journal of pension planning & compliance - Kluwer Law International

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Editor-in-Chief BRUCE J. MCNEIL Editorial Advisory Board PETER J. ALLMAN Willkie Farr & Gallagher New York, NY MARK P. ALTIERI Kent State University Kent, OH MICHAEL J. CANAN Gray, Harris & Robinson, PA Orlando, FL THE HONORABLE JOHN N. ERLENBORN Issue, MD CHARLES F. FELDMAN Gibson, Dunn & Crutcher New York, NY STEVEN J. FRIEDMAN Littler Mendelson New York, NY IRA M. GOLUB Proskauer Rose LLP New York, NY GWEN THAYER HANDELMAN Scholar in Residence Nova Southeastern University Shepard Broad Law Center Fort Lauderdale, FL LAWRENCE J. HASS Paul, Hastings, Janofsky & Walker Washington, DC LEONARD S. HIRSH Ernst & Young New York, NY STEPHEN J. KRASS Krass & Lund, PC New York, NY ALVIN D. LURIE, PC New Rochelle, NY KENT A. MASON Davis & Harman, LLP Washington, DC LOUIS T. MAZAWEY Groom Law Group Washington, DC DAVID A. MUSTONE Hunton & Williams McLean, VA RICHARD A. NAEGELE Wickens, Herzer, Panza, Cook & Batista Lorain, OH C. FREDERICK OLIPHANT III Miller & Chevalier, Chartered Washington, DC PAMELA D. PERDUE Summers, Compton, Wells & Hamburg St. Louis, MO PATRICK J. PURCELL Congressional Research Service Library of Congress Washington, DC STEVEN J. SACHER Jones Day Washington, DC WILLIAM A. SCHMIDT Kirkpatrick & Lockhart LLP Washington, DC MAX J. SCHWARTZ Sullivan & Cromwell New York, NY CHARLES W. SHERMAN, JR. Groom Law Group Washington, DC JOHN L. UTZ Utz, Miller & Kuhn, LLC Overland Park, KS © 2011 Aspen Publishers. All Rights Reserved. Editor: Amy Burke Sr. Managing Editor: Joanne Mitchell-George Editorial Director: Ellen Ros Publisher: Paul Gibson Journal of Pension Planning & Compliance (ISSN 0142-181) (USPS 059-590) is published quarterly by Aspen Publishers, 76 Ninth Avenue, New York, NY 10011, Postage paid at Frederick, MD. Subscription: One year at $395, two years at $672, three years at $948, and $119 per single issue. For subscription information, call 1-800-638-8437. Editorial Offices: Journal of Pension Planning & Compliance Aspen Publishers, 76 Ninth Avenue, New York, NY 10011. This material may not be used, published, broadcast, rewritten, copied, redistributed or used to create any derivative works without prior written permission from the publisher. The opinions and interpretations expressed by the authors of the articles herein are their own and do not necessarily reflect those of the editor or publisher. POSTMASTER: Send address changes to Journal of Pension Planning & Compliance Aspen Distribution Center, 7201 McKinney Circle, Frederick, MD 21704. Permission requests: For information on how to obtain permission to reproduce content, please go to the Aspen Publishers Web site at www.aspenpublishers.com/permissions. Purchasing reprints: For customized article reprints, please contact Wright’s Media at 1-877-652-5295 or go to the Wright’s Media website at www.wrightsmedia.com. www.aspenpublishers.com
Editor’s Note I n Belmonte v. Examination Management Services Inc., N.D. Tex., No. 3:07-cv-0552-L, July 30, 2010, the U.S. District Court for the Northern District of Texas ruled that an employer would not be equitably estopped from denying an additional 10 years of retirement benefits on top of the five years of benefits it paid to a former executive who argued that the employer did not satisfy the oral promises to pay him benefits for 15 years. Granting the motion of Examination Management Services Inc. (EMSI) to dismiss Anthony F. Belmonte’s complaint, Judge Sam A. Lindsay rejected the argument that Belmonte established the “extraordinary circumstances” element of an equitable estoppel claim under ERISA because his claim was a large sum of money and Examination Management Services, Inc. (“EMSI”) initially denied that a top-hat plan for Belmonte existed. The court said that failing to live up to a written or oral assurance did not meet extraordinary circumstances. The action was originally filed by Anthony F. Belmonte against Defendant Examination Management Services, Inc. (“EMSI”) in the United States District Court for the Northern District of Illinois, Eastern Division, on May 31, 2005. Belmonte filed his first amended complaint on April 18, 2006, to allege additional facts and clarify his claim for ERISA benefits. The Illinois federal district court transferred the case to U.S. District Court for the Northern District of Texas. On April 29, 2010, that court granted summary judgment in favor of EMSI on Belmonte’s ERISA benefits claim, but it afforded Belmonte an opportunity to amend his complaint to cure deficiencies and add a claim for ERISA estoppel. The complaint set forth a single claim for ERISA estoppel and alleged the facts as follows. Belmonte was an employee of EMSI from February 1986 to November 1997 when he retired. Beginning in 1991, EMSI provided a retirement plan, the EMSI Employee Plan, for its officers offering $1,000 per month for 15 years after retirement. In 1990, Belmonte was told by EMSI’s president and sole owner, John Utley, that he would not be included in this plan because his advanced age and poor health would increase the cost of the plan but would nevertheless receive the same retirement benefits. He received similar promises from Utley again in the year before his retirement, this time with assurances that Utley “might even put it in writing,” to which Belmonte responded, “that would be nice.” After retirement, Belmonte applied for and received retirement benefits under a top-hat plan from EMSI that lasted for five years, iii
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