Borda v. Hardy, Lewis, Pollard & Page, P.C.

138 F.3d 1062, 21 Employee Benefits Cas. (BNA) 2842, 1998 U.S. App. LEXIS 3766, 1998 WL 91291
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 5, 1998
DocketNo. 97-1004
StatusPublished
Cited by54 cases

This text of 138 F.3d 1062 (Borda v. Hardy, Lewis, Pollard & Page, P.C.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borda v. Hardy, Lewis, Pollard & Page, P.C., 138 F.3d 1062, 21 Employee Benefits Cas. (BNA) 2842, 1998 U.S. App. LEXIS 3766, 1998 WL 91291 (6th Cir. 1998).

Opinion

OPINION

DAVID A NELSON, Circuit Judge.

As a former participant in the profit sharing plan of a professional corporation by which he had been employed, the plaintiff in this ERISA case chose not to withdraw his vested share of the plan’s assets after he quit his job. Under the terms of the plan, this meant that his non-vested share of an account funded by employer contributions was to be credited to a suspense account pending forfeiture or further vesting.'

A forfeiture could be triggered either by a distribution to the plaintiff of the entire vested interest or by a five-year break in service. If the plaintiff had been rehired within the five year period without a distribution having occurred, he would have been entitled to credit for his past service and could have resumed the accumulation of service credits, thereby increasing the percentage of his account that was vested.

The plaintiff was never rehired, as things turned out, and the corporation was dissolved [1064]*1064some three-and-a-half years after the plaintiff quit. The profit sharing plan was terminated when the corporation went out of existence.

In order to qualify for favorable tax treatment under the Internal Revenue Code, the plan had to provide that accrued benefits of all “affected employees” would become non-forfeitable upon termination of the plan. 26 U.S.C. § 411(d)(3). The termination provisions adopted in the plan said that “[u]pon any [plan] termination ... all amounts credited to the affected Participants’ Combined Accounts shall become 100% Vested and shall not thereafter be subject to Forfeiture----”

Contending that he was an “affected” participant within the meaning of this provision, the plaintiff claimed that his unvested share became vested upon termination of the plan. The plan’s trustees rejected this claim. They took the position that the plaintiff could not be “affected” by the termination because, although the five-year period had not yet run, the dissolution of the corporation made it certain that the plaintiff could never be rehired. The trustees read the plan as requiring that only the vested portion of the plaintiffs account be distributed to him, with the non-vested portion going to the remaining participants. As there was no possibility that any of the nonvested portion could become vested in the future through a return to work, the trustees in effect treated the forfeiture as having occurred a year-and-a-half early. .

The district court concluded that the measure of discretion vested in the trustees by the terms of the plan was such as to require use of the “arbitrary and capricious” standard of review. Applying that standard, the district court held, on motion for summary judgment, that the decision of the trustees was rational and they were therefore entitled to judgment as a matter of law. Upon de novo review of the record, we find ourselves in agreement with this result. Given the undisputed facts of the case, we are not prepared to say as a matter of law that the plaintiff had to be treated as an “affected” participant. That being so, it seems clear to us that the district court not only applied the correct standard of review, but applied the standard correctly. The judgment will be affirmed.

I

The plaintiff, Attorney Walter J. Borda, became an employee of the law firm of Hardy, Lewis, Pollard & Page, P.C., on January 1, 1989. The firm had set up a qualified profit sharing plan some years earlier, and Mr. Borda was allowed to participate in the plan from the outset of his employment.

As a participant in the plan, Mr. Borda made periodic elections to defer some of his law firm compensation. This deferred compensation was contributed to a “Salary Reduction Account” established for him under the plan. The Salary Reduction Account— which was funded with contributions made, in effect, by Mr. Borda himself — was never subject to forfeiture. It was fully vested at all times, in other words.

In addition to the contributions made by Mr. Borda, contributions to the profit sharing plan were made on his behalf by the law firm. Unlike the account funded with Mr. Borda’s own contributions, the account funded with employer contributions was not fully vested when Borda resigned. The plan provided that as a participant’s years of service with the firm increased in number, the vested percentage would increase in accordance with a prescribed scale. By promising annual increases in the vested percentage, culminating in full vesting after six or seven years, the plan offered an incentive for newer employees to remain in the firm’s employ — and, under some circumstances, to rejoin the firm if they did leave for a time.

Mr. Borda’s years of service never reached the level required for full vesting of the employer contribution account. Mr. Borda voluntarily resigned as an employee of the firm effective June 20, 1991, in order to accept a more lucrative position elsewhere. At the time of his resignation, the parties have come to agree, 40 percent of his employer contribution account was vested and 60 percent was not vested.

When Mr. Borda Ceased to be an employee, he no longer met the definition of a “Participant” in the profit sharing plan.1 [1065]*1065Under the plan’s definitions, he became a “Former Participant”, and a “Terminated Participant.” As such he was free to withdraw the vested portion of his combined accounts (100 percent of the account funded with his own contributions and 40 percent of the account funded with the employer’s contributions), but he could not be required to do so.

As we have said, Mr. Borda chose not to cash out his vested interest. This choice meant that the non-vested portion of his employer contribution account went into a suspense account rather than being immediately forfeited. It also meant that his vested percentage would again be subject to annual increases, with credit for past service, were he to be reemployed within five years.

The law firm broke apart in 1994, its lawyers going with one or another of two newly established firms. The trustees and de facto administrators of the profit sharing plan— defendants David M. Davis and Patrick M. Higdon — notified Mr. Borda in November of 1994 that the plan would be terminated effective at the end of the year. Mr. Borda was told that his vested account balances would be distributed to him as soon as possible after termination.

By letter dated November 23,. 1994, counsel for Mr. Borda notified the trustees of “a claim that Mr. Borda’s account balance should be 100% vested as a result of the termination of the Plan.” This claim was based upon § 411(d)(3) of the Internal Revenue Code, 26 U.S.C. § 411(d)(3). Section 411(d)(3) denies the tax advantages of “qualified” plan status if the plan fails to provide that upon its termination, “the rights of all affected employees to benefits accrued to the date of such termination ... to the extent funded as of such date, or the amounts credited to the employees’ accounts, are nonfor-feitable.”

The profit sharing plan in which Mr. Borda had been a participant was intended to be a qualified plan, and it contained a provision designed to comply with § 411(d)(3).

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Cite This Page — Counsel Stack

Bluebook (online)
138 F.3d 1062, 21 Employee Benefits Cas. (BNA) 2842, 1998 U.S. App. LEXIS 3766, 1998 WL 91291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borda-v-hardy-lewis-pollard-page-pc-ca6-1998.