IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LOUISE D. THOMAS, : CIVIL ACTION
DENNIS D. DARDEN, and : NO. 00-2948
LINDA JEAN ALLEN, :
On behalf of themselves :
and all others similarly :
situated :
:
Plaintiffs, : CLASS ACTION
: COMPLAINT
v. :
:
SMITHKLINE BEECHAM :
CORPORATION :
:
and :
:
SMITHKLINE BEECHAM CORPORATION,:
as Administrator of All :
Employee Benefit Plans :
:
and :
:
SmithKline Beecham Health and :
Welfare Benefits Plan for U.S. :
Employees (which includes these:
Programs: Dental, HealthCare :
Reimbursement Account, :
Dependent Care Reimbursement :
Account,Medical, Long-Term :
Disability, Employee Life :
Insurance, Spouse/Child Life :
Insurance), Educational :
Assistance Plan,Flexible :
Benefit Plan, Business Travel :
Accident, Accidental Death and :
Dismemberment, Separation Pay :
Plan, SmithKline Beecham :
Retirement Savings Plan, and :
the SmithKline Beecham Cash :
Balance Pension Plan, :
:
and :
:
"JOHN DOE" Plans and :
Administrators, :
:
Defendants :
AMENDED COMPLAINT
Introduction
1. By this lawsuit plaintiffs and the class they represent
challenge the words and actions of defendants who created a
shadow work force of thousands of employees who were wrongfully
denied benefits mandated to them by federal law.
2. Plaintiffs are representatives of an easily identifiable
class of Smith Kline employees who, though denominated by
defendants variously and arbitrarily as "leased", "independent
contractor", "temporary", "part-time", "regular", "contingent",
"temporarily assigns", are de jure and de facto employees of
defendant Smith Kline entitled to participate in each and every
employee benefit plan administered by defendants.
3. Plaintiffs and the class seek declaratory, equitable, and
legal relief establishing their rights to receive benefits in
various employee benefit plans administered by the defendants.
Jurisdiction and Venue
4. This court has jurisdiction over the subject matter of
this civil action pursuant to 29 U.S.C. 1132(a)(1)(A) and (B)
and 1132(e)(1) of ERISA, 28 U.S.C. 1331 and 2201.
5. Venue is proper in this court under 29 U.S.C.
1132(e)(2), in that the SKB employee benefit plans are
administered in this district, and alleged breaches took place in
this district.
The Parties
6. Plaintiff Louise D. Thomas ("Thomas") is an individual
residing in Phoenixville, Pennsylvania. While a common law
employee of SKB, Thomas has been denied benefits from various SKB
employee benefit plans and has been denied various items of
employee compensation.
7. Plaintiff Dennis D. Darden ("Darden") is an individual
residing in Norristown, Pennsylvania. While a common law
employee of SKB, Darden has been denied benefits from various SKB
employee benefit plans and has been denied various items of
employee compensation.
8. Plaintiff Linda Jean Allen ("Allen") is an individual
residing in Philadelphia, Pennsylvania. While a common law
employee of defendant SKB, Allen has been denied benefits from
various SKB employee benefit plans.
9. Defendant SmithKline Beecham Corporation ("SKB") is a
corporation with offices at One Franklin Plaza, Philadelphia, PA
19101-7929. Defendant SKB sponsors and administers all of the
employee benefit plans from which plaintiffs claim that they have
been denied benefits. Defendant SKB is the Employer who has
denied various items of employee compensation to plaintiffs.
10. Defendant SKB, Administrator, has an office at One
Franklin Plaza, Philadelphia, Pennsylvania 19101-7929. Defendant
SKB, Administrator, administers all of the employee benefit plans
from which plaintiffs claim that they have been denied benefits.
11. Also named as defendants are each and every employee
benefit plan, and predecessor plans, at SKB. This includes: SKB
Pension Plan (#001); SKB Retirement Savings Plan (#002); AKB
Health & Welfare Benefits Plan (#900); Educational Assistance
Plan (#901); Business Travel Accident (#600); Accidental Death
(#900); Separation Pay Plan (#520); and/or any other plans under
which the class may be entitled to benefits as de jure or common
law employees.
12. Also named as defendant(s) are any Administrators of the
Plans, if a person or entity other than SKB serves in such
capacity.
