877.634.2506

By Eric L. Buchanan & Amanda Scales

I.     Administrators have an obligation to provide information, and participants and beneficiaries have a cause of action if they don’t provide the information.

A.     The duties of the Administrator

As part of the reform of employee benefits law, Congress enacted ERISA and placed emphasis on employer’s or other plan sponsor’s obligations to provide information about the employee benefits.  One aspect of this is the duty of a plan administrator to respond to written requests for information. ERISA 502(c), 29 U.S.C. 1132(c) provides for penalties for an administrator’s refusal to supply required information. Under that section of ERISA,

(1) Any administrator .[who fails to provide certain information]1 . . (B) 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 (unless such failure or refusal results from matters reasonably beyond the control of the administrator) 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 $100In the body 2 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper. For purposes of this paragraph, each violation described in subparagraph (A) with respect to any single participant, and each violation described in subparagraph (B) with respect to any single participant or beneficiary, shall be treated as a separate violation.

B.     A participant’s or beneficiary’s rights to enforce this obligation.

As a matter of technical pleading, if an administrator violated ERISA § 502(c), “a civil action may be brought (1) by a participant or beneficiary (A) for relief provided for in subsection (c) of this section.”  In other words, an ERISA § 502(c) claim is properly pled under the cause of action granted under ERISA § 502(a)(1)(A).

C.     The statute of limitations in a plan documents penalties claim.

ERISA often adopts the analogous state statue of limitations.  Because a participant or beneficiary seeking a penalty for failure to provide plan documents, Defense attorneys can argue that the analogous statute of limitations is one for punitive damages, which are often very short statutes.

II.     What documents must be provided?

A.     Plan documents must be provided.

Basically, it is generally accepted that the Plan Administrator must provide the controlling plan documents.  ERISA § 104(b)(4), 29 U.S.C. § 1024(b)(4) states, “The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated.”

B.     Documents that must be provided automatically under ERISA.

The ERISA statute contains various requirements for plan documents that should be provided automatically to plan participants at certain times.  For example, ERISA § 204(h) (1), 29 U.S.C. § 1054(h)(1), requires that, if a pension plan is amended to provide a “significant reduction in the rate of future benefit accrual” without a specific notice that meets certain requirements described in that subsection of ERISA.  If those same documents are later requested in writing, the failure to provide those documents can lead to penalties.

For example, in Yip v. Little, No. CV09-05683 (C.D. Cal. April 4, 2011), a case involving a pension distribution that turned on whether the Plan Administrator had provided a 1999 amendment to the Plan Participants, the U.S. District Court for the Central District of California remanded the case on the merits for the administrator to determine whether the amendments had, in fact, been provided to participants back in 1999, and further imposed statutory penalties of $19,360 against a plan administrator for failure to produce a document properly requested more recently.

The plan administrator in Yip had taken the position that he was not required to produce the 1999 amendment to the plan, arguing that the plan amendment is not in the list of documents that must be produced pursuant to the language of 29 U.S.C. § 1132(c)(1). The court disagreed, and relied on Crotty v. Cook121 F.3d 541, 547 (9th Cir. 1997) to find that the penalty provision in 29 U.S.C. § 1132(c)(1) apply not only to the documents listed in § 1024(b)(4),but to “any information [that the] administrator is required by this title to furnish to a participant.” The court in Yip found that, “specifically, the penalty provision applies when a participant requests something that he was entitled to receive automatically. Id. The Plaintiff was entitled to receive notice of the 1999 Amendment automatically under 29 U.S.C. § 1054(h)(1)” (which requires that plan participants be provided automatic disclosure of any modification to the plan that causes a “significant reduction in the rate of future benefit accrual.”)

Therefore, the court in Yip found that the plan amendment should have been provided in response to the request, and, therefore, the failure to produce the documents provided a basis for penalties to be awarded.  The Court awarded 25% of the maximum daily penalty of $110 (i.e. $27.50 per day) for each of the 704 days that Defendant was delinquent in providing the Plan documents, for a total penalty of $19,360.

C.     Arguably, ERISA § 502(c) penalties should be available for any documents a claimant is entitled to under the Department of Labor’s regulations.

While it is generally accepted by Courts that Plan Administrators must provide the ERISA plan documents that are expressly required in ERISA, there are arguments that can be made that administrators must provide all the documents relevant to a claim that are required to be provided by the Department of Labor’s ERISA claims regulations.

