Opposition Brief — Arvida Realty Sales, Inc. v. Seaman

Bupreme Court, Uf

, FICRS

SEP 20 weg

No. 93-261

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

ARVIDA REALTY SALES, INC., a Florida Corporation,

ARSLP, INc., an Illinois Corporation, and ARvIDA

REALTY SALES, LTD., a Delaware Limited Partnership,

Petitioners,

¥.

PATRICIA SEAMAN,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF IN OPPOSITION

FRANK E. HAMILTON, JR.

(Counsel of Record)

FRANK E. HAMILTON, III

FRANK HAMILTON &

ASSOCIATES, P.A.

2620 West Kennedy Boulevard

Tampa, Florida 33609

(813) 879-9842

Counsel for Respondent

WILSON - Eres PRINTING Co.,. INC. - 789-0096 - WASHINGTON, D.C. 20001

® CBr oo

QUESTION PRESENTED

As explained infra, pp. 5-8, none of the “Questions

Presented” as stated at pp. i-li of the Petition is presented.

The only question that could be presented—and Peti-

tioner has chosen not to directly present it—is the

following:

Did the Court of Appeals err in the reversal of

the District Court, holding that the Complaint stated

a claim for relief under Section 510 of ERISA. 29

U.S.C. § 1140, where the Complaint alleged that the

Plaintiff was terminated, that the stated reason for

her termination was to eliminate the cost of provid-

ing health insurance coverage and continued partici-

pation in the employer’s 401(k) Plans, and that she

was terminated, along with other similarly situated

employees, in order to deprive them of benefits to

which they might become entitled under the employ-

er’s employee welfare benefit plans, in violation of

ERISA.

REASONS FOR DENYING THE WRIT

TABLE OF CONTENTS

I. NONE OF THE “QUESTIONS PRESENTED”

IN THE PETITION IS ACTUALLY PRE-

II.

CONCLUSION

SENTED IN THIS CASE

THERE IS NO CONFLICT WITH DECI-

SIONS OF THIS COURT, OR BETWEEN

THE COURTS OF APPEAL

A.

B.

Introduction

The Court Of Appeals Did Not Depart From

Settled Law Or Conflict With Other Courts

Of Appeal In Reversing Dismissal Of The

RTA EE aS

. The Court Of Appeals Correctly Determined

That Section 510 Of ERISA Applies To Wel-

fare Plan Benefits

Arvida’s “Business Necessity” Claim Has

Not Been Rejected; It Has Not Even Been

Made

APPENDIX

Patricia Seaman v. Arvida Realty Sales, Inc., et al.,

No. 89-999-CIV-T-17 (M.D. Fla., July 25, 1989)...

(iii)

10

12

13

iv

TABLE OF AUTHORITIES

Cases: Page

Massachusetts Mutual Life Ins. Co. v. Russell, 508

US. ——, 118 S. Ct. 2063, 124 L.Ed.2d 161

AR Ra ata sa aa oN Ok AIC Ae SC 5

McDonnell-Douglas Corp. v. Green, 411 U. s. 292

I ee 5

McGann v. H&H Music Co., 946 F.2d 401 (5th Cir.

1991), cert. denied, U.S. ——, 118 S. Ct.

SE, Be NE PE CREE Saviciraircitcicencceecsinnn 10

Owens v. Storehouse, Inc., 984 F.2d 394 (11th Cir.

Re RENE eBay Scorn a atm ca a BE. SE 10

St. Mary’s Honor Center v. Hicks, 509 U.S. ‘

113 S. Ct. 2472, 125 L.Ed.2d 407 (June 23,

| RSs ohana ait 208 EME Reeve 5

Statutes:

aR a Re ES | a re 8,11

BR Re) | Ua ae ae ee ee OR 5, 10

NE SR 2 Ceti cheete aati Mi tM tok Ce NER 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-261

ARVIDA REALTY SALES, INC., a Florida Corporation,

ARSLP, INnc., an Illinois Corporation, and ARVIDA

REALTY SALES, LTD., a Delaware Limited Partnership,

- Petitioners,

PATRICIA SEAMAN,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Respondent, Patricia Seaman (“Seaman”), was one of

a group of individuals employed by Arvida in the ca-

pacity of real estate sales associate pursuant to written

employment contracts. Each of these employment con-

tracts specifically designated the sales associate as an

“employee” and acknowledged Arvida’s obligation to

make Social Security contributions, pay income tax with-

holding, etc.