13. Defendants are fiduciaries with respect to the SKB
employee benefit plans, as defined in 29 U.S.C. 1102.
Class Action Allegations
14. Plaintiffs are representatives of a large group of
common law employees at SKB who have been denied their rights to
receive benefits in various employee benefit plans administered
by the defendants and who have been denied various items of
employee compensation by defendant SKB while common law employees
of SKB.
15. This action is brought as a class action pursuant to
Rules 23(a) and 23(b)(1)(A) and 23(b)(2) of the Federal Rules of
Civil Procedure.
16. Plaintiffs have suffered the same loss of benefits and
are representative of a large group of common law SKB employees
who have been denied benefits and benefit accrual in various
employee benefit plans administered by defendants.
17. Upon information and belief there are hundreds of
employees during the period of limitations who, because of
defendants' misclassification, have been denied participation in
the plans administered by defendants.
18. The class is composed of all persons who are being or
have been denied benefits from SKB employee benefit plans while
common law employees of SKB and who have been denied items of
employee compensation while common law employees of SKB.
19. The term "common law employee" encompasses and is
intended to include each and every person employed at SKB who but
for SKB technology as e.g.: "leased", "temp", "independent
contractor", "temporary employee", "part-time employee", would
otherwise qualify as, and meet the eligibility requirements by
one or more employee benefits plans covered by ERISA.
20. The class is so numerous that joinder of all members is
impracticable. On information and belief there are more than 300
employees who have been treated similarly to the named
plaintiffs.
21. The class is geographically dispersed throughout a
number of states, including, but not limited to, Pennsylvania,
New Jersey, South Carolina, and Tennessee.
22. There are questions of law and fact common to the class,
including, inter alia:
a. Whether plaintiffs and the class are entitled to
declaratory relief;
b. Whether defendants are a fiduciary;
c. Whether defendants breached their duties as a
fiduciary;
d. Whether plaintiffs and the class are excluded from
participating in the plans administered by defendants;
e. Whether defendants discharged their duties in
accordance with the documents and instruments governing the plan;
f. Whether plaintiffs and the class are de jure or
common law employees of defendant SKB; g. Whether defendants failed to comply with ERISA's
mandatory disclosure requirements;
h. Whether defendants should be removed as plan
fiduciaries;
i. Whether defendant SKB should be required to disgorge
all profits earned as a result of the violations alleged herein;
j. Whether defendants engaged in a deliberate effort or
scheme to prevent plaintiffs and the class from attaining
eligibility for employee benefits in violation of 510 of ERISA;
k. Whether defendants acted arbitrarily and
capriciously in misclassifying plaintiffs and the class;
l. Whether defendants' decision classifying plaintiffs
and the class as not common law employees is entitled to
deference;
m. Whether plaintiffs and the class are "leased
employees" within the meaning of IRC 414(n);
n. Whether defendants' plans comply with 29 U.S.C.
1052(a)(1)(A).
23. Plaintiffs are members of the class they seek to
represent and have been subjected to the identical arbitrary and
capricious actions of the defendants as the class members.
24. The named plaintiffs will fairly and adequately protect
the interests of the class, since they have no interest that
conflicts with the interests of the class and since they have
retained experienced and competent counsel.
25. Prosecution of separate actions by members of the class
would create a risk of inconsistent or varying adjudications with
respect to individual members of the class which would establish
incompatible standards of conduct for the defendant. Indeed,
plaintiffs bring this action alleging a breach of fiduciary duty
by defendants; as such, the action must be brought on behalf of
the entire class.
26. Adjudications with individual members of the class will,
as a practical matter, be dispositive of the interests of other
members not parties to the adjudications and substantially impair
or impede their ability to protect their interests.
27. The defendants have acted or refused to act on grounds
generally applicable to the class, thereby making appropriate
final injunctive relief or corresponding declaratory relief with
respect to the class as a whole.
General Allegations
28. Defendants sponsor and administer the SKB employee
benefit plans set out in Paragraph 11 above.
29. The employee benefit plans listed in Paragraph 11 are
governed by ERISA.
30. Since at least 1978 defendant Smith Kline Beecham and
its predecessors (hereinafter SKB) selected and maintained
multiple levels in its employee work force.
