Williamson v. Travelport, LP et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Against Amended Complaint with Brief In Support

N.D. Ga.June 8, 2017

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ANGELA HENDERSON WILLIAMSON, Plaintiff, v. TRAVELPORT, LP, ET AL., Defendants. ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:17-cv-00406-WSD DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Defendants Travelport, LP and Galileo & Worldspan U.S. Legacy Pension Plan (collectively, “Defendants”), by and through their undersigned counsel and pursuant to Federal Rule of Civil Procedure 12(b)(6), move to dismiss Plaintiff’s Amended Complaint in its entirety for the reasons more fully set out in Defendants’ Memorandum in Support of Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint filed simultaneously herewith. Respectfully submitted this 8th day of June 2017. Case 1:17-cv-00406-WSD Document 19 Filed 06/08/17 Page 1 of 2 2 s/John Houston Pope John Houston Pope (admitted pro hac vice) jhpope@ebglaw.com EPSTEIN BECKER, GREEN, P.C. 250 Park Ave. New York, NY 10177-1211 Telephone: 212.351.4500 Fax: 212.878.8600 s/Patrick F. Clark Patrick F. Clark GA Bar No. 170110 patrick.clark@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. One Ninety One Peachtree Tower 191 Peachtree St. NE, Suite 4800 Atlanta, GA 30303 Telephone: 404.881.1300 Fax: 404.870.1732 Attorneys for Defendants Travelport, LP and Galileo & Worldspan U.S. Legacy Pension Plan DEFENDANTS’ NOTICE OF COMPLIANCE Undersigned counsel for Defendants, pursuant to Local Rules 7.1(D), hereby certifies that this reply has been prepared utilizing a font and point selection approved by LR 5.1C. s/ John Houston Pope CERTIFICATE OF SERVICE I hereby certify that on June 8, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notification of such filing to counsel for plaintiff. s/ John Houston Pope Case 1:17-cv-00406-WSD Document 19 Filed 06/08/17 Page 2 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ANGELA HENDERSON WILLIAMSON, Plaintiff, v. TRAVELPORT, LP, ET AL., Defendants. ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:17-cv-00406-WSD DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Patrick F. Clark GA Bar No. 170110 patrick.clark@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. One Ninety One Peachtree Tower 191 Peachtree St. NE, Suite 4800 Atlanta, GA 30303 Telephone: 404.881.1300 Fax: 404.870.1732 -and- John Houston Pope (admitted pro hac vice) jhpope@ebglaw.com EPSTEIN BECKER, GREEN, P.C. 250 Park Avenue New York, NY 10177-1211 Telephone: 212.351.4500 Fax: 212.878.8600 Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 1 of 33 i TABLE OF CONTENTS Page TABLE OF CONTENTS .......................................................................................... i TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT .............................................................................. 1 PERTINENT ALLEGATIONS OF THE COMPLAINT...................................... 2 ARGUMENT ............................................................................................................ 8 I. THE AMENDED COMPLAINT IS A SHOTGUN PLEADING THAT VIOLATES THE PLEADING STANDARDS OF RULE 8(A) AND RULE 10(B)................................................................................................................. 8 II. WILLIAMSON LACKS ANY PLAUSIBLE DOCUMENT DISCLOSURE PENALTY CLAIM BECAUSE SHE TIMELY RECEIVED ALL DOCUMENTS TO WHICH SHE WAS ENTITLED UNDER THE STATUTE .......................................................................................................... 11 III. WILLIAMSON HAS NOT PLED A PLAUSIBLE BENEFITS CLAIM UNDER SECTION 502(A)(1)(B)........................................................................ 15 IV. WILLIAMSON MAY NOT BRING SUIT UNDER SECTION 502(A)(3) BECAUSE HER BENEFITS CLAIM UNDER SECTION 502(A)(1)(B), IF SUCCESSFUL, PROVIDES HER WITH COMPLETE RELIEF ............................... 18 V. WILLIAMSON ALSO LACKS ANY PLAUSIBLE BREACH OF FIDUCIARY DUTY CLAIM BECAUSE THE STATUTES OF LIMITATION AND REPOSE HAVE RUN AND, IN ANY EVENT, THE DUTY SHE ALLEGES IS NOT IMPOSED BY THE STATUTE ................................................ 20 A. Statute of Repose ..................................................................................... 20 B. No Duty................................................................................................... 22 Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 2 of 33 ii CONCLUSION ............................................................................................................. 25 DEFENDANTS’ NOTICE OF COMPLIANCE................................................................. 26 CERTIFICATE OF SERVICE .......................................................................................... 26 Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 3 of 33 iii TABLE OF AUTHORITIES Page(s) Cases Anderson v. District Bd. of Trustees of Cent. Fla. Comm. College, 77 F.3d 364 (11th Cir. 1996) ........................................................................................ 9 Bishop v. Lucent Technologies, Inc., 520 F.3d 516 (6th Cir. 2008) ...................................................................................... 22 Brown v. American Life Holdings, Inc., 190 F.3d 856 (8th Cir. 1999) ...................................................................................... 15 Brucks v. Coca Cola, Inc., 391 F. Supp. 2d 1193 (N.D. Ga. 2015) ............................................................... 12, 13 Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001) .................................................................................. 11 Capone v. Aetna Life Ins. Co., 592 F.3d 1189 (11th Cir. 2010) .................................................................................. 18 Christensen v. Qwest Pension Plan, 462 F.3d 913 (8th Cir. 2006) ................................................................................ 12, 17 CIGNA Corp. v. Amara, 563 U.S. 421 (2011)..................................................................................................... 