ERISA plan administrators facing broad requests for production under ERISA section 104(b)(4) may limit their production to formal legal documents governing the plan, based on new guidance from a panel of the Fifth Circuit in Murphy v. Verizon Communications., Inc., No. 13-11117 (5th Cir. October 14, 2014).
Section 104(b)(4) requires plan administrators to provide certain plan documents to any participant or beneficiary who submits a written request. Specifically, the statute requires ERISA administrators to “furnish a copy of the latest updated summary … plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated.” 29 U.S.C. § 1024(b)(4) (Emphasis added.) An administrator who fails to comply with the production requirement of section 104(b)(4) can be exposed to penalties of up to $110 per day. 29 U.S.C. § 1132(c)(1)(B); 29 C.F.R. § 2575.502c-1. However, until the Fifth Circuit’s recent decision, it was unclear what “other instruments” must be produced under the “catch-all clause” of section 104(b)(4).
The appellants in Murphy had sought production of investment guidelines used by administrators of the appellee pension plans, arguing that they were “other instruments” under which the plans were operated. The Fifth Circuit disagreed, construing the catch-all provision narrowly so as to apply only to formal legal documents that govern a plan. The court explained that its construction was consistent with the plain meaning of the term “instrument” as defined by Black’s Law Dictionary: “a written legal document that defines rights, duties, entitlements, or liabilities, such as a statute, contract, will, promissory note, or share certificate.” Additionally, the court noted that the term “other instruments” in section 104(b)(4) followed a list consisting of formal documents that either (1) provide plan participants and beneficiaries with notice of their rights and obligations or (2) are the foundational documents under which a plan is created and governed. Under the statutory canon of ejusdem generis, the general term “other instruments” must cover subjects comparable to the specific items it followed. Because the investment guidelines sought in Murphy were not alleged to be binding on the plans at issue, the Fifth Circuit held that they did not need to be produced under section 104(b)(4).
The Fifth Circuit’s conclusion in Murphy is consistent with the majority rule followed by the First, Second, Fourth, Seventh, and Eight Circuits, all of which have defined “instrument” as a formal or legal document that establishes or governs a plan. See Doe v. Travelers Ins. Co., 167 F.3d 53 (1st Cir. 1999); Bd. of Trs. of the CWA/ITU Negotiated Pension Plan v. Weinstein, 107 F.3d 139 (2d Cir. 1997); Faircloth v. Lundy Packing Co., 91 F.3d 648 (4th Cir. 1996); Ames v. Am. Nat’l Can Co., 170 F.3d 751 (7th Cir. 1999); Brown v. Am. Life Holdings, Inc., 190 F.3d 856 (8th Cir. 1999).
The minority view adopted by the Sixth Circuit is that the catch-all provision should be construed broadly to favor disclosure of any documents that would help participants understand their rights under a plan. See Bartling v. Fruehauf Corp., 29 F.3d 1062 (6th Cir. 1994). The Ninth Circuit employs a construction midway between the majority and minority views, concluding that the instruments referenced in the catch-all provision “are those documents that provide individual participants with information about the plan and benefits.” See Hughes Salaried Retirees Action Committee v. Admin. of the Hughes Non-Bargaining Retirement Plan, 72 F.3d 686, 689 (9th Cir. 1995) (en banc). The Third, Tenth, Eleventh, and DC Circuits do not appear to have addressed the definition of “instrument” in ERISA section 104(b)(4).