Case 2:11-cv-00045-CDJ Document 3 Filed 01/24/11 Page 1 of 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

COZEN O'CONNOR, P.C. 1900 Market Street Philadelphia, PA 19103
Plaintiff,
v.

Case Number: 2: II-cv-00045 Judge: C. Darnell Jones, II

JENNIFER J. TOBITS 7442 N. Hoyne Avenue, Apt. 2N Chicago, Illinois 60645

DAVID M. FARLEY and JOAN F. FARLEY, h/w 6510 Wood brook Drive Roanoke, Virginia 24018

Defendants.

COZEN O'CONNOR'S FIRST AMENDED COMPLAINT FOR INTERPLEADER Plaintiff, Cozen O'Connor, P.C. ("Cozen O'Connor"), by its attorneys, hereby

files its complaint for interpleader and avers:

I. Plaintiff, Cozen O'Connor, brings this action for interpleader pursuant to

Federal Rule of Civil Procedure 22, because it is exposed to multiple liability due to the

competing beneficiary claims of Jennifer J. Tobits and David M. Farley and Joan F.

Farley in connection with the distribution of benefits under the Cozen O'Connor Profit

Sharing Plan issued to decedent Sarah Ellyn Farley.

I. JURISDICTION, PARTIES, AND VENUE

2. Cozen 0'Connor is a corporation incorporated under the laws of the state

of Delaware with its principal offices in the Commonwealth of Pennsylvania.

3. Jennifer J. Tobits is a resident of the State of Illinois. Ms. Tobits claims

that she is the surviving spouse of decedent, Sarah Ellyn Farley.

Case 2:11-cv-00045-CDJ Document 3 Filed 01/24/11 Page 2 of 7
4. David M. Farley and Joan F. Farley, husband and wife, are residents of the State of Virginia. David and Joan Farley are the surviving father and mother of decedent, Sarah Ellyn Farley.
5. This Court has jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § I 132(e).
6. Venue is proper in this district pursuant to 28 U.S.C.A. § 1391, because the property that is the subject of this action is situated in this district, and pursuant to 29 U.S.c. § I 132(e)(2), because the Cozen O'Connor Profit Sharing Plan is administered in this district. II. THE PROFIT SHARING PLAN
7. On or about January 1, 2007, Sarah Ellyn Farley, Cozen O'Connor's employee, became eligible to participate in the Cozen O'Connor Profit Sharing Plan (hereinafter, the "Plan") whereby Cozen O'Connor promised to distribute the value of Ms. Farley's accounts to her Beneficiary upon Ms. Farley's death. The Plan is subject to the provisions of ERISA, 29 U.S.c. §§ 1101 et seq.
8. The Plan has a current value of approximately $40,820.20 with a cash value of$35,666.08. An additional estimated $5,154.12 cash contribution will be made during the calendar year 2011, but no earlier than July 2011.
9. Cozen O'Connor had not received a valid designation of Beneiiciary form ji'Olll Ms. Farley prior to her death. III. COMPETING BENEFICIARIES UNDER THE PLAN
10. Ms. Farley died on September 13, 2010.
2

Case 2:11-cv-00045-CDJ Document 3 Filed 01/24/11 Page 3 of 7
II. Following Ms. Farley's death, David and Joan Farley presented a designation of Beneficiary form to Cozen O'Connor, purporting to show that Ms. Farley had designated them as her Beneficiaries under the Plan and had represented her present marital status as "single." (A true copy of this designation of Beneficiary fOim is attached hereto as Exhibit A; see also letter from Jonathan W. Michael, counsel for David and Joan Farley, to Vincent R. McGuinness, Esq., dated November II, 2010, a true copy of such letter is attached hereto as Exhibit B.)
12. This designation of Beneficiary fonn bears the date of September 12, 2010, the day before Ms. Farley's death. It purports to have Ms. Farley'S signature above "Participant's Signature." It also purports to have the signature of Ms. Farley's spouse notarized which is inconsistent with the declaration that she is "single" and, in any event, is not signed by her spouse. Accordingly, Cozen O'Connor cannot detennine the validity of this designation of BenefIciary fonn.
13. On November 30, 2010, Ms. Tobits advised Cozen O'Connor that she intended to file a claim with respect to the accounts owed to Ms. Farley's Beneficiary under the Plan. (A true copy of the letter by Ms. Tobits addressed to Cozen O'Connor's counsel, H. Robert Fiebach, dated November 30, 2010, is attached hereto as Exhibit C.)
14. Ms. Tobits presented Cozen O'Connor with a copy ofa Marriage Certificate executed on February 17,2006 in Toronto, Ontario, Canada between Sarah Ellyn Farley and Jennifer Jean Tobits. (A copy of the Man'iage Celiificate, represented to be a true and correct copy of the original Marriage Certificate by Ms. Tobits, is attached hereto as Exhibit D.)
3

Case 2:11-cv-00045-CDJ Document 3 Filed 01/24/11 Page 4 of 7
IS. Under miicie VI, section 6.2(a) of the Plan, "[u)pon the death ofa
Participant ... all amounts credited to such Participant's Combined Account shall
become fully Vested. The Administrator shall direct the Trustee ... to distribute the
value of the deceased Participant's accounts to the Participant's Beneficiary," (A true
copy of article I of the Plan, entitled "Definitions," aliicie VI of the Plan, entitled
"Detem1ination and Distribution of Benefits," and article IX of the Plan, entitled
"Miscellaneous," are attached hereto as Exhibit E.)i
16. Aliicle VI, section 6.2(e) instructs that:
(e) Unless otherwise elected in the manner prescribed in Section 6.6, the Pmiicipant's surviving Spouse shall receive a death benefit equal to the Pre-Retirement Survivor Annuity. The Participant may designate a Beneficiary other than the Spouse to receive that portion of the Participant's death benefit which is not payable as a PreRetirement Survivor Annuity. The Participant may also designate a Beneficiary other than the Participant's Spouse to receive the Pre-Retirement Survivor Annuity but only if:
(I) the Participant and the Participant's Spouse have validly waived the PreRetirement Survivor Annuity in the manner prescribed in Section 6.6, and the Spouse has waived the right to be the Participant's Beneficiary, or
***
(3) the Participant has no Spouse, or
***
(Exh. E) (emphasis supplied.)
1 Due to its voluminous size, Cozen O'Connor has not attached the Plan in its entirety, but rather has attached the relevant articles of the Plan. Cozen O'Connor will produce the Plan in its entirety if this Court so wishes and directs.
4

Case 2:11-cv-00045-CDJ Document 3 Filed 01/24/11 Page 5 of 7
17. "Spouse" is defined under article I, section 1.55A to mean "the person to whom the Pmiicipant has been married throughout the one-year period ending on ... the date ofthe Participant's death." (Id.)
18. Under article VI, section 6.2(f): (f) In the event no valid designation of Beneficiary exists, or if the Beneficiary is not alive at the time of the Participant's death, the death benefit will be paid in the following order of priority to: (I) the Participant's surviving Spouse;
***
(3) the Participant's surviving parents, in equal shares; or
***
(Id.) 19. Additionally, under article IX, section 9.3, the Plan "shall be construed
and enforced according to the [Internal Revenue Code], the [Employee Retirement Income Security Act (the "Act")], and the laws of the Commonwealth of Pennsylvania, other than its laws respecting choice oflaw, to the extent not pre-empted by the Act." (Id.)
20. Ms. Tobits' signature does not appear on the designation of Beneficiary fOlU1 in the space reserved for spousal consent to beneficiary designation. (See Exh. B.)
21. By reason ofthese contlicting claims of the defendants, plaintitl'is uncertain as to which defendant is entitled to distribution of the accounts owed to Ms. Farley's Beneficiary under the Plan.
5

Case 2:11-cv-00045-CDJ Document 3 Filed 01/24/11 Page 6 of 7 WHEREFORE, Cozen O'Connor, P.C., respectfully requests that the comi
adjudge: a) That the defendants be required to interplead and settle among themselves
their respective claims to the money due under the Plan; b) That each defendant be restrained from commencing any action against
Cozen O'Connor on the Plan; c) That Cozen O'Connor be permitted to pay into the registry of the court all
amounts due under the Plan and upon such deposit be discharged from all liability arising from the Plan; and
d) That Cozen O'Connor be awarded its costs and attorneys' fees.
6

Case 2:11-cv-00045-CDJ Document 3 Filed 01/24/11 Page 7 of 7

Dated: January 24, 201 1

Respectfull y submitted,
COZEN O'CONNOR
By: bert Fieba , Esq. (PA #028
Jay orseh, Esq. (PA #42827) Jill M. Caughie, Esq. (PA #307269) 1900 Market Street Philadelphia, PA 19103 (215) 665-2000 (I) (215) 665-2013 (I)
Attorneys for Plaint~1f, Cozen 0 'Connor

7

Case 2:11-cv-00045-CDJ Document 3-1 Filed 01/24/11 Page 1 of 4
EXHIBIT "A"

"0 COZEN , O'CONNOR.

Case 2:11-cv-00045-CDJ Document 3-1 Filed 01/24/11 Page 2 of 4

Participant Information
(Please print clearly)
Present Marital Status
(Check one)
Explanation of Qualified Preretirement Survivor Annuity
Beneficiary Designation Primary Beneficiary(ies)

Cozen O'Connor Profit Sharing Plan DeSignation of Beneficiary Form

/ 7 Nama -e. f! 9 L

~ ~o;;;--e.H. Lv4..,

E·mail Address

GJ..--sTngle

o Married

Social Security Number
'T 7' 31 J
Daytime Phone Number

If you are married when you die, your money purchase pension vested account balance will be used to purchase an annuity providing periodic payments for the life of your surviving spouse. This annuity form of payment is called a "Qualified Preretirement Survivor Annuity" or QPSA. You may waive the QPSA, as long as your spouse con.ents in writing to the waiver. In addition, after your death, your spouse may choose a form of benefit other than the QPSA.
If you waive the QPSA, you may designate other beneficiaries andlor forms of payment for your vested account only if your spouse consents to the specific beneficiary you designate on this form. If you revoke your waiver of the QPSA, your spouse will again receive death benefits in the form of a QPSA, unless your spouse either (1) consents to a new waiver of the QPSA, or (2) chooses another form of benefit after your death.
Generally, you cannot waive the QPSA until the plan year in which you turn 35. You also may waive the QPSA, with proper consent, prior to the plan year in which you turn 35. However, the QPSA will be automatically reinstated as of the first day of the plan year in which you turn 35. Of course, you can again waive the QPSA at that time, with proper spousal consent. After you have separated from service, you may waive the QPSA, with proper spousal consent, at any time. Such waiver will remain effective until you revoke the waiver or are reemployed.
If you are unmarried and subsequently marry, or marry a different person after you sign this form, your spouse at your death is automatically entitled to a qualified preretirement survivor annuity and this Primary Beneficiary designation no longer applies. Thus be sure to update this form after a change in marital status.
This consent is required only if a married Participant does not name the spouse as the only primary benefiCiary. To be effective, the spouse's Signature must be notarized.
I, the undersigned, hereby elect that upon my death the following person(s) shall be my primary and secondary beneficiary(ies) under the plan:

N"mbeM dh k.. soo"s"",,,,,,

0

ro-'() ~ r--.

SMAddress

'KDQJ)O/(<-, ,J,J/OlrP

City

Stile

ZIP Code

#It- 9-13'f'~ (();,th e "-

Birth Date
100 /1')

Relationship

P{!rcent

»

last Name

First

M.1.

db k Qjl /6£-£211

10 S / 6 V6 Social Security Number~

roo \JJ,.

~ Addle" // J / '
t9. )/" Oq/XJM- VO--·
' f J6 ~-f( s"~ 'e.

/J:>
Z'P Code
e.r--

Birth Date
/oa %

Relationship

Per&ml

350076 (Rev. 812612009)

8109

R BAR 0 3 3 500 1 6
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Case 2:11-cv-00045-CDJ Document 3-1 Filed 01/24/11 Page 3 of 4
Cozen O'Connor Profit Sh3ring Plan Designation of Beneficiary Form

Secondary Beneficiary(ies)
Participant's Signature

If you name more than one primary beneficiary but do not specify a percentage for each, your account will be divided equally among the primary beneficiaries who survive you. Check here if you have more than two primary beneficiaries and have used the space on the next page. 0
In the event the primary beneficiary(ies) islare not living, I designate the following person(s) as my beneficiary(ies):

Last Name

First

M.I.

last Name

First

M.I

Social Security Number

Social Security Number

Street Address

Stroot Address

City

State

ZIP Code

City

Stale

ZIP Code

Birfh Date

Retalionship

elrth Dote

Relationship

Percent

Percent

If you name more than one secondary beneficiary but do not specify a percentage for each, your account will be divided equally among the secondary beneficiaries who survive you. Ch,eck here If you have more than two secondary beneficiaries and have used the space on the next page. 0

Any eleclion I have made on this form revokes all prior esigna 'ons wit~is Plan.

q -Ivlo

I

Date

Participant's Waiver Waiver of Preretirement Survivor Annuity
I have reviewed the Explanation of the Qualified Preretirement SurvivorAnnuity ("QPSA") above. I understand that my preretirement death benefits will be paid in the form of a QPSA unless I choose a primary beneficiary other than my spouse and my spouse consents to the beneficiary. I understand that I may not change the beneficiary unless my spouse consents . to the new beneficiary. I also understand that I may revoke my waiver of the QPSA at any time by designating my spouse as the sale primary beneficiary for the QPSA.
I hereby waive the Qualified Preretirement Survivor Annuity under the plan. By signing this waiver, the individual(sj that I have designated as my primary beneficiaries on this form will receive my vested plan benefits at my death instead of my spouse. If my spouse consents to this waiver, I understand that I also may choose a form of payment for death benefits other than the QPSA.

Date

Participant's Signature _

Spouse's Consent 350076 (Rev. 8/26/2009)

I voluntarily consent to my spouse's election to waive the qualified preretirement survivor annuity and to designate the beneficiary(ies) listed on this form. I have read the explanation of the qualified preretirement survivor annuity benefit and I understand that:

1. If I do not sign this consent, the qualified preretirement survivor annuity benefit will remain in effect.
2. By signing this consent, the beneficiary(ies) designated by my spouse will receive my spouse's plan benefits instead of me.
3. This consent applies only to the beneficiaries designated on this form. My spouse

8/09

"III'"'""I iii'""I"""" R BAR 0 3 3 5 007 6

' " ' ' ' ' ' ' 111"1'"

11111 "'" "'" "'"

Case 2:11-cv-00045-CDJ Document 3-1 Filed 01/24/11 Page 4 of 4
Cozen O'Connor Profit Sharing Plan Designation of Beneficiary Form
may nol change beneficiaries without again getting my consent. 4. I do not have to sign this consent. However, once I do, I cannot revoke my consent. 5. This consent has no application to the benefits that begin during my spouse's
lifetime. 6. My signature must be witnessed by a Notary Public for my consent to be effective.

Dato

Spouse's Signature

Notarization of Spouse's Signature
Additional Primary Beneficiary(ies)
Additional Secondary Benefieiary(ies)

Slate of

County of (or City of)

""O' Swom to berom me this _ _.J.I..:'2...=-_ _

SignntureootaJ; ublic Name of Notary Public

<1 - \<"-/0
Dato
11-5-11
My Commission Expires

Additional Beneficiaries

. '2-010

[as! Name

First

Socia! Security Number

Street Address

City

State

Birth Dale

Relationship

Percent

MI lIP Coda

Last Name

Firsl

MJ.

Social Socurity Number

Street Address

City

State

ZIP Code

Birth Dale

Relationship

Percent

Last Name

First

Social Security Number

Street Address

City

State

Binh Dale

Relationship

Percent

M.I. ZIP Gode

Last Name

First

M.1.

Sodal Security Number

Street Address

City

State

ZIP Code

Birth Dale

Relationship

Percent

OFFICIAl SEAL HEATHER ABAUER
NOTARY PU8UC. STATE OF IllINOIS MY COMMISSION IOO'IReS:ll1D5111

350076 (Rev. 8/26/2009)

8/09

1111111111111111111111111111111111111111111111111111111111111111111111 R BAR 0 3 3 5 001 6

Case 2:11-cv-00045-CDJ Document 3-2 Filed 01/24/11 Page 1 of 3
EXHIBIT "B"

Case 2:11-cv-00045-CDJ Document 3-2 Filed 01/24/11 Page 2 of 3

BURKE, WARREN, MACKAY & SERRITELLA, P.e.

JONATHAN W. MICHAEL
DlRECTDIAL NUMDER
(312)840-7049 jmichael@burkelaw.conl

330 NORTIi WABASH AVENUE 22NDFLOOR
CHICAGO, ILLINOIS 60611-3607 TELEPHONE (312) 840-7000 FACSIMILE (312) 840-7900 www.burkelaw.com

November 11,2010

VIA FEDERAL EXPRESS

Vincent R. McGuinness, Esq. Administrative Managing Partner Cozen O'Connor 1900 Market Philadelphia, Pennsylvania 19103

RE: Sarah Ellyn Farley

Dear Mr. McGuinness:

As you know from our prior cOlTespondence, we represent David and Joan Farley, the parents of your partner, Sarah Ellyn Farley. David and Joan Farley were designated by Ellyn as the beneficiaries of her account in the Cozen O'Connor Profit Sharing Plan. Pursuant to ERISA, request is hereby made for a copy of the Cozen O'Connor Profit Sharing Plan plan document and trust agreement. Please advise if there is a charge, and we will promptly remit payment. We trust you will respond to this written request as soon as possible and definitely within the ERISA time period both to acconnnodate Mr. and Mrs. Farley as the beneficiaries and to avoid the per diem penalties under ERISA.

In my conversation of November 8, 2010 with Cheryl Progen of your office, I understand that your office is contemplating contacting and releasing information regarding Ellyn's benefits, including life insurance benefits, to individuals who have not been narned as beneficiaries of those assets. Mr. and Mrs. Farley are the beneficiaries designated by Ellyn and have not consented to the distribution of that information to anyone other than the plan administrator and those employees who need to know to process a distribution of the account balance and life insurance proceeds. Any other distribution of this information to someone other than my clients will result in an unwarranted invasion of privacy, a negligent or intentional creation of an adverse situation with non-interested parties where none exists now, and an infliction of emotional distress. No one has a legitimate interest in this information other than Ellyn's named beneficiaries.

We can only assume the fact Ellyn had a domestic partner is causing your hesitancy to make a distribution. In that regard, we note Illinois and Pennsylvania do not recognize same sex

Case 2:11-cv-00045-CDJ Document 3-2 Filed 01/24/11 Page 3 of 3
BURKE, WARREN, MAcKAy & SERRITELLA, P.e.
Vincent R. McGuinness, Esq. November 11, 2010November 11, 2010 Page 2

marriages. More importantly, the federal Defense of Marriage Act clearly applies to ERISA plans and defines maniage as being with an individual of the opposite sex. Most importantly, Ellyn considered herself single for these pmposes by designating herself as such on the beneficiary designation fOlm of which you have a copy.
In addition to the requested documents, we request and expect an expeditious payment of the account balance to om clients as the designated beneficiaries. In these turbulent economic times, we do not believe that you would not want to hold and assume the investment risk for properly distributable funds.
My clients are very frustrated that their daughter's employer has taken it npon itself to create a dispute where none exists. We advise you to follow the beneficiary designation fonns that your finn asked Ellyn to complete.
Should you have any qnestions, please feel free to contact me. I look forward to your cooperation.

JWM:arnc
cc: Joseph G. Lyons, Esq. Mr. and Mrs. David Farley

/ (. .ruly yours,
-)~~-
Jonathan W. Michael

14283\00001 \7737 50v 1

Case 2:11-cv-00045-CDJ Document 3-3 Filed 01/24/11 Page 1 of 2
EXHIBIT "C"

Case 2:11-cv-00045-CDJ Document 3-3 Filed 01/24/11 Page 2 of 2

11/30/2010 10:40 3123229977

NZALAW

PAGE 02/05

Jennifer Tobits 7442 N. Hoyne Avenue, Apt. 2N
Chicago, Illinois 60645

Via Facsimile and U.~~ Mail
Mr. H. Robert Piebach COZEN O'CONNOR 1900 Market Street Philadelphia, PA 19103

November 3D, 2010

Re: Sarah Ellyn Farley

Dear Mr. Fiebach:
Please al10w this letterto respond to your November 22, 2010 correspondence, and to fonnally advise you that I intend to make a claim with respect to the Death Benefits of my wife, Sarah Ellyn Farley. As indicated by the attached Request for Marriage Certificates, I have
ordered five certified cbpies of the applicable Marriage Certificate; however, I am uncertain if I
will receive these copies by the December 10, 2010 deadline mentioned in your letter. Tn the interim, I attach a copy of the original Marriage Certificate. 1. have the original Certificate in my possession, and would be happy to allow you to teview same hete in Chicago.
Please be advised that I have retained an attorney to represent my interests with: respect to my wife's Estate. My lawyer's contact infonnati.on is as follows:

Timothy J. Klein, Esq. 290 Springfield Drive, Suite 220
Bloomingdale, Illinois GO 108 Phone No.: 630-893-5200 Fax No.: 630-893-5224

Sincerely,

mId
cc: Mr. Timothy Kl,ein, Esq.

Jennifer Tobits

Case 2:11-cv-00045-CDJ Document 3-4 Filed 01/24/11 Page 1 of 2
EXHIBIT "D"

Case 2:11-cv-00045-CDJ Document 3-4 Filed 01/24/11 Page 2 of 2

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Case 2:11-cv-00045-CDJ Document 3-5 Filed 01/24/11 Page 1 of 47
EXHIBIT "E"

Case 2:11-cv-00045-CDJ Document 3-5 Filed 01/24/11 Page 2 of 47 COZEN O'CONNOR PROFIT SHARING PLAN Januaty J, 2002

Case 2:11-cv-00045-CDJ Document 3-5 Filed 01/24/11 Page 3 of 47
TABLE OF CONTENTS ARTICLE I
DEFINITIONS
ARTICLE II ADMINISTRATION 2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER ....................................... 1S 2.2 DESIGNAnON OF ADMINISTRATIVE AUTHORITY ............................................. 16 2.3 POWERS AND DUTIES OF THE ADMINISTRATOR ................................................ 16 2.4 RECORDS AND REPORTS .......................................................................................... .18 2.S APPOINTMENT OF ADVISERS ................................................................................... 18 2.6 PAYMENT OF EXPENSES ............................................................................................ 18 2.7 CLAIMS PROCEDURE .................................................................................................. 19 2.8 CLAIMS REVIEW PROCEDURE .................................................................................. 19
ARTICLE III ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY ...................................................................................20 3.2 EFFECTIVE DATE OF PARTICIPATION ....................................................................20 3.3 DETERMINATION OF ELIGIBILITY .......................................................................... 21 3.4 TERMINATION OF ELIGIBILITY................................................................................21 3.S OMISSION OF ELIGIBLE EMPLOYEE ....................................................................... 21 3.6 INCLUSION OF INELIGIBLE EMPLOYEE .................................................................21 3.7 REHIRED EMPLOYEES AND BREAKS IN SERVICE ............................................... 21 3.8 ELECTION NOT TO PARTICIPATE.............................................................................23
ARTICLE IV CONTRIBUTION AND ALLOCAnON 4.1 FORMULA FOR DETERMINING EMPLOYER CONTRIBUTION............................23 4.2 PARTICIPANT'S SALARY REDUCTION ELECTION ................................................ 24 4.3 TIME OF PAYMENT OF EMPLOYER CONTRIBUTION ..........................................27 4.4 ALLOCATION OF CONTRIBUTION, FORFEITURES AND EARNINGS ................28 4.S ACTUAL DEFERRAL PERCENTAGE TESTS ............................................................ 34 4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS .......................... .36 4.7 ACTUAL CONTRIBUTION PERCENTAGE TESTS ................................................... 39

Case 2:11-cv-00045-CDJ Document 3-5 Filed 01/24/11 Page 4 of 47
4.8 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS ..................41 4.9 MAXIMUM ANNUAL ADDITIONS ............................................................................ .44 4.10 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS ........................................46 4.11 ROLLOVERS AND PLAN-TO-PLAN TRANSFERS FROM QUALIFIED
PLANS ............................................................................................................................ .47 4.12 DIRECTED INVESTMENT ACCOUNT....................................................................... .49 4.13 QUALIFIED MILITARY SERVICE ............................................................................... 51
ARTICLE V VALUATIONS 5.1 VALUATION OF THE TRUST FUND ..........................................................................58 5.2 METHOD OF VALUATION .... " .................................................................................... 58
ARTICLE VI DETERMINATION AND DISTRIBUTION OF BENEFITS 6.1 DETERMINATION OF BENEFITS UPON RETIREMENT ......................................... 58 6.2 DETERMINATION OF BENEFITS UPON DEATH .............................. " ..................... 59 6.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY " ............................60 6.4 DETERMINATION OF BENEFITS UPON TERMINATION................ " .....................60 6.5 DISTRIBUTION OF BENEFITS ......................" ...... " ....................................................62 6.6 DISTRIBUTION OF BENEFITS UPON DEATH .......................................................... 68 6.7 TIME OF SEGREGATION OR DISTRIBUTION ..........................................................71 6.8 DISTRIBUTION FOR MINOR OR INCOMPETENT BENEFICIARY.." .....................72 6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN ............................. 72 6.10 ADVANCE DISTRIBUTION FOR HARDSHIP ...... " .................................................... 73 6.11 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION...... ".....................74 6.12 DIRECT ROLLOVER ..................................................................................................... 74
ARTICLE VII AMENDMENT, TERMINATION, MERGERS AND LOANS 7.1 AMENDMENT ......................................................................................... ".....................80 7.2 TERMINATION ........................ " .................................................................................... 81 7.3 MERGER, CONSOLIDATION OR TRANSFER OF ASSETS .....................................81 7.4 LOANS TO PARTICIPANTS ......................................................................................... 82