17 Combs v. King, 764 F.2d 818 (11th Cir. 1985) .................................................................................... 23 Curtiss-Wright Corp. v. Schoonejongen, 514 US 73 (1995)......................................................................................................... 24 Doyle v. Liberty Life Assur. Co. of Boston, 542 F.3d 1352 (11th Cir. 2008) .................................................................................. 15 EEOC v. Catastrophe Mgmt. Solutions, 837 F.3d 1156 (11th Cir. 2016) ................................................................................ 8, 9 Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 4 of 33 iv Faircloth v. Lundy Pkg. Co., 91 F.3d 648 (4th Cir. 1996) ........................................................................................ 24 Ferrell v. Capitol City Bank & Co., 2013 U.S. Dist. LEXIS 153327 (N.D. Ga. Oct. 25, 2013)......................................... 19 Fisher v. Penn Traffic Co., 319 Fed. Appx. 34 (2d Cir. 2009) ............................................................................. 19 Fox v. Blue Cross & Blue Shield of Fla., Inc., 517 Fed. Appx. 754 (11th Cir. 2013) ........................................................................ 12 FTC v. AbbVie Products LLC, 713 F.3d 54 (11th Cir. 2013) ........................................................................................ 8 Fuller v. SunTrust Banks, Inc., 744 F.3d 685 (11th Cir. 2014) .................................................................................... 21 Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241 (11th Cir. 2008) .................................................................................. 16 Gonsalvez v. Celebrity Cruises, Inc., 750 F. 3d 1195 (11th Cir. 2013) ................................................................................. 22 Hartquist v. Emerson Elec. Co., 2016 U.S. Dist. LEXIS 44018 (M.D.N.C. Mar. 31, 2016) ........................................ 21 Hoffman v. Tharaldson Motels Inc. ESOP, 2010 U.S. Dist. LEXIS 17428 (D.N.D. Feb. 26, 2010) ............................................. 24 Hugler v. Sherrod, 2017 U.S. Dist. LEXIS 44643 (N.D. Ill. Mar. 27, 2017)........................................... 21 In re ING Groep, NV ERISA Litig., 749 F. Supp. 2d 1338 (N.D. Ga. 2010) ..................................................................... 24 Juan v. Minnesota Life Ins. Co., 2016 U.S. Dist. LEXIS 39040 (N.D. Ga. Mar. 25, 2016) ......................................... 12 Katz v. Comprehensive Plan of Group Ins., 197 F.3d 1084 (11th Cir. 1999) .................................................................................. 19 Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 5 of 33 v Kifafi v. Hilton Hotels Ret. Plan, 616 F. Supp. 2d 7 (D.D.C. 2009) ............................................................................... 14 Lee v. ING N. Am. Ins. Corp., 829 F.3d 1158 (9th Cir. 2016) .................................................................................... 13 Lowe v. Telesat Cablevision, Inc., 837 F. Supp. 410 (M.D. Fla. 1993) ............................................................................ 14 Magasrevy v. Retirement Comm., 2016 U.S. Dist. LEXIS 46026 (S.D. Fla. Apr. 5, 2016)............................................. 25 Mellot v. ChoicePoint, Inc., 561 F. Supp. 2d 1305 (N.D. Ga. 2007) ..................................................................... 24 Ogden v. Blue Bell Creameries USA, Inc., 348 F.3d 1284 (11th Cir. 2003) .................................................................................. 19 Olivo v. Elky, 646 F. Supp. 2d 95 (D.D.C. 2009) ............................................................................. 21 Prichard v. Metropolitan Life Ins. Co., 783 F.3d 1166 (9th Cir. 2015) .................................................................................... 17 Roarty v. AFA Protective Sys., Inc., 2008 U.S. Dist. LEXIS 75745 (E.D.N.Y. Sept. 20, 2008) ......................................... 12 Rosen v. Protective Life Ins. Co., 2010 U.S. Dist. LEXIS 50392 (N.D. Ga. May 20, 2010).......................................... 10 Shields v. Local 705, IBT, 188 F.3d 895 (7th Cir. 1999) ...................................................................................... 12 Simpson v. Sanderson Farms, Inc., 744 F.3d 702 (11th Cir. 2014) ...................................................................................... 8 Taylor v. NCR Corp., 2015 U.S. Dist. LEXIS 127768 (N.D. Ga. Sept. 23, 2015) ....................................... 25 Tello v. Dean Witter Reynolds, Inc., 494 F.3d 956 (11th Cir. 2007) .................................................................................... 22 Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 6 of 33 vi Varity Corp. v. Howe, 519 U.S. 489 (1996)......................................................................................... 18, 19, 20 Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015) .................................................................................... 9 White v. Coca-Cola Co., 542 F.3d 848 (11th Cir. 2008) .................................................................................... 16 Wilson v. Walgreen Income Protection Plan for Pharmacists & Registered Nurses, 2013 U.S. Dist. LEXIS 116685 (M.D. Fla. Feb. 28, 2013)........................................ 