ERISA § 502(c) (quoted in section I, supra), states that a penalty is due to be paid by any administrator who fails or refuses to comply with a request for information “which such administrator is required by this subchapter to furnish to a participant or beneficiary.”

In addition to the specific documents described in the ERISA statute itself, at ERISA § 104(b)(4), 29 U.S.C. § 1024(b)(4), such as the summary plan descriptions and other documents under which the plan is operated, the ERISA statute, at § 109(c), 29 U.S.C. § 1029(c) provides that the Secretary of Labor may also prescribe what other documents should be furnished:

(c) Format and content of summary plan description, annual report, etc., required to be furnished to plan participants and beneficiaries. –

The Secretary may prescribe the format and content of the summary plan description, the summary of the annual report described in section 1024(b)(3) of this title and any other report, statements or documents (other than the bargaining agreement, trust agreement, contract, or other instrument under which the plan is established or operated), which are required to be furnished or made available to plan participants and beneficiaries receiving benefits under the plan.

Here, the key words are that “The Secretary may prescribe the format and content of . . . any other . . .documents . . .which are required to be furnished or made available to plan participants and plan beneficiaries.”  Thus, reading sections §109(c) and 502(c) together, the Secretary is given authority3 to establish the format and content of what documents are required to be produced “by this subchapter.” Therefore, “Any administrator . . . (B) who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to . . .may in the court’s discretion be personally liable” for a § 502(c) penalty.

The Secretary of Labor’s ERISA claim procedures regulations, set out in 29 C.F.R. §  2560.503-1 (h)(2)(iii) describe what documents an administrator must provide.  The regulations state that, in order to provide a full and fair review, the Plan must:

Provide that a claimant shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits.  Whether a document, record, or other information is relevant to a claim for benefits shall be determined by reference to paragraph (m)(8) of this section.

The Secretary explains at Paragraph (m)(8) what documents are relevant to the claim, and are thus required to be produced under ERISA:

A document, record, or other information shall be considered “relevant” to a claimant’s claim if such document, record, or other information.

(i) Was relied upon in making the benefit determination;

(ii) Was submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination;

(iii) Demonstrates compliance with the administrative processes and safeguards required pursuant to paragraph (b)(5) of this section in making the benefit determination;  or

(iv) In the case of a group health plan or a plan providing disability benefits, constitutes a statement of policy or guidance with respect to the plan concerning the denied treatment option or benefit for the claimant’s diagnosis, without regard to whether such advice or statement was relied upon in making the benefit determination.

The view that ERISA’s disclosures provisions should be read broadly is supported by a court in Bartling v. Freuhauf Corp., 29 F.3d 1062 (6th Cir. 1994) (holding that, because ERISA requires a plan to maintain actuarial reports, that such documents must be provided to a participant on request.).  Other circuits, analyzing § 502(c) claims under ERISA § 104(b)(4), applying the law before the new claims regulations were adopted, have read ERISA § 104(b)(4) and 502(c) more strictly. See Faircloth v. Lundy Packing Co., 91 F.3d 648 (4th Cir. 1996) (appraisal and stock evaluation reports were not instruments under which the plan was operated) and Board of Trustees of CWA/ITU Negotiated Pension Plan v. Weinstein, 107 F.3d 139 (2d Cir. 1997) (holding actuarial reports need not be provided.)

III.     Who may be sued under ERISA § 502(c)?

A.     In most circuits, only the designated Plan Administrator is liable for a penalty under ERISA § 502(c).

ERISA § 502(c)(1) provides that “any administrator” who “fails or refuses to comply with a request for any information which such administrator is required by this title to furnish to a participant or beneficiary” shall be, in the court’s discretion, liable to the participant or beneficiary in the amount up to $110 a day from the date of such failure or refusal.

Unfortunately, most circuits have read into ERISA an additional implied term that the language “any administrator” actually means only the Plan Administrator.  For example,

It is well-settled in the Sixth Circuit that only plan administrators can be held liable for statutory penalties under 29 U.S.C. §  1132(c). Caffey v. UNUM Life Ins. Co., 302 F.3d 576, 584 (6th Cir.1989); Hiney Printing Co. v. Brantner, 243 F.3d 956, 960 (6th Cir.2001); VanderKlok v. Provident Life & Accident Ins. Co., 956 F.2d 610, 618 (6th Cir.1992). Furthermore, the Sixth Circuit has expressly held that “an insurance company, which is not a plan administrator cannot be held liable for statutory damages [under §  1132(c) ] for failure to comply with an information request.” Caffey, 302 F.3d at 58 (citing VanderKlok, 956 F.2d at 618).