Effective May 1, 1989, Arvida terminated its sales

associates, and immediately offered to re-employ them as

“independent contractors” pursuant to separate written

agreements which specifically identified them as inde-

pendent contractors, rather than employees. Seaman and

2

the other sales associates were told that they would no

longer be entitled to participate in the employer’s health

insurance and Section 401(k) Plans.

Seaman filed suit in the District Court, alleging that

5... . The stated reason for the termination was

in order to eliminate the cost of providing health

insurance coverage to the sales employees (and em-

ployer 401(k) and FICA contributions), .. .

and that until her termination Plaintiff was a participant

in the employee health insurance programs, which were

employee welfare benefit plans within the meaning of

ERISA, that she was a participant in the 401(k) Plan,

which was also an employee welfare benefit plan within

the meaning of ERISA, and that

9. Plaintiff and the other real estate sales employees

were terminated, in order to deprive them of bene-

fits under the aforesaid employees welfare benefit

plans, and such termination constituted discrimina-

tion and interference with protected rights, in viola-

tion of the provisions of ERISA.’

Arvida filed Motions to Dismiss the Complaint, as-

serting that the health insurance plan was not a pension

plan, and that rights thereunder could not be vested, so

that the protections of Section 510 of ERISA did not

apply. Arvida also contended that since Seaman’s rights

to contributions already made into the 401(k) Plan re-

mained vested. she had no right to continuing participa-

tion, and the protections of ERISA did not apply.

The District Court granted Arvida’s Motion to Dismiss,

agreeing with Arvida’s argument that Plaintiff had no

pending claims under the health plan, and no rights to

any future benefit under the 401(k) plan, that entitle-

ment to health insurance and future participation in the

401(k) plan were not vested or accrued benefits, and

1 Plaintiff's Complaint is included in the Appendix to this Brief

at pp. la-7a.

————————

3

a

therefore not subject to protection by Section 510 of

ERISA.

Arvida did not urge in the District Court. and the

District Court did not consider, any claim of business

necessity, or any contention that Arvida’s termination of

Plaintiff was for any reason other than that alleged by

Seaman.

The Court of Appeals reversed the decision of the Dis-

trict Court, noting that there was a wealth of authority

that continued participation in an employee welfare plan

was a right under ERISA, and that continued participa-

tion in a 401(k) plan was similarly a right protected

under ERISA.2. The Court of Appeals held that the

plain language of Section 510 precluded termination

where the object was to prevent or interfere with “the

attainment of any right to which the participant may

become entitled”. The Court of Appeals went on to

observe that

The validity of a § 510 claim does not hinge upon

whether the benefits involved are vested, but upon

the purpose of the discharge. A plaintiff must show

that the employer had the specific intent to interfere

with the employee’s right to benefits. (Petition, pp.

AS-6.)

The Court of Appeals correctly noted that

Seaman alleged that Arvida terminated her because

she would not give up the right to continued par-

ticipation in the health plan and for the specific

purpose of interfering with her rights under ERISA.

(Petition, p. A6).

Since this case arose on a Motion to Dismiss, Arvida

did not present, and neither the District Court nor the

Court of Appeals decided, the proof issues involved in

2The Decision of the Court of Appeals is found in the Petition

Appendix, pp. Al-10,

4

determining the employer’s intent, business justification,

or any other motive. As the Court of Appeals observed,

. whether an employer intends to interfere with

the employee’s right to future benefits is a factual

inquiry to be answered on a case-by-case basis. (Pe-

tition, p. A5).

The Court of Appeals did not hold, as Arvida suggests.

that Arvida had violated ERISA, but simply that the

Complaint had sufficiently alleged a violation of the

statute. While some of the Court’s observations may have

been prompted by Arvida’s concession of its intent to de-

prive Plaintiff of participation in the health insurance

plan, the holding focused on the allegations of Seaman’s

Complaint.* Contrary to the assertions of Arvida, the

Court of Appeals did not preclude the assertion of de-

fenses, but merely, and correctly, found that the Com-

plaint stated a claim within the plain language of Section

510 of ERISA.

Arvida’s Petition for Rehearing and Suggestion of Re-

hearing En Banc was denied, no member of the Court

of Appeals having requested a poll on rehearing en banc.

Petition at pp. Al2-13.