Case 2:11-cv-00045-CDJ Document 3-5 Filed 01/24/11 Page 5 of 47
ARTICLE VIII TOP HEAVY
8.1 TOP HEAVY PLAN REQUIREMENTS ........................................................................ 82 8.2 DETERMINATION OF TOP HEAVY STATUS ........................................................... 82
ARTICLE IX MISCELLANEOUS
9.1 PARTICIPANT'S RIGHTS .............................................................................................. 85 9.2 ALIENATION .................................................................................................................. 85 9.3 CONSTRUCTION OF PLAN ..........................................................................................86 9.4 GENDER AND NUMBER .............................................................................................. 86 9.5 LEGAL ACTION ............................................................................................................. 86 9.6 PROHIBITION AGAINST DIVERSION OF FUNDS ...................................................87 9.7 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE......................................... 87 9.8 INSURER'S PROTECTIVE CLAUSE ............................................................................ 87 9.9 RECEIPT AND RELEASE FOR PAYMENTS .............................................................. 88 9.10 ACTION BY THE EMPLOYER ..................................................................................... 88 9.11 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY ......................88 9.12 HEADINGS ...................................................................................................................... 88 9.13 APPROVAL BY INTERNAL REVENUE SERVICE ....................................................89 9.14 UNIFORMITY ................................................................................................................. 89
ARTICLE X PARTICIPATING EMPLOYERS
10.1 ADOPTION BY OTHER EMPLOYERS ........................................................................ 90 10.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS .............................................90 10.3 DESIGNATION OF AGENT .......................................................................................... 90 10.4 EMPLOYEE TRANSFERS ............................................................................................. 90 10.5 PARTICIPATING EMPLOYER CONTRIBUTION AND FORFEITURES ................. 91 10.6 AMENDMENT ................................................................................................................ 91 10.7 DISCONTINUANCE OF PARTICIPATION..................................................................91 10.8 ADMINISTRATOR'S AUTHORITy ..............................................................................91

Case 2:11-cv-00045-CDJ Document 3-5 Filed 01/24/11 Page 6 of 47
COZEN O'CONNOR PROFIT SHARING PLAN
THIS PLAN, hereby adopted on the date shown below by Cozen O'COlmor (herein referred to as the "Employer" or "Employer-Sponsor)."
WIT N E SSE T H:
WHEREAS, the Employer-Sponsor heretofore established a Profit Sharing Plan effective December 31, 1971, (hereinafter called the "Effective Date") originally known as the Cozen and O'Connor Profit Sharing Plan and subsequently re-named the Cozen O'Connor Profit Sharing Plan (herein refeITed to as the "Plan") in recognition of the contribution made to its successful operation by its employees and for the exclusive benefit of its eligible employees; and
WHEREAS, under the terms of the Plan, the Employer-Sponsor has the ability to amend the Plan, provided the Tmsteejoins in such amendment if the provisions of the Plan affecting the Tmstee are amended;
NOW, THEREFORE, effective January I, 2002, except as otherwise provided, the Employer-Sponsor in accordance with the provisions of the Plan peltaining to amendments thereof; hereby amends the Plan in its entirety and restates the Plan to provide as follows:
ARTICLE I DEFINITIONS
1.1 "Act" means the Employee Retirement Income Security Act of 1974, as it may be amended from time to time.
1.2 "Administrator" means the Employer-Sponsor. The Employer-Sponsor may delegate all or part of its duties in connection therewith, pursuant to the provisions of Section 2.2.
1.3 "Affiliated Employer" means any corporation which is a member of a controlled group of corporations (as defined in Code Section 414(b)) which includes the Employer; any trade or business (whether or not incorporated) which is under common control (as defined in Code Section 414(c» with the Employer; any organization (whether or not incorporated) which is a member of an affiliated service group (as defined in Code Section 414(m)) which includes the Employer; and any other entity required to be aggregated with the Employer pursuant to Regulations under Code Section 414(0).
1.4 "Aggregate Account" means, with respect to each Participant, the value of all accounts maintained on behalf of a PaJticipant, whether attributable to Employer or Employee contributions, subject to the provisions of Section 8.2.
1.5 "Anniversary Date" means the last day of the Plan Year. Notwithstanding anything contained in this document to the contrary, for purposes of allocations and distributions, the term "Valuation Date" shall be substituted for Anniversary Date, as applicable, if a Valuation Date has occurred since the last Anniversary Date.
1.6 "Annuity Starting Date" means, with respect to any Participant, the first day of the first period for which an amount is paid as an annuity, or, in the case of a benefit not payable in
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the form of an annuity, the first day on which all events have occurred which entitles the Participant to such benefit.
1.7 "Beneficiary" means the person (or entity) to whom the share of a deceased Participant's total account is payable, subject to the restrictions of Sections 6.2 and 6.6.
1.8 "Code" means the Internal Revenue Code of 1986, as amended or replaced from time to time.
1.9 "Compensation" with respect to any Participant means such Participant's wages for the Plan Year within the meaning of Code Section 3401(a) (for the purposes of income tax withholding at the source) but determined without regard to any rules that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Code Section 3401(a)(2)).
For purposes of this Section, the determination of Compensation shall be made by:
(a) excluding (even if includible in gross income) reimbursements or other expense allowances, fringe benefits (cash or noncash), moving expenses, deferred compensation, and welfare benefits.
(b) including amounts which are contributed by the Employer pursuant to a salary reduction agreement and which are not includible in the gross income of the Pmticipant under Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and Employee contributions described in Code Section 414(h)(2) that are treated as Employer contributions.
Notwithstanding the foregoing, for Plan Years beginning prior to January I, 2005, "compensation" was defined as "total compensation which is actually paid to the Participant during the determination period as calculated for federal income tax purposes for Form W-2, reduced by all of the following items (even if includable in gross income): reimbursements or other expense allowances, fringe benefits (cash and noncash), moving expenses, deferred compensation, and welfare benefits. The determination period shall be the Plan Year." In addition, for such Plan Years beginning prior to January 1,2005, the amounts described in (b) above were also included in compensation.
For a Participant's initial year of pmticipation, Compensation shall be recognized for the entire Plan Year.
Compensation in excess of$150,000 (or such other amount provided in the Code) shall be disregarded for all purposes other than for purposes of salary deferral elections pursuant to Section 4.2. Such amount shall be adjusted for increases in the cost ofliving in accordance with Code Section 401(a)(l7)(B), except that the dollar increase in effect on January I of any calendar year shall be effective for the Plan Year beginning with or within such calendar year. For any short Plan Year the Compensation limit shall be an amount equal to the Compensation limit for the calendar year in which the Plan Year begins multiplied by the ratio obtained by dividing the number of full months in the shOit Plan Year by twelve (12).
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If any class of Employees is excluded from the Plan, then Compensation for any Employee who becomes eligible or ceases to be eligible to participate during a Plan Year shall only include Compensation while the Employee is an Eligible Employee.
For purposes of this Section, if the Plan is a plan described in Code Section 413(c) or 414(f) (a plan maintained by more than one Employer), the limitation applies separately with respect to the Compensation of any P81ticipant from each Employer maintaining the Plan.
If, in connection with the adoption of this amendment and restatement, the definition of Compensation has been modified, then, for Plan Years prior to the Plan Year which includes the adoption date of this amendment and restatement, Compensation means compensation determined pursuant to the Plan then in effect.
For purposes of the definition of "Compensation", "414(s) Compensation" and "415 Compensation" under the Plan, amounts under Code Section 125 include any amounts not available to a Participant in cash in lieu of group heath coverage because the Participant is unable to certify that he or she has other health coverage. An amount will be treated as an amount under Code Section 125 only if the Employer does not request or collect information regarding the Participant's other health coverage as part of the enrollment process for the health plan.
1.10 "Contract" or "Policy" means any life insurance policy, retirement income policy or annuity contract (group or individual) issued pursuant to the terms of the Plan. In the event of any conflict between the terms ofthis Plan and the terms of any contract purchased hereunder, the Plan provisions shall control.
1.11 "Deferred Compensation" with respect to any Participant means the amount of the Participant's total Compensation which has been contributed to the Plan in accordance with the Pmticipant's deferral election pursuant to Section 4.2 excluding any such amounts distributed as cxcess "annual additions" pursuant to Section 4.1 O(a).
1.12 "Designated Investment Alternative" means a specific investment identified by name by a Fiduciary as an available investment under the Plan to which Plan assets may be invested by the Trustee pursuant to the investment direction of a Palticipant.
1.13 "Directed Investment Option" means one or more of the following:
(a) a Designated Investment Alternative.
(b) any other investment permitted by the Plan and the Palticipant Direction Procedures to which Plan assets may be invested by the Trustee pursuant to the investment direction of a Participant.
1.14 "Early Retirement Date." This Plan does not provide for a retirement date prior to NOllnal Retirement Date.
1.15 "Elective Contribution" means the Employer contributions to the Plan of Deferred Compensation excluding any such amounts distributed as excess "annual additions" pursuant to Section 4.IO(a). In addition, any Employer Qualified Non-Elective Contribution made pursuant to Section 4.1 (c) and Section 4.6(b) which is used to satisfy the "Actual Deferral Percentage" tests shall be considered an Elective Contribution for purposes of the Plan. Any contributions
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deemed to be Elective Contributions (whether or not used to satisfy the "Actual Deferral Percentage" tests or the "Actual Contribution Percentage" tests) shall be subject to the requirements of Sections 4.2(b) and 4.2(c) and shall fiuther be required to satisfy the nondiscrimination requirements of Regulation 1.40 I(k)-I (b)(5) and Regulation 1.40 I(m)-I (b)(5), the provisions of which are specifically incorporated herein by reference.
1.16 "Eligible Employee" means, except as excluded below by class, any Employee who has satisfied the provisions of Section 3.1.
Employees who are classified as "associates" or "staff attorneys" shall not be eligible to participate in the Plan. Any Employee who commences pmticipation in the Plan and subsequently becomes an associate or staff attorney shall be ineligible to participate in the Plan as of the date he is first classified as an associate or staff attomey.
Notwithstanding anything in this Plan to the coutrmy, individuals who are providing services on the premises of the Employer pursuant to an agreement betweeu the Employer and the Pitney Bowes (hereinafter referred to as 'NewCo') shall not be eligible to participate in the Plan. Any such individual who was formerly an Employee of the Employer and formerly an active Palticipant in the Plan shall become an inactive Pmticipant in the Plan after his termination of employment with the Employer and subsequent employment of NewCo. The Participant's Account of any such inactive Participants shall continue to be maintained in the Plan but shall become fully vested upon the date of their employment with NewCo and shall not share in any allocation of contributions or forfeitures under the Plan attributable to services performed pursuant to the agreement between the Employer and NewCo.
Employees who are Leased Employees within the meaning of Code Sections 414(n)(2) and 414(0 )(2) shall not be eligible to palticipate in this Plan.
Employees who are classified as either 'leased employees' or 'independent contractors' by the Employer shall not be eligible to participate in the Plan, regardless of how such individuals may be classified by the IRS or for common law purposes.
Employees whose employment is governed by the terms of a collective bargaining agreement between Employee representatives (within the meaning of Code Section 7701 (a)(46)) and the Employer under which retirement benefits were the subject of good faith bargaining between the parties will not be eligible to participate in this Plan unless such agreement expressly provides for coverage in this Plan.
Employees who are nonresident aliens (within the meaning of Code Section 7701 (b)(l)(B)) and who receive no earned income (within the meaning of Code Section 91 I(d)(2)) from the Employer which constitutes income from sources within the United States (within the meaning of Code Section 861(a)(3)) shall not be eligible to pmticipate in this Plan.
Employees of Affiliated Employers shall not be eligible to patticipate in this Plan unless such Affiliated Employers have specifically adopted this Plan in writing.
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1.17 "Employee" means any person who is employed by the Employer or Affiliated Employer, and excludes any person who is employed as an independent contractor. Employee shall include Leased Employees within the meaning of Code Sections 414(n)(2) and 414(0)(2) unless such Leased Employees are covered by a plan described in Code Section 414(n)(5) and such Leased Employees do not constitute more than 20% of the recipient's non-highly compensated work force.
1.18 "Employer" means Cozen O'Connor (formerly known as Cozen and O'Connor"), which is also the Employer-Sponsor and any successor which shall maintain this Plan; and any predecessor which has maintained this Plan. The Employer is a corporation, with principal offices in the Commonwealth of Pennsylvania. In addition, where appropriate, the term Employer shall include any Participating Employer (as defined in Section 10.1) which shall adopt this Plan.
1.19 "Excess Aggregate Contributions" means, with respect to any Plan Year, the excess of the aggregate amount of the Employer matching contributions made pursuant to Section 4.1 (b) and any qualified non-elective contributions or elective deferrals taken into account pursuant to Section 4.7(c) on behalf of Highly Compensated Palticipants for such Plan Year, over the maximum amount of such contributions permitted under the limitations of Section 4.7(a) (detelmined by hypothetically reducing contributions made on behalf of Highly Compensated Participants in order of the actual contribution ratios beginning with the highest of such ratios). Such determination shall be made after first taking into account corrections of any Excess Deferred Compensation pursuant to Section 4.2 and taking into account any adjustments of any Excess Contributions pursuant to Section 4.6.
1.20 "Excess Contributions" means, with respect to a Plan Year, the excess of Elective Contributions used to satisfy the "Actual Deferral Percentage" tests made on behalf of Highly Compensated Pmticipants for the Plan Ycar over the maximum amount of such contributions permitted under Section 4.5(a) (determined by hypothetically reducing contributions made on behalf of Highly Compensated Pmticipants in order of the actual deferral ratios beginning with the highest of such ratios). Excess Contributions shall be treated as an "annual addition" pursuant to Section 4.9(b).
1.21 "Excess Deferred Compensation" means, with respect to any taxable year of a Palticipant, the excess of the aggregate amount of such Participant's Deferred Compensation and the elective deferrals pursuant to Section 4.2(1) actually made on behalf of such Pmticipant for such taxable year, over the dollar limitation provided for in Code Section 402(g), which is incorporated herein by reference. Excess Deferred Compensation shall be treated as an "annual addition" pursuant to Section 4.9(b) when contributed to the Plan unless distributed to the affected Participant not later than the first April 15th following the close of the Pmticipant's taxable year. Additionally, for purposes of Sections 8.2 and 4.4(g), Excess Deferred Compensation shall continue to be treated as Employer contributions even if distributed pursuant to Section 4.2(1). However, Excess Deferred Compensation of Non-Highly Compensated Pmticipants is not taken into account for purposes of Section 4.5(a) to the extent such Excess Deferred Compensation occurs pursuant to Section 4.2(d).
1.22 "FiducialY" means any person who (a) exercises any discretionmy authority or discretionary control respecting management of the Plan or exercises any authority or control respecting management or disposition of its assets, (b) renders investment advice for a fee or other compensation, direct or indirect, with respect to any monies or other propelty of the Plan or
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has any authority or responsibility to do so, Of (c) has any discretionary authority or discretionalY responsibility in the administration of the Plan, including, but not limited to, the Tmstee, the Employer and its representative body, and the Administrator.
1.23 "Fiscal Year" means the Employer's accounting year.
1.24 "Forfeiture" means that portion of a Participant's Account that is not Vested, and occurs on the earlier of:
(a) the distribution of the entire Vested pOltion of the Participant's Account of a Fonner Participant who has severed employment with the Employer. For purposes of this provision, if the Former Participant has a Vested benefit of zero, then such Fonner Palticipant shall be deemed to have received a distribution of such Vested benefit as of the year in which the severance of employment occurs, or
(b) the last day of the Plan Year in which a Former Pmticipant who has severed employment with the Employer incurs five (5) consecutive I-Year Breaks in Service.
Regardless of the preceding provisions, if a Former Participant is eligible to share in the allocation of Employer contributions or Forfeitures in the year in which the Forfeiture would othelwise occur, then the Forfeiture will not occur until the end of the first Plan Year for which the Former Pmticipant is not eligible to share in the allocation of Employer contributions or Forfeitures. Fmthelmore, the term "Forfeiture" shall also include amounts deemed to be Forfeitures pursuant to any other provision of this Plan.
1.25 "Former Participant" means a person who has been a Palticipant, but who has ceased to be a Participant for any reason.
1.26 "415 Compensation" with respect to any Pmticipant means such Pmticipant's wages for the Plan Year within the meaning of Code Section 3401(a) (for the pmposes of income tax withholding at the source) but determined without regard to any mles that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Code Section 3401 (a)(2».
For purposes of this Section, the determination of "415 Compensation" shall include any elective deferral (as defined in Code Section 402(g)(3», and any amount which is contributed or deferred by the Employer at the election of the Participant and which is not includible in the gross income of the Palticipant by reason of Code Sections 125, 132(f)(4) or 457.
1.27 "414(s) Compensation" means any definition of compensation that satisfies the nondiscrimination requirements of Code Section 414(s) and the Regulations thereunder. The period for determining 414(s) Compensation must be either the Plan Year or the calendar year ending with or within the Plan Year. An Employer may fmther limit the period taken into account to that part of the Plan Year or calendar year in which an Employee was a Participant in the component of the Plan being tested. The period used to determine 414(s) Compensation must be applied uniformly to all Participants for the Plan Year.
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1.28 "Highly Compensated Employee" means an Employee described in Code Section 414(q) and the Regulations thereunder, and generally means any Employee who:
(a) was a "five percent owner" as defined in Section 1.33(c) at any time during the "determination year" or the "look-back year"; or
(b) for the "look-back year" had "415 Compensation" from the Employer in excess of$80,000 and was in the Top-Paid Group for the "look-back year." The $80,000 amount is adjusted at the same time and in the same manner as under Code Section 415(d), except that the base period is the calendar qualler ending September 30, 1996.
The "determination year" means the Plan Year for which testing is being performed, and the "look-back year" means the immediately preceding twelve (12) month period.
A highly compensated fonner Employee is based on the rules applicable to determining Highly Compensated Employee status as in effect for the "determination year," in accordance with Regulation IAI4(q)-IT, A-4 and IRS Notice 97-45 (or any superseding guidance).
In determining who is a Highly Compensated Employee, Employees who are non-resident aliens and who received no earned income (within the meaning of Code Section 91 I(d)(2)) from the Employer constituting United States source income within the meaning of Code Section 861(a)(3) shall not be treated as Employees. Additionally, all Affiliated Employers shall be taken into account as a single employer and Leased Employees within the meaning of Code Sections 414(n)(2) and 414(0)(2) shall be considered Employees unless such Leased Employees are covered by a plan described in Code Section 414(n)(5) and are not covered in any qualified plan maintained by the Employer. The exclusion of Leased Employees for this purpose shall be applied on a uniform and consistent basis for all of the Employer's retirement plans. Highly Compensated Fonner Employees shall be treated as Highly Compensated Employees without regard to whether they performed services during the "determination year."
1.29 "Highly Compensated Participant" means any Highly Compensated Employee who is eligible to pmticipate in the component of the Plan being tested.
1.30 "Hour of Service" means (I) each hour for which an Employee is directly or indirectly compensated or entitled to compensation by the Employer for the performance of duties (these hours will be credited to the Employee for the computation period in which the duties are performed); (2) each hour for which an Employee is directly or indirectly compensated or entitled to compensation by the Employer (irrespective of whether the employment relationship has terminated) for reasons other than performance of duties (such as vacation, holidays, sickness, jury duty, disability, lay-off, military duty or leave of absence) during the applicable computation period (these hours will be calculated and credited pursuant to Depmtment of Labor regulation 2530.200b-2 which is incorporated herein by reference); (3) each hour for which back pay is awarded or agreed to by the Employer without regard to mitigation of damages (these hours will be credited to the Employee for the computation period or periods to which the award or agreement pertains rather than the computation period in which
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the award, agreement or payment is made). The same Hours of Service shall not be credited both under (I) or (2), as the case may be, and under (3).
Notwithstanding (2) above, (i) no more than 50 I Hours of Selvice are required to be credited to an Employee on account of any single continuous period during which the Employee perfonlls no duties (whether or not such period occurs in a single computation period); (ii) an hour for which an Employee is directly or indirectly paid, or entitled to payment, on account of a period during which no duties are performed is not required to be credited to the Employee if such payment is made or due under a plan maintained solely for the purpose of complying with applicable worker's compensation, or unemployment compensation or disability insurance laws; and (iii) Hours of Service are not required to be credited for a payment which solely reimburses an Employee for medical or medically related expenses incurred by the Employee.
For purposes of (2) above, a payment shall be deemed to be made by or due from the Employer regardless of whether such payment is made by or due from the Employer directly, or indirectly through, among others, a tlUst fund, or insurer, to which the Employer contributes or pays premiums and regardless of whether contributions made or due to the tlUSt fund, insurer, or other entity are for the benefit of pallicular Employees or are on behalf of a group of Employees in the aggregate.
For purposes of this Section, Hours of Service will be credited for employment with other Affiliated Employers. The provisions of Department of Labor regulations 2530.200b-2(b) and (c) are incorporated herein by reference.
With respect to any Plan Year for which an Employee's Hours of Service cannot be accurately determined from the Employer's records, Employees shall be credited with selvice under the' equivalencies based on periods of employment' method set for the Depaltment of Labor regulation 2530.200b-3(e)(ii). Pursuant to such method, for each two weeks of employment during which the Employee would be required to be credited with at least one Hour of Service under the provisions set forth in this Section 1.28, the Employee shall be credited with 90 Hours of Service.
1.31 "Income" means the income or losses allocable to "excess amounts" which shall equal the allocable gain or loss for the "applicable computation period". The income allocable to "excess amounts" for the "applicable computation period" is determined by multiplying the income for the "applicable computation period" by a fraction. The numerator of the fraction is the "excess amount" for the "applicable computation period." The denominator of the fraction is the total "account balance" attributable to "Employer contributions" as of the end of the "applicable computation period", reduced by the gain allocable to such total amount for the "applicable computation period" and increased by the loss allocable to such total amount for the "applicable computation period". The provisions of this Section shall be applied:
(a) For purposes of Section 4.2(1), by substituting:
(I) "Excess Deferred Compensation" for "excess amounts";
(2) "taxable year of the Participant" for "applicable computation period";
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(3) "DefelTed Compensation" for "Employer contributions"; and
(4) "Participant's Elective Account" for "account balance."
(b) For purposes of Section 4.6(a), by substituting:
(I) "Excess Contributions" for "excess amounts";
(2) "Plan Year" for "applicable computation period";
(3) "Elective Contributions" for "Employer contributions"; and
(4) "Pmticipant's Elective Account" for "account balance."
(c) For purposes of Section 4.8(a), by substituting:
(I) "Excess Aggregate Contributions" for "excess amounts";
(2) "Plan Year" for "applicable computation period";
(3) "Employer matching contributions made pursuant to Section 4.1 (b) and any qualified non-elective contributions or elective deferrals taken into account pursuant to Section 4.7(c)" for "Employer contributions"; and
(4) "Participant's Account" for "account balance."
Income allocable to any distribution of Excess Deferred Compensation on or before the last day of the taxable year of the Participant shall be calculated from the first day of the taxable year of the Pmticipant to the date on which the distribution is made pursuant to either the "fractional method" or the "safe harbor method." Under such "safe harbor method," allocable Income for such period shall be deemed to equal ten percent (10%) of the Income allocable to such Excess Deferred Compensation multiplied by the number of calendar months in such period. For pUlposes of determining the number of calendar months in such period, a distribution occurring on or before the fifteenth day of the month shall be treated as having been made on the last day of the preceding month and a distribution occurring after such fifteenth day shall be treated as having been made on the first day of the next subsequent month.
1.32 "Investment Manager" means an entity that (a) has the power to manage, acquire, or dispose of Plan assets and (b) acknowledges fiduciary responsibility to the Plan in writing. Such entity must be a person, finn, or cOlporation registered as an investment adviser under the Investment Advisers Act of 1940, a bank, or an insurance company.
1.33 "Key Employee" means Key employee means any Employee or fonner Employee (including any deceased Employee) who at any time during the Plan Year that includes the determination date was an otlicer of the Employer having "415 Compensation" greater than $130,000 (as adjusted under Code Section 4I6(i)(l) for Plan Years beginning after December 31, 2002), a 5-percent owner of the Employer, or a I-percent owner of the Employer having "415 Compensation" of more than $150,000. The determination of who is a key employee will be made in accordance with Code Section 4 I6(i)(I) and the applicable regulations and other
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guidance of general applicability issued thereunder.

For purposes of this Section, the determination of "415 Compensation" shall be made by including amounts which are contributed by the Employer pursuant to a salary reduction agreement and which are not includible in the gross income of the Participant under Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(l)(B), 403(b) or 457(b), and Employee contributions described in Code Section 414(h)(2) that are treated as Employer contributions.

1.34 "Late Retirement Date" means the first day of the month coinciding with or next following a Participant's actual Retirement Date after having reached NOlmal Retirement Date.