Addison v. Hartford Life and Accident Insurance, 32 Emp. Ben. Cas. 1640, 2003 WL 23413737 (E.D.Tenn. 2003) (unpublished).  See e.g, Lee v. Burkhart, 991 F.2d. 1004 (2d Cir. 1993); Coleman v. Nationwide Life Ins. Co., 969 F.2d 54 (4th. Cir. 1992); Anweiler v. American Electric Power Service Corp., 3 F.3d 986 (7th Cir. 1993);   Moran v. Aetna Life Insurance Co., 872 F.2d 296 (9th Cir. 1989), (the insurance company was not the “plan administrator” of an ERISA plan); McKinsey v. Sentry, 986 F2d 401, 404-05 (10th Cir 1993); Davis v. Liberty Mutual Ins. Co., 871 F.2d 1134 (D.C. Cir. 1989).

It may be time for claimants’ attorneys to re-visit the arguments that an insurance company, acting as a claims administrator of a plan cannot be held liable for penalties under ERISA § 502(c).  The new Department of Labor claims regulations describe a list of documents that must be provided to a claimant upon request.  Many of the documents referred to in the regulations are normally in the hands of the insurance company that decides a claim, not the named “Plan Administrator” who is normally the employer.  It is clear that the Department of Labor intends for the party with control over those documents to provide those documents described in the regulations.  According to the statute, an administrator may avoid the penalty if the administrator fails to produce the documents, and “such failure or refusal results from matters reasonably beyond the control of the administrator.” ERISA § 502(c)(1)(B).  Thus, under the current law in most circuits, if the claimant requests the documents from the insurance company, and they refuse to produce them, they cannot be held liable for a penalty because they are not a “Plan” administrator.  On the other hand, if you ask for the documents from the employer, who is technically the “plan” administrator, the employer can claim the defense that the employer has no control over the requested documents.  This leaves no mechanism to enforce the Department of Labor claims regulations.

The plain language of the statute supports the argument that an insurance company can be held liable for the penalties.  The language of ERISA § 502(c)(1) does not refer to a “Plan Administrator,” but rather to “any administrator.”  ERISA participants and beneficiaries can argue that, had Congress intended § 502(c)(1) to apply only to titular “Plan Administrators” as that term of art is defined under the statute, rather than to parties who actually administer and control the documents a Plaintiff seeks, Congress would surely have said so.  Compare § 502(c)(1) (“any administrator” subject to $110 per day penalty for failure to provide documents to participant) with § 502(c)(2) (Secretary of Labor may assess penalty of $1000 per day against “any plan administrator” (emphasis added) for failure to file annual report).  The key should not be who is named “plan administrator,” but rather who in fact acts as administrator.

B.     Sometimes, a de facto plan administrator may be liable for a penalty.

At least two circuits have been willing to agree that § 502(c)(1) allows penalties against de facto plan administrators.  In Law v. Ernst & Young, 956 F.2d 364 (1st Cir. 1992), the First Circuit held:

If, to all appearances, Arthur Young acted as the plan administrator in respect to dissemination of information concerning plan benefits, it may properly be treated as such for purposes of the liability provided under § 1132(c).  To be sure, § 1002(16)(A)(i) states that the plan administrator is the party “specifically so designated” by the plan documents, and those documents named the Arthur Young Retirement Committee.  But 29 U.S.C. § 1025 also confers upon plan participants and beneficiaries an absolute right to receive from the administrator information of the type sought here . . .

To hold that an entity not named as administrator in the plan documents may not be held liable under § 1132(c), even though it actually controls the dissemination of plan information, would cut off the remedy Congress intended to create.

956 F.2d at 373.  The key factor in finding a de facto plan administrator, according to Law, is control:  both control over the plan generally; and specifically, control over dissemination of the information and documents underlying the § 502(c)(1) claim.