REASONS FOR DENYING THE WRIT

This case does not, contrary to Arvida’s Petition, pre-

sent a conflict with decisions of this Court, nor has

Arvida shown that there is a conflict with a decision of

another Court of Appeais on the same matter. Arvida

claims a conflict, “in principle”, with the “spirit” of cases

3 “Nevertheless, if Seaman’s allegations are true, Arvida has

violated §510.” (Petition, p. A9). Arvida complains in its Peti-

tion, at p. 11, fn. 7, that its “honesty” subjected it-to per se Sec-

tion 510 liability. As discussed infra, the Court of Appeals did

not decide liability, but merely whether the Complaint stated a

cause of action. Arvida’s “honest admissions” as to ‘ts intent

were much more candid in Briefs to the Court of Appeals. Plainly

Arvida does not intend to make that mistake in this Court.

5

which indicate reluctance to create “new” causes of ac-

tion, or expand damages or standing beyond that clearly

expressed by Congress. This case is not inconsistent with

those principles.

The Court of Appeals reversed the dismissal, on initial

motions and before Answer, of a Complaint (Appendix

to this Brief). Arvida overstates and misstates what the

Court of Appeals did, the reasons given, and the potential

consequences. Section 510 of ERISA expressly makes

it unlawful to discharge a participant in an employee

benefit plan, “for the purpose of interfering with the at-

tainment of any right to which such participant may be-

come entitled”. 29 U.S.C. § 1132(a)(3) authorizes suit

by a participant to enforce that prohibition, and for ap-

propriate relief.

There is no conflict. “in principle” or otherwise, with

Massachusetts Mutual Life Ins. Co. v. Russell, 508 U.S.

, 113 S. Ct. 2063, 124 L.Ed.2d 161 (1993). Be-

cause this case is presented based only on the Complaint

and Motion to Dismiss, there is no way there could be

any conflict with the “burden of proof” or “mixed mo-

tive” cases such as McDonnell-Douglas Corp. v. Green,

411 U.S. 292 (1973) or St. Mary’s Honor Center v.

Hicks, 509 U.S. ——, 113 S. Ct. 2472, 125 L.Ed.2d

407 (June 23, 1993). Nor is there any colorable claim

of pre-emption of state law. Arvida is grasping at

straws.

I. NONE OF THE “QUESTIONS PRESENTED” IN

THE PETITION IS ACTUALLY PRESENTED IN

THIS CASE.

1. Contrary to the assertions in the Petition, the

Court below did not recognize “an implied ERISA

‘wrongful discharge’ claim based solely upon loss of un-

accrued, unvested, and prospective benefits”; it held only

that an allegation that Plaintiff was discharged in order

to deprive her of benefits from an employee welfare

6

benefit plan stated a claim within the plain language of

Section 510 of ERISA, 29 U.S.C. $1140. Thus, the

first question was not presented.

2. Nor did the Court of Appeals hold that ERISA

Section 510 prohibits an employer from restructuring its

workforce to reduce payroll costs; as noted, the case as

presented to the District Court and the Court of Appeals

was premised on allegations that the object of the termi-

nation was to deprive Plaintiff of benefits and continued

participation in employee welfare benefit plans, and

Arvida conceded as much in the Court of Appeals. Ac-

cordingly, the second question is not presented.

3. Petitioners’ third “Question Presented” misstates

this case. While an employer may have the right to

amend or change its plan, such is not an “absolute” right

to amend the plan. The plan amendment could not vio-

late the structural requirements of ERISA, for example,

and might also be limited by provisions of Title VII, the

Americans with Disabilities Act, or other specific pro-

tective legislation. A discriminatory amendment might

well be unlawful. Arvida has not “achieved the same

result” by converting some of its employees to inde-

pendent contractors. The plans remain in effect, with

(for purposes of this Petition) all of the same terms and

conditions, except that Plaintiff and certain others have

been terminated in order to prohibit them from partici-

pating. Had the plans been amended, across the board

and with no discriminatory or other unlawful intent. an

entirely different question would have been presented.

That is not, however, this case.

4. Contarry to the implication of the Petition, the

Court of Appeals did not consider, much less reject, the

employer’s “business justification” defense. Arvida seeks

to have this Court review the Court of Appeals’ reversal

of the District Court’s Order dismissing the Complaint

on initial motions, and before Answer. “Business justifi-

cation” has never been asserted, much less rejected, ex-

7

cept in this Petition. Although the Complaint alleges, as

the statute requires, that the purpose of the termination

was discriminatory, the Court of Appeals did not find

it necessary to, and did not, determine a “business jus-

tification” defense. Rather, it simply found the Com-

plaint sufficient. In an effort to obtain unwarranted re-

view by this Court, Arvida has posed a question, and

complained of a decision, which has not been presented;

since this case arises on initial Motions to Dismiss, be-

fore Answer, consideration of this issue is premature,

at best.

