Colburn v. Hickory Springs Manufacturing Company

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO. 5:19-CV-139-FL

DAVID E. COLBURN, )

)

Plaintiff, )

v. )

)

HICKORY SPRINGS )

MANUFACTURING COMPANY, )

HICKORY SPRINGS )

MANUFACTURING COMPANY )

SUPPLEMENTAL EXECUTIVE )

RETIREMENT PLAN, THE )

COMPENSATION COMMITTEE OF THE )

BOARD OF DIRECTORS OF HICKORY )

SPRINGS MANUFACTURING )

COMPANY, as Administrator of the )

Supplemental Executive Retirement Plan, )

DAVID F. UNDERDOWN, individually )

and as a member of the Compensation )

Committee of the Board of Directors of )

Hickory Springs Manufacturing Company, )

J. DAVID CARTWRIGHT, individually )

and as a member of the Compensation )

Committee of the Board of Directors of )

Hickory Springs Manufacturing Company, )

DARRELL BRYANT, individually and as a )

Member of the Compensation Committee of )

the Board of Directors of Hickory Springs )

Manufacturing Company, BOBBY BUSH, )

individually and as a member of the )

Compensation Committee of the Board of )

Directors of Hickory Springs Manufacturing )

Company, MARK JONES, individually and )

as a member of the Compensation )

Committee of the Board of Directors of )

Hickory Springs Manufacturing Company, )

ROBERT SIMMONS, individually and as a )

member of the Compensation Committee of )

the Board of Directors of Hickory Springs )

Manufacturing Company, )

)

Defendants. )

)

HICKORY SPRINGS )

MANUFACTURING COMPANY, )

HICKORY SPRINGS )

MANUFACTURING COMPANY )

SUPPLEMENTAL EXECUTIVE )

RETIREMENT PLAN, THE )

COMPENSATION COMMITTEE OF THE )

BOARD OF DIRECTORS OF HICKORY )

SPRINGS MANUFACTURING )

COMPANY, as Administrator of the )

Supplemental Executive Retirement Plan, )

DAVID F. UNDERDOWN, individually )

and as a member of the Compensation )

Committee of the Board of Directors of )

Hickory Springs Manufacturing Company, )

J. DAVID CARTWRIGHT, individually )

and as a member of the Compensation )

Committee of the Board of Directors of )

Hickory Springs Manufacturing Company, )

DARRELL BRYANT, individually and as a )

, of the Compensation Committee of the )

Board of Directors of Hickory Springs )

Manufacturing Company, BOBBY BUSH, )

individually and as a member of the )

Compensation Committee of the Board of )

Directors of Hickory Springs Manufacturing )

Company, MARK JONES, individually and )

as a member of the Compensation )

Committee of the Board of Directors of )

Hickory Springs Manufacturing Company, )

ROBERT SIMMONS, individually and as a )

member of the Compensation Committee of )

the Board of Directors of Hickory Springs )

Manufacturing Company, )

)

Counter Claimants, )

v. )

)

DAVID E. COLBURN, )

)

Counter Defendant. )

)

)

DAVID E. COLBURN, )

)

Cross-Claimant, )

)

v. )

)

DAVID F. UNDERDOWN, individually )

and as a member of the Compensation )

Committee of the Board of Directors of )

Hickory Springs Manufacturing Company, )

J. DAVID CARTWRIGHT, individually )

and as a member of the Compensation )

Committee of the Board of Directors of )

Hickory Springs Manufacturing Company, )

ROBERT SIMMONS, individually and as a )

member of the Compensation Committee of )

the Board of Directors of Hickory Springs )

Manufacturing Company, )

)

Cross-Defendants. )

This matter is before the court on plaintiff’s motion to dismiss counterclaims (DE 24),

defendants’ motion for partial summary judgment (DE 35), and plaintiff’s motion for judgment on

the pleadings (DE 37). The issues raised have been briefed fully, and in this posture, are ripe for

ruling. For the following reasons, the court grants plaintiff’s motion to dismiss counterclaims (DE

24), grants defendants’ motion for partial summary judgment (DE 35), and denies plaintiff’s

motion for judgment on the pleadings (DE 37).

STATEMENT OF THE CASE

Plaintiff initiated this action April 9, 2019, and filed the operative amended complaint May

2, 2019, under the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended,

29 U.S.C. § 1001 et seq., seeking recovery of retirement benefits under a 2012 Supplemental

Executive Retirement Plan (“2012 SERP”). Plaintiff alleges improper denial of benefits in

violation of ERISA § 502(a)(1); breach of fiduciary duty in violation of ERISA §§ 404(a)(1)(A),

(B), and (D); prohibited transaction in violation of ERISA §§ 406(a)(1)(A) and (D); and adverse

actions in violation of ERISA § 510. Plaintiff also brings a claim for unpaid wages under the

North Carolina Wage and Hour Act (“NCWHA”) against defendant Hickory Springs

Manufacturing Company (“HSM”).

On June 21, 2019, defendants Mark Jones, Darrell Bryant (“Bryant”), Robert Simmons

(“Simmons”), HSM, J. David Cartwright (“Cartwright”), HSM SERP, the compensation

committee of the board of directors of HSM (“compensation committee”), Bobby Bush, and David

F. Underdown (“Underdown”) (collectively “defendants”) filed answer, and defendant HSM

asserted counterclaims against plaintiff for rescission and constructive fraud. Defendants

subsequently filed motion to transfer the instant action to the Western District of North Carolina.

On July 29, 2019, the parties filed joint report and plan, wherein they stated that an early

determination by the court as to whether the 2012 SERP constitutes a “top hat” plan would

significantly reduce the complexity of the case. Thereafter, the court entered text order, inviting

the parties to submit briefing on the issue of “top hat” status and defendants’ motion to transfer

venue. The court delayed entry of its case management order, pending completion of briefing on

the above issues and decisions thereon by the court.1

On August 12, 2019, plaintiff answered defendant HSM’s counterclaims, asserted a

crossclaim for contribution against defendants Underdown, Cartwright, and Simmons, and

asserted a claim for indemnification against defendant HSM. That same day, plaintiff filed the

instant motion to dismiss defendant HSM’s counterclaims, asserting that ERISA preempted the

counterclaims, and alternatively, that neither counterclaim states a cause of action under North

Carolina law. Defendant HSM responded in opposition and plaintiff replied. After plaintiff moved

1 On September 13, 2019, the court denied defendants’ motion to transfer venue.

to dismiss defendant HSM’s counterclaims, defendants filed motion to amend their answer, which

the court granted September 12, 2019.2

On September 13, 2019, plaintiff and defendants filed the instant motions, respectively, on

the issue of whether the 2012 SERP constitutes a “top hat” plan. Specifically, plaintiff moves for

judgment on the pleadings, arguing that the 2012 SERP does not qualify as a “top hat” plan and is

therefore subject to ERISA’s fiduciary requirements. Defendants responded in opposition, and

plaintiff replied. At the same time, defendants move for partial summary judgment, arguing that

the 2012 SERP qualifies as a “top hat” plan and is therefore exempt from the fiduciary

requirements that plaintiff’s second and third claims for relief are based upon. Defendants also

argue that ERISA preempts plaintiff’s NCWHA claim for unpaid wages.