The Eleventh Circuit has explicitly noted its agreement with the First Circuit’s holding in LawSee Rosen v. TRW, Inc., 979 F.2d 191, 193-94 (11th Cir. 1992) (“We agree with the reasoning of the First Circuit and we hold that if a company is administrating the plan, then it can be held liable for ERISA violations, regardless of the provisions of the plan document”).  Additionally, the Fifth Circuit has stated the idea that someone other than the statutory administrator could be liable for § 502(c) penalties has “intuitive appeal.”  Fisher v. Metropolitan Life Ins. Co., 895 F.2d 1073 (5th Cir. 1990).

Insurance companies often act as the “plan administrators.”  For example, by regulation, decisions and notices regarding ERISA rights are required to be sent by the plan administrator.  29 C.F.R. § 2560.503-1(f), (j).  This information is usually provided to a claimant by the insurance company when they deny a claim, which give the appearance that the insurance company has taken on many of the roles and attributes of a plan administrator.

IV.     How does a court determine the appropriate penalty?

A.     Factors in Determining Awards and Amounts Awarded

It is up to the discretion of the district courts to award penalties under 29 U.S.C. § 1132(c).  While some circuits have no reported cases involving § 502(c) penalties, the federal circuits which have addressed these claims use a variety of factors to decide whether to award penalties under § 502(c).

The five factors most commonly used by the courts in assessing § 502(c) penalties are: “(1) bad faith or intentional conduct of the plan administrator, (2) length of delay, (3) number of requests made, (4) documents withheld, and (5) prejudice to the participant.”  Gorini v. AMP Inc., 94 Fed. Appx. 913, 919-920 (3d Cir. 2004).  The Second and Third Circuit Courts have adopted these factors, as have several district courts in the Seventh Circuit.  See McDonald v. Pension Plan of the Nysa-Ila Pension Trust Fund, 320 F.3d 151, 163 (2d Cir. 2003); Jackson v. E.J. Brach Corp., 937 F. Supp. 735, 741 (N.D. Ill.1996); Blazejewski v. Gibson, 1999 U.S. Dist. LEXIS 18028 at 9-10 (N.D. Ill. 1999).  Other circuits use some of these factors to varying degrees.  The Eleventh Circuit, for example, has cited these five factors, but noted that they are not prerequisites for imposing civil penalties.  Curry v. Contract Fabricators Inc. Profit Sharing Plan, 891 F.2d 842, 847 (11th Cir. 1990).  In the Fourth Circuit, the Eastern District of Virginia has considered bad faith and length of delay, but awarded penalties even though neither of these factors was in the plaintiff’s favor.  Freitag v. Pan Am. World Airways, Inc., 702 F. Supp. 128, 132 (E.D. Va., 1988).

The First, Fifth, and Sixth Circuits focus on bad faith and prejudice to the plaintiff.  Bartling v. Fruehauf Corp., 29 F.3d 1062, 1066-1067 (6th Cir. 1994); Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 588-89 (1st Cir. 1993); Godwin v. Sun Life Assurance Co. of Canada, 980 F.2d 323, 328-29 (5th Cir. 1992).

However, in these circuits, neither bad faith nor prejudice is required; they are merely considerations in determining the amount of penalties awarded.  Bartling, 29 F.3d at 1066.  In fact, the Sixth Circuit has affirmed a penalty against a plan administrator when neither prejudice nor bad faith was present.  McGrath v. Lockheed Martin Corp., 48 Fed. Appx. 543, 557 (6th Cir. 2002).

Lampkins v. Golden, 1996 WL 729136 at p. 3 (6th Cir. 1996) (discussing why prejudice need not be present before a court should award penalties and affirming a penalty of $75 per day for 438 days of delay, or a total penalty of $32,850.) explains:

We cannot find that the district court abused its discretion in imposing a $75 per day penalty against Golden for failing to timely provide Lampkins with the [requested plan documents] . . .Golden argues that the district court abused its discretionary authority because it assessed a penalty without finding that his delay caused Lampkins any prejudice. In support of this argument, Golden notes that some district courts have declined to impose a penalty unless the participant can show that the administrator’s failure to deliver the documents within thirty days adversely affected the participant’s rights in some fashion. See, e.g., Wesley v. Monsanto Co., 554 F.Supp. 93 (E.D.Mo.1982), aff’d, 710 F.2d 490 (8th Cir.1983); Pollock v. Castrovinci, 476 F.Supp. 606 (S.D.N.Y.1979), aff’d, 622 F.2d 575 (2d Cir.1980). The statute, however, does not require a finding of prejudice, and “[t]he circuits are in general accord that neither prejudice nor injury are prerequisites to recovery under the penalty provisions of the statute.” Moothart v. Bell, 21 F.3d 1499, 1506 (10th Cir.1994) (citing Sage v. Automation, Inc. Pension Plan & Trust, 845 F.2d 885, 894 n. 4 (10th Cir.1988); see Faircloth v. Lundy Packing Co., 91 F.3d 648, 659 (4th Cir.1996) (noting that “prejudice to the party requesting the documents is not a prerequisite to the imposition of penalties….”); Gillis v. Hoechst Celanese Corp., 4 F.3d 1137, 1148 (3d Cir.1993), cert. denied, 114 S.Ct. 1369 (1994); Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1494 (11th Cir.1993); Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 588 (1st Cir.1993)); see, e.g., Bartling v. Fruehauf Corp., 29 F.3d 1062 (6th Cir.1994). In fact, prejudice to the party requesting the documents is merely one factor that a district court may consider in imposing a penalty. See Faircloth, 91 F.3d at 659; Moothart, 21 F.3d at 1506; see, e.g., Bartling, 29 F.3d at 1068-69 (affirming a statutory penalty where, despite the lack of bad faith or prejudice, the district court had imposed the penalty “only because of the [large] number of Plaintiffs that were involved.”); see also Daniel v. Eaton Corp., 839 F.2d 263, 268 (6th Cir.1988) (affirming an assessment of penalties against a plan administrator even though there was no evidence that the delay was deliberate or that any prejudice had resulted), cert. denied, 488 U.S. 826 (1988).

Furthermore, the district court’s decision to impose the statutory penalty without a finding of prejudice comports with the general intent of the statute. The purpose of the statutory penalty is not to compensate participants, but to induce administrators to expeditiously provide requested plan documents by punishing those who fail to comply. See Faircloth, 91 F.3d at 659; Bartling, 29 F.3d at 1068; Daughtrey, 3 F.3d at 1494 (noting that the purpose of the statutory penalties is to punish because the penalty range of up to $100 per day is unrelated to any injury suffered by a plan participant). Thus, the district court acted well within its discretion in imposing a penalty without first requiring a showing of prejudice.

Id, at p. 3.  When arguing these cases, Plaintiff’s attorneys can argue that nothing in ERISA § 502(c) requires a showing of prejudice before a court should assess a penalty under that part of the ERISA statute. The purpose of the statute is to ensure that plan Administrators expeditiously produce plan documents.  Rather, courts have repeatedly held that such factors may be considered by a court, but are not dispositive, and it is in a court’s discretion to award such a penalty without those factors.

However, because courts and defense counsel often focus on prejudice as the most important factor, the Plaintiff should be prepared to show prejudice.  Many courts have stated that prejudice is at least an “important factor” to consider when determining the applicability of § 502(c) penalties.  See, e.g., Bartling v. Fruehauf Corp., 29 F.3d 1062, 1067 (6th Cir. 1994).  For most courts, however, it is not determinative.  Even so, some courts refuse to impose penalties or give “token” penalties in the absence of prejudice.  Patterson v. Ret. & Pension Plan for Officers & Employees of the N.Y. Dist. Council of Carpenters and Related Orgs., 2001 U.S. Dist. LEXIS 15949 at 22 (S.D.N.Y. 2001); Hackett v. Xerox Corp. Long-Term Disability Income Plan, 2001 U.S. Dist. LEXIS 21305 at 68-70 (N.D. Ill. 2001).