5. Contrary to the assertion in the Petition, the Court

of Appeals did not hold that ERISA Section 510 creates

or establishes benefit plan vesting beyond that contained

in the statute or the plan documents. The question of

whether the Plaintiff had “vested” rights under the plans

in issue was a false issue raised in the District Court.

The Court of Appeals correctly held that the statute pro-

hibited intentional interference with rights to participate

in whatever plan was then in effect, a holding which is

clearly required by the statute, as numerous courts have

held.

All that the Court of Appeals decided is that “an

employer may not terminate an employee for the purpose

of avoiding payment of plan benefits” (Petition at p.

A7). It did not decide what those benefits might be.

Bearing in mind that this case arises on a Motion to

Dismiss, and that the allegations of the Complaint must

be taken as true, the Court of Appeals holding is clearly

correct, and presents no question that this Court should

consider at this juncture.

The gist of the Court of Appeals decision, contrary to

Petitioners’ mischaracterization, is found in the Petition,

at p. A9:

If the employer decides to offer benefits, it must

allow its employees to take advantage of the plan

and must administer the plan in a nondiscriminatory

8

fashion. But the employer can make the initial de-

cision whether to offer any benefits at any time.

Nevertheless, if Seaman’s allegations are true, Arvida

has violated § 510. Arvida did not change the terms

of its plan; rather, it threatened to terminate its sales-

people unless they agreed to become independent

contractors, performing the same job but ineligible

to receive the benefits previously offered to them

as employees and still offered to Arvida’s remaining

employees. It terminated plaintiff for declining to

work without the benefits she previously enjoyed

though offered to remaining employees. Plaintiff

was, in the exact language of § 510, discharged “for

exercising [a] right to which [she was] entitled under

the provisions of an employee benefit plan.” To

excuse this action would prevent § 510 from ful-

filling its congressionally intended purpose. That

Arvida, by changing the terms of its plan, lawfully

could have deprived iis salespeople of these benefits

does not allow it to offer benefits but prevent its

salespeople from taking advantage of those benefits

on pain of discharge.

II. THERE IS NO CONFLICT WITH DECISIONS OF

THIS COURT, OR BETWEEN THE COURTS OF

APPEAL.

A. Introduction.

Despite the apocalyptic language and expansive claims

asserted by Arvida in its Petition for Certiorari, the issue

presented in this case is really quite narrow. The Court

of Appeals reversed the decision of the District Court

granting a Motion to Dismiss the Complaint, because

the District Court misconstrued the provisions of Section

510 of ERISA to apply only to vested benefits, essen-

tially pension plans. The District Court failed to appre-

ciate that Section 510 applied to employee benefit plans,

which are broadly defined in the statute * and specifically

include the type of plans at issue here.

429 U.S.C. §1002(3). It includes both pension plans and wel-

fare plans, or combinations of plans.

9

The Court of Appeals found that Plaintiff's Complaint

stated a claim within the plain language of the statute,

and reversed the dismissal of the Complaint. The broader

questions urged by Arvida go far beyond the issues pre-

sented to, and decided by, either the District Court or the

Court of Appeals. Indeed, reading the Petition would

cause one to believe that this case had been tried, re-

sulting in a judgment for Plaintiff after the District Court

had either directed a verdict, stricken defenses, or in-

structed the jury that the employer’s “business justifica-

tion” should not be considered, or was not sufficient as

a matter of law. As noted, this case arises on a Motion

to Dismiss the initial Complaint, before Answer, and

“business justification” has not been raised, much less

established.

B. The Court Of Appeals Did Not Depart From Set-

tled Law Or Conflict With Other Courts Of Appeal

In Reversing Dismissal Of The Complaint.

The Court of Appeals determination that Section 510

of ERISA applies to employee welfare benefit plans, in-

cluding health insurance plans—a determination that Pe-

titioner does not directly challenge in its Questions

Presented—is firmly grounded in the plain language of

the statute, and the decisions of numerous Courts of

Appeals. Contrary to Arvida’s claim, the Court of Ap-

peals decision does not strip employers of a “business

necessity” defense, or determine ultimate liability. The

Court of Appeals specifically premised its conclusion on

the assumption that Plaintiffs allegations would be

proven. The determination as to whether the employer’s

intentions and actions were lawful or unlawful remains for

the trier of fact. All the Court of Appeals has decided

is that the Complaint states a claim for relief, and that

further proceedings will be required.