In support of their motion, defendants rely on statement of material facts, memorandum of

law, and the following exhibits: 1) affidavit of defendant Underdown (attaching exhibits including

trust agreement, correspondence, defendant compensation committee minutes, and top hat plan

statement), 2) affidavit of defendant Bryant, 3) Internal Revenue Service cost of living

adjustments, 4) United States Department of Labor (“DOL”) Opinion Letter, 5) DOL Amicus

Brief, and 6) plaintiff’s amended complaint. Responding in opposition, plaintiff reiterates

arguments raised in motion for judgment on the pleadings, and he relies on statement of material

facts, memorandum of law, and the following exhibits: 1) affidavit of plaintiff (attaching exhibits

including correspondence), 2) defendants’ amended answer and counterclaims, and 3) affidavit of

defendant Bryant. Defendants replied in support of the motion.

STATEMENT OF FACTS

2 In their motion to amend, defendants clarified that they only sought to amend their answer, not the

counterclaims filed therewith. (See Def. Mem. (DE 31) ¶ 4). Thus, defendants asserted that amending their answer

would not moot plaintiff’s motion to dismiss counterclaims. See id. Plaintiff consented to defendants’ motion. (Id.

¶ 5).

The court summarizes in turn below the facts alleged in plaintiff’s amended complaint for

background purposes, certain undisputed facts pertaining to the limited issue of top hat status, and

the facts alleged in defendant HSM’s counterclaims.

A. Amended Complaint

Defendant HSM is a large furniture manufacturing company with principle place of

business in Hickory, North Carolina. (Am. Compl. (DE 6) ¶¶ 2, 17). Plaintiff joined defendant

HSM’s board of directors in 2010, and on January 1, 2012, he became defendant HSM’s president

and chief executive officer. (Id. ¶¶ 19, 22). In addition, plaintiff joined defendant HSM’s

compensation committee, and he continued to serve on its board of directors. (Id. ¶ 22).

Early in his tenure with defendant HSM, plaintiff sought reform of the compensation

defendant HSM provided to its executives. (Id. ¶ 24). Accordingly, upon the recommendation of

certain board members, plaintiff contacted Bob Donovan (“Donovan”), a financial advisor to

defendant HSM. (Id. ¶ 30). Donovan suggested that defendant HSM implement retirement plans

known as SERPs. (Id. ¶¶ 32-33). According to Donovan, if defendant HSM purchased life

insurance policies on SERP recipients, the SERPs would be “cash neutral” to defendant HSM. (Id.

¶¶ 34-35).

The compensation committee unanimously approved the SERP proposal, and on December

11, 2012, the defendant HSM’s board of director’s ratified the action of the compensation

committee. (Id. ¶¶ 48,61). Plaintiff retired June 30, 2015, and received payments under his SERP

through September 1, 2016. (Id. ¶ 67). However, on October 1, 2016, he received a letter from

defendant HSM’s outside council informing plaintiff that he was no longer entitled to receive

benefits under his SERP. (Id. ¶ 68).

B. Undisputed Facts Pertinent to Summary Judgment

a. The 2012 SERPs

In 2012, defendant HSM’s compensation committee implemented ten SERPs. (Pl. Opp.

Stmt. (DE 45) ¶ 1; Defs. Stmt. (DE 41) ¶ 1). Plaintiff “believed the 2012 SERP plan was intended

to be a non-qualified unfunded employee benefit plan to provide retirement income to a select

group of highly compensated employees, commonly known as a Top Hat Plan.” (Pl. Opp. Stmt.

(DE 45) ¶ 24; Defs. Stmt. (DE 41) ¶ 24; Pl. Am. Compl. (DE 6) ¶ 53). Likewise, defendant HSM

intended the 2012 SERP to constitute a “top hat” plan. (Pl. Opp. Stmt. (DE 45) ¶ 2; Defs. Stmt.

(DE 41) ¶ 2).

b. SERP Recipients

Eight of the 2012 SERP recipients were employees of defendant HSM, and they had the

following job titles and salaries: 1) plaintiff was president and chief executive officer, and his

salary was $761,194.53; 2) James Bush was senior executive vice president of wire production,

and his salary was $221,738.31; 3) Hunter Lunsford was executive vice president and chief

operating officer, and his salary was $287,035.36; 4) Wilbur Mann was senior vice president of

foam operations, and his salary was $276,124.88; 5) James Packer was director of human

resources, and his salary was $154,683.43; 6) Valerie Reid was assistant treasurer and director of

finance, and her salary was $175,022.85; 7) defendant Underdown was vice president of

purchasing, corporate secretary, and chairman of the board, and his salary was $231,720.50; and

8) Dwayne Welch was executive vice president and chief sales and marketing officer, and his

salary was $348,529.15. (Bryant Aff. (DE 35-2) ¶ 6; Def. Stmt. (DE 41) ¶ 10; Pl. Opp. Stmt. (DE

45) ¶ 10).

The above eight recipients were high-level management employees with supervisory

responsibilities. (Pl. Opp. Stmt. (DE 45) ¶ 9; Defs. Stmt. (DE 41) ¶ 9). In addition, these recipients

were within the top 20% of the company’s highest-compensated employees. (Pl. Opp. Stmt. (DE

45) ¶ 11; Defs. Stmt. (DE 41) ¶ 11). In fact, among defendant HSM’s 477 salaried employees in

2012, the average salary for the 2012 SERP participants was $307,006.13, yet the average salary

for nonparticipants was $61,359.80—a five to one disparity. (Pl. Opp. Stmt. (DE 45) ¶ 12; Defs.

Stmt. (DE 41) ¶ 12).

The remaining two 2012 SERP recipients were former employees of defendant HSM. (Pl.

