# Opposition Brief — Sejman v. Warner-Lambert Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 810

## Text

Supreme Court, U.
FILED
No. 89-1566 : | ua 3S wh

JOSEPH F-SPANIOL, JR.
CLERK

IN THI

Supreme Court of the United States

OCTOBER TERM, 1989
_>

VIRGINIA M. SEJMAN, A. R. TRAUTWEIN, THOMAS J. MCHUGH, JR.,
GLENDA IDLE, ROY G. COOK, JOSEPH D. DUBUQUE, ROBERT C.
REESE, JOE L. NORMAN, MORRIS LEISTER, MARY.J. MILLER, RAY
MOND G. BERNHARDT, and LEWIS LATHREN,

Petitioners,
Vv.
W ARNER-LAMBERT COMPANY, INC...
Respondent.
——-
THOMAS H. GIVENS, M. L. BRANNON,
JOHN J. CAPUTO, and C.E.ROBINSON, JR..,

Petitioners,

W ARNER-LAMBERT COMPANY, IN¢

Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSETION TO PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT

Of Counsel: Margaret Blair Soyster

William I. Greenbaum (C ounsel of Record)

Warner-Lambert Company ROGERS & WELLS

201 Tabor Road 200 Park Avenue

Morris Plains, New Jersey 07950 New York, New York 10166
(212) 878-8009

MT BEST AVAILABLE COPY

i
QUESTIONS PRESENTED

1. Whether the court of appeals correctly sustained
Warner-Lambert Company’s denial of severance pay, in
accordance with the language and purpose of its severance
policy and consistent with uniform past practice, to individ-
uals who had last been employed by Warner-Lambert more
than three years earlier, who based their claims to severance .
pay upon actions taken by their new employer without. a
Warner-Lambert’s knowledge or participation, and most of — ~~
whom had not-even lost their jobs.

2. Whether the court of appeals was correct to reject the
petitioners’ claim of a vested, contractual right to severance
pay purportedly established by a 1983 case decided under
South Carolina common law, in light of the contingent and
unaccrued nature of severance benefits under the Employee
Retirement Income Security Act (‘‘ERISA’’) and in view of
ERISA’s sweeping preemption provision.

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PARTIES TQ THE PROCEEDING

All parties to this proceeding are identified in the caption.

l Warner-Lambert’s list of parent companies and subsidiaries (except
wholly owned subsidiaries), required by Rule 29.1 of this Court, has
already been filed with the Clerk.

iil

TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT............

1]. THE UNIQUE BACKGROUND OF THE
CASES MAKES REVIEW UNWARRANTED

Il. THE. DECISION OF THE COURT OF
APPEALS IS NOT IN CONFLICT WITH
ANY DECISION OF ANOTHER COURT OF
"og |. * SS a Berets fries eer

Ill. THE COURT OF APPEALS PROPERLY
APPLIED ERISA STANDARDS IN WEIGH-
ING THE CLAIMS FOR SEVERANCE PAY

1. .Contingent Nature of Severance Benefits .

Se oc S 5a shea s bees vibes eased e408

8 ae eee erreny rre eae

PAGE

iil

iv

iV

TABLE OF AUTHORITIES

Cases PAGE

Adcock v. Firestone Tire & Rubber Co., 822 F.2d 623

Se Ss WEE ok Coes Ke t¥ modo tendotwe ns 8
Anderson v. Ciba-Geigy Corp., 759 F.2d 1518 (11th
Cir.), cert. denied, 474 U.S. 995 (1985) ........... 8

Blau v. Del Monte Corp., 748 F.2d 1348 (9th Cir.
1984), cert. denied, 474 U.S. 865 (1985)........... 8

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101
GR po a vas bold wh eG wae ae needa a Soeed wee ee eee 6

Ft. Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987) 10

Harris v. Pullman Standard, Inc., 809 F.2d 1495 (11th
eS >. RR ieee ea ane Fare Oars A RU Age Sky Ph oe re 8, 9

Holland v. Burlington Indus., 772 F.2d 1140 (4th Cir.
1985), aff'd mem. sub. nom. Brooks v. Burlington
Indus., 477 U.S. 901 (1986) and cert. denied, 477

Sa SOE AOE 6s od kode heeuaannee ees Otes erdaN 8
Jung v. FMC Corp., 755 F.2d 708 (9th Cir. 1985) ... &
Livernois v. Warner-Lambert_Co., 723 F.2d 1148 (4th

Sls Se 6 h6i 0s Rhee eh be nsdee ees ends se eee passim
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) .. 11

Schwartz v. Newsweek, Inc., 827 F.2d 879 (2d Cir.

