, unequivocally stating the enhanced 5+5 benefit would not be paid. Mr. Angevine wished to take early retirement, but rather than making a claim to the plan for the enhanced benefit, he immediately sued in court, arguing he did not need to exhaust any administrative remedies because the plan repudiated its obligation to pay the enhanced benefit.

The Court of Appeals held that Mr. Angevine prematurely filed a lawsuit and was obligated to pursue administrative remedies--filing a claim with the plan, and exhausting any appeals with the plan. There are only two exceptions to the requirement to exhaust administrative remedies: when doing so would be futile, and when there is no administrative remedy to pursue. The plan stated that the way to pursue an administrative remedy is to file a claim for benefits with the plan. Also, the Court held the administrative remedy would not necessarily be futile because although the email provided the participants with an indication of what the plan administrator would do, it was not certain the plan administrator would deny the claims. The repudiation, while causing the claim to accrue and triggering any statutes of limitations, therefore did not provide a third exception to the requirement to exhaust administrative remedies.

If your retirement plan has indicated to you that it will not pay a benefit to which you think you are entitled under the terms of the plan, consult an experienced ERISA lawyer to determine the proper method to handle the claim.

Employees of Chicago companies that are subject to a collective bargaining agreement ("CBA") frequently wonder what will happen to their pension benefits if the employer goes belly up, or otherwise does not contribute to the pension fund. Sometimes the owners of these small employers are also employees themselves who perform work for the employer, the scope of which is covered b the CBA. The problem is that multiemployer plans depend on contributions from the employers that sign the CBA to fund the benefits the plan promises, so will the plan pay benefits to an employee or owner-employee from a non-contributing employer? The answer is almost always yes, unless the fund must impose benefit restrictions due to its funding level.

Multiemployer plans are permitted to sue noncontributing employers for delinquent contributions under ERISA § 515. But the plan may not withhold benefits from employees, or even owner employees, in order to enforce the plan's right to those delinquent contributions. A court recently reviewed this same principle, where the owner of the business claimed his pension, and the plan would not pay the benefits because his company was delinquent with its contributions. See Rust v. Electrical Workers Local 26 Pension Trust Fund, No. 10-29 (W.D. Va. Sept. 29, 2011). The fund refused to pay Rust's pension claim because his company experienced financial troubles and stopped contributing to the fund on behalf of the employees.

The court held that the fund could not enforce its claim to delinquent contributions in this manner. The proper way to enforce was through ERISA § 515, rather than withholding benefits. This situation is not to be confused, though, with health insurance plan claims to reimbursement and subrogation for expenditures for injuries caused by a third party.

If your pension plan is attempting to set off any benefits payable to you, speak with an experienced ERISA lawyer.

Executives and employees with retirement plans in Chicago, and nearly everywhere else, now change employers with greater frequency than they did 50 years ago. Long gone are the days where you would typically work for the same company your whole career. This is part of the reason for the rise in popularity of the defined contribution plan over the more traditional defined benefit plan: because you can take your account balance with you. But how exactly do you take your account balance with you when you leave your employer?

Employees typically depend on the employer to provide them with information about how to take the distribution or roll the funds over into an IRA, or another employer plan. So what happens when the employer does not tell you how to make the request? This happened recently, and the United States Court of Appeals for the Fifth Circuit held the sponsor breached its fiduciary duty by failing to notify the employee about how to request a distribution of his benefits following the employee's resignation. Kujanek v. Houston Poly Bag I Ltd., No. 10-20664 (5th Cir. Sept. 27, 2011). In that case, after the employee resigned, the profit sharing plan account balance dropped in value, and the decline could have been avoided if the employee knew how to request the distribution earlier. The court thus held the employer was required to make up for the "loss" to the plan (i.e., the drop in that account's balance) because of the breach of fiduciary duty under ERISA § 502(a)(2). Recall, losses to the plan remedies under that subsection can be obtained for a single participant after Larue v. Dewolff, Boberg, & Associates, Inc., 128 S. Ct. 1020 (2008).

Though this case's facts were limited to failure to notify a participant of how to request a distribution following resignation, the same principle could apply to a surviving spouse who is not notified of how to request a withdrawal following the death of the participant spouse. If your employer, or your spouse's employer, has failed to notify you of how to request a distribution, call a skilled ERISA lawyer.

Nearly every employee of any Chicago-based employer is a participant in some sort of retirement plan offered by the employer: pension plan, cash balance plan, or a 401(k) plan. Participants in 401(k) plans rarely know how much in fees the plan (and therefore, the participants) pay to the service providers. New regulations on disclosure of fees to participants will soon take effect requiring plan administrators to disclose fees charged by service providers to the participants in 401(k) plans.

