This lawsuit, filed in the Northern District of Illinois, Eastern Division, alleges that the non-profit healthcare system Wheaton Franciscan Services, Inc. (“Wheaton Franciscan”) and Ascension Health, the company that acquired Wheaton Franciscan in March 2016, improperly claim that their defined benefit pension plan qualifies as a “Church Plan” under the Employee Retirement Income Security Act (“ERISA”). In operating their plan as a “Church Plan,” Wheaton Franciscan and Ascension Health do not comply with many protections afforded to pension beneficiaries under ERISA.  The lawsuit seeks to compel the Wheaton Franciscan Retirement Plan to fully comply with ERISA.

Summary of the Claims

The Complaint alleges that Ascension and Wheaton Franciscan are violating numerous provisions of ERISA, while wrongfully claiming that their retirement plan is exempt from ERISA’s protections because it is a “Church Plan.” The Complaint alleges that the plan is not a “Church Plan” because neither Wheaton Franciscan nor Ascension Health is a church or a convention or association of churches, and because the retirement plan was not established by a church or a convention or association of churches.  The Complaint further alleges that Ascension and Wheaton Franciscan breached their duties under ERISA by, among other things:

  • underfunding the plan by at least $134.5 million;
  • impermissibly requiring participants to complete five years of service before participants became fully vested in their accrued benefits;
  • failing to furnish Plaintiffs or any member of the class with a Pension Benefit Statement, Summary Annual Reports, Notification of Failure to Meet Minimum Funding, or Funding Notices;
  • causing the Plan to award benefits to employees in later years of service at a rate disproportionately higher than the rate for employees in earlier years of service, in violation of ERISA’s anti-backloading requirements; and 
  • failing to notify participants of a significant reduction in the rates of future benefit accruals from 2009 onward.

In addition, the lawsuit alleges that the church plan exemption, as claimed by Wheaton Franciscan and/or Ascension Health, is a violation of the Establishment Clause of the First Amendment of the Constitution because it harms Wheaton Franciscan workers, puts Wheaton Franciscan’s competitors at an economic disadvantage, relieves Wheaton Franciscan and/or Ascension Health of no genuine religious burden, and creates more government entanglement with alleged religious beliefs than compliance with ERISA creates.

Class Action

This lawsuit is brought as a class action on behalf of all participants and beneficiaries of the Wheaton Franciscan Retirement Plan. Excluded from the Class are any high-level executives at Wheaton Franciscan or Ascension Health or any employees who have responsibility or involvement in the administration of the Plan, or who are subsequently determined to be fiduciaries of the Wheaton Franciscan Plan, including the Individual Defendants.

Plaintiffs have not yet filed their motion for class certification.

Status of the Litigation

Complaint and Motion to Transfer

Plaintiffs Bruce Bowen and Cheryl Mueller filed the initiating Complaint with the District Court on June 28, 2016.  On July 8, 2016, the case (“Bowen”) was designated as “related” to another class action lawsuit (“Curtis”), which was also filed against Wheaton Franciscan, although not against Ascension Health. The Bowen case was transferred to Judge Gary Feinerman, so that he could preside over both related cases. On July 20, 2016, Ascension Health and Wheaton Franciscan filed a motion asking Judge Feinerman to transfer the case out of Chicago and into St. Louis, Missouri. On October 31, 2016, Judge Feinerman denied the defendants’ motion, ruling that the case would stay in Illinois.

Leadership Dispute

On July 1, 2016, the law firm representing the Curtis Plaintiff filed a motion asking the Court to appoint them Interim Lead Class Counsel. Cohen Milstein and co-counsel Keller Rohrback, on behalf of the Bowen Plaintiffs, filed an opposition brief, arguing that they were the law firm best equipped to helm the two related cases as Interim Co-Lead Class Counsel. On January 4, 2017, Judge Feinerman entered an order denying the Curtis law firm’s motion, consolidating the two cases, and appointing Cohen Milstein and Keller Rohrback Interim Co-Lead Class Counsel. As a result, Cohen Milstein and Keller Rohrback became the representatives of all Plaintiffs against all Defendants.


On September 1, 2017, after months of negotiation facilitated by a neutral, third-party mediator, Plaintiffs and Defendants signed a Settlement Agreement to resolve the claims of Plaintiffs in this case against all Defendants in exchange for certain ERISA-like protections for participants, as well as a guarantee that Defendants will pay the first $29,500,000 of benefits that are distributable from the Plan to Settlement Class Members. Plaintiffs filed an Unopposed Motion for Preliminary Approval of Settlement Agreement on the same day, September 1, 2017. Judge Feinerman will discuss this motion with the parties on September 13, 2017.

Whom to Contact for More Information

If you are or were a participant or beneficiary of the Wheaton Franciscan Retirement Plan, or if you have information which might assist us in the prosecution of these allegations, please contact one of the following persons:

Maria Dewees, Paralegal,

Karen L. Handorf, Esq.,

Julia A. Horwitz, Esq.,

Julie G. Reiser, Esq.,

Cohen Milstein Sellers & Toll PLLC
1100 New York Avenue, N.W., Fifth Floor
Washington, D.C. 20005
Telephone:  888-240-0775 (Toll Free) or 202-408-4600