¶¶ 156-57. As subsections of the same IRC § 401, ERISA does not create an individual cause of action for these provisions either. Case 4:16-cv-00470-RM Document 52 Filed 05/05/17 Page 17 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 and the joint and survivor annuities, recently averaging less than 2%.”

Likewise, the Code provides that the annuity requirement does not apply if a plan is an individual account plan that “provides that the participant‟s nonforfeitable accrued benefit . . . is payable in full, on the death of the participant, to the participant‟s surviving spouse (or, if there is no surviving spouse . . . to a designated beneficiary).” 26 U.S.C. § 401(a)(11)(B)(iii)(I). Again, if DOMA is constitutional, then a participant in a same-sex marriage is a participant with no surviving spouse.

Participants have individual accounts within the Plan to which their contributions are allocated. Id.; 26 U.S.C. § 401(k). The Plan is “participant directed,” meaning that participants decide how to allocate their contributions and existing account balances among investment options offered by the Plan, which include mutual funds along with other investment vehicles.

For example, it covers all types of “employee fringe benefits” (see IRS Publication 15-B, listing, among others, employee health plans, employee education assistance, employer-provided Health Saving accounts, commuting benefits, and Group Term Life insurance under IRS §79). Of course, it also covers all qualified retirement plans under IRC §401. Even court was skeptical, suggesting that there needs to be something more than just a deduction.

Ins. Co., 256 F.3d 1006, 1009 (10th Cir. 2001). 18 26 U.S.C. § 401(a) (2014) (trust forming part of a “pension . . . plan of an employer for the exclusive benefit of his employees . . . shall constitute a qualified trust”) (emphasis added); 26 C.F.R. §§ 1.401- 1(a)(2) and (b) (2014).

Employees who choose to participate in 401(k) plans make contributions to the plans from their salaries or wages. See generally Tussey, 2012 WL 1113291, at *1; Tussey, 746 F.3d at 330-31; 26 U.S.C. § 401(k). Employers often make additional contributions on participants’ behalves, and together those contributions are allocated to individual participants’ accounts within the plans.

(Exh. 1, Bates No. 00486.) Therefore, even if the Plaintiffs had reached age 65, they would not have been entitled to receive their pension benefits, other that certain minimum required distributions described in 26 U.S.C. § 401(a)(9) and Article XIV of the Plan, until they actually left Finkl’s employment or the Plan terminated.

. 5 Because such plans qualify for special tax treatment under 26 U.S.C. §401(k), they often are called 401(k) plans. 6 A 1% difference in fees over 35 years reduces a participant’s account balance at retirement by 28%. U.S. Dep’t of Labor, A Look at 401(k) Plan Fees 1–2 (Aug. 2013), http://www.dol.gov/ebsa/pdf/401kfeesemployee.pdf.

For certain highly-compensated employees, Fidelity’s profit- sharing and matching contributions may be limited by tax laws. See, e.g., 26 U.S.C. §§ 401(m)(2), 415(c)(1)(A). 10 See 2007 FMR LLC Profit Sharing Plan Form 5500 (Oct. 15, 2008) (“2007 Form 5500”) at FID-LB-MTD2- 00015, Hemani Decl.

Notably, if the Compensation regulations do prohibit contributions to recruiting, admissions, and financial aid employees’ 401(k) plans, the regulations could upset compensation for all school employees and senior management because federal tax law generally prohibits employers from contributing to some employees’ 401(k) plans and not others. See 26 U.S.C. § 401(k)(3)(A). There is simply no reason to suspect Congress intended that the HEA preclude schools from utilizing 401(k) retirement plans.