1985. The disbursement followed upon, but did not violate, this Court's Order of June 14, 1985, enjoining distribution of a portion of the funds. All defendants have moved to dismiss on the grounds that the claims advanced against them are premature. In addition, Mercantile argues that plaintiffs fail to state a claim as to it, because Mercantile is not a fiduciary under the controlling statute, the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq.
Identical motions were filed by the same defendants in a newly-filed proceeding, Richardson, et al. v. U.S. News & World Report, et al., 623 F. Supp. 350 (D. D.C. 1985), which the Court has granted on this date. The claims in Richardson against the defendants were dismissed
both because the claims were purely hypothetical, and thus did not present a justiciable case or controversy, and because the claims did not lie against these defendants, none of whom stood in a fiduciary relation to the plaintiffs at the relevant time.
The Foltz plaintiffs, however, acknowledging the importance of proving some duty owed to them that would render it wrongful for these defendants to have made any distribution of funds to the possible prejudice of rights that plaintiffs may have acquired in those funds, have argued a theory not elaborated by the Richardson plaintiffs. Specifically, the Foltz plaintiffs contend that they are current, not former, participants in the U.S. News Profit-Sharing Plan and, hence, that these defendants were under a fiduciary obligation to recognize and to protect plaintiffs' interests. While intriguing at first glance, this theory is completely without merit.
Plaintiffs rely upon Saladino v. I.L.G.W.U. Nat. Retirement Fund, 754 F.2d 473 (2d Cir. 1985) for the proposition that "former employees with a colorable claim to vested benefits" fall within the category of persons who "may become eligible" to receive benefits under ERISA.
Id. at 476. However, the Saladino court went on to hold that the plaintiff was not a plan participant within the meaning of ERISA because he did not fall within the definition of a participant contained in the relevant plan document. Id. at 477. To the extent that the terms of the plan in question control the issue of whether one "may become eligible" to receive benefits, the Foltz plaintiffs clearly are not current participants in the U.S. News Plan.
The U.S. News Plan Document provides that a "member" in the Plan remains a member "so long as he or she is actively at work and so long as a continuous common-law employer-employee relationship is maintained between the Employer and such person. . . ." Plan Doc. at para. 1.9(a) (submitted as Plaintiffs' Exhibit 6 in Support of Motion for Preliminary Injunction). The Plan Document further provides that
notwithstanding any other provisions of this Plan, a retired Member shall not again become a Member or become entitled to share in a further allocation of the Employer's contribution hereunder regardless of the number of hours in any period that the retired Member may work for the Employer as a part-time consultant or otherwise.