10

C. The Court Of Appeals Correctly Determined That

Section 510 Of ERISA Applies To Welfare Plan

Benefits.

This case does not require review because of some

perceived inconsistency with the “spirit” of ERISA. Con-

trary to the suggestion of Petitioner, the cause of action

Plaintiff brings is expressly authorized by the statute. It

is neither “implied” nor somehow “inconsistent” with the

“spirit” of the overall statute. Rather, it is a conclusion

which is inescapable from the plain language of the

Statute.

When Congress provided that it would be unlawful for

an employer to terminate an employee (participant)

“... for the purpose of interfering with the attain-

ment of any right to which such participant may

become entitled under the plan.. .”

and then authorized a participant to bring an action for

violation of the statute, 29 U.S.C. § 1132(a)(3), it

plainly anticipated that an employee could bring an ac-

tion for termination where the object of the termination

was a violation of ERISA. Although Petitioner claims a

conflict in the Circuit Courts of Appeal, it cites no case

in which a court has held that an employee participant

may not complain of his termination, where such termi-

nation is claimed to be for the purpose of depriving him

of welfare plan benefits.°

To the contrary, as noted by the Court of Appeals, a

number of Courts of Appeals have held that an employer

violates Section 510 by discharging employees to prevent

them from taking advantage of benefits which are not yet

5 The Court of Appeals noted (Petition, p. A6-7) that the in-

stant case was factually distinguishable from McGann v. H&H

Music Co., 946 F.2d 401 (5th Cir. 1991), cert. denied, U.S.

, 113 S. Ct. 482, 121 L.Ed.2d 387 (1992) and Owens v. Store-

house, Inc., 984 F.2d 394 (11th Cir. 1993), which involved amend-

ments to the plan, rather than termination of employees. Arvida

seems unable, or unwilling, to grasp the distinction.

11

vested (Petition, at p. A5). Plainly, there is no conflict

in the Circuits on this point. Arvida’s attempt to re-

characterize Plaintiff's claim to present the appearance

of conflict between the Courts of Appeals should be

rejected.

As noted, Arvida argued to the District Court, and the

District Court accepted, the proposition that Section 510

of ERISA protects only vested rights, essentially rights

under pension plans. Accordingly, since Plaintiff was

principally complaining of termination to deprive her of

benefits in an employee welfare benefit plan, rather than

a vested pension plan, the District Court concluded that

she stated no claim.

As the Court of Appeals observed, however,

The parties do not dispute that before her termina-

tion Seaman was an employee entitled to participate

in Arvida’s benefits plan, or that the health insurance

and 401(k) plan are included in the phrase, “em-

ployee benefit plan,” and thus are covered by ERISA.

(Petition, at p. A3).

Clearly, if Congress had intended Section 510 to apply

only to rights under pension plans, it would have used

used the term “employee pension benefit plan” rather

than the broader term “employee benefit plan”. Section

3 of ERISA, 29 U.S.C. § 1002(2) and (3). After re-

viewing and approving numerous cases where other

Courts of Appeals had applied Section 510 to benefit plans

where the benefits were not vested, the Court of Appeals

observed

“We agree with the reasoning of the Fourth Circuit

in Conkwright which held that Congress did not

intend to leave employees unprotected once their

rights were vested and that § 510 prohibits the em-

ployer from discharging an employee for the purpose

of preventing the employee from receiving additional

vested benefits. 933 F.2d at 238. The Fourth Cir-

cuit’s conclusion is consistent with § 510’s language,

12

which protects “the attainment of any right to which

such participant may become entitled” . . . The

validity of a § 510 claim does not hinge upon whether

the benefits involved are vested, but upon the pur-

pose of the discharge.” (Petition AS).

D. Arvida’s “Business Necessity” Claim Has Not Been

Rejected; It Has Not Even Been Made.

Finally, and perhaps most significantly, the issues

Arvida suggests are at best premature. The District Court

properly should consider the allegations of the Complaint

as true, and the Court of Appeals has correctly deter-

mined that they are sufficient to state a claim. The Court

of Appeals did not hoid that Plaintiff would necessarily

win, unless of course, “Seaman’s allegations are true”

(Petition A9). This is not unusual. As a general rule,

if a Plaintiff proves her case, she is supposed to win.

