Prince v. Procter & Gamble Company et al
Filing
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ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Doc. 6 ). Signed by Judge Timothy S. Black on 5/22/2014. (mr1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARK J. PRINCE,
Plaintiff,
vs.
THE PROCTER & GAMBLE CO., et al.,
Defendants.
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Case No. 1:13-cv-902
Judge Timothy S. Black
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (Doc. 6)
This civil action is before the Court on Defendants’ Motion to Dismiss (Doc. 6) and
the parties’ responsive memoranda (Docs. 7, 8, and 14).
Plaintiff’s Complaint seeks: (1) an award of severance benefits for Defendants’
alleged breach of fiduciary duty under the Employee Retirement Income Security Act of
1974 (“ERISA”) because Plaintiff’s “first line supervisor” allegedly failed to disclose that
Defendants were seriously considering the Procter & Gamble Integrated Organization
Voluntary Separation Plan (the “Plan”) when Plaintiff submitted his notice of retirement;
and (2) an award of statutory damages under 29 U.S.C. § 1132(c)(1)(B) for Defendants’
alleged failure to provide all documents relevant to his claim for benefits under the terms of
the Plan. (Doc. 1 at 8-12; Doc. 7 at 21).
Defendants now move to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6)
for failure to state a claim on which relief can be granted. (Doc. 6 at 1).
I.
FACTS AS ALLEGED BY THE PLAINTIFF
For purposes of this motion to dismiss, the Court must: (1) view the claims in the
light most favorable to Plaintiff; and (2) take all well-pleaded factual allegations as true.
Tackett v. M&G Polymers, 561 F.3d 478, 488 (6th Cir. 2009).
Plaintiff was first employed by Defendant The Procter & Gamble Company
(“P&G”) on June 20, 1977. (Doc. 1 at ¶ 7). From 2010 through mid-2011, Plaintiff
contemplated retirement from P&G. (Id. at ¶¶ 9-10). During this time frame, Plaintiff
repeatedly “ask[ed] his first line supervisor the status of any upcoming voluntary
separation plans and whether any such plan was under consideration or would be
implemented in the near future.” (Id. at ¶ 10). “During 2010 and into mid-2011,
[Plaintiff]’s first line supervisor made such multiple appropriate inquiries with both
Defendant P&G’s Human Resources Department and [Financial Services and Solutions
(“FSS”)] Organization.” (Id. at ¶ 11). “P&G’s Human Resources Department and
Defendant P&G’ [s] FSS Organization responded to [Plaintiff]’s first line supervisor that at
that point in time, there were no definitive plans to implement a voluntary separation plan.”
(Id. at ¶ 13). As the Complaint acknowledges, no severance plan was under serious
consideration at the time of these inquiries. (Id.)
In June 2011, having heard nothing regarding “the likelihood or possibility of the
implementation of a voluntary separation plan in the reasonably near future, [Plaintiff]
decided to retire from Defendant P&G.” (Id. at ¶ 16). On June 5, 2011, Plaintiff
“submitted his written notice of intent to retire effective September 6, 2011.” (Id.)
2
Plaintiff’s last day in the office was July 27, 2011. (Doc. 1-1 at 2). Plaintiff used his
accrued but unused vacation time to bridge the time from July 27, 2011 through September
6, 2011. (Id. at 2 n.1).
When announcing his intent to retire, Plaintiff asked “his first line supervisor that if
he (the supervisor) subsequently learned, prior to [Plaintiff]’s actual date of retirement, that
a voluntary separation plan was now under consideration or its implementation was
imminent, probable or a strong likelihood, he was to advise [Plaintiff] accordingly, so that
he could withdraw his intent to retire.” (Doc. 1 at ¶ 17). Plaintiff’s first line supervisor
agreed to Plaintiff’s request. (Id.) Prior to his formal September 6, 2011 retirement,
Plaintiff heard nothing from Defendants, either directly or through his first line supervisor
or anybody else, as to the status of any pending voluntary separation plan. (Id. ¶ 18). In
October 2011, P&G announced that a voluntary separation plan was being implemented
effective November 1, 2011. (Id. at ¶ 20).
The Plan was adopted, effective November 1, 2011. (Id. at ¶ 31). The Plan
Document provides severance benefits to employees, active as of November 1, 2011,
“designated as eligible by The Company’s Global Human Resources Officer,” who:
• Terminate employment as part of a voluntary [reduction in force], in which
their participation is accepted by the Company;
• Execute a separation package agreement that contains provisions in
accordance with the terms of this Plan and includes certain employee
commitments (including, but not limited to, a release of claims);
• Have a separation date that is agreed to by the Company;
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• Continue to work or be available for work, as required by their managers,
until the their scheduled separation date; and
• Are not subject to one of the below exclusions.