1.35 "Leased Employee" means any person (other than an Employee of the recipient Employer) who pursuant to an agreement between the recipient Employer and any other person or entity ("leasing organization") has performed services for the recipient (or for the recipient and related persons determined in accordance with Code Section 414(n)(6» on a substantially full time basis for a period of at least one year, and such services are performed under primary direction or control by the recipient Employer. Contributions or benefits provided a Leased Employee by the leasing organization which are attributable to services performed for the recipient Employer shall be treated as provided by the recipient Employer. Furthelmore, Compensation for a Leased Employee shall only include Compensation from the leasing organization that is attributable to services performed for the recipient Employer. A Leased Employee shall not be considered an Employee of the recipient Employer:

(a) providing:

if such employee is covered by a money purchase pension plan

(1) a nonintegrated employer contribution rate of at least 10% of compensation, as defined in Code Section 415(c)(3);

(2) immediate participation;

(3) full and immediate vesting; and

(b) if Leased Employees do not constitute more than 20% of the recipient Employer's nonhighly compensated work force.

1.36 "Non-Elective Contribution" means the Employer contributions to the Plan excluding, however, contributions made pursuant to the Participant's deferral election provided for in Section 4.2 and any Qualified Non-Elective Contribution used in the "Actual Deferral Percentage" tests.

1.37 "Non-Highly Compensated Participant" means any Participant who is not a Highly Compensated Employee. However, for purposes of Section 4.5(a) and Section 4.6, if the prior year testing method is used, a Non-Highly Compensated PaI1icipant shall be determined using the definition of Highly Compensated Employee in effect for the preceding Plan Year.

1.38 "Non-Key Employee" means any Employee or former Employee (and such Employee's or former Employee's Beneficiaries) who is not, and has never been a Key Employee.

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1.39 "Normal Retirement Age" means the earlier of (i) a Patticipant's 60th birthday, or (ii) the Palticipant's 55th bilthday and his completion of 20 Years of Service. A Participant shall become fully Vested in the Participant's Account upon attaining Normal Retirement Age while actively employed.
1.40 "Normal Retirement Date" means the first day of the month coinciding with or next following the Participant's Normal Retirement Age.
1.41 "I-Year Break in Service" means the applicable computation period during which an Employee has not completed more than 500 Hours of Service with the Employer. Further, solely for the purpose of determining whether a Patticipant has incurred a I-Year Break in Service, Hours of Service shall be recognized for "authorized leaves of absence" and "maternity and paternity leaves of absence." Years of Service and I-Year Breaks in Service shall be measured on the same computation period.
"Authorized leave of absence" means an unpaid, temporary cessation from active employment with the Employer pursuant to an established nondiscriminatory policy, whether occasioned by illness, military service, or any other reason.
A "maternity or paternity leave of absence" means an absence from work for any period by reason of the Employee's pregnancy, birth of the Employee's child, placement of a child with the Employee in connection with the adoption of such child, or any absence for the purpose of caring for such child for a period immediately following such birth or placement. For this pUipose, Hours of Service shall be credited for the computation period in which the absence from work begins, only if credit therefore is necessaty to prevent the Employee from incurring a I-Year Break in Service, or, in any other case, in the immediately following computation period. The Hours of Service credited for a "maternity or paternity leave of absence" shall be those which would normally have been credited but for such absence, or, in any case in which the Administrator is unable to determine such hours normally credited, eight (8) Hours of Service per day. The total Hours of Service required to be credited for a "maternity or paternity leave of absence" shall not exceed the number of Hours of Service needed to prevent the Employee from incurring a I-Year Break in Service.
1.42 "Patticipant" means any Eligible Employee who patticipates in the Plan and has not for any reason become ineligible to patticipate nllther in the Plan.
1.43 "Participant Direction Procedures" means such instructions, guidelines or policies, the terms of which are incorporated herein, as shall be established pursuant to Section 4.12 and observed by the Administrator and applied and provided to Participants who have Participant Directed Accounts.
1.44 "Participant's Account" means the account established and maintained by the Administrator for each Patticipant witb respect to such Palticipant's total interest in the Plan and Trust resulting from the Employer Non-Elective Contributions.
A separate accounting shall be maintained with respect to that portion of the Palticipant's Account attributable to Employer matching contributions made pursuant to Section 4.1 (b), Employer discretionary contributions made pursuant to Section 4.1 (d) and any Employer Qualified Non-Elective Contributions.
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1.45 "Participant's Combined Account" means the total aggregate amount of each Participant's Elective Account and Participant's Account.
1.46 "Participant's Directed Account" means that pOition of a Patticipant's interest in the Plan with respect to which the Participant has directed the investment in accordance with the Participant Direction Procedure.
1.47 "Participant's Elective Account" means the account established and maintained by the Administrator for each Participant with respect to the Palticipant's total interest in the Plan and Ttust resulting from the Employer Elective Contributions used to satisfy the "Actual Deferral Percentage" tests. A separate accounting shall be maintained with respect to that pOition of the Patticipant's Elective Account attributable to such Elective Contributions pursuant to Section 4.2 and any Employer Qualified Non-Elective Contributions.
1.48 "Participant's Transfer/Rollover Account" means the account established and maintained by the Administrator for each Palticipant with respect to the Participant's total interest in the Plan resulting from amounts transferred to this Plan from a direct plan-to-plan transfer and/or with respect to such Participant's interest in the Plan resulting from amounts transferred from another qualified plan or "conduit" Individual Retirement Account in accordance with Section 4.11.
A separate accounting shall be maintained with respect to that portion of the Participant's Transfer/Rollover Account attributable to transfers (within the meaning of Code Section 414(1» and "rollovers."
1.49 "Plan" means this insltument, including all amendments thereto.
1.50 "Plan Year" means the Plan's accounting year of twelve (12) months commencing on January I of each year and ending the following December 31.
1.51 "Pre-Retirement Survivor Annuity" means an immediate annuity for the life of the Pmticipant's Spouse, the payments under which must be equal to the benefit which can be purchased with 50% of the accounts ofa Participant.
A propOitionate share of each of the Pmticipant's accounts shall be used to provide the Pre-Retirement Survivor Annuity.
1.52 "Qualified Non-Elective Contribution" means any Employer contributions made pursuant to Section 4.1 (c) and Section 4.6(b) and Section 4.8(f). Such contributions shall be considered an Elective Contribution for the purposes of the Plan and may be used to satisfy the "Actual Deferral Percentage" tests or the "Actual Contribution Percentage" tests.
1.53 "Regulation" means the Income Tax Regulations as promulgated by the Secretary of the Treasury or a delegate of the Secretary of the Treasuty, and as amended from time to time.
1.54 "Retired Pmticipant" means a person who has been a Participant, but who has become entitled to retirement benefits under the Plan.
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1.55 "Retirement Date" means the date as of which a Palticipant retires for reasons other than Total and Permanent Disability, whether such retirement occurs on a Participant's Normal Retirement Date or Late Retirement Date (see Section 6.1).

1.55A "Spouse" means the person to whom the Participant has been married throughout the one-year period ending on the earlier of (I) the Participant's annuity starting date or (2) the date of the Participant's death. The Plan Administrator may rely on the Participant's written statement regarding such Participant's marital status.

1.56 "Terminated Participant" means a person who has been a Pmticipant, but whose employment has been tenninated other than by death, Total and Permanent Disability or retirement.

1.57 "Top Heavy Plan" means a plan described in Section 8.2(a).

1.58 "Top Heavy Plan Year" means a Plan Year during which the Plan is a Top Heavy Plan.

1.59 "Top-Paid Group" means the top 20 percent of Employees who perfonned services for the Employer during the applicable year, ranked according to the amount of "415 Compensation" received from the Employer during such year. All Affiliated Employers shall be taken into account as a single employer, and Leased Employees within the meaning of Code Sections 414(n)(2) and 414(0)(2) shall be considered Employees unless such Leased Employees are covered by a plan described in Code Section 414(n)(5) and are not covered in any qualified plan maintained by the Employer. Employees who are non-resident aliens who received no eamed income (within the meaning of Code Section 91 I(d)(2)) from the Employer constituting United States source income within the meaning of Code Section 861 (a)(3) shall not be treated as Employees. Furthermore, for the purpose of determining the number of active Employees in any year, the following additional Employees shall also be excluded, however, such Employees shall still be considered for the purpose of identifying the particular Employees in the Top-Paid Group:

(a) Employees with less than six (6) months of service;

(b) Employees who normally work less than 17 112 hours per week;

(c) year; and

Employees who normally work less than six (6) months during a

(d) Employees who have not yet attained age twenty-one (21).

In addition, if 90 percent or more of the Employees of the Employer are covered under agreements the Secretary of Labor finds to be collective bargaining agreements between Employee representatives and the Employer, and the Plan covers only Employees who are not covered under such agreements, then Employees covered by such agreements shall be excluded from both the total number of active Employees as well as from the identification of particular Employees in the Top-Paid Group.

The foregoing exclusions set forth in this Section shall be applied on a uniform and consistent basis for all purposes for which the Code Section 414(q) definition is applicable.

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1.60 "Total and Permanent Disability" means a physical or mental condition of a Participant resulting fi'mn bodily injury, disease, or mental disorder which renders him permanently incapable of continuing his usual and customary employment with the Employer. The disability of a Pallicipant shall be determined by a licensed physician chosen by the Administrator. The detemlination shall be applied uniformly to all Participants. No determination of Total Disability shall be made if the Participant fails to provide such evidence as is required by the Plan Administrator andlor fails to submit to examination by the medical practitioner(s) selected by the Plan Administrator.
l.61 "Trustee" means the person or entity named as trustee herein or in any separate trust forming a part of this Plan, and any successors.
l.62 "Trust Fund" means the assets of the Plan and Trust as the same shall exist from time to time.
l.63 "Valuation Date" means the Anniversaty Date and may include any other date or dates deemed necessmy or appropriate by the Administrator for the valuation of the Participants' accounts during the Plan Year, which may include any day that the Trustee, any transfer agent appointed by the Trustee or the Employer or any stock exchange used by such agent, are open for business. Participant Directed Accounts shall have a daily Valuation Date.
1.64 "Vested" means the nonforfeitable portion of any account maintained on behalf of a Palticipant.
l.65 "Year of Service" means the computation period of twelve (12) consecutive months, herein set f(llth, during which an Employee has at least 1000 Hours of Service.
For vesting purposes, the computation periods shall be the Plan Year, including periods prior to the Effective Date of the Plan.
The computation period shall be the Plan Year if not otherwise set forth herein.
Notwithstanding the foregoing, for any short Plan Year, the determination of whether an Employee has completed a Year of Service shall be made in accordance with Depatlment of Labor regulation 2530.203-2(c). However, in determining whether an Employee has completed a Year of Service for benefit accrual purposes in the short Plan Year, the number of the Hours of Service required shall be proportionately reduced based on the number of full months in the short Plan Year.
Years of Service with any Affiliated Employer shall be recognized, but only during the period of affiliation.
1.6SA "Years of Service" shall also include prior service during the periods of employment described below:
(i) Notwithstanding anything contained herein to the contrary, only for purposes of eligibility to participate in the Salary Reduction Election pursuant to Section 4.2 of this Plan, an individual who became an Eligible Employee between
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September 1, 1994, and August 31, 1995, inclusive, who was an employee of Wolf, Block, Schorr and Solis-Cohen immediately prior to becoming an Eligible Employee shall be credited with years of service with Wolf, Block, Schorr and Solis-Cohen for this purpose.
(ii) Years of selvice with Cozen, Begier & O'Connor shall be recognized, for purposes of detclmining eligibility to pmticipate, vesting, and determining the discretionmy Employer contribution for a Plan Year of reference.
(iii) Notwithstanding anything in this Plan to the contrary, effective for any Plan Year beginning after December 31, 1995, an individual who became an Eligible Employee and was an employee or a pattner of a law firm or goverrunental agency or any other entity in which the individual was employed in the practice of law or as in-house legal counsel to that entity or otherwise performed legalrelated duties for such entity immediately or within a reasonable period of time prior to becoming an Eligible Employee shall be credited with the years of selvice with such firm for purposes of detelmining their vesting percentage, Years of Service for eligibility for Normal Retirement, and in determining whether such Participant has completed 1000 Hours of Service in order to be eligible for an Employer discretionalY contribution with respect to their first year of patticipation.
ARTICLE II ADMINISTRATION
2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER
(a) In addition to the general powers and responsibilities otherwise provided for in this Plan, the Employer shall be empowered to appoint and remove the Trustee and the Administrator from time to time as it deems necessary for the proper administration of the Plan to ensure that the Plan is being operated for the exclusive benefit ofthe Pmticipants and their Beneficiaries in accordance with the terms of the Plan, the Code, and the Act. The Employer may appoint counsel, specialists, advisers, agents (including any nonfiduciaty agent) and other persons as the Employer deems necessary or desirable in connection with the exercise of its fiducimy duties under this Plan. The Employer may compensate such agents or advisers from the assets of the Plan as fiducialY expenses (but not including any business (settlor) expenses of the Employer), to the extent not paid by the Employer.
(b) The Employer may, by written agreement or designation, appoint at its option an Investment Manager (qualified under the Investment Company Act of 1940 as amended), investment adviser, or other agent to provide direction to the Trustee with respect to any or all of the Plan assets. Such appointment shall be given by the Employer in writing in a form acceptable to the Trustee and shall specifically identify the Plan assets with respect to which the Investment Manager or other agent shall have authority to direct the investment.
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ARTICLE V VALUATIONS
5.1 VALUATION OF THE TRUST FUND
The Administrator shall direct the Trustee, as of each Valuation Date, to determine the net wOlth of the assets comprising the Trust Fund as it exists on the Valuation Date. In detennining such net worth, the Trustee shall value the assets comprising the Trust Fund at their fair market value (or their contractual value in the case of a Contract or Policy) as of the Valuation Date and shall deduct all expenses for which the Trustee has not yet obtained reimbursement from the Employer or the Trust Fund. The Trustee may update the value of any shares held in the Participant Directed Account by reference to the number of shares held by that Participant, priced at the market value as of the Valuation Date.
5.2 METHOD OF VALUATION
In determining the fair market value of securities held in the Trust Fund which are listed on a registered stock exchange, the Administrator shall direct the Trustee to value the same at the prices they were last traded on such exchange preceding the close of business on the Valuation Date. If such securities were not traded on the Valuation Date, or if the exchange on which they are traded was not open for business on the Valuation Date, then the securities shall be valued at the prices at which they were last traded prior to the Valuation Date. Any unlisted security held in the Trust Fund shall be valued at its bid price next preceding the close of business on the Valuation Date, which bid price shall be obtained from a registered broker or an investment banker. In determining the fair market value of assets other than securities for which trading or bid prices can be obtained, the Trustee may appraise such assets itself, or in its discretion, employ one or more appraisers for that purpose and rely on the values established by such appraiser or appraisers.
ARTICLE VI DETERMINATION AND DISTRIBUTION OF BENEFITS
6.1 DETERMINATION OF BENEFITS UPON RETIREMENT
EvelY Participant may terminate employment with the Employer and retire for the purposes hereof on the Participant's Normal Retirement Date. However, a Participant may postpone the termination of employment with the Employer to a later date, in which event the participation of such Pmticipant in the Plan, including the right to receive allocations pursuant to Section 4.4, shall continue until such Palticipant's Late Retirement Date. Upon Pmticipant's actual Retirement Date, or as soon thereafter as is practicable, the Trustee shall distribute all amounts credited to such Palticipant's Account in accordance with Section 6.5. A Pmticipant who remains employed beyond his Normal Retirement Date may elect an 'in-service distribution of part or all of his Vested portion of his Combined Account; any such distribution shall be in a manner which is consistent with and satisfies the provisions of Section 6.5, including, but not limited to, all notice and consent requirements of Code Sections 417 and 411(a)(1I) and Regulations thereunder.
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6.2 DETERMINATION OF BENEFITS UPON DEATH
(a) Upon the death of a Participant before the Palticipant's Retirement Date or other termination of employment, all amounts credited to such Pmticipant's Combined Account shall become fully Vested. The Administrator shall direct the Trustee, in accordance with the provisions of Sections 6.6 and 6.7, to distribute the value of the deceased Palticipant's accounts to the Participant's Beneficiary.
(b) Upon the death of a Former Participant, the Administrator shall direct the Trustee, in accordance with the provisions of Sections 6.6 and 6.7, to distribute any remaining Vested amounts credited to the accounts of a deceased Former Pmticipant to such Former Participant's Beneficimy.
(c) Any security interest held by the Plan by reason of an outstanding loan to the Participant or Fonner Pmticipant shall be taken into account in determining the amount of the Pre-Retirement Survivor Annuity.
(d) The Administrator may require such proper proof of death and such evidence of the right of any person to receive payment of the value of the account of a deceased Pmticipant or Former Participant as the Administrator may deem desirable. The Administrator's determination of death and of the right of any person to receive payment shall be conclusive.
(e) Unless otherwise elected in the manner prescribed in Section 6.6, the Participant's surviving Spouse shall receive a death benefit equal to the Pre-Retirement Survivor Annuity. The Palticipant may designate a Beneficiary other than the Spouse to receive that pOltion of the Participant's death benefit which is not payable as a Pre-Retirement Survivor Annuity. The Pmticipant may also designate a Beneficimy other than the Participant's Spouse to receive the Pre-Retirement Survivor Annuity but only if:
(1) the Participant and the Participant's Spouse have validly waived the Pre-Retirement SUlvivor Annuity in the manner prescribed in Section 6.6, and the Spouse has waived the right to be the Participant's BeneficialY, or
(2) the Participant is legally separated or has been abandoned (within the meaning ofiocallaw) and the Participant has a COUlt order to such effect (and there is no "qualified domestic relations order" as defined in Code Section 414(p) which provides otherwise), or
(3) the Pmticipant has no Spouse, or
(4) the Spouse cannot be located.
In such event, the designation of a Beneficiary shall be made on a form satisfactory to the Administrator. A Palticipant may at any time revoke a designation of a BeneficialY or change a Beneficiary by filing written (or in such other form as permitted by the Internal Revenue Service) notice of such revocation or change with the Administrator. However, the Participant's Spouse
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must again consent in writing (or in such other form as permitted by the Internal Revenue Service) to any change in Beneficiary of that pOltion of the death benefit that would otherwise be paid as a Pre-Retirement Survivor Armuity unless the original consent acknowledged that the Spouse had the right to limit consent only to a specific Beneficiary and that the Spouse voluntarily elected to relinquish such right. A Pmticipant may, at any time, designate a Beneficiary to receive death benefits that are in excess of the Pre-Retirement Survivor Annuity without the waiver or consent of the Patticipant's Spouse.
(f) In the event no valid designation of Beneficiaty exists, or if the BeneficialY is not alive at the time of the Participant's death, the death benefit will be paid in the following order of priority to:
(l) the Palticipant's surviving Spouse;
(2) the Participant's children, including adopted children, per stirpes;
(3) the Participant's surviving parents, in equal shares; or
(4) the Participant's estate.
If the Beneficiaty does not predecease the Participant, but dies prior to distribution of the death benefit, the death benefit will be paid to the Beneficiary'S estate.
(g) Notwithstanding anything in this Section to the contraty, if a Patticipant has designated the Spouse as a Beneficimy, then a divorce decree or a legal separation that relates to such Spouse shall revoke the Palticipant's designation of the Spouse as a Beneficiary unless the decree or a qualified domestic relations order (within the meaning of Code Section 414(p)) provides otherwise.
6.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY
In the event of a Patticipant's Total and Permanent Disability prior to the Participant's Retirement Date or other termination of employment, all amounts credited to such Participant's Combined Account shall become fully Vested. In the event of a Participant's Total and Pelmanent Disability, the Administrator, in accordance with the provisions of Sections 6.5 and 6.7, shall direct the distribution to such Patticipant of all Vested amounts credited to such Patticipant's Combined Account.
6.4 DETERMINATION OF BENEFITS UPON TERMINATION
(a) If a Participant's employment with the Employer is terminated for any reason other than death, Total and Permanent Disability or retirement, then such Patticipant shall be entitled to such benefits as are provided hereinafter pursuant to this Section 6.4.
Distribution of the funds due to a Terminated Participant shall be made on the occurrence of an event which would result in the distribution had the
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Terminated Participant remained in the employ of the Employer (upon the Participant's death, Total and Permanent Disability or Normal Retirement). However, at the election of the Participant, the Administrator shall direct the Trustee that the entire Vested pOltion of the Terminated Pmticipant's Combined Account be payable to such Terminated Participant. Any distribution under this paragraph shall be made in a manner which is consistent with and satisfies the provisions of Section 6.5, including, but not limited to, all notice and consent requirements of Code Sections 417 and 41 I(a)(1 I) and the Regulations thereunder.

If the value of a Terminated Palticipant's Vested benefit derived from Employer and Employee contributions does not exceed $5,000 ($3,500 for Plan Years beginning prior to August 6, 1997), then the Administrator shall direct the Trustee to cause the entire Vested benefit to be paid to such Pmticipant in a single lump sum. Notwithstanding the foregoing, however, effective March 28, 2005, the preceding sentence shall be disregarded. Effective as of such date, there shall be no "mandatory cash out provisions" in effect.

For purposes of this Section 6.4(a), the value of a Participant's nonforfeitable account balance shall be determined without regard to that pOltion of the account balance that is attributable to rollover contributions (and earnings allocable thereto) within the meaning of Code Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16). If the value of the Participant's nonforfeitable account balance as so determined is $5,000 or less, the Plan shall immediately distribute the Pmticipant's entire nonforfeitable account balance.

(b) A Pmticipant shall become fully Vested in the Participant's Account attributable to Employer matching contributions made pursuant to Section 4.1 (b) immediately upon entry into the Plan.

(c) The Vested portion of any Participant's Account attributable to Employer discretionary contributions made pursuant to Section 4.1(d) shall be a percentage of the total of such amount credited to the Participant's Account determined on the basis of the Pmticipant's number of Years of Service according to the following schedule:

Vesting Schedule

Employer Discretionary Profit Sharing Contributions

Years of Service

Percentage

Less than 2 2 3 4 5 6

0% 20% 40% 60% 80% 100%

Effective January I, 1998, notwithstanding the above-described schedule, the Participant's Account of any individual providing services on the premises of the Employer pursuant to an agreement between the Employer and NewCo shall

