# Opposition Brief — Mattei v. Mattei

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1120

## Text

: Supreme Court, 0.5.
Lo) FILED

-

No. 97-1523 APR 15 1998

>

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1997

RONALD MATTEL Individually and as
Executor of the Estate of Louis J.

Mattei and

MARY LAURA MATTE! - - - - _ Petitioners,
versus

MARIA MATTEL - - - - - - Respondent.

On Petition for Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit

RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

*ROBERT W. GRIFFITH
JOHN A. BARTLETT
SUSAN CANTER REISNER
400 West Market Street, Suite 1800
Louisville, Kentucky 40202-3352
(502) 587-3400
Counsel for Respondent

*Counsel of Record
April 14, 1998

WESTERFIELD-SONTE CO., 619 W. KENTUCKY—P.O. BOX 3251, LOUISVILLE, KY.

ee een

i
QUESTION PRESENTED

May a surviving spouse who is the beneficiary (under
29 U.S.C. § 1055, § 205 of ERISA) of her husband’s death
benefits in an employee pension benefit plan maintain an
action against her husband’s estate pursuant to 29 U.S.C.
§ 1140 (§ 510 of ERISA) where the estate, an unsuccessful
rival claimant to the pension benefits, has discontinued a
weekly stipend payable to the surviving spouse under an
antenuptial agreement in retaliation for, or as an offset
against, the surviving spouse’s retention of the pension
benefits?

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bad
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i
LIST OF PARTIES

Parties before this Court

Ronald Mattei, Individually and as Executor of the Estate
of Louis J. Mattei, and Mary Laura Mattei, Petitioners
Maria Mattei, Respondent

Parties to the Proceeding Below

(United States Court of Appeals for the Sixth Circuit

No. 96-5443)

Maria Mattei, Appellant

Ronald Mattei, Individually and as Executor of the Estate
of Louis J. Mattei, and Mary Laura Mattei, Appellees

iii
TABLE OF CONTENTS

ee

QUESTION PRESENTED ....................................
en

STATUTES OR OTHER PROVISIONS
. ., » SO aa

A. The Estate’s Claims Against Equifax ........

B. The Estate’s Requests for Maria to
Surrender Her Rights to the Plan Benefits

REASONS FOR DENYING THE PETITION ...

B. The Sixth Circuit Merely Explained and

Question Presented Sufficient to Require
Resolution in this Court. ............................

C. The Sixth Circuit's Ruling Does Not
Expand ERISA Pre-Emption and Does Not
Federalize Trust and Estate Law Beyond
What 29 U.S.C. §1055 (ERISA §205)
Clearly Requires for Protection of Surviv-
ing Spouses Such as Maria Mattei...

Se oe STRESS

iv

TABLE OF AUTHORITIES
PAGE
Cases:
Boggs v. Boggs, __ U.S. ___, 117 S. Ct. 1754,

1760-61, 1767, 138 L.Ed.2d 45 (1997)........... 11-13, 15
Callahan v. Hutsell, Callahan & Buchino, P.S.C.
Revised Profit Sharing Plan, 813 F. Supp. 541

(W.D. Ky. 1992), vacated on other grounds,

14 F.3d GOO (Gtk Cir. TGS)... ccccccccescicccccossscseeses 14
Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 15,

107 S. Ct. 2211, 2219, 96 L.Ed.2d 1 (1987)........ 13
Haberern v. Kaupp Vascular Surgeons Ltd.

Defined Benefit Pension Plan, 24 F.2d 1491

(3d Cir. 1994), cert. denied, U.S.__,

115 S. Ct. 1099, 180 L.Ed.2d 1067 (1995).......... 10
Hamilton-Brown Shoe Co. v. Wolf Brothers & Co.,

240 U.S. 251, 258, 36 S. Ct. 269, 60 L. Ed. 629,

Be Cr icici edekndicbes ietakicinad daa ctercadanaknebiekes 8
Hurwitz v. Sher, 982 F.2d 778, 781 (2d Cir. 1992);

cert. denied, 508 U.S. 912, 113 S. Ct. 2345,

EG Fc Ree Be FE ceases naendinnbaticesains 14
Ingersoll-Rand v. McClendon, 498 U.S. 133, 143,
111 S. Ct. 478, 485, 112 L.Ed.2d 474 (1990)...... 8

Inter-Modal Rail Employees Ass'n. v. Atchison,
Topeka & Santa Fe Ry. Co., 80 F.3d 348,
351 (9th Cir. 1996, rev'd on Ogden grounds,
__ US. _, 1178.Ct. 1513, 187 L.Ed. 2d 763

TT re al adaie 3n.1
Lasche v. George W. Lasche Basic Profit Sharing
Plan, 111 F.2d 863 (11th Cir. 1997)................... 14

Massachusetts Mutual Life Ins. Co. v. Russell, 473
U.S. 134, 105 S. Ct. 3085, 87 L.Ed.2d 96 (1985) 13
McCray v. New York, 461 U.S. 961, 963, 103 S. Ct.