(Doc. 6-1 at 3). The Plan Document also expressly provides that:
In no event shall Plan Benefits be payable to you under the Plan in the event
of:
• your unilateral, voluntary resignation;
• your Discharge for Cause;
• your failure to continue to work through your scheduled Last Day of
Employment without the prior written approval of the Plan Sponsor;
• your failure to continue to perform all required duties of your position and to
complete all required reporting and other documentation associated with
such position through the scheduled Last Day of Employment as determined
by your supervisor; or
• your acceptance of a transfer to (i) a facility or location owned, operated or
managed by the Plan Sponsor or (ii) any other employment with the Plan
Sponsor.
(Id. at 4).
Shortly after Plaintiff learned that P&G had announced a new voluntary separation
plan in October 2011, he made an informal request that he be permitted to participate in the
Plan. (Doc. 1 at ¶ 23). On July 17, 2012, Defendants advised Plaintiff that his request
was denied because he was not an active P&G employee as of the November 1, 2011
implementation of the Plan. (Id.)
On October 5, 2012, Plaintiff, by his counsel, filed a written claim with Defendant
The Procter & Gamble Health & Welfare Committee (the “Committee”) for severance
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benefits. (Doc. 1 at ¶ 24; Doc. 1-1 at 1-14). Although referencing the Plan Document,
Plaintiff’s counsel did not argue that Plaintiff was entitled to benefits under the Plan’s
terms; instead, counsel contended that the terms of the Plan Document should not apply to
Plaintiff because he “would have revoked his Notice” of intent to retire if he had learned
after June 5, 2011 of “serious consideration” of the adoption of the Plan by P&G’s senior
managers. (Doc. 1-1 at 4).
On October 24, 2012, the Committee sent a letter to Plaintiff’s counsel denying
Plaintiff’s claim for benefits under the terms of the Plan:
The specific reason for denial of benefits is [Plaintiff] did not satisfy the
required eligibility criteria to be entitled to severance benefits under the Plan.
The Company’s Global Human Resource Officer did not designate
[Plaintiff] as eligible for coverage under the Plan; his employment did not
terminate as part of a voluntary reduction in force; and he did not execute a
separation package agreement that included the terms of the Plan and a
release of claims. Further, the Company had neither the Plan nor another
severance benefit plan established or in place when [Plaintiff] notified the
Company on June 5, 2011 of his intent to retire on September 6, 2011.
(Doc. 1 at ¶ 25; Doc. 1-1 at 15).
On November 15, 2012, Plaintiff’s counsel requested in writing documentation
under 29 C.F.R. § 2560.503-1(h)(2)(iii) and the terms of the October 24, 2012 denial letter.
(Doc. 1 at ¶ 40; Doc. 1-1 at 44-46). On January 29, 2013, Donald Willis responded in
writing, on behalf of the Plan, and provided each “document, record or other information”
that was “relevant” and subject to production under 29 C.F.R. §§ 2560.503-1(h)(2)(iii) &
(m)(8). (Doc. 1 at ¶ 41; Doc. 1-1 at 48).
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On April 5, 2013, Plaintiff’s counsel submitted an appeal of the Committee’s
October 24, 2012 denial of Plaintiff’s claim. (Doc. 1 at ¶ 26; Doc. 1-1 at 18). In the
appeal, Plaintiff contended that, contrary to its terms, the November 1, 2011 Plan should be
applied retroactively to earlier retirements because “the Plan was under serious
consideration back on August 15, 2011, prior to the effective date of [Plaintiff]’s retirement
on September 6.” (Doc. 1-1 at 21).
On May 14, 2013, the Committee, applying the terms of the Plan Document to
Plaintiff’s appeal of his claim for Plan benefits, denied the appeal because the Plan’s terms
did not entitle Plaintiff to severance benefits:
The specific reason for denial of benefits is that [Plaintiff] did not satisfy the
required eligibility criteria to be entitled to severance benefits under the Plan.