Opp. Stmt. (DE 45) ¶ 1; Defs. Stmt. (DE 41) ¶ 13). Blake Trimble (“Trimble”), retired as defendant

HSM’s general counsel in June 2012, and during his final year of employment, his salary was

$295, 679.17. (Pl. Opp. Stmt. (DE 45) ¶ 13; Defs. Stmt. (DE 41) ¶ 13). The other 2012 SERP

recipient, Tom Pierce (“Pierce”), retired as chairman of defendant HSM’s board on December 31,

2011, and previously retired as its vice president of finance in September 2003. (Pl. Opp. Stmt.

(DE 45) ¶ 14; Defs. Stmt. (DE 41) ¶ 14). During his final year of employment with defendant

HSM, Pierce’s salary was $222,217.59. (Id.).

Plaintiff talked to both Trimble and Pierce and “had them sign” their 2012 SERPs. (Pl.

Opp. Stmt. (DE 45) ¶ 17; Defs. Stmt. (DE 41) ¶ 17). A member of defendant compensation

committee asked plaintiff “if the committee must approve Trimble and Pierce’s agreements.

[Plaintiff] said that he did not think so.” (Pl. Opp. Stmt. (DE 45) ¶ 18; Defs. Stmt. (DE 41) ¶ 18).

On January 17, 2013, plaintiff sent a letter to all 2012 SERP recipients, including Trimble and

Pierce, congratulating them for being selected to receive a 2012 SERP. (Pl. Opp. Stmt. (DE 45) ¶

23; Defs. Stmt. (DE 41) ¶ 23). The letter stated, “Your selection confirms your membership in my

‘Core Management Group.’” (Id.; Underdown Aff. at Exhibit F).

c. Insurance Policies

Defendant HSM purchased insurance policies covering the lives of the 2012 SERP

recipients. (Pl. Opp. Stmt. (DE 45) ¶¶ 4-5; Defs. Stmt. (DE 41) ¶¶ 4-5). The 2012 SERP did not

designate the insurance policies as the source of plan funding. (Pl. Opp. Stmt. (DE 45) ¶ 5; Defs.

Stmt. (DE 41) ¶ 5). Instead, the 2012 SERP indicated that payments to participants were to be

made from the general funds of the company. (Id.). Specifically, section three of the 2012 SERP

stated:

The obligation of the Company to make payments hereunder shall constitute a

liability of the Company to the Executive. Such payments shall be made from the

general funds of the Company, and the Company shall not be required to establish

or maintain any special or separate fund, or otherwise to segregate assets to assure

that such payments shall be made, and the Executive shall not have any interest in

any particular assets of the Company by reason of its obligations hereunder.

Nothing contained in this Agreement shall create or be construed as creating a trust

of any kind or any other fiduciary relationship between the Company and the

Executive or any other person. To the extent that any person acquires a right to

receive payment from the Company, such right shall not be greater than the right

of an unsecured creditor of the Company.

(Am. Comp. Ex. 1 (DE 6)).

d. Rabbi Trusts

Defendant HSM created individual “rabbi trusts” to hold the proceeds of each insurance

policy. (Pl. Opp. Stmt. (DE 45) ¶ 6; Defs. Stmt. (DE 41) ¶ 6). Each Rabbi Trust Agreement

indicated that the 2012 SERP was to be an unfunded plan. (Pl. Opp. Stmt. (DE 45) ¶ 7; Defs. Stmt.

(DE 41) ¶ 7). As relevant here, the trust agreements provided:

it is the intention of the parties that this Trust shall constitute an unfunded

arrangement and shall not affect the status of the Agreement as an unfunded plan

maintained for the purpose of providing deferred compensation for a select

management or highly compensated employee for purposes of Title I of the

Employee Retirement Income Security Act of 1974.

. . .

beneficiaries shall have no preferred claim on, or any beneficial ownership interest

in, any assets of the Trust. Any rights created under the Agreement and this Trust

Agreement shall be mere unsecured contractual rights . . . Any assets held by the

Trust will be subject to the claims of the Company’s general creditors.

(Underdown Aff. Ex. A (DE 42-1).

C. Counterclaims

According to the counterclaims, plaintiff presented the proposed SERP program to

defendant compensation committee on August 24, 2012. (Def. Am. Ans. (DE 34) ¶¶ 13-14).

Under the program’s terms, plaintiff would receive the largest amount, and defendant HSM would

purchase the largest insurance policy on plaintiff’s life. (Id. ¶ 11). Yet, plaintiff allegedly did not

reveal his conflict of interest in proposing a plan that would disproportionately benefit himself.

(Id. ¶ 14). Moreover, according to the counterclaims, Donovan did not disclose to defendant

compensation committee the amount he would receive in commissions from the transaction as an

insurance salesman. (Id. ¶ 22). Defendant compensation committee unanimously approved the

2012 SERP. (Id. ¶ 18).

In November 2012, Donovan gave plaintiff two notebooks containing insurance policy

illustrations. (Id. ¶ 24). Although these illustrations did not match the insurance policies that were

previously presented to defendant compensation committee, plaintiff did not share the illustrations

with defendant compensation committee; instead, he placed them on a shelf in his office. (Id. ¶

25). In addition, plaintiff did not permit or request analysis of the illustrations by defendant HSM’s

finance department. (Id. ¶ 27). If the illustrations had been analyzed, they allegedly would have

disclosed that the “policies would lapse or would require significant additional cash outlays from

HSM, and would not support the loans necessary to fund benefits as presented to the Committee.”

(Id. ¶ 28).

Defendant HSM’s board of directors held a meeting December 11, 2012, to determine

whether to approve the 2012 SERP as authorized by defendant compensation committee. (Id. ¶

32). At the meeting, plaintiff allegedly did not disclose that his benefits under the 2012 SERP

would be earned in a much shorter period of service than any other participant. (Id. ¶ 33). The

board of directors approved the 2012 SERP, and thereafter, defendant HSM incurred substantial

liabilities, as the SERP program was not cash-neutral. (Id. ¶¶ 39-40).

The 2012 SERP transaction was allegedly inherently unfair to defendant HSM, especially

as it related to plaintiff, since 1) plaintiff had only worked for defendant HSM for eight months

when defendant compensation committee approved the 2012 SERP, 2) plaintiff voted for the

approval of the 2012 SERP, 3) plaintiff was only required to work at defendant HSM for three to

five years until he would be eligible to receive ten years of full benefits, and 4) due to plaintiff’s

age and proximity to retirement, defendant HSM could not build enough value in his life insurance

policy prior to his retirement to fund his benefits under the 2012 SERP. (Id. ¶¶ 41-45).