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be 100% vested. As noted in Section 1.12, such individuals are not eligible to participate in the Plan, but may have Participant's Accounts in the Plan from a prior period of participation, which shall be 100% vested pursuant to the provisions of this Section 6.4(b).
(d) Notwithstanding the vesting schedule above, the Vested percentage of a Participant's Account shall not be less than the Vested percentage attained as of the later of the effective date 01' adoption date of this amendment and restatement.
(e) Notwithstanding the vesting schedule above, upon the complete discontinuance of the Employer contributions to the Plan 01' upon any full 01' paltial termination of the Plan, all amounts then credited to the account of any affected Patticipant shall become 100% Vested and shall not thereafter be subject to Forfeiture.
(f) The computation of a Participant's nonforfeitable percentage of such Participant's interest in the Plan shall not be reduced as the result of any direct 01' indirect amendment to this Plan. In the event that the Plan is amended to change 01' modifY any vesting schedule, 01' if the Plan is amended in any way that directly 01' indirectly affects the computation of the Patticipant's nonforfeitable percentage, 01' if the Plan is deemed amended by an automatic change to a top heavy vesting schedule, then each Participant with at least three (3) Years of Service as of the expiration date of the election period may elect to have such Patticipant's nonforfeitable percentage computed under the Plan without regard to such amendment or change. If a Pmticipant fails to make such election, then such Participant shall be subject to the new vesting schedule. The Pmticipant's election period shall commence on the adoption date of the amendment and shall end sixty (60) days after the latest of:
(I) the adoption date of the amendment,
(2) the effective date ofthc amendment, 01'
(3) the date the Participant rcceives written notice of the amendment from the Employer or Administrator.
6.5 DISTRIBUTION OF BENEFITS
(a)(I) Unless otherwise elected as provided below, a P81ticipant who is married on the Annuity Statting Date and who does not die before the Annuity Statting Date shall receive the value of all such Patticipant's benefits in the fOlm of a joint and survivor annuity. The joint and survivor annuity is an annuity that commences immediately and shall be equal in value to a single life annuity. Such joint and survivor benefits following the Participant's death shall continue to the Spouse during the Spouse's lifetime at a rate equal to fifty percent (50%) of the rate at which such benefits were payable to the Patticipant. This joint and fifty percent (50%) survivor annuity shall be considered the designated qualified joint and survivor annuity and automatic for111 of payment for the purposes of this Plan. However, the Pmticipant may, without spousal consent, elect to receive a smallcr
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annuity benefit with continuation of payments to the Spouse at a rate of seventy-five percent (75%) or one-hundred percent (100%) of the rate payable to a Pmticipant during the Pmticipant's lifetime, which alternative joint and survivor annuity shall be equal in value to the automatic joint and fifty percent (50%) survivor annuity. An unmarried Pmticipant shall receive the value of such Participant's benefit in the form of a life annuity. Such unmarried Pmticipant, however, may elect in writing to waive the life annuity. The election must comply with the provisions of this Section as ifit were an election to waive the joint and survivor annuity by a married Participant, but without the spousal consent requirement. The Participant may elect to have any annuity provided for in this Section distributed upon the attainment of the "earliest retirement age" under the Plan. The "earliest retirement age" is the earliest date on which, under the Plan, the Pmticipant could elect to receive retirement benefits.
(2) Any election to waive the joint and survivor annuity must be made by the Participant in writing (or in such other form as permitted by the Internal Revenue Selvice) during the election period and be consented to in writing (or in such other form as permitted by the Internal Revenue Service) by the Palticipant's Spouse. If the Spouse is legally incompetent to give consent, the Spouse's legal guardian, even if such guardian is the Pmticipant, may give consent. Such election shall designate a BeneficialY (or a form of benefits) that may not be changed without spousal consent (unless the consent ofthe Spouse expressly pennits designations by the Palticipant without the requirement of further consent by the Spouse). Such Spouse's consent shall be irrevocable and must acknowledge the effect of such election and be witnessed by a Plan representative or a notary public. Such consent shall not be required if it is established to the satisfaction of the Administrator that the required consent cannot be obtained because there is no Spouse, the Spouse cannot be located, or other circumstances that may be prescribed by Regulations. The election made by the Participant and consented to by such Palticipant's Spouse may be revoked by the Pmticipant in writing (or in such other form as permitted by the Internal Revenue Selvice) without the consent ofthe Spouse at any time during the election period. A revocation of a prior election shall cause the Pmticipant's benefits to be distributed as a joint and sUlvivor annuity. The number of revocations shall not be limited. Any new election must comply with the requirements of this paragraph.. A former Spouse's waiver shall not be binding on a new Spouse.
(3) The election period to waive the joint and survivor annuity shall be the ninety (90) day period ending on the Annuity Stmting Date. Notwithstanding the foregoing, effective .Tanumy I, 2008, the election period shall be the one hundred eighty (180) day period ending on the Annuity Starting Date.
(4) For purposes o[this Section, Spouse or surviving Spouse means the Spouse or sUlviving Spouse of the Pmticipant, provided that a fonner Spouse will be treated as the Spouse or sUlviving Spouse and a current Spouse will not be treated as the Spouse or surviving Spouse to the extent provided under a qualified domestic relations order as described in Code Section 414(p).
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(5) With regard to the election, the Administrator shall provide to the Participant no less than thirty (30) days and no more than ninety (90) days before the Annuity Starting Date a written (or in such other form as permitted by the Internal Revenue Service) explanation of:
(i) the terms and conditions of the joint and survivor annuity,
(ii) the Pmticipant's right to make, and the effect of, an election to waive the joint and survivor annuity,
(iii) the right of the Pmticipant's Spouse to consent to any election to waive the joint and survivor annuity, and
(iv) the right of the Participant to revoke such election, and the effect of such revocation.
(v) Notwithstanding the foregoing, effective January 1,2008, the election period shall be the one hundred eighty (180) day period ending on the Annuity Stmting Date.
(6) Notwithstanding the above, if the Pmticipant elects (with spousal consent, if applicable) to waive the requirement that the explanation be provided at least thirty (30) days before the Annuity Starting Date, the election period shall be extended to the thirtieth (30th) day after the date on which such explanation is provided to the Palticipant, unless the thirty (30) day period is waived pursuant to the following provisions.
Any distribution provided for in this Section 6.5 may commence less than thirty (30) days after the notice required by Code Section 417(a)(3) is given provided the following requirements are satisfied:
(i) the Administrator clearly informs the Pmticipant that the Participant has a right to a period of thirty (30) days after receiving the notice to consider whether to waive the joint and sUlvivor annuity and to elect (with spousal consent) to a form of distribution other than a joint and survivor annuity;
(ii) the Participant is pennitted to revoke an affirmative distribution election at least until the Annuity Stalting Date, or, if later, at any time prior to the expiration of the seven (7) day period that begins the day after the explanation of the joint and survivor annuity is provided to the Pmticipant;
(iii) the Annuity Stmting Date is after the date that the explanation of the joint and survivor annuity is provided to the Participant. However, the Annuity Starting Date may be before the date that any affirmative distribution election is made by the
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Patticipant and before the date that the distribution is permitted to commence under (iv) below; and
(iv) distribution in accordance with the affinnative election does not commence before the expiration of the seven (7) day period that begins the day after the explanation of the joint and survivor annuity is provided to the Patticipant.
(b) In the event a married Patticipant duly elects pursuant to paragraph (a)(2) above not to receive benefits in the form ofajoint and survivor annuity, or if such Participant is not married, in the form of a life annuity, the Administrator, pursuant to the election of the Participant, shall direct the Trustee to distribute to a Palticipant or Beneficiary any amount to which the Patticipant or Beneficiaty is entitled under the Plan in one or more of the following methods:
(I) One lump-sum payment in cash.
(2) Payments over a period certain in monthly, quatterly, semiannual, or annual cash installments. In order to provide such installment payments, the Administrator may (A) segregate the aggregate amount thereof in a separate, federally insured savings account, celtificate of deposit in a bank or savings and loan association, money market certificate or other liquid short-term security or (B) purchase a nontransferable annuity contract for a term celtain (with no life contingencies) providing for such payment. The period over which such payment is to be made shall not extend beyond the Palticipant's life expectancy (or the life expectancy of the Participant and the Palticipant's designated BeneficialY).
(3) Purchase of or providing an annuity. However, such annuity may not be in any form that will provide for payments over a period extending beyond either the life of the Patticipant (or the lives of the Patticipant and the Patticipant's designated Beneficiary) or the life expectancy of the Participant (or the life expectancy of the Participant and the Participant's designated Beneficiary).
(c) The present value of a Pmticipant's joint and survivor annuity derived from Employer and Employee contributions may not be paid without the Participant's and the Pmticipant's Spouse's written (or in such form as permitted by the Intemal Revenue Service) consent if the value exceeds $5,000 ($3,500 for Plan Years beginning prior to August 6, 1997) and the benefit is "immediately distributable." However, spousal consent is not required if the distribution will be made in the form of a joint and survivor annuity and the benefit is "immediately distributable." A benefit is "illlinediateiy distributable" if any part of the benefit could be distributed to the Participant (or surviving Spouse) before the Patticipant attains (or would have attained if not deceased) the later of the Participant's Nonnal Retirement Age or age 62. Any consent required by this Section 6.5(c) must be obtained not more than ninety (90) days before commencement of the distribution and shall be made in a manner consistent with Section 6.5(a)(2). Notwithstanding the foregoing, effective JanuaIY 1,2008, the election period shall be the one hundred eighty (180) day period ending on the Annuity Statting Date.
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If the value of the Participant's benefit derived from Employer and Employee contributions does not exceed $5,000 ($3,500 for Plan Years beginning prior to August 6, 1997), then the Administrator shall direct the Trustee to immediately distribute such benefit in a lump sum without the Palticipant's and the Participant's Spouse's written consent. No distribution may be made under the preceding sentence after the Annuity Starting Date unless the Palticipant and the Participant's Spouse consent in writing (or in such form as permitted by the Intemal Revenue Service) to such distribution. Notwithstanding the foregoing, effective March 28, 2005, the preceding two sentences shall be disregarded, and the following shall apply: The present value of a Participant's joint and survivor annuity derived from Employer and Employee contributions may not be paid without the Participant's and the Participant's spouse's written consent (or in such form as permitted by the Internal Revenue Service.)
(d) The following rules will apply to the consent requirements set fmth in subsection (c):
(I) No consent shall be valid unless the Patticipant has received a general description of the material features and an explanation of the relative values of the optional forms of benefit available under the Plan that would satisfy the notice requirements of Code Section 417.
(2) The Participant must be informed of the light to defer receipt of the distribution. If a Participant fails to consent, it shall be deemed an election to defer the conunencement of payment of any benefit. However, any election to defer the receipt ofbenefits shall not apply with respect to distributions which are required under Section 6.5(e). Notwithstanding the foregoing, however, effective March 28, 2005, any distribution to a Patticipant shall require such Participant's consent.
(3) Notice of the rights specified under this paragraph shall be provided no less than thitty (30) days and no more than ninety (90) days before the Annuity Statting Date. Notwithstanding the foregoing, effective JanualY I, 2008, the election period shall be the one hundred eighty (180) day period ending on the Annuity Starting Date.
Notwithstanding the above, the Annuity Statting Date may be a date prior to the date the explanation is provided to the Patticipant if the distribution does not commence until at least thirty (30) days after such explanation is provided, subject to the waiver of the thilty (30) day period as provided for in Section 6.5(a)(6).
(4) Written (or such other form as permitted by the Intemal Revenue Service) consent of the Participant to the distribution must not be made before the Patticipant receives the notice and must not be made more than ninety (90) days before the Annuity Statting Date. Notwithstanding the foregoing, effective JanualY I, 2008, the election period shall be the one hundred eighty (180) day period ending on the Annuity Statting Date.
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(5) No consent shall be valid if a significant detriment is imposed under the Plan on any Pmticipant who does not consent to the distribution.
Any such distribution may commence less than thirty (30) days, subject to Section 6.5(a)(6), after the notice required under Regulation 1.411(a)-II(c) is given, provided that: (1) the Administrator clearly informs the Pmticipant that the Participant has a right to a period of at least thirty (30) days after receiving the notice to consider the decision of whether or not to elect a distribution (and, if applicable, a particular distribution option), and (2) the Palticipant, after receiving the notice, affirmatively elects a distribution.
(e) Notwithstanding any provision in the Plan to the contTmy, the distribution of a Pmticipant's benefits, whether under the Plan or through the purchase of an annuity contract, shall be made in accordance with the following requirements and shall othelwise comply with Code Section 401 (a)(9) and the Regulations thereunder (including Regulation 1.401(a)(9)-2), the provisions of which are incOlporated herein by reference:
(I) A Participant's benefits shall be distributed or must begin to be distributed not later than April 1st of the calendar year following the later of (i) the calendar year in which the Palticipant attains age 70 112 or (ii) the calendar year in which the Pmticipant retires, provided, however, that this clause (ii) shall not apply in the case of a Participant who is a "five (5) percent owner" at any time during the Plan Year ending with or within the calendar year in which such owner attains age 70 112. Such distributions shall be equal to or greater than any required distribution.
Altematively, distributions to a Pmticipant must begin no later than the applicable April 1st as determined under the preceding paragraph and must be made over the life of the Pmticipant (or the lives of the Participant and the Pmticipant's designated Beneficimy) or the life expectancy of the Pmticipant (or the life expectancies of the Pmticipant and the Pmticipant's designated Beneficimy) in accordance with Regulations.
(2) Distributions to a Pmticipant and the Pmticipant's Beneficiaries shall only be made in accordance with the incidental death benefit requirements of Code Section 401 (a)(9)(G) and the Regulations thereunder.
(f) For purposes of this Section, the life expectancy of a Participant and a Participant's Spouse (other than in the case of a life annuity) shall not be redetermined in accordance with Code Section 40 1(a)(9)(D). Life expectancy and joint and last survivor expectancy shall be computed using the retum multiples in Tables V and VI of Regulation 1.72-9.
(g) Subject to the Spouse's right of consent afforded under the Plan, the restrictions imposed by this Section shall not apply if a Pmticipant has, prior to January I, 1984, made a written designation to have retirement benefits paid in an altemative method acceptable under Code Section 401 (a)(9) as in effect prior to the enactment of the Tax Equity and Fiscal Responsibility Act of 1982.
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(h) All annuity Contracts under this Plan shall be non-transferable when distributed. Furthermore, the te1l11S of any annuity Contract purchased and distributed to a P31ticipant or Spouse shall comply with all of the requirements of the Plan.
(i) If a distribution is made to a P31iicipant who has not severed employment and who is not fully Vested in the P31ticipant's Account and the Participant may increase the Vested percentage in such account, then, at any relevant time the P31ticipant's Vested portion of the account will be equal to an amount ("X") detennined by the fonnula:
X equals P(AB plus D) - D
For purposes of applying the fonnula: P is the Vested percentage at the relevant time, AB is the account balance at the relevant time, and D is the amount of distribution.
(j) Notwithstanding anything in this Plan to the contrary, effective with the 2003 calendar year, the Minimum Distribution Requirements set fOlth in Article VI-A of this Plan shall apply.
6.6 DISTRlBUTION OF BENEFITS UPON DEATH
(a) Unless othelwise elected as provided below, a Vested Palticipant who dies before the Annuity Stalting Date and who has a surviving Spouse shall have the Pre-Retirement Survivor Annuity paid to the surviving Spouse. The Palticipant's Spouse may direct that payment of the Pre-Retirement Survivor Annuity commence within a reasonable period after the P31ticipant's death. If the Spouse does not so direct, payment of such benefit will commence at the time the Participant would have attained the later of Nonnal Retirement Age or age 62. However, the Spouse may elect a later commencement date. Any distribution to the Participant's Spouse shall be subject to the rules specified in Section 6.6(g).
(b) Any election to waive the Pre-Retirement Survivor Annuity before the Participant's death must be made by the P31ticipant in wtiting (or in such other fonn as permitted by the Internal Revenue Selvice) during the election period and shall require the Spouse's irrevocable consent in the same manner provided for in Section 6.5(a)(2). Further, the Spouse's consent must acknowledge the specific nonSpouse Beneficiary. Notwithstanding the foregoing, the nonSpouse Beneficiary need not be acknowledged, provided the consent of the Spouse acknowledges that the Spouse has the right to limit consent only to a specific Benetlciary and that the Spouse voluntarily elects to relinquish such right.
(c) The election period to waive the Pre-Retirement Survivor Annuity shall begin on the first day of the Plan Year in which the Particip3l1t attains age thilty-five (35) and end on the date ofthe P31ticipant's death. An earlier waiver (with spousal consent) may be made provided a written (or in such other form as permitted by the Internal Revenue Service) explanation of the Pre-Retirement Survivor Annuity is given to the P31ticipant and such waiver becomes invalid at the beginning
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of the Plan Year in which the Participant tums age thilty-five (35). In the event a Vested Patticipant separates fi'om service prior to the beginning ofthe election period, the election period shall begin on the date of such separation fi'om service.
(d) With regard to the election, the Administrator shall provide each Participant within the applicable period, with respect to such Palticipant (and consistent with Regulations), a written (or in such other fOlm as permitted by the Intemal Revenue Service) explanation of the Pre-Retirement Survivor Annuity containing comparable information to that required pursuant to Section 6.5(a)(5). For the purposes of this paragraph, the term "applicable period" means, with respect to a Patticipant, whichever of the following periods ends last:
(I) The period beginning with the first day of the Plan Year in which the Patticipant attains age thitty-two (32) and ending with the close ofthe Plan Year preceding the Plan Yeat· in which the Participant attains age thitty-five (35);
(2) A reasonable period after the individual becomes a Patticipant;
(3) A reasonable period ending after the Plan no longer fully subsidizes the cost of the Pre-Retirement Survivor Annuity with respect to the Patticipant;
(4) A reasonable period ending after Code Section 401 (a)(II) applies to the Patticipant; or
(5) A reasonable period after separation from service in the case of a Patticipant who separates before attaining age thilty-five (35). For this putpose, the Administrator must provide the explanation beginning one (I) year before the separation from service and ending one (I) year after such separation. If such a Patticipant thereafter retums to employment with the Employer, the applicable period for such Patticipant shall be redetennined.
For putposes of applying this Section 6.6(d), a reasonable period ending after the enumerated events described in paragraphs (2), (3) and (4) is the end of the two (2) year period beginning one (I) year prior to the date the applicable event occurs, and ending one (I) year after that date.
(e) If the present value of the Pre-Retirement Survivor Annuity derived from Employer and Employee contributions does not exceed $5,000 ($3,500 for Plan Years beginning prior to August 6, 1997), then the Administrator shall direct the immediate distribution of the present value of the Pre-Retirement Survivor Annuity to the Participant's Spouse. No distribution may be made under the preceding sentence after the Annuity Starting Date unless the Spouse consents in writing (or in such other form as permitted by the Intemal Revenue Service) to such distribution. If the value exceeds $5,000 ($3,500 for Plan Years beginning prior to August 6, 1997), then an inunediate distribution of the entire amount of the Pre-Retirement Survivor Annuity may be made to the surviving Spouse, provided such surviving Spouse consents in writing (or in such other form as permitted by the Intemal Revenue Service) to such distribution. Any consent
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required under this paragraph must be obtained not more than ninety (90) days before commencement of the distribution and shall be made in a manner consistent with Section 6.5(a)(2). Notwithstanding the foregoing, effective March 28,2005, the preceding provisions of this paragraph 6.6(e) shall be disregarded, and the following shall apply: An immediate distribution ofthe entire amount of the Pre-Retirement Survivor Annuity may be made to the surviving spouse (in lieu of the payment of a Pre-Retirement Survivor Annuity to such spouse), provided such surviving spouse consents in writing (or in such other form as permitted by the Internal Revenue Service) to such lump sum distribution. Any consent required under this paragraph must be obtained not more than ninety (90) days before commencement of the distribution and shall be made in a manner consistent with Section 6.5(a)(2). Notwithstanding the foregoing, effective Jannary 1,2008, the consent period shall be the one hnndred eighty (180) day period ending on the Annuity Statting Date.
(1)(1) To the extent the death benefit is not paid in the fonTI of a Pre-Retirement SUivivor Annuity, it shall be paid to the Patlicipant's Beneficiaty by either of the following methods, as elected by the Pallicipant (or ifno election has been made prior to the Patticipant's death, by the PaJlicipant's Beneficiary), subject to the rules specified in Section 6.6(g):
(i) One lump-sum payment in cash.
(ii) Payment in monthly, qUaJterly, semi-annual, or annual cash installments over a period to be detennined by the Participant or the Participant's BeneficiaJY. After periodic installments commence, the BeneficiaJY shall have the right to direct the Trustee to reduce the period over which such periodic installments shall be made, and the Trustee shall adjust the cash amount of such periodic installments accordingly.
(2) In the event the death benefit payable pursuant to Section 6.2 is payable in installments, then, upon the death of the Participant, the Administrator may direct the Trustee to segregate the death benefit into a separate account, and the Trustee shall invest such segregated account separately, and the funds accumulated in such account shall be used for the payment of the installments.
If death benefits in excess of the Pre-Retirement Survivor Annuity are to be paid to the surviving Spouse, such benefits may be paid pursuant to (I) and (2) above, or used to purchase an annuity so as to increase the payments made pursuant to the Pre-Retirement Survivor Annuity.
(g) Notwithstanding any provision in the Plan to the contrary, distributions upon the death of a Participant shall be made in accordance with the following requirements and shall otherwise comply with Code Section 401(a)(9) and the Regulations thereunder. If it is determined, pmsuant to Regulations, that the distribution of a Participant's interest has begun and the PaJticipant dies before the entire interest has been distributed, the remaining portion of such interest shall be distributed at least as rapidly as under the method of distribution selected pursuant to Section 6.5 as of the date of death. If a Pallicipant dies before
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receiving any distributions of the interest in the Plan or before distributions are deemed to have begun pursuant to Regulations, then the death benefit shall be distributed to the Pmticipant's Beneficiaries by December 31 st of the calendar year in which the fifth anniversary of the Pmiicipant's date of death occurs.
However, in the event that the Palticipant's Spouse (determined as of the date of the Pmticipant's death) is the designated Beneficimy, then in lieu ofthe preceding lUles, distributions must be made over the life ofthe Spouse (or over a period not extending beyond the life expectancy of the Spouse) and must commence on or before the later of: (I) December 31 st of the calendar yem' immediately following the calendar year in which the Pmticipant died; or (2) December 31 st of the calendar year in which the Pmiicipant would have attained age 70 112. Ifthe surviving Spouse dies before distributions to such Spouse begin, then the 5-year distribution requirement of this Section shall apply as if the Spouse was the Pmticipant.
(h) For purposes of this Section, the life expectancy of a Participant and a Participant's Spouse (other than in the case of a life annuity) shall not be redetermined in accordance with Code Section 401 (a)(9)(D). Life expectancy and joint and last survivor expectancy shall be computed using the retum mUltiples in Tables V and VI of Regulation 1.72-9.
(i) For purposes of this Section, any amount paid to a child of the Palticipant will be treated as if it had been paid to the surviving Spouse if the amount becomes payable to the surviving Spouse when the child reaches the age of majority.
U) Subject to the Spouse's right of consent afforded under the Plan, the restrictions imposed by this Section shall not apply if a Pmticipant has, prior to Janumy 1, 1984, made a written designation to have death benefits paid in an alternative method acceptable under Code Section 401 (a)(9) as in effect prior to the enactment of the Tax Equity and Fiscal Responsibility Act of 1982.
(k) Notwithstanding anything in this Plan to the contralY, effective with the 2003 calendar year, the Minimum Distribution Requirements set forth in Article VI-A of this Plan shall apply.
6.7 TIME OF SEGREGATION OR DISTRJBUTION
Except as limited by Sections 6.5 and 6.6, whenever the TlUstee is to make a distribution or to cOlrunence a series of payments the distribution or series of payments may be made or begun on such date or as soon thereafter as is practicable. However, unless a Fonner Participant elects in writing to defer the receipt ofbeneflts (such election may not result in a death beneflt that is more than incidental), the payment of benefits shall begin not later than the sixtieth (60th) day after the close of the Plan Year in which the latest of the following events occurs: (a) the date on which the Participant attains the earlier of age 65 or the Normal Retirement Age specified herein; (b) the tenth (10th) anniversmy of the year in which the Participant commenced pmticipation in the Plan; or (c) the date the Pmticipant tenninates service with the Employer.
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Notwithstanding the foregoing, the failure of a Pm1icipant and, if applicable, the Pm1icipant's Spouse, to consent to a distribution that is "inunediately distributable" (within the meaning of Section 6.5), shall be deemed to be an election to defer the commencement of payment of any benefit sufficient to satisfy this Section.
6.8 DISTRIBUTION FOR MINOR OR INCOMPETENT BENEFICIARY
In the event a distribution is to be made to a minor or incompetent Beneficiary, then the Administrator may direct that such distribution be paid to the legal guardian, or if none in the case of a minor Beneficimy, to a parent of such BeneficialY or a responsible adult with whom the Beneficimy maintains residence, or to the custodian for such Beneficiary under the Uniform Gift to Minors Act or Gift to Minors Act, if such is permitted by the laws of the state in which said Beneficimy resides. Such a payment to the legal guardian, custodian or parent of a minor Beneficimy shall fully discharge the Trustee, Employer, and Plan limn fUlther liability on account thereof.
6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN
In the event that all, or any portion, of the distribution payable to a Pmticipant or Beneficiary hereunder shall, at the later of the Participant's attainment of age 62 or Normal Retirement Age, remain unpaid solely by reason of the inability of the Administrator, after sending a registered letter, return receipt requested, to the last known address, and after further diligent effort, to asceltain the whereabouts of such Participant or Beneficiary, the amount so distributable shall be treated as a Forfeiture pursuant to the Plan. Notwithstanding the foregoing, if the value ofa Participant's Vested benefit derived from Employer and Employee contributions does not exceed $5,000 ($3,500 for Plan Years beginning prior to August 6, 1997), then the amount distributable may, in the sole discretion of the Administrator, either be treated as a Forfeiture, or be paid directly to an individual retirement account described in Code Section 408(a) or an individual retirement annuity described in Code Section 408(b) at the time it is determined that the whereabouts of the Palticipant or the Participant's Beneficiary cannot be ascel1ained. In the event a Pmticipant or Beneficiary is located subsequent to the Forfeiture, such benefit shall be restored, first from Forfeitures, if any, and then from an additional Employer contribution if necessaly. However, regardless of the preceding, a benefit which is lost by reason of escheat under applicable state law is not treated as a Forfeiture for purposes of this Section nor as an impermissible forfeiture under the Code.
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6.10 ADVANCE DISTRIBUTION FOR HARDSHIP
(a) The Administrator, at the election of the Participant, shall direct the Trustee to distribute to any Palticipant in anyone Plan Year up to the lesser of 100% of the Participant's Elective Account and Participant's Transfer/Rollover Account valued as of the last Valuation Date or the amount necessary to satisfy the immediate and heavy financial need of the Pmticipant. Any distribution made pursuant to this Section shall be deemed to be made as of the first day of the Plan Year or, if later, the Valuation Date immediately preceding the date of distribution, and the Palticipant's Elective Account and Participant's Transfer/Rollover Account shall be reduced accordingly. Withdrawal under this Section is deemed to be on account of an immediate and heavy financial need of the Participant only ifthe withdrawal is for:
(I) Medical expenses described in Code Section213(d) incurred by the Palticipant, the Participant's Spouse, or any of the Pmticipant's dependents (as defined in Code Section 152) or necessary for these persons to obtain medical care as described in Code Section 213(d);
(2) The costs directly related to the purchase (excluding mOltgage payments) of a principal residence for the Pmticipant;
(3) Payment of tuition, related educational fees, and room and board expenses for the next twelve (12) months of post-secondary education for the Pmticipant and the Participant's Spouse, children, or dependents; or
(4) Payments necessmy to prevent the eviction of the Participant from the Participant's principal residence or foreclosure on the mOltgage on that residence.
(b) No distribution shall be made pursuant to this Section unless the Administrator, based upon the Palticipant's representation and such other facts as are known to the Administrator, detelmines that all of the following conditions are satisfied:
(I) The distribution is not in excess of the amount of the immediate and heavy financial need of the Participant. The amount of the immediate and heavy financial need may include any amounts necessary to pay any federal, state, or local income taxes or penalties reasonably anticipated to result from the distribution;
(2) The Participant has obtained all distributions, other than hardship distributions, and all nontaxable (at the time of the loan) loans currently available under all plans maintained by the Employer;
(3) The Plan, and all other plans maintained by the Employer, provide that the Participant's elective deferrals and after-tax voluntary Employee contributions will be suspended for at least six (6) months ailer receipt of the hardship distribution or, the Participant, pursuant to a legally enforceable agreement, will suspend elective deferrals and after-tax
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voluntaty Employee contributions to the Plan and all other plans maintained by the Employer for at least six (6) months after receipt of the hardship distribution.
(c) Notwithstanding the above, distributions from the Participant's Elective Account pursuant to this Section shall be limited, as of the date of distribution, to the Participant's Elective Account as of the end of the last Plan Year ending before July I, 1989, plus the total Patticipant's Deferred Compensation after such date, reduced by the amount of any previous distributions pursuant to this Section.
(d) Any distribution made pursuant to this Section shall be made in a manner which is consistent with and satisfies the provisions of Section 6.5, including, but not limited to, all notice and consent requirements of Code Sections 417 and 41 I (a)(1 I) and the Regulations thereunder.
6.11 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION
All rights and benefits, ilJcluding elections, provided to a Participant in this Plan shall be subject to the rights afforded to any "altemate payee" under a "qualified domestic relations order." Fmthermore, a distribution to an "altemate payee" shall be permitted if such distribution is authorized by a "qualified domestic relations order," even if the affected Participant has not separated from service and has not reached the "earliest retirement age" under the Plan. For the purposes of this Section, "alternate payee," "qualified domestic relations order" and "earliest retirement age" shall have the meaning set forth under Code Section 414(p).
6.12 DIRECT ROLLOVER
(a) Notwithstanding any provision of the Plan to the contrary that would othelwise limit a "distributee's" election under this Section, a "distributee" may elect, at the time and in the manner prescribed by the Administrator, to have any pOition of an "eligible rollover distribution" paid directly to an "eligible retirement plan" specified by the "distributee" in a "direct rollover."
(b) For purposes of this Section the following definitions shall apply:
(1) An "eligible rollover distribution" is any distribution of all or any pOition of the balance to the credit of the "distributee," except that an "eligible rollover distribution" does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the "distributee" or the joint lives (or joint life expectancies) of the "distributee" and the "distributee's" designated beneficialY, or for a specified period of ten years or more; any distribution to the extent such distribution is required under Code Section 401(a)(9); or the portion of any other distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). Effective Januaty 1,2007,
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notwithstanding the foregoing, any distribution made to a non-Spouse Beneficimy that satisfies the conditions described herein shall be an "eligible rollover distribution" only for the purposes of Code Section 402(c).
(2) An "eligible retirement plan" is an individual retirement account described in Code Section 408(a), an individual retirement annuity described in Code Section 408(b), an annuity plan described in Code Section 403(a), a qualified trust described in Code Section 401(a), that accepts the "distributee's" "eligible rollover distribution," or an annuity contract described in Code Section 403(b) and an eligible plan under Code Section 457(b) which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from this Plan. The definition of eligible retirement plan shall also apply in the case of a distribution to a surviving Spouse, or a Spouse or former Spouse who is the Alternate Payee under a qualified domestic relations order, as defined in Code Section 414(p). However, in the case of an "eligible rollover distribution" to the surviving Spouse, an "eligible retirement plan" is an individual retirement account or individual retirement annuity. For "eligible rollover distributions" made on or after January I, 2007, an "eligible retirement plan" shall also mean an individual retirement account established on behalf of a non-Spouse Beneficiary as described in Code Section 402(c)(\ I).
(3) A "distributee" includes an Employee or former Employee. In addition, the Employee's or former Employee's surviving Spouse and the Employee's or tonner Employee's Spouse or former Spouse who is the alternate payee under a qualified domestic relations order, as defined in Code Section 414(p), are "distributees" with regard to the interest of the Spouse or former Spouse. Effective for "eligible rollover distributions" made on or after JanualY 1,2007, the former Pmticipant's non-Spouse Beneficiary is a "distributee" with regard to the interest of the non-Spouse Beneficiayr.
(4) A "direct rollover" is a payment by the Plan to the "eligible retirement plan" specified by the "distributee."
ARTICLE VI - A MINIMUM DISTRIBUTION REQUIREMENTS
6A.I General Rules.
(a) Effective Date. The provisions ofthis Article will apply for purposes of determining required minimum distributions for calendar years beginning with the 2003 calendar year.
(b) Coordination with Minimum Distribution Requirements Previously in Effect. If the total amount of 2002 required minimum distributions under the Plan made to the distributee prior to the effective date ofthis Article equals or exceeds the required minimum distributions determined under this Article, then no
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additional distributions will be required to be made for 2002 on or after such date to the distributee. If the total amount of 2002 required minimum distributions under the Plan made to the distributee prior to the effective date of this Article is less than the amount determined under this Article, then required minimum distributions for 2002 on and after such date will be determined so that the total amount of required minimum distributions for 2002 made to the distributee will be the amount determined under this Article.
(c) Precedence. The requirements ofthis Article will take precedence over any inconsistent provisions ofthe Plan.
(d) Requirements of Treasury Regulations Incorporated. All distributions required under this Article will be determined and made in accordance with the Treasury regulations under Code Section 401(a)(9).
(e) TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions of this Article, distributions may be made under a designation made before January 1, 1984, in accordance with section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the Plan that relate to section 242(b)(2) ofTEFRA.
6A.2 Time and Manner of Distribution.
(a) Required Beginning Date. The Participant's entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participant's required beginning date.
(b) Death of Participant Before Distributions Begin. If the Participant dies before distributions begin, the Participant's entire interest will be distributed, or begin to be distributed, no later than as follows:
(1) If the Participant's surviving Spouse is the Participant's sole designated Beneficiary, then distributions to the surviving Spouse will begin by December 31st ofthe calendar year immediately following the calendar year in which the Participant died, or by December 31st of the calendar year in which the Participant would have attained age 70 112, iflater.
(2) If the Participant's surviving Spouse is not the Participant's sole designated Beneficiary, then, except as provided in Section 6A.2(b)(3), distributions to the designated Beneficiary will begin by December 31st of the calendar year immediately following the calendar year in which the Participant died.
(3) If the Participant dies before distributions begin and there is a designated Beneficiary (other than the Participant's surviving Spouse), distribution to the designated Beneficiary is not required to begin by the date specified in Section 6A.2(b)(2), but the Participant's entire interest will be distributed to the designated Beneficiary by December 31st of the calendar year containing the fifth anniversary of the Participant's death.
(4) If there is no designated Beneficiary as of September 30th of the year following the year of the Participant's death, the Participant's entire interest will be distributed by December 31st of the calendar year containing the fifth
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anniversary of the Participant's death.
(5) If the Participant's surviving Spouse is the Participant's sole designated Beneficiary and the surviving Spouse dies after the Participant but before distributions to the surviving Spouse begin, this Section 6A.2(b), other than Section 6A.2(b)(I), will apply as if the surviving Spouse were the Participant.
For purposes of this Section 6A.2(b) and Section 6A.4, unless Section 6A.2(b)(5) applies, distributions are considered to begin on the Participant's required beginning date. If Section 6A.2(b)(5) applies, distributions are considered to begin on the date distributions are required to begin to the surviving Spouse under Section 6A.2(b)(I). If distributions under an annuity purchased from an insurance company irrevocably commence to the Participant before the Participant's required beginning date (or to the Participant's surviving Spouse before the date distributions are required to begin to the surviving Spouse under Section 6A.2(b)(I», the date distributions are considered to begin is the date distributions actually commence.
(c) Form of Distribution. Unless the Participant's interest is distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the required beginning date, as of the first distribution calendar year distributions will be made in accordance with Sections 6A.3 and 6A.4 of this Article. If the Participant's interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements of Code Section 40I(a)(9) and the Treasury regulations.
6A.3 Required Minimum Distributions During Participant's Lifetime.
(a) Amount of Required Minimum Distribution For Each Distribution Calendar Year. During the Participant's lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of:
(1) the quotient obtained by dividing the Participant's account balance by the distribution period in the Uniform Lifetime Table set forth in Section 1.40l(a)(9)-9 of the Treasury regulations, using the Participant's age as of the Participant's birthday in the distribution calendar year; or
(2) if the Participant's sole designated Beneficiary for the distribution calendar year is the Participant's Spouse, the quotient obtained by dividing the Participant's account balance by the number in the Joint and Last Survivor Table set forth in Section 1.40I(a)(9)-9 ofthe Treasury regulations, using the Participant's and Spouse's attained ages as of the Participant's and Spouse's birthdays in the distribution calendar year.
(b) Lifetime Required Minimum Distributions Continue Through Year of Participant's Death. Required minimum distributions will be determined under this Section 6A.3 beginning with the first distribution calendar year and up to and including the distribution calendar year that includes the Participant's date of death.
6A.4 Required Minimum Distributions After Participant's Death.
(a) Death On 0" After Date Distributions Begin.
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(1) Participant Survived by Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is a designated Beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year ofthe Participant's death is the quotient obtained by dividing the Participant's account balance by the longer of the remaining life expectancy of the Participant or the remaining life expectancy of the Participant's desig'nated Beneficiary, determined as follows:
(i) The Participant's remaining life expectancy is calculated using the age ofthe Participant in the year of death, reduced by one for each subsequent year.
(ii) If the Participant's surviving Spouse is the Participant's sole designated Beneficiary, the remaining life expectancy of the surviving Spouse is calculated for each distribution calendar year after the year of the Participant's death using the surviving Spouse's age as ofthe Spouse's birthday in that year. For distribution calendar years after the year ofthe surviving Spouse's death, the remaining life expectancy of the surviving Spouse is calculated using the age of the surviving' Spouse as of the Spouse's birthday in the calendar year of the Spouse's death, reduced by one for each subsequent calendar year.
(iii) If the Participant's surviving Spouse is not the Participant's sole designated Beneficiary, the designated Beneficiary's remaining life expectancy is calculated using the age of the beneficiary in the year following the year of the Participant's death, reduced by one for each subsequent year.
(2) No Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is no designated Beneficiary as of September 30th ofthe year after the year of the Participant's death, the minimum amount that will be distributed for each distribution calendar year after the year ofthe Participant's death is the quotient obtained by dividing the Participant's account balance by the Participant's remaining life expectancy calculated using the age ofthe Participant in the year of death, reduced by one for each subsequent year.
(b) Death Before Date Distributions Begin.
(1) Participant Survived by Designated Beneficiary. Except as provided in Section 6A.4(b)(2), if the Participant dies before the date distributions begin and there is a designated Beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year ofthe Participant's death is the quotient obtained by dividing the Participant's account balance by the remaining life expectancy of the Participant's designated Beneficiary, determined as provided in Section 6A.4(a).
(2) If the Participant dies before distributions begin and there is a designated Beneficiary (other than the Participant's surviving Spouse), distribution to the designated Beneficiary is not required to begin by the date specified in Section 6A.2(b)(2), but the Participant's entire interest will be distributed to the designated Beneficiary by December 31st of the calendar
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year containing the fifth anniversary of the Participant's death.