[Plaintiff]’s employment did not terminate as part of a voluntary reduction in
force (“RIF”) and he did not execute a separation agreement that included the
terms of the Plan and a release of claims. Additionally, on June 5, 2011,
[Plaintiff] unilaterally and voluntarily provided the Company with his intent
to resign from the Company. Further, neither the Plan nor another
severance benefit plan was established or in place at the time [Plaintiff]
notified the Company of his intent to retire on September 6, 2011.
(Doc. 1 at ¶¶ 27-28; Doc. 1-1 at 42). This lawsuit ensued.
Count One of the Complaint purports to assert an ERISA claim for breach of
fiduciary duty based on the alleged failure of Plaintiff’s first line supervisor to advise him
of the alleged “serious consideration” of the terms of the Plan by senior management
subsequent to Plaintiff’s June 5, 2011 notice of his intent to retire. (Doc. 1 at ¶¶ 29-37).
Count Two purports to assert an ERISA claim under 29 U.S.C. §§ 1132, 1133 and 1135,
per the Department of Labor (“DOL”)’s implementing claims regulation, seeking relief for
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the Committee’s alleged failure to provide all materials defined as “relevant” in 29 C.F.R.
§ 2560.503-1(m)(8)(iii) following the initial administrative denial of Plaintiff’s claim for
benefits. (Id. at ¶¶ 38-47).
The Complaint contains no claim “to recover benefits due to him under the terms of
the [P]lan,” ERISA § 502(a)(1)(B), codified at 29 U.S.C. § 1132(a)(1)(B), even though the
DOL’s claims regulation is designed to apply only to a claim “for benefits under the terms
of the plan. …” Employee Retirement Income Security Act of 1974; Rules and
Regulations for Administration and Enforcement; Claims Procedure, 65 F.R. 70246,
70255 (Nov. 21, 2000). Plaintiff seeks damages in the amount of one year’s salary,
unspecified “liquidated damages,” and “other damages.” (Doc. 1 at 11-12).
II.
STANDARD OF REVIEW
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the
sufficiency of the complaint and permits dismissal of a complaint for “failure to state a
claim upon which relief can be granted.” To show grounds for relief, Fed. R. Civ. P. 8(a)
requires that the complaint contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”
While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations,’ . . . it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007)). Pleadings offering mere “‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’” Id. (citing Twombly, 550 U.S. at 555).
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In fact, in determining a motion to dismiss, “courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation’[.]” Twombly, 550 U.S. at 555 (citing Papasan
v. Allain, 478 U.S. 265 (1986)). Further, “[f]actual allegations must be enough to raise a
right to relief above the speculative level[.]” Id.
Accordingly, “[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678. A claim is plausible where “plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Plausibility “is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the
pleader is entitled to relief,’” and the Complaint shall be dismissed.
Id. (citing Fed. R.
Civ. P. 8(a)(2)).
III.
A.
ANALYSIS
Count One
A viable fiduciary breach claim exists only where a fiduciary “responds to
employee inquiries by representing it is not considering a change to its pension plan, if it is
in fact giving ‘serious consideration’ to a change.” Mushalla v. Teamsters Local No. 863
Pension Fund, 300 F.3d 391, 396 (3d Cir. 2002). Plaintiff’s Complaint identifies no
post-June 5, 2011 request by Plaintiff of any Defendant regarding whether a severance
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package was under “serious consideration” and no misrepresentation by any Defendant.
(See Doc. 1). “[B]ecause no general duty of disclosure exists under ERISA, [Plaintiff’s]
omission claims fail as a matter of law.” Shirk v. Fifth Third Bancorp, No. 05-cv-049,
2009 U.S. Dist. LEXIS 24490, at *56 (S.D. Ohio Jan. 29, 2009).
At most, the Complaint alleges that when Plaintiff “submitted his written notice of
intent to retire, he stated to his first line supervisor that if he (the supervisor) subsequently
learned, prior to [Plaintiff]’s actual date of retirement, that a voluntary separation plan was
now under consideration or its implementation was imminent, probable or a strong
likelihood, he was to advise [Plaintiff] accordingly, so that he could withdraw his intent to
retire.” (Doc. 1 at ¶ 17). The Complaint does not allege that the responses of Plaintiff’s
“first line supervisor” to Plaintiff’s inquiries prior to Plaintiff’s June 5, 2011 submission of
his notice of retirement either misrepresented to, or concealed from, Plaintiff whether P&G
was “seriously considering” adoption of the November 1, 2011 Plan, or that Plaintiff’s first
line supervisor ever learned that “a voluntary separation plan was now under consideration
or its implementation was imminent, probable or a strong likelihood.” (See Doc. 1). “It
is not a violation of ERISA to fail to furnish information regarding amendments before
these amendments are put into effect.” Stanton v. Gulf Oil Corp., 792 F.2d 432, 435 (4th
Cir. 1985). Citing Stanton with approval, the 6th Circuit has held that “[a] fortiori, there
can be no fiduciary duty to disclose the possibility of a future change in benefits,” and that
“[i]n the absence of inaccurate information, there was no breach of fiduciary duty.”
