Petition for Writ of Certiorari — T. Kimberly Williams, Petitioner v. Elton Corporation, et al.

Supreme Court briefMay 5, 2025

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APPENDIX TABLE OF CONTENTS

Appendix A: United States District Court

for the District of Delaware, Judgment,

December 13, 2024 ........................................

Appendix B: United States Court of Appeals

for the Third Circuit, Opinion, September 18,

2024 ..........................................................................

Appendix C: Letter from Third Circuit Clerk

Patricia Dodszuweit, July 5, 2024 ....................

40a

Appendix D: United States District Court

for the District of Delaware, Order Appointing

Special Master, March 6, 2023 ...........................

42a

Appendix E: United States District Court

for the District of Delaware, Memorandum

and Order, March 3, 2023 .............................

49a

Appendix F: United States Court of Appeals

for the Third Circuit, Denial of Rehearing,

December 4, 2024 .................................................

57a

Appendix G: Correspondence Regarding the

Trust .....................................................................

60a

Appendix H: Transcript Excerpts

74a

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

LUCY DUNNE, Representative for Helena

Dupont Wright; JAMES MILLS; JOSEPH

WRIGHT, and T. KIMBERLY WILLIAMS,

Plaintiffs/Counter-defendants,

vs.

ELTON CORPORATION, GREGORY

FIELDS, FIRST REPUBLIC TRUST

COMPANY OF DELAWARE LLC, and

M.C. DUPONT CLARK EMPLOYEES

PENSION TRUST,

Defendants/Counterclaimants/

Third-party Plaintiffs,

vs.

JAMES B. WYETH, Solely as Executor

and Personal Representative of the Estate

of Phyllis M. Wyeth, MARY MILLS ABEL

SMITH, CHRISTOPHER T. DUPONT,

LUCY DUNNE, representative for HELENA

DUPONT WRIGHT, KATHARINE D.

GAHAGAN and JAMES MILLS,

Third-party defendants.

C.A. NO. 17-286-JFB

JUDGMENT

In light of the Order and Mandate of the United

States Court of Appeals for the Third Circuit, D.I. 563,

judgment is hereby entered in favor of Elton

Corporation, Gregory Fields, First Republic Trust

Company of Delaware LLC, and the M.C. duPont

Clark Employees Pension Trust as to Plaintiffs’ claims,

and in favor of Lucy Dunne as representative for

Helena Dupont Wright, James Mills, Mary Mills Abel

Smith, Christopher T. duPont, James B. Wyeth as

representative of the estate of Phyllis M. Wyeth, and

Katharine D. Gahagan as to First Republic’s

counterclaims/third-party complaint. There being no

remaining claims, this cased is closed.

Dated this 13th day of December, 2024.

BY THE COURT:

s/ Joseph F. Bataillon

Senior United States District Judge

APPENDIX B

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 23-1499, 23-1501, 23-1503, 23-1511, 23-1518,

23-1526, 23-1546, 23-1868 & 23-1869

LUCY DUNNE, REPRESENTATIVE FOR HELENA

DUPONT WRIGHT; JAMES MILLS; JOSEPH

WRIGHT; T. KIMBERLY WILLIAMS

ELTON CORPORATION; GREGORY FIELDS;

FIRST REPUBLIC TRUST COMPANY OF

DELAWARE LLC; M.C. DUPONT CLARK

EMPLOYEES PENSION TRUST FIRST REPUBLIC

TRUST COMPANY OF DELAWARE LLC; M.C.

DUPONT CLARK EMPLOYEES PENSION TRUST

MARY MILLS ABEL SMITH; CHRISTOPHER T.

DUPONT; MICHAEL DUPONT; JAMES B.

WYETH, SOLELY AS EXECUTOR AND

PERSONAL REPRESENTATIVE OF THE ESTATE

OF PHYLLIS M. WYETH; KATHARINE D.

GAHAGAN JAMES B. WYETH, SOLELY AS

EXECUTOR AND PERSONAL

REPRESENTATIVE OF THE ESTATE OF

PHYLLIS M. WYETH,

Appellant in 23-1499

LUCY DUNNE,

Appellant in 23-1501

MARY MILLS ABEL SMITH; KATHARINE D.

GAHAGAN,

Appellants in 23-1503

ELTON CORPORATION,

Appellant in 23-1511

CHRISTOPHER T. DUPONT,

Appellant in 23-1518

FIRST REPUBLIC TRUST COMPANY OF

DELAWARE LLC,

Appellant in 23-1526 & 23-1868

JAMES MILLS,

Appellant in 23-1546

LUCY DUNNE, REPRESENTATIVE FOR HELENA

DUPONT WRIGHT; JAMES MILLS; MARY MILLS

ABEL SMITH; CHRISTOPHER T. DUPONT;

JAMES B. WYETH, SOLELY AS EXECUTOR AND

PERSONAL REPRESENTATIVE OF THE ESTATE

OF PHYLLIS M. WYETH; KATHARINE D.

GAHAGAN,

Appellants in 23-1869

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil Action No. l-17-cv-00286)

District Judge: Honorable Joseph F. Bataillon

Argued July 9, 2024

Before: SHWARTZ, PHIPPS, and MONTGOMERYREEVES, Circuit Judges.

(Opinion filed: September 18, 2024)

Margherita A. Capolino

Caroline English

Pascal F. Naples

ArentFox Schiff

1717 K Street NW

Washington, DC 20006

Counsel for Plaintiff-Appellee James Mills

Elizabeth Hopkins [ARGUED]

Susan L. Meter

Kantor & Kantor

9301 Corbin Avenue, Suite 1400

Northridge, CA 91324

Teresa Renaker

Kristen G. Scott

Renaker Scott

505 Montgomery Street, Suite 1125

San Francisco, CA 94111

Counsel for Plaintiff-Appellee T. Kimberly

Williams

April C. Ishak

AC Ishak Law

224 N Washington Street

Havre de Grace, MD 21078

Counsel for Third Party-Appellee Lucy Dunne,

representative for Helena duPont Wright

Curtis J. Crowther

Robinson & Cole

1201 N Market Street, Suite 1406

Wilmington, DE 19801

Linda L. Morkan

Robinson & Cole

280 Trumbull Street

One Commercial Plaza

Hartford, CT 06103

Timothy J. Snyder

Young Conaway Stargatt & Taylor

1000 N King Street

Rodney Square

Wilmington, DE 19801

Counsel for Defendant-Appellee Elton Corp

Melissa D. Hill

Morgan Lewis & Bockius

101 Park Avenue

New York, NY 10178

Brian M. Killian [ARGUED]

James D. Nelson

Morgan Lewis & Bockius

1111 Pennsylvania Avenue NW, Suite 800 North

Washington, DC 20004

Counsel for Defendant-Appellee First Republic

Trust Co of Delaware LLC

Myra Benjamin

Nixon Peabody

799 9th Street NW, Suite 500

Washington, DC 20001

Charles M. Dyke

Nixon Peabody

One Embarcadero Center, 32nd Floor

San Francisco, CA 94111

David G. Holmes

Christopher P. Simon

Michael L. Vild

Cross & Simon

1105 N Market Street, Suite 901

Wilmington, DE 19899

Counsel for Third Party-Appellees Mary Mills

Abel-Smith and Katherine D. Gahagan

Russell L. Hirschhorn

Proskauer Rose

11 Times Square

New York, NY 10036

John E. Roberts

Proskauer Rose

One International Place

Boston, MA 02110

Jennifer C. Wasson

Potter Anderson & Corroon

1313 N Market Street, 6th Floor

Wilmington, DE 19801

Counsel for Christopher T. duPont

Anthony F. Shelley [ARGUED]

Theresa S. Gee

Miller & Chevalier

900 16th Street NW, Suite 900

Washington, DC 20006

C. Scott Reese

Cooch & Taylor

1007 N Orange Street

The Nemours Building, Suite 1120

Wilmington, DE 19801

Counsel for James B. Wyeth, solely as executor

and personal representative of the estate of

Phyllis M. Wyeth

OPINION*

MONTGOMERY-REEVES, Circuit Judge.

Generosity can be costly. In the 1940s, the

matriarch of the duPont family, Mary Chichester

duPont,1 established a trust (the “Trust”) to pay

pensions to certain domestic employees who worked

This disposition is not an opinion of the full Court and pursuant

to I.O.P. 5.7 does not constitute binding precedent.

For clarity, this Opinion refers to Mary Chichester duPont

using her first name. We mean no disrespect.

for Mary, her children, or her grandchildren. Mary

funded the Trust with a sizeable grant of stock. But

the cost of paying the pensions has ballooned over the

decades, and the Trust is now severely underfunded.

In 2016, T. Kimberly Williams—an employee of

Helena duPont Wright, one of the

Grandchildren2—filed a lawsuit alleging that the Trust

is an employee benefit plan covered by the employee

Retirement and Income Security Act of 1974 (“ERISA”.

Among other things, Williams alleged that the current

trustee, First Republic Trust Company of Delaware,

LLC (“First Republic”); the former trustee, Elton

Corporation (“Elton Corp.”); and the Grandchildren

(collectively, “Appellants”) are liable under ERISA for

the Trust’s underfunding.