(3) No Designated Beneficiary. If the Participant dies before the date distributions begin and there is no designated Beneficiary as of September 30th of the year following the year of the Participant's death, distribution of the Participant's entire interest will be completed by December 31st of the calendar year containing the fifth anniversary of the Participant's death.

(4) Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin. If the Participant dies before the date distributions begin, the Participant's surviving Spouse is the Participant's sole designated Beneficiary, and the surviving Spouse dies before distributions are required to begin to the surviving' Spouse under Section 6A.2(b)(1), this Section 6A.4(b) will apply as if the surviving Spouse were the Participant.

6A.5 Definitions.

(a) Designated Beneficiary. The individual who is designated as the Beneficiary under the Plan and is the designated Beneficiary under Code Section 401(a)(9) and section 1.401(a)(9)·1, Q&A.4, ofthe Treasury regulations.

(b) Distribution calendar year. A calendar year for which a minimum distribution is required. For distributions beginning before the Participant's death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the Participant's required beginning date. For distributions beginning after the Participant's death, the first distribution calendar year is the calendar year in which distributions are required to begin under Section 6A.2(b). The required minimum distribution for the Participant's first distribution calendar year will be made on or before the Participant's required beginning date. The required minimum distribution for other distribution calendar years, including the required minimum distribution for the distribution calendar year in which the Participant's required beginning date occurs, will be made on or before December 31st of that distribution calendar year.

(c) Life expectancy. Life expectancy as computed by use of the Single Life Table in section 1.401(a)(9)·9 of the Treasury regulations.

(d) Participant's account balance. The account balance as of the last valuation date in the calendar year immediately preceding the distribution calendar year (valuation calendar year) increased by the amount of any contributions made and allocated or forfeitures allocated to the account balance as of dates in the valuation calendar year after the valuation date and decreased by distributions made in the valuation calendar year after the valuation date. The account balance for the valuation calendar year includes any amounts rolled over or transferred to the plan either in the valuation calendar year or in the distribution calendar year if distributed or transferred in the valuation calendar year.

(e) the Plan.

Required beginning date. The date specified in Section 6.5 and 6.6 of

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ARTICLE IX MISCELLANEOUS
9.1 PARTICIPANT'S RIGHTS
This Plan shall not be deemed to constitute a contract between the Employer and any Participant or to be a consideration or an inducement for the employment of any Pmticipant or Employee. Nothing contained in this Plan shall be deemed to give any Pmticipant or Employee the right to be retained in the service of the Employer or to interfere with the right of the Employer to discharge any Participant or Employee at any time regardless of the effect which such discharge shall have upon the Employee as a Participant of this Plan.
9.2 ALIENATION
(a) Subject to the exceptions provided below, no benefit which shall be payable out of the Trust Fund to any person (including a Participant or the Pmticipant's Beneficimy) shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be void; and no such benefit shall in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements, or torts of any such person, nor shall it be subject to attachment or legal process for or against such person, and the same shall not be recognized by the Trustee, except to such extent as may be required by law.
(b) Subsection (a) shall not apply to the extent a Participant or Beneficiary is indebted to the Plan, by reason of a loan from the Plan. At the time a distribution is to be made to or for a Palticipant's or Beneficimy's benefit, such proportion of the amount to be distributed as shall equal such indebtedness shall be paid to the Plan, to apply against or discharge such indebtedness. Prior to making a payment, however, the Palticipant or Beneficiary must be given written notice by the Administrator that such indebtedness is to be so paid in whole or palt from the Pmticipant's Combined Account. If the Participant or Beneficiary does not agree that the indebtedness is a valid claim against the Vested Pmticipant's Combined Account, the Participant or Beneficiary shall be entitled to a review of the validity orthe claim in accordance with procedures provided in Sections 2.7 and 2.8.
(c) Subsection (a) shall not apply to a "qualified domestic relations order" defined in Code Section 414(p), and those other domestic relations orders permitted to be so treated by the Administrator under the provisions of the Retirement Equity Act of 1984. The Administrator shall establish a written procedure to determine the qualified status of domestic relations orders and to administer distributions under such qualified orders. Further, to the extent provided under a "qualified domestic relations order," a former Spouse of a Participant shall be treated as the Spouse or surviving Spouse for all purposes under the Plan. The Plan shall permit distribution to the "alternate payee" pursuant to the terms of a "qualified domestic relations order" even if the Participant had not attained his "earliest retirement age" as defined in Code
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Section 414(p) and distribution would not otherwise be permitted under the terms of the Plan.
(d) Subsection (a) shall not apply to an offset to a Palticipant's acclUed benefit against an amount that the Participant is ordered or required to pay the Plan with respect to a judgment, order, or decree issued, or a settlement entered into, on or after August 5, 1997, in accordance with Code Sections 401 (a)(I 3)(C) and (D). In a case in which the survivor annuity requirements of Code Section 401 (a)(I I) apply with respect to distributions from the Plan to the Participant, if the Participant has a Spouse at the time at which the offset is to be made:
(I) either such Spouse has consented in writing to such offset and such consent is witnessed by a notary public or representative of the Plan (or it is established to the satisfaction of a Plan representative that such consent may not be obtained by reason of circumstances described in Code Section 417(a)(2)(B)), or an election to waive the right of the Sponse to either a qualified joint and survivor annuity or a qualified pre-retirement survivor annuity is in effect in accordance with the requirements of Code Section 417(a),
(2) such Spouse is ordered or required in such judgment, order, decree or settlement to pay an amount to the Plan in connection with a violation of fiduciary duties, or
(3) in such judgment, order, decree or settlement, such Spouse retains the right to receive the survivor annuity under a qualified joint and survivor annuity provided pursuant to Code Section 401(a)(lI)(A)(i) and under a qualified pre-retirement survivor annuity provided pursuant to Code Section 401(a)(lI)(A)(ii).
9.3 CONSTRUCTION OF PLAN
This Plan shall be constlUed and enforced according to the Code, the Act and the laws of the Commonwealth of Pennsylvania, other than its laws respecting choice oflaw, to the extent not pre-empted by the Act.
9.4 GENDER AND NUMBER
Wherever any words are used herein in the masculine, feminine or neuter gender, they shall be constmed as though they were also used in another gender in all cases where they would so apply, and whenever any words are used herein in the singular or plural form, they shall be constmed as though they were also used in the other form in all cases where they would so apply.
9.5 LEGAL ACTION
In the event any claim, suit, or proceeding is brought regarding the Tmst and/or Plan established hereunder to which the Tmstee, the Employer or the Administrator may be a party, and such claim, suit, or proceeding is resolved in favor of the Tmstee, the Employer or the Administrator, they shall be entitled to be reimbursed ii'om the Tmst Fund for any and all costs,
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attorney's fees, and other expenses peliaining thereto incurred by them for which they shall have become liable.
9.6 PROHIBITION AGAINST DIVERSION OF FUNDS
(a) Except as provided below and otherwise specifically pcnnitted by law, it shall be impossible by operation of the Plan or of the Trust, by termination of either, by power of revocation or amendment, by the happening of any contingency, by collateral arrangement or by any other means, for any part of the corpus or income of any Trust Fund maintained pursuant to the Plan or any funds contributed thereto to be used for, or diverted to, purposes other than the exclusive benefit of Paliicipants, Fonner Palticipants, or their Beneficiaries.
(b) In the event the Employer shall make an excessive contribution under a mistake offact pursuant to Act Section 403(c)(2)(A), the Employer may demand repayment of such excessive contribution at any time within one (I) year following the time of payment and the Trustees shall return such amount to the Employer within the one (I) year period. Earnings of the Plan attributable to the contributions may not be returned to the Employer but any losses attributable thereto must reduce the amount so returned.
(c) Except for Sections 3.5, 3.6, and 4.I(e), any contribution by the Employer to the Trust Fund is conditioned upon the deductibility of the contribution by the Employer under the Code and, to the extent any such deduction is disallowed, the Employer may, within one (I) year following the final determination of the disallowance, whether by agreement with the Internal Revenue Service or by final decision of a competent jurisdiction, demand repayment of such disallowed contribution and the Trustee shall return such contribution within one (I) year following the disallowance. Earnings of the Plan attributable to the contribution may not be returned to the Employer, but any losses attributable thereto must reduce the amount so returned.
9.7 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE
The Employer, Administrator and Trustee, and their successors, shall not be responsible for the validity of any Contract issued hereunder or for the failure on the pmt of the insurer to make payments provided by any such Contract, or for the action of any person which may delay payment or render a Contract null and void or unenforceable in whole or in palt.
9.8 INSURER'S PROTECTIVE CLAUSE
Except as otherwise agreed upon in writing between the Employer and the insurer, an insurer which issues any Contracts hereunder shall not have any responsibility for the validity of this Plan or for the tax or legal aspects of this Plan. The insurer shall be protected and held harmless in acting in accordance with any written direction of the Trustee, and shall have no duty to see to the application of any funds paid to the Trustee, nor be required to question any actions directed by the Trustee. Regardless of any provision of this Plan, the insurer shall not be required to take or permit any action or allow any benefit or privilege contrary to the terms of any Contract which it issues hereunder, or the rules of the insurer.
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9.9 RECEIPT AND RELEASE FOR PAYMENTS
Any payment to any Pmticipant, the Participant's legal representative, Beneficimy, or to any guardian or committee appointed for such Participant or Beneficiary in accordance with the provisions of the Plan, shall, to the extent thereof, be in full satisfaction of all claims hereunder against the Trustee and the Employer, either of whom may require such Participant, legal representative, Beneficimy, guardian or committee, as a condition precedent to such payment, to execute a receipt and release thereof in such form as shall be detennined by the Trustee or Employer.
9.10 ACTION BY THE EMPLOYER
Whenever the Employer under the terms of the Plan is permitted or required to do or perform any act or matter or thing, it shall be done and performed by a person duly authorized by its legally constituted authority.
9.11 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY
The Employer, Trustee and Administrator shall have only those specific powers, duties, responsibilities, and obligations as are specifically given them under the Plan. In general, the Employer shall have the sole responsibility for making the contributions provided for under Section 4.1; and shall have the sole authority to appoint and remove the Trustee and the Administrator; to formulate the Plan's "funding policy and method"; and to amend or terminate, in whole or in part, the Plan. The Administrator shall have the sole responsibility for the administration of the Plan, which responsibility is specifically described in the Plan. The Trustee shall have the sole responsibility of management of the assets held under the Trust, except those assets, the management of which has been assigned to an Investment Manager, who shall be solely responsible for the management of the assets assigned to it, all as specifically provided in the Plan. Each named Fiduciaty warrants that any directions given, information fumished, or action taken by it shall be in accordance with the provisions of the Plan, authorizing or providing for such direction, information or action. FUlthennore, each named Fiduciaty may rely upon any such direction, information or action of another named Fiduciary as being proper under the Plan, and is not required under the Plan to inquire into the propriety of any such direction, information or action. It is intended under the Plan that each named Fiduciaty shall be responsible for the proper exercise of its own powers, duties, responsibilities and obligations under the Plan. No named Fiduciary shall guarantee the Trust Fund in any manner against investment loss or depreciation in asset value. Any person or group may serve in more than one Fiducimy capacity. In the furtherance of their responsibilities hereunder, the Fiduciaries shall be empowered to interpret the Plan and Trust and to resolve ambiguities, inconsistencies and omissions, which findings shall be binding, final and conclusive.
9.12 HEADINGS
The headings and subheadings of this Plan have been insetted for convenience of reference and are to be ignored in any construction of the provisions hereof.
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9.13 APPROVAL BY INTERNAL REVENUE SERVICE
Notwithstanding anything herein to the contrary, if, pursuant to an application for qualification filed by or on behalf of the Plan by the time prescribed by law for filing the Employer's return for the taxable year in which the Plan is adopted, or such later date that the Secretmy of the TreasUlY may prescribe, the Commissioner of Internal Revenue Service or the Commissioner's delegate should deternline that the Plan does not initially qualify as a tax-exempt plan under Code Sections 401 and 501, and such detelmination is not contested, or if contested, is finally upheld, then if the Plan is a new plan, it shall be void ab initio and all amounts contributed to the Plan by the Employer, less expenses paid, shall be returned within one (I) year and the Plan shall terminate, and the TlUstee shall be discharged from all fUliher obligations. If the disqualification relates to an amended plan, then the Plan shall operate as if it had not been amended.
9.14 UNIFORMITY
All provisions of this Plan shall be interpreted and applied in a uniform, nondiscriminatory manner. In the event of any conflict between the terms of this Plan and any Contract purchased hereunder, the Plan provisions shall control.
9.15 SELF-CORRECTION
The Plan Administrator shall take such steps as it considers necessary and appropriate to remedy any inequity that results from incorrect infonnation received or communicated in good faith, or as a consequence of administrative or operational error. Such steps may include, but shall not be limited to, taking any action required under the employee plans compliance resolution system of the Internal Revenue Service, any asset management or fiducialY conduct error correction program available through the Department of Labor, any similar correction program instituted by the Internal Revenue Service, Department of Labor, or other administrative agency, reallocation of Plan assets, adjustments in amounts of future payments to Pmticipants, Beneficiaries, or Alternate Payees, and institution and prosecution of actions to recover benefit payments made in error or on the basis of incorrect or incomplete information.
9.16 INDEMNIFICATION
The Administrator, each member of the Committee, and any other person who is an Employee or director of the Employer shall be indemnified and held harmless by the Employer against and with respect to all damages, losses, obligations, liabilities, liens, deficiencies, costs and expenses, including without limitation, reasonable attorney's fees and other costs incident to any suit, action, investigation, claim or proceedings to which he may be a palty by reason of his performance of administrative functions and duties under the Plan, except in relation to matters as to which he shall be held liable for an act of willful misconduct in the performance of his duties. The foregoing right to indemnification shall be in addition to such other rights as Plan Administrator, the Committee member or other person may enjoy as a matter oflaw or by reason of insurance coverage of any kind. Rights granted hereunder shall be in addition to and not in lieu of any rights to indenmification to which the Administrator, the Committee member or other person may be entitled pursuant to the by-laws of the Employer.
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 Case 2:11-cv-00045-CDJ Document 90 Filed 12/21/11 Page 1 of 10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

COZEN O’CONNOR, P.C. Plaintiff, v.
JENNIFER J. TOBITS and DAVID M. FARLEY and JOAN F. FARLEY, h/w
Defendants.

: : : : Case Number: 2:11-cv-00045 : : Judge: C. Darnell Jones, II : : : : : : : :

PLAINTIFF COZEN O’CONNOR, P.C.’S RESPONSE BRIEF IN OPPOSITION TO JENNIFER TOBITS’S SUPPLEMENTAL BRIEF PURSUANT TO THE COURT’S OCTOBER 27, 2011 ORDER AND THE AMICI CURIAE BRIEF OF THE HUMAN RIGHTS CAMPAIGN AND THE EQUALITY FORUM

I. Preliminary Statement Tobits and amici curiae, the Human Rights Campaign and the Equality Forum, argue that

a private employer is free to establish terms for its employee benefit plan which allow an

employee’s same-sex spouse to receive benefits under that plan so long as the provisions do not

conflict with the federal statutory protections afforded to opposite-sex spouses. Cozen O’Connor

agrees that an employer may do so, but avers that the Cozen O’Connor Plan does not do so.

