Gerald E. KOLLMAN v. HEWITT ASSOCIATES, LLC; Rohm and Haas Company; Rohm and Haas Benefits Administrative Committee. Rohm and Haas Company; Rohm and Haas Benefits Administrative Committee, Appellants. Gerald E. Kollman, Appellant v. Hewitt Associates, LLC; Rohm and Haas Company; Rohm and Haas Benefits Administrative Committee. Gerald E. Kollman v. Hewitt Associates, LLC; Rohm and Haas Company; Rohm and Haas Benefits Administrative Committee, Appellants.
Nos. 05-5018, 05-5207, 06-1558
United States Court of Appeals, Third Circuit
May 14, 2007
Argued: Jan. 8, 2007.
139
Since a defendant has no constitutional right to discuss the contents of his testimony while it is ongoing, a court has more leeway to issue an order barring discussion of testimony than an order barring all communication. As we have emphasized earlier, this discretion is cabined because of the inevitable link between discussing testimony and the constitutionally protected right to talk with counsel about the whole range of trial-related issues. As a result, during an overnight break, the right to unfettered access controls, and any such a ban will not usually pass constitutional muster. Geders, 425 U.S. at 91, 96 S.Ct. 1330; see also supra II.B-C. But, as long as a defendant is provided unfettered access to his attorney during subsequent overnight breaks, a mid-day, one-hour ban on discussing ongoing testimony is likely to interfere only in minimal ways on any constitutionally protected communication. As a result, such a restriction will generally be sufficiently narrowly tailored to be constitutionally justifiable. There may be situations in which a defendant could show that in the specific circumstances discussion of her testimony during lunch was necessary for counsel to provide effective assistance regarding decisions that had to be made that afternoon. And in such a situation, counsel would be free to explain the circumstances to the district court, and the court would then need to take into account these circumstances to make sure that no unconstitutional restrictions were imposed. But there has been no such showing here. Accordingly, we conclude that the district court‘s lunchtime restrictions did not violate defendant Andrews’ Sixth Amendment rights.
***
Having found that none of the restrictions on Andrews’ access to counsel amounted to a constitutional violation, we AFFIRM the judgment of the district court.
Raymond A. Kresge (Argued), Cozen O‘Connor, Philadelphia, PA, for Appellants/Cross-Appellees.
Kevan F. Hirsch (Argued), Daniel R. Utain, Kaplan, Stewart, Meloff, Reiter & Stein Blue Bell, PA, for Appellee/Cross-Appellant.
Before SLOVITER and RENDELL, Circuit Judges, and IRENAS, District Judge.*
SLOVITER, Circuit Judge.
I.
Summary
Gerald Kollman, who was an employee of Rohm and Haas Company at the time at issue, sought to ascertain the amount of lump sum pension to which he would be entitled if he were to retire. He accessed the computer website prepared and maintained for that purpose by Hewitt Associates, LLC and received an incorrect figure. That figure, $522,043.30, had not been rеduced by the amount of the Qualified Domestic Relations Order (“QDRO“) that was owing to Kollman‘s former wife. Kollman was notified of the correct pension amount some two months later. In the interim, he had signed the retirement papers. He concedes he is not entitled to the difference from Rohm and Haas. Instead, he makes two claims: a claim against Rohm and Haas that it violated the Employee Retirement Income Security Act of 1974 (“ERISA“) by failing to provide him with a copy of the company‘s Plan and Summary Plan Description (“SPD“) within thirty days of his letter requesting certain documents, and a claim against Hewitt for professional malpractice because of the fаilure of the website to provide the correct pension amount. Kollman prevailed on the first claim, and Rohm and Haas appeals. Hewitt prevailed on the second claim, and Kollman cross appeals.1
II.
Facts and Procedural Posture
Kollman was employed by Rohm and Haas as a Field Research and Development Manager in Rohm and Haas’ Agro-Fresh unit in Springhouse, Pa., and was a beneficiary of the Rohm and Haas Company Retirement Plan (the “Plan“). Rohm and Haas outsourced most of the administrative services associated with the Plan to Hewitt which undertook to perform the day-to-day Plan administration. In his second amended complaint, Kollman referred tо Hewitt as the agent for Rohm and Haas.
One of Hewitt‘s functions was the calculation of proper retirement benefits. Hewitt created and maintained a website that
Rohm and Haas announced a Severance Benefit Package (“SBP“) for employees who voluntarily retired by December 31, 2002.2 On October 31, 2002, Kollman logged on to the website maintained by Hewitt to obtain a statement of his pension benefits calculation. Kollman was aware that a portion of his pension was earmarked for his former wife but, as noted above, the website‘s calculation that he would receive a lump sum of $522,043.30 if he decided to accept the SBP failed to account for Kollman‘s obligations under the QDRO. The calculation provided by the website made it seem as though the lump sum figure had already been adjusted for the QDRO.