2438, 2439, 77 L.Ed.2d 13822 (1983)................... 11
McGath v. Auto-Body North Shore, Inc., 7 F.3d
re ETRE is TI eich Gochiictanccedssceschtidisssacanbalinnsne 10

McMillan v. Parrott, 913 F.2d 310 (6th Cir. 1990) 14
Metropolitan Life Insurance Co. v. Pressley, 82

RPM Ree TUIAU Gott BRMIIED vac covcsarntncsatnccbscrancasinss 14
Moore v. Philip Morris Companies, Inc., 8 F.3d
oe, ES Ce Gr, TD a cesncicscccescccnceassnveneoss 14

a
El

Vv
PAGE
Cases: (Continued)
Nellis v. Boeing Co., 15 Employee Benefits Cases
(een? 80s CO. Bee. MO 14
Pedro Enterprises, Inc. v. Perdue, 998 F.2d 491,
Oe CNS, PE iid 14
Rogers v. Jefferson-Pilot Life Insurance Co., 883
Fiano (0th Cir. 1960). 10
Virginia Military Institute v. United States, 508
U.S. 946, 113 S. Ct. 2431, 124 L. Ed.2d 651
A PORE eiopdatnaeinidilih cai Rigid aia a cae ne Ns 8
West v. Butler, 621 F.2d 240, 245-246 (6th Cir.
i BRO CORT HEN ap Mea Dianne os RETA ET: 8-10
Woolsey v. Marion Laboratories, Inc., 934 F.2d
RE I Cl SE scion ae 10
Zinn v. Donaldson Co., Inc., 799 F. Supp. 69
Sire ONS AWTIEE Scns ciipacdccetnienic a 14
Statutes:
Internal Revenue Code of 1986, as amended
(“Code”): 26 U.S.C::
WN cinta ea eat a 2
PIN Fen iissouniinisiasadaseuiheniacl cee 2,4
Employee Retirement Income Security Act of
1974, as amended (“ERISA”):
29 U.S.C.:
> Pe ee Oe 2
S RO CRIA, © DOG) ise cisencesccsecs cases, 1, 4-5, 13-14
§ 1132(a)(1)(B) (ERISA § 502(a)(1)(B)) oe... a Ad
§ 1132(a)(3) (ERISA § 502(a)(3) ooecceccccccecceccceeee 2
© 5 Ree rn 5
S 1240 CRIA 8 GID) oon cvicccococnseace ss. 1, 3, 8-12, 15
§ 1144(a) (ERISA $ 514(a) ..........c.ccceceosce---..-. 2
Regulations and Court Rules:
Treasury Regulations:
26 C.F.R. § 1.401(a)-20, Q&A 28 o... oe ecccccccceceee 2
Federal Rules of Civil Procedure:
ih, Wie Se By Ro 34
Rules of the United States Supreme Court:
SMMOU BA Mcikcs pisicceieecat an, ee 2

No. 97-1523

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

RONALD MATTE, Individually and as
Executor of the Estate of Louis J.

Mattei and

MARE DMIIMRMUAT TE, (<0 ee eee Petitioners,
versus

RAAEAAN BOE Ry 8 ie ew Respondent.

ON PETITION FOR Writ oF CERTIORARI TO THE
UNniTED States Court or APPEALS FOR THE SIXTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW
See Petition at p. 1.

JURISDICTION
See Petition at pp. 1-2.

STATUTES OR OTHER PROVISIONS INVOLVED

In addition to § 510 of the Employee Retirement In-
come Security Act of 1974, as amended (“ERISA”), 29 U.S.C.
§ 1140, cited by Petitioner, this case involves the scope
and proper application of the following statutes and regu-
lations, the pertinent text of which is set forth in Appendix
A hereto:

(1) 29U.S.C. § 1055 (ERISA § 205);

2

(2) § 401(a)\(11), Internal Revenue Code of 1986, as
amended (“Code”);

(3) § 417 of the Code;

(4) Treasury Regulations § 1.401(a)-20, Q&A 28 (26
C.F.R. § 1.401(a)-20, Q&A 28);

(5) 29 U.S.C. § 1132(a)(1)(B) and (a)(3) (§§ 502(a)(1)(B)
and (a)(3) of ERISA); and

(6) 29 U.S.C. § 1144(a) (§ 514(a) of ERISA).

STATEMENT OF THE CASE

Pursuant to Rule 15.2 of this Court, the Respondent,
Maria Mattei, must point out a number of misstatements
in, and omissions from, Petitioner’s Statement of the Case
(Petition at 2-5).

