Does anyone know of a case where the deliberate act of the employer to

[Dave Baker]

[Posted by Dave Baker for Sheldon Mike Young]

My client was deliberately fired for policing her ERISA rights. Suit has been brought under ERISA Section 510. The complaint requests damages under ERISA Section 502©(3) as well as 510. At the deposition of plaintiff, the plaintiff admitted she had never asked for the Summary Plan Description; had not known what it was.

Under 502©(3), a request must be made for damages to follow. She couldn't request an SPD if she did not know what one was.

We have evidence in this case that the defendant deliberately failed to issue an SPD. One was not even issued until after the litigation was threatened.

Does anyone know of a case where the deliberate act of the employer to issue an SPD excuses the plan participant from requesting the SPD and 502©(3) damages are awarded? Does anyone know of a case where the plan participant knows the employer is reviewing papers to go to participants but isn't reviewing them and the papers turn out to be the SPD? Were 502©(3) damages awarded in such a case?

Is the request requirement in Section 502©(3) "softened" in determining what is a "request" where there are multiple violations of ERISA? For example, where the employer both fires a Participant for policing her ERISA rights and has deliberately failed to issue an SPD, is P.'s having told the employer that his consultant has asked him to finish reviewuig the SPD so it can be duplicated and distributed enough to be considered a "request" for purposes of Section 502©(3)? Please let me know of any case you may know of that considers these matters.

I would appreciate any information.

Sheldon Mike Young

yomike@asacomp.com

614-898-1096

fax 614-898-7190