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Which Plan Documents Must You Surrender if You Are Sued?

When participants believe they have been mistreated by your company’s retirement plan and take their complaints to court, be prepared for requests for plan documents. Although under ERISA you are obligated to produce relevant materials, you are not required to indulge in a document fishing expedition. A recent court case, Theriot v. Building Trades United Pension Trust Fund, offers insights on just how far you need to go and where to draw the line.

ERISA requirements

ERISA requires administrators, on a participant’s or beneficiary’s written request, to furnish a copy of:

  • The latest summary plan description;
  • The most recent annual report;
  • Any terminal report; and
  • The bargaining agreement, trust agreement, contract or “other instruments under which the plan is established and operated.”

Plans must furnish these documents within 30 days or face a maximum $110 per day fine for the amount of days elapsed after the 30-day deadline passes.

Related Read: IRS Compliance Checklist: Keep Your Plan Running Smoothly and Legally

The case

The underlying dispute centered on the plan’s rejection of a request by the daughter of a pension beneficiary to receive a lump sum distribution of a pension benefit following the death of her mother. Her mother had met a deadline for requesting a lump sum distribution, but died before the distribution date promised by the pension administrator. The pension determined that the daughter was ineligible to receive that benefit because her mother had died before the lump-sum distribution date.

Among other things, the plaintiff was looking for any documents that would justify the administrator’s denial of that benefit — or not. In response, the plan narrowly interpreted the documents that it was obligated to produce, including the then-current (2017) plan document. However, it did not produce a copy of the plan’s original 1990 document. Its failure to do so was one of the issues in the case. The plan should have known that it was being asked to produce that document, argued the plaintiff.

Referencing prior cases, the judge noted that claimants do not have to request a document using its precise name if the request is sufficiently clear to give the plan administrator notice of the information the claimant seeks. That sounds like a win for the plaintiff; however, the court found that the plaintiff’s request for documents did not give clear notice “such that a reasonable plan administrator would have known” that the plaintiff was also requesting the 1990 plan document and other documents which the administrator did not provide.  Does it still sound like the court thought the plaintiff should receive that document? Keep reading…

Furthermore, the court found that even if the plaintiff had specifically requested the 1990 plan document, the plan would not have been obligated to produce it. This is because the plan administrator used the 2017 plan document to administer the plan during the period relevant to this case, not the original 1990 one.

The plaintiff also had requested — and did not receive — copies of “any errors and omissions policies issued to the [pension],” presumably with hopes that the pension could file a claim with such a policy to generate cash to settle the claim. But the court ruled that the fund was not obligated to produce these policies because they did not qualify as “instruments under which the plan is established or operated.”

Moving forward

In the end, the pension plan stood its ground on document production and successfully rebuffed the plaintiff’s multiple wide-ranging document requests. The key to this case is, if you are unsure on where to draw the line in supplying requested plan documents, consult your ERISA attorney.

For more information, contact Mike Kovacs or your ORBA advisor at 312.670.7444. Visit to learn more about our Employee Benefit Plans Services.

ERISA §1024(b)(4); Theriot v. Building Trades United Pension Trust Fund, No. 18-10250 (E.D. La. Nov. 4, 2019)

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