Tobits and amici argue that an employer may recognize a same-sex spouse as a designated

Beneficiary. Cozen O’Connor agrees that an employer may do so. But again, the argument fails

because Ms. Farley did not designate Tobits as her Beneficiary. In fact, to the extent that the

designation of Beneficiary form that Ms. Farley executed is enforceable, it is the Farleys who

Ms. Farley designated as her Beneficiaries.

Upon the death of a married participant, the Plan administrator must pay a qualified

preretirement survivor annuity (“QPSA”) to the participant’s surviving spouse in accordance

Case 2:11-cv-00045-CDJ Document 90 Filed 12/21/11 Page 2 of 10
with ERISA and the Internal Revenue Code, unless the surviving spouse has consented to the Participant’s waiver of the QPSA and designation of a different Beneficiary. For the first time, Tobits alleges that she is not seeking the death benefit under the protections that federal law extends to surviving spouses, but rather, she solely seeks to invoke the default provision of the Plan. Tobits and amici argue that if there is no opposite-sex spouse, then Cozen O’Connor is free to interpret the term “surviving Spouse” in the default provision to mean a same-sex spouse. It is difficult to understand how this argument aids Tobits. The argument seems to advance the Farleys’ claim. Notwithstanding Tobits’s new position, as we understand it, that her marriage to Ms. Farley does not qualify her as a surviving Spouse under the ERISA mandated provisions of the Plan, she continues to pursue a claim to the contested funds. This only reinforces the need for interpleader to protect Cozen O’Connor from the conflicting claims. II. The Court Cannot Avoid the Constitutional Issues Implicated by this Case Because
DOMA Prohibits Cozen O’Connor from Extending the Protections ERISA and the Internal Revenue Code Afford to Spouses to a Same-Sex Spouse Tobits states that, “[t]he benefits at issue in this case are not federally mandated, and DOMA has no relevance to their definition or scope.” (Doc. No. 73, p. 44.) Unless she is withdrawing her claim to the benefit, Tobits is wrong. Federal law requires the Plan to provide for payment of a deceased Participant’s death benefit to the Participant’s surviving Spouse or to a designated Beneficiary if there is no surviving Spouse or if the surviving Spouse consents. ERISA § 205(b)(1)(C)(i); 29 U.S.C.S. § 1055(b)(1)(C)(i); I.R.C. § 401(a)(11)(B)(iii)(I).
§ 1055. Requirement of joint and survivor annuity and preretirement survivor annuity
* * * (b) Applicable plans. (1) This section shall apply to--
* * *
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(C) any participant under any other individual account plan unless- (i) such plan provides that the participant's nonforfeitable accrued benefit (reduced by any security interest held by the plan by reason of a loan outstanding to such participant) is payable in full, on the death of the participant, to the participant's surviving spouse (or, if there is no surviving spouse or the surviving spouse consents in the manner required under subsection (c)(2), to a designated beneficiary)
* * * ERISA § 205(b)(1)(C)(i); 29 U.S.C.S. § 1055(b)(1)(C)(i) (emphasis supplied). The Internal
Revenue Code promulgates standards for the qualification of an employee benefit plan that
mirror the above quoted ERISA provision:
§ 401. Qualified pension, profit-sharing, and stock bonus plans.
(a) Requirements for qualification. A trust created or organized in the United States and forming part of a stock bonus, pension, or profit-sharing plan of an employer for the exclusive benefit of his employees or their beneficiaries shall constitute a qualified trust under this section—
* * *
(11) Requirement of joint and survivor annuity and preretirement survivor annuity.
* * *
(B) Plans to which paragraph applies. This paragraph shall apply to—
* * *
(iii) any participant under any other defined contribution plan unless— (I) such plan provides that the participant's nonforfeitable accrued benefit (reduced by any security interest held by the plan by reason of a loan outstanding to such participant) is payable in full, on the death of the participant, to the participant's surviving spouse (or, if there is no surviving spouse or the surviving spouse consents in the manner required under section 417(a)(2) [IRC Sec. 417(a)(2)], to a designated beneficiary).
3

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I.R.C. § 401(a)(11)(B)(iii)(I) (emphasis supplied); see also I.R.C. § 417 (setting forth special rules related to spousal consent).1
Thus, Ms. Farley’s death benefit, which is at issue in this case, although payable by a private employer, is absolutely federally mandated under ERISA and under the Internal Revenue Code. The Plan follows this federal law mandate, providing that the accrued benefits under the Plan will be paid to the surviving spouse unless the Participant designates a Beneficiary and the spouse acknowledges the designation and elected Beneficiary in writing. (Plan, §§ 6.2(e), 6.5, 6.6.) The express language of DOMA requires that it applies to these sections of ERISA and the Code. 1 U.S.C.S. § 7. Under these provisions, Tobits is Ms. Farley’s spouse only if DOMA is unconstitutional.

III. The Plan Provides for Only One Definition of “Spouse,” and Thus, It Cannot Mean a Person of the Opposite Sex with Respect to the Federally-Mandated Provisions and a Person of the Same Sex with Respect to the Default Provision Tobits argues that her “claim for benefits arises solely under the Plan’s default
beneficiary language.” (Doc. No. 73, p. 46.) Amici also seek to invoke the “default beneficiary
provision” of section 6.2(f) of the Plan. (Doc. No. 79-2, p. 12.) If Tobits is conceding that she
had no right as a spouse to consent to Ms. Farley’s designation of the Farleys as her Beneficiaries
(or to the waiver of the qualified preretirement survivor annuity), then Cozen O’Connor agrees
that the Court need not reach any constitutional issues related to DOMA or PA DOMA, because Tobits consequently is conceding that she is not Ms. Farley’s “surviving Spouse.”2

1

To the extent that Tobits or amici argue that other ERISA provisions or interpreting case law alter the

substance or import of the applicable Code provisions, such argument fails. “Except to the extent specifically

provided in the Internal Revenue Code of 1986 or as determined by the Secretary of the Treasury, titles I and IV of

the Employee Retirement Income Security Act of 1974 [29 U.S.C.S. §§ 1001 et seq., 1301 et seq.] are not applicable

in interpreting such Code.” Pub. L. No. 100-203, § 9343(a), 101 Stat. 1330-372 (codified as 26 U.S.C. § 401 note

(1987)).

2

Notably, Tobits’s new position is far afield from her original claim to the death benefit. Tobits presented

her claim to Cozen O’Connor by letter dated November 30, 2010, attaching a copy of the Marriage Certificate, to

advise Cozen O’Connor that she intended “to make a claim with respect to the Death Benefits of [her] wife, Sarah

Ellyn Farley.” (Doc. No. 3, Ex. C.) Tobits pleaded in her Answer to the Amended Complaint that “she is the

surviving spouse of decedent, Sarah Ellyn Farley.” (Doc. No. 15, ¶ 3.) Additionally, in Tobits’ Crossclaim against

4

Case 2:11-cv-00045-CDJ Document 90 Filed 12/21/11 Page 5 of 10
Section 6.2 of the Plan provides, in relevant part, that:
6.2 DETERMINATION OF BENEFITS UPON DEATH
* * *
(e) Unless otherwise elected in the manner prescribed in Section 6.6, the Participant’s surviving Spouse shall receive a death benefit equal to the Pre-Retirement Survivor Annuity. The Participant may designate a Beneficiary other than the Spouse to receive that portion of the Participant’s death benefit which is not payable as a Pre-Retirement Survivor Annuity. The Participant may also designate a Beneficiary other than the Participant’s Spouse to receive the Pre-Retirement Survivor Annuity but only if:
(1) the Participant and the Participant’s Spouse have validly waived the Pre-Retirement Survivor Annuity in the manner prescribed in Section 6.6, and the Spouse has waived the right to be the Participant’s Beneficiary, or
* * *
(3) the Participant has no Spouse, or
* * *
In such event, the designation of a Beneficiary shall be made on a form satisfactory to the Administrator . . .
(f) In the event no valid designation of Beneficiary exists, or if the Beneficiary is not alive at the time of the Participant’s death, the death benefit will be paid in the following order of priority to:
(1) the Participant’s surviving Spouse;
* * *
the Farleys, she pleads that she “did not sign the spousal consent section of the beneficiary designation form for the Plan” (id., ¶ 75), and invokes the protection of sections 6.2 and 6.6 of the Plan providing that “a Pre-Retirement Survivor Annuity shall be paid for the lifetime of the participant’s surviving spouse, unless both the participant and the participant’s spouse have validly waived the Pre-Retirement Survivor Annuity” (id., ¶ 80). Tobits’s claim led Cozen O’Connor to file its complaint in interpleader. She now takes an incongruous position that the meaning of “surviving Spouse” under the default provision, which she argues is not a federally mandated provision under ERISA or the Internal Revenue Code, is different than the meaning of “surviving Spouse” under the provisions that she admits federal law requires. (Doc. No. 73, p. 47) (“the statute uses the term spouse in provisions that . . . require certain pension plans to make available to a spouse certain annuity forms of benefit, including . . . the qualified preretirement survivor annuity (QPSA)”) (citing ERISA).
5

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(3) the Participant’s surviving parents, in equal shares;
* * * (Plan, § 6.2(e), (f).)
Here, Ms. Farley executed a designation of Beneficiary form, naming the Farleys as her beneficiaries. (Doc. No. 3, Ex. A.) Tobits now argues that she did not need to sign the designation of beneficiary form as Ms. Farley’s spouse, pursuant to ERISA, the Internal Revenue Code, and the Plan’s terms as set forth supra. It is clear that the term “surviving Spouse” found in section 6.2(f)(1) relates back to the same term used in the federally-mandated section 6.2(e). The context of the Plan’s use of the term surviving Spouse in sections 6.2(e) and 6.2(f)(1) makes it obvious that the Plan is referring to the same person. Indeed, there is only one definition found in the Plan for “Spouse.” (Plan, § 1.55A) (“‘Spouse’ means the person to whom the Participant has been married throughout the one-year period ending on . . . the date of the Participant’s death.”) If Cozen O’Connor meant to provide for a broader interpretation of surviving Spouse to allow a same-sex spouse to recover the death benefit under the default provision, it would have had to use different language to clarify this meaning. Cozen O’Connor agrees with amici that, “a plan can be drafted to provide that a participant’s default beneficiary could be a same-sex spouse or domestic partner.” (Doc. No. 88, p. 11.) The Plan at issue, however, was not so drafted.
The federal protections afforded to spouses under ERISA and the Internal Revenue Code, set forth in section II of this brief, require that spouse can only mean a person of the opposite sex. Tobits concedes this point. (Doc. No. 73, p. 48) (“Ms. Tobits does not dispute that [the provisions requiring pension plans to make available to a spouse certain annuity forms of benefit] currently mandate protections only for different-sex spouses”). Amici also recognize this principle. (Doc. No. 88, p. 8) (“Because the Cozen Plan makes annuities its ‘default’ form of payment . . . benefits under the Cozen Plan are subject to the QJSA and QPSA unless waived
6

Case 2:11-cv-00045-CDJ Document 90 Filed 12/21/11 Page 7 of 10
by the participant with ‘spousal’ consent.”) (citing Plan, §§ 6.2(e), 6.5(a), 6.6). Tobits fails to explain how Cozen O’Connor can exercise its discretion to interpret “surviving Spouse” under the default provision of section 6.2(f)(1) of the Plan differently from how it must interpret “surviving Spouse” under section 6.2(e) of the Plan. In fact, there is no explanation, because Cozen O’Connor is not free to do so.
The question remains whether Tobits is a spouse under the terms of this Plan. Because the Plan contains only one definition of spouse, a term that is used throughout the Plan and which, pursuant to federal mandated provisions, may only mean a person of the opposite sex, Tobits is not a spouse so long as DOMA is constitutional. Therefore, the Court should find interpleader appropriate and issue an order granting Cozen O’Connor’s motion for judgment on the pleadings, requiring Tobits and the Farleys to interplead and settle among themselves their respective claims and discharging Cozen O’Connor from this action upon payment of the contested funds into the registry of this Court. IV. If the Court Finds DOMA Is Unconstitutional, the Court Likewise Must Find PA
DOMA Is Unconstitutional Because the Plan Requires Cozen O’Connor to Interpret “Spouse” According to Pennsylvania Law If the Court finds that DOMA is unconstitutional or decides not to reach that issue, the Plan still requires Cozen O’Connor to construe the term “spouse” according to Pennsylvania law. Tobits argues that Pennsylvania courts would not use PA DOMA to strike down Plan benefits. (Doc. No. 73, pp. 38-40.) Tobits’ argument is based on a misapprehension of the issue. The issue is not whether Pennsylvania law limits the incidents of marriage arising out of the Plan. Cozen O’Connor agrees that it does not. Rather, the issue is how must Cozen O’Connor define “spouse” under the terms of the Plan. In the absence of controlling federal law, which Cozen O’Connor assumes for the purposes of this argument only, Pennsylvania law squarely applies.
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Case 2:11-cv-00045-CDJ Document 90 Filed 12/21/11 Page 8 of 10
“This Plan shall be construed and enforced according to the Code, the Act and the laws of the Commonwealth of Pennsylvania, other than its laws respecting choice of law, to the extent not pre-empted by the Act.”3 (Plan, § 9.3.) As set forth above, section 1.55A of the Plan defines “spouse,” as “the person to whom the Participant has been married” for a one-year period from the date of the Participant’s death. (Id., § 1.55A.) “[M]arriage shall be between one man and one woman” and a “marriage between persons of the same sex” shall be void in this Commonwealth. 23 Pa. C.S.A. § 1704. Cozen O’Connor does not aver, nor has it ever raised the argument, that Pennsylvania law prohibits a private employer from paying benefits to a same-sex spouse. Cozen O’Connor merely argues that the Plan requires it to use Pennsylvania law to construe the definition of spouse (if, and only if, federal law does not control its meaning).
Tobits admits that PA DOMA controls “the definition of marriage.” (Doc. No. 73, p. 40) (emphasis supplied). The Court must determine whether the definition of marriage set forth in PA DOMA is constitutional. Again, Cozen O’Connor’s complaint in interpleader is appropriate. For this reason, the Court should remove Cozen O’Connor from this litigation upon payment of the contested funds into the Court’s registry.
V. Conclusion For the foregoing reasons, Cozen O’Connor respectfully requests that this Court issue an
order granting Cozen O’Connor’s motion for judgment on the pleadings.

3

In light of this provision specifically denouncing that Pennsylvania choice of law principles apply to the

interpretation of the Plan, Tobits’ prior argument that Illinois law should apply is meritless.

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Case 2:11-cv-00045-CDJ Document 90 Filed 12/21/11 Page 9 of 10

Date: December 21, 2011

Respectfully submitted,
/s/ H. Robert Fiebach____________________ H. Robert Fiebach, Esq. Jay Dorsch, Esq. Raymond A. Kresge, Esq. Jill M. Caughie, Esq. COZEN O’CONNOR 1900 Market Street Philadelphia, PA 19103-3508 (215) 665-5536
Attorneys for Plaintiff/Counterclaim Defendant Cozen O’Connor, P.C.

9

Case 2:11-cv-00045-CDJ Document 90 Filed 12/21/11 Page 10 of 10 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was filed electronically on December 21, 2011 with the Clerk of the Court for the U.S. District Court for the Eastern District of Pennsylvania using the CM/ECF system. I further certify that all parties in this case are registered CM/ECF users and will be served by the CM/ECF system.
/s/ Jill M. Caughie_____________________ Jill M. Caughie
PHILADELPHIA\6284848\1

 
 Case 2:11-cv-00045-CDJ Document 144 Filed 07/29/13 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COZEN O’CONNOR, P.C., :

Plaintiff,

v.

JENNIFER J. TOBITS, et al.

De

fendants. :

CIVIL ACTION

:

:

NO. 11-0045

:

:

:

:

:

MEMORANDUM

Jones, II, J.

July 29, 2013

The narro w iss ue pres ented in this case is whe ther the United States Supreme Court’s decision in United Stat es v. Windsor1, decla ring Se ction 3 of th e D efense of Marriag e Act

unconstitutional as a deprivation of the equal li berty of p ersons that is protected b y th e F ifth

Amendment, requires recognition of a valid Canadian same -sex marri age for pu rposes of benefits distribution pursuant to ERISA, a federal statute.2

I. FACTUAL BACKGROUND

Sarah Ellyn Farley began working at the Cozen O’Connor law firm in 2004, and subsequently became eligible to participate in the Firm’s Profit Sharing Plan (the “Plan”).3 In

February of 2006, Ms. F arley ma rried J ean To bits in Toronto, Canada, as authoriz ed under

Canadian law. Shortl y after her we dding, Ms. F arley was dia gnosed with cancer and

unfortunately later passed away on September 13, 2010.

1 United States v. Windsor, 570 U.S. ___ , 133 S. Ct. 2675 (2013). 2 ERISA is codified as 29 U.S.C. §§ 1001-1461. 3 See Cozen O’Connor Profit Sharing Plan (the “Plan”) (Dkt. No. 3-5).
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Case 2:11-cv-00045-CDJ Document 144 Filed 07/29/13 Page 2 of 12
Cozen O’Connor’s Plan requires that, upon the death of a Participant to the Plan, the Plan
Administrator must pa y death b enefits in th e form of a qu alified Pre -Retirement Survivor
Annuity in accordance with ERISA and the Internal Revenue Code (the “Code”).4 The question
herein is: W ho should re ceive pa yment of th e death bene fits?5 Both J ean Tobits and Ms .
Farley’s pare nts (D avid and Joan, hereinafter “the Farleys”) re quested pay ment of the Pre-
Retirement Survivor Annuity after Ms. Farley’s death.6 In response to these competin g claims,
4 See Plan §§ 6.2 (a),(e),(f). 5 The P lan l anguage requ ires that d eath b enefits w ill be pa id to th e P articipant’s “surviving Spouse” upon the death of the Participant. See id. The Participant may also designate a Beneficiary other than his or her Spouse to receive the death benefits; however, if the Participant has a Spouse, the Spouse must first waive his o r her rights to be the Participant’s Beneficiary before the designation of another Beneficiary can be d eemed v alid. Id. I n the ev ent th ere is n o v alid Bene ficiary—Spouse or othe rwise—the Plan’s default provisions require t hat the death benefits are paid in the following order of p riority: first t o t he Participant’s surviving Spouse, and then to the Participant’s surviving parents.
Because there is no debate that Ms. Tobits did not waive her right to be Ms. Farley’s Beneficiary, a determination of whether Ms. Tobits is Ms. Farley’s “surviving Spouse” pursuant to the Plan is dispositive of th e distribution of deat h ben efits. If Ms. Tobits is not Ms. Farley’s “surviving Spouse,” because she is not listed as Ms. Farley’s Beneficiary, she has no rights to the death benefits under the Plan. If Ms. Farley is Ms. Tobits’ Surviving Spouse, she is entitled to receive payment of t he de ath benefits—the Pre-Retirement Survivor Annuity—via the Plan’s priority order of payment. Id. §6.2 (f).
The C ourt no tes th at the Far leys s ubmitted t o C ozen a no tarized D esignation of B eneficiary Form dated Sep tember 12, 20 10—the day before Ms. Farley’s death—which lists the Farleys as “Primary Beneficiaries”. The authenticity of this Form remains disputed. As discussed above, a Designation of Beneficiary Form is v alid only if th e Spou se—if t here is a Spouse—has w aived the Pre -Retirement Survivor Annuity by signing that same Designation of Beneficiary Form. T here is no ques tion that Ms. Tobits did n ot s ign the D esignation of Be neficiary Form , w hich w ould t hereby w aive her r ight to the death b enefits. Thus t he Court need no t m ake a determination regarding the auth enticity of the Designation, as a determination regarding whether Ms. Tobits is Ms. Farley’s “surviving Spouse” could render the issue moot. 6 The Farleys, through their lawyer Jonathan W. Michael, first advised Cozen O’Connor tha t they believed they were owed Ms. Farley’s death benefits in a letter to Cozen’s Administrative Managing Partner, Vincent R. McGuinness, dated November 11, 2010. (Dkt. No. 3-2).
Ms. Tobits first advised Cozen O’Connor that she intended to file a claim with respect to Ms. Farley’s death benefits in a letter to Cozen O’Connor’s counsel, H. Robert Feibach, dated November 30, 2010. (Dkt. No. 3-3).
As to the Interpleader Action, there is no dispute that Cozen faced multiple competing claims under the Plan.
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pursuant to Fed. R. Civ. P. 22, Cozen O’Connor filed an interpleader action in this Court in January, 2011 naming Ms. Tobits and the Farleys as Defendants.7
After significant motion practice b etween the original parties, the Court granted lea ve to intervene to the United States of America and the Bipartisan Legal Advisory Group (“BLAG”) of the U.S. House of Represent atives, given the looming Co nstitutional issues in this matter. 8 This Court subseque ntly invited all intere sted p arties to submit supp lemental brief ing on the outstanding Constitutional questions, and thereafter heard Oral A rgument on pending motions.9 Given the likelihood of the United States Supreme Court issuing a ruling on the Constitutionality of DOMA Section 3 in its then-upcoming term, this Court plac ed th e above matter on th e Suspense Doc ket pendin g the outcome of those cases. 10 On June 26, 201 3, the United Stat es Supreme Court rendered its decision in United States v. Windsor. On July 8, 2013, BLAG filed an Unopposed Motion to Withdraw, which this Court granted.11
7 See Cozen O’Connor’s First Amended Complaint for Interpleader (Dkt. No. 3). 8 Th e C ourt al so g ranted t he m otions of m ultiple parties to appe ar as amicus curia e. T hese parties included: Conc erned Wom en fo r A merica, F rederick Douglass Foundation, P arents a nd Fr iends of E xGays & Gays (“PFOX”), The Human Rights Campaign, Equality Forum, Professor Robert P. George, Sherif Girgis, Ryan T. Anderson, and Gage Raley. 9 The parties’ briefs and oral arguments were well-prepared and of great a ssistance to the Court. The parties are commended in this regard. 10 See Dkt. No. 137. 11 In its Motion, BLAG—which also argued for the constitutionality of DOMA Section 3 in Windsor— stated:
The Sup reme Court re cently reso lved the is sue of DOMA Sectio n 3 ’s constitutionality. See United Sta tes v. Windsor, 570 U .S. __ (201 3), 20 13 WL 31969 28 (U .S. June 26, 201 3). Accordingly, the House no longer has a role to play in this litigation and now seeks to withdraw as a party defendant. Id.
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At the heart of this matter is whether Jean Tobits is Ms. Farley’s “Spouse” pursuant to the Plan lang uage. This co urt answers the question in the aff irmative. As such, this finding is dispositive of issues that remain in this case.12
II. LEGAL STANDARD
A. Interpleader Cozen O’Connor brought this action in interpleader pursuant to Federal Rule of Civil
Procedure 22, requesting that : 1) Tobits and the Farleys be r equired to interplead and settle among thems elves their respective claims to the money du e unde r the Plan; 2) Tobits and the Farleys be re strained from commencin g any a ction against Coz en O 'Connor on the Plan; 3) Cozen O'Connor be permitted to pay into the registry of the court all amounts due under the Plan and upon such deposit b e discharged from all liabilit y arising from the Plan; and 4) that Coz en O'Connor be awarded its costs and attorneys’ fees.
Interpleader “allows ‘a person holding property to join in a sing le suit tw o or more persons asserting claims to that property.’” Metro. Life Ins. Co. v. Price, 501 F.3d 271, 275 (3d Cir.2007) (citations omitted). “The plaintiff in an interpleader action is a stakeholder that admits it is liable to one of the claimants, but fears the prospect of multiple liability.” Id. A part y s eeking the 12 Currently befor e thi s Court are Cozen O’Connor’s First Amended Complaint for Interpleader, dated January 24, 2011 (Dkt. No. 3); Defendant Farleys’ Answer, Counterclaim, and Crossclaim, dated August 1, 2011 (Dkt. No. 14); Defendant Tobits’ Answer, Affirmative Defenses, Counterclaim and Cross-Claims To Interpleader First Amended Complaint, dated August 1, 2011 (Dkt. No. 15); Defendant Farleys’ Motion To Dismiss Jennifer J. Tobits’ Crossclaims Pursuant to FRCP12 (b)(6), dated A ugust 22, 2011 (Dkt. No. 25); Plaintiff Cozen O’Connor’s Motion for Judgment on the Pleadings Pursuant to Rule 12(c), dated September 8, 2011, (Dkt. No. 31); Cross-Claimant Tobits’ Motion for Judgment on the Pleadings as to the Farleys’ Cross-Claim and Counterclai m For E RISA Re lief, dated September 13, 2011, (Dkt. No. 36), and the various responses thereto.
For the reasons that follow, Cozen O’Connor’s Motion for Interpleader is Granted in Part and Denied in Part. Tobits’ Motion for Judgment on the Pleadings is Granted. The Farleys’ Motion to Dismiss is Denied. All other pending Motions are Denied as Moot.
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Case 2:11-cv-00045-CDJ Document 144 Filed 07/29/13 Page 5 of 12
remedy of interpleader under FRCP 22 “may file suit, deposi t the pr operty with the court and then withdraw fr om th e proce edings, lea ving the competing claimants to litigate between themselves.” Allstate Settlement Corp. v. United States, 2008 W L 2221897, at *3 (E.D.Pa. Ma y 28, 2008).
B. Judgment on the Pleadings A party may move for judgment “after the pleadings are closed but within such time as not to delay the trial.” Fed. R. Civ. P. 12(c). In so doing, “the moving party must show that no issues of material fact exist and that judgment should be entered in its favor as a matter of law.” S.B. v. United of Omaha Life Ins. Co. , Civ. No. 13-1463 , 2013 W L 2915973, at *3 (E.D. Pa. J une 13, 2013) (c iting Bayer Chemicals Corp. v. Albermarle Corp., 171 Fed. App’x 392, 397 (3d Cir. 2006); Jablonski v. Pan Ame r. World Airways, Inc., 863 F.2d 289, 290 (3d Cir. 1988)). “In evaluating a Rule 12( c) motion, a court must view the pleadings in the lig ht most fa vorable to, and draw all inferences in favor of, the nonmoving party.” Jablonski, 8 63 F .2d at 290. Th e court “need not accept as true legal conclusions or unwarranted factual inferences.” Id. In considering a motion for judgment on the pleadings, a court is not limited to the pleadings themselves but may also consider facts of which the court may take judicial notice. See Schott v. Doe, C IVA 05-1730, 2007 W L 539645 (W.D. P a. Feb. 15, 2007) (c iting Oran v. Staffo rd, 226 F.3d 275, 289 (3d Cir.2000)). Before this Court are both Cozen O’Connor’s and Ms. Tobits’ Motions for Judgment on the Pleadings. In addition to the Motions and the responses thereto, this Court considers a number of documents that are incorporated by reference in the Complaints and various pleadings, as well as judicially noticed f acts. See Southmark Prime Plus, L.P. v. Falzone , 776 F . Supp. 888, 892 (D .
5