First, as to the law, this dispute is not just a “family
law estate dispute” (Petition at 3) — ERISA-protected pen-
sion benefits were, and are, at the heart of it. The contro-
versy centers upon, and grows out of, the response by the
Estate of Louis J. Mattei, Sr. (“Estate”) to the distribution
by Equifax, Inc. ("Equifax"), of the death benefits of Louis
J. Mattei, Sr. (“Mr. Mattei”) to his surviving spouse, Maria
Mattei, under the Equifax, Inc. Thrift Plan ("Thrift Plan").
The Thrift Plan is an employee pension benefit plan de-
scribed in ERISA § 3(2), 29 U.S.C. § 1002(2).

The Estate’s response to Maria’s receipt of the Thrift
Plan benefits was to stop paying Maria Mattei the $300
per week, indexed annually at 6% (the "Stipend"), Mr.
Mattei had promised that his Estate would pay to Maria
after his death for her life or until she remarried. This
promise was set forth in Mr. Mattei's December 7, 1990
pre-marriage contract (the "Antenuptial Agreement") with
Maria. Petitioners acknowledge this Antenuptial Agree-
ment promise and the Estate’s stoppage of payments (Peti-
tion at 3) but stop short of saying why the Estate stopped
paying Maria the Stipend. Maria alleges, and the courts

Ee neal

3

below assumed for purposes of Petitioners’ Fed.R.Civ.P.
12(b) (6) motion to dismiss, that the Estate stopped the
payments in retaliation for Maria’s receipt and retention
of the ERISA pension benefits.

Second, Petitioners set out “material facts” (Petition at
2-5) outside the limitations inherent in the district court’s
dismissal of the complaint under Fed.R.Civ.P. 12(b\6). The
Sixth Circuit’s reversal of the district court and reinstate-
ment of the complaint places the case before this Court in
the stance of an interlocutory appeal prior to any discov-
ery. The only "facts" are in the complaint, and the central
limitation of the Fed.R.Civ.P. 12(b\6) dismissal in the dis-
trict court is that the allegations of the complaint are re-
quired to be taken as true. Since certain of Petitioners’
stated “material facts” evade this precept, a copy of the
complaint is attached for the convenience of the Court as
Appendix B, and a copy of the Antenuptial Agreement,
which was not filed with the complaint, is attached for the
Court’s convenience as Appendix C.

Maria clearly alleges in the complaint that the Estate's
motive for stopping the Stipend was retaliation for her
retention of the Thrift Plan benefits. (Complaint, Appen-
dix B, 77 12, 14-15, 19, 21). Petitioners, stating that Maria
"had already received the entire death benefit" and "that
the weekly payments were ceased almost two years after
she received that benefit," suggest the two events were
distant in time and unconnected. (Petition at 3-4).

1 The situation presented by Petitioners’ “material facts” presen-
tation is captured neatly in another ERISA § 510 case, Inter-
Modal Rail Employees Ass’n. v. Atchison, Topeka & Santa Fe Ry.
Co., 80 F.3d 348, 351 (9th Cir. 1996), rev’d on other grounds, __
U.S.__, 117S. Ct. 1513, 187 L.Ed.2d 763 (1997) as follows:

Defendants countered that an incidental or consequential
loss of future, unaccrued pension benefits is not actionable,
but, as plaintiffs correctly note, questions of motivation and
intent are not to be resolved at the pleading stage. [Empha-
sis added.]

4

Petitioners suggest to this Court that the facts, and the
motivations and intentions of the parties, are, or ultimately
would be shown to be, other than as the district court was
required to assume from the complaint under Fed.R. Civ.P.
12(b)(6). An example is Petitioners’ wildly inaccurate as-
sertion that “[n]o provision was made for Maria to receive
any benefits under the [Thrift] Plan.” (Petition at 3). In
light of the surviving spouse protections under 29 U.S.C. §
1055 (ERISA § 205) that must be a part of every employee
pension benefit plan, no separate “provision” needed to be
made. Worse, Petitioners incorrectly state that “Maria
does not allege that the Executor [of the Estate] ever asked
her to surrender her rights to the Plan benefits” (Petition
at 4), although such an act need not be shown where Maria
generally has alleged the Estate’s retaliation for her accep-
tance of ERISA benefits.

Whether or not such an allegation appears in the com-
plaint, Maria will be able to demonstrate, through admis-
sible documentary evidence in the district court, that the
Estate did ask her “to surrender her rights to the Plan
benefits.” These documents will show the long and strenu-
ous efforts of the Estate, both before and during that pe-
riod of “almost two years,” to obtain the Thrift Plan death
benefits, first from Equifax and then from Maria.