Sejman v. Warner-Lambert Co., 889 F.2d 1346 (4th
Ce ES pn sa bie oo eK ESS ood ee passim

PAGE
Simmons v. Diamond Shamrock Corp., 844 F.2d 517
(Sth Cir, 1DBBP oie acct cece esevesccsessens ~—~8
Sly v. P.R. Malloy & Co., 712 F.2d 1209 (7th Cir.
| errr rer re se 8
Statutes
y: Bin Rome By." {| Peewee rrr rire ry irr oss = 2
Employee Retirement Income Security Act (ERISA)
29: U.3.C.. 6 30D) Ol WG. sc ccactessccuveeeseernss 2
2S ere perrereverrer sry ss 2, 9
Bj Reve rrrerrrr errr rs tres 2,9
6 F8GME) .. crcccivestsczssvevoaseerens a 433

Legislative Material

H.R. Rep. No. 807, 93d Cong. 2d Sess. 60, reprinted
in 1974 U.S. Cong. & Admin. News 4890 (1975)... 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989
No. 89-1566

oo

VIRGINIA M. SEJMAN, A. R. TRAUTWEIN, THOMAS J.
MCHUGH, JR., GLENDA IDLE, ROY G. COOK, JOSEPH
D. DUBUQUE, ROBERT C. REESE, JOE L. NORMAN,
MORRIS LEISTER, MARY J. MILLER, RAYMOND G.

BERNHARDT, and LEWIS LATHREN, oY
Petitioners,
—_V—

WARNER-LAMBERT COMPANY, INC.,
Respondent.

—
THOMAS H. GIVENS, M. L. BRANNON,
JOHN J. CAPUTO, and C. E. ROBINSON, JR.,

Petitioners,
—_—V.—

WARNER-LAMBERT COMPANY, INC.,
Respondent.

>

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT

Respondent Warner-Lambert Company opposes granting
the petition for a writ of certiorari seeking review of the
judgment of the United States Court of Appeals for the
Fourth Circuit entered in these cases on November 24, 1989.

2

OPINIONS BELOW

The opinion of the Court of Appeals for the Fourth Cir-
cuit is reported at 889 F.2d 1346 (4th Cir. 1989). The Order
of the District Court for the District of South Carolina grant-
ing summary judgment in favor of Warner-Lambert is unre-
ported. An earlier opinion of the Court of Appeals for the
Fourth Circuit in these cases is reported at 845 F.2d 66 (4th
Cir. 1988).

JURISDICTION

Discretionary jurisdiction to review the judgment of the
Court of Appeals for the Fourth Circuit, entered on Novem-
ber 24, 1989, rests on 28 U.S.C. § 1254(1). A petition for
rehearing and a suggestion for rehearing en banc were denied
on January 5, 1990. Warner-Lambert’s time to submit its
brief in opposition to the petition for a writ of certiorari was
extended to July 5, 1990.

STATUTE INVOLVED

This case involves the Employee Retirement Income Secu-
rity Act, 29 U.S.C. § 1001 et seq. Of particular relevance are
its provisions exempting employee welfare benefit plans, such
as severance benefit plans, from the statute’s stringent
accrual, vesting, and funding requirements, 29 U.S.C.
§§ 1051, 1081, and providing for broad preemption of ‘‘any
and all State laws insofar as they may now or hereafter relate
to any employee benefit plan.’’ 29 U.S.C. § 1144(a).

