Amicus Briefs

The Council regularly files amicus ("friend of the court") briefs in federal courts, providing the perspective of employer plan sponsors in legal cases where the outcome represents an important precedent and has a significant impact on employee benefits policy. These briefs bring to bear the Council's extensive experience and legal expertise to support arguments preserving the voluntary employer-sponsored benefits system.

For more information on the Council's amicus brief program, contact Jan Jacobson, senior counsel, retirement policy, or Kathryn Wilber, senior counsel, health policy, at (202) 289-6700.

Date Court Case Issue/Description Outcome
July 2, 2015 (with the U.S. Chamber and ERIC) U.S. Fourth Circuit Court of Appeals Bond v. Marriott Int'l, Inc. Argues that the Fourth Circuit has already adopted a rule that the statute of limitations for ERISA claims is properly triggered when the beneficiary has received notice of repudiation. Also argues in support of statutory construction of the top-hat provision Pending
April 21, 2015 U.S. Seventh Circuit Court of Appeals Pennsylvania Chiropractic Association et al. v. Independence Hospital Indemnity Plan, Inc. Argues that the district court's holding must be reversed because it fundamentally misconstrues ERISA's statutory definition of "beneficiary," which applies only to those persons who are "entitled" to benefits under the terms of a plan. The brief warns that unless the appeals court corrects the lower court error ERISA plans that want to preclude assignments will be forced to forego direct provider payments entirely Pending
April 21, 2015 U.S. Seventh Circuit Court of Appeals Pennsylvania Chiropractic Association et al. v. Independence Hospital Indemnity Plan, Inc. Argues that the district court's holding must be reversed because it fundamentally misconstrues ERISA's statutory definition of "beneficiary," which applies only to those persons who are "entitled" to benefits under the terms of a plan. The brief warns that unless the appeals court corrects the lower court error ERISA plans that want to preclude assignments will be forced to forego direct provider payments entirely Pending
January 26, 2015
(with the National Association of Manufacturers, the U.S. Chamber, ERIC, Business Roundtable)
U.S. Supreme Court (on Writ of Certiorari from the U.S. Ninth Circuit Court Of Appeals) Tibble v. Edison Argues to dismiss three of the underlying excessive fee claims in Tibble v. Edison on the grounds that the statute of limitations had expired and describes how the "continuing violation" theory would subject fiduciaries to perpetual exposure to litigation and potential liability for investment selection and other acts completed long before suit was actually filed, upsetting the careful balance between protecting beneficiaries and preserving benefit plans that is central to ERISA Court ruled unanimously that 401(k) participants can hold plan fiduciaries liable for including high-cost investments in the plan even when those investments were initially chosen outside ERISA's six-year statute of limitations, as long as the alleged breach of the fiduciary's continuing duty occurred within six years of suit. The Supreme Court remanded the decision to the Ninth Circuit to determine what is required in the duty to monitor and if the defendant breached that duty
July 24, 2014
(with the ERISA Industry Committee
U.S. Supreme Court M&G Polymers USA, LLC v. Tackett Urges the U.S. Supreme Court to confirm that the benefits and burdens of a collective bargaining contract (such as provisions for retiree health coverage) do not survive the agreement's expiration (and thus do not vest for life) without a clear and unequivocal statement to the contrary Court ruled unanimously against a special inference that retiree health care benefits are "vested for life" and should continue indefinitely in the absence of specific language to the contrary in a plan document or collective bargaining agreement
March 28, 2014
(with the American Council of Life Insurers, the U.S. Chamber, America's Health Insurance Plans)
U.S. Sixth Circuit Court of Appeals Rochow v. Life Insurance Company of North America (LINA) Argues that the district court ruling (and earlier appellate affirmation) should be overturned since it (1) dramatically increases the risk, expense and burden associated with providing and administering ERISA benefits, (2) conflicts with Sixth Circuit and U.S. Supreme Court precedent, permitting an impermissible windfall for the plaintiff under ERISA, and (3) represents a "punitive" disgorgement award and is therefore also impermissible under ERISA Sixth Circuit, sitting en banc (all of the judges) vacated earlier decision of 3-judge panel. Overturned disgorgement award and remanded to district court to determine how much reasonable prejudgment interest to award