A. The Estate’s Claims Against Equifax

Beginning in early 1992, the Estate submitted to
Equifax a written claim that the Estate was Mr. Mattei’s
proper beneficiary under the Thrift Plan. (Letter, Estate
by Counsel to Equifax, 2/17/92, Appendix D hereto). Equifax
denied this claim, citing, inter alia, the surviving spouse
benefit provisions of 29 U.S.C. §1055 (ERISA §205) and
§417 of the Code. (Letter, Equifax to Estate’s Counsel, 3/6/
92, Appendix E hereto). Rebuffed but undeterred, the Es-
tate again wrote Equifax in August 1992, after the Thrift
Plan’s 60-day period for an administrative appeal had ex-

5

pired, demanding an accounting of Mr. Mattei’s pension
benefits and threatening to sue Equifax if the Estate’s de-
mand was not met. (Letter, Estate by Counsel to Equifax,
8/5/92, Appendix F hereto). The Plan reiterated the rea-
sons for the claim denial under 29 U.S.C. §1055 and added
a discussion of the Estate’s failure to exhaust administra-
tive remedies under 29 U.S.C. §1133 (ERISA §503). (Let-
ter, Equifax to Estate’s Counsel, 8/19/92, Appendix G
hereto).

The Estate then turned to Kentucky’s courts, and in
January 1993 filed an action in Jefferson Circuit Court
against Equifax seeking certain accrued but unpaid salary
and vacation pay of Mr. Mattei, but also demanding an
accounting of Mr. Mattei’s benefits in the Equifax Thrift
Plan. (Civil Summons and Complaint, Estate of Louis J.
Mattei, Sr. v. Equifax, Inc., Commonwealth of Kentucky,
Jefferson Circuit Court, No. 93-CI-147, Appendix H hereto).
In April 1993, the Estate and Equifax settled that lawsuit
as to the salary and vacation pay, but the Estate’s release
of claims “specifically exclud[ed] any claim which could
have been asserted against Equifax under the Plan.” (Re-
lease and Settlement Agreement, Estate and Equifax, 4/
28/93, Appendix I hereto). The Estate has never renounced
or relinquished its claim of entitlement to Mr. Mattei’s
Thrift Plan benefits.

B. The Estate’s Requests for Maria to Surrender
Her Rights to the Plan Benefits

The Estate’s efforts to get Maria to turn the Thrift
Plan benefits over to the Estate can be shown to have been
just as long-standing and persistent. During 1992, there
were handwritten notes from Ronald Mattei, the Estate’s
executor, to Maria, inquiring whether Maria had “signed
the papers that Equifax needed to forward the Thrift Plan
to the Estate....". (Note, Ron Mattei to “Marie” Mattei,
rec'd 8/19/92, Appendix J hereto). In February 1993, Maria
obtained the Thrift Plan benefits of Mr. Mattei. The Es-

6

tate continued to demand the Thrift Plan assets, remon-
strating with Equifax on the matter as late as October
1993. Having received Equifax’s December 1993 confirma-
tion that Mr. Mattei’s Thrift Plan benefits had been dis-
tributed to Maria (Letter, Equifax Counsel to Estate’s
Counsel, 12/8/93, Appendix K hereto), in March 1994 the
Estate’s counsel wrote Maria Mattei’s counsel requesting
“that she immediately turn the assets she received from
the Thrift Plan over to the Estate.” (Letter, Estate’s Coun-
sel to Maria’s Counsel, 3/21/94, Appendix L hereto). The
stated basis for this demand was the Estate’s claim that
Mr. Mattei, Maria Mattei and the Mattei children met in
March 1991 so that Mr. Mattei “could explain . . . that
the Thrift Plan was to be the source of periodic payments
under the Antenuptial Contract.” (Jd.)

The recollection of this meeting by the Mattei children
(who are generally the beneficiaries of the Estate) is dis-
puted by Maria Mattei and in any event is irrelevant. The
Antenuptial Agreement did not provide for any periodic
payments to be made from the Thrift Plan. (Appendix C).
In fact, the Antenuptial Agreement unambiguously pro-
vides that the Estate shall pay the Stipend. (/Jd.) Nor did
Maria Mattei consent during her marriage to Mr. Mattei
to any arrangement whereby the Thrift Plan benefits would
be paid to the Estate or used in any way by the Estate. As
the Equifax benefits administrator pointed out in denying
the Estate’s claim to Mr. Mattei’s Thrift Plan benefits, the
Antenuptial Agreement “does not mention the Plan in any
way, directly or indirectly, and the Contract does not indi-
cate Maria Mattei’s consent to the designation of another
beneficiary.” (Appendix E).