Appellants fought every aspect of the lawsuit,

including Williams’s constitutional standing to sue and

whether ERISA applies to the Trust. At summary

judgment, the District Court held that Williams has

Article III standing and that the Trust is an employee

benefit plan covered by ERISA. Following a bench

trial, the District Court determined that Appellants

2 “Grandchildren” refers to the six grandchildren of Mary who are

parties to these consolidated appeals: Wright, substituted and

represented by her attorney-in-fact, Lucy Dunne; Janies Mills;

Mary Mills Abel-Smith; Christopher T. duPont; the estate of

Phyllis M. Wyeth, represented by its executor, James B. Wyeth;

and Katharine D. Gahagan.

For clarity, this Opinion refers to Christopher T. duPont using his

first name. Again, we mean no disrespect.

violated ERISA; found them jointly and severally liable

for the Trust’s underfunding; and appointed a special

master to serve as trustee. This appeal followed.

For the reasons explained below, we hold that

the District Court correctly determined that Williams

has Article III standing, but the District Court erred in

holding that ERISA’s coverage provision is triggered

on the facts of this case. Thus, we will (1) affirm-inpart and reverse-in-part the District Court’s judgment

and (2) vacate the District Court’s order appointing a

special master.

BACKGROUND

The Trust

In 1947, Mary established the Trust to pay

pensions to certain employees who worked for Mary,

her children, or her grandchildren.3 Eligible employees

were entitled to an annuity equal to a percentage of

the annual compensation that they earned upon

reaching the age of 65 or otherwise becoming eligible

for a benefit. Mary funded the Trust with shares of

stock in a holding company that ultimately merged

into the eponymous duPont Company.

Mary recorded her intent in a trust document

(the “Trust Document”). Among other things, the Trust

Document named three of Mary’s children as the

The Grandchildren were minor children—or not yet

born—when Mary established the Trust.

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initial trustees and empowered the current trustees (or

trustee) to pick their successors (or successor). The

Trust Document also vested the trustees (or trustee)

with exclusive powers over the Trust and its assets.

The Trust—which is irrevocable—automatically

terminates upon the earlier of (1) twenty years after

the death of Mary’s last surviving grandchild who also

was alive when Mary executed the Trust, or (2)

whenever the Trust’s assets are exhausted. Benefits

stop if the Trust ends.

Operation of the Trust

During most of the years relevant to this appeal,

the trustee was Elton Corp., an entity wholly owned by

Mary’s child, Felix duPont, and then by his heirs.

While Elton Corp. was the trustee, the relevant

duPonts—including the Grandchildren—generally

were “responsible for notifying Elton Corp. of

employees who might be eligible to receive benefits

under the [T]rust.”Wrig/i£ v. Elton Corp., C.A. No. 17286, 2023 WL 1112022, at *4 (D. Del. Jan. 25, 2023)

(hereinafter, “Post-Trial Op.

“After receiving a

letter from [a relevant duPont],” Elton Corp. would

“evaluate Q the information to determine whether it

agreed that the submitted employee was eligible for

benefits” and “confirm”that determination “in writing

to the employee.” Id. Elton Corp. has the power to

“deci[de]... how to interpret the [T]rust [Document].”4

4 Post-Trial Op. *5. While Elton Corp. was the trustee, it appears

that eligible employees could and did contact Elton Corp. directly

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And Elton Corp. sometimes interpreted the Trust

Document in a manner that may have been contrary to

the pecuniary interests of some of the relevant

duPonts, such as by “interpret[ing] the [T]rust

[Document] not to include employees of any corporate

entity that was [engaged in a] for-profit business or

profit-making activity.” Id.

The Grandchildren’s connection to the Trust

grew even more tenuous when First Republic

succeeded Elton Corp. as the trustee in 2015. While

acting as trustee, “First Republic ma[de] all

determinations related to the trust administration.”

Id. at *5. And “no other person or entity . . . ha[d]

oversight over First Republic’s administration of the

[Trust].” Id. Indeed, “First Republic d[id] not

communicate with the [relevant duPonts] at all” while

administering the Trust, “hav[ing] determined that

[the individual duPonts] [were] not interested parties

and h[e]ld no power under the [T]rust [D]ocument to

give any input or direction for trust administration

purposes.” Id.

Except for Christopher,5 each Grandchild had at

to request benefits under the Trust, without the involvement of a

Grandchild or other relevant duPont.

5 When discussing the Trust’s solvency, the District Court stated,

“The record shows that each of [the Grandchildren] had or have

employees who are receiving pensions, have been chosen to receive

a pension in the future, or are entitled to receive pensions now or

in the future.”Post-Trial Op. *17. There does not appear to be any

dispute, however, that one of the Grandchildren, Christopher, did

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least one employee who received, was eligible to

receive, or was promised a pension under the Trust.

The Trust did not maintain separate accounts for each

beneficiary or employer and relied on a common pool

of assets to pay benefits. At various times, the

Grandchildren received “pension trust financial

statements,” id. at *4; “contemplated the possibility of

correcting ‘whatever flaws may exist’ in the [T]rust,

including [by] making contributions to the [Trust],” id.

at *7; and participated in decisions about selecting a

successor trustee to Elton Corp. But “one of the

[Grandchildren were ever appointed as trustees of the

[T]rust,” id. at *4, or made any contributions to the

Trust.

“Employees were not necessarily told about the

existence of the [T]rust or their potential eligibility for

benefits under the [T]rust.” Id. Indeed, one

not personally employ anyone who received, was eligible to

receive, or was promised a pension under the Trust. And while the

District Court held that Christopher might be liable because he

partially owns Elton Corp., either the District Court’s post-trial

opinion nor Williams (1) suggests that Christopher and Elton

Corp. are or were members of a controlled group or (2) otherwise

explains how Elton Corp. ’s employment of a beneficiary can be

imputed to Christopher. Thus, the record contains no evidence

that Christopher personally was an employer for ERISA purposes

in relation to the Trust. And a factual finding to the contrary

would be clearly erroneous. B. S. M. v. Upper Darby Sch. Dist.,

103 F.4th 956, 962-63 (3d Cir. 024) (“finding of fact is clearly

erroneous when, after reviewing the evidence, the court of appeals

is left with a definite and firm conviction that a mistake has been

committed.”(quoting Shore Reg’l High Sch. Bd. of Educ. v. P.S.,

381 F.3d 194, 199 (3d Cir. 2004))).

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Grandchild—Wright—does not appear to have realized

until approximately 2014 that her employees might be

eligible for benefits under the Trust.

Insolvency of the Trust6

Mary funded the Trust with a grant of stock in

the 1940s. No contributions have been made since.

And the cost of paying the pensions mushroomed over

the decades. As of 2022, the Trust had assets of $2.7

million to cover estimated liabilities with a present

value of $38 million. “The [Trust] today lacks sufficient

assets to pay the benefits it currently owes to vested

participants over age 65.” Id. at *17 n.7. And if the

Trust were to “place Q in pay status all the participants

who are currently entitled to receive pensions, ... it

w[ould] immediately exhaust all its current assets.” Id.

Procedural History

In 2016, Wright; Williams; James Mills, one of

the Grandchildren; and Joseph Wright,7 an employee

of Mills, filed the operative complaint (the

“complaint”). The Complaint named as Defendants

The District Court’s factual findings related to insolvency

presumed that the Trust is a defined-benefit plan covered by

ERISA. As explained below, that presumption was incorrect.

7 Joseph Wright (who has no relation to Helena duPont Wright)

died while this case was pending and is not a party to this appeal.

References to “right”herein refer to Helena duPont Wright, not

Joseph Wright.

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Elton Corp., First Republic, and the Trust.8 Broadly

speaking, the Complaint sought (1) a declaratory

judgment confirming that the Trust is an employee

benefit plan covered by ERISA; (2) prospective relief to

bring the Trust into compliance with ERISA; and (3)

retrospective relief for alleged violations of ERISA.

First Republic filed counterclaims against

Wright and Mills and third-party claims against the

remaining Grandchildren. Those claims sought to

compel the Grandchildren to fund the Trust if the

District Court were to hold that the Trust is an

employee benefit plan covered by ERISA.

After First Republic filed its claims, Williams

sought leave to file an amended complaint that, among

other things, would have realigned the parties to name

the Grandchildren as Defendants. The District Court

denied the request, explaining that the District Court

could achieve the same result by adjusting the order of

proof. Wright and Mills eventually dismissed their

claims, effectively aligning themselves with the other

Grandchildren as Third-Party Defendants.

At summary judgment, the District Court held

that the Trust is an employee benefit plan covered by

ERISA, and that Williams has Article III standing to

sue. Post-trial, the District Court concluded that First

Republic, Elton Corp., and each of the Grandchildren

The Complaint also named as a Defendant Gregory Fields, an

Elton Corp. employee. The District Court dismissed Fields from

this case. The Parties do not appeal his dismissal.

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violated ERISA; found them jointly and severally liable

for the Trust’s underfunding; and appointed a special

master to serve as trustee.

Several Grandchildren sought and obtained the

District Court’s permission to file an interlocutory

appeal under 28 U.S.C. § 1292(b) before the special

master completed his work and the District Court

entered a final judgment. This Court accepted the

interlocutory appeal and consolidated separate appeals

filed by Elton Corp., First Republic, and the other

Grandchildren, respectively. We now resolve those

appeals.

II.