STATEMENT OF THE CASE

In these cases, sixteen individuals, who have not been
employed by Warner-Lambert since January 1982 and most
of whom have not even lost their jobs, seek to recover hun-
dreds of thousands of dollars of severance benefits from
Warner-Lambert because of actions taken by their new

employer. The court of appeals rejected the petitioners’
claims that they had a vested, continuing right to severance
pay from Warner-Lambert and found that they must instead
look to their new employer for any severance: benefits.

A. Factual Background

On January 20, 1982, Warner-Lambert sold its Medical-
Surgical Division as a going concern to Professional Medical
Products, Inc. (‘‘PMP’’). Following the sale to PMP, the
employees in the Medical-Surgical Division, including the
petitioners here, continued to work without interruption in
the same jobs, at the same location, with the same seniority,
at the same or higher salary, and with fully comparable
employee benefits.

Notwithstanding that there had been no interruption in
their employment, eleven employees of the Medical-Surgical
Division, including six of the sixteen petitioners here, brought
suit against Warner-Lambert, claiming a right to severance
pay as a result of the sale. Relying exclusively on a breach of
contract theory, they alleged that, even though they contin-
ued to work in the same jobs, they had been terminated as a
result of job elimination by virtue of the sale and thus were
entitled to severance pay under Warner-Lambert’s 1981 sever-
ance policy.’

Following a trial, the district court found in favor of the
plaintiffs and made severance pay awards to them ranging
from a low of $23,796.40 to a high of $58,625.98. On appeal,
the Court of Appeals for the Fourth Circuit reversed. The
Fourth Circuit, exercising diversity jurisdiction, held, as a
matter of South Carolina common law, that the plaintiffs
had not been terminated by reason of job elimination within
the meaning of the Warner-Lambert severance policy and dis-

2 Warner-Lambert’s 1981 severance policy provided in relevant part:
Purpose: To assure fair treatment to an employee terminated by
the Company as a result of job elimination, work performance or
other reasons of Company convenience except for violation of com-
pany rules or regulations. .

4

missed their claims as premature. Livernois v. Warner-
Lambert Co., 723 F.2d 1148, 1156-57 (4th Cir. 1983). The
court of appeals went on to interpret Warner-Lambert’s sev-
erance policy as implicitly imposing on Warner-Lambert
future liability for severance payments in the event that PMP
terminated an employee for other than just cause and failed
to satisfy the severance pay obligation. Livernois, 723 F.2d at
1157.

The petitioners in the Givens case worked for PMP for
more than three years following the divestiture. In 1985, each
of the four of them was terminated by PMP and allegedly
received less severance pay from PMP than they would have
been entitled to under Warner-Lambert’s 1981 severance pol-
icy. Notwithstanding that the Givens petitioners had not
worked for Warner-Lambert for more than three years when
they were let go by PMP and that Warner-Lambert had no
role in or control over their terminations, they claim entitle-
ment to a total of almost $200,000 in additional severance
benefits from Warner-Lambert.

The petitioners in Sejman, on the other hand, have not, to
this day, been terminated by PMP. All of them have
remained employed by PMP from the date of the sale up to
the present time, with the single exception of petitioner
Glenda Idle who voluntarily retired from PMP during 1985
and is receiving retirement benefits. In an apparent effort to
supplement their ongoing salary or retirement payments from
PMP with severance payments from Warner-Lambert, the
Sejman petitioners contend that, effective February 1, 1985,
when PMP revised its severance policy to provide reduced
benefits in certain circumstances, they experienced job elimi-
nation within the meaning of the Warner-Lambert severance
policy. They claim entitlement to more than $400,000 in sev-
erance benefits. Indeed, even petitioner Idle, who completed
her working life at PMP and is now in voluntary retirement,
maintains that she is owed $53,227 in severance benefits by
Warner-Lambert.

B. Prior Proceedings

In mid-1985, the Givens and Sejman petitioners com-
menced actions in the United States District Court for the
District of South Carolina to recover severance benefits alleg-
ediy due to them under Warner-Lambert’s severance policy.
Their claims were asserted under both the South Carolina
common law of contracts and ERISA. The petitioners based
their claims of entitlement to severance pay upon the Fourth
Circuit’s decision in Livernois v. Warner-Lambert Co., 723
F.2d 1148 (4th Cir. 1983).

