Despite the protections ERISA offers a beneficiary, every now and then relief available outside of the statute tempts a plaintiff to argue against ERISA qualification – in this instance, the plaintiff was a former President and CEO of Safelite Group, Inc. In 2005, Safelite’s Board of Directors created the Safelite Group, Inc. 2005 Transaction Incentive Plan (“TIP,”) which provided substantial bonus payments to the five Safelite executive participants, dependent on their securing a strategic buyer for the company.
After a likely buyer emerged, the size of the TIP participants’ tax obligations in the event a purchase went through became evident, prompting the board to adopt the Safelite Group, Inc. Nonqualified Deferred Compensation Plan (the “NDCP”). At the date of its creation, only the four executives who were participants in the TIP were eligible for the Safelite NDCP.
The NDCP allowed its participants to defer two types of income – compensation and TIP amounts. These deferments were made by individual election forms indicating percentages of TIP Amounts, base annual salary, and bonuses sought to be deferred, as well as the year or years distributions were desired.
Between 2006 and 2014, the plaintiff deferred a total of $9,111,384 – until a federal audit revealed some of his elections failed to comply with a tax statute regulating deferred compensation plans. The plaintiff brought suit against Safelite, asserting breach of contract and negligent misrepresentation. In federal court, Safelite asserted in its motion to dismiss that plaintiff’s claims were preempted under ERISA as the NDCP constituted an “employee pension benefit plan” under ERISA Section 3(2)(A)(ii), 29 U.S.C. § 1002(2). The district court granted the motion but permitted the plaintiff 28 days to amend his complaint. With no amendment, the district court entered final judgment and the plaintiff appealed.
On appeal the court considered (1) whether the Safelite Plan was an employee pension benefit plan covered by 29 U.S.C. § 1002(2)(A)(ii), and (2) whether the Safelite Plan was exempt from ERISA pursuant to DOL regulation 29 C.F.R. § 2510.3-2(c).
Did the NDCP Qualify as an Employee Pension Benefit Plan?
Under ERISA and Sixth Circuit precedent, an employee pension benefit plan must “by its express terms or as a result of surrounding circumstances,” either
(i) provide retirement income to employees, or
(ii) result in a deferral of income by employees for periods extending to the termination of covered employment or beyond…
29 U.S.C. § 1002(2)(A). The court noted that ERISA’s overarching purpose in the scope of EPBP’s is to “protect[ ] monies belonging to plan beneficiaries while such funds are held and managed by others.” Accordingly, any state law remedy which duplicates or supplements ERISA’s available remedies is preempted.
Attempting to move the plan outside of the scope of preemption, the plaintiff argued that in order to fit within the “results” stratum, a plan “‘must require’ deferrals to the termination of covered employment or beyond.” The court was not persuaded, noting the difference between “results” and “requires,” as well as Congresses’ use of the actual term “require” within other sections of ERISA.
Was the NDCP an exempt bonus plan under DOL regulations?
DOL regulations exclude “payments made by an employer… as bonuses for work performed, unless such payments are systematically deferred to the termination of covered employment or beyond….” 29 C.F.R. § 2510.3-2(c). The court interpreted the regulation as “envision[ing] bonuses, not pay for regular compensation, such as annual salaries.” Id. at p. 8. “A bonus plan may defer payment of bonuses and remain exempt, ‘unless such payments are systematically deferred to the termination of covered employment or beyond, or so as to provide retirement income to employees.’” – Systematic deferral would suggest the payments were not ‘merit’ based but rather an ERISA-exempt proxy for retirement income.
Hoping to slot the plan into the exception, the plaintiff disputed whether the plan actually resulted in a deferral of income by employees for periods extending to the termination of covered employment or beyond.
The court noted that the NDCP “expressly provides for employees to defer income from several sources to the future” and accordingly fit within the meaning of 29 U.S.C. § 1002(2)(A)(ii) and fell outside the ambit of the DOL exclusion. Id. at 10-11 (Emphasis added). The inclusion of multiple sources of income in the NDCP (general wages and other incentives outside of the TIP amounts) factored into the court’s decision, leading the court to conclude that the “Safelite Plan [was] not designed as a bonus plan and instead distributes deferred amounts of non-bonus income, [therefore] it is not a plan providing for payments made ‘as bonuses for work performed.’” Id. at 11-12.
Analytics Brings the Past Back to the Future
While the majority opinion was directed toward assessing the ERISA-qualified nature of the plan at issue, the concurrence diverged considerably – advocating for the utility of “corpus linguistics,” crediting it with focusing “on the common knowledge of the lay person by showing us the ordinary uses of words in our common language.” Id. at 15 (Thapar, J., concurring).
Specific arguments in Safelite may have been novel, but there exists at the very least tens of cases interpreting the provisions at issue here – more interesting perhaps is the potential application of corpus linguistics to the interpretation of plan terms. Consider an arguably ambiguous term or phrase in a plan which an insured asserts led him or her to reasonably expect a greater level of coverage than that actually provided. Rather than expecting attorneys and judges to unwind years of legal experience and analyze the language at issue from the perspective of a hypothetical, reasonable reader (one lacking any formal legal training), could not analytics aid in evaluating the general import of a term or phrase at its time of publication?
The concurrence endorses this possibility of a greater incorporation of corpus linguistics into legal analysis, drawing upon millions of examples of everyday word usage” to divine the “ordinary meaning” of language at a particular point in time – with the
corresponding search results… yield[ing] a broader and more empirically-based understanding of the ordinary meaning of a word or phrase by giving us different situations in which the word or phrase was used across a wide variety of common usages… corpus linguistics is a powerful tool for discerning how the public would have understood a staute’s text at the time it was enacted.
* * *
[T]he entire practice of law – and certainly the practice of interpretation – involves judgment calls about whether a particular source is relevant. And at least with corpus linguistics, those calls can be vetted by the public in a more transparent way.
Responding to another concurring opinion’s suggestion that corpus linguistics is redundant when compared with dictionaries, Judge Thapar notes that rather than a meaning arrived at in an indistinguishable point in time, “corpus linguistics… help[s] pinpoint the ordinary uses of a word at the time a statute was enacted.”
While Judge Thapar was not advocating for contract interpretation to devolve into administration by “automatons of algorithms” (and neither are we), perhaps it is time to introduce a more formulaic – and arguably representative – portrait of the idealized ‘reasonable insured’ into the traditional legal algorithm.
For the full opinion, see, Wilson v. Safelite Group, Inc., No. 18-3408 (6th Cir., Jul. 10, 2019)