Cockerill v. Corteva, Inc., No. 21-3966, __ F.R.D. __, 2023 WL 7986364 (E.D. Pa. Nov. 17, 2023) (Judge Michael M. Baylson)
For the second week in a row, we have chosen a Kantor & Kantor victory as the case of the week. In this week’s featured decision, a district court in Pennsylvania has certified two classes of workers who are participants in one of the oldest pension plans in the United States sponsored by the venerable chemical company E.I. DuPont de Nemours Company (“Historical DuPont”).
Two plan participants (later joined by two others) brought a putative class action suit in 2019, claiming that they were improperly denied the ability to qualify for early and optional retirement benefits they had long been promised following the merger of Historical DuPont and Dow Chemical Company to form the biggest chemical conglomerate in the world, and the subsequent spin-off of three companies: Dow Inc., Corteva, and DuPont de Nemours, Inc. (“New DuPont”). Both before and after the split, the plaintiffs worked at the same workplace for a company called DuPont, but because of corporate maneuvering which placed the pension plan (but not the workers) with Corteva, the participants were told that they had lost the ability to age into early retirement benefits and qualify for optional retirement benefits under the plan.
The plaintiffs assert multiple claims on which they sought class certification. In Counts I and II, they seek clarification under ERISA Section 502(a)(1)(B) of their rights to early and optional retirement benefits under the terms of the plan. In Count IV, they allege that defendants breached their fiduciary duties in miscommunicating and failing to fully and clearly communicate the effect of the spin-off on their benefits. In Count V, they allege that by “splitting employees from Historical DuPont,” defendants acted to prevent them from attaining benefits in violation of ERISA Section 510. And in Count VI, plaintiffs allege that the defendants “retroactively applied an amendment to the Optional Retirement Benefits” in violation of ERISA’s anti-cutback provision, ERISA Section 205.
The district court previously denied motions to dismiss and allowed plaintiffs to amend their complaint, among other things to expand the class definition to include workers both over and under the age of 50 who had at least 15 years of employment at the time of the spinoff on June 1, 2019. In this order, the judge certified two classes encompassing both age groups.
The court found that the plaintiffs had met all four requirements of Rule 23(a) with respect Counts I, II, IV, V and VI. The court reasoned that the plaintiffs established numerosity for both classes by showing 584 participants within the first class and thousands who met the second class definition. With respect to commonality, the court reasoned that “[b]oth classes share multiple common questions, that, when answered, will advance the litigation for all class members.” The court reasoned that “[b]ecause the claims center on how the Employers acted toward the classes as a whole, their disposition is common to all class members.” This held true with respect to all of the claims on which Plaintiffs sought class certification, including the fiduciary breach claim, which the court held did not depend on misrepresentations that were individualized in nature or require that plaintiffs show detrimental reliance.
Applying similar reasoning, the court also concluded that the typicality requirement was met by all plaintiffs except for Mr. Newton, whose circumstances the court found somewhat unique given that he was terminated at age 49. With respect to the adequacy of the class representatives, the court found that the interests of Mr. Cockerill, Mr. Major, and Mr. Benson were sufficiently aligned with those of the class members and that they had a sufficient degree of understanding of the case to adequately represent the class. Likewise, the court concluded that class counsel were adequate to represent the class.
Turning to the requirements of Rule 23(b), the court found certification appropriate under subsection (b)(1) for both classes, reasoning that “for each count, both classes prevail based not on individual members’ circumstances,” but on whether defendants improperly interpreted Plan documents, misrepresented or failed to inform participants how the spin-off would affect their benefits, whether they were improperly motivated in their placement of the Plan, and whether they unlawfully cut-back benefits through a retroactive amendment. The court also found certification appropriate under Rule 23(b)(2), stressing that the relief sought would apply to all class members, the material facts were largely uniform, and while the declaratory or injunctive relief would likely be a mere “prelude” to damages, that was not problematic since the damages would be “easily computed by objective standards.”