The Estate waited a few months more for Maria to
comply with its demand to turn over the Thrift Plan ben-
efits to the Estate. In December 1994, however, “the Es-
tate ceased making weekly disbursements to Maria under
the antenuptial agreement.” (Petition at 6).

7

In 1995, Maria obtained her present legal counsel, who
on September 15, 1995 wrote to counsel for the Estate
(also changed) requesting that the weekly payments from
the Estate to Maria under the Antenuptial Agreement be
caught up and resumed. (Letter, Maria’s Counsel to Estate’s
Counsel, 9/15/95, Appendix M hereto). Counsel for the
Estate responded in a September 25, 1995 letter asserting
that by receiving the Thrift Plan benefits, “Mrs. Mattei
has been overpaid by hundreds of thousands of dollars,”
and describing the $300 per week payments Maria did
receive until December 1994 as “resulting in a large over-
payment against the promise of $300 per week total.” (Let-
ter, Estate's Counsel to Maria’s Counsel, 9/25/95, Appendix
N hereto). The March 1991 meeting and Mr. Mattei’s
alleged “intentions” for the Thrift Plan were revisited. The
absence of any reference to these intentions in the Anten-
uptial Agreement was explained by an assertion that the
“agreement was not well-prepared.” (Jd.) Any pursuit by
Maria of resumption of the weekly payments under the
Antenuptial Agreement would be met, the letter contin-
ued, “with resistance as far as such resistance can be car-
ried through the legal system.” (Id.)

On November 22, 1995, Maria Mattei filed the Com-
plaint in the United States District Court for the Western
District of Kentucky. (Appendix B). The United States
Court of Appeals for the Sixth Circuit having reversed the
District Court’s dismissal of the Complaint, the Estate’s
resistance now reaches the docket of this Court.

REASONS FOR DENYING THE PETITION

A. This Is an Interlocutory Matter Better Con-
sidered by the Court When, and If, a Decision on
the Merits Is Had Below.

The opinion of the United States Court of Appeals for
the Sixth Circuit simply reinstates Maria Mattei’s “ERISA
claims and pendent state claims” in the district court.
(Opinion, 126 F.3d at 810; Petition at 32a). No answer to

8

Maria’s complaint has yet been filed, no discovery had, no
facts of record adduced. While the above recitation sug-
gests what the proof of facts may be, there is nothing “ex-
traordinary” in this case that should induce the Court to
depart from its usual course that “the writ [of certiorari] is
not issued until final decree.” Hamilton-Brown Shoe Co. v.
Wolf Brothers & Co., 240 U.S. 251, 258, 36 S. Ct. 269, 60 L.
Ed. 629, 633 (1916). Any of the parties may raise “the
same issues in a later petition, after final judgment has
been rendered.” Virginia Military Institute v. United States,
508 U.S. 946, 113 S. Ct. 2431, 124 L. Ed.2d 651 (1993).

B. The Sixth Circuit Merely Explained and Did Not
Overrule West v. Butler, 621 F.2d 240 (6th Cir.
1980), and There Is No Conflict Among the
Circuits on the Question Presented Sufficient to
Require Resolution in this Court.

Petitioners’ assertion that West “is implicitly overruled
or extended beyond recognition in the instant case” (Peti-
tion at 5) is simply wrong. Petitioners very selectively cite
from the Sixth Circuit’s comprehensive discussion of West
and its progeny (126 F.3d at 798-804; Petition at 7a - 19a)
and ignore the vast substance of that discussion, which in
and of itself provides sufficient basis for the Court to deny
the Petition.

Petitioners ignore the full impact of the key phrase in
West itself — “The legislative history [of 29 U.S.C. § 1140]
reveals that the prohibitions were aimed primarily at pre-
venting unscrupulous employers from discharging or ha-
rassing their employees in order to keep them from
obtaining vested pension rights.” 621 F.2d at 245 (empha-
sis added); cited, 126 F.3d at 798. The Sixth Circuit’s
statement of the primary purpose of § 510 in West closely
resembles this Court’s statement in Ingersoll-Rand v.
McClendon, 498 U.S. 133, 143, 111 S. Ct. 478, 485, 112
L.Ed.2d 474 (1990) that a claim that an employer termi-
nated or otherwise discriminated against an employee “to

9

circumvent the provision of promised benefits ... is proto-
typical of the kind Congress intended to cover under §
510.” (Emphasis added.) As should be obvious, the “pri-
mary” purpose of ERISA § 510 is not the sole or exclusive
purpose. A “prototypical” § 510 claim is an original model
or form for such a claim, but the word itself assumes the
existence of variations from the “prototype.”