DISCUSSION9

This appeal presents two threshold questions:

Does Williams have standing to sue under Article III

of the Constitution? If so, has Williams shown that she

participates in an employee benefit plan covered by

ERISA? We take both questions below.

9 The District Court had subject-matter jurisdiction under 28

U.S.C. § 1331.

We have appellate jurisdiction under 28 U.S.C. § 1292(b) because

each issue that the Parties raise on appeal is “fairly included

within” the District Court’s post-trial order. See Yamaha Motor

Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996) (citations

omitted). And “[w]e always have jurisdiction to determine our own

jurisdiction^]” Janssen Prods., L.P. v. eVenus Pharms. Lab’s Inc.,

85 F.4th 147, 150 (3d Cir. 2023) (citing United States u. Kwasnik,

55 F.4th 212, 215 (3d Cir. 2022)).

16a

Article III Jurisdiction10

We begin, as we must, with jurisdiction. See,

e.g., Hamilton v. Bromley, 862 F.3d 329, 334 (3d Cir.

2017) (“Article III jurisdiction is always an antecedent

question.” (quoting Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 101 (1998))). Because Article III of

the Constitution “limits the jurisdiction of federal

courts to ‘Cases’ and ‘Controversies,’” Williams must

satisfy “the irreducible constitutional minimum of

standing” to bring this suit. Lujan v. Defs. of Wildlife,

504 U.S. 555, 559-60 (1992). To establish

constitutional standing, Williams must show three

things:

Williams “suffered an injury in fact that

is concrete, particularized, and actual or

imminent”

Appellants “caused”Williams’s injury;

and

the

“judicial relief’that Williams

“request[s]” “would likely... redress” her

injury.

Thole v. U. S. Bank N.A., 590 U.S. 538, 540 (2020)

(cleaned up) (citing Lujan, 504 U.S. at 560—61).

10 “We exercise de novo review over [the] [District [C]ourt’s legal

conclusions related to standing and review the factual elements

underlying that determination for clear error.” Perelman v.

Perelman, 793 F.3d 368, 373 (3d Cir. 2015) (citing Edmonson v.

Lincoln Natl Life Ins. Co., 725 F.3d 406, 414 (3d Cir. 2013)).

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Appellants raise two challenges to Williams’s

Article III standing. First, the Grandchildren argue

that even if we assume for the sake of argument that

ERISA applies to the Trust, Williams would not have

standing to sue the Grandchildren for whom she did

not work because the Trust could create—at most—a

separate single-employer plan for each Grandchild.11

And Williams lacks constitutional standing to bring

claims under ERISA against employers for whom she

did not work about employee benefit plans in which

she did not participate. Second, Elton Corp. argues

that Williams has not shown injury because she does

not allege that the Trust has failed to pay Williams

any benefits currently due, and the record contains no

evidence that the Grandchildren would be unable to

fund the Trust if ordered to do so. We address each

argument below.

Standing to Sue All

Employers12

11 For a discussion of single-employer plans, see infra Section

II.B.l.

12 The Grandchildren do not challenge Williams’s prudential or

statutory standing. See generally Leuthner u. Blue Cross & Blue

Shield of Ne. Pa., 454 F.3d 120, 125 (3d Cir. 2006) (“To bring a

civil action under ERISA, a plaintiff must have constitutional,

prudential, and statutory standing”.

First Republic makes a passing reference to Williams’s statutory

standing to sue the Grandchildren besides Wright if the Trust is

not a multiple-employer plan. This issue is best addressed when

analyzing ERISA coverage because whether ERISA applies to the

Trust logically is antecedent to whether Williams is a

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The Grandchildren argue that the only

Grandchild whom Williams has standing to sue is her

employer, Wright.13 According to the Grandchildren,

the Trust creates—at most—separate “single-employer

ERISA plan[|” for each Grandchild. Grandchildren

Opening Br. 36. Williams “could suffer no injury from

ERISA plans in which she did not participate and from

the employers who sponsor them and for whom she did

not work[,]” the Grandchildren assert. Id. So “t follows

that Williams lacks constitutional standing to sue the

Grandchildren who are not her employer.”/c/.

This argument fails for two reasons. First,

Williams consistently has alleged that the Trust is one

single-employer plan covering eligible employees of the

relevant members of the duPont family (i.e., a

“participant” in an employee benefit plan under ERISA § 502(a),

29 U.S.C. § 1132(a). The case law is not clear about if statutory

standing is jurisdictional under ERISA. Compare Miller v. Rite

Aid Corp., 334 F.3d 335, 345 (3d Cir. 2003) (holding that a court

lacks jurisdiction unless plaintiff proves statutory standing), with

N. Jersey Brain & Spine Ctr. v. Aetna, Inc., 801 F.3d 369, 371 n.3

(3d Cir. 2015) (holding that a defendant in an ERISA case

properly filed a motion to dismiss for lack of statutory standing

under Federal Rule of Civil Procedure 12(b)(6)). Regardless, we

may take the threshold issues of statutory standing and ERISA

coverage in our preferred order because statutory standing does

not implicate this Court’s constitutional jurisdiction under Article

III. See generally Graden u. Conexant Sys. Inc., 496 F.3d 291,

294—95 (3d Cir. 2007) (discussing the differences between Article

III, prudential, and statutory standing).

13 Wright is the only Grandchild who has employed Williams.

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multiple-employer plan).14 That premise might be

false. See infra Section II.B.l. But we must assume

that it is true when analyzing Article III standing.15

And if the Trust is a multiple-employer plan, Williams

would have Article III standing to sue each of the

Grandchildren because Williams alleges that the

Grandchildren breached statutory duties that they

allegedly owed to that purported multiple-employer

plan as employers,16 fiduciaries, and parties-in-

14 For a discussion of multiple-employer plans, see infra Section

II.B.l.

15 Cottrell v. Alcon Lab’s, 874 F.3d 154, 162 (3d Cir. 2017) (“To

maintain th[e] fundamental separation between standing and

merits . . . , we assume for the purposes of our standing inquiry

that a plaintiff as stated valid legal claims.” (citing Info. Handling

Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024,1029

(D.C. Cir. 2003))); FEC v. Cruz, 596 U.S. 289, 298 (2022) (“For

standing purposes, we accept as valid the merits of [the plaintiff]

legal claims . . . .” (citing Warth v. Seldin, 422 U.S. 490, 500

(1975))); see also Falcone v. Dickstein, 92 F.4th 193, 203 (3d Cir.

2024) (“[W]e must not ‘confuse weakness on the merits with

absence of Article III standing [.]”’ (quoting Ariz. State Leg. v.Ariz.

Indep. Redistricting Comm’n, 576 U.S. 787, 800 (2015))); Warth,

422 U.S. at 500 (“[Standing in no way depends on the merits of

the plaintiffs contention that particular conduct is illegal[.]”

(citing Flast v. Cohen, 392 U.S. 83, 99 (1968))).

16 As noted above, the record contains no evidence that

Christopher personally employed anyone who received, was

entitled to receive, or was promised a benefit under the Trust.

This does not mean that Williams lacks Article III standing to sue

Christopher, however, as Williams alleges that Christopher

somehow breached fiduciary duties that he allegedly owed to the

purported multiple-employer plan through his role as an owner

and officer of Elton Corp., a corporate trustee tasked with

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interest.17

Second, even if the Trust is a collection of single

employer plans, Williams alleged that each Grandchild

harmed Williams’s purported plan by depleting the

Trust’s assets, in violation of ERISA. Again, that

contention might be false. But we must assume that it

is true when analyzing Article III standing. See, e.g.,

Cottrell, 874 F.3d at 162. And if the Grandchildren

harmed the Trust, they necessarily harmed the

purported single-employer plan in which Williams

participates, as the Trust uses a common pool of assets

to pay benefits.

Accordingly, we hold that Williams has Article

III standing to sue each of the Grandchildren.

Injury

As noted above, Williams must show that “she

administering the Trust. But see Confer v. Custom Eng’g Co., 952

F.2d 34, 37 (3d Cir. 1991) (“[W]hen an ERISA plan names a

corporation as a fiduciary, the officers who exercise discretion on

behalf of that corporation are not fiduciaries . . . unless it can be

shown that these officers have individual discretionary roles as to

plan administration”).

The same logic applies if we assume that the Trust is a collection

of single-employer plans.

17 We express no view on whether ERISA allows participants in

a multiple-employer plan to bring statutory claims against

employers for whom they did not work or how such claims would

be analyzed.

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[has] suffered an injury in fact that is concrete,

particularized, and actual or imminent” to establish

standing to sue under Article III of the Constitution.

Thole, 590 U.S. at 540 (citing Lujan, 504 U.S. at

560-61). Elton Corp. argues that Williams has not

shown injury for two related reasons. First, because

Williams is not yet eligible to receive a pension under

the Trust, Elton Corp. asserts that he “did not, and

cannot, allege the existence of an actual injury in fact,”

Elton Corp. Opening Br. 33, as the Trust has not failed

to pay Williams any benefits that she currently is

owed.18

18 Elton Corp. also suggests that Williams failed to adequately

allege injury because her Complaint alleges that “Williams was

‘currently uncertain’ as to her entitlement to pension benefits

under the Trust.” Elton Corp. Opening Br. 32 n.17 (quoting J.A.