Following the completion of discovery, Warner-Lambert
moved for summary judgment in both cases on the grounds
that the common law breach of contract claims had been pre-
empted by ERISA and that Warner-Lambert’s denial -of sev-
erance benefits was neither arbitrary nor capricious as a
matter of law and thus could not support a claim under
ERISA. The district court denied the motions in an Order
dated February 5, 1987. -

Although the district court recognized that ‘‘The scope of
ERISA is unquestionably broad and generally it would pre-
empt breach of contract claims founded upon state law prin-
ciples,’ it nonetheless held that the petitioners’ breach of
contract claims were not preempted by ERISA and that the
cases would be governed by the Fourth Circuit’s decision in
Livernois. The district court reasoned that ‘‘The law of the
case doctrine dictates that Warner-Lambert be bound by the
Livernois solution.’ In light of that holding, the district
court did not reach Warner-Lambert’s arguments under
ERISA.

On appeal, the Fourth Circuit rejected Livernois as the
determinative authority in the cases and held instead that the
standards provided in ERISA were preemptive and should be
applied in weighing the petitioners’ claims to severance pay.
Sejman v. Warner-Lambert Co., 845 F.2d 66, 70 (4th Cir.
1988) (‘‘Sejman I’). Consequently, the matter was remanded
to the district court for a determination whether, considering
‘“‘the totality of the circumstances,’’ Warner-Lambert’s denial

6

of severance benefits was ‘‘arbitrary or capricious.’’ Sejman
I, 845 F.2d at 70.

On remand, the district court granted Warner-Lambert’s
renewed motion for summary judgment, finding that its
denial of severance benefits to the petitioners was not arbi-
trary or capricious. In reaching that conclusion, the district
court focused, in particular, on the petitioners’ ‘‘clear’’ ineli-
gibility for severance benefits under the ‘‘plain language’’ of
Warner-Lambert’s severance policy; Warner-Lambert’s
adherence to its consistent past practice in connection with
more than fifty-five divestitures over the course of thirty
years; and the ‘‘windfall’’ nature of the recovery which the
petitioners were seeking to obtain.

The Fourth Circuit affirmed the judgment of the district
court that the petitioners had no entitlement to severance
benefits from Warner-Lambert.’ Sejman v. Warner-Lambert
Co., 889 F.2d 1346 (4th Cir. 1989) (‘‘Sejman IT’). Acknowl-
edging at the outset that this Court’s intervening decision in
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989),
required review of Warner-Lambert’s denial of severance pay
under the de novo standard rather than the arbitrary and
capricious standard, the court of appeals found it ‘‘clear that
Warner-Lambert’s action was justifiable under the de novo
standard.’’ Sejman IT, 889 F.2d at 1348.

Relying on the contingent and unaccrued nature of sever-
ance benefits under ERISA, the Fourth Circuit rejected the
petitioners’ claims that Livernois, 723 F.2d 1148, gave them a
vested contract right to severance pay from Warner-Lambert.
Sejman ITI, 889 F.2d at 1348-49. The court of appeals then
proceeded to review the language and purpose of Warner-
Lambert’s severance policy, its past practice under the sever-
ance policy, and the ‘‘windfall recovery’? which would result
from a finding for the petitioners, all of which led to the,
conclusion that the petitioners were not entitled to severance

3. + The affirmance was unanimous with respect to the Sejman petition-
ers, but there was a dissent with respect to the Givens petitioners.

7

benefits from Warner-Lambert. Sejman IJ, 889 F.2d at 1349-
50.