31. For some time now, SKB has maintained and engaged in a
corporate wide scheme or artifice which had the purpose and
effect to deny and/or delay employees from attaining eligibility
for employee benefits.
32. SKB has labeled and defined workers as "full time
regular", "full time temporary", and "part time temporary".
33. Moreover, at some point SKB recognized that labeling
some workers as "temporary" and/or "independent contractor"
resulted in monetary savings, increasing its corporate
profitability.
34. In addition, SKB determined that using employment
agencies such as Manpower, Olsten, Kelly and others to be the
nominal "employer" for hundreds of its mislabeled common law or
de jure employees further clouded the questions surrounding the
entitlement and attainment of employee benefits.
35. As time passed, employee questions regarding eligibility
for benefits, when they would become "regular" employees,
pensions, retirement, health care, etc. were ignored or deflected
by supervisory personnel at SKB.
36. On occasion employees' status would be changed: from
temporary, to full time, to agency, or something similar.
37. Employees would be recalled by SKB personnel only to be
told to report to an employment agency "on site"; or be given a
choice of lay off from a full time position or switching to work
for an "on site" employment agency.
38. SKB and defendant Plan Administrators repeatedly made
misclassification and mislabeling decisions which resulted in
extending the minimum service participation dates for eligibility
for plan benefits to periods well beyond one year.
39. Defendants' actions as applied to plaintiffs and the
class delayed their becoming eligible for plan benefits well
beyond a one year period of service (or employment).
40. In all cases of class members herein, however, SKB
maintained to itself the authority and responsibility to control
hiring, training, evaluation and salary levels of the employees.
41. In addition, as to the class members suing herein, SKB
maintained supervisory authority and control over the time,
place, details, and manner of performance of the work performed.
42. SKB utilized plaintiffs and the class to perform work
which was essential to the nature and scope of its business(es).
43. Indeed, as to plaintiffs and the class, the services
they render to SKB is an integral part of the regular business of
SKB. Upon information and belief plaintiffs and the class work
side by side with regular employees of SKB.
44. Plaintiffs and the class are engaged in work at SKB
exclusively (or almost exclusively) and are not engaged in an
independently established trade, occupation or profession.
45. While plaintiffs and the class perform work at various
skill levels, all their work is performed at SKB locations, as
selected by SKB.
46. Upon information and belief, class members who are
"payrolled" through an employing agency have not been assigned
any different employer (or location) for years.
47. SKB provides to plaintiffs and the class all tools and
instrumentalities essential to the completion of the work
performed.
48. Under any standard, plaintiffs and the class they seek
to represent are clearly employees entitled to participate in and
attain all the benefits of the plans which defendants administer.
49. At all times relevant hereto, the named plaintiffs and
the members of the plaintiff class have been common law employees
of SKB entitled to receive benefits from the employee benefit
plans administered by SKB referred to in Paragraph 11 above and
to receive items of employee compensation, including, but not
limited to, vacation pay, holiday pay, sick pay, and
reimbursement of FICA contributions.
50. At all times relevant hereto, defendants have denied
that the named plaintiffs and the members of the plaintiff class
are common law employees of SKB and have denied the named
plaintiffs and the members of the plaintiff class their rights to
receive benefits from the SKB employee benefit plans referred to
in Paragraph 11 above and the items of employee compensation
referred to in Paragraph 49 above.
Allegations of Named Plaintiff Louise D. Thomas
51. In October of 1992 Louise D. Thomas was employed by SKB
through Olsten Temporary Services.
52. Thomas worked full-time in
the SKB warehouse at 820
Third Avenue, King of Prussia, PA, as a coordinator.
31. From October 1992 until April 1994, Thomas was a common law
employee of SKB doing SKB's regular work under SKB's supervision
and control.
53. Thomas was laid off in April of 1994, when she was
bumped by a long-term SKB employee during a staff reduction.
54. In December of 1994 Thomas was notified by SKB that the
coordinator job was open again and that she should return to work
at SKB.
55. Thomas was told to report first to the offices of Kelly
Services.
56. Kelly Services had an office at SKB's King of Prussia
warehouse, to which Thomas reported and which became her nominal
employer in December of 1994.
57. Thomas worked at the SKB warehouse from December of 1994
until March 1, 1999 as a nominal employee of Kelly Services.