254 If 65 (Second Am. Compl.)). This argument rests on a cramped

reading of the Complaint. The relevant paragraph from the

Complaint alleges that Williams was “currently uncertain as to

exactly how much [she] [was] entitled to receive in pension

benefits under [the Trust], and when [she] [will he] eligible to

receive [her benefits] . . . because [Appellants] failed to provide

plan communications and disclosures mandated by ERISA.” J.A.

254 Tf65 (emphases added). Even if those allegations reveal some

certainty about the precise details of Williams’s purported

pension, Williams squarely alleges in the Complaint that she is

“ntitled to benefits under the [Trust].” J.A. 246 1(40. Thus, the

Complaint leaves no doubt that Williams alleges that she is

entitled to receive a pension from the Trust.

Moreover, Williams hardly can be faulted for lacking

information—like the precise amount or timing of her purported

pension—that Appellant allegedly failed to disclose despite having

an alleged statutory obligation to do so under ERISA. See

generally ERISA §§ 101-11, 29 U.S.C. §§ 1021-31 (imposing

various reporting and disclosure obligations on employee benefit

22a

Second, Elton Corp. argues that Williams

cannot “establish an injury by reference to” the Trust’s

alleged insolvency because she has “ever even

suggested, much less proved, that the [Grandchildren]

would be unable to fully fund the Trust if ordered to do

so.” Id. at 34, 36. Thus, even if the Trust is insolvent,

Elton Corp. asserts that the risk of default is too

remote to establish injury unless the

Grandchildren—as purported participating employers

and fiduciaries—would be unable to cover the shortfall

and pay pensioners.

Elton Corp. principally relies on two cases to

support this argument: The Supreme Court’s decision

in Thole, which held that participants in a definedbenefit pension plan19 lacked “concrete stake [s] in [a]

lawsuit” because they “ha[d] received all of their

monthly benefit payments so far, and the outcome of

[the] suit would not affect their future benefit

payments.” 590 U.S. at 541. And this Court’s decision

in Perelman, 793 F.3d at 374-75, which held that a

participant in a defined-benefit plan lacked Article III

standing because he ad “received all distributions

under the [p]lan to which he was entitled” and offered

an “entirely speculative” “risk of default” to show

plans subject to ERISA).

19 Defined-benefit plans promise “retirees ... a fixed payment

each month” that “do[es] not fluctuate with the value of the plan

or because of the plan fiduciaries’ good or bad investment

decisions.” Thole, 590 U.S. at 540. There is no dispute that if the

Trust is a pension plan under ERISA, that purported plan would

be a defined-benefit plan.

23a

injury.

Both cases are distinguishable. Unlike Thole,

the outcome of this suit likely would “affect

[Williams’s] future benefit payments” given the

Trust’s present insolvency. 590 U.S. at 541. And unlike

Perelman, Williams offers more than speculation to

show that the Trust presently is insolvent. See 793

F.3d at 374-75.

The District Court found that the Trust would

“immediately exhaust all its current assets” if it

“place[d] in pay status all the participants who are

currently entitled to receive pensions.” Post-Trial Op.

*17 n.7. The District Court also found that the

Grandchildren “made calculated decisions” not to fund

the Trust despite receiving warnings that the Trust

was underfunded and might be subject to ERISA’s

funding requirements.20 These facts suffice to show

injury under Article III. The Trust does not have

sufficient assets to meet its current obligations. It is

reasonable to infer that the Grandchildren will not

fund the Trust without judicial intervention given the

Grandchildren’s repeated refusals to do so. And the

Trust automatically will terminate— and stop paying

benefits—when its accounts run dry.

Under these alleged circumstances, Williams

20 Post-Trial Op. *17. For purposes of analyzing Article III

standing, we must assume that the Grandchildren had a statutory

obligation to fund the Trust under ERISA. See, e.g., Cottrell, 874

F.3d at 162.

24a

has a concrete and particularized stake in this lawsuit

because she has shown that the Trust likely will not

pay her full pension without judicial intervention.21

And Williams has established a non-speculative fear

that the Trust’s failure is imminent given that the

Trust allegedly is insolvent today.22 Thus, neither

Thole nor Perelman compel the conclusion that

Williams has failed to show injury. And we are

satisfied that Williams has shown an injury-in-fact

sufficient to invoke this Court’s jurisdiction under

21 See FDA v. All. for Hippocratic Med., 602 U.S. 367, 381 (2024)

(An injury is “concrete” if it is “real and not abstract” and an

injury is “articularized” if it “affect[s] ‘the plaintiff in a personal

and individual way.’” (first quoting TransUnion LLC v. Ramirez,

594 U.S. 413, 424 (2021); and then quoting Lujan, 504 U.S. at 560

n.l)).

22 See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013)

(“Our cases do not uniformly require plaintiffs to demonstrate

that it is literally certain that the harms they identify will come

about. In some instances, we have found standing based on a

‘substantial risk’ that the harm will occur, which may prompt

plaintiffs to reasonably incur costs to mitigate or avoid that

harm.’’(collecting cases)); Cottrell, 874 F.3d at 168 (holding that

the actual-or-imminent “component of the injury-in-fact is

designed to separate those plaintiffs who have alleged that they

have been or will in fact be perceptibly harmed by the challenged

defendant’s action from those who claim only that they can

imagine circumstances in which they could be affected by the

defendant’s action” (cleaned up) (quoting United States v. Students

Challenging Regul. Agency Procs. (SCRAP), 412 U.S. 669, 688—89

(1973))).

25a

Article III of the Constitution.23

The majority opinion in Thole suggested that participants in

a defined-benefit plan must show “hat. . . mismanagement of [a]

plan substantially increased the risk that [a] plan and [its

sponsoring] employer would fail and be unable to pay the

plaintiffs’ future pension benefits” to establish Article III injury

based on fear of default. 590 U.S. at 546 (emphasis added). That

suggestion was dictum, however, because “the plaintiffs d[id] not

assert that theory of standing.’’/^.

Moreover, unlike the detailed allegations and factual findings of

plan insolvency here, the plaintiffs in Thole relied on “are

allegation^] of plan underfunding”to establish standing. Id.

Indeed, the plan in Thole “became overfunded” “[d]uring the

litigation,” meaning that “there was more money in the [p]lan

than was needed to meet its obligations.” Thole v. U.S. Bank, Nat’l

Ass’n, 873 F.3d 617, 622 (8th Cir. 2017), aff’d, 590 U.S. 538. That

development might have had more to do with mootness than

standing. See Hartnett v. Pa. St. Educ. Ass’n, 963 F.3d 301, 305

(3d Cir. 2020) (“At the start of litigation, the burden rests on the

plaintiff... to show its standing to sue. .. . But once the plaintiff

shows standing at the outset, she need not keep doing so

throughout the lawsuit. Instead, the burden shifts” to “the

defendant (or any party)” to show “that some development has

mooted the case[.]” (first citing Spokeo, Inc. v. Robins, 578 U.S.

330, 337-38 (2016); and then citing Friends of the Earth, Inc. v.

Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000))). But

this Court’s opinion in Perelman relied on similar evidence of plan

solvency to hold that the plaintiffs concern of non-payment was

too speculative from the outset of htigation to establish injury. 793

F.3d at 375 (“[T]he evidence is undisputed that . . . , under a

valuation method approved by Congress, the [p]lan was

appropriately funded, and [the sponsoring employer] had no

obhgation to make further contributions to stabilize the [p] Ian’s

finances. Under the circumstances,[plaintiff] allegation that the

[p]lan is nonetheless at risk of default is entirely speculative.”

(citing David v. Alphin, 704 F.3d 327, 338 (4th Cir. 2013))).

26a

ERISA Coverage24

Having assured our jurisdiction under Article

III, we reach the next threshold question: is the Trust

an employee benefit plan covered by ERISA? Subject

to some matters irrelevant here,25 ERISA “applies] to

If evidence that a plan is solvent helps show that injury is absent,

then evidence that a plan is insolvent helps show that injury is

present. And Williams adequately has shown that the Trust is

insolvent—and likely will default on its alleged obligation to

Williams— for the reasons provided above.

24 “In an appeal from an ERISA bench trial, we review findings

of fact for clear error but have plenary review over the District

Court’s conclusions of law.” Vitale v. Latrobe Area Hosp., 420 F.3d

278, 281 (3d Cir. 2005) (citing Kosiba v. Merck & Co., 384 F.3d 58,

64 (3d Cir. 2004)).

Appellants do not challenge the District Court’s factual findings

related to ERISA coverage. Thus, whether the District Court’s

factual findings can show that the Trust is an employee benefit

plan (or plans) covered by ERISA presents a mixed question of

fact and law subject to plenary review. See, e.g., McCann v. Unurn

Provident, 907 F.3d 130, 142 n.13 (3d Cir. 2018) (citations

omitted) (holding that the district court’s application of a

regulatory safe-harbor to the facts presented mixed questions of

fact and law subject to de novo review); Custer v. Pan Am. Life

Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993) (“When the factual

circumstances are undisputed, . . . whether the facts suffice to

demonstrate the existence of a plan as defined by ERISA is a

question of law to be reviewed de novo.” (italics omitted) (citing

Peckham v. Gem State Mut., 964 F.2d 1043, 1047 n.5 (10th Cir.

1992))).