February 3, 2014
(with the U.S. Chamber, the ERISA Industry Committee, the Plan Sponsor Council of America, the National Association of Manufacturers)
U.S. Supreme Court (on Writ of Certiorari from the U.S. Sixth Circuit Court of Appeals) Fifth Third Bancorp v. Dudenhoeffer Argues for the court to reverse the Sixth Circuit's ruling and uphold the presumption of prudence in a stock drop case, noting that Congressional policy strongly favors the offering of employee stock funds, the unique nature of employer stock funds warrant a presumption that fiduciaries act prudently by offering them and, if such presumption is not provided, sponsors will be discouraged from offering employer stock Court rejected presumption of prudence but details new pleading requirements
December 13, 2013 U.S. Supreme Court (on Writ of Certiorari from the U.S. Sixth Circuit Court of Appeals) United States v. Quality Stores Argues that the IRS cannot provide a controlling determination of the case's tax issue solely through revenue rulings, and must do so through regulations properly issued using notice-and-comment procedures U.S. Supreme Court determined that the severance payments at issue were wages subject to FICA (without addressing the regulatory procedure argument that was the subject of our brief)
August 1, 2013 (with U.S. Chamber) U.S. Fourth Circuit Court of Appeals Tatum v. R.J. Reynolds Argues the plaintiffs' challenge to the district court's substantive prudence/causation holding in a reverse stock drop case sets a dangerous precedent in future ERISA cases; in order to recover monetary damages, plaintiffs should be required to show that the fiduciaries' decision was actually imprudent Fourth Circuit court reversed district court decision indicating district court's standard that a reasonable and prudent fiduciary "could" have made the same decision should have been "would" have made the same decision; RJR filed a Writ of Certiorari with U.S. Supreme Court which is generally expected to grant the petition because the Court asked the U.S. Solicitor General to weigh in on the issues
June 28, 2013 (with U.S. Chamber) U.S. Ninth Circuit Court of Appeals Harris et al. v. Amgen et al. Plaintiffs argue that Amgen should have frozen employer stock fund (no longer allowing purchases but not forcing sale). Brief argues that meritless ERISA "stock drop" lawsuits threaten the continued viability of company stock investment options by creating intense pressure on plan sponsors to avoid litigation and settle cases for large sums.

Separate class action with same facts but securities law claims is still ongoing (the district court did not dismiss this case).
Ninth Circuit reversed District Court's dismissal of claims. Defendants appealed to U.S. Supreme Court which vacated decision and remanded to Ninth Circuit to reconsider in light of Dudenhoeffer decision. On remand, Ninth Circuit court again reversed district court decision. The Ninth Court later denied a request for en banc review and amended its opinion, again reversing District Court's dismissal of claims but addressing arguments by Amgen that other actions would have led to a stock drop by indicating that if fiduciaries simply stopped allowing investment in Amgen stock once they were made aware of illegally withheld information (under securities laws) they would mitigate the effect of the eventual stock drop on plan participants. A strong dissent said the decision ignored heightened pleadings standards established by Dudenhoeffer and created "almost unbounded liability for ERISA fiduciaries"
February 27, 2013 (with 277 employers and organizations representing employers) U.S. Supreme Court (Writ of Certiorari from the U.S. Second Circuit Court of Appeals) United States v. Windsor Argues that DOMA applies unequal tax treatment to employees who are legally married in states recognizing same-sex marriages and imposes cost and administrative burdens on employer sponsors of health and retirement benefits Held that Section 3 of DOMA is unconstitutional