In attempting to create a fictional conflict in the Courts

of Appeals. Arvida raises a “business necessity” defense,

and implies that this defense has been stricken, barred,

or rejected. Arvida makes numerous references through-

out its Petition to what it characterizes as Plaintiff's

claim, allegations, or admissions. These are actually the

“spin” Arvida now tries to place on the Complaint.

In order that this Court may appreciate the allegations

Plaintiff did make, which the Court of Appeals clearly

understood, we have attached as Respondent’s Appendix

a copy of the Complaint. The Plaintiff's allegations

clearly accused the employer of terminating her in order

to deprive her of ERISA benefits, or the right to par-

ticipate in ERISA plans. These other matters, Arvida’s

effort to reduce its payroll costs (Petition p. 6), that

Arvida was involved in a reduction in force to reduce pay-

roll costs (Petition p. 7), or that the restructuring of its

sales force was motivated by its goal of reducing payroll

expenses. including reduction of future benefit costs (Pe-

tition p. 7) are Arvida’s claims in this Court, not Plain-

tiff’s claim below.

13

In an effort to obtain unwarranted review by this

Court, Arvida attempts to recharacterize Plaintiff's Com-

plaint, and misconstrue the decision of the Court of Ap-

peals. We respectfully suggest that if this Court reviews

the allegations of the Complaint, and the decision of the

Court of Appeals, Arvida’s shabby effort to distort and

confuse will be apparent. Plaintiff did not claim, and the

Court of Appeals did not hold, that an employer’s deci-

sion to restructure its workforce violates ERISA when-

ever it impacts, however slightly, on employee benefits.

Plaintiff did not claim, and the Court of Appeals did not

hold, that any employee who is ever fired has an ERISA

claim. As the Court of Appeals took great pains to

note, the ERISA claim, set out in the plain language of

the statute, requires an allegation of a specific intent *, to

interfere with plan rights or benefits to which the par-

ticipant is, or may become, entitled to. Plaintiff's Com-

plaint does so, as the Court of Appeals correctly found.

Accordingly, this Court should deny the petition for

certiorari.

CONCLUSION

Since the Plaintiff's Complaint specifically alleges that

her termination was for the purpose of depriving her of

rights to which she might become entitled under an em-

ployee benefit plan, in violation of Section 510 of

ERISA, the Court of Appeals correctly held that it

stated a claim and reversed the District Court. In doing

® As the Court of Appeals noted:

“A plaintiff must show that the employer had the specific in-

tent to interfere with the employee’s right to benefits. This

standard does not require the plaintiff to show that inter-

ference with ERISA rights was the sole reason for dis-

charge, but does require plaintiff to show more than the in-

cidental loss of benefits as a result of the discharge.” (Peti-

tion A5-A6, citations omitted).

That, as the Court of Appeals recognized, occurs on a case-by-case

basis, and is plainly inappropriate for decision by this Court on

the state of these pleadings.

14

so, the Court of Appeals corectly determined that the

District Court had erred in assuming that Section 510

of ERiSA applied only to participation in plans with

vested benefits. Arvida has shown no basis for this Court

to review the decision of the Court of Appeals, or to

reverse.

This case simply does not present the issues stated in

Petitioner's “Questions Presented”, let alone an issue

which is appropriate for consideration by this Court. The

rulings below involve the sufficiency of the allegations

of the Complaint, prior to Answer. The Petition for

Certiorari should be denied.

Respectfully submitted,

FRANK E. HAMILTON, JR.

(Counsel of Record)

FRANK E. HAMILTON, III

FRANK HAMILTON &

ASSOCIATES, P.A.

2620 West Kennedy Boulevard

Tampa, Florida 33609

(813) 879-9842

Counsel for Respondent

la

APPENDIX

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Case No. 89-999-Civ-T-17c

PATRICIA SEAMAN,

Plaintiff,

Vv.

ARVIDA REALTY SALES, INC., a Florida corporation,

ARSLP, INc., an Illinois corporation, and ARVIDA

REALTY SALES, LTD., a Delaware limited partnership,

| Defendants.

|

| COMPLAINT

COMES NOW the Plaintiff, PATRICIA SEAMAN,

a natural person, and brings this action against Defend-

ants ARVIDA REALTY SALES, INC., a Florida cor-

poration, ARVIDA REALTY SALES, LTD., a Dela-

ware partnership, and ARSLP, INC., an Illinois corpora-

tion, and alleges:

—

1. Plaintiff is a natural person, a citizen of the United

States and State of Florida, and a resident of the Middle

District of Florida at all times material herein.