Sprague v. GMC, 133 F.3d 388, 406 (6th Cir.) (en banc), cert. denied, 524 U.S. 923 (1998).
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The Complaint also ignores the distinction between settlor functions, such as the
adoption, modification and termination of a plan, and fiduciary functions, such as
communicating accurately regarding a plan that already has been adopted, in alleging that
“Defendants, acting in concert with each other were individually fiduciaries and
collectively the fiduciary of [the P]lan.” (Doc. 1 at ¶ 31). 1
First, in the absence of a false communication regarding an extant plan, no fiduciary
duties exist that can be breached because there is “no authority justifying extending ERISA
fiduciary standards to govern the conduct of a company in its decision as to whether and on
what terms it should create an employee benefit plan.” Akers v. Palmer, 71 F.3d 226, 231
(6th Cir. 1995), cert. denied, 518 U.S. 1004 (1996). Indeed, inasmuch as the Plan “did not
come into existence until after [Plaintiff]’s retirement, [P&G] did not owe him any
fiduciary duty concerning its benefits.” Beach v. Commonwealth Edison Co., 382 F.3d
656, 659 (7th Cir. 2004).
Moreover, the omissions and responses of Plaintiff’s “first line supervisor” to
Plaintiff, on which Count One is predicated, implicate no ERISA fiduciary duty on the
basis of which Plaintiff can obtain relief. Under Sixth Circuit law, “once an ERISA
beneficiary has requested information from an ERISA fiduciary who is aware of the
beneficiary’s status and situation, the fiduciary has an obligation to convey complete and
1
See, e.g., Levin v. Credit Suisse, Inc., No. 11 Civ. 5252 (RJS), 2013 U.S. Dist. LEXIS 49820, at
*8 (S.D.N.Y. Mar. 19, 2013) (“individuals who participate in merely ‘ministerial’ tasks such as
advising participants of their rights are not plan fiduciaries”); Stark v. Mars, Inc., 790 F. Supp. 2d
658, 666-67 (S.D. Ohio 2011) (employer not fiduciary); 29 C.F.R. § 2509.75-8, Answer to Q. D-2
(plan eligibility communication not fiduciary function).
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accurate information material to the beneficiary’s circumstance, even if that requires
conveying information about which the beneficiary did not specifically inquire.” James v.
Pirelli Armstrong Tire Corp., 305 F.3d 439, 452 (6th Cir. 2009). Unlike the benefits
personnel who held group meetings in Pirelli, the Complaint provides no basis for treating
Plaintiff’s first line supervisor as an ERISA fiduciary charged by the Committee to
communicate with Plaintiff regarding severance benefits. In holding that the alleged
representations of “an employee and/or agent” of an employer were insufficient to impose
fiduciary duties on an employer, the Southern District found that to survive a dismissal
motion, a complaint must contain allegations that “show that the defendant was acting in a
fiduciary capacity when it made the challenged representations.” Stark, 790 F. Supp. 2d
at 666 (citing Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 433 (6th Cir. 2006)); accord
Levin, 2013 U.S. Dist. LEXIS 49820 at *8 (“individuals who participate in merely
‘ministerial’ tasks such as advising participants of their rights are not plan fiduciaries”).
Indeed, the DOL’s ERISA regulations recognize that an employee (such as Plaintiff’s first
line supervisor) is not engaged in a fiduciary function in “advising participants of their
rights and options under the plan.” 29 C.F.R. § 2509.75-8, Answer to Q. D-2.
Again, the Complaint contains no allegation that Plaintiff’s first line supervisor,
who was Plaintiff’s sole “essential font of information,” acted in a fiduciary capacity in
communicating with Plaintiff. (Doc. 7 at 2). Accordingly, even if Plaintiff’s first line
supervisor had made a misrepresentation or omission, no breach of fiduciary duty would
lie against any Defendant because Plaintiff’s first line supervisor was not a fiduciary.