There has been a wave of lawsuits alleging that certain large 401(k) plans pay excessive fees for mutual funds to service providers. The most recent of which is Renfro v. Unisys Corp., No. 10-2447 (3d Cir. Aug. 19, 2011). In that case, there was lengthy battle over whether Fidelity was a fiduciary with respect to selection of plan investments. The court held it was not, and thus a breach of fiduciary claim could not proceed against Fidelity, following the authority of Mertens v. Hewitt Associates, 508 U.S. 248 (1993). However, the Supreme Court also held non-fiduciaries can be held liable under ERISA § 502(a)(3) in order to unwind a prohibited transaction under ERISA. Harris Trust and Savings Bank v. Solomon Smith Barney, Inc., 530 U.S. 238 (2001). Under ERISA, the service provider will invariably be a "party in interest", such that the provision of services must be for a reasonable fee, otherwise it is a prohibited transaction. ERISA § 406(a).

The courts should thus stop inquiring into whether there was a breach of fiduciary duty, and just focus on whether the fees charged were reasonable for the service, and if not the service provider should be liable to the plan for the amount of the fee charged that was unreasonable under ERISA § 502(a)(3). If you have a question about fees your 401(k) plan pays, speak with a competent ERISA attorney.

Beneficiaries of employer-sponsored retirement plan accounts often find themselves in disputes with each other as to whom is really entitled to the 401(k) or profit sharing plan account balance when the participant dies. Most often, a surviving spouse finds him or herself battling with children from a prior marriage of the deceased spouse. The question both want answered is: what does it take for a surviving spouse to consent to waiving any interest in the benefits? Just such a question came up recently in Chicago before the Court of Appeals for the Seventh Circuit. See Burns v. Orthotek, Inc., Employees' Pension Plan and Trust, No. 10-1521 (7th Cir. Sept. 15, 2001).

In Burns, Dr. Burns was the owner of an orthodontics practice, and the practice sponsored a pension plan, of which Dr. Burns was the plan administrator, named fiduciary, and main plan participant. He died in 2004, but his second wife, Cheryl, survived him. Before his death, Dr. and Cheryl Burns signed three plan documents: Dr. Burns' waiver of a joint and survivor annuity with spousal consent, designation as beneficiaries Dr. Burns' two sons, and Cheryl Burns' consent to the beneficiary designations. After Dr. Burns died, however, Cheryl claimed survivor benefits under the plan. She argued that while she did sign a consent form to the waiver of the joint and survivor annuity and signed the consent to the sons being beneficiaries, the forms did not comply with ERISA's requirement that her signature be witnessed by a plan representative in accordance with ERISA § 205.

That section of ERISA requires that any pension benefit payable in the form of a life annuity must provide for a joint and survivor benefit, and if the participant is married, that form of payment can only be waived if (1) the spouse consents in writing, (2) the election designates a beneficiary, and (3) the spousal consent acknowledges the election and is witnessed by a plan representative. In the Burns case, Cheryl contended that though she signed the consent, it was not witnessed by a plan representative because Dr. Burns did not sign the form as a witness.

The Court of Appeals appeared to weigh the equities of the case here, and held that the "witnessed" requirement did not require that the plan representative actually sign the documents as a witness. Dr. Burns was a plan representative, and signed the forms himself, and admittedly he provided the forms to Cheryl.

If you are a surviving spouse or a beneficiary and have questions about the validity of a spousal consent to designate an alternative beneficiary, talk to an ERISA lawyer.

Few employees that participate in an employer-sponsored 401(k) plan question whether the plan is paying excessive fees to the funds it offers as investment options. We often just assume the plan, and the employer, are leveraging the buying power of the large amount of assets held in the plan to secure the lowest possible fees for the participants. But this may or may not be true. One theory advanced in several cases so far is that when the 401(k) plan offers "retail" class mutual funds, rather than "institutional" class funds available at a lower cost, the plan fiduciaries are not meeting their fiduciary obligations. See, e.g., Loomis v. Exelon Corp., No. 10-1755 (7th Cir. Sept. 6, 2011).

The crux of the participants' argument is that where a plan can use its size to negotiate lower fees, or where the same fund is available in both a lower-fee "institutional" class and a higher-fee "retail" class, the fund should opt for the lower cost alternative. The Court of Appeals for the Seventh Circuit, though, has disagreed with this rationale several times now. See, e.g., Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009). The court, however, reasoned that the employer, Exelon in this case, met its obligation because it provided an array of investment options to participants, some with lower fees.

The flaw I see in both the court's reasoning, and the manner in which the participants presented the argument, is that it does not address the overall shift in attitude about plan expenses as the predominant plan type shifted from traditional pension plans to the modern 401(k) plans. In a defined benefit pension plan, participants were promised a certain benefit, and any plan expenses necessarily drove up the employer's cost. The employers therefore were very savvy about paying plan expenses, using the plan's size to leverage the best deals possible. But as we have shifted to the 401(k) being the predominant type of retirement plan, the participants and not the employer bear many of those expenses, such as fund and management fees. Are the employers really using the same level of diligence to defray expenses as they did when the expenses came from their own pockets?

If you have questions about 401(k) plan fees, call an ERISA lawyer today.

Employees and Retirees in Chicago that are participants in a pension plan should be concerned about a cost of living adjustment ("COLA") in their pension plans. A COLA is an annual adjustment to a pension benefit based upon a cost of living index. The question arises, however, when a participant takes a lump sum distribution, whether that lump sum will reflect future COLAs or not. A class action case on this topic recently settled, and some parties challenged the settlement. Williams v. Rohm & Haas Pension Plan, No. 10-1978 (7th Cir. Sept. 2, 2011).