Defendants argued that certification was inappropriate given the failure of class members to exhaust their administrative remedies. The court rejected this on multiple grounds, concluding that the fiduciary breach and Section 510 claims did not require exhaustion, the Plan itself did not mandate that workers exhaust an internal review process before filing suit, exhaustion would be futile given defendants’ application of a uniform interpretation that precluded grating the benefits, and unnamed class members should not be required to exhaust or should be given a flexible time frame in which to do so.
The court also rejected defendants’ “speculative defense” with respect to statutes of limitations, noting that the defendants failed to explain “with specificity, how statute of limitations issues would unwind the bundle of common issues” for the early retirement class. And even with respect to the optional retirement class, the court would simply be required to decide either one or two statute of limitations questions, thus bolstering commonality and adequacy rather than defeating it.
Finally, the court addressed and rejected defendants’ argument that typicality was defeated because one of the plaintiffs, Mr. Major, signed a release. Instead, because Mr. Benson has not signed a release, the court found the “mixed representatives typical of the mixed class they will represent,” which defendants say includes between 100 and 389 participants who have signed releases. Moreover, the court noted a number of reasons that led it to conclude that the releases were not likely to become a “major focus” of the litigation.
Thus, the court was satisfied that it was appropriate to certify two classes. First, it certified an “early retirement class” represented by Plaintiff Robert Cockerill consisting of “all Plan participants who were less than age 50, with at least 15 years of service under Title I of the Plan, and who were employed by Historical DuPont or any other participating employer of Title I of the Plan, and who continued to be employed post spin-off by New DuPont or one of its subsidiaries that did not participate in the Plan until they reached age 50, and beneficiaries and estates of such participants.”
Second, the court certified an “optional retirement class” represented by Plaintiffs Oliver Major and Derrell Benson, consisting of “all Plan participants who were over age 50, with at least 15 years of service under Title I of the Plan, and who were employed by Historical DuPont or any other participating employer of Title I of the Plan, and who continued to be employed post spin-off by New DuPont or one of its subsidiaries that did not participate in the Plan until they reached age 50, and beneficiaries and estates of such participants.” The court carved out from this second class “anyone who received or was eligible for unreduced Early Retirement Benefits…[and] whose Early Retirement Benefits, at spin-off or through present, would be equal to, or greater than their Optional Retirement Benefit.”
The class is represented by Susan Meter and your editor Elizabeth Hopkins of Kantor & Kantor LLP, along with Edward Stone of Edward S. Stone Law P.C., and Daniel Feinberg and Nina Wasow of Feinberg Jackson Werthman & Wasow.
Next week, we will cover another important pension decision issued this week from the Second Circuit – Cunningham v. Cornell University – so stay tuned. In the meantime, we wish all of you a wonderful Thanksgiving with your families and friends.