58. From December of 1994 until March 1, 1999, Thomas was a
common law employee of SKB doing SKB's regular work under SKB's
supervision and control.
59. According to SKB, Thomas became a "full-time active" SKB
employee on March 1, 1999.
60. Under date of October 21, 1999, Thomas, through her
attorney, wrote to the defendants requesting that her employment
at SKB prior to March 1, 1999 be treated as common law employment
for purposes of the Retirement Savings Plan and the Cash Balance
Pension Plan.
61. By letter dated November 4, 1999, SKB replied to Thomas'
attorney that Thomas should expect to receive a response to her
benefit claim within 90 days.
62. By letter dated January 20, 2000, SKB wrote to Thomas'
attorney that Thomas would be treated as a "leased employee"
prior to March 1, 1999 and would receive credit for eligibility
and vesting only under the Retirement Savings Plan (referred to
by SKB as the "RS Plan") and the Pension Plan (referred to by SKB
as the "CBP").
63. The letter of January 20, 2000 stated that Thomas would
not begin to accrue benefits under either plan until March 1,
1999.
64. Thomas appealed on February 2, 2000 from the denial of
benefit accrual credits in the Retirement Savings Plan and the
Pension Plan. Her letter stated in conclusion:
Therefore, this letter is requesting: (1) that the decision to
deny Thomas benefit accrual credits in the RS Plan and the CBP
Plan prior to March 1, 1999 be reviewed and reversed and that
Thomas be given benefit accrual credit based on a hire date in
October of 1992 and (2) that Thomas be granted monetary redress
for the failure to provide her with coverage, based on a hire
date of October 1992, in every other employee benefit plan in
which SKB employees are entitled to participate. This includes,
but is not limited to, monetary redress for the failure to
provide her with medical and dental benefits based on her hire
date of October 1992.
65. On April 3, 2000, SKB wrote to Thomas' attorney
requesting an additional 60 days in which to reply to her appeal
of February 2, 2000.
66. On June 6, 2000, SKB wrote to Thomas' attorney and again
denied plaintiff's claims and stated that this was the final
decision.
67. Defendants' refusal to treat Thomas as a common law
employee of SKB prior to March 1, 1999 deprives Thomas of
benefits from SKB's employee benefit plans in violation of 29
U.S.C. 1104, which provides that a fiduciary shall discharge his
duties with respect to a plan solely in the interest of the plan
participants and beneficiaries for the exclusive purpose of
providing benefits to participants and their beneficiaries and
"in accordance with the documents and instruments governing the
plan."
68. Defendants' refusal to grant Thomas benefits from SKB's
employee benefit plains violates 29 U.S.C. ¿1140, which makes it
unlawful to discriminate against a participant in an employee
benefit plan for the purpose of interfering with the attainment
of any right to which such participant may become entitled under
the plan.
69. Upon information and belief the other similarly situated
members of the plaintiff class have also been deprived of
benefits from SKB's employee benefit plans in violation of 29
U.S.C. 1104 and 29 U.S.C. 1140.
70. While a common law employee of SKB, Thomas was denied
various items of employee compensation, including, but not
limited to, vacation pay, holiday pay, sick pay, and
reimbursement of FICA contributions.
71. On information and belief the other similarly situated
members of the plaintiff class have also been denied the items of
employee compensation referred to in paragraph 49 above.
Allegations of Named Plaintiff Dennis D. Darden
72. In October of 1993 Darden was employed by SKB through
Kelly Services.
73. Darden worked full-time in the SKB warehouse at 820
Third Avenue, King of Prussia, PA, as a material handler.
53. Darden worked at the SKB warehouse from October of 1993 until
March 1, 1999 as a nominal employee of Kelly Services.
74. From October of 1993 until March 1, 1999, Darden was a
common law employee of SKB doing SKB's regular work under SKB's
supervision and control.
75. According to SKB, Darden became a "full-time active" SKB
employee on March 1, 1999.
76. Under date of January 21, 2000, Darden, through his
attorney, wrote to the defendants requesting that his employment
at SKB prior to March 1, 1999 be treated as common law employment
for purposes of the SKB employee benefit plans.