Fortunately, prejudice is not a particularly difficult thing to show.  In addition, in the Sixth and Eleventh Circuits, the burden is on the plan administrator to prove that there is no prejudice.  Knickerbocker v. Ovako-Ajax, Inc., 1999 U.S. App. LEXIS 16982 at 20 (6th Cir. 1999).  Often the fact that the plaintiff had to seek the advice of counsel and institute a lawsuit in order to determine his or her rights under the plan is sufficient “prejudice.”  Courts imposing penalties under this interpretation of “prejudice” often focus on the time and effort expended and the aggravation experienced by the plaintiff in hiring a lawyer or bringing the suit.  Almonte v. GMC, 1997 U.S. Dist. LEXIS 9271 at 14-16 (S.D.N.Y. 1997); Jackson v. E.J. Brach Corp., 937 F. Supp. 735, 742 (N.D. Ill. 1996).  Another way to look at this interpretation is that if the suit commences before the administrator has furnished the requested information, the plaintiff may have brought a suit for benefits without knowing the merits of his or her position.  Patterson, 2001 U.S. Dist LEXIS 15949 at 22.  On the other hand, the plaintiff should not argue prejudice merely as a result of hiring an attorney, since attorney’s fees can be recovered under ERISA.  Geary v. Chicago Tile Inst. Welfare Trust, 1995 U.S. Dist. LEXIS 4921 at 19 (N.D. Ill. 1995).  In addition, courts have found seeking counsel and filing suit to be inadequate prejudice when the case was primarily based on other grounds such as interpretation of the plan or discrimination by the former employer.  Patterson, 2001 U.S. Dist LEXIS 15949 at 22; LaCoparra v. Pergament Home Ctrs., Inc., 982 F. Supp. 213, 230 (S.D.N.Y. 1997).

B.     Sample Penalties that are Awarded.

When courts do award penalties, they seldom award the maximum amount.  In fact, out of fifty or so reported cases in which courts have awarded statutory penalties, the plaintiffs received the maximum penalty only three times.  See Keogan v. Towers, 2003 U.S. Dist. LEXIS 7999 at 35 (D. Minn. 2003); Freitag, 702 F. Supp. at 132; Villagomezv. AT&T Pension Plan, 1991 U.S. Dist. LEXIS 1788 at 5 (N.D. Ill. 1991).  Awards typically range from ten to fifty dollars a day, with an average award of about $33.63/day.  Kascewicz v. Citibank, N.A., 837 F. Supp.1312, 1323-24 (S.D.N.Y. 1993).  A breakdown of the cases where courts have awarded § 502(c) penalties and the amounts awarded follows.

In the Second Circuit, the cases are McDonald v. Pension Plan of the Nysa-Ila Pension Trust Fund, 320 F.3d 151, 163 (2d Cir. 2002)($15/day for 71 days; $1065 total); Reid v. Local 966 Pension Fund, 2004 U.S. Dist. LEXIS 18600 at *32 (S.D.N.Y. Sept. 14, 2004)($20/day for 151 days; $3020 total); Patterson v. Ret. & Pension Plan for Officers  & Employees of the N.Y. Dist. Council of Carpenters and Related Orgs., 2001 U.S. Dist. LEXIS 15949 at 22 (S.D.N.Y. 2001)(token penalty of $0.10/day for an unspecified number of days); Proujansky v. Blau, 2001 U.S. Dist. LEXIS 12694 at 41 (S.D.N.Y. 2001)($20/day for 2272 days; total penalty of $45,440); Almonte v. GM Corp., 1997 U.S. Dist. LEXIS 9271 at 16 (S.D.N.Y. 1997)($10/day for 235 days; $2350 total); Scarso v. Briks, 909 F. Supp. 211, 215 (S.D.N.Y. 1995)($50/day for approximately 450 days); Pagovich v. Moskowitz, 865 F. Supp. 130, 138 (S.D.N.Y. 1994)($75/day for 187 days; $14,025 total); Kascewicz v. Citibank, N.A., 837 F. Supp. 1312, 1324 (S.D.N.Y. 1993)($25/day for 891 days; $22,275 total); Kulchin v. Spear Box Co., 1978 U.S. Dist. LEXIS 16265 at 7 (S.D.N.Y. 1978)($10,000 total penalty); and Austin v. Ford, 1998 U.S. Dist. LEXIS 2157 at 19 (S.D.N.Y. 1998)($10/day; $3870 total penalty).

