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Henry Feinberg, et al v. Rm Acquisition

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ARGUED OCTOBER 26,2010

Before POSNER, FLAUM, and SYKES, Circuit Judges.

This appeal from the dismissal of a suit under ERISA requires us to consider the rights of participants in a retirement plan when the plan’s sponsor sells all the assets out of which plan benefits might be paid and distributes the proceeds of the sale, thereby becoming a shell, but the buyer does not assume any of the seller’s liabilities under the plan. Such cases are rare because retirement plans ordinarily must be funded, and a funded plan either would be transferred to the new company or would remain with the old company (with the plan’s funds intact), or would be terminated and the funds distributed to the participants. But the plan in this case-the Rand McNally & Company Supplemental Pension Plan-is what is called a “top hat” plan. Created in order to provide senior executives with deferred compensation (benefits on top of those provided by the company’s basic pension plan), In re New Valley Corp., 89 F.3d 143, 148-49 (3d Cir. 1996); Sally Lerner Galati, Note, “The ERISA Hokey-Pokey: You Put Your Top Hat In, You Put Your Top Hat Out,” 5 Nev. L.J. 587, 589-93 (2005), top hat plans are unfunded. See 29 U.S.C. §§ 1051(2), 1081(a)(3), 1101(a)(1). The plan designated the company as the plan administrator. The plaintiffs are former senior executives of Rand McNally & Company who were participants in the plan. For simplicity we’ll pretend that the first listed plaintiff, Feinberg, is the only one.

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