Barnett et al v. Platinum Equity Capital Partners Ii, L.P. et al

BRIEF in Support re Motion to Dismiss

W.D. Pa.January 3, 2017

NAI-1502351324v1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA DAVID L. BARNETT and JAMES R. ) WORKMAN, Jr. ) Plaintiffs, ) ) v. ) Case No. 2:16-cv-1668-LPL ) PLATINUM EQUITY CAPITAL ) PARTNERS II, L.P. t/d/b/a STEELERS ) HOLDING CORP.; PLATINUM ) EQUITY ADVISORS LLC, t/d/b/a ) STEELERS HOLDING CORP.; and ) STEELERS HOLDING CORP. ) Defendants. ) DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISS Defendants, Platinum Equity Capital Partners II, L.P., Platinum Equity Advisors, LLC and Steelers Holding Corporation (collectively “Defendants”), by and through their undersigned counsel, move for dismissal with prejudice of the majority of the claims asserted by Plaintiffs, David L. Barnett ( “Barnett”) and James R. Workman, Jr. (“Workman”; collectively “Plaintiffs”). Specifically: • First, the Court should dismiss Counts II and VI (alleging violation of the Pennsylvania Wage Payment and Collection Law) and Counts I and V (to the extent alleging breach of contract based on state law) because they are preempted by ERISA. To the extent preemption does not apply, the same Counts nonetheless should be dismissed with respect to Defendants Platinum Equity Capital Partners II, L.P. and Defendant Platinum Equity Advisors, LLC (hereinafter “Platinum Defendants”), as neither was party to any contract with Plaintiffs that could form the basis for their contract-breach or wage-payment claims. • Second, the Court also should dismiss, with respect to the Platinum Defendants, the ERISA claims asserted at Counts III and VII because the Platinum Defendants are not proper defendants for such claims. • Lastly, the Court should dismiss Counts IV and VIII because Plaintiffs cannot sue to obtain the “accounting” they demand. Case 2:16-cv-01668-LPL Document 8 Filed 01/03/17 Page 1 of 13 NAI-1502351324v1 -2- I. BACKGROUND Plaintiffs Barnett and Workman tell this Court in their Complaint filed on November 2, 2016 that they were once employees of Maxim Crane Works, L.P., which they state was owned by Defendant Steelers Holding. See Dkt. 1, Compl., ¶¶ 11-12. They have sued to collect money to which they claim they are due pursuant to the terms of two deferred compensation plans: One is the Steelers Holding Corporation 2008 Management Participation Plan (“Management Plan”), while the other is the Steelers Holding Corporation 2008 Co-Investment Participation Plan (“Co- Investment Plan”). Id. at ¶¶ 15, 30; see also Dkt. 1-2, Management Plan; and Dkt. 1-3, Co- Investment Plan. According to Plaintiffs, “[t]he Management Plan and the Co-Investment Plan are unfunded deferred compensation plans subject to Section 502(a)(1)(B) of the Employee Retirement Income Security Act (‘ERISA’). Those are known as ‘Top Hat’ plans.” See Dkt. 1, Compl., ¶¶ 89, 146. A. Steelers Holding Corporation 2008 Management Participation Plan The Management Plan states that its purpose was to provide incentive compensation to key employees of the Company or its subsidiaries. See Dkt. 1, Compl., ¶ 16; Dkt. 1-2 at § 1. The Management Plan expressly defines the Company as “Steelers Holding Corporation, a Delaware corporation.” Id. Any incentive compensation due was to be “based upon the award of Performance Units, the value of which is related to the appreciation in the value of the Company, and shall be payable to participants upon the occurrence of certain Qualifying Events.” Id. Each Plaintiff admits that the Performance Units on which any Management Plan incentive compensation was to be based and potentially paid were forfeited if he “engage[d] in competition with the Company, or violate[d] any agreement with the Company regarding the assignment of rights to the Company or the confidentiality of Company information.” Id. at ¶ 22. Incentive compensation under the Management Plan, to the extent owed, was to be paid upon the Case 2:16-cv-01668-LPL Document 8 Filed 01/03/17 Page 2 of 13 NAI-1502351324v1 -3- occurrence of a Qualifying Event, which included sale of the stock of Steelers Holding. Id. at ¶¶ 24-29; see also Dkt. 1-2 at §§ 7.1, 7.3. The Management Plan makes no reference to the Platinum Defendants, other than when defining a qualifying event (see Dkt. 1-2 at §§ 7.3, 7.4) and setting forth the formula for determining Qualified Event Value (id. at § 8.2). The administrator of the Management Plan is