Kollman verified the calculation on the website and by telephone, and alleges that he elected to retire on December 31, 2002 based on those representations. It was not until January 6, 2003 that he was advised that he was entitlеd to a pension of $419,917.72, the original amount of $522,043.30 reduced by the QDRO offset of $102,125.28. The correct amount was confirmed by a Pension Benefit Statement that Kollman received on January 7, 2003. Kollman‘s subsequent efforts to appeal through the internal administrative mechanism were unsuccessful3 and he does not seek any relief here from that decision.
Shortly after Kollman initiated his internal appeal, see footnote 3, his counsel sent a letter dated February 18, 2003 to Hewitt requesting that Hewitt produce the following:
- All tape recordings of telephone calls between Kollman and Hewitt from December 1, 2002 through the present;
- All available printouts of or electronically stored data on benefits projections for Kollman from October 1, 2002 through the present;
- All documents of any nature which relate, reflect or refer the QDRO adjustment to Kollman‘s benefits wherever such documents were generated, created or stored;
- All pension benefits paperwork generated by Hewitt for Kollman in December of 2002 and January 2003, including any drafts thereof;
- All internal communications and documents, including electronic mail, which relate, reflect or refer to Kollman or his benefits which have been generated by Hewitt from December 1, 20034 through the present; and
- All communications between Hewitt and Rohm & Haas which relate, refer or reflect to Kollman of his benefits.
App. at 804-05.
On March 20, 2003, Hewitt responded to Kollman‘s attorney‘s February 18, 2003 request for documents, stating that it performed certain administrative services for Rohm and Haas regarding their defined benefits plan, but that “Hewitt is not the Plan Administrator.” App. at 810. The letter further stated that “[w]ith respect to Mr. Kollman‘s request for documents, under Section 2560.503-1 of the Department of Labor Regulations on Claim Procedure, request for documentation should be addressed to the Plan Administrator.” Id. Thereupon, by letter dated April 28, 2003, Kollman‘s counsel requested from the plan administrator, Rohm and Haas Benefits Administrative Committee (“BAC“), “all documents, records, and other information relevant to [Kollman‘s] claim for benefits,” including the same information requested in the February 18, 2003 letter. App. at 812. However, it was not until June 26, 2003 that outside counsel for defendants produced the Plan, the updated SPD and the “administrative record” for Kollman‘s claim that included the severance agreement that Kollman signed in December 2002. See Kollman v. Hewitt Assocs., No. Civ. A. 03-2944, 2005 WL 2746659, at *4 (E.D.Pa. Oct. 18, 2005).
Kollman initially filed this action against Hewitt under state law, claiming damages for negligent misrepresentation, negligence, promissory estoppel and breach of contract. The District Court, by order dated September 23, 2003, dismissed the complaint as preempted under ERISA, but gave Kollman leave to file an amended complaint raising a claim under ERISA. Kollman v. Hewitt Assocs., No. Civ. A. 03-2944, 2003 WL 22331870, at * 1 (E.D.Pa. Sept. 22, 2003). Kollman amended the complaint to state three counts. The amended complaint now included a claim, Count I, against Rohm and Haas under
III. Statutory Penalty Under Section 502(c)(1) of ERISA, 29 U.S.C. § 1132(c)(1)
Any administrator ... who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary ... by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court‘s discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day....
The relevant subchapter provisions referred to in § 502(c)(1) are
The administrator shall, upon written request of any рarticipant or beneficiary, furnish a copy of the latest updated summary plan description[,] and the latest annual report, any terminal report, bargaining agreement, trust agreement, contract, or other instruments under which the plan was established or operated.
The second provision referenced in § 502(c)(1) is
Fiduciary Duties
(a) Prudent man standard of care.
(1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and—
(D) in accordance with the documents and instruments governing the plan insofar as such documents and instru-
ments are consistent with thе provisions of this subchapter and subchapter III of this chapter.