DISCUSSION

A. Standards of Review

1. Summary Judgment

Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing

the district court of the basis for its motion, and identifying those portions of [the record] which it

believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986).

Once the moving party has met its burden, the non-moving party must then “come forward

with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. Ltd.

v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation omitted). Only disputes

between the parties over facts that might affect the outcome of the case properly preclude the entry

of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (holding

that a factual dispute is “material” only if it might affect the outcome of the suit and “genuine”

only if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving

party).

“[A]t the summary judgment stage the [court’s] function is not [itself] to weigh the

evidence and determine the truth of the matter but to determine whether there is a genuine issue

for trial.” Id. at 249. In determining whether there is a genuine issue for trial, “evidence of the

non-movant is to be believed, and all justifiable inferences are to be drawn in [non-movant’s]

favor.” Id. at 255; see United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (“On summary

judgment the inferences to be drawn from the underlying facts contained in [affidavits, attached

exhibits, and depositions] must be viewed in the light most favorable to the party opposing the

motion.”).

Nevertheless, “permissible inferences must still be within the range of reasonable

probability, . . . and it is the duty of the court to withdraw the case from the [factfinder] when the

necessary inference is so tenuous that it rests merely upon speculation and conjecture.” Lovelace

v. Sherwin-Williams Co., 681 F.2d 230, 241 (4th Cir. 1982) (quotations omitted). Thus, judgment

as a matter of law is warranted where “the verdict in favor of the non-moving party would

necessarily be based on speculation and conjecture.” Myrick v. Prime Ins. Syndicate, Inc., 395

F.3d 485, 489 (4th Cir. 2005). By contrast, when “the evidence as a whole is susceptible of more

than one reasonable inference, a [triable] issue is created,” and judgment as a matter of law should

be denied. Id. at 489-90.

2. Motion to Dismiss

“To survive a motion to dismiss” under Rule 12(b)(6), “‘a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts

all well-pled facts as true and construes these facts in the light most favorable to the plaintiff,” but

does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of

further factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or

arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.

2009) (citations omitted).

B. Analysis

1. Top Hat Exemption

Plaintiff’s motion for judgment on the pleadings and defendants’ partial motion for

summary judgment raise the issue of whether the 2012 SERPs qualify as “top hat” plans. A “top

hat” plan is 1) “unfunded” and 2) “maintained by an employer primarily for the purpose of

providing deferred compensation for a select group of management or highly compensated

employees.” 29 U.S.C. §§ 1051(2), 1081(a)(3), 1101(a)(1). ERISA exempts “top hat” plans from

its fiduciary, participation, vesting, and funding provisions, but reporting and disclosure

requirements still apply. See 29 U.S.C. §§ §§ 1021-1031, 1051(2), 1081(a)(3), and 1101(a)(1).

Accordingly, defendants argue, and plaintiff denies, that the 2012 SERP qualifies as a top hat plan,

and is therefore exempted from ERISA’s fiduciary requirements. The court addresses the two

statutory requirements for “top hat” plans in turn below.

a. Unfunded

On the issue whether the 2012 SERP was “unfunded,” the court notes that ERISA does not

define this term, and the Fourth Circuit has not previously interpreted its meaning. However, in

Demery v. Extebank Deferred Comp. Plan (B), 216 F.3d 283, 285 (2d Cir. 2000), the Second

Circuit addressed whether a plan was unfunded where: 1) the employer took out life insurance

policies on its employees to help pay for its obligations under the plan and 2) the proceeds of the

policies were kept in an account entitled Deferred Compensation Liability Account.

In Demery, the court first recited its previous holding that a plan is unfunded where

“benefits thereunder will be paid solely from the general assets of the employer.” Id. (citing

Gallione v. Flaherty, 70 F.3d 724, 725 (2d Cir. 1995)). Then, the court adopted the following

inquiry as instructive: “can the beneficiary establish, through the plan documents, a legal right any

greater than that of an unsecured creditor to a specific set of funds from which the employer is,

under the terms of the plan, obligated to pay the deferred compensation?” Id. (quoting Miller v.

Heller, 915 F. Supp. 651 (S.D.N.Y. 1996)).

Applying the above test, the court held that the plan was unfunded. Id. at 287. Of particular

importance was the plan’s express terms, which stated:

[T]he Employer's obligation to make payments to any person under this Agreement

is contractual and ... the parties do not intend that the amounts payable hereunder

be held by the Employer in trust or as a segregated fund for the Employee. . . . The

benefits provided under this Agreement shall be payable solely from the general

assets of the Employer, and neither the Employee, the Beneficiary, nor any other

person entitled to payments . . . shall have any interest in any specific assets of the

Employer by virtue of this Agreement. Employer's obligation under the Plan shall

be that of an unfunded and unsecured promise of Employer to pay money in the

future.

Id. Based on those terms, the court concluded that the participants did not have a greater legal

right to insurance proceeds than that of an unsecured creditor, thus the plan was unfunded as a

matter of law. Id.

Other circuits addressing this issue have reached similar conclusions. See Reliable Home

Health Care, Inc. v. Union Cent. Ins. Co., 295 F.3d 505, 514 (5th Cir. 2002) (holding that a plan

was unfunded for purposes of ERISA, even though plan benefits were technically funded through

an insurance policy, since plan participants did not own the insurance policies, and their only right

under the plan was to designate death beneficiaries); Belsky v. First Nat. Life Ins. Co., 818 F.2d

661, 663 (8th Cir. 1987) (holding that a plan was unfunded where an employer “obtained the

insurance policy with the intention that it could be used in funding the Plan” but “the language of

the Plan . . . specifically avoids making a direct tie between the insurance policy and the Plan”).

Here, as in Demery, Belsky, and Reliable Home Health Care, defendant HSM purchased

life insurance policies on the recipients of an ERISA-governed plan, the 2012 SERP. The express

terms of the 2012 SERP provided:

The obligation of the Company to make payments hereunder shall constitute a

liability of the Company to the Executive. Such payments shall be made from the

general funds of the Company, and the Company shall not be required to establish

or maintain any special or separate fund, or otherwise to segregate assets to assure

that such payments shall be made, and the Executive shall not have any interest in

any particular assets of the Company by reason of its obligations hereunder.

Nothing contained in this Agreement shall create or be construed as creating a trust

of any kind or any other fiduciary relationship between the Company and the

Executive or any other person. To the extent that any person acquires a right to

receive payment from the Company, such right shall not be greater than the right

of an unsecured creditor of the Company.