Case 2:11-cv-00045-CDJ Document 144 Filed 07/29/13 Page 6 of 12
Del. 1991) (noting that “the consideration of the judicially noticed facts does not convert the
motion into a Rule 56 motion for summary judgment.”).
In its Motion for Judgment on the Plea dings, Cozen requests judgment as to it s interpleader
claim, in addition to ju dgment as to Tobits ’ and the Farleys’ Counterclaims. Ms. Tobits,
likewise re quests, inter alia , “judgment as a matter of law that she is Ms. Farley‘s surviving
spouse and is therefore entitled to the Plan benefits.”
III. DISCUSSION
A. The Plan Terms
Because the competing claims to Ms. Farley’s death benefits require interpretation of the
Plan, several key Plan provisions are discussed herein.
The Plan provides in relevant part:
ARTICLE I DEFINITIONS
* * * 1.55A “Spouse” means the person to whom the Participant has been ma rried throughout the oneyear period ending on the earlier of (1) the Participant's annuity starting date or (2) the date of the Participant's death. The Plan Adminis trator may rely on the Participant' s written statement regarding such Participant's marital status.
* * * ARTICLE VI DETERMINATION AND DISTRIBUTION OF BENEFITS
* * * 6.2 DETERMINATION OF BENEFITS UPON DEATH
(a) Upon the death of a Participant before the Participant’s Retirement Date or other termination of employment, all amounts credited to such Participant’s Combined Account shall become fully Vested. The Administrator shall direct the Trustee, in accordance with the provisions of Sections 6.6 and 6.7, to distribute the value of the deceased Participant’s accounts to the Participant’s Beneficiary
* * * (e) Unless otherwise elected in the manner prescribed in Section 6.6, the Participant’s surviving Spouse shall re ceive a death ben efit equal t o the Pre -Retirement Survivor Annuit y. The Participant ma y d esignate a Beneficiary othe r t han the Spouse to recei ve that portion o f the
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Case 2:11-cv-00045-CDJ Document 144 Filed 07/29/13 Page 7 of 12
Participant’s death benefit which is not payable as a Pre-Retirement S urvivor Annui ty. The Participant may also designate a Beneficiary other than the Participant’s Spouse to receive the Pre-Retirement Survivor Annuity but only if:
(1) the Participant and the Participant’s Spouse have validly waived the Pre-Retirement Survivor Annuity in the manner prescribed in Section 6.6, and the Spouse has wa ived the right to be the Participant’s Beneficiary, or
* * * (3) the Participant has no Spouse, or
*** In such event, the designation of a Beneficiary shall be made on a form satisfactory to the Administrator . . .
(f) In the event no valid desig nation of Beneficiary exists, or if the B eneficiary is not alive at the time of the Participant’s death, the death benefit will be paid in the following order of priority to:
(1) the Participant’s surviving Spouse;
*** (2) the Participant’s surviving parents, in equal shares
*** ARTICLE IX MISCELLANEOUS
*** 9.3 CONSTRUCTION OF PLAN
This Plan shall be construed and enfo rced according to the [ Internal R evenue] Code, [ERISA] and the laws of the Commonwe alth of Pennsylvania, other tha n its laws re specting choice of law, to the extent not pre-empted by [ERISA].
The Plan (Dkt. No. 3-4 at 1-86).
B. Applicability of ERISA to the Plan The Code13 and ERISA mandate that employee benefit plans meet several requirements to be “qualified” for tax preferences.14 Among these mandates is the re quirement that emplo yee
13 The Code is codified as Title 26 of the U.S. Code. 14 ERISA requires that “[e]very employee benefit plan shall be established and maintained pursuant to a written instrument.” 29 U.S.C. § 1102(a)(1).
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benefit plans contain c ertain manda tory spous al benefits provisions. 15 Cozen O’Connor has
represented to the Court that the Plan is an ER ISA-qualified Plan, su ch that it wa s d rafted to
comply with federal law and to enjo y those benefits that accompan y an ERISA-qualified plan.16
Indeed, the Plan contains sever al hallmar ks of a n ER ISA-qualified plan includin g those
provisions that relate to t he distribution of d eath benefits such as: the Plan’s requirement that in
order to qualify as “Spouse,” the individual must be married to the Participant for at least one
year;17 the Plan’s requirement that a “Spouse” must waive his or her right to be the Participant’s
Beneficiary in writing;18 and the Plan’s requirement that death benefits shall go to the “surviving
Spouse,” absent a spousal waiver.19 Not only does it contain language that mirrors the mandates
of ERISA and the Code, the Plan expressly requires that the Plan is to be construe d according to
ERISA and the Code. 20 That is, ERI SA and the Code shall suppl y mea nings to the Plan n ot
otherwise found therein , and the Administrato r is bound b y those terms in making an y
determination regarding benefits.21
15 ERI SA and the Code m erely est ablish a fl oor f or privately sponso red em ployee benef it p lans w ith respect to spousal benefits. Privately-sponsored plans have discretion to go beyond these requirements— indeed many do. Today’s holding makes clear, however, that Windsor leveled the floor. 16 See Dkt. No. 90 at 4 (“Ms. Farley’s death benefit, which is at issue in this case, although payable by a private employer, is a bsolutely federally mandated under ERISA and under th e Internal Revenue Code. The Plan follows this federal law mandate . . . .”); see also, Mar. 20, 2013 Tr. at 62:12-16;63:20-64:10 (“The Cozen plan is an ERISA-qualified pl an. What that means Y our H onor, is in or der to get the tax benefits and the other benefits of the plan, it has to follow ERISA. If it does not, if we do not comply with federal law, there are terri ble tax consequences th at foll ow both f rom the partic ipants a nd to Coz en O'Connor. . . . So Y our H onor, w e t hen l ook at ER ISA becaus e our p lan w as drafted to com ply w ith federal law. . . . and the definitions are there in order to comport with federal law.”). 17 29 U.S.C. Sec. 1055(b)(4); Plan §1.55A. 18 29 U.S.C. § 1055(c)(2); Plan §§ 6.2 (e),(f). 19 29 U.S.C. § 1055(b); Plan §§ 6.2 (e),(f). 20 Plan §9.3. 21 See id ; se e als o Kenned y v. Plan Adm r for D uPont Sav. & Inv. Plan , 555 U .S. 285 (U .S. 2009 ). I n Kennedy, the United States Supreme Court held that the determination of the proper beneficiary under an ERISA-governed plan w ill be dete rmined by the lang uage o f the pl an itself. Th e Kennedy Court noted that “ERISA makes clear that plan administrators must pay benefits “in accordance with the documents
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Here, the definition of “Spouse” is undefined, except to the extent that it requires that anyone who is a “Spouse” must be married for a year prior to receiving benefits.22 This re quirement— which tracks the ERISA mandates regarding spousal benefits—still leaves open the question o f exactly who can be a “Spouse.” Based on the language of the Plan —which Coz en drafted pursuant to ERISA’s mandates—the Court must look to ERI SA an d th en the Code for those definitions. 23
By reason of the ope rative language of the Plan, the determination of whether Ms. Tobits is Ms. Farley’s “Spouse” is dispositive of the distribution of death benefits.
C. Windsor and the Definition of “Spouse” The Dictionary Act codifies rules of statutory construction for thousands of laws and
federal regulations, including ERISA and the Code. 24 Section 3 of the federal Defense of Marriage Act (“DOMA”) amended the Dictionary Act, and provided that:
In d etermining th e meaning of an y A ct of Con gress, or of an y ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wif e, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. § 7.
and instruments governing the plan.” 29 U.S.C. § 1104(a)(1)(D). Thus, the administrators of this Plan are required to make their benefits determination(s) according to the Code and ERISA, as the P lan language requires. 22 Plan §1.55A. 23 Cozen O’Connor, a private employer, did not have to create an employee benefit plan. The Firm’s choice to create a tax-qualified employee benefit plan “to be construed and enforced” under ERISA, subjects the Firm’s Plan to federal law. 24 See 1 U.S.C. § 1, et seq.
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Thus, for purposes of E RISA, the Code and thousands of other regulations, DOMA, b y operation of its Section 3, restricted any reference to “Spouse” to mea n only opposite-sex spouses.25
In United States v. Windsor, the United States Supre me Court consider ed whether Edith Windsor, a New Yor k resident who mar ried he r late-wi fe, Thea Sp yer in 2006 in Canada, qualified for a federal estate tax exemption as a “surviving spouse,” in lig ht of Section 3 o f DOMA. The Windsor Court held that becaus e the state of N ew Yor k reco gnized same -sex marriages as valid—and, to wit, the Canadian mar riage o f Edith W indsor and Thea Sp yer— DOMA unlawfully deprived those couples of the equal liberty of persons that is protected by the Fifth Amendment. As it stood, DOMA, “wr[ote] inequality into the entire United States Code.”26
That “written inequ ality” in DOMA Se ction 3 extended to the ER ISA definition of “Spouse.” Prior to the Court’s decision in Windsor, under the plain la nguage o f ER ISA, the Code, and the Plan at is sue in this case, qualified retirement plans were under no obligation to provide benefits to same-sex Spouses. Following the Court’s ruling, the term “Spouse” is no longer unconstitutionally restricted to members of the opposite sex , but now rightfully includes those same-sex spouses in “otherwise valid marriages.”

D. Ms. Tobits is Ms. Farley’s “Spouse”

There

can be no doubt that Ms. Tobits is Ms. Farley’s “surviving Spouse” under the Plan

in light of the Supreme Court’s decision in Windsor. Ms. Tobits and Ms. Farley were married in

25 See Windsor,133 S. Ct. at 2683 (“[DOMA’s] comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms, however, does control over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law.”) (citing GAO, D. Shah, Defense of Marriage Act: Update to Prior Report 1 (GAO–04–353R, 2004)).
26 Id. at 2681.

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Toronto, Canada in 2006, just a year before Edith Windsor and Thea Spyer wed in Ontario. Ms.
Tobits possesses uncontroverted eviden ce of a va lid Canadian Mar riage Certificate solemnizing
that mar riage.27 Ms. Tobit s and Ms. F arley celebrated that mar riage with another cere mony in
Illinois, where the couple lived together until Ms. Farley’s untimely d eath in 2010. 28 Post-
Windsor, where a state recognizes a party as a “Surviving Spouse,” the federal government must
do the sam e with respect to ER ISA benefits—at lea st pu rsuant to th e ex press lan guage o f the
ERISA-qualified Plan at issue he re. Th ere can be no doubt that Illinois, the couple’s place of
domicile, would conside r Ms. Tobits Ms. Farley’s “surviving Spouse”—indeed it alread y has
made that spec ific finding under state law. 29 Windsor makes clea r that whe re a state has
27 See Dkt. No. 3-4. 28 The Court need not decide any issues of Pe nnsylvania state law in th is matter, including that of the constitutionality of Pennsylvania’s state DOMA statute. Although the Plan contains a choice of law provision tha t m akes referenc e to P ennsylvania law, by the Plan’s terms, Pennsylvania law is only applicable to the extent it is not pre-empted by ERISA. Here, the Court finds that, based on the terms of this Plan, ERISA pre-empts Pennsylvania law entirely.
That this Pl an be longs to a com pany headqua rtered i n Pennsy lvania m atters no t. The i ssue here regards the definition of “Spouse” as supplied by ERISA—a feder al r egulation. For the pu rposes o f determining the definition of “Spouse,” if Courts were required to look at the state in which the policy was drafted, this could permit Plan adm inistrators and drafters to forum shop a mong those jurisdictions with state D OMA stat utes, in an e ffort to avoid providing benefits to same-sex couples w ith ot herwise valid marriages. A t its heart, ERISA was enacted to establish national uniformity among benefit plans. 120 CONG. REC. 29,197 (1974) (“With the preemption of the field, we round out the protection afforded participants by eliminating the threat of conflicting and inconsistent State and local regulation.”); see also Aetna Health Inc. v. Davila, 542 U.S. 200, 208, (2004). Today’s decision is consistent with that goal. 29 Illinois, like many states, does not issue marriage licenses to s ame-sex couples. By virtue of i ts civil union statute, however, Illinois can recognize same-sex marriages solemnized in other jurisdictions, such as Canada. See 750 Ill. Comp. Stat. A nn. 75/1 et seq. (West 2011); see also 750 Ill. Comp. Stat. A nn. 75/5 (describing purpose of Illinois Religious Fre edom Prot ection and Civil Union Act as “provid[ing] persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses”.)
An O rder f rom the Circuit C ourt for C ook C ounty, Illinois, dat ed O ctober 21, 2011, dec lared M s. Tobits a party to a civil union with Ms. Farley and declared her Ms. Farley’s sole heir. See Dkt No. 57, Circuit Co urt of Cook , County , I ll. D epartment - Probate D ivision O rder D eclaring H eirship. Furthermore, that court granted Ms. Tobits’ request to become administrator, authorizing her to take possession of and collect the estate of the decedent and to do all acts required by law. Indeed, because the Illinois p robate Cou rt r ecognized Ms. T obits as the sole h eir to a c ivil un ion, it ac cepted a s v alid t he marriage between Ms. Tobits and Ms. Farley that took place in Canada in 2006. This Court takes judicial
11

Case 2:11-cv-00045-CDJ Document 144 Filed 07/29/13 Page 12 of 12
recognized a marriage as valid, the United States Constitution requires that the f ederal laws and regulations of this countr y acknowledge that mar riage. In light of th at, this Court finds that Ms. Tobits is Ms. Farley’s “Spouse” pursuant to the terms of the Plan. This finding alone is dispositive of the issue of the proper recipient of Ms. Farley’s death benefits.
IV. CONCLUSION For the foregoing reasons, judgment shall be entered for Jennifer Tobits. The proceeds of the Plan, which shall b e p aid in to the Re gistry of th e Court pursu ant to the accompanying Or der, shall be p aid in full to Jennifer Tobits. Plaintiff Cozen O’Connor is entitled to discharge of future liability to Defendants concerning the distribution of the Plan’s death benefits. An appropriate Order follows.
notice of these decisions as bearing a direct r elation to matters at issue before this Court. See Golden v. Cook, 293 F. Supp. 2d 546, 551 (W.D. Pa. 2003) (“[C]ourts are permitted to consider matters of which they m ay tak e j udicial not ice, i ncluding rec ords a nd repo rts o f adm inistrative b odies . . . and pub licly available records and transcripts from j udicial proceedings in related or underlying cases w hich have a direct relation to the matters at issue. “). As this Canadian marriage was deemed valid, albeit under the nominal title of “civil union” in Illinois, there can be no dispute that Ms. Tobits is a “surviving Spouse” pursuant to the Plan.
12

 
 Case 2:11-cv-00045-CDJ Document 145 Filed 07/29/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COZEN O’CONNOR, P.C., Plaintiff,
v. JENNIFER J. TOBITS, et al.
Defendants.

:

CIVIL ACTION

:

:

NO. 11-0045

:

:

:

:

:

:

ORDER AND NOW, this 29th day of July 2013, upon consideration of Cozen O’Connor’s First Amended Complaint for Interpleader, dated January 24, 2011 (Dkt. No. 3); Defendant Farleys’ Answer, Counterclaim, and Crossclaim, dated August 1, 2011 (Dkt. No. 14); Defendant Tobits’ Answer, Affirmative Defenses, Counterclaim and Cross-Claims To Interpleader First Amended Complaint, dated August 1, 2011 (Dkt. No. 15); Defendant Farleys’ Motion To Dismiss Jennifer J. Tobits’ Crossclaims Pursuant to FRCP 12(b)(6), dated August 22, 2011 (Dkt. No. 25); Plaintiff Cozen O’Connor’s Motion for Judgment on the Pleadings Pursuant to Rule 12(c), dated September 8, 2011, (Dkt. No. 31); Cross-Claimant Tobits’ Motion for Judgment on the Pleadings as to the Farleys’ Cross-Claim and Counterclaim For ERISA Relief, dated September 13, 2011, (Dkt. No. 36), and the various responses thereto, it is hereby ORDERED that: 1) Pursuant to the terms of the Cozen O’Connor Profit-Sharing Plan and applicable law, Jennifer Tobits is the “surviving Spouse” of Sarah Ellyn Farley; 2) Cozen O’Connor’s First Amended Complaint for Interpleader is GRANTED to the extent that Cozen shall pay into the Registry of the Court all amounts due under the Plan; 3) As Sarah Ellyn Farley’s “surviving Spouse,” Defendant Jennifer Tobits is entitled to an award of all monies paid in the Registry of the Court after the deposit is completed;

1

Case 2:11-cv-00045-CDJ Document 145 Filed 07/29/13 Page 2 of 2 4) Plaintiff Cozen O’Connor is entitled to discharge of future liability to Defendants
Jennifer Tobits and the Farleys concerning the distribution of the Plan’s death benefits; 5) Defendants and Cross-Claimants Farleys’ Motion to Dismiss is DENIED; 6) All other pending Motions are DENIED as MOOT; and 7) The Parties shall bear their own costs and attorneys’ fees.
BY THE COURT: /s/ C. Darnell Jones, II _________________________ C. DARNELL JONES, II J.
2

 
 Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 1 of 19
CLOSED,STANDARD
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:11−cv−00045−CDJ

COZEN O'CONNOR, P.C. v. TOBITS et al Assigned to: HONORABLE C. DARNELL JONES, II Cause: 29:1001 E.R.I.S.A.: Employee Retirement
Plaintiff

Date Filed: 01/04/2011 Date Terminated: 07/29/2013 Jury Demand: None Nature of Suit: 791 Labor: E.R.I.S.A. Jurisdiction: Federal Question

COZEN O'CONNOR, P.C.

represented by H. ROBERT FIEBACH COZEN O'CONNOR 1900 MARKET ST PHILADELPHIA, PA 19103 215−665−4166 Fax: 215−665−2013 Email: rfiebach@cozen.com ATTORNEY TO BE NOTICED

JILL M. CAUGHIE COZEN O'CONNOR 1900 MARKET ST PHILADELPHIA, PA 19103 215−665−2129 Email: jcaughie@cozen.com ATTORNEY TO BE NOTICED

V. Defendant JENNIFER J. TOBITS

represented by CHRISTOPHER F. STOLL NATIONAL CENTER FOR LESBIAN RIGHTS 870 MARKET ST STE 370 SAN FRANCISCO, CA 94102 415−392−6257 Email: cstoll@nclrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
SHANNON PRICE MINTER NATIONAL CENTER FOR LESBIAN RIGHTS 870 MARKET ST STE 370 SAN FRANCISCO, CA 94102 415−392−6257 Email: sminter@nclrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
AMY WHELAN NATIONAL CENTER FOR LESBIAN RIGHTS 870 MARKET ST STE 370 SAN FRANCISCO, CA 94102 415−365−1338 Email: awhelan@nclrights.org ATTORNEY TO BE NOTICED

Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 2 of 19

BENJAMIN L. JERNER JERNER &PALMER PC 5401 WISSAHICKON AVENUE PHILADELPHIA, PA 19144 215−843−6023 Email: bjerner@jplaw.com ATTORNEY TO BE NOTICED

JULIE H. WILENSKY LEWIS FEINBERG LEE RENAKER &JACKSON PC 476 − 9TH ST OAKLAND, CA 94607 510−839−6824 Email: jwilensky@lewisfeinberg.com PRO HAC VICE ATTORNEY TO BE NOTICED

MELANIE S. ROWEN NATIONAL CENTER FOR LESBIAN RIGHTS 870 MARKET ST STE 370 SAN FRANCISCO, CA 94102 415−392−6257 Email: mrowen@nclrights.org TERMINATED: 01/20/2012

NINA WASOW LEWIS FEINBERG LEE RENAKER &JACKSON PC 476 − 9TH ST OAKLAND, CA 94607 510−839−6824 Email: nwasow@lewisfeinberg.com PRO HAC VICE ATTORNEY TO BE NOTICED

TERESA S. RENAKER LEWIS FEINBERG LEE RENAKER &JACKSON PC 476 − 9TH ST OAKLAND, CA 94607 510−839−6824 Email: trenaker@lewisfeinberg.com PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant DAVID M. FARLEY

represented by AARON H. STANTON BURKE WARREN MACKAY &SERRITELLA PC 330 N WABASH AVE 22ND FL CHICAGO, IL 60611 312−840−7078 Email: astanton@burkelaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

JONATHAN W. MICHAEL BURKE WARREN MACKAY &SERRITELLA PC 330 N WABASH AVE 22ND FL CHICAGO, IL 60611 312−840−7049

Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 3 of 19

Email: jmichael@burkelaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

PETER C. BREEN THOMAS MORE SOCIETY 29 S. LASALLE ST. SUITE 440 CHICAGO, IL 60603 312−782−1680 Email: pbreen@thomasmoresociety.org PRO HAC VICE ATTORNEY TO BE NOTICED

THOMAS BREJCHA THOMAS MORE SOCIETY 29 S. LASALLE ST. SUITE 440 CHICAGO, IL 60603 312−782−1680 Email: tbrejcha@thomasmoresociety.org PRO HAC VICE ATTORNEY TO BE NOTICED

RANDALL LUKE WENGER INDEPENDENCE LAW CENTER 23 NORTH FRONT STREET HARRISBURG, PA 17101 717−657−4990 Fax: 717−545−8107 Email: rwenger@indlawcenter.org ATTORNEY TO BE NOTICED

Defendant
JOAN F. FARLEY h/w

represented by AARON H. STANTON (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

JONATHAN W. MICHAEL (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

PETER C. BREEN (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

THOMAS BREJCHA (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

RANDALL LUKE WENGER (See above for address) ATTORNEY TO BE NOTICED

V.
Respondent
THE UNITED STATES OF AMERICA

represented by JEAN LIN U.S. DEPT OF JUSTICE CIV DIV 20 MASSACHUSETTS AVE NW WASHINGTON, DC 20530

Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 4 of 19
202−514−3716 Email: jean.lin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
JUDSON O. LITTLETON U.S. DEPT OF JUSTICE 20 MASSACHUSETTS AVE NW WASHINGTON, DC 20530 202−305−8714 Email: judson.o.littleton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Movant BIPARTISAN LEGAL ADVISORY GROUP TERMINATED: 07/11/2013
Movant GAGE RALEY
Movant CONCERNED WOMEN FOR AMERICA
Movant FREDERICK DOUGLASS FOUNDATION

represented by KERRY W. KIRCHER U.S. HOUSE OF REPRESENTATIVES OFFICE OF GENERAL COUNSEL 219 CANNON HOUSE OFFICE BLDG WASHINGTON, DC 20515 202−225−9700 Email: kerry.kircher@mail.house.gov TERMINATED: 07/11/2013 LEAD ATTORNEY
HOWARD CHRISTOPHER BARTOLOMUCCI BANCROFT PLLC 1919 M STREET NW STE 470 WASHINGTON, DC 20036 202−234−0090 Email: cbartolomucci@bancroftpllc.com TERMINATED: 07/11/2013
represented by NATHAN DANIEL FOX BEGLEY, CARLIN &MANDIO, LLP 680 MIDDLETOWN BLVD. LANGHORNE, PA 19047 215−750−0110 Email: Nfox@begleycarlin.com ATTORNEY TO BE NOTICED
represented by EMILY M. BELL CLYMER &MUSSER PC 408 W. CHESTNUT ST. POBOX 1766 LANCASTER, PA 17608−1766 717−299−7101 Email: emily.bell@cmbclaw.com ATTORNEY TO BE NOTICED
represented by DALE SCHOWENGERDT ALLIANCE DEFENSE FUND 15100 N. 90TH ST SCOTTSDALE, AZ 85260 480−444−0020 Email: dale@telladf.org

Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 5 of 19

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

CHARLES W. PROCTOR , III LAW OFFICES OF PROCTOR LINDSAY &DIXON, LLC 1204 BALTIMORE PIKE SUITE 200 CHADDS FORD, PA 19317 610−361−8600 Email: cproctor@cplaw1.com ATTORNEY TO BE NOTICED

Movant
PARENTS AND FRIENDS OF EX−GAYS &GAYS (PFOX)

represented by WILLIAM A. BONNER LAW OFFICE OF WILLIAM A BONNER 12 VETERANS SQUARE POBOX 259 MEDIA, PA 19063 610−566−2703 Email: bonneresq@verizon.net ATTORNEY TO BE NOTICED