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Breach of Fiduciary Duty
Boyette v. Montefiore Med. Ctr., No. 22-cv-5280 (JGK), 2023 WL 7612391 (S.D.N.Y. Nov. 14, 2023) (Judge John G. Koeltl). Former employees of Montefiore Medical Center who are participants in its 403(b) retirement plan have sued Montefiore and the other plan fiduciaries under ERISA in this putative breach of fiduciary class action. Plaintiffs alleged in their complaint that the recordkeeping costs for the plan were much higher than those paid by similarly sized comparable peer plans contracting with the same and similar service providers. “From 2017 to 2020, the Plan’s recordkeeping cost per participant is alleged to have ranged from $136.51 to $230.25 with revenue sharing, and $136.51 to $172.70 without revenue sharing.” For comparison, plaintiffs contend that other plans with at least 15,000 participants and $300 million in assets had per-participant recordkeeping costs ranging from $23 to $30. In addition to their fee claims, plaintiffs also challenged the plan’s investments. First, they allege that the plan failed to identify and invest in lower-cost share classes of five funds in the plan. The participants maintain that the share classes chosen by the fiduciaries were the same in every respect other than their cost to these less expensive and available counterparts, and that defendants failed to prudently monitor the plan to invest the lowest-cost share classes for its funds. Second, plaintiffs allege that the plan retained high-cost and underperforming funds as investment options. They identified comparator funds in their complaint with superior returns and lower costs, and argued that prudent fiduciaries would have made themselves aware of these investment options and switched to them. Defendants moved to dismiss the complaint for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The court granted the motion to dismiss in this order. “At the outset, the Court notes that it recently dismissed a substantially similar case alleging a breach of fiduciary duty of prudence in violation of ERISA.” This action, the court held, was not distinguishable from the one it recently dismissed, “and many of the reasons that required dismissal in [Singh v. Deloitte LLP, 650 F. Supp. 3d 259 (S.D.N.Y. 2023)] require dismissal of this case.” Like the Singh decision, the court ruled here that plaintiffs lacked Article III standing to bring claims related to the lower-cost share classes of the five individual funds at issue in which they did not invest. The court wrote, “plaintiffs lack standing with respect to their claims challenging the funds that charged excessive expense ratios, because plaintiffs did not invest in these funds.” The same was true for the underperforming funds as well, as the named plaintiffs did not personally invest in these options either and therefore could not show that they were harmed by their low returns and high costs. Moreover, the court concluded that plaintiffs could not assert their recordkeeping fee claims because they filed to plead the recordkeeping fees they individually paid each year. The court found that the complaint’s comparison between the average per-participant fee and reasonable fees charged by similarly sized plans did not satisfy Article III’s requirement of a cognizable injury. Thus the court dismissed all of plaintiffs’ claims, those based on fees and those based on funds, due to lack of standing. Although unnecessary, the decision then discussed why the court also would hold that plaintiffs failed to state their claims pursuant to Rule 12(b)(6). In addition to the injury-in-fact issues the court identified, it also stated that plaintiffs’ fee claims failed because they did not plausibly allege that the costs incurred “were excessive relative to the services rendered.” The court expressed that plaintiffs had the same problem with their share-class claims. “The existence of a cheaper fund does not mean that a particular fund is too expensive in the market generally or that it is otherwise an imprudent choice.” Ignoring the fact that plaintiffs’ complaint alleged the share-classes were identical in all ways other than cost, the court provided its own rationale for investing in the more expensive funds “the Plan received revenue sharing from four of the five more expensive class shares and…such proceeds were credited back to participants investing in those funds,” meaning “the plaintiffs received a benefit from the higher cost share classes.” Finally, the court stated that it would dismiss the underperforming fund claims because the complaint’s allegations about their poor results alone are insufficient to sufficiently state a claim for a fiduciary breach. Accordingly, the court expressed that it would dismiss the complaint based on both Rules 12(b)(1) and (b)(6), and granted defendants’ motion. However, dismissal was without prejudice, and the court held that plaintiffs may move for leave to file an amended complaint.