25 Williams does not suggest that the Trust was established or

maintained “by any employee organization or organizations

representing employees engaged in commerce or in any industry

27a

any employee benefit plan if it is established or

maintained by any employer engaged in commerce or

in any industry or activity affecting commerce.” ERISA

§4(a)(l), 29 U.S.C. § 1003(a)(1) (cleaned up).

The Parties dispute whether the Trust was

established or maintained by an employer; and, if so,

whether that employer was engaged in commerce or in

an industry or activity affecting commerce. To answer

those questions, we must identify the relevant

employer (or employers). And to do that, we must

decide whether it is possible that Williams participates

in a multiple-employer plan covering all employees

eligible to receive a pension under the Trust. If so, our

analysis of ERISA’s coverage provision may need to

consider all of the Grandchildren’s conduct and

activities, as each Grandchild— besides Christopher,

who did not personally employ any beneficiaries of the

Trust—could be an employer with respect to that

purported multiple-employer plan. On the other hand,

if Williams cannot be participating in a multipleemployer plan, our analysis focuses on Wright, the

only Grandchild who employed Williams.

We begin with the question of whether the Trust

could be a multiple-employer plan and then address

ERISA coverage.

Multiple-Employer Plan

or activity affecting commerce.” ERISA §4(a)(2), 29 U.S.C. §

1003(a)(2).

28a

Broadly speaking, ERISA recognizes two types

of employee benefit plans: multiemployer plans and

single-employer plans. A multiemployer plan is “a plan

(i) to which more than one employer is required to

contribute, (ii) which is maintained pursuant to one or

more collective bargaining agreements . . . , and (iii)

which satisfies such other requirements as the

Secretary [of Labor] may prescribe by regulation.”

ERISA § 3(37)(A)(i)-(iii), 29 U.S.C. §

1002(37)(A)(i)-(iii). All other employee benefit plans

are single-employer plans. ERISA § 3(41), 29 U.S.C. §

002(41) (“The term ‘singleemployer plan’ means an

employee benefit plan other than a multiemployer

plan.”).

No one suggests that the Trust is a

multiemployer plan. Accordingly, if the Trust is an

employee benefit plan under ERISA, it must be a

single-employer plan.

Common sense might suggest that singleemploye? plans belong to one employer. But things are

not so simple. Congress defined “employer” to include

“a group or association of employers acting for an

employer” “in relation to an employee benefit plan.”

ERISA § 3(5), 29 U.S.C. § 1002(5).26 Thus, ERISA

expressly contemplates the possibility that more than

one employer may band together to establish or

26 The full definition is as follows, “The term ‘employer’ means

any person acting directly as an employer, or indirectly in the

interest of an employer, in relation to an employee benefit plan;

and includes a group or association of employers acting for an

employer in such capacity.” ERISA §3(5), 29 U.S.C. § 1002(5).

29a

maintain a single-employer plan.

Congress did not provide a dedicated defined

term for such plans (i.e., singleemployer plans

established or maintained by more than one

employer).27 See ERISA § 3, 29 U.S.C. § 1002. Courts,

regulators, and practitioners use the term “multipleemployer plan”to distinguish these collective plans

from single-employer plans established or maintained

by one employer.28

The Parties have not cited—and we have not

found—any controlling authority addressing the

circumstances under which a group of employers may

27 A handful of ERISA provisions not at issue here refer to

“multiple employer plans,” but they do not define that term. See,

e.g., ERISA §§ 204(g)(4)(B), 210, 29 U.S.C. §§ 1054(g)(4)(B), 1060.

28 See, e.g., Girl Scouts of Middle Tenn., Inc. u. Girl Scouts of the

U.S.A., 770 F.3d 414, 416-17 6th Cir. 2014) (“The [p]lan is

considered a multiple-employer plan under ERISAQ because

multiple, separate and independent corporations participate in

the [p]lan, but it is not maintained pursuant to a collective

bargaining agreement. Therefore, the [p]lan falls within ERISA’s

catch-all category of single-employer plans.” (citations omitted));

Definition of “Employer” Under Section 3(5) of

ERISA—Association Retirement Plans and Other MultipleEmployer Plans, 84 Fed. Reg. 37,508, 37,511 (July 31, 2019)

(codified at 29 C.F.R. pt. 2510) (“The Department [of Labor] has

long taken the position in subregulatory guidance that, even in

the absence of the involvement of an employee organization, a

single ‘multiple employer plan’ under ERISA may exist where a

cognizable group or association of employers, acting in the interest

of its employer members, establishes a benefit program for the

employees of member employers.”).

30a

establish or maintain the precise type of employee

benefit plan that Williams claims we have here: a

multiple-employer defined-benefit plan. But in the

context of applying ERISA’s general definition of

“employer” to welfare plans,29 this Court has held that

a group of employers must satisfy two criteria to act as

an “employer”under ERISA §3(5), 29 U.S.C. § 1002(5),

and establish or maintain a multiple-employer plan:

“the group of employers that establishes

and maintains the plan must be a ‘bona

fide’ association of employers ‘tied by a

common economic or representation

interest, unrelated to the provision of

benefits’”; and

employer-members

of the

“the

organization that sponsors the plan must

exercise control, either directly or

indirectly, both in form and in substance,

over the plan.”

Gruber u. Hubbard Bert Karle Weber, Inc., 159 F.3d

780, 787 (3d Cir. 1998) (internal quotations omitted)

(collecting cases).30

29 Welfare plans provide enumerated types of non-retirement

benefits, like medical and surgical care. ERISA § 3(1), 29 U.S.C.

§ 1002(1).

30 Gruber referred to the plans it was analyzing as “multi

employer plans.” See, e.g., 159 F.3d at 786. Because Gruber did not

mention a collective bargaining agreement—and did not discuss

the statutory provisions applicable to multiemployer plans, like

31a

Starting with the first criterion, Appellants

argue that the Grandchildren lack a bona fide

connection unrelated to the provision of benefits (i.e.,

the Trust) and thus cannot establish or maintain a

multiple-employer plan under ERISA. As such, the

Trust purportedly is—at most—a collection of separate

single-employer plans, one for each Grandchild (except

Christopher, who did not personally employ anyone

who received, was eligible to receive, or Was promised

a pension under the Trust). Williams responds that the

Grandchildren have a bona fide connection because

heir “family relationship ... is both genuine and

unrelated to the provision of benefits.” Answering Br.

68. Thus, Williams contends that the Trust is a

multiple-employer plan.31

Appellants have the better argument. Wright

and the other Grandchildren would be related without

ERISA § 3(37), 29 U.S.C. § 1002(37)—we read Gruber to address

multiple-employer plans, not multiemployer plans. See generally

159 F.3d at 783-84.

31 Williams also argues that Gruber is distinguishable because

that underlying “[p]lan was established ‘for entrepreneurial

purposes.’” Answering Br. 68 n.18 (quoting Gruber, 159 F.3d at

786). Gruber adopted its two-part test to “[g]iv[e] effect to

[Congress’s] intention to exclude entrepreneurial ventures.” 159

F.3d at 787. But that explains why the Court interpreted ERISA

§ 3(5), 29 U.S.C. § 1002(5), to require a bona-fide connection

amongst a group of employers, not when that criterion applies.

Williams offers no explanation for why the same statutory

language should have a different meaning depending upon

whether a purported plan was established for entrepreneurial

purposes.

32a

the Trust. But Williams cites no evidence connecting

Wright’s status as an employer to the other

Grandchildren apart from the Trust. Thus, Williams

failed to show that Wright has the sort of bona fide

connection to the other relevant duPonts needed to

establish or maintain a multiple-employer plan under

ERISA § 3(5), 29 U.S.C. § 1002(5).32 And if Williams

participates in an employee benefit plan at all, that

purported plan must be a single-employer plan

sponsored by—and only by—her employer, Wright.33

32 We express no view on whether Grandchildren other than

Wright have or had the sort of bona fide connection needed to

establish or maintain a multiple-employer plan. Likewise, because

we hold that Wright lacks a bona fide connection to the other

Grandchildren, we need not reach the second Gruber factor,

employer control. See 159 F.3d at 787.

33 Williams makes a passing reference to a Pension Benefit

Guarantee Corporation regulation that appears to treat the

intermingling of funds as a proxy for whether a group of

employers established a multiple-employer plan when addressing

plan termination and other related topics. See 29 C.F.R. § 4001.2.

Williams makes no effort, however, to explain why that regulation

applies here or how it squares with Gruber. This “passing

reference” does “not suffice to bring that issue before this [C]ourt.”

Higgins v. Bayada Home Health Care Inc., 62 F.4th 755, 763 (3d

Cir. 2023) (quoting Laborers’lnt’l Union of N. Am. v. Foster

Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994)). So we

decline to address it. For similar reasons, we decline to address

Williams’s passing reference to Sara Lee Corp. v. Am. Bakers’

Assoc. Ret. Plan, 671F. Supp. 2d 88,98—102 (D.D.C. 2009), an outof-circuit decision by a district court cited for persuasive value

only, see Shire US Inc. v. Barr Lab’s Inc., 329 F.3d 348, 355 (3d

Cir. 2003) (district court decisions treated as persuasive

authority); United States v. Maury, 695 F.3d 227,259 n.27 (3d Cir.