In Groves v. Modified Ret. Plan, 803 F.2d 109 (3d Cir.1986), the plaintiff, a plan participant who was denied disability benefits, sued the plan administrator under
Groves also sought sanctions for failure to provide the information as required by
The District Court correctly opined that we must evaluate Kollman‘s
By its express language,
As the District Court noted, this court has yet to decide whether a written request must specifically name the precise documents being sought. Kollman, 2005 WL 2746659, at *6. Other courts to have considered the issue have adopted a clear notice test. See, e.g., Faircloth v. Lundy Packing Co., 91 F.3d 648, 655 (4th Cir. 1996) (holding that “[a]ppellants’ request did not give any indication of the information sought by the [a]ppellants. Their request for ‘any’ meeting minutes ‘regarding’ [the employee stock ownership plan] in the last three years was akin to asking Lundy to comb the past three years of trustees’ meeting minutes to determine if they contained any information that could possibly
Both Kollman and the BAC agree that the clear notice test applies. Further, it is undisputed that Kollman‘s February 18, 2003 letter did not specifically mention the Rohm and Haas retirement plan or SPD. The parties dispute both the applicable standard of review on appeal and whether the clear notice test requires that the party seeking information ask for the specific dоcuments by name. Kollman argues that we should review the District Court‘s finding under the clearly erroneous standard, because in his view the District Court made a finding of fact that the February 18, 2003 request was sufficiently clear. On the other hand, Rohm and Haas argues that we should exercise plenary review because the District Court improperly interpreted the legal question of what constitutes clear notice.
We are persuaded by Kollman‘s argument that we should review the District Court‘s finding as one of fact under the clearly erroneous standard. That is the approach taken in Anderson, 47 F.3d at 248 (“Whether a request is proper under [§ 1024] is a mixed question of law and fact. When such questions present a fact specific application of the law, such as here, we review the district court‘s decision under a clearly erroneous standard.“) and Boone v. Leavenworth Anesthesia, Inc., 20 F.3d 1108, 1111 (10th Cir.1994) (“[W]e hold that it was not clearly erroneous for the district court to determine the letter constituted a sufficient written request pursuant to § 1025(a).“). Because we agree that a clear notice test applies, and because the District Court applied such a test, the only question is whether the Court‘s finding that Kollman‘s February 18, 2003 letter was sufficiently specific was clearly erroneous.
The courts applying the clear notice test have divided as to whether the request made by or on behalf of the рlan participant gave clear notice of the documents. Each decision depended upon the circumstances of that case and no general rule can be formulated. We should look to whether “either the request or the response indicates that [defendant] knew or should have known that [plaintiff] had requested a copy of any document relating to the ... [p]lan.” Fisher, 895 F.2d at 1077. A similar approach was taken in Anderson, 47 F.3d at 250, where the court upheld the imposition of civil penalties following a finding that the company “knew or should have known which documents were being requested[.]” See also Moothart, 21 F.3d at 1503 (civil penalties appropriate when request specified “a copy of that Summаry Plan Description“).
We do not hold that a future request for documents is per se inadequate because it fails to specifically name the documents sought. Rather, the touchstone is whether the request provides the necessary clear notice to a reasonable plan administrator of the documents which, given the context of the request, should be provided. In this case, the prior communications signaled only Kollman‘s interest in the calculation of his own benefits. Neither the Plan nor the SPD, when produced, provided any information along the line of Kollman‘s interest. It follows that Kollman‘s letter does not pass the clear notice test.
The only other basis for Kollman‘s claim under
We agree. As we noted above, in Groves we held that the defendants’ failure to provide information required by federal regulations did not state a claim under
Kollman‘s theory fails because the connection between
We will therefore reverse the District Court‘s judgment holding that Rohm and Haas was liable for the statutory penalties imposed under
IV. Professional Malpractice Claim
In his appeal, Kollman argues that the District Court erred in holding that his professional malpractice claim against Hewitt was preempted by ERISA.
It is no secret to judges and lawyers that the courts have struggled with the scope of ERISA preemption. Kollman argues that the Supreme Court narrowed the scope of § 514(a) in its decision in N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). In Travelers, the Court reversed the decision of the Second Circuit that had held that a New York statute that required hospitals to collect surcharges from patients depending on the type of insurance they carried was preempted by ERISA. In holding there was no preemption, the Supreme Court noted that the purpose of § 514(a) was to “‘eliminat[e] the threat of conflicting and inconsistent State and local regulation.‘” Id. at 657, 115 S.Ct. 1671 (quoting 120 Cong. Rec. 29192, 29197 (1974) (statement of Rep. Dent)). In the Travelers decision, the Court did not establish a generally applicable rule that could be used to determine preemption in different fact situations. Therefore, we must make the preemption decision in light of the purpose underlying § 514(a) and, of course, the applicable precedents
We derive some insight from the Supreme Court‘s decision in Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), because the issue in that case was preemption of a state tort claim, as in this case. The Court determined that a judicially created cause of action similar to a claim for wrongful discharge was preempted. Plaintiff, a former employee, filed suit against his former employer alleging termination by his employer to avoid contributing to the ERISA pension plan. In holding the cause of action preempted, the Court characterized
The Court in Ingersoll-Rand stated that the preemption question requires a determination of congressional intent, “the ultimate touchstone.” Id. at 138, 111 S.Ct. 478 (internal quotation marks and citation omitted). The Court noted that Congress had underscored its intent that § 514(a) be expansively applied by using “equally broad language in defining the ‘State law’ that would be pre-empted. Such laws include ‘all laws, decisions, rules, regulations, or other State action having the effect of law.‘” Id. at 138-39, 111 S.Ct. 478 (quoting
Although the Court in Ingersoll-Rand was addressing the concern of employers and ERISA plan managers, the same consideration is equally applicable to agents of employers, such as Hewitt, who undertake and perform administrative duties for and on behalf of ERISA plans. To subject such companies to the differing state court interpretations of the tort of professional malpractice would create obstacles to the uniformity of plan administration that was and is one of ERISA‘s goals.