February 20, 2013 (with the ERISA Industry Committee, the U.S. Chamber) U.S. Seventh Circuit Court of Appeal Abbott, et al. v. Lockheed Martin Plaintiffs argue the plan paid excessive fees and that the plan's "Stable Value" fund invested too conservatively (money market type investments). Brief argues that a fund's performance must be evaluated based on its own disclosures, not on whether it performed consistently with other funds with similar labels. The brief also addresses the plaintiffs' class recertification strategy, arguing that such measures are inappropriate especially when they bear no connection to claims that will proceed on the merits Parties agreed to settle the case for $62 million in February 2015
November 28, 2012 (with the American Council of Life Insurers, America's Health Insurance Plans) U.S. Supreme Court (Petition for Certiorari from the U.S. Ninth Circuit Court of Appeals) First Unum Life Insurance Company v. Leah A. Bilyeu et al Argues for Unum's request that the court review a federal appeals court decision holding that ERISA does not allow an ERISA fiduciary to recover overpayments from a participant that has already dissipated the sought-after funds Petition for review denied
September 5, 2012 (with U.S. Chamber, ERIC, SHRM) U.S. Supreme Court (Petition for Certiorari from the U.S. Third Circuit Court of Appeals) McCutchen, et al v. U.S. Airways Argues that Section 502(a)(3) of ERISA authorizes courts to grant "appropriate equitable relief" only to enforce the provisions of ERISA or the terms of the benefit plan Ruled that equitable defenses do not override clear contract language and cannot be used to re-write terms of an ERISA-governed plan
July 26, 2012 (with Business Roundtable, U.S. Chamber, ERIC) U.S. Second Circuit Court of Appeals Conkright v. Frommert The case involved interpretation of the plan's offset provisions for prior distributions (for rehired participants). Brief argues that ERISA plans require deference to plan administrators entrusted with operating those plans, particularly with regard to a SPD that set forth offset provisions for rehired employees U.S. Supreme Court had ruled in 2010 that a plan administrator does not lose its discretionary authority to interpret plan terms simply because its first interpretation was unreasonable. The district court found in favor of the company on remand but was vacated and remanded for further consideration by the Second Circuit in December 2013, finding that the offset formula was unreasonable and not adequately disclosed
March 12, 2012 (with U.S. Chamber) U.S. Supreme Court (Petition for Certiorari from the U.S. Fifth Circuit Court of Appeals) Sterling Chemicals, Inc., v. Evans Argues that Fifth Circuit ruling is in direct conflict with other circuit decisions and unsettles the terms of plans whose sponsors have entered into corporate purchase agreements with provisions regarding employee benefits and would thereby create a new and unnecessary class of ERISA litigation Petition denied
January 27, 2012 U.S. Supreme Court NFIB v. Sebelius / Florida v. HHS (PPACA) Argues that if the PPACA individual mandate is unconstitutional, the "shared responsibility"/ employer mandate provisions mandate should also be struck down Held the ACA's individual mandate as constitutional
August 17, 2011 (with U.S. Chamber) U.S. Sixth Circuit Court of Appeals Griffin & Gardner v. Flagstar, et al Argues that "stock drop" lawsuits threaten the continued viability of retirement plans that invest in company stock and argues that the "Moench presumption" or presumption of prudence should apply to all "eligible individual account plans" that provide for investment in employer stock In 2012, Sixth Circuit reversed the district court, finding in favor of the plaintiffs. Although court indicated Moench presumption applies in the Sixth Circuit, it does not apply at the pleadings stage. Case was settled in August 2013 for $3 million
June 3, 2011 (with NAM, U.S. Chamber) U.S. Third Circuit Court of Appeals Shavers v. Siemens Argues that anti-cutback and spinoff rules do not apply to the supposed creation of a plan document arising from an Asset Purchase Agreement In 2012, Third Circuit reversed a very dangerous lower court decision that would have required Siemens Corporation to pay Permanent Job Separation (PJS) benefits created under Westinghouse Corporation's retirement plans to former Westinghouse employees, even though Siemens had not assumed the plans when it acquired certain Westinghouse assets
