Musmeci v. Schwegmann Giant Super Markets

[Theresa Lynn]

I was wondering what any of you thought about the Musmeci v. Schwegmann Giant Super Markets case (Musmeci v. Schwegmann Giant Super Markets, Inc., 2003 WL 21221728 (5h Cir. LA), 2003 U.S. App. LEXIS 11602 (5th Cir. 2003)), which held that a grocer's distribution of grocery vouchers to its retirees constituted an ERISA pension plan. The case focuses on the termination of the plan and the lack of funding, but it seems to open a pandora's box of issues--Form 5500 reporting, SPDs, SARs, plan documentation, etc. But because the plan was not funded, it also raises issues about how to and what to report, etc. Since payable to retirees only, it looks a lot like a retiree health plan in that eligibility is determined based on past employment status, yet it is considered a pension plan. How do you characterize it--a defined contribution plan, with accounts? but an employee would not vest unless he retires...so is it a nonqualified plan? Would it instead be a defined benefit plan? But how do you determine accruals? Vesting would not satisfy the Code and ERISA...

In short, what are your thoughts...i.e., your take on this case?

Thanks!