Free Reply - District Court of Arizona - Arizona

1 LAW OFFICE
STUART]. REILLY, P.C.
2 po Box 80410
Phoenix, Arizona 85060-0410
3 Telephone: 602/912-9200
4 E—mail: [email protected]
Stuart]. Reilly, #005275
5 Attorney for Plaintiff
6
7 UNITED STATES DISTRICT COURT
8 DISTRICT OF ARIZONA
9
Stuart J. Reilly, )
10 ) Case No. CIV 02-2218 PHX BTM
Plaintiff, )
ll )
vs. ) PLAINTIFF’S REPLY TO HIS
12 ) SUPPLEMENTAL AUTHORITY
13 Charles M. Brewer, Ltd. Profit Sharing Plan ) RE: PLAINTIFF’ S RESPONSE
and Trust, a retirement plan; Charles M. ) IN OPPOSITION TO
14 Brewer, Ltd. Restated Pension Plan, a ) DEFENDANTS’ MOTION FOR
retirement plan; Ross Gordon and Associates, ) PARTIAL SUMMARY
15 Inc., n/k/a CBIZ Actuarial & Benefits ) JUDGMENT ON COUNT ONE
Consultants, Inc., a corporation; and Charles )
16 M. Brewer, )
)
17 Defendants. )
ix l
19 Plaintiff hereby submits his Reply to His Supplemental Authority to Plaintiff s
2Q Response in Opposition to Defendants’ Motion for Partial Summary Judgment on Count One.
21 A. Hickerson v Veliscol Chemical Corp. Was First Cited by Defendants
22 Plaintiff appropriately submitted Hickerson v. Veliscol Chemical Corp., 778 F.2d 365,
23 375 (7th Cir. 1985) as a supplemental authority. Defendants, in their Reply to Plaintiff s
24 Response in Opposition to Defendants’ Motion for Partial Summary Judgment on Count One,
25 altered the import of that decision to support their argument that "conversion through merger
26
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pe/untiees REPLY to pus SUPPLEMENTAL Autpiomtv RE; pemntiees RESPONSE in opposition to
oei=enoAnts* Motion FOR PARTIAL SUMMARY iuoonient on count one
REI LY v. cme, eto. PROFIT SHARING peAn Ann TRUST, et AL
Ca 2:O2—cv—O2218—BT|VI—LSP Document 213 Filed 10/O3/2005 Page 1 of 4

1 does not constitute termination of the former plan." Defendants incorrectly summarized
2 Hickerson in their Reply, at page 9, line 15, through page 10, line 2.
3 "Further, contrary to Plaintiffs assertion, conversion throu h merger
_ 2
4 does not constitute termination of the former plan. Hickerson v. Velsicol
Chem. Corp., 778 F .2d 365, 375-76 (7th cir. 1985) (ERISA contemplates
5 such transactions as mergers, consolidations and transfers of assets, and
neither conversion from a defined benefit plan to a defined
6 contribution plan nor the reverse causes a plan termination)."
(Emphasis added)
7
In fact, Hickerson states the exact opposite.
8
"ERISA contemplates plan amendments and such transactions as plan
9 mergers, consolidations and transfers of assets. In the context of all
these, it does specifically state that a conversion from a defined-benefit
10 to a defined-contribution plan causes a plan termination, ERISA
11 § 4041(f), 29 U.S.C. § l341(f)l; Treas.Reg. § 1.41 1(d)-2(C)(2). But
there is no suggestion that the reverse action——conversion from a
12 defined—contribution to a defined-benefit—should be treated any
differently than other plan amendments." (Emphasis added)
13
Plaintiff accepts Defendants’ citation of Hickerson when quoted accurately and have,
14
accordingly, supplemented their Response with that authority. But now Defendants have
15
reversed their position on Hickerson arguing that Plaintiff cites dicta and that the Charles M.
16
Brewer, Ltd. Restated Pension Plan is not subject to Title IV of ERISA.
17
None of the cases cited by Defendants in their Motion for Partial Summary Judgment,
18
their Reply, or their Response to Plaintiffs Supplemental Authority support the merger of a
19
defined beneht plan into a defined contribution plan without termination of the former plan.
20
Defendants further mislead the Court in their Response to Plaintiffs Supplemental
21
Authority at page 5, lines 6 through 10.
22
"...the Brewer Defendants also point out to the Court that ERISA
23 . . . .
§ 4041(e), by its plain language, requires the ‘adopt1on of an amendment
24
25 —;—-—-—-——
26 I Should read ERISA § 404l(e), 29 U.S.C. § l34l(e).
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PLAlNTlFF’S REPLY ro urs SUPPLEMENTAL AUTHORITY RE: Pl-AlNTIFF’S RESPONSE IN o1>1>osmoN TO
DEFENDANTS’ MOTION RoR PARTIAL SUMMARY JUDGMENT ON COUNT oNE
RE1ELv v. cme, LTD. PROFIT SHARING RLAN AND TRUST ET AL
Ca e 2:O2—cv-02218-BTIVI-LSP Document 213 Filed 10/O3/2005 Page 2 of 4