May 13, 2011 (with ERIC, PSCA, U.S. Chamber) U.S. Seventh Circuit Court of Appeal George et al v. Kraft Argues that prior panel ruling conflicts with U.S. Supreme Court and Seventh Circuit decisions and with prevailing ERISA plan unitization and recordkeeping fee practices. Case also involved claims of excessive fees Entire court (en banc) did not take up the panel decision. Case was settled for $9.5 million in 2012
March 7, 2011 U.S. Sixth Circuit Court of Appeals Raymond M. Pfeil and Michael Kammer v. State Street Bank and Trust Company Argues that "stock drop" lawsuits threaten the continued viability of company stock investment options in defined contribution plans In 2012, court found presumption of prudence does not apply at the pleadings stage. Request for U.S. Supreme Court review was denied
March 26, 2010 (with ERIC) U.S. Second Circuit Court of Appeals IN RE Citigroup Argues that "stock drop" lawsuits threaten the continued viability of company stock investment options in defined contribution plans; investment in employer stock is presumptively prudent (See Also May 30, 2008; January 16, 2007) Court affirmed district court's dismissal of plaintiffs' claims and district court's reasoning that fiduciaries' decisions not to divest investment plans of employer stock would be reviewed for an abuse of discretion standard. A case was newly filed in the U.S. District Court for the Southern District of New York, which dismissed the case on May 13, 2015, was filed outside the three-year statute of limitations applicable to claims of fiduciary breach under ERISA, but also considered that the plaintiffs did not meet the new pleading standards outlined by the Supreme Court in the case of Fifth Third Bancorp v. Dudenhoeffer (see the February 3, 2014 entry)
September 21, 2009 (with ERIC) U.S. Supreme Court (Petition for Certiorari from the U.S. Second Circuit Court of Appeals) Conkright v. Frommert Argues that ERISA plans require deference to plan administrators (rather than district court) with regard to plan operations (See also: July 26, 2012 brief) U.S. Supreme Court reversed Second Circuit because the lower court did not defer to the second interpretation by the plan administrator
September 10, 2009 (with AHIP) U.S. First Circuit Court of Appeals Loughren v. Unum Argues that employee benefit plans often include offset and reimbursement provisions (e.g., SSDI coordination of benefits requirements) as a means for maintaining affordability of benefits for employees Vacate and remand for new trial
July 10, 2009 (with HR Policy Assoc.) U.S. Supreme Court (Writ of Certiorari from the U.S. Ninth Circuit Court of Appeals) GGRA v San Francisco Argues that state/local benefit requirements violate the ERISA preemption standard and would have detrimental impact on employers' ability to uniformly administer multi-state health plans Petition denied
April 15, 2009 (with ERIC, U.S. Chamber) U.S. Eighth Circuit Court of Appeals Braden v. Wal-Mart Regarding breach of fiduciary duty for choice of investment options and fees in retirement plans; argues that such litigation is unfounded, costly and harms participants Court vacated district court decision favoring Wal-Mart and remanded. Case settled in December 2011 for $13.5 million
October 31, 2008 U.S. Ninth Circuit Court of Appeals (Petition for Rehearing En Banc) GGRA v. San Francisco See above Petition denied
July 25, 2008 (U.S. Chamber) U.S. Second Circuit Court of Appeals GGRA v. San Francisco Argues that statutes of limitations are fundamental to a well ordered judicial system; case demonstrates need for a meaningful statute of limitations with respect to ERISA retirement plans Court affirmed district court dismissal of case based on statute of limitations and finding that plan investments as a whole must be diversified (not individual investments)
July 16, 2008 U.S. Eighth Circuit Court of Appeals McCullough v. Aegon Argues that plaintiffs could not sue as their individual pension rights were not affected by the alleged breaches; any rejection or narrowing of precedent would negatively affect the defined benefit retirement system Court affirmed district court decision in favor of Aegon on the basis that overfunded defined benefit plan bars participant's claim
July 15, 2008 (with ERIC, NAM) U.S. Supreme Court (Petition for Certiorari from the U.S. Fifth Circuit Court of Appeals) Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, et al. Argues that administrator of an ERISA plan is required by law to pay benefits only to persons who are entitled to benefits pursuant to the plan document or ERISA; any benefit disbursements made pursuant to a domestic relations order that is not a QDRO would violate ERISA's anti-assignment rule U.S. Supreme Court affirmed on same basis