a Compensation Committee appointed by directors of Steelers Holding. Id. at § 2. Performance Unit grants are limited to key employees of Steelers Holding and its subsidiaries, as determined by the Compensation Committee. Id. at § 3. Upon the occurrence of a Qualifying Event, “Participants shall be entitled to receive from the Company an amount, with respect to each matured Performance Unit” unless otherwise forfeited, in which case “the Company will have no further obligation … .” Id. at §§ 6.1, 6.2 (emphasis supplied). The Management Plan is unfunded. See id. at § 13 (“The Plan shall at all times be entirely unfunded and no provision shall at any time be made with respect to segregating assets of the Company for payment of any benefits hereunder.”). Management Plan Participants are general unsecured creditors of the Company. Id. On July 16, 2008, Plaintiff Barnett accepted a grant of 251,151 Management Plan Performance Units, which were to mature at the rate of 25 percent on July 2 of the years 2009 through and including 2012. See Dkt. 1-4, Barnett Management Plan Grant Agreement. The grant of Performance Units was offered to Plaintiff Barnett by the vice president and secretary of Steelers Holding. Id. Similarly, Plaintiff Workman accepted a grant of 334,868 Management Plan Performance Units, which also matured at the rate of 25 percent annually from 2009 through and including 2012. See Dkt. 1-6, Workman Management Plan Grant Agreement. Case 2:16-cv-01668-LPL Document 8 Filed 01/03/17 Page 3 of 13 NAI-1502351324v1 -4- Again, the grant of Performance Units was offered to Plaintiff Workman by the vice president and secretary of Steelers Holding. Id. Neither Grant Agreement referenced either Platinum Defendant. Id. B. Steelers Holding Corporation 2008 Co-Investment Participation Plan The Co-Investment Plan states that its purpose was to provide incentive compensation to key employees of the Company or its subsidiaries. See Dkt. 1, Compl., ¶ 31; Dkt. 1-3 at § 1. The Co-Investment Plan expressly defines the Company as “Steelers Holding Corporation, a Delaware corporation.” Id. Any incentive compensation due also was to be “based upon the award of Performance Units, the value of which is related to the appreciation in the value of the Company, and shall be payable to participants upon the occurrence of certain Qualifying Events.” See Dkt. 1, Compl., ¶ 32; Dkt. 1-3 at § 1. Incentive compensation under the Co- Investment Plan was to be paid upon the occurrence of a Qualifying Event, which included sale of the stock of Steelers Holding. Id. at ¶¶ 39-43; see also Dkt. 1-3 at §§ 6.1, 7.1, 7.3. The Co- Investment Plan makes no reference to the Platinum Defendants, other than when defining a qualifying event (see Dkt. 1-3 at §§ 7.1, 7.3) and the formula for determining Qualified Event Value (id. at § 8.2). The administrator of the Co-Investment Plan is a Compensation Committee appointed by directors of Steelers Holding. Id. at § 2. Performance Unit grants are limited to key employees of Steelers Holding and its subsidiaries, as determined by the Compensation Committee. Id. at § 3. Upon the occurrence of a Qualifying Event, “Participants shall be entitled to receive from the Company an amount, with respect to each Performance Unit … .” Case 2:16-cv-01668-LPL Document 8 Filed 01/03/17 Page 4 of 13 NAI-1502351324v1 -5- Id. at §§ 6.1 (emphasis supplied). The Co-Investment Plan is unfunded. See id. at § 13 (“The Plan shall at all times be entirely unfunded and no provision shall at any time be made with respect to segregating assets of the Company for payment of any benefits hereunder.”). Management Plan Participants are general unsecured creditors of the Company. Id. On July 16, 2008, Plaintiff Barnett accepted a grant of 75,000 Co-Investment Plan Performance Units. See Dkt. 1-5, Barnett Co-Investment Plan Grant Agreement. The grant of Performance Units was offered to Plaintiff Barnett by the vice president and secretary of Steelers Holding. Id. Similarly, Plaintiff Workman accepted a grant of 100,000 Co-Investment Plan Performance Units. See Dkt. 1-7, Workman Management Plan Grant Agreement. Again, the grant of Performance Units was offered to Plaintiff Workman by the vice president and secretary of Steelers Holding. Id. Neither Grant Agreement referenced the Platinum Defendants. C. Qualifying Event On July 29, 2016, the human resources department of Maxim Crane Works, L.P. notified Maxim