In conclusion, the Fourth Circuit stated:

To hold Warner-Lambert liable in this case wouid do
violence both to Supreme Court and circuit precedent. It
would be inconsistent with the character of severance
pay plans as described by this circuit in Sutton [v. Weir-
ton Steel], 724 F.2d at 410, with the principles of federal
preemption of state contract law under ERISA as enun-
ciated by the Supreme Court, Pilot Life Ins. Co. y.
Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed:2d° 39
(1987), see also Shaw v. Delta Air Lines, 463 US. 85,
103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), and with the
controlling effect accorded ERISA by Sejman in this
very case. These principles point to one conclusion.
Most plaintiffs here have or will recover severance pay
at an appropriate time, but it is to the policy of their
present employer that they must look.

Sejman II, 889 F.2d at 1350. A petition for rehearing and a

suggestion for rehearing en banc were denied on January 5,
1990.

REASONS FOR DENYING THE WRIT
I

THE UNIQUE BACKGROUND OF THE CASES MAKES
REVIEW UNWARRANTED

As the Fourth Circuit noted, ‘‘this litigation has pursued a
long and tortuous course’’ which ‘‘began when the governing
principles of federal preemption and benefit plan administra-
tion were less clear than they are today.’’ Sejman IJ, 889
F.2d at 1350. Due to their anomalous background, the cases
have no significance except to the parties and will affect no
other present or future litigants.

No other employees will be in a position to look to Liver-
nois, 723 F.2d 1148, as a potential source of rights and no

ba aN

—*
-
r
AS?

8

other.employers will face the Livernois decision as an historic
fact to be dealt with in their severance plan- administration
under ERISA. This Court should not squander its discretion-
ary jurisdiction on cases, such as these, which lack either
widespread impact or national importance.

Il.

THE DECISION OF THE COURT OF APPEALS IS NOT
IN CONFLICT WITH ANY DECISION OF ANOTHER
COURT OF APPEALS

In the past decade, most of the courts of appeals have had
occasion to consider the availability of severance pay under_
ERISA in the context of a sale of a division as a going con-
cern. Irrespective of which circuit these cases proceeded in,
their outcome was determined by reference to a uniform set
of considerations, including the language and purpose of the
particular severance policy at issue and the existence and
effect of any noncompliance with the procedural require-
ments of ERISA by the particular employer involved.

The decisions rendered varied from case to case depending
on how the several factors weighed in each individual case,
but the legal analysis was consistent. Compare Harris v. Pull-
man Standard, Inc., 809 F.2d 1495 (11th Cir. 1987), and
Blau v. Del Monte Corp., 748 F.2d 1348 (9th Cir. 1984),
cert, denied, 474 U.S. 865 (1985) (refusing to uphold a denial
of severance benefits following a divestiture) with Simmons
v. Diamond Shamrock Corp., 844 F.2d 517 (8th Cir. 1988);
Schwartz v. Newsweek, /Inc., 827 F.2d 879 (2d Cir. 1987);
Adcock vy. Firestone Tire & Rubber Co., 822 F.2d 623 (6th
Cir. 1987); Holland v. Burlington Indus., 772 F.2d 1140 (4th
Cir. 1985), aff'd mem. sub nom. Brooks v. Burlington
Indus., 477° U.S. 901 (1986) and cert. denied, 477 U.S. 903
(1986): Anderson v. Ciba-Geiby Corp., 759 F.2d 1518 (11th
Cir.), cert. denied, 474 U.S. 995 (1985); Jung v. FMC Corp.,
755 F.2d 708 (9th Cir. 1985); and Sly v. P.R. Mallory & Co.,

9
712 F.2d 1209 (7th Cir. 1983) (upholding a denial of sever-
ance benefits following a divestiture).