In the Third Circuit, Gorini v. AMP, Inc., 94 Fed. Appx. 913, 916 (3d Cir. April 16, 2004)(award of $160,780 for an unnamed amount of time); Colarusso v. Transcapital Fiscal Sys., 227 F. Supp. 2d 243, 262 (D.N.J. 2002)($50/day for 928 days; $46,400 total); Boyadjian v. CIGNA Cos., 973 F. Supp. 500, 507 (D.N.J. 1997)($75/day for 773 days; total of $57,975); Porcellini v. Strassheim Printing Co., 578 F. Supp. 605, 616 (E.D. Pa 1983)($25/day for 60 days; $1500 total); Henczel v. Amstar Sugar Corp., 1991 U.S. Dist. LEXIS 10740 at 12-13 (E.D. Pa. 1991)($100/day; total of $18,800); and Conowall v. Admin. Comm. for General Instrument Corp. Pension Plan, 1989 U.S. Dist. LEXIS 7997 at 11 (E.D. Pa. 1989)($5/day penalty for nearly five years; total of $8790).

In the Fourth Circuit, Faircloth v. Lundy Packing Co., 91 F.3d 648, 659 (4th Cir. 1996)($2500 for each of three plaintiffs for a delay of about 90 days); Shade v. Panhandle Motor Serv. Corp., 1996 U.S. App. LEXIS 16703 at 12(4th Cir. 1996)($5/day; total of $4035); Freitag v. Pan Am. World Airways, Inc., 702 F. Supp. 128, 132 (E.D. Va. 1988)($100/day for 100 days; $10,000 total); Jackson v. Coyne & Delany Co., 2004 U.S. Dist. LEXIS 11230 (W.D. Va. June 17, 2004)($25/ day for 93 days; total of $2325); Chaffin v. Nisource, Inc. d/b/a Columbia Gas Transmission Co. (& Prudential), NO. 3:08-0870, 2010 U.S Dist LEXIS 27411 (S.D. W.V. Mar. 23, 2010) (awarding $50 per day for 362 days where the Plan Administrator relied on an oral representation that the insurance company had sent the documents, when in fact they had not).

Cases in the Sixth Circuit include McGrath v. Lockheed Martin Corp., 48 Fed. Appx. 543, 550 (6th Cir. 2002)($50/day for 154 days; $7700 total); Bartling v. Fruehauf Corp., 29 F.3d 1062, 1067 (6th Cir. 1994)($25,200 for a group of 78 plaintiffs); Daniel v. Eaton Corp., 839 F.2d 263, 268 (6th Cir. 1988)($25/day for 278 days; $6950 total); Dooley v. GMC, 1997 U.S. Dist. LEXIS 13168 at 6 (E.D. Mich. 1997)($1500 for a delay of about one year); Logan v. UniCare Life & Health Ins., Inc., 2007 WL 1875943 (E.D.Mich. June 25, 2007) (awarding $110 per day for 341 days); Zirnhelt v. Mich. Consol. Gas Co., 2006 WL 3194018 (E.D.Mich., Nov. 1, 2006) (awarding $100 per day for 105 days); Shephard v. O’Quinn, 2006 U.S. Dist. Lexis 24252, *9-10 (E.D.Tenn. 2006) (awarding $100 per day for 826 days); Mitchell v. DaimlerChrysler Corp. Salaried Emples. Ret. Plan, 2006 WL 1272566 (N.D.Ohio, May 9, 2006) (awarding $50 per day); Dies v. Provident Life & Accident Ins. Co., 2006 WL 208878 (M.D.Tenn., Jan. 25, 2006) (awarding $25 per day per document for lengthy delays of 160 and 413 days, regardless of actual prejudice); Weddell v. Retirement Committee of Whirlpool Production Employees Retirement Plan, 2007 WL 452509 (N.D.Ohio, Dec. 21, 2007) (awarding $60 per day for 237 day delay); Shropshire v. Skilton Equipment Co. Inc., 2007 WL 4259608 (E.D.Ky., Nov. 30, 2007) (awarding $100 per day for 267 days).  Gregory v. Goodman Manufacturing Co., L.P., No. 4:10-cv-23, 2012 U.S. Dist. LEXIS 27877 (E.D. Tenn. March 2, 2012) (Order adopting Magistrate’s Report & Recommendation recommending $110 per day for plan documents, but not for pension plan enrollment forms; also, the defendant argued that it could not produce the actual controlling plan documents, which were lost, (arguing that such failure to produce was beyond its control), but it also did not produce the pension plan documents it did rely on to calculate the pension benefits.), the Magistrate Judge’s Report and Recommendation is found at Gregory v. Goodman Mfg. Co., L.P., NO. 4:10-cv-23, 2012 U.S. Dist. LEXIS 27872 (E.D. Tenn. January 13, 2012).