Martone Constr. Mgmt. v. Thomas A. Barrett, Inc., No. DKC 23-450, 2023 WL 7489951 (D. Md. Nov. 13, 2023) (Judge Deborah K. Chasanow). As administrator of ERISA-governed defined benefit and 401(k) profit sharing plans, plaintiff Martone Construction Management, Inc., brought this ERISA breach of fiduciary duty action against the plans’ former service providers, defendants Thomas F. Barrett, Inc., National Employers Retirement Trust, Sandy Spring Bank, and Acorn Financial Advisory Services. In its complaint, Martone alleges that defendants breached their duties to the plan by (1) charging undisclosed investment fees without providing investment advisory services; (2) failing to follow Martone’s instructions with respect to the trading of plan assets; (3) improperly limiting the investment options available to the plan; (4) not following Martone’s instructions when it wished to change service providers; and (5) liquidating and transferring plan assets in ways not authorized by Martone and contrary to its instructions. As a result of these actions, plaintiff alleges that the plan incurred losses in the form of decreased value of plan assets and improper payments out of plan assets. In this action it seeks to remedy these financial harms. Martone asserted breach of fiduciary duty claims under ERISA, co-fiduciary liability claims, an equitable relief claim under ERISA Section 502(a)(3), and common law claims of breach of fiduciary duty, unjust enrichment, and negligence. Defendants moved to dismiss the action for failure to state a claim. Their motion was granted in part and denied in part. First, the court dismissed National Employers Retirement Trust as a defendant in this lawsuit because it is a trust, not a person or entity capable of being sued. However, all the ERISA claims against the remaining defendants were allowed to proceed past the pleadings. Accepting the allegations in the complaint as true, the court found that Martone properly alleged that defendants were functional fiduciaries under ERISA, that they breached their duties to the plan, and that those breaches caused losses to the plan. It also determined that defendants were subject to co-fiduciary duty for their participation in each other’s alleged breaches, and that Martone had not engaged in improper group pleading of the defendants. The court was also satisfied that each of the ERISA claims were unique and not duplicative of one another. With regard to the three common law claims, the court dismissed the claims for breach of fiduciary duty and negligence, concluding these two claims were alternative enforcement mechanisms to ERISA and therefore preempted by ERISA. However, the court found that the common law unjust enrichment claim did not relate to the ERISA plans but was instead alleging “that Martone conferred a benefit upon…Defendants for services [they] did not provide.” This claim was therefore not dismissed. Thus, most of plaintiff’s complaint was left intact following this decision, with the majority of its claims remaining in place.
Jones v. Dish Network Corp., No. 22-cv-00167-CMA-STV, 2023 WL 7458377 (D. Colo. Nov. 6, 2023) (Magistrate Judge Scott T. Varholak). A group of former Dish Network Corporation employees who participate in its 401(k) plan have sued the plan’s fiduciaries for breaching their duties under ERISA in this putative class action. The court previously dismissed plaintiffs’ complaint without prejudice. Plaintiffs timely amended their complaint to add information about the fiduciaries’ conduct retaining a suite of Freedom Target Date Funds as the plan’s default investment option, which they maintain was an imprudent and disloyal action. In particular, plaintiffs outlined the ways in which the fiduciaries failed to follow the plan’s investment policy statement (“IPS”) with regard to the funds, which they argue were costly, risky, and significantly underperformed other available target date funds. They contended that the defendants engaged in a faulty monitoring process to oversee the default investment options and argued that had defendants complied with the process outlined in the IPS they would have replaced the funds and prevented the major losses the plan ultimately incurred. Defendants moved to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In this report and recommendation, Magistrate Judge Varholak recommended that the court grant the motion to dismiss the duty of loyalty claim, but otherwise deny the motion to dismiss the claims of imprudence, failure to monitor, co-fiduciary breaches, and knowing breach of trust. The court agreed with plaintiffs that their amended complaint cured the deficiencies the court previously identified and demonstrated the ways in which defendants “ignored their own selected criteria for evaluating and monitoring the prudence of the Plan investments.” Despite the existence of the IPS, the amended complaint alleges that defendants did not follow the process it outlined to critically assess the challenged target date funds’ performance and that this procedural failure by defendants led to the imprudent retention of these funds as the plan’s default investments. Accordingly, viewing the complaint in the light most favorable to the participants, the Magistrate was satisfied that they stated their claims arising from the duty of prudence. However, Magistrate Varholak found that the amended complaint did not include any new factual allegations that defendants’ actions were self-serving and done for their own benefit. As a result, he recommended the court grant the motion to dismiss the breach of duty of loyalty claim.