2. Defendant ARVIDA REALTY SALES, INC. is a

Florida corporation, at all times material herein doing

business within the Middle District of Florida, Tampa

Division.

3. Defendant ARSLP, INC. is an illinois corporation,

and upon information and belief a general partner of

ty AiO ay Fo ete al aR

Yaa eek Sarl en

2a

ARVIDA REALTY SALES, Ltd., a Delaware limited

partnership, both of whom were, at all times material

herein, doing business within the Middle District of Flor-

ida, within this division. -

4. Plaintiff was employed for many years by ARVIDA

REALTY SALES, INC., or connected or affiliated enti-

ties or enterprises, as a real estate salesman, within the

Middle District of Florida. At all times material herein

she was a Satisfactory employee and a substantial pro-

ducer of real estate sales commission income, both to

herself and to her employers.

5. Shortly before May 1, 1989, Plaintiff was notified

that she, and all of the other sales employees of Defend-

ants in the Sarasota area would be terminated as em-

ployees of Defendants. The stated reason for the termi-

nation was in order to eliminate the cost of providing

health insurance coverage to the sales employees (and

employer 401(k) and FICA contributions), and the ter-

minated employees would be offered contracts as “in-

dependent contractors” but without certain benefits pre-

viously available, but with all other terms and conditions

of employment substantially the same. Shortly thereafter

the employees, including your Plaintiff, were terminated.

COUNT I

VIOLATIONS OF ERISA

Plaintiff realleges the allegations of Paragraphs 1

through 5 as fully and completely as though restated

herein, and further asserts:

6. This is an action for damages and such other

relief as Plaintiff may be entitled pursuant to the provi-

sions of the Employee Retirement Income Security Act

of 1974, 29 U.S.C. 1001, et seq. (hereafter ERISA).

This Court has jurisdiction pursuant to 29 U.S.C,

1132(f), and 28 U.S.C. 1331 and 1337.

3a

7. At all times material herein, up to her termination,

your Plaintiff and the other sales employees were partici-

pants in employee health insurance programs sponsored

by defendant employers, Defendants heerin, which plan

of health insurance was an employee welfare benefit plan

within the meaning of ERISA.

8. Until her termination, Plaintiff and the other sales

employees were also participants in a 401(k) Plan, spon-

sored by the defendant employers, which 401(k) Plan

was an employee welfare benefit plan within the meaning

of ERISA.

9. Plaintiff and the other real estate sales employees

were terminated, in order to deprive them of benefits

under the aforesaid employee welfare benefit plans, and

such termination constituted discrimination and interfer-

ence with protected rights, in violation of the provisions

of ERISA.

10. As a result of her termination, Plaintiff has been

damaged in that she has lost income and earning poten-

tial, has been deprived of health benefits and contribu-

tions to and benefits resulting from her participation in

the 401(k) Plan, and such losses and damages are

continuing.

11. In order to protect her rights, and to obtain

redress, Plaintiff has been obligated to employ the services

of Frank Hamilton & Associates, P.A., and is obligated

to pay such lawfirm reasonable attorney fees.

COUNT II

RACKETEER INFLUENCED CORRUPT

ORGANIZATIONS ACT

Plaintiff realleges the allegations of Paragraphs 1

through 11 as fully and completely as restated herein,

and states:

4a

12. This is an action for damages for violation of

provisions of the Racketeer Influenced Corrupt Organiza-

tion Act, 18 U.S.C. 1961, et seq (hereafter RICO). This

Court has jurisdiction pursuant to the provisions of 18

U.S.C. 1964(c), 28 U.S.C. 1331 and 28 U.S.C. 1337.

13. Defendants are an enterprise, and engage in, or

the activities of which affect, interstate commerce within

the meaning of RICO.

14. Defendants, and other persons, corporations and

limited partnerships associated with them, whose identi-

tics are presently unknown, have engaged in a pattern

of racketeering activity, as defined in 18 U.S.C. 1961,

in order to acquire and maintain control of such enter-

prise, and have participated in the conduct of such en-

terprise and affairs through a pattern of racketeering

activity, and have conspired to do so.-

15. In order to carry out the pattern of racketeering

activity, which includes the aforesaid violations of ERISA,

Defendants have deprived employees of rights and benefits

under ERISA, in order to coerce or compel such em-

ployees to continue in the services of the Defendants,

without payment of or participation in such employee

welfare benefit plans, by changing their employment status

for the- purpose of avoiding the obligation to collect

and remit income tax withholding and collect and pay

social security contributions, and to pay the cost of con-

tinued participation in the aforesaid employee welfare

benefit plans, in order to reduce their expenses and in-

crease their profits.