The petitioners confuse differences in result due to factual
disparities with a true conflict between the courts of appeals.
Admittedly, the Eleventh Circuit in Harris v. Pullman Stan-
dard, Inc., 809 F.2d 1495, reached a different conclusion
about the propriety of a denial of severance benefits follow-
ing a divestiture-than the Fourth Circuit did in these cases,
but both courts considered the same factors in making their
determinations. In both cases, the court of appeals consid-
ered the language and intent of the severance policy, past
practice under the plan, and the seriousness of violations of
ERISA’s procedural requirements. Each case turned on its
unique facts.There is no single, invariable interpretation
which must be given to severance policies in every case. The
so-called conflict in the circuits cited by the petitioners is thus
adequately explained by the truism that different facts may
well yield different results.

ll

THE COURT OF APPEALS PROPERLY APPLIED
ERISA STANDARDS IN WEIGHING THE CLAIM FOR
SEVERANCE PAY

In arguing that the Fourth Circuit misused ERISA to
deprive them of ‘‘vested contract rights’? promised to them in
Livernois, 723 F.2d 1148, the petitioners overlook the contin-
gent nature of severance benefits under ERISA and ignore
the existence of ERISA’s sweeping preemption provision.

1. Contingent Nature of Severance Benefits

Under ERISA, employee welfare benefits, such as sever-
ance pay, are contingent, unaccrued, and unfunded benefits
which can be. unilaterally amended or even eliminated by an
employer at any time. See 29 U.S.C. §§ 1051, 1081. Conse-
quently, employees have no vested right to these benefits, and
employers have no continuing duty to provide them. Con-

10

gress expressly exempted such benefits from the stringent
vesting requirements applicable to retirement and pension
benefits because it believed that the ‘‘vesting of these ancil-
lary benefits would seriously complicate the administration
and increase the cost of plans... .’’ H.R. Rep. No. 807,
93d Cong., 2d Sess. 60, reprinted in 1974 U.S. Code Cong. &
Admin. News 4890, 4935 (1975).

The Fourth Circuit thus acted in accordance with the gov-
erning policies of ERISA in rejecting the petitioners’ claim
that they acquired ‘‘vested contract rights’’ to severance pay
which survived their separation from Warner-Lambert.
Sejman II, 889 F.2d at 1348-49. To have held otherwise
would have thwarted Congress’ intent of exempting employee
welfare benefit plans from vesting requirements and from the
attendant administrative burden and expense. If the petition-
ers’ argument had been accepted, companies would be faced,
after the sale of a division or subsidiary, with the impossible
burden of monitoring the future careers of all their former
employees in order to determine when and why they might
eventually leave the successor employer. The court of appeals
found that:

Requiring such an ongoing obligation for severance pay-
ments after employees are employed elsewhere could dis-
courage employers like Warner-Lambert from seeking to
ensure that their former employees retain their old posi-
tions or encourage such employers to forego severance
payments altogether.

Sejman II, 889 F.2d at 1349. Cf. Ft. Halifax Packing Co. v.
Coyne, 482 U.S. 1, 13 (1987) (‘‘Faced with the difficulty or
impossibility of structuring administrative practices according
to a set of uniform guidelines, an employer may decide to
reduce benefits or simply not to pay them at all.’’)

2. Preemption |

The sweeping preemption provided for in ERISA of ‘‘any
and all State laws insofar as they may now or hereafter relate
to any employee benefit plan’’ expressly includes preemption

1]

of “all laws, decisions, rules, regulations, or other State
actions having the effect of law, of any State. 29 U.S.C.
§ 1144 (emphasis added). Decisional law, such as Livernois,
723 F.2d 1148, which purports to regulate the payment of
severance benefits under State common law principles, has
thus been preempted by ERISA and cannot serve as the basis
for resolution of a dispute over entitlement to benefits. See
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 48 n.1 (1987).

In refusing to recognize Livernois as the determinative
authority which the petitioners urged it should be in deciding
their entitlement to severance pay from Warner-Lambert, the
Fourth Circuit gave proper effect to the preemption provision
of ERISA. Sejman II, 889 F.2d at 1350.

CONCLUSION

For the foregoing reasons, the Court should deny the peti-
tion for a writ of certiorari.

Dated: July 5, 1990
Respectfully submitted,

Margaret Blair Soyster
(Counsel of- Record)
ROGERS & WELLS
200 Park Avenue
New York, New York 10166
(212) 878-8000
Of Counsel:

William I. Greenbaum
Warner-Lambert Company

201 Tabor Road

Morris Plains, New Jersey 07950

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1334%3A1. Public record. Not legal advice.