employees who held Management Plan and/or Co-Investment Plan Performance Units that a qualifying event occurred on that date. See Dkt. 1-9, memo dated July 29, 2016. An initial payout to Plan Participants was included with the notice. Id. Plaintiffs Barnett and Workman now concede that they received Co-Investment Plan payouts, but contend that they were denied Management Participation Plan payouts. See Dkt. 1, Compl., at ¶¶ 59-62. Each Plaintiff sues for purported breach of contract (Counts I, V), a purported violation of a Pennsylvania statute, the Wage Payment and Collection Law (Counts II, VI), a purported violation of the Employee Retirement Income Security Act (Counts III, VII), and each demands an accounting of for what Participation Units each was paid and how the amount of any payment was determined (Counts IV, VIII (misidentified in the Complaint as a second “Count VII”). Case 2:16-cv-01668-LPL Document 8 Filed 01/03/17 Page 5 of 13 NAI-1502351324v1 -6- II. ARGUMENT A. Standard of Review Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A plaintiff is obligated to state grounds for relief in the complaint that are more “than labels and conclusions [or] a formulaic recitation of the elements of a cause of action.” Bell-Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Supreme Court made clear in Twombly that a plaintiff must come forth with facts to support the asserted claims in order to survive a motion to dismiss: “To prevent dismissal, all civil complaints must now set out ‘sufficient factual matter’ to show that the claim is facially plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “The touchstone of the pleading standard is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). To meet the pleading standard, a plaintiff must “amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). A court will find a complaint particularly implausible – and, accordingly, dismiss the complaint – where it contains admissions that are inconsistent with facts essential to recovery. See, e.g., Developers Sur. & Indem. Co. v. Mathias, No. 12-cv-2216, 2013 WL 6504751, *10 (M.D. Pa. Dec. 11, 2013) reconsideration denied, No. 12-cv-2216, 2014 WL 2154668 (M.D. Pa. May 22, 2014) (dismissing complaint that alleged self-contradictory facts, and denying leave to file amended complaint because plaintiff’s own contradictory averments rendered amendment futile). In deciding whether to grant a motion to dismiss, “the Court should consider the complaint, exhibits attached to the complaint, and matters of public record.” Mayer v. Belichick, Case 2:16-cv-01668-LPL Document 8 Filed 01/03/17 Page 6 of 13 NAI-1502351324v1 -7- 605 F.3d 223, 230 (3d Cir. 2010). Specifically, the Court may consider in full any documents initially proffered by the plaintiff “to prevent . . . the situation in which a plaintiff is able to . . . extract[] an isolated statement from a document and plac[e] it in the complaint, even though if the statement were examined in the full context of the document, it would be clear that the statement [did not support the plaintiff’s proposition].” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). When examining such documents, “[i]t is a well-settled rule that when a written instrument contradicts allegations in the complaint to which it is attached, the exhibit trumps the allegations.” Mickel Drilling Partners ex rel. Mickel v. Cabot Oil & Gas Corp., No. 11–0061, 2012 WL 4953081, *8 (M.D. Pa. Oct. 16, 2012) (quoting Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty., No. 06–CV– 1064, 2007 WL 1007968, *5 (W.D. Pa. Mar. 30, 2007)). Thus, here, the Court can consider the entirety of the exhibits that Plaintiffs attached to their Complaint, as well as any that are referenced in the Complaint but may not be attached for some reason. B. ERISA Preempts Plaintiff’s State-Law Claims Asserted at Counts I, II, V and VI The Court should dismiss Counts II and VI (alleging violation of a state statute, the Wage Payment and Collection Law (“WPCL”)) and Counts I and V (to the extent asserting breach of contract based on state law)1 because they are completely preempted by ERISA. At the outset, 1 To the extent that Counts I and V assert breach of contract based upon federal common law, then those counts are duplicative of the ERISA violations alleged by Plaintiffs at Counts III and VI, and should be dismissed for that reason. It is well settled that ERISA claims over top hat plan benefits