Disability Benefit Claims
Cortez v. General Mills, No. 22-cv-1552 (ECT/JFD), 2023 WL 7489998 (D. Minn. Nov. 13, 2023) (Judge Eric C. Tostrud). Plaintiff Enrique Cortez filed a one-count complaint seeking to recover terminated long-term disability benefits pursuant to ERISA. Mr. Cortez began receiving benefits in 2017 under an ERISA-governed plan sponsored and administered by his former employer, defendant General Mills. Mr. Cortez received disability benefits for a combination of health conditions including back and leg pain, neuropathy, major depressive disorder, and cognitive conditions which were the result of side effects of his prescription medications. After paying benefits for approximately four years, the plan determined that Mr. Cortez’s physical and mental health conditions no longer disabled him from performing full-time work and therefore issued a decision denying benefits going forward. Mr. Cortez appealed internally. He filed this case following the appeal committee’s decision affirming the termination of benefits during the administrative process. Now the parties have cross-moved for judgment on the administrative record. Before the court could reach a conclusion on the benefits decision, it needed to resolve the parties’ dispute over the appropriate review standard. Mr. Cortez argued that de novo review should apply because General Mills failed to strictly adhere to the Department of Labor’s regulation requiring plans to issue benefit determinations within a 45-day deadline. The court disagreed with Mr. Cortez on this point. It stressed that the DOL’s regulation did not apply because Mr. Cortez began receiving disability benefits before April 1, 2018. Under the relevant case law, the court stated that it was irrelevant that the challenged termination of benefits at issue in this lawsuit occurred after the regulation’s effective date. Accordingly, it determined that the plan’s arbitrary and capricious review standard remained in effect regardless of the untimely benefit determination. Applying this deferential review standard, the court ruled that substantial evidence supported the decision to terminate the long-term disability benefits. It pointed to several strong pieces of evidence in the administrative record which supported the idea that Mr. Cortez could return to full-time work with his medical conditions, including the opinions of some of Mr. Cortez’s own treating physicians. Although the court acknowledged that the administrative record also included evidence supporting Mr. Cortez’s position that his health conditions were disabling, it held that this evidence did not demonstrate an abuse of discretion as it did not substantially undermine the credibility “of the evidence on which the Appeal Committee based its decision.” Furthermore, the court disagreed with Mr. Cortez that General Mills was required to show an improvement of his conditions from when it approved benefits to when it terminated them. As General Mills always operated under a degree of skepticism about whether to continue approving Mr. Cortez’s claim, the court stated that it was not unreasonable for it to terminate benefits when it was presented with significant new pieces of information in the medical records, even if the underlying health conditions remained fairly consistent. Finally, the court was unpersuaded that the Social Security Administration’s grant of disability benefits was proof that the committee’s decision to terminate benefits was an abuse of discretion. Based on the forgoing, the court entered judgment in favor of General Mills.
Perez v. Unum Life Ins. Co. of Am., No. 22-16652, __ F. App’x __, 2023 WL 7675458 (9th Cir. Nov. 15, 2023) (Before Circuit Judges Graber, Paez, and Friedland). In a concise, unpublished, and unanimous decision, the Ninth Circuit affirmed judgment in favor of defendant Unum Life Insurance Company in this ERISA disability claim lawsuit. Plaintif-appellant Robert Perez’s long-term disability benefits were terminated after Unum concluded he was no longer totally disabled from performing any sedentary occupation. The district court found that Mr. Perez could not prove his entitlement to continued benefits as his musculoskeletal conditions had improved when Unum terminated the benefits, and because it agreed with Unum’s vocational expert that Mr. Perez could perform the sedentary occupations identified in the termination letter. On appeal Mr. Perez argued that the lower court had committed a clear error by allowing Unum to adopt new rationales to support its decision in litigation. The Ninth Circuit disagreed. “All of the challenged portions of the district court’s order reflect reasoning on which Unum relied in its denial letters.” It stated that Mr. Perez was not up against any rationales adopted or advanced only in litigation, and therefore would not overturn the decision on this basis. The court of appeals was also unwilling to adopt Mr. Perez’s argument in favor of adding on a contract term interpreting pre-disability earnings ability under a sliding definition based on the claimant’s “station in life.” Finally, the court concluded that policy at issue allowed the vocational expert to consider alternative occupations that require minimal on the job training. The Ninth Circuit declined to adopt Mr. Perez’s position that Unum could only consider jobs he could do right away without training. Thus, having considered all of Mr. Perez’s contentions on appeal and finding no basis to reverse the district court’s findings of fact, the Ninth Circuit affirmed.