As the Sixth Circuit explains, the facts of West “are far
from ‘prototypical,’ ” making it “a bit odd that West is the
leading § 1140 case.” 126 F.3d at 798; Petition at 7a. The
West plaintiffs, trustees of a collectively-bargained pension
fund, alleged that secondary boycotters harmed the fund,
and thereby interfered with participants’ attainment of pen-
sion benefits under § 510, by causing the sponsoring coal
companies to curtail the coal production upon which con-
tributions to the plan were based. Sorting through this
Rube Goldberg-like theory of causation of harm to the par-
ticipants, the Sixth Circuit focused on the key flaw — plain-
tiffs’ attempt to use ERISA § 510 “to protect the financial
security of pension funds.” 621 F.2d at 246.

It is in this particular setting of fact and theory that
the Sixth Circuit uttered the oft-repeated phrase: “we con-
clude that discrimination, to violate § 510, must affect the
individual’s employment relationship in some substantial
way.” Id. at 245-246. That is, actions that discriminate by
changing or otherwise affecting the plan itself do not come
within the scope of § 510.

The Sixth Circuit carefully examines all the cases cited
by Petitioners (and some Petitioners did not cite) which re-
peat West’s “employment relationship” phrase, concluding:

[W]hen courts, quoting West, state that “discrimina-
tion, to violate § 510, must affect the individual’s em-
ployment relationship in some significant way,” they
generally do so in order to make the point that, by
contrast, § 510 offers no protection against an

employer's actions affecting the scope and status of an
ERISA plan itself.

10

126 F.3d at 800; Petition at lla.

In the cases upon which Petitioners rely to show a
conflict among federal circuits, that is precisely the way in
which those courts citing West use the Sixth Circuit's treat-
ment of § 510. Haberern v. Kaupp Vascular Surgeons Ltd.
Defined Benefit Pension Plan, 24 F.3d 1491 (3d Cir. 1994),
cert. denied, _ U.S. __, 115 S. Ct. 1099, 130 L.Ed.2d
1067 (1995) and McGath v. Auto-Body North Shore, Inc., 7
F.3d 665 (7th Cir. 1993) are cases in which the discrimina-
tion complained of consisted of the employer’s amendment
of a pension plan so as to prevent the plaintiffs participa-
tion (McGath) or to reduce compensation upon which fu-
ture benefit accruals were to be based (Haberern). In
Woolsey v. Marion Laboratories, Inc., 934 F.2d 1452 (10th
Cir. 1991), the alleged “discrimination” was a profit shar-
ing plan administrator’s denial of a participant’s request
to receive one-half of his benefits in employer stock. In
Rogers v. Jefferson-Pilot Life Insurance Co., 883 F.2d 324
(4th Cir. 1989), which does not cite West, the fact focus is a
group health policy administrator’s denial of health ben-
efits, and the court simply holds that such a plan benefit-
related action should have been grounded in 29 U.S.C. §
1132(a)(1)B) rather than 29 U.S.C. § 1140. Thus, the
“conflict among the Third, Fourth, Seventh, and Tenth Cir-
cuits” (and not the Sixth?) posited by Petitioners (Petition
at 6) simply collapses into a collection of divergent dicta.”

2 Not presuming to speak for the other courts, the Sixth Circuit
adds:

Possibly the courts intended this language [that the protec-
tions of ERISA § 510 are limited to employment situations
that affect ERISA rights] to be categorical, rather than sim-
ply, as we have suggested above, part of an argument that
actions taken with respect to the plan itself are not pro-
tected by § 510. If they did, we disagree. The conclusion
that § 1140 covers only conduct affecting “the employment
relationship” is insupportable. [Emphasis added.]

126 F.3d at 801; Petition at 13a-14a.

rr ——!

1]

What surely defeats Petitioners’ claim of a conflict is
that the cases in the other circuits are distinguishable on
their facts from this case as it now stands, nearly all of
them involving allegations that an employer’s actions ei-
ther in amending an ERISA plan or in denying certain
plan benefits violated § 510. The facts, as noted, have yet
to be developed in this case. Petitioners have not cited a
decision of another circuit with even remotely analogous
facts. Plainly, this case is more logically to be regarded as
among the first of its kind, making equally clear that the
issues arising from its facts should undergo “further study”
in lower courts “before it is addressed by this Court.”
McCray v. New York, 461 U.S. 961, 963, 103 S. Ct. 2438,
2439, 77 L.Ed.2d 1322 (1983).

C. The Sixth Circuit’s Ruling Does Not Expand
ERISA Pre-Emption and Does Not Federalize
Trust and Estate Law Beyond What 29 U.S.C.
§1055 (ERISA § 205) Clearly Requires for
Protection of Surviving Spouses Such as Maria
Mattei.