are, within the parameters of ERISA, analyzed as contracts “governed by general principles of federal common law.” In re New Valley Corp., 89 F.3d 143, 149, 150–51 (3d Cir. 1996) (holding that top hat plans are treated like unilateral contracts); see also Kemmerer v. ICI Americas Inc., 70 F.3d 281, 287 (3d Cir. 1995) (noting that top hat plan claims are governed by “breach of contract principles, applied as a matter of federal common law”). Where a top hat plan accords discretionary authority to the plan administrator, then a court, as a matter of contract law, is obliged to accord deference to the plan administrator’s decision, provided it was exercised in good faith. See Goldstein v. Johnson & Johnson, 251 F. 3d 433, 444 (3d Cir. 2001) (“[I]n the case of a top hat plan, even though an administrator may not receive ‘deference’ under Firestone Tire [& Rubber Co. v. Bruch, 489 U.S. 809, 110-11 (1988)], any grant of discretion must be read as part of the unilateral contract itself. As a term of the contract, it must be given effect as ordinary contract principles would require, thus minimizing the potential for differing standards of review for identical plan terms.”). Case 2:16-cv-01668-LPL Document 8 Filed 01/03/17 Page 7 of 13 NAI-1502351324v1 -8- Plaintiffs bear the burden of showing that the Management Plan and Co-Investment Plans are not ERISA top hat plans. Sikora v. UPMC, 153 F.Supp.3d 820, 823 (W.D. Pa. 2015). Here, they are unable to do so because, in their lawsuit, Plaintiffs allege (and the contents of their Exhibits 1 and 2 confirm) that both the Management Plan and Co-Investment Plan are ERISA-covered top hat plans. See Dkt. 1, Compl., ¶ 89 (“The Management Plan and the Co-Investment Plan are unfunded deferred compensation plans subject to Section 502(a)(1)(B) of [… ERISA]. Those are known as “Top Hat” plans.”); see also Dkt. 1-2 and 1-3, generally. Indeed top hat plans are unfunded and are maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly paid employees. Goldstein v. Johnson & Johnson, 251 F.3d 433, 436 (3d Cir. 2001); Miller v. Eichleay Eng'rs, Inc., 886 F.2d 30, 34 n.8 (3d Cir. 1989) (relying on ERISA definition of top hat plan at 29 U.S.C.A. § 1051(a)). Here, Plaintiffs concede that the Management and Co-Investment Plans “provide deferred compensation for a select group of key or highly trained employees,” see Dkt. 1, Compl., ¶90, and each Plan confirms what Plaintiffs concede. See Dkt. 1-2 at § 1; Dkt. 1-3 at § 1. Additionally, each Plan confirms that it is unfunded. See Dkt. 1-2 at § 13; Dkt. 1-3 at § 13. Next, it has long been the law that ERISA completely preempts “any state-law cause of action that duplicates, supplements, or supplants” ERISA’s civil enforcement scheme. Aetna Health Inc. v. Davila, 542 U.S. 200, 209 (2004). This preemption rule is part of ERISA’s enforcement provisions (i.e., Part 5 of Title I of the statute), which, unlike the vesting, participation and funding, and fiduciary rules, applies to top hat plans. Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 113 (2d Cir. 2008). Accordingly, ERISA preemption applies to “every plan covered by ERISA, which necessarily includes top hat plans.” Id.; see also Loffredo v. Daimler AG, 2012 WL 4351358 *2 (6th Cir. 2012) (unpublished). Case 2:16-cv-01668-LPL Document 8 Filed 01/03/17 Page 8 of 13 NAI-1502351324v1 -9- In this case, ERISA preemption extends to Plaintiffs’ wage payment claims and breach of contract claims, because they are nothing more than disguised requests for benefits from ERISA- covered top hat plans. Notably, Plaintiffs allege in their contract-breach claims in Counts I and V that “[t]he Management Plan and the Co-Investment Plan were legally enforceable and binding contracts … , supported by adequate consideration.” See Dkt. 1, Compl., ¶¶ 64, 111. Plaintiffs each contend that these purported contracts were breached. Id. at ¶¶ 77, 124. Meanwhile, their WPCL claims at Counts II and VI can only be based on the terms of the Management Plan and the Co-Investment Plan because it is well settled that the WPCL “does not create a new right to compensation, but rather, merely establishes a right to enforce payment of wages and compensation that the employer has legally obligated itself to pay.” Pease v. Faro Technologies, 15-cv-3586, 2016 WL 705240, *4 (E.D. Pa. Feb. 23, 2016); Divenuta v. Bilcare, 09-cv-3657, 2011 WL 1196703, *9 (E.D. Pa. Mar. 30, 2011) (quoting Scully