(Am. Comp. Ex. 1 (DE 6)) (emphasis added). Mirroring the plan’s terms in Demery, the above

language makes clear that 2012 SERP benefits are paid out of defendant HSM’s general funds,

and 2012 SERP recipients’ rights to those funds are no greater than those of an unsecured creditor.

Accordingly, under Demery, Belsky, and Reliable Home Health Care, the 2012 SERP was

unfunded as a matter of law.

Plaintiff argues the 2012 SERP is funded because defendant HSM used insurance proceeds

to pay benefits under the 2012 SERP and terminated the 2012 SERP when those proceeds became

insufficient. However, the fact that defendant HSM used the life insurance proceeds to pay his

benefits under the 2012 SERP does not establish that the 2012 SERP was a “funded” plan. Indeed,

the employers in Demery, Belsky, and Reliable Home Health Care also used insurance proceeds

to pay benefits, yet the court in those cases found the plans to be “unfunded” because the plan

recipients did not have a right to the proceeds that was greater than that of an unsecured creditor.

Likewise, here, the terms of the plan unequivocally establish that a 2012 SERP recipient’s right to

proceeds is not greater than that of an unsecured creditor, and defendant HSM’s decision to

terminate the 2012 SERP did not augment this right.

Finally, the fact that defendant HSM created individual rabbi trusts to hold the proceeds of

each insurance policy does not alter the 2012 SERP’s status as unfunded, where the trust

documents indicated: 1) the trust did not affect the 2012 SERP’s status as unfunded, 2)

beneficiaries shall have no preferred claim to the trust assets, 3) the trust assets will be subject to

creditors’ claims in the event of insolvency. See In re IT Group, Inc., 448 F.3d 661, 669-670 (3d

Cir. 2006) (finding a plan to be unfunded where the related rabbi trust documents specified that

the trust “shall not affect the status of the Plans as unfunded plans” and that “Trust assets are

subject to creditors’ claims in the event of insolvency, and that such claims are on par with those

of Plan participants”); see also U.S. Dep’t of Labor Opinion Letter 91-16A (July 2, 1991) (“[A]

plan will not fail to be ‘unfunded’ . . . solely because there is maintained in connection with such

plan a ‘rabbi trust.’”).

b. Select Group

Turning to the second statutory requirement, the court addresses whether the 2012 SERP

was maintained by defendant HSM primarily for the purpose of providing deferred compensation

for a select group of management or highly compensated employees. The Fourth Circuit has not

addressed this requirement in a published opinion. However, in the unpublished opinion Bond v.

Marriott Intern., Inc., the Fourth Circuit explained that whether the group is “select” is determined

by looking both qualitatively and quantitatively. 637 F. App’x 726 (2016) (citing Demery, 216

F.3d at 288). “[I]n number, the plan must cover relatively few employees. In character, the plan

must cover only high level employees.” Id. (citing In re New Valley Corp, 89 F.3d 143, 148 (3d

Cir. 1996)).3

Here, regarding the quantitative factor, defendant HSM granted the 2012 SERP to less than

0.5% of its 2012 workforce of 3,245 employees. (See Def. Mem. (DE 36) at 14; Pl. Opp. Stmt.

(DE 45) ¶ 11; Defs. Stmt. (DE 41) ¶ 11). Thus, the 2012 SERP program was numerically select.

See Demery, 216 F.3d at 289 (holding that a plan offered to 15.34% of employees qualified as a

top hat plan but stating that “this number [was] probably at or near the upper limit of the acceptable

size for a ‘select group’”); Alexander v. Brigham and Women’s Physicians Org., 513 F.3d 37, 44

(1st Cir. 2008) (finding plans maintained for 8.7% and 5.8% of employees to be “select.”); see

also Guiragoss v. Khoury, 444 F. Supp. 2d 649, 660 (E.D. Va. 2006) (“A review of the published

cases reflects that there is no existing authority that affirms top hat status for a plan representing

more than 16% of the total workforce.”).

3 Although the Fourth Circuit briefly discussed how to identify a “select” group, it ultimately determined the

statute of limitations barred the appellants’ ERISA claims; therefore, the Fourth Circuit never reached the question of

whether the plan at issue was a “top hat” plan. Bond, 637 F. App’x at 733. Accordingly, the court must look to other

circuits for guidance on this issue.

Regarding the qualitative factor, both parties agree that the eight 2012 SERP recipients

employed by defendant HSM on the date they received their 2012 SERPs constitute “highly

compensated employees” within the meaning of ERISA. (See Pl. Opp. Stmt. (DE 45) ¶ 9; Defs.

Stmt. (DE 41) ¶ 9). However, plaintiff argues Trimble and Pierce do not qualify as “highly

compensated employees” or management because they were former employees at the time their

2012 SERPs were granted. In support, plaintiff relies on the fact that ERISA defines an

“employee” as “any individual employed by an employer.” 29 U.S.C. § 1002(6). According to

plaintiff, this definition is unambiguous and only encompasses current employees.

However, the Supreme Court’s decision in Robinson v. Shell Oil Co., 519 U.S. 337, 346

(1997) casts doubt on plaintiff’s argument. In that case, the Court interpreted a nearly identical

definition of “employee” in Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e(f)

(“The term ‘employee’ means an individual employed by an employer.”). Importantly, the

Supreme Court concluded that the word “employee” was ambiguous because, as here, the statute

lacked “any temporal qualifier and is consistent with either current or past employment.”

Robinson, 519 U.S. at 342. Indeed, the court explained, “[t]hat the statute could have expressly

included the phrase ‘former employees’ does not aid our inquiry. Congress also could have used

the phrase “‘current employees.’” Id. Then, the Court looked to “broader context of Title VII and

the primary purpose of § 704(a)” and held the term “employee” encompasses former employees.

Id. at 346.

Although not dispositive, the Supreme Court’s holding in Robinson, suggests that the term

“employee” under ERISA also encompasses former employees such as Trimble and Pierce. 4 See

4 In Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 319 (1992), the Supreme Court held that the term

“employee” as it appears in ERISA incorporates traditional agency law criteria for determining whether a person is

an employee or an independent contractor; however, the Court did not address whether the term “employee”

encompasses former employees.

Kokoszka v. Belford, 417 U.S. at 642 (“When interpreting a statute, the court will not look merely

to a particular clause in which general words may be used, but will take in connection with it the

whole statute or statutes on the same subject . . .”); see also Serapion v. Martinez, 119 F.3d 982,

985 (1st Cir. 1997) (“We regard Title VII, ADEA, ERISA, and FLSA as standing in pari passu

and endorse the practice of treating judicial precedents interpreting one such statute as instructive

in decisions involving another.”).