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Moreover, even if Plaintiff’s first line supervisor had not been Plaintiff’s only point
of contact, Defendant P&G also did not act as a fiduciary because:
[w]hen an employer adopts … a[n ERISA] plan its actions are analogous to
that of settlor of a trust rather than that of trustee or fiduciary. Hughes
Aircraft Co. v. Jacobson, 525 U.S. 432, 443-44 (1999). A[dopt]ing a plan is
not an act of plan ‘management’ or ‘administration,’ and is accordingly not
subject to fiduciary review. Lockheed Corp. [v. Spink], 517 U.S. [882,] 890
(1996).
Coomer v. Bethesda Hosp., Inc., 370 F.3d 499, 508-09 (6th Cir. 2004); accord Bailey v.
United States Enrichment Corp., 530 Fed. Appx. 471, 477 (6th Cir. 2013) (affirming
dismissal of benefits and fiduciary breach claims predicated on adoption/amendment of
ERISA plan); Detroit Terrazzo Contrs. Ass’n v. Bd. of Trs. of the B.A.C. Local 32 Ins.
Fund, 71 Fed. Appx. 539, 542 (6th Cir. 2003) (same).
Furthermore, Defendant the Plan cannot be a fiduciary of itself, as ERISA defines a
“fiduciary” as separate from the relevant plan so that “it is inconceivable that the … Plan
… can be deemed to be its own administrator.” Compare 29 U.S.C. § 1002(1) with 29
U.S.C. § 1002(21); Gillespie v. Liberty Life Assur. Co., No. 1:10-cv-388, 2011 U.S. Dist.
LEXIS 13295, at *7 (W.D. Mich. Feb. 11, 2011).
Finally, the Complaint contains no allegation that Defendant the Committee ever
responded erroneously or omitted to respond to any request from Plaintiff whatsoever.
(See Doc. 1).
While Plaintiff asserts that after he “has engaged in full discovery, he will be in far
better position to analyze” Defendants’ status as ERISA fiduciaries and what was said by
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and to Plaintiff’s first line supervisor, such an exploratory expedition cannot be predicated
on conclusory allegations alone:
The sheer possibility exists that [P&G] acted in a way that would have
allowed [Plaintiff] to hold it liable for [benefits]. Discovery would have
allowed [Plaintiff] to determine if this sheer possibility could have been an
actuality. But under Iqbal, a complaint cannot survive a motion to dismiss –
and plaintiffs cannot get discovery – unless the complaint shows that the
defendant’s wrongdoing is plausible, not just possible.
Barney v. PNC Bank, 714 F.3d 920, 929 (6th Cir. 2013). Consequently, a breach of
fiduciary duty claim cannot be maintained against any Defendant.
As a result the above, Count One is appropriately dismissed.
B.
Count Two
Plaintiff alleges that Defendants had an obligation to search P&G’s and the Plan’s
records to produce:
(a) all documentation memorializing communications between Plaintiff and
Defendant P&G pertaining to his request for information about the existence
or pendency of a voluntary separation plan prior to his effective date of
retirement, and (b) all documentation memorializing the conceptualization,
planning, development, actualization and implementation of the voluntary
separation plan.
(Doc. 1 at ¶ 40). The DOL claims regulation, however, defines documents “relevant” to a
claim for benefits to exclude Plaintiff’s requested documents relating to the consideration
or adoption of the Plan:
(8) A document, record, or other information shall be considered ‘‘relevant’’
to a claimant’s claim if such document, record, or other information
(i) Was relied upon in making the benefit determination;
13
(ii) Was submitted, considered, or generated in the course of making the
benefit determination, without regard to whether such document, record, or
other information was relied upon in making the benefit determination; …
29 C.F.R. § 2560.503-1(m)(8). 2 In promulgating its definition of “relevant,” the DOL
sought to eliminate any “burden on plans to search their records for any information
relevant in the broadest sense to the claim, whether it was in any way related to the actual
claims process.” Employee Retirement Income Security Act of 1974; Rules and
Regulations for Administration and Enforcement; Claims Procedure, 65 F.R. 70246,
70252 (Nov. 21, 2000).
The Complaint does not dispute that the Plan produced all documentation relied on
by the Committee in issuing its denial of Plaintiff’s claim for benefits under the terms of
the Plan or “submitted, considered, or generated in the course of making the benefit
determination,” as required by 29 C.F.R. § 2560.503-1(m)(8)(i) & (ii). Also, the DOL’s
claims regulation, 29 C.F.R. § 2560.503-1, applies only to a “claim for benefits under the
plan.” 29 U.S.C. § 1133(1); see also Balmert v. Reliance Std. Life Ins. Co., 601 F.3d 497,
502 (6th Cir. 2010). 3 Plaintiff, however, brings no action “to recover benefits due to him
under the terms of the [P]lan. …” ERISA § 502(a)(1)(B), codified at 29 U.S.C.
