July 6, 2026
Two federal appeals courts have rejected employers’ standard defense in married retirees’ lawsuits — that ERISA doesn’t require reasonableness in calculating pension formulas —prompting some lawyers to predict more settlements, higher costs and greater administrative headaches.
Although there has been no clear pattern nationwide on how federal district courts assess employers’ using mortality tables and interest rates to calculate pensions, the 6th U.S. Circuit Court of Appeals — covering Kentucky, Tennessee, Ohio and Michigan and the 11th U.S. Circuit Court of Appeals — covering Florida, Georgia and Alabama — have now set standards for review.
The former ruled against FedEx and Kellogg; the latter ruled against Southern Company Services in claims that married retirees’ pensions were harmed because employers used out-of-date mortality tables to calculate payments.
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An opposing view comes from Michelle C. Yau, a plaintiffs’ attorney who is a partner and head of the employee benefits/ERISA practice at Cohen Milstein Sellers & Toll.
“They were very thoughtful decisions,” said Yau, referring to the 6th Circuit and 11th Circuit rulings. “Both considered the landscape at the time. Both relied on actuarial conditions at the time.”
Yau is one of the lawyers representing plaintiffs in Drummond et al. vs. Southern Company Services Inc. et al. She declined to comment on the specifics of the case, adding that her remarks reflect her general view of the mortality table debate.
“The sponsors in these two (appeals court) circuits are certainly aware of the now-binding law,” she said. “That doesn’t give them much latitude to choose actuarial assumptions.”
Read Mortality Table ERISA Lawsuits Face New Legal Landscape — What It Means for Sponsors.