77. By letter dated February 4, 2000, SKB wrote to Darden's
attorney that Darden would be treated as a "leased employee"
prior to March 1, 1999 and would receive credit for eligibility
and vesting only under the SKB employee benefit plans.
78. The letter of February 4, 2000 stated that Thomas would
not begin to accrue benefits under the SKB benefit plans until
March 1, 1999.
79. Darden appealed on February 8, 2000 from the denial of
benefit accrual credits in the SKB employee benefit plans.
80. On April 3, 2000, SKB wrote to Darden's attorney
requesting an additional 60 days in which to reply to Darden's
appeal of February 8, 2000.
81. On June 6, 2000, SKB wrote to Darden's attorney and
again denied plaintiff's claims and stated that this was the
final decision.
82. Defendants' refusal to treat Darden as a common law
employee of SKB prior to March 1, 1999 deprives Darden of
benefits from SKB's employee benefit plans in violation of 29
U.S.C. 1104, which provides that a fiduciary shall discharge his
duties with respect to a plan solely in the interest of the plan
participants and beneficiaries for the exclusive purpose of
providing benefits to participants and their beneficiaries and
"in accordance with the documents and instruments governing the
plan."
83. Defendants' refusal to grant Darden benefits from SKB's
employee benefit plains violates 29 U.S.C. 1140, which makes it
unlawful to discriminate against a participant in an employee
benefit plan for the purpose of interfering with the attainment
of any right to which such participant may become entitled under
the plan.
84. Upon information and belief the other similarly situated
members of the plaintiff class have also been deprived of
benefits from SKB's employee benefit plans in violation of 29
U.S.C. 1104 and 29 U.S.C. 1140.
85. While a common law employee of SKB, Darden was denied
various items of employee compensation, including, but not
limited to, vacation pay, holiday pay, sick pay, and
reimbursement of FICA contributions.
86. On information and belief the other similarly situated
members of the plaintiff class have also been denied the items of
employee compensation referred to in paragraph 65 above.
Allegations of Named Plaintiff Linda Jean Allen
87. Plaintiff Linda Jean Allen began work at SKB in 1968, as
a "temp" worker. She left in 1970 to have a family.
88. In 1978 Allen was rehired as a temp in the same job and
within months became a regular full time employee.
89. In approximately May 1981 she was laid off in RIF; but
was then asked by SKB to come back in February 1982 as a part
time temp; a position which she held for four years.
90. In June 1986, with the same title, she began working
essentially full time hours (except for brief lay off periods),
yet she was still labeled as a "part time temp".
91. This continued until approximately May 1994 when she was
told by a supervisor that she had a choice: she could either go
on the payroll of Kelly Services (and keep her job at SKB) or be
laid off.
92. Plaintiff Allen chose to continue working! She stayed
at SKB on the Kelly payroll until December 1998 when an injury
required her to stop work.
COUNT I
Declaratory Relief
93. Plaintiffs incorporate all preceding paragraphs of the
complaint as if fully set forth herein.
94. Defendants have repeatedly refused to recognize or
consider participation in their plans by plaintiffs and the
class.
95. Plaintiffs and the class have requested defendants to
include them as plan participants to no avail.
96. Plaintiffs and the class have suffered loss of benefits,
and will continue to suffer as a result of defendants'
interpretation of the plan documents.
97. Plaintiffs and the class request the court for
declaratory relief finding defendants' interpretation of plan
documents to be arbitrary and capricious.
98. Plaintiffs and the class request the court for
declaratory relief determining that as a matter of law they are
included as participants in the plans administered by defendants.
COUNT II
Injunctive Relief
ERISA 502(a)(2),(5)
99. Plaintiffs incorporate all preceding paragraphs of the
complaint as if fully set forth herein.
100. Plaintiffs and the class request this court to appoint
an independent fiduciary for each plan, having no relationship to
SKB or the other defendants, with the exclusive power and
authority to audit and investigate the SKB work force so as to:
a. Identify misclassified employees;
b. Determine for each misclassified employee any
period(s) of eligibility, any benefits he/she could have applied
for, and benefits to which he/she was entitled under the plan(s);
and
c. Provide appropriate disclosure to misclassified
employees.