In the Seventh Circuit, Blazejewski v. Gibson, 1999 U.S. Dist. LEXIS 18028 at 14 (N.D. Ill. 1999)($10/day for about 400 days); Jackson v. E.J. Brach Corp., 937 F. Supp. 735, 742 (N.D. Ill. 1996)($10/day for 692 days; 6920 total); Harsch v. Eisenberg, 1994 U.S. Dist. LEXIS 21235 at 22 (E.D. Wis. 1994)($4089 total penalty for four plaintiffs); Thomas v. Jeep-Eagle Corp., 746 F.Supp. 863, 864-865 (E.D. Wis. 1990)($50/day for 129 days; $6450 total); Mitchell v. Am. Hardware Mfrs. Ass’n, 1985 U.S. Dist. LEXIS 15990 at 33 (N.D. Ill. 1985)($1000 total penalty); Lowe v. SRA/IBM Macmillan Pension Plan, 2003 U.S. Dist. LEXIS 4519 at 10 (N.D. Ill. 2003)($50/day; $35, 050 total); Knipe v. Reuters Am., 1997 U.S. Dist. LEXIS 4675 at 6 (N.D. Ill. 1997)(penalty of $2000);  Villagomez v. AT&T Pension Plan, 1991 U.S. Dist. LEXIS 1788 at 5 (N.D. Ill. 1991)($100/day for 144 days; $14,400 total); and Piggot v. Livingston Co., 1989 U.S. Dist. LEXIS 11155 at 8 (N.D. Ill. 1989)(nominal penalty of $2/day for 309 days).

In the Eighth Circuit, Keogan v. Towers, 2003 U.S. Dist. LEXIS 7999 at 34 (D. Minn. 2003)($100/day for 649 days; $64,900 total); Garred v. General American Life Ins. Co., 774 F. Supp. 1190, 1201 (W.D. Ark. 1991)($25/day; total penalty of $15,775).

In the Ninth Circuit, Advisory Comm. for Stock Ownership & Trust for Employees of Montana Bancsystem, Inc. v. Kuhn, 1996 U.S. App. LEXIS 2273 at 22-23 (9th Cir. 1996)($33/day for 586 days; total of 19,338); Paris v. F. Korbel & Bros., Inc., 751 F. Supp. 834, 840 (N.D. Ca. 1990)($10/day); Chaganti v. Sun Microsystems, 2004 U.S. Dist. LEXIS 24243 at 19 (N.D. Ca. Nov. 23, 2004)($12/day for 191 days; $2292 total); Berry v. Wise, 2004 U.S. Dist. LEXIS 16897 at 1 (D. Or. Aug. 17, 2004)(total award of $2640). In Yip v. Little, No. CV09-05683 (C.D. Ca., April 4, 2011), a case involving a pension distribution that turned on whether the Plan Administrator had provided a 1999 amendment to the Plan Participants, the Plaintiff Plan Participant requested the document again, which was not provided for 704 days. The Court awarded 25% of the maximum daily penalty of $110 (i.e. $27.50 per day) for each of the 704, for a total penalty of $19,360.

In the Tenth Circuit, Dehner v. Kansas City S. Indus., Inc., 713 F. Supp. 1397, 1402 (D. Kan. 1989)($20/day for 84 days; $1680 total).

In the Eleventh Circuit, Curry v. Contract Fabricators, Inc. Profit Sharing Plan, 891 F.2d 842, 848 (11th Cir. 1990)($3/day for 240 days; $800 total); Hamilton v. Mecca, Inc., 930 F. Supp. 1540, 1557 (S.D. Ga. 1996)($5000 penalty awarded).

 


 

1 ERISA § 502(c)(1) also provides for similar penalties for an administrators failure to provide COBRA notices and required notices related to transfers of excess pension plan assets to a health benefits account.
2 As required by the Debt Collection Improvement Act of 1996, the $100 limit has been increased to $110 for violations after July 29, 1997. 62 Fed. Reg. 40696.
3 Also, in addition to the specific authority to prescribe what documents must be provided, the Secretary also has general authority under “this subchapter” to “prescribe such regulations as he finds necessary or appropriate to carry out the provisions of this title.”  ERISA § 505, 29 U.S.C. § 1135.