September 16, 2016

Verizon Communications Inc.'s decision to “de-risk” and remove 41,000 retirees from its pension plan once again survived judicial scrutiny, despite an intervening U.S. Supreme Court case affecting the retirees’ ability to demonstrate standing (Lee v. Verizon Commc’ns, Inc., 2016 BL 302784, 5th Cir., No. 14-10553, 9/15/16).

The U.S. Court of Appeals for the Fifth Circuit for the second time found that Verizon retiree Edward Pundt lacked standing under Article III of the U.S. Constitution to challenge the pension transfer, because his benefits were never threatened and he therefore suffered no injury. The Fifth Circuit said in its Sept. 15 ruling that the Supreme Court’s intervening decision in Spokeo, Inc. v. Robins did nothing to change its earlier standing analysis—in fact, the Fifth Circuit republished its 2015 decision in favor of Verizon, adding only a six-page analysis of Spokeo as preface.

Michelle C. Yau, counsel for Pundt and a partner with Cohen Milstein Sellers & Toll PLLC in Washington, said that the standing analysis employed by the Fifth Circuit fails to appreciate the importance of trust law.

“We believe that under Spokeo, participants in defined benefit pension plans have Article III standing to sue, just as they did under trust law, whenever there is a breach of fiduciary duty that causes losses to the plan,” Yau told Bloomberg BNA.

The full Bloomberg BNA article can be read here.