101. Moreover, should plaintiffs and the class be successful
herein, they request the court to excuse, as a matter of law, the
failure(s) (if any) of plaintiffs and the class to comply with
the formal requirement of any plan to file applications,
requests, enrollment forms, appeals or other formal process
required therein; plaintiffs and the class' failure to do so
being due to defendants' actions.
COUNT III
ERISA 510
102. Plaintiffs incorporate all preceding paragraphs of the
complaint as if fully set forth herein.
103. The acts and practices of defendants, described in
detail above, operated to prevent plaintiffs and the class from
attaining eligibility for employee benefits under the plan(s)
they administer.
104. Defendants have engaged in a pattern of
misclassification of employees similarly situated to plaintiffs,
where the motivating factor was to prevent the class from
obtaining benefits of the plan(s) they administer.
105. Defendants' action were intentional; alternatively,
defendants acted with such reckless disregard of the
consequences, of which they knew, as to be charged with
purposeful conduct.
106. Defendants' misclassification of employees encompasses
so many employees, in so many job classifications, throughout
their various subdivisions as to evidence a custom and practice
of defendants.
107. By the above actions, customs and practices defendants
have operated and implemented a scheme to prevent employees from
obtaining eligibility for employee benefits in violation of ERISA
510.
COUNT IV
ERISA 1104
108. Plaintiffs incorporate all preceding paragraphs of the
complaint as if fully set forth herein.
109. The benefit plans administered by defendants clearly
and unambiguously include plaintiffs and the class under their
terms.
110. Defendants are fiduciaries as defined by ERISA.
111. Defendants' misclassification of plaintiffs and the
class caused defendants to misinterpret the plain language of the
plan(s).
112. Alternatively, defendant administrators as officials
and employees of SKB were burdened with a conflict of interest in
determining the benefit status of misclassified employees such as
plaintiffs and the class.
113. Defendants' imposition of the various
misclassifications such as "temporary", "agency", "leased", etc.
were standards not required by the Plan(s).
114. Defendants' actions thus resulted in amendments to the
Plan documents, not incorporated in, but rather extrinsic to, the
Plan(s).
115. By imposing a requirement extrinsic to the Plan(s) on
plaintiffs and the class, defendants a fortiori acted arbitrarily
and capriciously.
116. Moreover, defendants failed and/or refused to:
a. Properly apply the plans to all eligible persons;
b. Identify all employees eligible to participate in
the plans; and
c. Ensure that all eligible participants were included
in the plans.
117. As a result of defendants' efforts to conceal their
potential eligibility, plaintiffs and the class never received
documentation or other information about the benefit plans.
118. All of the above being evidence of defendants' failure
to act solely in the interests of the plan participants and
beneficiaries for the purpose of providing them benefits, in
violation of ERISA 404(a)(1)(A).
COUNT V
ERISA 1104
119. Plaintiffs incorporate all preceding paragraphs of the
complaint as if fully set forth herein.
120. All of the above being evidence of defendants' failure
to act in accordance with the documents and instruments governing
the plan, in violation of ERISA 404(a)(1)(D).
COUNT VI
ERISA 101
121. Plaintiffs incorporate all preceding paragraphs of the
complaint as if fully set forth herein.
122. The administrator of an employee benefit plan governed
by ERISA is required to furnish each participant a copy of a
summary plan description of the plan within 90 days after he/she
becomes a participant and a summary description of any
modifications no later than 210 days after the end of the plan
year in which the change is adopted. 29 U.S.C. 1024(b)(1)(A).
123. The administrator of an employee benefit plan governed
by ERISA is required to furnish to each participant a summary
annual report within 210 days after the close of the plan's
fiscal year. 29 U.S.C. 1024(b)(3).
124. SKB, in its letter of January 20, 2000, stated that it
had concluded that Thomas had become a participant in SKB's
employee benefit plans in October of 1993 (one year after the
beginning of her employment at SKB).
125. SKB, in its letter of February 4, 2000, stated that it
had concluded that Darden had become a participant in SKB's
employee benefit plans in October of 1994 (one year after the
beginning of his employment at SKB).
126. Thomas has never received a copy of a summary plan
description, a summary description of a plan modification, or a
summary annual report.
127. Darden has never received a copy of a summary plan
description, a summary description of a plan modification, or a
summary annual report.
128. Allen has never received a copy of a summary plan
description, a summary description of a plan modification, or a
summary annual report.