v. U.S. WATS, Inc., 238 F.3d 497, 516-17 (3d Cir. 2001)). In order to bring an actionable WPCL claim, a plaintiff “must demonstrate that he was contractually entitled to compensation and that he was not paid.” Pease, 2016 WL 705240 at *4; Divenuta, 2011 WL 1196703 at *9. Here, the only purported contracts that Plaintiffs identify in their lawsuit, and on which their WPCL claims could be based, are the Management Plan and the Co-Investment Plan, which they contend are “binding contracts” that were breached. See Dkt. 1, Compl., ¶¶ 64, 77, 101, 111, 124, 148. Given the foregoing, because it is clear that Counts I, II, V and VI are merely alternative means “to collect benefits” under an ERISA plan and “would require reference to the Plan[s] in the calculation of any recovery,” it follows that those four Counts relate to an employee benefit plan and are accordingly, preempted. Paneccasio, 532 F.3d. at 114; see also Davila, 542 U.S. at 214 (claims that seek “only to rectify a wrongful denial of benefits promised under ERISA- Case 2:16-cv-01668-LPL Document 8 Filed 01/03/17 Page 9 of 13 NAI-1502351324v1 -10- regulated plans” fall “within the scope of ERISA…and are therefore completely preempted by ERISA”); Lawson v. Nationwide Mutual Ins. Co., 05-cv-1249, 2005 WL 1533102, *6-7 (E.D. Pa. June 29, 2005) (dismissing all of plaintiffs’ state law claims as preempted because they relate to a top hat plan). In light of the foregoing facts (as pleaded by Plaintiffs) and the controlling legal authority, Plaintiffs’ contract-breach and WPCL claims at Counts I, II, V, and VI must be dismissed. 1. Absent Preemption-Based Dismissal, Counts I, II, V and VI Still Must In any Event be Dismissed as to the Platinum Defendants Even if Counts I, II, V and VI were not subject to dismissal as to all Defendants due to ERISA-based preemption, they nonetheless should be dismissed with respect to the Platinum Defendants, as neither was party to any contract with Plaintiffs. As noted above, in deciding whether to grant a motion to dismiss, “the Court should consider the complaint, exhibits attached to the complaint, and matters of public record.” Mayer, 605 F.3d at 230. Further, “when a written instrument contradicts allegations in the complaint to which it is attached, the exhibit trumps the allegations.” Mickel Drilling Partners, 2012 WL 4953081 at *8; Pittsburgh League of Young Voters Educ. Fund, 2007 WL 1007968 at *5. Here, the documents that Plaintiffs attached to their Complaint demonstrate that they cannot plead the existence of a contract between them and the Platinum Defendants, neither of which made an offer that any of the Plaintiffs accepted (and which was supported by consideration) and/or which subsequently was breached. Rather, Exhibits 1 and 2 to Plaintiffs’ Complaint refer exclusively to obligations (if triggered) on the part of only one Defendant, Steelers Holding. Specifically, only Steelers Holding had an obligation to pay Plaintiffs a Qualified Event Value amount, which is precisely what Plaintiffs seek in this litigation. See Dkt. Case 2:16-cv-01668-LPL Document 8 Filed 01/03/17 Page 10 of 13 NAI-1502351324v1 -11- 1-2 at § 6.1 (“upon the occurrence of a Qualifying Event, Participants shall be entitled to receive from the Company an amount ...”); Dkt. 1-3 (same) (emphasis supplied). Similarly, when (pursuant to the Plans) Performance Unit Grants were offered to Plaintiffs, the offers came from Steelers Holding, not from the Platinum Defendants. See Dkt. 1-4 through 1-7. Thus, to the extent not preempted, Plaintiffs’ contract-breach and WPCL claims asserted against the Platinum Defendants must be dismissed, as there is no underlying contract between Plaintiffs and the Platinum Defendants on which such claims can be based. C. The Platinum Defendants are Not Proper Defendants for Plaintiffs’ ERISA Claim for Benefits The Court also should dismiss, with respect to the Platinum Defendants, the ERISA claims asserted at Counts III and VII because the Platinum Defendants are not proper defendants for such claims. ERISA permits a plan participant to sue under ERISA Section 502(a)(1)(B) for benefits “due to him under the terms of his plan.” 29 U.S.C. § 1132(a)(1)(B). An employee benefit plan is a juridical entity under ERISA and “may sue or be sued.” 29 U.S.C. § 1132(d)(1). Service of process “upon a trustee or an administrator of an employee benefit plan in his capacity as such shall constitute service upon the employee benefit plan.” 29 U.S.C. § 1132(d)(1). But, “any money judgment under [ERISA] against an employee benefit plan shall be enforceable only against the plan as an entity and shall not be enforceable against any other person unless liability against such person is established in his individual capacity under [ERISA].” 