Lundstrom v. Young, No. 18cv2856-GPC (MSB), 2023 WL 7713579 (S.D. Cal. Nov. 15, 2023) (Magistrate Judge Michael S. Berg). Plaintiff Brian Lundstrom does not want his ex-wife to receive his pension benefits. For years he has sought and failed to undermine their Qualified Domestic Relations Order (“QDRO”). In this action he has sued his former employer, Ligand Pharmaceuticals Incorporated, and its 401(k) plan under ERISA in an attempt to keep the benefits for himself. He has three causes of action against Ligand. The first is a claim that Ligand has distributed the benefits in the plan account in violation of plan terms. The second is a claim for failure to promptly provide him with a copy of the plan’s procedures for determining the qualified status of domestic relations orders and failing to send written notice that his QDRO met the requirements under the plan and the Internal Revenue Code. Finally, Mr. Lundstrom asserts an anti-retaliation claim under Section 510 for retaliating against him for exercising his rights under ERISA. In this decision Magistrate Judge Berg ruled on a discovery dispute among the parties. Mr. Lundstrom moved to compel Ligand’s Chief People Officer, its General Counsel, and its person most knowledgeable to answer questions regarding email communications Ligand had with outside counsel related to Mr. Lundstrom’s QDRO. Ligand opposes, invoking attorney-client privilege. Defendants maintain that Ligand’s communications with outside counsel involved discussions over potential civil liability in the face of competing demands from Mr. Lundstrom and his ex-wife and that these emails are therefore privileged from discovery. The court agreed: “[T]he advice was given in anticipation of litigation and was not related to plan administration, so the communications are protected by the attorney-client privilege and not subject to the fiduciary exception.” Furthermore, the court agreed with Ligand that it was reasonable for it to “understand that ‘trouble was in the air,’” and that there was likely an imminent threat of litigation. In sum, the Magistrate concluded, “Ligand’s reasons for seeking legal advice on its own behalf were well-founded given Plaintiff’s statements, Plaintiff’s hiring outside counsel, and Ligand’s history of litigation involving Plaintiff and [his ex-wife].” Accordingly, Magistrate Judge Berg found that the communications were protected and thus denied Mr. Lundstrom’s motion to compel further deposition testimony regarding them.
Life Insurance & AD&D Benefit Claims
Geiser v. Securian Life Ins. Co., No. 21-cv-2247 (WMW/DTS), 2023 WL 7923781 (D. Minn. Nov. 15, 2023) (Judge Wilhelmina M. Wright). On March 28, 2020, decedent Cynthia Litzau accessed her employer’s online portal and modified her beneficiary designations for life insurance benefits under an ERISA-governed group policy provided by defendant Securian Life Insurance Company. Ms. Litzau changed the designation from 100% of the benefits to her spouse, Timothy Litzau, to 50% going to her husband, 13% going to her daughter Selena Geiser, 13% going to her daughter Jennifer Heldt, and 12% each to two of her grandchildren. The story doesn’t end there though. A couple of months later, on May 12, 2020, Ms. Litzau revisited the online portal and reverted her designation back to restore her husband as the sole 100% beneficiary of the benefits. Thus, after Ms. Litzau died on May 23, 2020, Securian was informed by the employer that Mr. Litzau was the 100% beneficiary, and in accordance with that most recent beneficiary designation, Securian paid Mr. Litzau 100% of the life insurance benefits. In this action, Ms. Litzau’s daughters contest the last beneficiary designation and the payment of the life benefits to Timothy Litzau. They allege that Securian breached its fiduciary duties under ERISA. Securian moved for summary judgment in its favor. Its motion was granted in this order. The court found that there was no genuine issue of material fact that Ms. Litzau’s beneficiary designation changed on May 12, 2020 and that Securian properly paid Mr. Litzau the benefits based on the most recent beneficiary designation. “Securian