Reference to the definition of “highly compensated employee” in the Internal Revenue

Code (“IRC”) is also probative. In Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon,

the Supreme Court applied the IRC definition of “highly compensated employee” to interpret the

phrase’s meaning in the top hat provision, noting that “Congress enacted ERISA against a

backdrop of IRC provisions” and “Congress’ objective was to harmonize ERISA with

longstanding tax provisions.” 541 U.S. 1, 12-14 (2004). Although the Supreme Court was

addressing a different component of the “highly compensated employee” definition in Hendon, its

reliance on the IRC to interpret the phrase’s meaning within ERISA’s top hat provision is

instructive. As relevant here, the IRC provides “[a] former employee shall be treated as a highly

compensated employee if—(A) such employee was a highly compensated employee when such

employee separated from service.” I.R.C. § 414(q)(6)(A). 5 Accordingly, this definition suggests

Trimble and Pierce’s status as former employees does not preclude a determination that they were

“highly compensated employees.”

5 The preamble to the proposed Section 414(q) regulations states that section 414(q) is not determinative with

respect to any provision of Title I of ERISA because “a broad extension of section 414(q) to determinations under

sections 201(2), 301(a)(3), and 401(a)(1) of ERISA would be inconsistent with the tax and retirement policy objectives

of encouraging employers to maintain tax-qualified plans that provide meaningful benefits to rank-and-file employees.

See 53 Fed. Reg. 4965-01. However, as indicated below, Trimble and Pierce were not rank-and-file employees.

Moreover, this preamble predates the Supreme Court’s decision in Hendon.

Plaintiff argues, however, that Trimble and Pierce cannot qualify as “highly compensated

employees” because “it is impossible to provide deferred compensation, which is compensation

earned today the payment of which is deferred to sometime in the future, to someone who is not

currently employed.” (Pl. Resp. (DE 44) at 7).6 However, the Ninth Circuit’s decision in Duggan

v. Hobbs, 99 F.3d 307 (9th Cir. 1996) forecloses plaintiff’s argument. In Duggan, the court

concluded that the fact the employee entered into the ERISA-governed plan after performing some

of the services he was being compensated for “does not change our view that the Agreement

provides for deferred compensation. The compensation was deferred because [the employee] did

not receive it until well after he rendered most of the services for which he was being

compensated.” 99 F.3d at 311. In reaching that conclusion, the court referred to, among other

authorities, a treatise which provided “[d]eferred compensation arrangements are generally

established either before or at the time of the performance of service to which the compensation

relates. Certain arrangements, especially those that provide supplemental retirement income

benefits, can be adopted after the service has been rendered.” Id. (quoting Andrew J. Lawlor and

Jeffrey Perlmuter, “Nonqualified Deferred Compensation for Key Executives,” in Employee

Benefits Handbook, § 14.01 (Jeffrey D. Mamorsky ed., 3rd ed. 1991). In light of Duggan and the

authorities cited therein, the fact Trimble and Pierce received 2012 SERPs after they provided

services to defendant HSM is immaterial to the court’s present inquiry.

The court next considers whether the top hat exemption’s purpose supports the

classification of Trimble and Pierce as “highly compensated employees.” Review of the relevant

authorities reveals Congress intended to carve out the top hat exemption because “high-echelon

6 Page numbers in citations to documents in the record specify the page number designated by the court’s

electronic case filing (ECF) system, and not the page number, if any, showing on the face of the underlying document.

employees, unlike their rank-and-file counterparts, are capable of protecting their own pension

interests.” Alexander, 513 F.3d at 43 (internal citations omitted); see also Fed. Reg. 34530

(“[C]lass of employees with respect to whom [top hat compliance exemptions] appl[y]—highly

compensated or management employees—generally have ready access to information concerning

their rights and obligations and do not need the protections afforded them by Part 1 of Title I of

the Act.”).

With that purpose in mind, the court evaluates Trimble and Pierce’s respective positions

and compensation levels. As Trimble and Pierce’s salaries were more than twice the average

salary of the employees who did not participate in the 2012 SERP,7 they were highly compensated.

See Alexander, 513 F.3d at 37 (“[T]he employer must be able to show a substantial disparity

between the compensation paid to members of the top-hat group and the compensation paid to all

other workers.”); Demery, 216 F.3d at 289 (finding participants to be highly compensated where

the average salary of plan participants was more than double that of the average salary of all of the

company’s employees). Moreover, by holding positions such as chairman of the board of

directors, general counsel, and vice president of finance, Trimble and Pierce were high-echelon,

rather than rank-and-file employees. Cf. Guiragoss, 444 F. Supp. 2d at 663 (finding that a

salesclerk is not a high-ranking employee); U.S. Dep’t of Labor Opinion Letter 85-37A (Oct. 28,

1985) (plan offered to foremen, an assistant in the cost department, an order department clerk, and

an expediter among others, did not qualify as a top hat plan).

As high-ranking employees, they had access to information concerning their rights and

obligations, so they did not need the extra protections afforded by ERISA. See Fed. Reg. 34530

7 During their final years of employment, Trimble’s salary was $295,679.17, and Pierce’s salary was

$222,217.59. (Pl. Opp. Stmt. (DE 45) ¶¶ 13-14; Defs. Stmt. (DE 41) ¶¶ 13-14). The average salary of nonparticipants

was $61,395.80. (Defs. Stmt. (DE 41) ¶ 12); Pl. Opp. Stmt. (DE 45) ¶ 12).

(“[C]lass of employees with respect to whom [top hat compliance exemptions] appl[y]—highly

compensated or management employees—generally have ready access to information concerning

their rights and obligations and do not need the protections afforded them by Part 1 of Title I of

the Act.”). Although Trimble retired as general counsel in June 2012, and Pierce retired as

chairman of the board of directors on December 31, 2011, their retirement did not erase their

institutional knowledge regarding their rights and obligations, especially in light of the limited

amount of time that elapsed between the dates of their retirement and the grant of their 2012

SERPs. Accordingly, consideration of the top hat exemption’s purpose supports inclusion of

Trimble and Pierce in the category of “highly compensated employees.”