2012) (“Of course, the decisions of other circuits, while persuasive,

33a

Established or Maintained

Because Williams failed as a matter of law to

show that she could be participating in a multipleemployer plan, ERISA applies only if her employer,

Wright, established or maintained the Trust. See

ERISA § 4(a)(1), 29 U.S.C. § 1003(a)(1).

Mary established the Trust in 1947. None of the

Grandchildren—including Wright—had a role in that

“one-time, historical event.” Advocate Health Care

Network v. Stapleton, 581 U.S. 468, 480 (2017)

(citation omitted). Williams does not suggest that

Mary acted “directly”or “indirectly”on Wright’s behalf

by establishing the Trust. Cf. ERISA § 3(5), 29 U.S.C.

§ 1002(5). And Mary never was Williams’s employer.

Accordingly, the record contains no evidence that the

only relevant employer, Wright, established the Trust.

So Williams cannot rely on the establishment prong to

trigger coverage under ERISA § 4(a)(1), 29 U.S.C. §

1003(a)(1).

That leaves maintenance. Williams claims that

Wright maintained the Trust because she purportedly:

had at least two employees who received

or are entitled to receive pensions from

the Trust;

trustees “census

provided

the

information[|”and “analyze] he [Trust’]

are not binding on the district courts in this Circuit.”).

34a

long-term financial viability” and

“arranged] for [her] employees to receive

[Trust] benefits when [they] reached

eligibility.”

Answering Br. 46-47.34

34 When discussing the Gandchildren’s purported status as

fiduciaries, Williams claims that Wright “as involved throughout

the years in the discussions and decisions regarding the possibility

of reforming or terminating the [Trust] ,”and that Wright allegedly

“acknowledged her status as a fiduciary, [p]lan administrator[,]

and employer” in the Complaint. Answering Br. 64.

Even if we were to construe these points as relating to

maintenance, it would not move the needle. Wright does not

appear to have been copied on one of the correspondences that

Williams cites in her brief, right’s receipt of legal advice about the

Trust hardly shows that she had the power to support, continue,

or care for the Trust. And Wright’s unheeded suggestion that

Elton Corp. pick a successor trustee other than First Republic

does not show that she had any actual or practical power over that

decision, as the Trust Document did not give Wright any power or

role in selecting the successor trustee; and there is no evidence

that Wright had any control over Elton Corp., which, as the

current trustee, had exclusive power under the Trust Document

to pick the successor trustee.

Finally, Wright’s allegations in the Complaint that she was a

fiduciary, plan administrator, and employer cannot constitute

judicial admissions that she maintained an ERISA plan because

each contention is a legal theory, not a factual statement. See, e.g.,

Teleglobe USA Inc. v. BCE Inc. (In re Teleglobe Commc’s Corp.),

493 F.3d 345, 376 (3d Cir. 2007) (Judicial admissions “must be

statements of fact that require evidentiary proof, not statements

of legal theories.” (citing Glick u. White Motor Co., 458 F.2d 1287,

1291 (3d Cir. 1972))).

35a

Appellants argue that none of this conduct

shows maintenance under ERISA § 4(a)(1), 29 U.S.C.

§ 1003(a)(1), because an employer must have “chief

responsibility for [a] plan’s administration and ERISA

compliance”to maintain it. Grandchildren Opening Br.

68. Williams responds that an employer need only

“support|], continue!], [or] careQ” for a plan to

maintain it. See Answering Br. 47 n.12 (citations

omitted). And Wright purportedly maintained the

Trust under that definition by monitoring its finances,

notifying the trustees that some employees may be

eligible for pensions, and having former employees

who received—or were eligible to receive—pensions

from the Trust.

Even if we were to adopt Williams’s definition of

maintain, Williams adduces no evidence that Wright

maintained the Trust. Proof that a former employee

received a pension from the Trust tells us nothing

about what Wright supposedly did to support,

continue, or care for the Trust. And neither does proof

that Wright passively received information about the

Trust absent evidence that Wright had the power to do

anything concrete to support, continue, or care for the

Trust.

The only factual finding that comes close to

satisfying Williams’s proposed definition of

maintenance was the apparent “responsibil[ity]”of the

Grandchildren— presumably, including Wright—while

Elton Corp. was the trustee to “notify[| Elton Corp. of

employees who might be eligible to receive benefits

under the [T]rust.” Post- Trial Op. *4 (emphasis

added). But it was Elton Corp., not Wright, that (1)

36a

“evaluated the information to determine whether it

agreed that the submitted employee was eligible for

benefits” (2) “interpret[ed] the [T]rust [Document]” (3)

“confirm[ed] in writing to the employee that he or she

would receive a pension under the [T]rust pursuant to

[Wright’s] request”; and (4) when applicable, paid the

pension.35 And when First Republic took over as

trustee, (1) “First Republic ma[de] all determinations

related to the trust administration” (2) “no other

person or entity . . . ha[d] oversight over First

Republic’s administration of the [Trust]; and (3) “First

Republic d[id] not communicate with the

[Grandchildren] at all” because First Republic

“determined that [the Grandchildren] [were] not

interested parties and h[el]d no power under the

[T]rust [D]ocument to give any input or direction for

trust administration purposes.” Id. at *5.

Moreover, the remaining factual findings and

evidence all show that Wright lacked legal or practical

power to support, continue, or care for the Trust.

Wright had no mechanism to control or select the

trustee under the Trust Document. Wright never was

35 Post-Trial Op. *4-5. When holding that the Grandchildren

were fiduciaries under ERISA, the District Court stated—without

citing evidence or differentiating between the individual

Grandchildren—that the Grandchildren “had the power to decide

who would get a pension”and “could hand-pick the employees that

would be provided pension benefits.” Id. at *16. Those statements

are inconsistent with both the plain text of the Trust Document

and the District Court’s factual findings that the trustees

ultimately determined whether an employee was entitled to a

pension.

37a

a trustee. And Williams offers no evidence that Wright

had legal or effective control over Elton Corp. or First

Republic, to the extent that could matter at all. Wright

made no contributions to the Trust. And Wright had

no role in the Trust’s establishment. Indeed, Wright

does not appear to have realized until approximately

2014 that her employees might be eligible for a benefit

under the Trust, nearly 70 years after the Trust was

established, and a mere two years before this litigation

began. This wholly passive conduct falls short of

showing that Wright supported, continued, or cared for

the Trust.36

In sum, even if we were to adopt Williams’s

proposed definition of “maintain,” Williams cites no

facts suggesting that her employer, Wright, supported,

continued, or cared for the Trust. Thus, Williams has

failed to show that the maintenance prong triggers

coverage under ERISA § 4(a)(1), 29 U.S.C. § 1003(a)(1).

And we leave for another day the precise definition of

what an employer must do to maintain an employee

benefit plan under ERISA.37

^ "k rk rk ic

We express no view on whether any of the other

Grandchildren, Elton Corp., or First Republic established or

maintained an employee benefit plan related to the Trust.

37 Because Williams’s failure to show that Wright established or

maintained the Trust means that Williams cannot satisfy ERISA’s

coverage provision, we need not reach the other issues that the

Parties raise on appeal.

38a

Because Williams failed to adduce any evidence

showing that Wright established or maintained the

Trust, ERISA does not apply to the purported single

employer plan in which Williams participates.

Accordingly, the District Court erred by holding that

the Trust is an employee benefit plan covered by

ERISA. And Appellants are entitled to judgment on all

claims.

III.

CONCLUSION

For the reasons discussed above, no claim

presented in this litigation survives. Accordingly, we

will affirm-in-part as to the District Court’s Article III

ruling and reverse-in-part the District Court’s

judgment and remand this case with instructions to

enter judgment (1) in favor of Elton Corp., Fields, First

Republic, and the Trust as to Williams’s claims, and

(2) in favor of the Grandchildren as to First Republic’s

counterclaims / third party complaint. We will also

vacate the District Court’s order appointing a special

master.

39a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

JOSEPH WRIGHT, and T. KIMBERLY

WILLIAMS,

Plaintiff/Counterdefendant,

vs.

ELTON CORPORATION, GREGORY

FIELDS, FIRST REPUBLIC TRUST

COMPANY OF DELAWARE LLC, and

M.C. DUPONT CLARK EMPLOYEES

PENSION TRUST,

Defendants/Counterclaimants/

Third-party Plaintiffs,

vs.

JAMES B. WYETH, Solely as Executor

and Personal Representative of the Estate

of Phyllis M. Wyeth, MARY MILLS ABEL

SMITH, CHRISTOPHER T. DUPONT,

LUCY DUNNE, representative for HELENA

DUPONT WRIGHT, KATHARINE D.

GAHAGAN and JAMES MILLS,

Third-party defendants.

C.A. NO. 17-286-JFB

42a

ORDER APPOINTING SPECIAL

MASTER

This matter is before the Court on its own motion.

In accordance with Fed. R. Civ. P. 53, the Court finds

the appointment of a Special Master is necessary in

this case due to exceptional circumstances and the

need to perform an accounting and resolve a difficult

computation of damages and other relief. Fed. R. Civ.

P. 53(a)(l)(i) & (ii). The Court finds Stephen

Brauerman should be appointed special master in this

case. He has complied with Fed. R. Civ. P. 53(b)(A).

D.I. 507. The Court has provided the parties with

notice and an opportunity to be heard under Fed. R.

Civ. P. 53(b)(1). Accordingly,

IT IS ORDERED that:

Stephen Brauerman is appointed Special Master

in this case.