The Sixth Circuit correctly assesses that this decision
does not “exponentially expand federal jurisdiction over
state law claims” (Petition at 10):

The dissent complains that our interpretation of § 1140
federalizes family law. I do not believe that we do
any more than ERISA has already accomplished by
means of its broad preemption provision, 29 U.S.C. §
1144(a) . . .. [VJery recently, the Supreme Court
held, in Boggs v. Boggs, __ US. Bere ty ee ey, FT
138 L.Ed.2d 45 (1997), that community property laws
— a keystone of family law in the states having such
regimes — do not withstand ERISA preemption. The
Court went so far as to say that “[t]his case involves a
community property claim, but our ruling will affect
as well the right to make claims or assert interests
based on the law of any State, whether or not it recog-
nizes community property.” Id. at nut at Oe

neni

12

1760. By comparison, our holding adds little to the
pre-existing breadth of ERISA preemption.

126 F.3d at 809, Petition at 30a-31a.

The Sixth Circuit holds that wherever one may finally
locate “the intersection of ERISA pension law and state
family and probate law” (Petition at 9), “what the estate is
not free to do is to invoke self-help by interfering or retali-
ating against Maria for a valid exercise of her ERISA
rights.” 126 F.3d at 809; Petition at 3la. In this regard,
any undue “expansion” of federal jurisdiction is logically
checked by the necessity for Maria to show that the Estate’s
withholding of payments “has a logical linkage to her sta-
tus as an ERISA beneficiary” in order to survive a sum-
mary judgment motion by defendants. 126 F.3d at 809;
Petition at 30a.

Petitioners’ reliance on Boggs (Petition at 8-10) is as-
tonishing. Petitioners’ assertion that ERISA § 510 pro-
tection must stop at the edge of a state-law antenuptial
agreement, no matter how the agreement affects pension
rights, is tantamount to a request for this Court to over-
rule Boggs.

Petitioners’ argument is clearly antithetical to Boggs.
Petitioners’ argument would allow the Estate to usurp the
rights of the ERISA beneficiary, Maria Mattei, in the Thrift
Plan benefits by cutting off the Stipend under the Anten-
uptial Agreement to enforce the Estate’s unilateral deter-
mination, unsupported by any ERISA or state-law
document, that the Thrift Plan benefits were “intended” to
be used to fund the Stipend. Thus, Petitioners’ argument,
“if allowed to succeed, would depart from [the ERISA]
framework [of participant and beneficiary], upsetting the
delicate balance central to ERISA.” __-_~;U.S. at _, 1117S.
Ct. at 1767, cited in Petition at 9.

Petitioners emphasize that Maria “already had received
the entire death benefit” (Petition at 3) under the Thrift

13

Plan, in essence repeating the argument of the testator’s
children in Boggs that “Sandra’s community property obli-
gations, after she receives the survivor annuity payments,
‘fai[l] to implicate the regulatory concerns of ERISA.’ ” ead
U.S. at__, 117 S. Ct. at 1761 (citation omitted). To that,
this Court said: “We disagree.” Jd. With equal force
should the same be said to Petitioners’ outright invention
of an Antenuptial Agreement “obligation” for Maria to fund
the Stipend with her Thrift Plan benefits (see Appendix
C), and to Petitioners’ argument that the Estate’s self-
help, because it occurred after Maria received the Thrift
Plan benefits, “fails to implicate the regulatory concerns of
ERISA.” Fort Halifax Packing Co. v. Coyne, 482 U.S. I
15, 107 S. Ct. 2211, 2219, 96 L.Ed.2d 1 (1987).

Finally, Petitioners’ argument that Boggs, combined
with Mattei, would allow a claimant to recover double dam-
ages (Petition at 9-10) merits a summary rejection. Peti-
tioners fail to consider this Court’s decision in Massachusetts
Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 105 S. Ct.
3085, 87 L.Ed.2d 96 ( 1985) that in claims to enforce ERISA
benefit rights, extracontractual compensatory or punitive
damages are not recoverable.

Beyond obliteration of Boggs, Petitioners’ attempt to
draw an inviolable line around state family law would, if
successful, overrule the considerable body of unanimous
federal jurisprudence regarding the “intersection” of the
ERISA § 205 surviving spouse protections (29 U.S.C. § 1055)
and state-law antenuptial agreements. Petitioners assert
that state law should control the question whether the
Antenuptial Agreement would permit the Estate to use
Maria Mattei’s Thrift Plan death benefits to fund the Sti-
pend to Maria. In essence, this is the same as saying state
law should determine whether under the Antenuptial
Agreement Maria waived, in advance of marriage, her spou-
sal rights as a beneficiary of the Thrift Plan.