did not breach a fiduciary duty by following the plan documents. Even if Plaintiff’s allegations as to Decedent’s intended beneficiaries were true, Securian would not have abused its discretion by paying Additional Life Benefits to Timothy Litzau, the named beneficiary on the plan documents. Pursuant to ERISA, Saurian must act in accordance with plan documents and instruments governing the plan.” Additionally, the court agreed with Securian that it did not have any control or discretionary authority or fiduciary function over the employer’s benefit portal and the beneficiary designations, meaning “Securian is not liable under ERISA for the alleged failure of the online portal to register Decedent’s intended changes to her beneficiary designations.” Finally, the court determined that plaintiffs’ allegations of fraud regarding the events surrounding the last beneficiary designation change were “too speculative and insufficient to meet the high threshold for reformation under ERISA.” Based on these findings, the court determined that summary judgment in favor of Securian was warranted for all claims and therefore granted its motion for judgment.
Pension Benefit Claims
Gragg v. UPS Pension Plan, No. 2:20-cv-5708, 2023 WL 7525743 (S.D. Ohio Nov. 14, 2023) (Judge Algenon L. Marbley). Plaintiff Ralph Gragg worked for the company Overnite Transportation Co. from 1979 until it was purchased by United Parcel Service (“UPS”) in 2005. From 2005 until his retirement in 2010, Mr. Gragg worked for UPS. Following UPS’s acquisition of Overnite, and based on his positions at both companies, Mr. Gragg became a participant in two separate retirement plans and earned benefits under both plans. With his retirement approaching, Mr. Gragg reviewed and considered his election options under the plans. Based on the information he was provided, he ultimately selected the Social Security Leveling Option – Age 65 for both plans. In this action Mr. Gragg is challenging what he believes to be a miscalculation of his benefits for the options he selected. In essence, he is arguing that his monthly payments are improperly being reduced by twice the amount of his Social Security benefit, with each plan reducing his monthly benefit payments by the full amount of his Social Security retirement benefit. “Plaintiff alleges that Defendant miscalculated his benefits because it failed to consider, that although he was receiving his pension from two plans, he only received one Social Security retirement check.” In response, UPS maintains that Mr. Gragg’s “request is not permitted by law according to the Internal Revenue Code,” as the Internal Revenue Code prohibits any retirement benefit option being greater than the qualified joint and survivor annuity options. The parties cross-moved for judgment. The court wrote that it was “not convinced by [defendant’s] all-or-nothing approach,” and stressed that the “anti-cutback rule of ERISA prohibits Defendant from enforcing an interpretation of plan language that reduces that value of Plaintiff’s accrued benefit owing to his Overnite service.” It went on to state, “[t]echnical constructions of the plan’s language which defeat a reasonable expectation of coverage would run against the interests of justice, depriving the Plaintiff of the retirement benefits which he rightly earned.” That being said, the court also held that Mr. Gragg’s evidence was “not so overwhelming that a reasonable jury” could not rule against him, as UPS is correct that Mr. Gragg’s interpretation of the plan language would violate the Internal Revenue Code. Given the strengths and weaknesses of each party’s arguments and the weird situation presented here, the court denied both motions for judgment. But the court concluded that Mr. Gragg should not be left without any remedy. It found the proper remedy here to be to order UPS to recalculate Mr. Gragg’s post-65 benefit amount “in a manner that prorates his Social Security benefit amount, while taking care not to exceed the Qualified Joint & Survivor Annuity options under 26 C.F.R. §1.401(a)-11(b)(2).” Accordingly, this resolution was the creative solution the court arrived at.