May 30, 2008 U.S. Second Circuit Court of Appeals IN RE Citigroup Pension Plan ERISA Litigation Argues that "stock drop" lawsuits threaten the continued viability of company stock investment options in defined contribution plans; investment in employer stock is presumptively prudent See March 26, 2010 listing
May 9, 2008 (with ERIC, NAM) U.S. Seventh Circuit Court of Appeals Hecker et al v. Deere & Company/Fidelity Argues that a plan is protected from charges of fiduciary breach under the ERISA Section 404(c) safe harbor because the plan permitted the participants to choose among a broad array of investment options Seventh Circuit affirmed district court's decision dismissing the case holding that the plan held a sufficient mix of investment options
March 28, 2008 U.S. Ninth Circuit Court of Appeals GGRA v. San Francisco See above Held that ERISA does not preempt
May 29, 2007 (with AT&T, Business Roundtable, BP America, El Paso Corp., Honeywell Int'l, Mercer Human Resource Consulting, Watson Wyatt Worldwide, Xerox Corp.) U.S. Second Circuit Court of Appeals Hirt v. Equitable Argues that a cash balance plan is not age discriminatory because it credits pay and interest at the same rates for all covered employees; the phrase "rate of an employee's benefit accrual" refers to the benefits that accrue under the terms of a pension plan Court held that cash balance plans do not inherently violate ERISA age discrimination prohibitions
February 27, 2007 U.S. Sixth Circuit Court of Appeals Drutis v. Rand McNally & Co. Argues that taking into account the time value of money - as cash balance plans do - should not be deemed to be age discriminatory Court held that cash balance plans do not inherently violate ERISA age discrimination prohibitions
February 14, 2007 (with ERIC) U.S. Supreme Court (Petition for Certiorari from the U.S. Ninth Circuit Court of Appeals) Xerox Corp. Retirement v. Miller, et al. Argues that by specifying a single method of calculating offsets, the lower court decision conflicted with ERISA's goals of preserving employer flexibility in order to provide incentives for employers to maintain voluntary pension plans U.S. Supreme Court declined to take the case, allowing a troubling Ninth Circuit decision to stand, requiring offsets to be calculated using a particular technique outlined by the court
January 16, 2007 U.S. Second Circuit Court of Appeals IN RE Citigroup Pension Plan ERISA Litigation Argues that "stock drop" lawsuits threaten the continued viability of company stock investment options in defined contribution plans; investment in employer stock is presumptively prudent (See Also: March 26, 2010; May 30, 2008) See March 26, 2010 entry
November 7, 2006 (with HR Policy Assoc., SHRM) U.S. Fourth Circuit Court of Appeals RILA v. Fielder Argues that Maryland health law subverts uniformity in plan design, the principal basis underlying ERISA's express preemption provision Held the Maryland law was preempted by ERISA entry
October 12, 2006 (with U.S. Chamber, NAM) U.S. Supreme Court (Writ of Certiorari from the U.S. Sixth Circuit Court of Appeals) El Paso Tennessee Pipeline Co, v. Gladys Yolton, et al Asks the U.S. Supreme Court to resolve a conflict in federal appeals court decisions regarding the proper legal standard for determining the duration of retiree health benefits Petition denied
February 24, 2006 (with NAM, AHIP) U.S. Supreme Court Sereboff v. MAMSI Argues that enforcement of plan reimbursement or subrogation provisions constitutes appropriate "equitable relief" under ERISA and reduces health care expenses to plans and participants Held that ERISA permits a plan to seek reimbursement of funds in the participants' possession
November 4, 2005 (with AT&T, BP America, Electronic Data Systems Corp., El Paso Corp., Honeywell Int'l, Mercer the ERISA Industry Committee, Watson Wyatt Worldwide, Wells Fargo) U.S. Seventh Circuit Court of Appeals Cooper v. IBM Personal Pension Plan and IBM Corp. Argues that cash balance plans are not inherently age discriminatory and represent sound retirement policy Seventh Circuit reversed the district court decision and directed a verdict in favor of IBM
December 19, 2003 (with the ERISA Industry Committee) U.S. District Court for the Southern District of Illinois Cooper v. IBM Personal Pension Plan and IBM Corp. Argues that the retroactive relief awarded by the District Court was inappropriate under the Manhart standard, as established by the U.S. Supreme Court See entry above