The Special Master shall proceed with all

reasonable diligence and, as provided by Rule

53(c), shall have the authority to regulate all

proceedings and take all measure necessary,

within one year of the date of this Order, to

perform the following duties:

Effectuate he Court’s finding that the Mary

Chichester duPont Pension Trust is an

Employee Retirement Income Security Act

(“ERISA” Plan by either serving as the named

fiduciary and plan administrator for the

reconstruction of and administration of the

43a

Plan in accordance with ERISA; or by

selecting and retaining an appropriate named

independent fiduciary and plan administrator

to do so.

Conduct appropriate requests for proposal

and select, retain, and supervise the services

of actuaries, accountants, third-party

administrators, investment advisors and

managers, and such other service providers

as are necessary for the reconstruction and

administration of the Plan.

Bring the Plan into legal compliance with

ERISA, including seeking qualification and

tax exemption under the Internal Revenue

Code and reconstructing and preparing

necessary filings with the Internal Revenue

Service, the United States Department of

Labor (“DOL”, the Pension Benefit Guaranty

Corporation (“PBGC”) and other government

agencies.

Identify and locate participants and

beneficiaries, calculate benefits due, and

notify potential current and past qualified

employees who have not been provided for by

the Trust or have not been provided for in

lieu of the Trust, including obtaining

employment and other records from the

employers and past and present trustees and

using other search procedures.

Calculate the amounts due and necessary to

44a

fully fund and defray the reasonable expenses

for the reconstruction of the Plan and its

administration on an immediate and ongoing

basis and prorate the funding amount by the

expense for each qualified pensioner per

qualified employer.

Marshal and receive the assets of the Plan,

including monies owed by the current and

former Plan trustees and contributing or

qualified employers, in order to fully fund the

Plan, provide benefits and reasonable

expenses of administration and investigate

other sources of Plan funding, including prior

or existing fidelity bonds or fiduciary or other

insurance policies and/or PBGC insurance.

Process and

individuals.

Apply and effectuate the determinations and

relief ordered in the Court’ Findings of Fact

and Conclusions of Law, D.I. 482 at 40-41.

pay

benefits

to eligible

The Special Master shall consider and determine

whether the Plan should be continued or

terminated and must follow through with

appropriate administrative and legal steps based

on the determinations made, including selecting

and appointing an independent fiduciary to

dissolve the Plan in accordance with ERISA.

The Special Master shall report to the Court

every sixty days.

45a

The Special Master has authority and discretion

to review, approve and pay the reasonable fees

and expenses of the Plan’ service providers

without Court order, but must report these fees

and expenses to the Court on a regular basis.

The Special Master shall be compensated for his

services at the rate set by the Court. Others

assisting him shall be compensated at their usual

hourly rates. The Special Master shall send

itemized statements for services and expenses

directly to counsel for the liable parties on a

monthly basis, and shall receive payment directly

from counsel for the liable parties within thirty

(30) days of receipt thereof. The compensation

and expenses of the Special Master shall, unless

otherwise ordered, be shared equally by the liable

parties, and not by the plaintiff. In this regard, if

(in the Special Master’ opinion) a party engages in

behavior which occasions the waste of his time

and resources, or otherwise hinders the efficient

resolution of matters before him, that party may

be apportioned all or a larger portion of the

Special Master’ compensation, costs, and

expenses. Any objections or disputes as to the

Special Master’ compensation, costs, and/or

expenses shall be presented to the Court in

accordance with Paragraph 9, below.

The Special Master may request a retainer from

the parties, not to exceed One Hundred Thousand

Dollars ($100,000.00) in the aggregate, which

shall be held in his escrow account until earned,

or any unearned portion is returned at the

46a

completion of the Special Master’ duties.

The Special Master shall not communicate ex

parte with a party without the consent of all

parties. He may communicate ex parte with the

Court.

The Special Master’ rulings shall be subject to

review by the Court, consistent with Rule 53(f). In

this regard, unless otherwise ordered:

the parties may serve, file and docket with

the Court specific written objections (and

responses thereto) to any of the Special

Master’ rulings;1

the objections shall be filed no later than

fourteen (14) days after being served with a

copy of the ruling, and the responses thereto

shall be filed within seven (7) days after being

served with a copy of the objections;

the objections and responses to the objections

are limited to ten (10) pages each; and

the parties must serve, file and docket with

the Court any relevant portion of the record

made before the Special Master which

1 Counsel shall docket using the “objections” and “response to

objections” docket events.

47a

pertains specifically to the objections.2

10. No party to this action, and no other person

acting or purporting to act as a manager,

member, assignee, director, officer, employee,

attorney, or agent of a party, shall institute any

proceeding in any forum other than this Court

challenging any action, recommendation, or

decision by the Special Master.

11. The Special Master shall have no liability to the

parties or any other person for actions taken in good

faith pursuant to this Order. In any challenge to the

Special Master’ actions, the Special Master is

presumed to have acted in good faith. The Special

Master shall he entitled to all protection, limitation

from liability, and immunity available at law or in

equity to a Court-appointed Special Master including,

without limitation, all protection, limitation from

liability, and immunity provided by the

indemnification provisions of applicable law.

Dated this 6th day of March 2023.

BY THE COURT:

s/ Joseph F. Bataillon

Senior United States District Judge

2 Counsel shall docket separately as an appendix using the

“appendix” docket event.

48a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

JOSEPH WRIGHT, and T. KIMBERLY

WILLIAMS,

Plaintiffy Counterdefendant,

vs.

ELTON CORPORATION, GREGORY

FIELDS, FIRST REPUBLIC TRUST

COMPANY OF DELAWARE LLC, and

M.C. DUPONT CLARK EMPLOYEES

PENSION TRUST,

Defendants/Counterclaimants/

Third-party Plaintiffs,

vs.

JAMES B. WYETH, Solely as Executor

and Personal Representative of the Estate

of Phyllis M. Wyeth, MARY MILLS ABEL

SMITH, CHRISTOPHER T. DUPONT,

LUCY DUNNE, representative for HELENA

DUPONT WRIGHT, KATHARINE D.

GAHAGAN and JAMES MILLS,

Third-party defendants.

C.A. NO. 17-286-JFB

49a

MEMORANDUM AND ORDER

This matter is before the Court on motions to

reconsider filed by James B. Wyeth, solely as executor

and personal representative of the Estate of Phyllis M.

Wyeth (“the Wyeth Estate” and by Elton Corporation

(“Elton Corp.” and First Republic Trust Company of

Delaware LLC (“First Republic”) (collectively, the

Trustees”). D.I. 484 and 486. James Mills, Katharine

D. Gahagan, Mary Mills Abel Smith, and Christopher

T. duPont join in the Wyeth Estate’s motion (those

parties, together with the Wyeth Estate and Lucy

Dunne, representative for Helena Dupont Wright, will

sometimes be referred to, collectively, as the “qualified

employers”). D.I. 487 and 488. The plaintiff opposes

the motions. D.I. 496 and 497. Elton Corp. and First

Republic oppose the Wyeth Estate’s motion. D.I. 500.

The Wyeth Estate, Mary Mills Abel-Smith, Katharine

Gahagan, and Lucy Dunne oppose Elton Corp.’s and

First Republic’s motion. D.I. 498, 501, and 502.

BACKGROUND

The qualified employers argue that they should

not be deemed fiduciaries under ERISA of the Mary

Chichester duPont Clark Pension Trust, either by

operation of law, as a plan sponsor or plan

administrator, or as a functional fiduciary. They also

argue that the Court erred in applying the statutory

definition of “plan sponsor” to find that they are, in

fact, plan sponsors and plan administrators. They base

their motion on the contention that the Court utilized

an incorrect definition under the statute.

50a

Elton Corp. and First Republic argue that the

Court committed clear error when determining that

Elton and First Republic were plan administrators

based on the factual finding that they performed

certain functions typically reserved for plan

administrators. They also challenge the Court’s finding

that they can be liable for underfunding, contending

the finding is clear error because the legal obligation

under ERISA to make minimum required

contributions to the trust belongs to the employers, not

the trustee of the trust. Finally, they contend it was

clear error to impose upon the trustees’ fiduciary

responsibilities owed under ERISA by the plan

administrators and/or plan sponsors, including

sending ERISA mandated notices to beneficiaries.

The plaintiff opposes the qualified employers’ and

trustees’ motions arguing that reconsideration is not

warranted. She argues that the Court’s holding, that

both the qualified employers and trustees are plan

administrators, is not clearly erroneous because the

evidence at trial shows the that the qualified

employers’ intent and conduct was to act as a group in

tandem with the trustees in administering the Plan.

She contends that where, as here, there is no

designated plan administrator, an entity that performs

plan administrator functions can be liable for penalties

as a plan administrator. Further, the plaintiff argues

that until the Court reaches a decision on whether,

and on whom, to impose penalties for failing to

properly inform beneficiaries, the Court’s conclusion

that both the trustees and the qualified employers are

plan administrators is not material. She also contends

there is no clear error in the Court’s finding that Elton

51a

Corp. and First Republic are jointly and severally

liable, along with the qualified employers, for any

underfunding of the Trust because that holding is a

straightforward application of two of ERISA's civil

enforcement provisions: 29 U.S.C. § 502(a)(2), which

via § 409 makes a plan fiduciary personally liable for

any losses to the Plan that result from a breach of

fiduciary duty, and § 502(a)(3), which authorizes

appropriate equitable relief against a breaching

fiduciary, including surcharge. 29 U.S.C. § 1132(a)(2),

(3), 1109.