The case began when Cory Williams left Rohm & Haas, and elected to take a lump sum distribution of his pension benefit under the terms of the plan. He later came to believe his lump sum distribution should have included the present value of the future COLAs that he would have received if he elected an annuity. The district court granted summary judgment in his, and the class's, favor. It, and the appellate court, held that a COLA is an accrued benefit within the meaning of § 2(23)(A) of the Employee Retirement Income Security Act ("ERISA"), and thus ERISA § 504(c)(3), which provides any lump sum distribution must be the actuarial equivalent of any benefit payable as an annuity. In fact, tax regulations provide that when a plan an early retirement annuity is to be the actuarial equivalent of an early retirement annuity, the lump sum must include a COLA. Treas. Reg. § 1.411(a)-11(a)(2).

The parties contested the damages amounts, and the Plan argued the tax regulation was not applicable because under other precedent, other similar tax regulations have been held to be merely a requirement for preferential tax treatment, but not a requirement to comply with ERISA. See McCarter v. Ret. Plan for the Dist. Managers of Am. Family Ins. Grp., 540 F.3d 649, 651 (7th Cir. 2008). Before the district court could address this argument on damages, the parties settled the claims.

If you have questions regarding the cost of living adjustment in your pension plan, speak to a pension lawyer versed in ERISA today.

Employees and Retirees in Chicago alike frequently wonder what happens when a plan administrator misrepresents the pension benefits that employee or retiree would receive, such as what the annuity payment amount would be. There have been plenty of cases involving a misrepresentation by the plan sponsor or employer (e.g., Enron). But no case yet arising in Chicago has yet to extend the estoppel principle against a retirement plan itself. A recent case appeared to be the example where the Seventh Circuit Court of Appeals would answer the question: can an estoppel claim proceed against the plan. See Pearson v. Voith Paper Rolls, Inc., No. 08 C 114 (7th Cir. Aug. 25, 2011). However, the court found a way to dispose of the case without answering the question that needed answering.

In Pearson, Kenneth Pearson was nearing retirement from Voith Paper Rolls. Prior to his retirement, Pearson met with a Human Resources representative regarding retirement, and Pearson asked the representative to calculate his retirement benefits under the plan. The plan provided that a retiree could elect between either a lump sum distribution, or one of several different variations of annuities. Pearson had met the age and service for early retirement, but not for full retirement benefits. When the Human Resources representative calculated Pearson's options, he entered the early retirement information into the lump sum distribution calculation, but not into the annuity calculations, thereby representing to Pearson artificially inflated annuity payments. Pearson elected one of the annuities, and after he retired, was informed his annuity payment would decrease.

Pearson raised claims of estoppel against the Plan. Faced with having to decide for the first time whether a claim of estoppel can proceed against a plan by a participant in the Seventh Circuit, the Court of Appeals declined to answer the question. The court held that even if it recognized such a claim against the plan, Pearson did not offer evidence of all the required elements, namely that the Plan intentionally misrepresented the benefit amount, or that Pearson relied on the misrepresentation to his detriment. The court thus affirmed the district court's grant of summary judgment to the Plan.

If you have questions about a misrepresentation made to you about your pension benefits, speak with an experienced ERISA lawyer today.

Employees and executives in Chicago frequently want to know what benefits their employer-sponsored pension or retirement plan has to provide. Generally, both ERISA and the Internal Revenue Code require qualified plans provide a minimum level of participation, vesting, accrual of benefits, non-discrimination, and responsibilities on plan fiduciaries. But ERISA and the Code also provide that once a plan has provided a benefit pursuant to a retirement plan, it may not subsequently take away a protected benefit. This is called the anti-cutback rule. ERISA § 204(g). Employees of a Chicago-based employer recently challenged a plan amendment, arguing it violated the anti-cutback rule. See Carter v. Pension Plan of A. Finkl & Sons Co. for Eligible Office Employees, No. 10-3287, 2011 U.S. App. LEXIS 16824 (7th Cir. Aug. 15, 2011).

In Carter, the employer decided to terminate the pension plan (something an employer has a right to do, provided it meets certain requirements). After notifying all the participants of the proposed plan termination, and initiating the process with the Pension Benefit Guaranty Corporation, the employer amended the plan to provide that a participant who has not yet begun receiving distributions from the plan when the plan would distribute benefits on account of its termination, the participant could elect to start receiving an annuity, even if he still worked for the employer. Subsequently, due to the costs associated with plan termination, the employer abandoned the proposed termination, and enacted another amendment effectively voiding the first amendment allowing the annuity while working.

The participants claimed they had a protected right to receive in-service annuity distributions that could not be taken away pursuant to ERISA's anti-cutback rule. Both the District Court and Court of Appeals rejected the plaintiffs' argument, because the right to receive an in-service annuity under the first amendment was conditioned on the plan terminating. Because the plan did not terminate, the first amendment never created a protected benefit.

If you are a participant in an employer-sponsored pension or retirement plan and would like to know if your employer has eliminated a protected benefit, contact an experienced ERISA lawyer.