§ 1132(a)(1)(B).
2
The last two subsections of the DOL’s claims regulation are inapplicable. 29 C.F.R. §
2560.503-1(m)(8)(iii) & (iv).
3
Plaintiff alleges that the DOL claims regulation implements 29 U.S.C. § 1133. (See Doc. 1 at ¶
44).
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Moreover, Count Two is also appropriately dismissed as to Defendants P&G and
the Committee because the DOL’s claims regulation imposes requirements on the Plan, not
on the plan sponsor (i.e., P&G) or the plan administrator (i.e., the Committee) to provide
documents during the administrative process involving a claim for benefits under the terms
of the Plan. See, e.g., Jordan v. Tyson Foods, Inc., 312 Fed. Appx. 726, 736 (6th Cir.
2008). In Jordan, the Sixth Circuit rejected the contention that either the plan sponsor or
the plan administrator had a duty to provide documentation to a plan participant under the
claims regulation. Id. Instead, in affirming judgment for the defendant, the court held
that only the Plan itself was required to provide such documentation. Id.
Finally, Plaintiff seeks statutory damages under “29 U.S.C. [§] 1132(c)(1)(B) which
provides for a plan administrator to pay an employee beneficiary $[110] per day for each
day it unlawfully refuses to provide upon the employee’s request information deemed
produceable [sic] ‘by this subchapter.’” (Doc. 7 at 19). However, as the Sixth Circuit
has held, “cases in other circuits have rejected the argument that § 1132(c) statutory
damages are available for violations of regulations implementing § 1133.” Jordan, 312 F.
Appx. at 735. 4 In this Circuit, “a violation of section 1133 by the plan administrator does
4
See also Stuhlreyer v. Armco, Inc., 12 F.3d 75, 79 (6th Cir. 1993) (no statutory penalty available
for breach of DOL’s claims regulation); Vanderklok v. Provident Life & Accident Ins. Co., 956
F.2d 610, 618 (6th Cir. 1992) (same); Groves v. Modified Retirement Plan, 803 F.2d 109, 117 (3d
Cir. 1986) (same); Gillespie, 2011 U.S. Dist. LEXIS 13295 at *7 (same); Nationwide Children’s
Hosp., Inc. v. D.W. Dickey & Son, Inc., No. 2:08-cv-1140, 2010 U.S. Dist. LEXIS 3316, at *29-42
(S.D. Ohio Jan. 15, 2010) (same); Cortez v. Prudential Ins. Co., No. 1:08-CV-315, 2008 U.S. Dist.
LEXIS 93891, at *6-13 (W.D. Mich. Sept. 19, 2008) (same); Giertz-Richardson v. Hartford Life &
Accident Ins. Co., No. 8:06-cv-1874-T-24MAP, 2007 U.S. Dist. LEXIS 26369, at *5-6 (M.D. Fla.
Apr. 10, 2007) (same).
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not impose liability on the plan administrator pursuant to section 1132(c), because duties of
the ‘plan’ as stated in section 1133 are not duties of the ‘plan administrator’ as articulated
in section 1132(c).” Vanderklok, 956 F.2d at 618. In short, no Defendant is liable for
any 29 U.S.C. § 1132(c)(1)(B) statutory penalty, even assuming arguendo that there was a
violation of the DOL’s claims regulation, 29 C.F.R. § 2560.503-1. As the Supreme Court
held last year, “the penalty for failure to meet [the requirements of the DOL’s claims
regulation] is immediate access to judicial review for the participant.” Heimeshoff v.
Hartford Life & Acc. Ins. Co., 134 S. Ct. 604, 614 (2013) (citing 29 C.F.R. §
2560.503-1(l)).
As a result the above, Count Two is also appropriately dismissed.
IV. CONCLUSION
Wherefore, based on the foregoing, Defendants’ Motion to Dismiss (Doc. 6) is
hereby GRANTED, Plaintiff’s claims are DISMISSED, the Clerk shall enter judgment
accordingly, and this case is CLOSED.
IT IS SO ORDERED.
Date: 5/22/14
/s/ Timothy S. Black
Timothy S. Black
United States District Judge
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