16. In furtherance of the conspiracy, and in order

to compel your Plaintiff to waive or release her rights

under ERISA, and other actions or claims she may have,

Defendants have wilfully and without excuse failed and

refused to pay Plaintiff earned commissions, and have

withheld portions of commissions, and insisted upon a

release of all claims or rights as a condition to paying

Sa

your Plaintiff what she is entitled to. Such threats and

unlawful acts have been communicated or effected through

mail and telephone communication, and such acts con-

stitute mail and wire fraud, and are related predicate acts

within the meaning of 18 U.S.C. 1961, et seq.

17. Your Plaintiff has been the victim of such con-

spiracy in that she was terminated by Defendants, in

order to carry out the violation of ERISA and the attempt

to coerce her, and a successful attempt to coerce other

employees, into relinquishing rights under ERISA, and

reducing their earnings, so as to reduce expenses and

generate profits for Defendants. As a proximate conse-

quence thereof, she has lost income and earnings (in-

cluding all other benefits of such employment) and addi-

tionally been deprived of commissions to which she is

entitled.

18. Such pattern of racketeering activity, which in-

volved and injured persons other than your Plaintiff, is

a regular and continuing pattern of activity, within the

meaning of RICO.

COUNT III

PENDANT CLAIM FOR WAGES

AND COMMISSIONS

Plaintiff realleges the allegations of Paragraphs 1

through 18 as fully and completely as though restated

herein, and further alleges:

19. This is an action for damages for failure to pay

earned wages and commissions. This Court has pendant

jurisdiction, as it arises out of a common nucleus of re-

lated facts to the counts under which this Court has orig-

inal jurisdiction.

20. Plaintiff was entitled to and has earned. commis-

sions as a result of sales made. but not consummated.

prior to her termination, pursuant to the terms of her

iHi((}»—»—eee ii,

4 .

Oil

employment. Defendants approved the amount of her

commissions. in accordance with the contractual orrange-

ments.

21. Defendants have failed and refused to pay Plain-

tiff! the commissions which are due her, by making un-

lawful deductions, and withholding not less than 20% of

the commissions due her in each instance. Such unlawful

withholding is continuing, and upon information and _ be-

lief Defendant will continue to unlawfully withhold Plain-

tiff's commissions in furtherance of the conspiracies and

unlawful activities set forth above.

COUNT IV

FLORIDA CIVIL THEFT STATUTE

Plaintiff reallages the allegations of Paragraph. |

through 21 as fully and completely as though restated

herein, and further alleges:

22. This is an action for damages pursuant to F.S.

772.104 and F.S. 772.11. This Court has pendant juris-

diction, as the acts complained of arise out of a common

nucleus of related facts under which this Court has orig-

inal jurisdiction.

23. Defendants are an enterprise within the meaning

Of FS. 772.9020 3}.

2+. The actions of Defendants constitute a pattern of

criminal activity, within the meaning of F.S. 772.102(4)

and Defendants have engaged in at least one other inci-

dent of criminal activity. as defined in F.S. 772.102(1),

having similar intents, results, accomplices, victims and

methods.

25. The actions of Defendants constituted a violation

of F.S. 772.103 and F.S. 812.014(1). and as a conse-

— quence, Plaintiff has been damaged.

WHEREFORE, Plaintiff prays for damages against

Defendants, in the amount of actual damages for lost

Ta

wages or commissions, lost insurance benefits and 1c]

benefits to which she is entitled under the employee wel-

fare benefit plans, injunctive relief, treble damacx

RICO and the Florida Statutes. attorney fees and c

of this action, and such other relief as she mav b

titled in the premises.

Respectfully submitted,

s Patricia Seaman

PATRICIA SEAMAN

s Frank E. Hamilton

FRANK E. HAMILTON, fT]

Florida Bar No. 147112

FRANK HAMILTON & ASSOCIATES. P_A.

2620 West Kennedy Blvd.

Pampa, Florida 33609-3294

813 879-9842

\ttorneys for Plaintiff

DEMAND FOR JURY TRIAI

Jury trial is demanded as of right as to all matters

triable.

Ss Frank E. Hamilton. IT]

FRANK E. HAMILTON. TIT. Fsor