II.

LAW

The purpose of a motion for reconsideration is “to

correct manifest errors of law or fact or to present

newly discovered evidence.” Lazaridis v. Wehmer, 591

F.3d 666, 669 (3d Cir. 2010) (quoting Max's Seafood

Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). A

proper Rule 59(e) motion must rely on one of three

grounds: (1) an intervening change in controlling law;

(2) the availability of new evidence; or (3) the need to

correct clear error of law or prevent manifest injustice.

Id. Advancing the same arguments raised earlier is not

a proper basis for reconsideration. Id.; see Jaiyeola v.

Chemours Co., No. CV 22-1030-CFC, 2022 WL

17486136, at *1 (D. Del. Dec. 7, 2022) ("A motion for

reconsideration is not properly grounded on a request

that a court rethink a decision already made."). An

error by the court that is not material to the court's

analysis does not constitute a clear error of law or

manifest injustice that supports a party’s motion for

reconsideration of those claims. See Satterfield v.

Consol Pennsylvania Coal Co., No. CIV.A. 03-1312,

52a

2006 WL 931682, at *2 (W.D. Pa. Apr. 11, 2006).

III. DISCUSSION

The parties’ motions for reconsideration generally

rely on a strict and hyper-technical application of

ERISA concepts and standards to the pension trust at

issue as if the instrument at issue were originally set

up as an ERISA plan. Rather, in this action, the Court

has endeavored to observe and follow the spirit and

structure of ERISA in fashioning an equitable remedy,

in light of ERISA and the common law duties and

powers of trustees and of employers. For the most

part, the issues raised in the reconsideration motions

were exhaustively briefed by the parties previously

and have been addressed and rejected by the Court in

earlier orders. D.I. 482, D.I. 457, D.I. 452, D.I. 442,

D.I. 327, D.I. 280, D.I. 200, D.I. 176, and D.I. 132.

Accordingly, the Court declines to reconsider its

holding.

The Court stands by its earlier ruling with respect

to the status and function of the qualified employers as

fiduciaries, plan sponsors, and plan administrators.

The liable parties’ confusion seems to stem from the

fact that ERISA plan functionaries can wear more

than one hat. The qualified employers can be both plan

sponsors and plan administrators and they have

fiduciary responsibilities as well. The trustees are

fiduciaries under ERISA and the common law of

trusts. Trustees can perform administrative functions

as well.

The Court found the trust instrument created a

53a

single defined benefit plan with multiple employers,

not a multi-employer plan as contemplated under

ERISA. D.I. 482 at 34-35.1 As such, the plan sponsor

is the plan administrator if no plan administrator is

designated by the terms of the instrument under

which the plan is operated. 29 U.S.C. § 1002(16)(A)(ii).

Also, the record supports the conclusion that the plan

was maintained by the qualified employees as a group

for the benefit of their employees, though some may

have had more input than others. The Court stands by

its holding, on these facts, that both the qualified

employers and the trustees are plan administrators.

D.I. 482 at 35-36, Findings of Fact and Conclusion of

Law.

Both the qualified employers and the plaintiff

agree that the qualified employers did not stipulate

that they were plan sponsors. D.I. 485 at 5 & n.2,

Wyeth Estate Brief; D.I. 497 at 2, n.l Plaintiffs

Response Brief. Any error or overstatement with

respect to that fact is of no consequence because there

is no dispute that the qualified employers are

employers and employers are plan sponsors under

Although the plan herein may not neatly fit the multi-employer,

single employer, or aggregate of single employer categories, where

there is a kind of hybrid plan, a court, in crafting a remedy, can

create an equitable apportionment of liability under all the

circumstances. See, e.g., Saramar Aluminum Co. v. Pension Plan

for Emps. of Aluminum Indus. & Allied Indus, of Youngstown

Ohio Metro. Area, 782 F.2d 577, 583 (6th Cir. 1986); see also

Pension Ben. Guar. Corp. v. Artra Grp., Inc., 972 F.2d 771, 773

(7th Cir. 1992) (adopting PBGC's definition of an aggregate of

single-employer plans). The parties’ arguments in this regard are

premature and await the determinations of the special master.

54a

ERISA.2 D.I. 482 at 30, 35, Findings of Fact and

Conclusions of Law. Both plan sponsors and plan

administrators can have fiduciary responsibilities. The

evidence shows the qualified employers exercised

discretionary control over the management of the plan

in that they acted as gatekeepers in informing

employees about their eligibility for benefits and/or

about the existence of the plan and were thus involved

in benefit determinations in a practical sense, along

with the trustees.

The Court also declines to reconsider its ruling

with respect to the trustees. The Court agrees with the

plaintiff that contrary to the trustees' contention, the

question before the Court is not who was statutorily

required to make contributions in the first instance,

but whether the trustees may be held liable for the

underfunding as the result of their breaches of

fiduciary duties and imprudent management of the

plan. The trustees offer no argument for why the

equitable relief available under Sections 502(a)(2) and

(a)(3) should not include correcting the Plan's

underfunding. The trustees are named fiduciaries,

whether or not they are functional fiduciaries. Also,

with respect to the trustees’ argument that they are

not liable for failure to send ERISA-mandated notices

to beneficiaries, “ERISA's fiduciary duty section

incorporates the common law of trusts . . . and the

2 Although the Pretrial Order is somewhat vague on this point,

James Mills and Helena duPont Wright, the original plaintiffs in

this action stated that they were employers, Plan administrators

and ERISA fiduciaries in their Second Amended Complaint. D.I.

35, Second Amended Complaint at If 55, 71—72.

55a

duty to disclose material information ‘is the core of a

fiduciary’s responsibility.’” Bixler v. Cent.

Pennsylvania Teamsters Health & Welfare Fund, 12

F.3d 1292, 1300 (3d Cir. 1993).

IT IS ORDERED that he parties’ motions to

reconsider (D.1.484, D.1.486, and D.I. 487) are denied.

DATED this 3rd day of March, 2023.

BY THE COURT:

s/ Joseph F. Bataillon

Senior United States District Judge

56a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 23-1499, 23-1501, 23-1503, 23-1511, 23-1518,

23-1526, 23-1546, 23-1868 & 23-1869

LUCY DUNNE, REPRESENTATIVE FOR HELENA

DUPONT WRIGHT; JAMES MILLS; JOSEPH

WRIGHT; T. KIMBERLY WILLIAMS

ELTON CORPORATION; GREGORY FIELDS;

FIRST REPUBLIC TRUST COMPANY OF

DELAWARE LLC; M.C. DUPONT CLARK

EMPLOYEES PENSION TRUST

FIRST REPUBLIC TRUST COMPANY OF

DELAWARE LLC; M.C. DUPONT CLARK

EMPLOYEES PENSION TRUST

MARY MILLS ABEL SMITH; CHRISTOPHER T.

DUPONT; MICHAEL DUPONT; JAMES B.

WYETH, SOLELY AS EXECUTOR AND

PERSONAL REPRESENTATIVE OF THE ESTATE

OF PHYLLIS M. WYETH; KATHARINE D.

GAHAGAN,

JAMES B. WYETH, SOLELY AS EXECUTOR AND

57a

PERSONAL REPRESENTATIVE OF THE ESTATE

OF PHYLLIS M. WYETH,

Appellant in 23-1499

LUCY DUNNE,

Appellant in 23-1501

MARY MILLS ABEL SMITH; KATHARINE D.

GAHAGAN,

Appellants in 23-1503

ELTON CORPORATION,

Appellant in 23-1511

CHRISTOPHER T. DUPONT,

Appellant in 23-1518

FIRST REPUBLIC TRUST COMPANY OF

DELAWARE LLC,

Appellant in 23-1526 & 23-1868

JAMES MILLS,

Appellant in 23-1546

LUCY DUNNE, REPRESENTATIVE FOR HELENA

DUPONT WRIGHT; JAMES

MILLS; MARY MILLS ABEL SMITH;

CHRISTOPHER T. DUPONT; JAMES B.

WYETH, SOLELY AS EXECUTOR AND

PERSONAL

REPRESENTATIVE OF THE ESTATE OF

PHYLLIS M. WYETH;

KATHARINE D. GAHAGAN,

Appellants in 23-1869

58a

(D.C. Civil Action No. l-17-cv-00286)

SUR PETITION FOR REHEARING

Present: CHAGARES, Chief Judge, JORDAN,

SHWARTZ, RESTREPO, BIBAS, PORTER, MATEY,

PHIPPS, FREEMAN, MONTGOMERY-REEVES, and

CHUNG, Circuit Judges

The petition for rehearing filed by Appellee in the

above-entitled case having been submitted to the

judges who participated in the decision of this Court

and to all the other available circuit judges of the

circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing,

and a majority of the judges of the circuit in regular

service not having voted for rehearing, the petition for

rehearing by the panel and the Court en banc, is

denied.

BY THE COURT,

s/ Tamika R. Montgomery-Reeves

Circuit Judge

Dated: December 4, 2024

JK/cc: All Counsel of Record

59a

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.