When Barry Peters was an in-house benefits lawyer for Bell Atlantic Corp.(now Verizon Communications Inc.), he took a legal drafting seminar taught by a professional writer. “There were a number of very helpful suggestions,” he recalls.
Unfortunately, one of the writing tips–avoid placing a phrase at the end of a long, compound sentence that modifies a thought near the beginning of the sentence–contributed to a $1.67-billion error in a retirement plan document Peters drafted for Bell Atlantic.
In an August ruling, the 7th Circuit forgave the error, which would have, for example, awarded former Bell Atlantic employee Cynthia Young, lead plaintiff in the class-action case for 15,000 plan participants, a retirement lump sum of nearly $640,000, compared to the intended sum of $240,000.
The 3-0 decision in Young v. Verizon that Judge John Daniel Tinder of Indianapolis wrote upheld a district court ruling that a federal court could erase Peters’ “scrivener’s error” under the authority of the Employee Retirement Income Security Act (ERISA).
Peters, in an effort to clarify the description of a new retirement plan payout formula, had condensed the text of an A-times-B calculation by shifting the language of B closer to A in a more than 100-word sentence. But he failed to delete the initial B phrase at the end of the sentence. The result was a document that said retirement benefits would be calculated under the formula A times B times B.
“What I failed to do in that fateful moment was take a step back and scan the whole sentence,” Peters says.
The 7th Circuit wasn’t kind to Peters or Verizon. The opinion called the mistake “a devastating drafting error in the multi-billion-dollar plan,” which “survived unnoticed in the fifth, sixth, and final drafts of the plan.” The court, noting that only Peters was assigned the in-house drafting work, called the mistake “profound negligence.”
“It is baffling that a major corporation would not invest greater resources to ensure accuracy in drafting such an important document,” Tinder wrote.
In siding with Verizon, the court noted that no plan participant mentioned the A-times-B-times-B formula, adopted in 1996, until Young filed her federal suit in 2005. The court cited ERISA’s Section 502(a)(3), which allows plan sponsors and participants “appropriate equity relief” and other appellate decisions that applied such equitable relief under ERISA to a scrivener’s error “that the plaintiffs could not have reasonably expected.”
Still, the 7th Circuit decision may not be open-and-shut. In a similar case involving an ERISA plan benefit formula, the 4th Circuit in 2009 ruled against the plan sponsor, Fleet Reserve Association, a not-for-profit advocacy group for current and former enlisted personnel in the U.S. Navy, Marines and Coast Guard. The decision in Cross v. Bragg was broader, in that the Internal Revenue Service had approved plan document alterations by Fleet, but the court nonetheless rejected them.
“When the terms of an ERISA plan are clear and unambiguous, a federal court is obliged to apply it as written,” the court ruled in a unanimous three-judge opinion written by Judge Robert King. But the opinion was delivered as “unpublished,” which could diminish its precedential value.
Matthew Heffner, partner at Susman Heffner & Hurst, who represented Young, says the printed word is especially important under ERISA, which Congress intended to be a largely self-sufficient law. Plan participants are entitled to rely on the plan document language, he says.
“The writing requirements, or the plan documents rule, is as old as ERISA, and it’s been used and enforced very harshly against everyone since ERISA has been around,” Heffner says.
Benefits lawyer Edward Veal, senior counsel at Steptoe & Johnson, disagrees. “To say ERISA requires the fiduciaries to follow the plan document and therefore you can’t correct a scrivener’s error begs the question, because it assumes that scrivener’s errors can’t be corrected,” he says.
Still, Veal says, “you shouldn’t read the 7th Circuit decision as meaning that an employer can retroactively correct its bad judgment about what should have been in the plan. The decision is dealing with real mistakes by the draftsman in implementing what the employer intended.”
Can mistakes like Peters’ be avoided? Peters, now retired, says part of the problem was that Verizon’s independent benefits consultant and outside counsel reviewed the documents from their specialized viewpoints, not the viewpoint of a text editor or proofreader.
“There is a certain amount of task sharing,” he says. He dismissed the notion that assigning the in-house drafting work to a single lawyer was wrong. With a document of more than 100 single-spaced pages and at least 1,000 important provisions, the employer needs a single mind to comprehend and express its intent.
“There is a need for consistency,” he says. “It would have been impractical for the corporation to assign two or three people to the drafting. It’s far more effective for one person to own the task.”
Veal says it might have been helpful to have the Verizon benefit formula text reviewed by an actuary who had never seen the document but could try to compute a benefit based on the text. “The fresh eye concept could work, but you reach a point where there is just too much labor involved,” he says.
Veal adds that common-sense editing is not encouraged by the verbose boilerplate language used in the IRS model language for retirement plan amendments.
“They are completely unreadable by a layman. In fact, practitioners frequently find them pretty unreadable,” he says. “But nobody really has to read them. The IRS has approved them. As far as retirement plan documents are concerned, the plain language movement has made no inroads at all.”