17 Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 7 of 33 Defendants Travelport, LP (“Travelport”) and Galileo & Worldspan U.S. Legacy Pension Plan (“the Legacy Plan” or “the Plan”) (collectively, “Defendants”), by and through their undersigned counsel and pursuant to Federal Rule of Civil Procedure 12(b)(6), hereby file this memorandum of law in support of their Motion to Dismiss Plaintiff’s Amended Complaint (“FAC”). Preliminary Statement Plaintiff Angela Henderson Williamson (“Williamson”) sues in an attempt to increase her monthly payment under the defined benefit pension plan established by her former employer. That company no longer exists, but its retiree obligations passed to the Legacy Plan and Travelport administers the Plan. Travelport patiently worked with her, on an informal basis, for nearly three years, in an effort to reconcile her figures and to explain the operation of the Plan. She continued to feel aggrieved and pursued a formal claim. Despite two thorough and soundly reasoned denials of her claim, she brings this federal court action, inflating her pique to the level of a putative class action. The air must be let out of this ballooning dispute. If she has a potentially viable claim for judicial review of the administrative determination, after application of the highly deferential abuse of discretion (or arbitrary and capricious) standard, she Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 8 of 33 2 should plead it clearly and properly. Her other claims, however, should be consigned to complete dismissal. Pertinent Allegations of the Complaint Williamson worked for various entities that ultimately became part of Travelport, a company created more than a decade after her employment ended. United Air Lines, Inc. (“UAL”) employed her, briefly as a stewardess then as a ticket reservation agent, from September 4, 1968 through June 30, 1988. (FAC, [ECF #16], ¶12) For her period of UAL employment, she participated in its pension plan. (Id.) Williamson’s employment from July 1, 1988 through May 6, 1997 passed through entities that reflected the then-current evolution in the travel booking business. On July 1, 1988, Williamson’s employment (together with the work she performed) transferred to Covia Corporation. (Id., ¶13) She participated in the Covia Pension Plan. (Id., ¶14) On January 1, 1993, Williamson’s employment moved to Apollo Travel Services Partners (“Apollo”); she became a participant in the Galileo International Employees Pension Plan. (Id., ¶15) (Apollo was part of Galileo International.) She terminated her employment with Apollo on May 6, 1997. (Id., ¶21) Subsequently, the entities she worked for, together with other entities, were acquired by the former parent company of what is now Travelport. Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 9 of 33 3 Additional ownership changes and transactions culminated in Travelport becoming a public company in 2014.1 The pension plan of her former employers merged with other pension plans to form the Legacy Plan. (Id., ¶16) Williamson earned a pension from the defined benefit pension plans of her employers during her nearly thirty years of employment. (Id., ¶21) As noted above, UAL packaged a portion of her pension benefit, for her service through 1985, into an annuity, as ERISA permits. (Id., ¶66 & Ex. 7) The annuity defines the amount she receives from that period of UAL service. (Id.) The remaining benefit is calculated based on service and “Final Average Compensation,” a formulaic method of giving a participant the benefit of the highest earning months in a set period of time before retirement. (Id.) Under the Legacy Plan, Final Average Compensation calculates the monthly average from the highest earning sixty months out of the last one-hundred twenty months of service. (Id., ¶27 & Ex. 1, p.9, §2.27) Two years after Williamson left Apollo, she requested and received a letter discussing her retirement benefit. (Id., ¶¶22-23) It showed how much she could 1 Plaintiff recites her understanding of these corporate transactions, which is not complete, in paragraph 20 of the Complaint. The full details of the concerning these transactions are not material to this Motion, however, and Defendants will not say further about them herein, but stand ready to provide the Court such information as it may require. Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 10 of 33 4 expect to receive at age 65 (then approximately 12 years away) and – importantly – it provided a worksheet showing exactly how the plan calculated her benefit, listing the compensation figure that the plan used, the service calculation (which revealed approximately 5.3 more years of “vesting service” than “benefit service”). (Id., Ex. 7) The Complaint labels the letter an “Early Retirement Letter” (id., ¶¶23-24), but it mentions retirement before age 65 only fleetingly, in the second to last paragraph. (Id., Ex. 7) Rather, the letter clearly conveys that it describes the benefit Williamson could expect at the plan’s normal retirement date (age 65). ERISA requires the communication of this type of information. See 29 U.S.C. § 1025. It serves the function of apprising the participant of his or her future benefit and – again, importantly – it affords an opportunity to correct errors before matters become stale. Williamson, however, did nothing about her pension benefit until her 65th birthday was nigh. (Id., ¶25) She then began to aggressively question the calculation of it, certain that she was entitled to a higher pension benefit than she had been told in 1999 would be paid in 2012. (Id., ¶¶25-87) Travelport’s benefit group patiently cooperated with Williamson’s counsel, providing plan documents and discussing the calculation they had on file. (Id.) Williamson would have none of it. She demanded, in essence, detailed payroll records for Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 11 of 33 5 the ten years before she left covered employment with Apollo, the period from 1987 through 1997. (Id., ¶43 & Exs. 13 & 16) Travelport refused, but agreed to consider whatever records she might have of her own that would show she was entitled to a higher benefit. (Id., ¶51 & Exs. 17 & 19) Williamson produced some records that led to a minor upward revision in her benefit. (Id., ¶54 & Ex. 21) As the allegations of the Amended Complaint and the exhibits accompanying it demonstrate,2 Williamson possesses great acrimony about how she was treated by Travelport, despite the fact that her interactions with the company – for which she had never worked – produced positive results for her. An informal discussion of Williamson’s benefit calculation consumed nearly than three years, from 2012 to 2015. One Travelport benefits professional, Jennifer Lansing-McGrath, dedicated considerable time and energy to verifying every aspect of Williamson’s benefit calculation, ultimately agreeing, based on additional information provided by Williamson, that a small adjustment should be made. Williamson delayed commencement of the payment of her benefit, against the repeated suggestion by Travelport personnel that she file for it, because she apparently did not trust that she could accept payment without 2 Plaintiff did not refile the exhibits (which are voluminous) with her Amended Complaint. They appear in the court file as part of ECF #4. Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 12 of 33 6 prejudicing her right to contest the accuracy of the amount of her benefit. The great bulk of the allegations in the Complaint discuss, in granular detail, Williamson’s apparent dismay over the course of these informal discussions. Finally, on August 8, 2015, Williamson initiated the claims procedure under the Legacy Plan.3 (FAC, ¶97 & Ex. 28) A person designated by the Employee Benefits Committee (“the EBC” of “the Committee”) investigated the claim and rendered a determination denying it on December 7, 2015. (Id., ¶99 & Ex. 30) Williamson exercised her right to appeal. (Id., ¶101 & Ex. 31) The EBC denied the appeal in a determination letter dated August 2, 2016. (Id., ¶104 & Ex. 33) This suit followed. Under the Legacy Plan, the Company assumes responsibility for the administration of the Plan “except to the extent such responsibilities are delegated to the Committee.” (FAC, Ex. 1, p.55, § 17.01) “The Committee shall have the discretionary authority to determine eligibility for Plan benefits and to construe and interpret the terms of the Plan, including the making of factual determinations, and the decision thereon of the Committee shall be final and 3 The claims procedure of the Legacy Plan provides for the Committee to designate a person or entity to conduct the first-level review of a claim. (FAC, Ex. 1, p.58, § 17.12(a)) On appeal, the Committee itself, or its designee, conducts a second- level review, based on all previously submitted materials and any materials submitted on appeal for the first time. (Id., p. 59, § 17.12(c)) Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 13 of 33 7 conclusive and binding upon all persons to the extent permitted by law.” (Id.) This conclusiveness extends to “the amount and form of benefits payable under the Plan[.]” (Id., p.56, § 17.05) The Plan squarely places the burden on “[p]articipants and other persons entitled to benefits under the Plan … [to] furnish the Committee with such evidence, data, or information as the Committee considers desirable to carry out the terms of the Plan.” (Id., p.56, § 17.04) The starting place for establishing the facts pertinent to any claim lies in “[t]he records of such Employers and Affiliated Employers as to an Employee’s or Participant’s period of employment, termination of employment (and reason therefor), leave of absence, reemployment and compensation,” which shall “be conclusive on all persons, unless determined to be incorrect.” (Id.) This last task also falls to the Committee’s discretion: “A misstatement or other mistake of fact will be corrected when it becomes known, and the Committee will make such adjustment required thereof as it considers equitable and practicable.” (Id., p.56, § 17.05 [emphasis added]) Although the Legacy Plan governs on these administration issues, the prior plans contain like terms. (See FAC, Ex. 2, UAL Plan, pp.12-1 to 12-3, Section 12; Id., Ex. 3, Covia Plan, pp.49-53, Art. XII; Id., Ex. 4, Galileo Plan, pp. 43-46, Art. XVII) Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 14 of 33 8 Argument On a motion to dismiss, pleadings undergo a familiar evaluation. Specifically, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” The plausibility standard is met only where the facts alleged enable “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” A plaintiff cannot rely on “naked assertion[s] devoid of further factual enhancement.” Rather, a complaint must present sufficient factual matter, accepted as true, to “raise a right to relief above the speculative level.” Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 708 (11th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). The well-pleaded facts in a complaint will be accepted as true, for purposes of the motion, but legal conclusions will not be treated as such. EEOC v. Catastrophe Mgmt. Solutions, 837 F.3d 1156, 1160 (11th Cir. 2016). Further, “[a]t the motion-to-dismiss stage, [the Court] consider[s] the facts derived from a complaint's exhibits as part of the plaintiff's basic factual averments.” FTC v. AbbVie Products LLC, 713 F.3d 54, 63 (11th Cir. 2013). I. THE AMENDED COMPLAINT IS A SHOTGUN PLEADING THAT VIOLATES THE PLEADING STANDARDS OF RULE 8(A) AND RULE 10(B) In the motion to dismiss filed against the initial Complaint, Defendants raised the “shotgun pleading” issue. “Experience teaches that, unless cases are Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 15 of 33 9 pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court’s docket becomes unmanageable, the litigants suffer, and society loses confidence in the court’s ability to administer justice.” Anderson v. District Bd. of Trustees of Cent. Fla. Comm. College, 77 F.3d 364, 367 (11th Cir. 1996). Characteristically, a “shotgun pleading” leaves it “virtually impossible to know which allegations of fact [in a complaint] are intended to support which claim(s) for relief.” Id. at 366. The Eleventh Circuit recently “described two relevant traits, “the mortal sin of realleging all preceding counts” and “the venial sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.” Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313, 1321 (11th Cir. 2015). “The unifying characteristic of all types of shotgun pleadings is that they fail to one degree or another, and in one way or another, to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.” Id. at 1223. They “fail to give notice because the relevant information is difficult to discern. Essentially, they create a legal version of ‘Where’s Waldo?’” Hon. Emmet Ripley Cox, Thirty-Two Years On The Federal Bench: Some Things I Have Learned, 66 FLA. L. REV. 1685, 1691 (2014). Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 16 of 33 10 The Amended Complaint “obscures the vital issues to be litigated.” Rosen v. Protective Life Ins. Co., 2010 U.S. Dist. LEXIS 50392, at *15 (N.D. Ga. May 20, 2010) (Duffey, J.) Overwhelmingly, it focuses on a large number of allegations either blanketedly incorporated (FAC, ¶¶ 134, 138), or described by Plaintiff herself as merely “context” (id., ¶ 152) for her claims. Much of the Amended Complaint rambles on about immaterial facts – such minute and irrelevant details as the time that Travelport’s corporate counsel canceled a telephone conference with Plaintiff’s counsel in 2012 on short notice4 (FAC, ¶¶ 37-38) – leading to counts that blindly incorporate all of the factual allegations of the Amended Complaint, relevant and irrelevant, material and immaterial, without identifying which facts actually support the claim. The Amended Complaint thus still offends basic pleading principles. This Motion, then, proceeds as best it can, in light of the shotgun pleading before the Court. Certainly, any claims that may survive the motion should be properly repleaded consistent with Rules 8(a) and 10(b). “Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice. The time a court spends managing litigation framed by shotgun pleadings should be 4 Not that the reason bears on this matter anymore than the fact of the cancellation itself, but Travelport’s counsel dropped out of that call because his wife went into labor and he had to attend to her and the birth of their daughter. Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 17 of 33 11 devoted to other cases waiting to be heard. ‘[W]ast[ing] scarce judicial and parajudicial resources ... impedes the due administration of justice’ and, in a very real sense, amounts to obstruction of justice.” Byrne v. Nezhat, 261 F.3d 1075, 1131 (11th Cir. 2001) (quoting United States v. Silverman, 745 F.2d 1386,1395 (11th Cir.1984)) (alterations and ellipses in original). II. WILLIAMSON LACKS ANY PLAUSIBLE DOCUMENT DISCLOSURE PENALTY CLAIM BECAUSE SHE TIMELY RECEIVED ALL DOCUMENTS TO WHICH SHE WAS ENTITLED UNDER THE STATUTE Williamson brings one claim only on her own behalf, seeking the imposition of a statutory penalty for an alleged failure to provide documents to her. The Amended Complaint improved slightly on vital specifics, but Williamson still obfuscates the nature of the claim. She points to multiple pieces of correspondence and several alleged sources of law without divulging the real heart of her claim when did she ask for something to which she misrepresented that she did not receive? This information remains clouded, Defendants submit, because clarity would reveal that Williamson has no viable claim. A statutory disclosure penalty claim may be prosecuted only under narrow circumstances dictated by the law itself. First, Plaintiff, as a participant or beneficiary, must tender a written request for documents to the plan Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 18 of 33 12 administrator.5 See, e.g., 29 U.S.C. § 1024(b)(4) (disclosure obligation arises “upon written request of any participant or beneficiary”); Juan v. Minnesota Life Ins. Co., 2016 U.S. Dist. LEXIS 39040, at *20 n.2 (N.D. Ga. Mar. 25, 2016) (Story, J.) (oral request over telephone insufficient). Second, the documents must fall within a category covered by the disclosure obligations to which the statutory penalty attaches, which, in the present case, would be the current Plan, the SPD and other instruments upon which the plan is founded. See Fox v. Blue Cross & Blue Shield of Fla., Inc., 517 Fed. Appx. 754, 757 (11th Cir. 2013) (unreported); Brucks v. Coca Cola, Inc., 391 F. Supp. 2d 1193, 1211 (N.D. Ga. 2015) (Duffey, J.). “[O]utdated plan descriptions do not fall into any of the categories of documents a plan administrator must provide to plan participants.” Shields v. Local 705, IBT, 188 F.3d 895, 903 (7th Cir. 1999); Roarty v. AFA Protective Sys., Inc., 2008 U.S. Dist. LEXIS 75745, at *23-24 (E.D.N.Y. Sept. 20, 2008). If the documents at issue do not fit the description of the statutorily defined class, no statutory penalty may be sought or obtained. The Amended Complaint clearly reflects, in the exhibits, prompt compliance with Plaintiff’s requests for current plan documents. Indeed, Exhibits 5 Whether any of the instances when Plaintiff’s counsel used email to request documents (see, e.g., FAC, Ex. 13) triggered the statute’s coverage remains an open question. See Christensen v. Qwest Pension Plan, 462 F.3d 913, 919 (8th Cir. 2006). Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 19 of 33 13 8 and 10 show that on February 17, 2012, Plaintiff’s counsel was provided with PDF copies of the current Plan documents, less than thirty days after an oral request for those documents. (FAC., ¶¶28-33 & Exs. 8, 10) The FAC identifies five written requests “for Plan documents and other documents under which the Plan is administered” (FAC, ¶ 145), attached to the original complaint as Exhibits 13, 16, 18, 20, and 22, that form the basis for the claim. None of these requests involve documents that fall within the coverage of the penalty provision. All five pieces of correspondence ask for calculations of Williamson’s pension benefit and the underlying compensation data from her employment in the 1980s and 1990s. As pled in the Amended Complaint, the claim purports to rest on two other sources of alleged disclosure obligations to support a penalty based on these requests. One is the Department of Labor’s regulations regarding claim procedures (29 C.F.R. § 2560.503-1). This Court rejected the application of the penalty to alleged violations of these regulations in Brucks.6 Brucks, 370 F. Supp. 6 Every Court of Appeals to consider the issue thus far has rejected imposing statutory penalties for a violation of the DOL regulations. See, e.g., Lee v. ING N. Am. Ins. Corp., 829 F.3d 1158, 1161-62 (9th Cir. 2016) (joining seven other circuits that reject application of the penalty to violations of the DOL’s regulations). Moreover, those regulations apply only to the formal claims procedures, which Williamson did not initiate until 2015. Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 20 of 33 14 2d at 1311-15. The Amended Complaint also relies upon ERISA Section 209(a), 29 U.S.C. § 1059(a). This provision imposes a duty on employers to turn over documents to plan administrators; it confers no rights on participants or beneficiaries, and no private right of action exists to enforce Section 1159(a), if and when it applies. See, e.g., Kifafi v. Hilton Hotels Ret. Plan, 616 F. Supp. 2d 7, 38 (D.D.C. 2009); Colin v. Marconi Commerce Sys. Employees’ Ret. Plan, 335 F. Supp. 2d 590, 606 (M.D.N.C. 2004); Lowe v. Telesat Cablevision, Inc., 837 F. Supp. 410, 412 (M.D. Fla. 1993). Neither the regulations nor Section 209(a) are mentioned in 29 U.S.C. § 1132(c), the penalty provision, and therefore violations may not properly be part of any penalty claim. Although the letters identified in paragraph 145 did not expressly ask for historical plan documents, Williamson plainly wants to rest her claim on them as well. Once the regulations are stripped away as a source for this assertion, no statutory support for insisting on such documents (which ultimately were provided) can be found. While the Amended Complaint uses the phrase “documents ‘under which the Plan is administered’ pursuant to 29 U.S.C. § 1024(b)(4)” (FAC, ¶ 147), using quotation marks to suggest that it states the statutory language, the statute actually refers to “other instruments under which the plan is established or operated.” “In common legal parlance, that means Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 21 of 33 15 instruments which govern the plan, rather than those which simply evidence its operation.” Brown v. American Life Holdings, Inc., 190 F.3d 856, 861 (8th Cir. 1999). None of the historical documents govern the Legacy Plan; they simply assist in its administration regarding particular individuals who earned credited service under prior plans. This claim, then, should be dismissed with prejudice. The Complaint acknowledges that Travelport timely provided the current Plan documents when they were requested. This demonstrates compliance with the statutory requirement, obviating any exposure to statutory penalties. III. WILLIAMSON HAS NOT PLED A PLAUSIBLE BENEFITS CLAIM UNDER SECTION 502(A)(1)(B) Two of Williamson’s individual claims, and two of her putative class claims, seek benefits, either past or future. She contends her benefit has not been calculated correctly. These claims rest on ERISA Section 502(a)(1)(B). They are deficient, though, because they do not plead a minimally sufficient basis to obtain judicial relief. Travelport’s Plan expressly confers discretion on the EBC to construe the Plan’s terms and resolve the facts involved in a claim. (FAC, Ex. 1, p.56, § 17.05) With this discretion comes a more deferential standard of review. See, e.g., Doyle v. Liberty Life Assur. Co. of Boston, 542 F.3d 1352, 1360 (11th Cir. 2008). This Court Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 22 of 33 16 acts in a review capacity on these claims and may overturn a determination by the EBC only if it finds the determination constitutes an abuse of discretion. See, e.g., White v. Coca-Cola Co., 542 F.3d 848, 854-60 (11th Cir. 2008). Under this standard, “the function of the court is to determine whether there was a reasonable basis for the decision, based upon the facts as known to the administrator at the time the decision was made.” Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241, 1246 (11th Cir. 2008). Plaintiff pleads in a conclusory fashion that the determination was either de novo wrong or an abuse of discretion. (FAC, ¶ 140). She does not plead any facts suggesting how the de novo review standard might apply. She does not plead any facts to support the legal conclusion that an abuse of discretion occurred. The Amended Complaint incorporates, as Exhibit 33, the Committee’s detailed determination. It explains how the Committee concluded, for example, that plan documents dictate that no service credit accrued to Williamson during a 54-month period she worked under the Covia Plan. No allegation of the Complaint explains, or even alleges in a conclusory fashion (which also would be insufficient), that the Committee’s interpretation cannot constitute a reasonable interpretation of the Plan documents. Without a plausible basis to conclude that Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 23 of 33 17 the EBC abused its discretion, this Court cannot grant relief under Section 502(a)(1)(B) and therefore the claims must be dismissed. Plaintiff also alleges that she should be granted an additional year of service credit that she admits she had not earned under the terms of the Plan during her employment (it was expressly excluded then) because it allegedly was “restored” by language in the Plan’s 2009 Summary Plan Description (“SPD”). (FAC, ¶¶ 73-76) While the EBC rejected her contention that the SPD contained such language, she cannot rest her claim on language in the SPD in any event because the SPD does not define the terms of the Plan. (Ex. 33, pp. 2-3) “[T]he summary documents, important as they are, provide communication with beneficiaries about the plan, but that their statements do not themselves constitute the terms of the plan for purposes of § 502(a)(1)(B).” CIGNA Corp. v. Amara, 563 U.S. 421, 438 (2011). The SPD, even if it supported her claim, cannot override and amend the terms of the Plan itself to confer the right that Plaintiff seeks. See, e.g., Prichard v. Metropolitan Life Ins. Co., 783 F.3d 1166, 1171 (9th Cir. 2015); Wilson v. Walgreen Income Protection Plan for Pharmacists & Registered Nurses, 2013 U.S. Dist. LEXIS 116685, at *31-32 (M.D. Fla. Feb. 28, 2013) (recognizing impact of Amara on Eleventh Circuit case law). Plaintiff identifies no Plan term that confers the service credit she claims. The EBC expressly Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 24 of 33 18 rejected Plaintiff’s contention and she does not allege any basis to conclude that determination constituted an abuse of discretion. In short, the Complaint provides no plausible basis to conclude that the EBC acted outside the scope of its conferred discretion to construe the Plan terms when it reached the conclusion that Williamson was not entitled to more service credit or a higher average compensation. IV. WILLIAMSON MAY NOT BRING SUIT UNDER SECTION 502(A)(3) BECAUSE HER BENEFITS CLAIM UNDER SECTION 502(A)(1)(B), IF SUCCESSFUL, PROVIDES HER WITH COMPLETE RELIEF Plaintiff’s breach of fiduciary duty claim, insofar she seeks relief for herself, must proceed through Section 502(a)(3), the catch-all enforcement provision of ERISA. She pleads as much. The law in this Circuit, however, unambiguously bars her from using this provision to supplant the benefit claim she brings under Section 502(a)(1)(B). Under Eleventh Circuit law, drawn from the Supreme Court’s opinion in Varity Corp. v. Howe, 519 U.S. 489 (1996), a plaintiff “is precluded from bringing a breach of fiduciary duty claim in conjunction with a wrongful denial of benefits claim.” Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1199 (11th Cir. 2010). Whether she will prevail on that claim for benefits does not determine the availability of Section 502(a)(3) relief; “the availability of an adequate remedy under the law for Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 25 of 33 19 Varity purposes, does not mean, nor does it guarantee, an adjudication in one’s favor.” Katz v. Comprehensive Plan of Group Ins., 197 F.3d 1084, 1089 (11th Cir. 1999). This case fits squarely within that rule. Plaintiff alleges an injury (lower pension benefits than she believes she’s earned) that “would be best addressed by a Section 502(a)(1)(B) claim for recovery of benefits[.]” Ogden v. Blue Bell Creameries USA, Inc., 348 F.3d 1284, 1288 (11th Cir. 2003). “Thus, [ERISA Section 502(a)(1)(b)] provides an adequate remedy in this case and reliance on [Section 502(a)(3)] is improper.” Ferrell v. Capitol City Bank & Co., 2013 U.S. Dist. LEXIS 153327, at * 11 (N.D. Ga. Oct. 25, 2013) (Story, J.). The breach of fiduciary duty claim(s) must be dismissed for this reason alone. 7 7 Plaintiff pleads her putative class claim for breach of fiduciary duty as proceeding under Section 502(a)(2). That simply is wrong. Claims under subsection (a)(2) are asserted on behalf of a plan itself. See, e.g., Ferrell, 2013 U.S. Dist. LEXIS 153327, at *11. The putative class sues on behalf of its members, which constitute a group of participants and beneficiaries of the Plan, to obtain payment of greater benefits, not for an alleged injury to the Plan. The putative class also must use Section 502(a)(1)(B) or (a)(3), as appropriate. Id. at *12. Notably, Williamson sues a defined benefit pension plan here, so special rules that permit use of 502(a)(2) for defined contribution plans do not apply. See, e.g., Fisher v. Penn Traffic Co., 319 Fed. Appx. 34, 35 (2d Cir. 2009) (summary order). Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 26 of 33 20 V. WILLIAMSON ALSO LACKS ANY PLAUSIBLE BREACH OF FIDUCIARY DUTY CLAIM BECAUSE THE STATUTES OF LIMITATION AND REPOSE HAVE RUN AND, IN ANY EVENT, THE DUTY SHE ALLEGES IS NOT IMPOSED BY THE STATUTE Assuming the Court entertains the breach of fiduciary claim despite the Varity rule, the claim also would be subject to dismissal because the statutes of limitation and repose bar its assertion at this late date and, in any event, the duty that Plaintiff maintains was breached does not exist under ERISA. A. Statute of Repose Plaintiff’s frames her breach of fiduciary duty claim as a failure to warn her “the Plan and/or its administrator/recordkeepers/fiduciaries were not maintaining and/or providing the types of underlying records it would need to substantiate Plaintiff’s key inputs in the pension Plan formula” and that therefore she “needed to keep/maintain and/or provide the types of underlying records the Plan would need to substantiate” these inputs. (FAC, ¶¶117-118, 155) This duty to “warn” could be of value only if the warnings were issued during Williamson’s period of employment, when she could maintain the records herself. In other words, if this duty existed, the relevant fiduciary would had to have told Williamson of her need to retain her own records between 1987 and 1997, the last ten years of her employment at a Travelport predecessor company. Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 27 of 33 21 ERISA sets forth particular limitations periods for breach of fiduciary duty claims. An action must be brought within the earlier of (a) three years from the date on which the participant acquires actual knowledge of the breach (statute of limitations) or (b) six years from the date of the act that constitutes the breach or, in the case of an omission, the last date on which it could have been cured (statute of repose). 29 U.S.C § 1113; see, e.g., Fuller v. SunTrust Banks, Inc., 744 F.3d 685, 695 (11th Cir. 2014). Under the statute of repose, which provides the greater amount of time, the last date on which the relevant fiduciary could have cured the alleged omission would have fallen in that same 1987 to 1997 period, because the time for “cure” of an alleged omission to provide information is essentially coterminous with the omission itself. See, e.g., Olivo v. Elky, 646 F. Supp. 2d 95, 102-03 (D.D.C. 2009); accord Hartquist v. Emerson Elec. Co., 2016 U.S. Dist. LEXIS 44018, at *30-32 (M.D.N.C. Mar. 31, 2016). Olivo analyzes a closely analogous situation, where the administrator had a duty to provide information to a potential participant. The court held that duty to warn came to an end after the information would no longer be useful. A contrary rule imposes a potentially unending liability on a fiduciary (contrary to the very notion of a statute of repose), 646 F. Supp. 2d at 102, and “could well negate Section 1113 altogether.” Hugler v. Sherrod, 2017 U.S. Dist. LEXIS 44643, at *15 (N.D. Ill. Mar. Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 28 of 33 22 27, 2017). Regardless of when precisely within the period the court might set the date or dates or omission, it still would be at least twenty years before this action was commenced. The statute of repose thereby bars any claim.8 B. No Duty Additionally, the purported duty does not exist within ERISA. The underlying assumption of Plaintiff’s theory of duty is that ERISA allocates a responsibility to retain (indefinitely) underlying payroll and similar records to a plan fiduciary, unless the fiduciary warns participants otherwise, rather than placing the responsibility on participants to review their benefit statements and object to errors. The cases to which Plaintiff cites in her Amended Complaint do not support the imposition of this duty. One, in fact, presumes that, even years later, participants would have, or would have access to, exactly the type of information that Williamson complains she did not realize she should preserve. ERISA contemplates a different, shared responsibility arrangement. Employers provide plans with payroll information. 