129. Upon information and belief, the other similarly
situated members of the plaintiff class have never received a
summary plan description, a summary description of a plan
modification, or a summary annual report.
130. By failing to furnish Thomas, Darden, Allen, and the
members of the plaintiff class a summary plan description, a
summary description of a plan modification, or summary annual
reports after 1993 for each of its employee benefit plans,
defendants have committed multiple violations of ERISA's
disclosure requirements set forth in 29 U.S.C. 1024(b)(1)(A) and
(b)(3).
131. By failing to furnish Thomas, Darden, Allen and the
members of the plaintiff class a summary plan description, a
summary description of a plan modification, and summary annual
reports after 1993 for each of its employee benefit plans,
defendants have committed multiple breaches of their fiduciary
duties and responsibilities in violation of 29 U.S.C. 1104.
132. All of the above being evidence of defendants' failure
to provide documents and information to plaintiffs and the class
of misclassified employees in violation of ERISA, 101, 102,
104 and 105.
COUNT VII
ERISA 1052
133. Plaintiffs incorporate all preceding paragraphs of the
complaint as if fully set forth herein.
134. Defendants' actions resulted in the de facto extension
of the minimum service provisions set out in each plan.
135. Indeed defendants' arbitrary, capricious and subjective
labeling and misclassification of employees resulted, during the
period of limitations, in the imposition on plaintiffs and the
class of periods of eligibility far greater than one year before
a class member could even become eligible to attain benefits.
136. All plaintiffs and class members were and are during
the period of limitations over the age of 21; and have worked for
defendant SKB for a period well in excess of one year.
137. Defendants' actions in withholding eligibility for plan
participation to class members who satisfied the minimum age and
service requirements specified in ERISA, violated 29 U.S.C.
1052.
Prayer for Relief
WHEREFORE, plaintiffs and the class pray that this Honorable
Court:
a. Certify this action as a class action under Rules
23a and 23(b)(1)(A) and 23(b)(2), Fed.R.Civ.P.;
b. Grant a judgment declaring that the named plaintiffs
and the members of the plaintiff class are entitled to receive
benefits from the SKB benefit plans for the periods of time that
they have been common law employees of SKB;
c. Appoint an independent fiduciary with the power set
out in Count II;
d. Order defendants to cooperate with an audit so as to
identify the benefits due to the class;
e. Remove each fiduciary from their positions;
f. Hold each fiduciary personally liable for the losses
incurred by the plans;
g. Require SKB to disgorge all profits earned and all
funds retained as a result of the violations found to be
committed herein;
h. Require SKB to pay all expenses, of and in
connection with, the appointment of an independent fiduciary;
i. Require SKB to comply with all decisions of the
independent fiduciary, including the retroactive inclusion of
eligible persons;
j. Require defendants to restore all losses caused by
their fiduciary breach;
k. Order defendants immediately to distribute to the
named plaintiffs and the members of the plaintiff class copies of
the summary plan description and the last summary annual report;
l. Permanently enjoin defendants from engaging in any
practice, or promulgating any policy, that does not grant the
named plaintiffs and the members of the plaintiff class the right
to receive benefits from the SKB benefit plans for the periods of
time that they have been common law employees of SKB;
m. Award attorneys fees and costs of suit, with
interest and pre-judgment interest, to the named plaintiffs and
members of the plaintiff class in accordance with 29 U.S.C.
1132(g)(1); and
n. Grant such other relief as it deems just, proper and
equitable for the violations of 29 U.S.C. 1104 and 29 U.S.C.
1024.
Respectfully submitted,
The Law Firm of MARKOWITZ & RICHMAN
PHILIP STEPHEN FUOCO
BY: ______________________ BY:_________________________
Philip Stephen Fuoco PAULA R. MARKOWITZ
24 Wilkins Place I.D. No. 13146
Haddonfield, NJ 08033 1100 North American Building
(856) 354-1100 121 South Broad Street
Philadelphia, PA 19107
(215) 875-3117
_________________________
JOHN SHNIPER
202 Gay Street
Phoenixville, PA 19460
(610) 935-2880
</XMP></FONT><FONT COLOR="#0f0f0f" BACK="#fffffe" SIZE=3 PTSIZE=10>
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