Finally, it bears noting that plaintiff concedes the 2012 SERP was intended to be a top hat

plan (Pl. Opp. Stmt. (DE 45) ¶ 24; Defs. Stmt. (DE 41) ¶ 24; Pl. Am. Compl. (DE 6) ¶ 53) and that

he was a “highly compensated employee.” (Pl. Opp. Stmt. (DE 45) ¶¶ 8-9; Defs. Stmt. (DE 41)

¶¶ 8-9). Indeed, he was president and chief executive officer of defendant HSM, he served on

defendant HSM’s board of directors and on defendant compensation committee, and he received

a salary of $761,194.53. (Pl. Opp. Stmt. (DE 45) ¶ 10; Defs. Stmt. (DE 41) ¶ 10; Am. Compl. (DE

6) at 1). He was also involved in the implementation of the 2012 SERP—plaintiff asked Donovan

to put together a SERP proposal for plaintiff to review (Pl. Aff. (DE 46-1) ¶ 4), and plaintiff told

defendant compensation committee that he did not think it needed to approve Trimble and Pierce’s

SERP agreements (Pl. Opp. Stmt. (DE 45) ¶ 18; Defs. Stmt. (DE 41) ¶ 18). In light of the above,

plaintiff possessed significant bargaining power and influenced the terms of the 2012 SERP, which

is consistent with the purpose of the top hat exemption.

In sum, in consideration of the Supreme Court’s holding in Robinson, the definition of

“highly compensated employee” in the IRC, the top hat exemption’s purpose, and Trimble and

Pierce’s respective positions and compensation levels, the court finds in this instance that Trimble

and Pierce’s inclusion in the 2012 SERP program does not abrogate the 2012 SERP’s status as a

top hat plan. As such, ERISA exempts the 2012 SERP from its fiduciary provisions, see 29 U.S.C.

§§ 1051(2); 1081(a)(3); and 1101(a)(1), and plaintiff’s second and third claims for relief for breach

of fiduciary duty fail as a matter of law. Given the court’s resolution of the issue of top hat status,

defendants’ partial motion for summary judgment is granted in this part, and plaintiff’s motion for

judgment on the pleadings is denied.

2. ERISA Preemption

In defendants’ motion for partial summary judgment, defendants argue ERISA preempts

plaintiff’s claim for unpaid wages under the NCWHA. Additionally, in the instant motion to

dismiss, plaintiff argues ERISA preempts defendant HSM’s counterclaims for rescission and

constructive fraud.

Section 514 explicitly provides that ERISA preempts all laws that “relate to” an employee

benefit plan. 29 U.S.C. § 1144(a); see Shaw v. Delta Airlines, 463 U.S. 85, 96 (1983). Although

previously the Supreme Court defined the scope of § 514 preemption as “deliberately expansive,”

Pilot Life Ins. Co v. Dedeaux, 481 U.S. 41, 46 (1987), more recently the Court noted that it had

“to recognize that our prior attempt to construe the phrase ‘relate to’ does not give us much help

drawing the line” for preemption. N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers

Ins. Co., 514 U.S. 645, 655–56 (1995). Accordingly, the Court explained that it was necessary to

“go beyond the unhelpful text and the frustrating difficulty of defining [§ 514’s] key term and look

instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress

understood would survive.” Id. at 656. Upon consideration of those objectives, the Court held

“[t]he basic thrust of [ERISA's] preemption clause . . . was to avoid a multiplicity of regulation in

order to permit the nationally uniform administration of employee benefit plans.” Id. at 657.

In light of this guiding principle, “the Supreme Court has explained that Congress intended

ERISA to preempt at least three categories of state law: (1) laws that mandate[] employee benefits

structures or their administration; (2) laws that bind employers or plan administrators to particular

choices or preclude uniform administrative practice; and (3) laws providing alternate enforcement

mechanisms for employees to obtain ERISA plan benefits.’” Great-West Life & Annuity Ins. Co.

v. Info. Sys. & Networks Corp., 523 F.3d 266, 270 (4th Cir. 2008) (quoting Wilmington Shipping,

496 F.3d at 342) (emphasis in the original).

According to the United States Court of Appeals for the Fourth Circuit, “[a] key feature of

these categories of laws is that they implicate the relations among the traditional ERISA plan

entities” contrasted to “state actions [that] may affect employee benefit plans in too tenuous,

remote, or peripheral a manner,” such as “run-of-the-mill state-law claims such as unpaid rent,

failure to pay creditors, or even torts committed by an ERISA plan.” Id. (quoting Wilmington

Shipping, 496 F.3d at 342; Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n.21 (1983); Mackey

v. Lanier Collection Agency & Svc., Inc., 486 U.S. 825, 833 (1988)).

a. Defendant HSM’s Counterclaims

Here, defendant HSM asserts counterclaims for 1) rescission of the 2012 SERP and

recoupment of benefits paid to plaintiff under the 2012 SERP, on grounds that plaintiff’s conflict

of interest rendered the 2012 SERP voidable at defendant HSM’s election and 2) constructive

fraud, on grounds that plaintiff’s involvement in the implementation of the 2012 SERP constituted

a breach of his fiduciary duty to defendant HSM. (Counterclaims (DE 34) ¶¶ 53-62). Plaintiff

argues these counterclaims “relate to” the 2012 SERP and are thus preempted by ERISA.

As an initial matter, the court notes that the Fourth Circuit has not addressed the preemption

issue directly before the court. However, the Sixth Circuit’s decision in Davies v. Centennial Life

Ins. Co., 128 F.3d 934 (6th Cir. 1997) is instructive. In Davies, plaintiffs alleged defendants

violated ERISA § 502 by denying a claim for benefits under a group health policy, and defendants

filed counterclaim, seeking rescission of the health policy under an Ohio statute. 128 F.3d at 938.

Defendants argued ERISA did not preempt their counterclaim because it was based on alleged

misrepresentations plaintiff made before the parties formed the ERISA-governed plan. On appeal,

the Sixth Circuit rejected defendants’ argument by stating:

state law claims for rescission of an ERISA plan and for restitution based on fraud

and misrepresentation occurring before the ERISA plan existed are not preempted,

the claims not being for plan benefits or an increase in plan benefits. In the present

case, however, plaintiffs’ claim is for plan benefits; it is defendants’ claim for

rescission that is not. Because defendants’ claim is essentially an affirmative

defense, it is inextricably interwoven with plaintiff’s claim for benefits. Resolution

of defendants’ claim for rescission requires an interpretation of the terms and

conditions of [plaintiff’s] health insurance contract, a contract that is part of the

ERISA-governed plan under which she seeks benefits.

Id. at 940 (emphasis in original). The court went on to state that since “defendants are simply

attempting to deny benefits under the plan . . . [their counterclaim] ‘relates to’ an employee benefits

plan governed by ERISA.” Id.