29 U.S.C. § 1132(d)(2). Personal liability typically is due only to fiduciary breach, see 29 U.S.C. § 1109(a), but top hat plans are not subject to fiduciary duty claims. See 29 U.S.C. § 1101(a)(1) (exempting top hat plans from fiduciary rules). Additionally, in all events, plan participants cannot bring a fiduciary breach action when they are only seeking benefits that they contend are due to them under the terms of a plan. Varity Corp. v. Howe, 510 U.S. 489, 515 (1996) (stating Case 2:16-cv-01668-LPL Document 8 Filed 01/03/17 Page 11 of 13 NAI-1502351324v1 -12- that where Congress elsewhere provided relief (e.g., a benefit claim), there will be no need for further equitable relief (e.g., a fiduciary breach claim)). Consistent with the statute, the Third Circuit has held that when a party seeks recovery of benefits pursuant to Section 502(a)(1)(B), as Plaintiffs do here, “the [proper d]efendant is the plan itself (or plan administrators in their official capacities only).” Kozak v. Vanesko Enterprises, Inc., 3:16-cv-750, 2016 WL 6892454, *4 (M.D. Pa. Nov. 22, 2016) (quoting Graden v. Conexant Systems, 496 F.3d 291, 301 (3d. Cir. 2007)); see also Hahnemann Hospital v. All Shore, Inc., 514 F.3d 300, 309 (3d Cir. 2008). Here, Plaintiffs did not name the Management Plan or the Co-Investment Plan as Defendants even though ERISA precisely sets forth which entities can be sued, and for what, and even though Plaintiffs affirmatively stated that each Plan is an unfunded top hat plan “subject to Section 502(a)(1)(B) of [… ERISA].” See Dkt. 1, Compl., ¶¶ 89, 136. As neither Platinum Defendant is a top hat plan or a plan administrator, which is confirmed by the Plaintiffs’ Complaint and attachments thereto, each Platinum Defendant must be dismissed from Counts III and VII, each of which demands payment of benefits pursuant to “Section 502(a)(1)(B) of ERISA.” Id. at ¶¶ 98, 145. See Kozak, 2016 WL 6892454 at *4 (“the Defendant is the plan itself”). D. Plaintiffs are Not Entitled to an Accounting, So Counts IV and VIII Must Be Dismissed as to All Defendants Lastly, Counts IV and VIII must be dismissed because Plaintiffs cannot sue for the accounting they demand in those counts. First, to the extent that Plaintiffs contend that they are entitled to an accounting pursuant to some contractual or other non-ERISA-based right, such a claim is preempted by ERISA for the reasons already discussed. See § II.B, supra. To the extent they claim to have a right to an accounting pursuant to ERISA, they are wrong. Specifically, it is well settled that although top hat plans are regulated by ERISA, they are exempt from Parts 1, 2, Case 2:16-cv-01668-LPL Document 8 Filed 01/03/17 Page 12 of 13 NAI-1502351324v1 -13- 3 and 4, which cover the reporting, participation and vesting, and fiduciary requirements. 29 U.S.C. §§ 1051(2); 1081(a)(3); 1101(a)(1); 29 C.F.R. § 2520.104-23; see also Goldstein, 251 F.3d at 442; In re New Valley Corp., 89 F.3d at 148-149 (describing “the near-complete exemption of top hat plans from ERISA’s substantive requirements” and noting that “top hat plans are covered only by ERISA’s enforcement provisions”). It follows, then, that no Plaintiff in this case has standing to sue for an accounting.2 See 29 U.S.C. § 1051(2) (exempting top hat plan disclosure obligations). As a result, the Court should dismiss Counts IV and VIII. III. CONCLUSION For the foregoing reasons, Counts I, II, IV, V, VI and VIII must be dismissed with prejudice, while Counts III and VII must be dismissed as they relate to the Platinum Defendants. Dated: January 3, 2017 Respectfully submitted, /s/ James S. Urban James S. Urban jsurban@jonesday.com JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219-2514 Telephone: (412) 391-3939 Facsimile: (412) 394-7959 ATTORNEY FOR DEFENDANTS 2 Practically speaking, Counts IV and VIII are unnecessary, as Plaintiffs presumably will be able to obtain the detail they desire when they conduct discovery regarding their ERISA claims for benefits asserted at Counts III and VII against Steelers Holding. Case 2:16-cv-01668-LPL Document 8 Filed 01/03/17 Page 13 of 13