14

Such an assertion directly contradicts the entire body
of federal law on the question. A waiver of spouse survivor
benefits in an employee pension benefit plan must meet
the requirements of § 205 of ERISA, 29 U.S.C. § 1055, and
cannot be accomplished prior to marriage in a state law
antenuptial agreement. See, e.g., Pedro Enterprises, Inc. v.
Perdue, 998 F.2d 491, 494 (7th Cir. 1993); Hurwitz v. Sher,
982 F.2d 778, 781 (2d Cir. 1992); cert. denied, 508 U.S.
912, 113 S. Ct. 2345, 124 L.Ed2d 255 (1993); Callahan v.
Hutsell, Callahan & Buchino, P.S.C. Revised Profit Shar-
ing Plan, 813 F. Supp. 541 (W.D. Ky. 1992), vacated on
other grounds, 14 F.3d 600 (6th Cir. 1993); Nellis v. Boeing
Co., 15 Employee Benefits Cases (EBC) 1651 (D. Kan. 1992);
Zinn v. Donaldson Co., Inc., 799 F. Supp. 69 (D. Minn.
1992).

Indeed, the ERISA § 205 surviving spouse benefit waiver
standards, which are exacting, see, e.g., Lasche v. George
W. Lasche Basic Profit Sharing Plan, 111 F.2d 863 (11th
Cir. 1997), would apply equally to any waiver of Maria
Mattei’s Thrift Plan spouse survivor benefits purporied to
have been made during marriage. McMillan v. Parrott,
913 F.2d 310 (6th Cir. 1990). Even beyond state-law con-
tracts relative to marriage, state statutes or regulations
affecting rights of surviving spouses in employee benefit
plans must give way to ERISA’s requirements. See, e.g.,
Metropolitan Life Insurance Co. v. Pressley, 82 F.3d 126
(6th Cir. 1996) (ERISA preempts Michigan statute that
would require judgments of divorce or separate mainte-
nance to determine rights of wife in life insurance pro-
ceeds of husband’s policies or contracts in which wife was
designated beneficiary); Moore v. Philip Morris Companies,
Inc., 8 F.3d 335, 341-42 (6th Cir. 1993) (Kentucky adultery
forfeiture statute preempted by ERISA as affecting spouse
survivor rights).

In sum, the federal courts have already plainly and
overwhelmingly rejected Petitioners’ view that state law,

15

and a state court action, provides Maria Mattei’s sole rem-
edy for the Estate’s self-help against her pension-related
Antenuptial Agreement rights. Preemption of these rem-
edies by ERISA is the necessary conclusion of the same
conflict analysis this Court performed in Boggs as to a
Louisiana body of law “implement{[ing] policies and values
lying within the traditional domain of the States”:

We can begin, and in this case end, the analysis [of
the question of ERISA preemption] by simply asking
if state law conflicts with the provisions of ERISA or
operates to frustrate its objects. We hold that there is
a conflict, which suffices to resolve the case.

—__US. at__, 117 S. Ct. at 1760-61.

The preemptive effect of ERISA’s surviving spouse pro-
tections with regard to antenuptial agreements such as
Maria’s is thus well within conventional ERISA jurispru-
dence. No new ground is being plowed. If anything is out
of the ordinary, it is the unusual form of self-help prac-
ticed by the Estate. The Sixth Circuit has carefully and
correctly determined that the Estate’s alleged unilateral
action to retaliate against Maria for receiving her Thrift
Plan surviving spouse benefits, and to interfere with her
enjoyment of these ERISA benefits, is actionable under §
510 of ERISA.

16

CONCLUSION

For the foregoing reasons, the Petition of the Estate for
a writ of certiorari should be denied.

Respectfully submitted,

*ROBERT W. GRIFFITH
JOHN A. BARTLETT
SUSAN CANTER REISNER

STITES & HARBISON
400 West Market Street
Suite 1800
Louisville, Kentucky 40202-3352
(502) 587-3400
Counsel for Respondent

*Counsel of Record
April 14, 1998

SELLER NOTRE LTE

17

CERTIFICATE OF SERVICE

I, Robert W. Griffith, a member of the bar of this Court,
hereby certify that on this 14th day of April, 1998, three
(3) copies of the Respondent’s Brief in Opposition to Peti-
tion for Writ of Certiorari were served by mail, first-class
postage prepaid, upon:

Walter L. Sales, Esq.
Thomas M. Williams, Esq.
Ogden, Newell & Welch
1700 Citizens Plaza
Louisville, Kentucky 40202

I further certify that all parties required to be served

have been served.
~
Win (QQazo

“ROBERT W. GRIFFITH
JOHN A. BARTLETT
SUSAN CANTER REISNER
STITES & HARBISON
400 West Market Street
Suite 1800
Louisville, Kentucky 40202-3352
(502) 587-3400
Counsel for Respondent

*Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2397%3A3. Public record. Not legal advice.