Here, as in Davies, plaintiff asserts a claim for denial of benefits in violation of ERISA §

502, and defendant HSM asserts counterclaims for rescission of an ERISA-governed plan, the

2012 SERP, based on alleged fraud and other conduct that occurred prior to the enactment of the

plan. Thus, under Davies, plaintiff’s claim for benefits under ERISA and defendant HSM’s

counterclaims are “inextricably interwoven.” 128 F.3d at 940.

Their interrelatedness is further elucidated by the possibility of inconsistent judgments if

defendant HSM prevails on its counterclaims and recoups benefits previously paid to plaintiff

under the 2012 SERP, and plaintiff prevails on his ERISA claims. In that event, the law governing

the 2012 SERP would be conflicted, impeding ERISA’s main objective of “uniform administration

of employee benefit plans.” Travelers, 514 U.S. at 657; see also Shepherd v. Cmty First Bank,

No 8:15-04337-MGL, 2017 WL 5004456, at *4 (D.S.C. Nov. 1, 2017) (“[I]f Defendants were to

prevail on their claims and to recover Plan payments they made to Plaintiff as damages, and

Plaintiff were to prevail on his ERISA claims, an inconsistent judgment would result, and there

would be a conflict in the law governing the Plan. Such a result is contrary to the objectives of

ERISA preemption of developing a uniform body of benefits law.”).

Finally, as in Davies, resolution of defendants’ counterclaims will require an evaluation of

the terms of the 2012 SERP. In its counterclaims, defendant HSM asserts plaintiff breached his

fiduciary duty to defendant HSM by falsely representing that the 2012 SERP would be a cash-

neutral program. (See Counterclaim (DE 34) ¶¶ 40-41). Logically, evaluation of the merits of this

claim will involve scrutiny of the 2012 SERP’s terms to determine if it is in fact a cash-neutral

program. Therefore, ERISA preempts defendant HSM’s counterclaims.

Cases cited by defendant HSM are distinguishable. For example, in Trs. of the AFTRA

Health Fund v. Biondi, 303 F.2d 765 (7th Cir. 2002), trustees of an ERISA-governed health fund

brought a claim for common law fraud against one of the fund’s participants, alleging the

participant failed to notify the fund of his divorce, causing the fund to continue to provide his ex-

wife with benefits. Although the Seventh Circuit ultimately held that ERISA did not preempt the

state law claim for fraud, Biondi is distinguishable because it did not involve a claim for benefits

under the fund by the participant. See Davies, 128 F.3d at 940 (emphasis in original) (“[S]tate law

claims for rescission of an ERISA plan and for restitution based on fraud and misrepresentation

occurring before the ERISA plan existed are not preempted, the claims not being for plan benefits

or an increase in plan benefits.”). Thus, it could not be said that the state law claim for fraud was

“inextricably interwoven” with a claim for benefits under an ERISA-governed plan. Id.

Boston Children’s Heart Found., v. Nadal-Ginard, 73 F.3d 429 (1st Cir. 1996) also cited

by defendant, is distinguishable as well, where that case did not involve a claim for plan benefits

either. Instead, in that case, a corporation filed complaint against a member of its board of

directors, alleging among other claims, that the board member breached his fiduciary duty while

implementing a severance benefit plan governed by ERISA. Nadal-Ginard, 73 F.3d at 438.

Although Nadal-Gindard is admittedly closer to the instant case than Biondi, it did not involve a

claim for benefits or increase in benefits by the board member, making it distinguishable on

grounds articulated by the Sixth Circuit in Davies.

In sum, ERISA “relates to” and thus preempts defendant HSM’s counterclaims for

rescission and constructive fraud. Accordingly, defendant HSM’s counterclaims are dismissed

with prejudice.8

b. Plaintiff’s NCWHA Claim

In plaintiff’s fourth claim for relief, plaintiff seeks unpaid wages owed to him under the

2012 SERP, pursuant to NCWHA. Defendants argue that ERISA preempts this claim. 9

In a similar case, the Fourth Circuit held that a NCWHA claim for benefits under an

ERISA-governed severance plan “relates to” an employment benefit plan and is therefore

preempted by ERISA. See Holland v. Burlington Indus., Inc., 772 F.2d 1140, 1147 (4th Cir. 1985)

(“[W]e have no trouble concluding that the state actions at issue are preempted. The state law here

8 Where all claims asserted against plaintiff have been dismissed, plaintiff is directed to show cause within 14

days of the date of this order why his cross claim for contribution and his claim for indemnification should not

dismissed as moot.

9 Plaintiff did not address this argument in his response in opposition to the instant motion. (See Pl. Resp. (DE

44)).

essentially requires employers to pay wages due upon termination of employment, N.C. Gen. Stat.

§ 95–25.7. Insofar as this statute is invoked in pursuit of benefits allegedly due under Burlington's

severance pay plan, it “relates to” an employee benefit plan covered by ERISA.”). In accordance

with Holland, plaintiff’s NCWHA claim for benefits allegedly owed under the 2012 SERP “relates

to” an employment benefit plan and therefore preempted by ERISA. Accordingly, the court grants

defendants’ motion for partial summary judgment in this part and dismisses plaintiff’s claim with

prejudice.

CONCLUSION

Based on the foregoing, the court ORDERS the following:

1) Plaintiff’s motion to dismiss defendant HSM’s counterclaims (DE 24) and defendants’

motion for partial summary judgment (DE 35) are GRANTED, and plaintiff’s motion for

judgment on the pleadings (DE 37) is DENIED. Defendant HSM’s counterclaims for

rescission and constructive fraud are DISMISSED WITH PREJUDICE. Plaintiff’s second,

third, and fourth claims for relief are DISMISSED WITH PREJUDICE.

2) Where all claims asserted against plaintiff have been dismissed, plaintiff is DIRECTED to

show cause within 14 days of the date of this order why his cross claim for contribution

and his claim for indemnification should not be DISMISSED WITHOUT PREJUDICE AS

MOOT.

3) Plaintiff’s claim for improper denial of benefits in violation of ERISA § 502(a)(1) is

ALLOWED to proceed.

4) The court LIFTS stay on pending case activities.

5) Where the court entered initial scheduling order June 24, 2019, the parties are DIRECTED

to file joint report and plan, as described in the court’s initial scheduling order, proposing

discovery limitations and deadlines pertaining to plaintiffs remaining claim, not later than

14 days after the date of this order. Thereupon the court will enter such further order as is

warranted regarding scheduling.

SO ORDERED, this the 24th day of March, 2020.

( Bie W. FLANAGAN

nited States District Judge

29