Kollman relies on this court‘s decision in Painters of Phila. Dist. Council No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146 (3d Cir.1989), for his argument that his claim of professional malpractice against Hewitt is not subject to preemption because Hewitt is supposedly a nonfiduciary. Notwithstanding some dictum on which Kollman relies, the situations are much different. Painters involved a suit by a plan‘s trustees against the plan‘s accountant/аuditor for failure to uncover the fraudulent activity in which the fund‘s administrator had engaged. It is not surprising that we held that ERISA preemption does not generally preempt professional malpractice actions “brought by a plan,” id. at 1153 n. 7, as such actions are unlikely to interfere with plan administration.5 Congress was concerned with sub-
Indeed, in a number of other cases, courts of appeals havе held that state law malpractice claims brought by or on behalf of ERISA plans were not preempted. See Gerosa v. Savasta & Co., Inc., 329 F.3d 317, 330 (2d Cir.2003) (a malpractice claim brought by plan trustees against a plan actuary not preempted); Custer v. Sweeney, 89 F.3d 1156, 1167 (4th Cir.1996) (trustee‘s state law legal malpractice claim against an ERISA plan‘s attorney not subject to ERISA preemption); Airparts Co., Inc. v. Custom Benefit Servs. of Austin, 28 F.3d 1062, 1064 (10th Cir.1994) (ERISA did not preempt state law claims brought by trustees of an ERISA plan against a non-fiduciary firm “hired by plaintiffs to provide expert benefit plan consultation“). The Fourth Circuit, in holding that a malpractice claim by the trustee is not preempted, noted that the defendant, the attorney sued by the ERISA trustee, “has not cited a single deсision holding that ERISA preempts a malpractice or professional negligence claim against a service provider to an ERISA plan.” Sweeney, 89 F.3d at 1167. Kollman cites these decisions in support of his effort to overturn the District Court‘s decision dismissing his malpractice action against Hewitt, an ERISA plan agent, as preempted. The argument is unpersuasive. There is no reason why ERISA‘s preemptive scope would reach state law malpractice claims filed by ERISA plans or trustees because such claims do not undermine the congressional policies that underlie ERISA.
Preemption under
As always, the relevant question is how such suits should be viewed in light of the purpose of the ERISA preemption provision,
An example of the type of action against an ERISA plan that is not preempted is provided by the decision in Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988) (holding that a state action garnishing funds due to participants in an ERISA employee welfare benefit plan not
The Court stated that “ERISA does not generally preemрt state professional malpractice actions,” id. at 1153 n. 7 (emphasis added).
In contrast, the claim that Kollman asserts against Hewitt goes to the essence of the function of an ERISA plan—the calculation and payment of the benefit due to a plan participant. As the District Court recognized, “[i]n order to determine whether [the calculation] error constituted malpractice, [the] Court would necessarily need to consult the Plan to determine such issues as whether the calculation was in error, whether the Plan includes provisions regarding the representations of Lump Sum Payout amounts made on the Website or by [Hewitt‘s] customer service personnel, and whether the Plan includes provisions regarding representations of Lumр Sum Payout amounts before claims for benefits are actually submitted.” Kollman v. Hewitt, No. Civ. A. 03-2944, 2004 WL 1211961, at *3 (E.D.Pa. Apr. 14, 2004). Such claims are plainly preempted. See, e.g., Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 418 (4th Cir.1993) (holding that plaintiff‘s claim for “past and future health care benefits” was preempted by ERISA).
The rationale for these holdings is that “[a]llowing beneficiaries to assert state law claims against non-fiduciary plan administrators ... would upset the uniform regulation of plan benefits intended by Congress.” Howard v. Parisian, Inc., 807 F.2d 1560, 1565 (11th Cir.1987). ERISA itself contains a civil enforcement scheme referred to in Ingersoll-Rand which provides the mechanism for claims by beneficiaries or plan participants to question or challenge the provision or amount of benefits. See
V.
Conclusion
For the reasons set forth above, the District Court‘s Order of October 18, 2005 is reversed. The Court‘s April 14, 2004 order dismissing Kollman‘s professional malpractice claim is affirmed.