l to a plan which causes the plan to become a [defined contribution]
plan...’ ERISA § 4041(e). There is no evidence here that the sponsor of
2 the Charles M. Brewer, Ltd. Restated Pension Plan ever adopted such an
3 amendment. Indeed, the evidence is completely to the contrary."
4 Indeed, "evidence" to the contrary is the amendment adopted by the plan sponsor that actually
5 terminated the Charles M. Brewer, Ltd. Restated Pension Plan effective November 30, 1992.
6 The Ninth Circuit Court has held that the adoption of a plan of termination, such as the
7 Defendants did in this case, precludes subsequent modification, Horn v. Berdon, Inc. Defined
8 Benefit Pension Plan, 938 F.2d 125, 128 (9th cir. 1991).
9 B. Defendants Are Not Prejudiced by Plaintiff’s Filing of a Supplemental Authority
1() Plaintiff could have elected to wait until oral argument to supplement the argument
11 made in his response. Instead, Plaintiff chose to file a pleading addressing a central issue in
12 this controversy. Thus, Plaintiff has given Defendants advance notice and additional time to
13 consider their reply.
14 C. Conclusion
15 Substantial controversy exists between the parties on the termination/merger issue.
16 Defendants have incorrectly cited Hickerson to support their argument that a merger occurred
17 in the instant matter. But the language of Hickerson, actions by the plan sponsor, and federal
13 law support termination of the defined benefit plan.
19
2() SUBMITTED this 3rd day of October 2005.
21 STUART J. REILLY, P.C.
22
23 s/ Stuart J Reilly
Stuart J. Reilly
24 Attorney for Plaintiff
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PLAlNTIFF’S ppptv ro pus supptpmpnmr Aurnopirv pp; ptmwripprs ppsponsp in opposmon TO
DEFENDANTS’ Morion pop pApr1AL sumivmpv iuooivuanr on counr om;
. , . _A Aunrp TETAL
Ca 2:O2—cv—O2218—BT|VlilliSPV Cl5EE>&EDmP5Hi`£i’§AR`Ni¥ile€l 10/0372005 page 3 of 4

1 CERTIFICATE OF SERVICE
2
3 I hereby certify that on October 3, 2005, I electronically transmitted the attached doctunent to
the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of
4 Electronic Filing that will be electronically mailed or delivered by other means* to:
5 Ed Hendricks, Esq.
Michael K. Dana, Esq.
6 MEYER, HENDRICKS & BIVEN, P.A.
7 3003 North Central Avenue, Suite 1200
Phoenix, AZ 85012
8
Michael Vanic, Esq.*
9 C. Frederick Reish, Jr., Esq.*
REISH LUFTMAN REICHER & COHEN
10 11755 Wilshire Blvd., 10th Floor
ll Los Angeles, CA 90025-1539
12 Courtesy copy of the attached document mailed this 3rd day of October 2005 to:
13 Hon. Barry Ted Moskowitz
United States District Court
14 5160 Courthouse
940 Front Street
15 San Diego, CA 92101
16 s/ Marisa J Reilly
17
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1>LA1Nr1ee¤s REPLY ro ms SUPPLEMENTAL AUTHORITY RE: Pl-AlNTlFF’S RESPONSE IN oeposmon ro
neeewo/mrsi Moriou FOR PARTIAL SUMMARY iunomem ou coum oNe
Ca 9 2:02-ev-0221 8-BT|\llFIiISFV`C`lil3OIE:T1.?rf1)5%lI&$1}§\RINGI£2il$idAl`8/Bigj/§lOl0T5AL Page 4 of 4

Case 2:02-cv-02218-BTM-LSP

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Case 2:02-cv-02218-BTM-LSP

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