29 U.S.C. § 1059(a). (The 8 “A Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate ‘if it is apparent from the face of the complaint that the claim is time-barred.’” Gonsalvez v. Celebrity Cruises, Inc., 750 F. 3d 1195, 1197 (11th Cir. 2013) (quoting La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.2004)). The same rule applies for a statute of repose. See, e.g., Tello v. Dean Witter Reynolds, Inc., 494 F.3d 956, 977-78 (11th Cir. 2007). The pleading before the Court manifests the time bar quite clearly. The Amended Complaint therefore does not plausibly state a cause of action for breach of fiduciary duty. See Bishop v. Lucent Technologies, Inc., 520 F.3d 516, 522 (6th Cir. 2008). Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 29 of 33 23 Legacy Plan treats this data as conclusive unless proved otherwise by a participant. (FAC, Ex. 1, p.56, § 17.04)) Plans prepare benefit statements and distribute them periodically to participants. 29 U.S.C. § 1025(a). It is then up to the participants to read their benefit statements and ask questions, or object, if they think the statements do not correctly reflect their benefit entitlements. Congress apparently intended (although did not mandate) that employers would maintain the underlying payroll records for around ten years, after which employees would be responsible for producing any evidence to contradict the calculations set forth by a plan. See Combs v. King, 764 F.2d 818, 823 (11th Cir. 1985) (quoting H.R. Rep. No. 93-807, 93rd Cong., 2d Sess., reprinted in 1974 U.S. Code & Cong. & Admin. News 439, 4731-32). Williamson apparently did not engage in this final step, either during her employment or at any time within the next ten years after it ended. The post- employment benefit statement she received in 1999 (FAC, Ex. 7) detailed the method of calculating her benefit and the underlying numbers used to reach that calculation. Had she raised her objections then, rather than waiting more than a dozen more years, she might have had an opportunity to tap into the type of raw payroll data she now wants. Timely action on Williamson’s part should have Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 30 of 33 24 given her the opportunity to review at least some of the records she thinks supports a higher pension benefit payment for her. Regardless of Williamson’s lack of diligence in policing her own benefits statement, the specific requirements for information disclosure and record retention in ERISA foreclose the notion of implying a greater duty under the fiduciary responsibility provisions of ERISA. See, e.g., Faircloth v. Lundy Pkg. Co., 91 F.3d 648, 656-58 (4th Cir. 1996); Hoffman v. Tharaldson Motels Inc. ESOP, 2010 U.S. Dist. LEXIS 17428, *16 (D.N.D. Feb. 26, 2010); In re ING Groep, NV ERISA Litig., 749 F. Supp. 2d 1338, 1350 (N.D. Ga. 2010) (Carnes, J.); Mellot v. ChoicePoint, Inc., 561 F. Supp. 2d 1305, 1318 (N.D. Ga. 2007) (Camp, J.). As the Supreme Court has observed, the reporting and disclosure requirements “may not be a foolproof informational scheme, although it is quite thorough. Either way, it is the scheme that Congress devised. And we do not think Congress intended it to be supplemented by a faraway provision in another part of the statute[.]” Curtiss- Wright Corp. v. Schoonejongen, 514 US 73, 84 (1995). Accordingly, Plaintiff may not bring an action, on behalf of herself or any putative class, based on the purported fiduciary duty to “warn” participants to retain payroll and service records. Even if not time barred, then, dismissal of the breach of fiduciary duty claims would be compelled on the merits. Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 31 of 33 25 Conclusion For the foregoing reasons, the Court should grant Defendants’ motion and enter an order dismissing the Amended Complaint (with prejudice as to Counts III through IX, with the relief requested in Count V allowed under Counts I & II, if successfully repleaded, and without prejudice as to Counts I & II9) and for such other relief as is just and proper under the circumstances. Respectfully submitted this 8th day of June 2017. s/John Houston Pope John Houston Pope (admitted pro hac vice) jhpope@ebglaw.com EPSTEIN BECKER, GREEN, P.C. 250 Park Ave. New York, NY 10177-1211 Telephone: 212.351.4500 Fax: 212.878.8600 s/Patrick F. Clark Patrick F. Clark GA Bar No. 170110 patrick.clark@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. One Ninety One Peachtree Tower 191 Peachtree St. NE, Suite 4800 Atlanta, GA 30303 Telephone: 404.881.1300 Fax: 404.870.1732 Attorneys for Defendants Travelport, LP and Galileo & Worldspan U.S. Legacy Pension Plan 9 The Amended Complaint contains two counts (individual, Count V, and putative class, Count IX) purporting to seek attorney’s fees. Fees, however, are only a potential remedy, not a distinct claim. See, e.g., Magasrevy v. Retirement Comm., 2016 U.S. Dist. LEXIS 46026, at *18 (S.D. Fla. Apr. 5, 2016). If Plaintiff does not prevail on another, substantive count, she cannot obtain a fee award under ERISA. See Taylor v. NCR Corp., 2015 U.S. Dist. LEXIS 127768, at *20 (N.D. Ga. Sept. 23, 2015) (Duffey, J.). Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 32 of 33 26 DEFENDANTS’ NOTICE OF COMPLIANCE Undersigned counsel for Defendants, pursuant to Local Rules 7.1(D), hereby certifies that this reply has been prepared utilizing a font and point selection approved by LR 5.1C. s/ John Houston Pope CERTIFICATE OF SERVICE I hereby certify that on June 8, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notification of such filing to counsel for plaintiff. s/ John Houston Pope Case 1:17-cv-00406-WSD Document 19-1 Filed 06/08/17 Page 33 of 33