Movant THE HUMAN RIGHTS CAMPAIGN

represented by MARY CATHERINE ROPER ACLU OF PA PO BOX 40008 PHILADELPHIA, PA 19106 215−592−1513 Email: mroper@aclupa.org ATTORNEY TO BE NOTICED

Movant EQUALITY FORUM

represented by MARY CATHERINE ROPER (See above for address) ATTORNEY TO BE NOTICED

SUSAN KATZ HOFFMAN LITTLER MENDELSON, P.C. THREE PARKWAY SUITE 1400 1601 CHERRY STREET PHILADELPHIA, PA 19102 267−402−3015 Fax: 267−402−3131 Email: shoffman@littler.com ATTORNEY TO BE NOTICED

Movant PROFESSOR ROBERT P. GEORGE

represented by JOSHUA M. AUTRY Lavery Faherty 225 Market Street Suite 304 Harrisburg, PA 17101 717−233−6633 Fax: 717−233−7003 Email: jautry@laverylaw.com ATTORNEY TO BE NOTICED

ROBERT P. GEORGE

Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 6 of 19

PRINCETON UNIVERSITY DEPARTMENT OF POLITICS PRINCETON, NJ 08544 609−258−3270 ATTORNEY TO BE NOTICED

Movant SHERIF GIRGIS

represented by JOSHUA M. AUTRY (See above for address) ATTORNEY TO BE NOTICED

ROBERT P. GEORGE (See above for address) ATTORNEY TO BE NOTICED

Movant RYAN T. ANDERSON

represented by JOSHUA M. AUTRY (See above for address) ATTORNEY TO BE NOTICED

ROBERT P. GEORGE (See above for address) ATTORNEY TO BE NOTICED

Cross Claimant DAVID M. FARLEY

represented by PETER C. BREEN (See above for address) ATTORNEY TO BE NOTICED

RANDALL LUKE WENGER (See above for address) ATTORNEY TO BE NOTICED

Cross Claimant
JOAN F. FARLEY h/w

represented by PETER C. BREEN (See above for address) ATTORNEY TO BE NOTICED

RANDALL LUKE WENGER (See above for address) ATTORNEY TO BE NOTICED

V. Cross Defendant JENNIFER J. TOBITS
Counter Claimant DAVID M. FARLEY

represented by AMY WHELAN (See above for address) ATTORNEY TO BE NOTICED
BENJAMIN L. JERNER (See above for address) ATTORNEY TO BE NOTICED
MELANIE S. ROWEN (See above for address) TERMINATED: 01/20/2012
represented by PETER C. BREEN (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 7 of 19

Counter Claimant
JOAN F. FARLEY h/w

RANDALL LUKE WENGER (See above for address) ATTORNEY TO BE NOTICED
represented by PETER C. BREEN (See above for address) ATTORNEY TO BE NOTICED
RANDALL LUKE WENGER (See above for address) ATTORNEY TO BE NOTICED

V. Counter Defendant COZEN O'CONNOR, P.C.
Cross Claimant JENNIFER J. TOBITS

represented by H. ROBERT FIEBACH (See above for address) ATTORNEY TO BE NOTICED
JILL M. CAUGHIE (See above for address) ATTORNEY TO BE NOTICED
represented by AMY WHELAN (See above for address) ATTORNEY TO BE NOTICED
BENJAMIN L. JERNER (See above for address) ATTORNEY TO BE NOTICED
MELANIE S. ROWEN (See above for address) TERMINATED: 01/20/2012

V. Cross Defendant DAVID M. FARLEY
Cross Defendant JOAN F. FARLEY h/w
Counter Claimant JENNIFER J. TOBITS

represented by PETER C. BREEN (See above for address) ATTORNEY TO BE NOTICED
RANDALL LUKE WENGER (See above for address) ATTORNEY TO BE NOTICED
represented by PETER C. BREEN (See above for address) ATTORNEY TO BE NOTICED
RANDALL LUKE WENGER (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 8 of 19
CHRISTOPHER F. STOLL (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
SHANNON PRICE MINTER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AMY WHELAN (See above for address) ATTORNEY TO BE NOTICED
BENJAMIN L. JERNER (See above for address) ATTORNEY TO BE NOTICED
MELANIE S. ROWEN (See above for address) TERMINATED: 01/20/2012

V. Counter Defendant COZEN O'CONNOR, P.C.

represented by H. ROBERT FIEBACH (See above for address) ATTORNEY TO BE NOTICED
JILL M. CAUGHIE (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/04/2011
01/04/2011 01/04/2011 01/24/2011 01/24/2011 05/12/2011
05/19/2011

# Docket Text
1 COMPLAINT against DAVID M. FARLEY, JOAN F. FARLEY, JENNIFER J. TOBITS ( Filing fee $ 350 receipt number 035355.), filed by COZEN O'CONNOR, P.C.. (Attachments: # 1 Civil Cover Sheet, # 2 Case Management Track Form, # 3 Designation Form, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(jwl, ) (Entered: 01/05/2011)
2 Disclosure Statement Form pursuant to FRCP 7.1 by COZEN O'CONNOR, P.C..(jwl, ) (Entered: 01/05/2011)
Summons Issued as to DAVID M. FARLEY, JOAN F. FARLEY, JENNIFER J. TOBITS. Three Forwarded To: Counsel on 1/5/11 (jwl, ) (Entered: 01/05/2011)
3 AMENDED COMPLAINT against DAVID M. FARLEY, JOAN F. FARLEY, JENNIFER J. TOBITS, filed by PLFF COZEN O'CONNOR, P.C.(kw, ) (Entered: 01/25/2011)
Summons on Amended Complaint Issued as to DAVID M. FARLEY, JOAN F. FARLEY, JENNIFER J. TOBITS. Forwarded To: counsel on 1/25/11. (kw, ) (Entered: 01/25/2011)
4 ORDER THAT PLAINTIFF SHALL SHOW CAUSE IN WRITING AS TO WHY THIS MATTER SHOULD NOT BE DISMISSED FOR WANT OF PROSECUTION BY 5/20/2011. SIGNED BY HONORABLE C. DARNELL JONES, II ON 5/10/2011. 5/13/2011 ENTERED AND COPIES MAILED TO UNREPS, E−MAILED.(kp, ) (Entered: 05/13/2011)
5 Praecipe to Grant Joint Stipulation to Extend Time by COZEN O'CONNOR, P.C.. (CAUGHIE, JILL) (Entered: 05/19/2011)

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06/16/2011 06/16/2011 06/17/2011 06/17/2011 06/17/2011 06/17/2011
06/22/2011
06/22/2011 06/27/2011 07/25/2011 08/01/2011
08/01/2011 08/01/2011 08/01/2011 08/08/2011 08/08/2011

6 STIPULATION (SECOND) TO EXTEND TIME by COZEN O'CONNOR, P.C.. (CAUGHIE, JILL) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 6/20/2011 (nd, ). (Entered: 06/16/2011)
7 NOTICE by COZEN O'CONNOR, P.C. re 6 Stipulation Certificate of Service (CAUGHIE, JILL) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO CLERK/JUDGE FOR APPROVAL) Modified on 6/20/2011 (nd, ). (Entered: 06/16/2011)
8 NOTICE of Appearance by BENJAMIN L. JERNER, ESQ. on behalf of DEFT JENNIFER J. TOBITS, Certificate of Service. (kw, ) (Entered: 06/17/2011)
9 APPLICATION for admission of MELANIE S. ROWEN, ESQ. to appear pro hac vice, Statement, Certificate of Servce, filed by DEFT JENNIFER J. TOBITS. (filing fee paid on 6/17/11) (kw, ) (Entered: 06/17/2011)
10 APPLICATION for admission of AMY WHELAN, ESQ. to appear pro hac vice, Statement, Certificate of Servce, filed by DEFT JENNIFER J. TOBITS. (filing fee paid on 6/17/11) (kw, ) (Entered: 06/17/2011)
11 STIPULATION AND ORDER THAT DEFENDANTS SHALL HAVE UP TO AND INCLUDING 8/1/11 TO RESPOND TO PLAINTIFF'S AMENDED COMPLAINT. SIGNED BY HONORABLE C. DARNELL JONES, II ON 6/16/11. 6/20/11 ENTERED AND COPIES MAILED AND E−MAILED.(mbh, ) (Entered: 06/20/2011)
12 ORDER THAT APPLICATION OF MELANIE S. ROWEN, ESQ., TO PRACTICE IN THIS COURT PURSUANT TO L.R.C.P. 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 6/22/11. 6/23/11 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 06/23/2011)
13 ORDER THAT APPLICATION OF AMY WHELAN, ESQ., TO PRACTICE IN THIS COURT PURSUANT TO L.R.C.P. 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 6/22/11. 6/23/11 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 06/23/2011)
Letter to Attorney Jonathan W. Michael re: L.R. 83.5 and 83.5.2. (pod) (Entered: 06/27/2011)
Letter to Attorney Jonathan W. Michael re: L.R. 83.5 and 83.5.2. (pod) (Entered: 07/25/2011)
14 Defendant Farley's ANSWER to 3 Amended Complaint, CROSSCLAIM against JENNIFER J. TOBITS, COUNTERCLAIM against COZEN O'CONNOR, P.C. by DAVID M. FARLEY, JOAN F. FARLEY. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(WENGER, RANDALL) (Entered: 08/01/2011)
15 ANSWER to 3 Amended Complaint, CROSSCLAIM against DAVID M. FARLEY, JOAN F. FARLEY, COUNTERCLAIM against COZEN O'CONNOR, P.C. by JENNIFER J. TOBITS.(ROWEN, MELANIE) (Entered: 08/01/2011)
16 APPLICATION for admission of JULIE H. WILENSKY, ESQ. to appear pro hac vice, Statement, Certificate of Servce, filed by DEFT JENNIFER J. TOBITS. (filing fee paid on 8/1/11) (kw, ) (Entered: 08/02/2011)
17 APPLICATION for admission of TERESA S. RENAKER, ESQ. to appear pro hac vice, Statement, Certificate of Servce, filed by DEFT JENNIFER J. TOBITS. (filing fee paid on 8/1/11) (kw, ) (Entered: 08/02/2011)
18 MOTION for Pro Hac Vice for Peter C. Breen filed by DAVID M. FARLEY, JOAN F. FARLEY.Application, Statement, Certificate of Service.(WENGER, RANDALL) (filing fee paid on 8/11/11) Modified on 8/11/2011 (kw, ). (Entered: 08/08/2011)
19 MOTION for Pro Hac Vice for Thomas Brejcha filed by DAVID M. FARLEY, JOAN F. FARLEY.Application, Statement, Certificate of Service.(WENGER,

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08/08/2011 08/08/2011 08/22/2011
08/22/2011 08/22/2011 08/22/2011 08/22/2011 08/23/2011 08/23/2011 08/23/2011 08/24/2011
09/08/2011 09/08/2011 09/12/2011

RANDALL) (filing fee paid on 8/11/11) Modified on 8/11/2011 (kw, ). (Entered: 08/08/2011)
20 MOTION for Pro Hac Vice for Jonathan W. Michael filed by DAVID M. FARLEY, JOAN F. FARLEY.Application, Statement, Certificate of Service.(WENGER, RANDALL) (filing fee paid on 8/11/11) Modified on 8/11/2011 (kw, ). (Entered: 08/08/2011)
21 MOTION for Pro Hac Vice for Aaron H. Stanton filed by DAVID M. FARLEY, JOAN F. FARLEY.Application, Statement, Certificate of Service.(WENGER, RANDALL) (filing fee paid on 8/11/11) Modified on 8/11/2011 (kw, ). (Entered: 08/08/2011)
22 ANSWER to 14 Answer to Amended Complaint, Crossclaim, Counterclaim,,, and Affirmative Defenses by COZEN O'CONNOR, P.C., Certificate of Service. (Attachments: # 1 Exhibit Exhibits 1−3 to Answer to Farleys' Counterclaim)(CAUGHIE, JILL) Modified on 8/23/2011 (nd, ). (Entered: 08/22/2011)
23 ANSWER to 15 Answer to Amended Complaint, Crossclaim, Counterclaim and Affirmative Defenses by COZEN O'CONNOR, P.C., Certificate of Service. (Attachments: # 1 Exhibit Exhibits 1−6 to Tobits' Counterclaim)(CAUGHIE, JILL) Modified on 8/23/2011 (nd, ). (Entered: 08/22/2011)
24 Defendant Jennifer J. Tobits's ANSWER to 14 Answer to Amended Complaint, Crossclaim, Counterclaim,,, "Answer to Cross−Claim by Defendants David M. Farley and Joan F. Farley" by JENNIFER J. TOBITS, Certificate of Service. (WHELAN, AMY) Modified on 8/23/2011 (nd, ). (Entered: 08/22/2011)
25 MOTION to Dismiss Cross−Claims of Jennifer J. Tobits filed by DAVID M. FARLEY, JOAN F. FARLEY., Certificate of Service. (WENGER, RANDALL) Modified on 8/23/2011 (nd, ). (Entered: 08/22/2011)
26 Memorandum of Law in Support re 25 MOTION to Dismiss Cross−Claims of Jennifer J. Tobits filed by DAVID M. FARLEY, JOAN F. FARLEY, Certificate of Service. (WENGER, RANDALL) Modified on 8/23/2011 (nd, ). (Entered: 08/22/2011)
27 NOTICE by JENNIFER J. TOBITS of Federal Constitutional Question (WHELAN, AMY) (Entered: 08/23/2011)
28 NOTICE by JENNIFER J. TOBITS of State Constitutional Question (WHELAN, AMY) (Entered: 08/23/2011)
29 CERTIFICATE OF SERVICE by JENNIFER J. TOBITS re 15 Answer to Amended Complaint, Crossclaim, Counterclaim Pursuant to ERISA Section 502(h) (WHELAN, AMY) (Entered: 08/23/2011)
30 ORDER THAT A FED. R. CIV. P. 16 CONFERENCE SHALL BE HELD BY TELEPHONE ON 10/4/2011 AT 11:00 A.M. IT IS FURTHER ORDERED THAT PARTIES SHALL MAKE THE REQUIRED INITIAL DISCLOSURES PURSUANT TO F.R.C.P. 26(a) WITHIN 14 DAYS OF THE DATE OF THIS ORDER, ETC. SIGNED BY HONORABLE C. DARNELL JONES, II ON 8/23/11. 8/24/11 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 08/24/2011)
31 MOTION for Judgment on the Pleadings filed by COZEN O'CONNOR, P.C..Memorandum, Certificate of Service..(CAUGHIE, JILL) (Entered: 09/08/2011)
32 CERTIFICATE OF SERVICE by COZEN O'CONNOR, P.C. re 31 MOTION for Judgment on the Pleadings (CAUGHIE, JILL) (Entered: 09/08/2011)
33 MOTION for Judgment on the Pleadings and Opposition to the Farleys' Motion to Dismiss filed by JENNIFER J. TOBITS.Memorandum. (Attachments: # 1 Exhibit A−Part 1, # 2 Exhibit A−Part 2, # 3 Exhibit B)(WHELAN, AMY) Modified on 9/13/2011 (afm, ).(FILED IN ERROR BY ATTORNEY, REFILING CORRECT DOCUMENT) (Entered: 09/12/2011)

Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 11 of 19

09/12/2011 09/12/2011 09/13/2011 09/13/2011 09/13/2011 09/13/2011 09/13/2011 09/13/2011 09/13/2011 09/13/2011
09/22/2011 09/23/2011 09/26/2011 09/28/2011

34 Proposed Pretrial Order Granting Jennifer Tobits's Motion for Judgment on the Pleadings and Denying the Farleys' Motion to Dismiss by JENNIFER J. TOBITS. (WHELAN, AMY) (Entered: 09/12/2011)
35 CERTIFICATE of Counsel Regarding Service of Jennifer Tobits's Motion for Judgment on the Pleadings and Opposition to the Farleys' Motion to Dismiss by AMY WHELAN on behalf of JENNIFER J. TOBITS(WHELAN, AMY) (Entered: 09/12/2011)
36 MOTION for Judgment on the Pleadings and Opposition to the Farleys' Motion to Dismiss filed by JENNIFER J. TOBITS.CORRECTED FILING. (Attachments: # 1 Exhibit A−Part 1, # 2 Exhibit A−Part 2, # 3 Exhibit B)(WHELAN, AMY) (Entered: 09/13/2011)
37 ORDER THAT APPLICATION OF PETER C. BREEN, ESQ., TO PRACTICE IN THIS COURT PURSUANT TO L.R.C.P. 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/13/11.9/14/11 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 09/14/2011)
38 ORDER THAT APPLICATION OF THOMAS BREJCHA, ESQ., TO PRACTICE IN THIS COURT PURSUANT TO L.R.C.P. 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/13/11.9/14/11 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 09/14/2011)
39 ORDER THAT APPLICATION OF JONATHAN W. MICHAEL, ESQ., TO PRACTICE IN THIS COURT PURSUANT TO L.R.C.P. 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/13/11.9/14/11 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 09/14/2011)
40 ORDER THAT APPLICATION OF AARON H. STANTON, ESQ., TO PRACTICE IN THIS COURT PURSUANT TO L.R.C.P. 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/13/11.9/14/11 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 09/14/2011)
41 ORDER THAT APPLICATION OF JULIE H. WILENSKY, ESQ., TO PRACTICE IN THIS COURT PURSUANT TO L.R.C.P. 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/13/11.9/14/11 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 09/14/2011)
42 ORDER THAT APPLICATION OF TERESA S. RENAKER, ESQ., TO PRACTICE IN THIS COURT PURSUANT TO L.R.C.P. 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/13/11.9/14/11 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 09/14/2011)
43 ORDER THAT THE F.R.C.P. 16 CONFERENCE SCHEDULED FOR 10/4/2011 IS POSTPONED PENDING RESOLUTION OF OUTSTANDING MOTIONS. THE COURT WILL HOLD ORAL ARGUMENT ON PENDING MOTIONS ON 11/8/2011 AT 3:30 P.M., ETC. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/13/11.9/14/11 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 09/14/2011)
44 RESPONSE in Opposition re 31 MOTION for Judgment on the Pleadings filed by JENNIFER J. TOBITS. (WHELAN, AMY) (Entered: 09/22/2011)
45 RESPONSE in Opposition re 31 MOTION for Judgment on the Pleadings filed by DAVID M. FARLEY, JOAN F. FARLEY, Certificate of Service. (BREEN, PETER) Modified on 9/26/2011 (nd, ). (Entered: 09/23/2011)
46 MOTION for Extension of Time to File Response/Reply filed by DAVID M. FARLEY, JOAN F. FARLEY.Certificate of Service.(BREEN, PETER) (Entered: 09/26/2011)
47 ORDER THAT DAVID &JOAN FARLEY'S UNOPPOSED MOTION FOR A BRIEF EXTENSION OF TIME TO RESPOND TO JENNIFER TOBITS'

Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 12 of 19

09/29/2011
10/04/2011 10/11/2011 10/11/2011 10/12/2011 10/24/2011 10/25/2011 10/27/2011
10/28/2011 10/28/2011 11/04/2011 11/04/2011

MOTION FOR JUDGMENT ON THE PLEADINGS, ETC. IS GRANTED. THE FARLEYS SHALL HAVE UNTIL 10/3/2011 TO RESPOND TO JENNIFER TOBITS' "MOTION FOR JUDGMENT ON THE PLEADINGS REGARDING THE FARLEYS' CROSS−CLAIM AND COUNTERCLAIM FOR RELIEF AND HER OPPOSITION TO THE FARLEYS' MOTION TO DISMISS." SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/27/11. 9/28/11 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 09/28/2011)
48 ORDER THAT THE COURT'S ORDER DATED SEPTEMBER 13, 2011, IS AMENDED TO REFLECT THAT ORAL ARGUMENT ON THE PENDING MOTIONS WILL BE HELD ON 12/12/2011 10:00 AM BEFORE HONORABLE C. DARNELL JONES II, ETC. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/28/2011. 9/29/2011 ENTERED MAILED TO COUNSEL AND COPIES E−MAILED.(lbs, ) (Entered: 09/29/2011)
49 RESPONSE in Opposition re 36 MOTION for Judgment on the Pleadings and Opposition to the Farleys' Motion to Dismiss, 33 MOTION for Judgment on the Pleadings and Opposition to the Farleys' Motion to Dismiss filed by DAVID M. FARLEY, JOAN F. FARLEY. (BREEN, PETER) (Entered: 10/04/2011)
50 APPLICATION FOR ADMISSION TO THE COURT PRO HAC VICE OF NINA WASOW ON BEHALF OF JENNIFER D. TOBITS. CERTIFICATE OF SERVICE, SPONSORS STATEMENT, PROPOSED ORDER. (FILING FEE PAID, $40, 051045) (kp, ) (Entered: 10/11/2011)
51 MOTION for Leave to File REPLY to Response to Motion re 36 MOTION for Judgment on the Pleadings and Opposition to the Farleys' Motion to Dismiss and Memorandum / Motion for Permission to File Same filed by JENNIFER J. TOBITS. (WHELAN, AMY) Modified on 10/12/2011 (nd). (Entered: 10/11/2011)
52 ORDER THAT APPLICATION OF NINA WASOW, ESQ., TO PRACTICE IN THIS COURT PURSUANT TO L.R.C.P. 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 10/12/11. 10/13/11 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 10/13/2011)
53 NOTICE by THE UNITED STATES OF AMERICA re 27 Notice (Other) Acknowledgement of Constitutional Challenge (LITTLETON, JUDSON) (Entered: 10/24/2011)
54 RESPONSE in Opposition re 51 MOTION for Leave to File filed by DAVID M. FARLEY, JOAN F. FARLEY, Certificate of service. (BREEN, PETER) Modified on 10/26/2011 (nd, ). (Entered: 10/25/2011)
55 ORDER THAT PARTIES SHALL SUBMIT SUPPLEMENTAL BRIEFING ON SUBJECTS AS DESCRIBED HEREIN, ETC. THE UNITED STATES MAY MOVE TO INTERVENE BY 12/30/2011, ETC. ORAL ARGUMENT ON PENDING MOTIONS IS RESCHEDULED FOR 3/12/2012 AT 2:30 P.M., ETC. SIGNED BY HONORABLE C. DARNELL JONES, II ON 10/27/11. 10/28/11 ENTERED AND COPIES E−MAILED.(kw, ) (Entered: 10/28/2011)
56 MOTION to Strike 54 Response in Opposition to Motion filed by JENNIFER J. TOBITS., Certificate of Service.(WHELAN, AMY) Modified on 10/31/2011 (nd, ). (Entered: 10/28/2011)
57 NOTICE by JENNIFER J. TOBITS "Request for Judicial Notice", Certificate of Service. (WHELAN, AMY) Modified on 10/31/2011 (nd, ). (Entered: 10/28/2011)
58 MOTION to Intervene filed by BIPARTISAN LEGAL ADVISORY GROUP.Certificate of Service. (Attachments: # 1 Answer to Cozen O'Connor's First Amended Complaint for Interpleader, # 2 Text of Proposed Order)(KIRCHER, KERRY) (Entered: 11/04/2011)
59 Memorandum in Support re 58 MOTION to Intervene filed by BIPARTISAN LEGAL ADVISORY GROUP, Certificate of Service. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(KIRCHER, KERRY) Modified on 11/7/2011 (nd, ). (Entered: 11/04/2011)

Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 13 of 19

11/14/2011 11/14/2011 11/20/2011 11/20/2011 11/21/2011 11/21/2011 11/28/2011 11/29/2011
12/01/2011
12/01/2011 12/02/2011 12/02/2011 12/02/2011 12/02/2011

60 ORDER THAT CROSS CLAIMANT'S MOTION FOR LEAVE TO FILE A REPLY BRIEF IS HEREBY GRANTED; CROSS CLAIMANT'S MOTION TO STRIKE IS HEREBY DENIED...ETC. SIGNED BY HONORABLE C. DARNELL JONES, II ON 11/14/2011.11/14/2011 ENTERED AND COPIES E−MAILED.(kp, ) (Entered: 11/14/2011)
61 NOTICE by DAVID M. FARLEY, JOAN F. FARLEY re 57 Notice (Other) in Opposition (BREEN, PETER) (Entered: 11/14/2011)
62 NOTICE by JENNIFER J. TOBITS Second Request for Judicial Notice, Certificate of Service. (WHELAN, AMY) Modified on 11/21/2011 (nd, ). (Entered: 11/20/2011)
63 RESPONSE in Opposition re 58 MOTION to Intervene filed by JENNIFER J. TOBITS, Certificate of Service. (WHELAN, AMY) Modified on 11/21/2011 (nd, ). (Entered: 11/20/2011)
64 MOTION to Intervene As of Right filed by THE UNITED STATES OF AMERICA.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(LITTLETON, JUDSON) (Entered: 11/21/2011)
65 RESPONSE to Motion re 58 MOTION to Intervene filed by THE UNITED STATES OF AMERICA. Certificate of Service.(LITTLETON, JUDSON) Modified on 11/22/2011 (ahf, ). (Entered: 11/21/2011)
66 MOTION for Leave to File Reply Brief in Support of Motion for Leave to Intervene filed by BIPARTISAN LEGAL ADVISORY GROUP.Memorandum; Certificate of Counsel; Certificate of Service. (Attachments: # 1 Text of Proposed Order Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(KIRCHER, KERRY) (Entered: 11/28/2011)
67 ORDER THAT MOTION OF UNITED STATES TO INTERVENE AS OF RIGHT IS GRANTED. THE UNITED STATES MAY FILE A RESPONSE TO MOTION TO INTERVENE FILED BY THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES NO LATER THAN 12/23/2011. FOR PLANNING PURPOSES, ORAL ARGUMENT ON THE BLAG'S MOTION TO INTERVENE IS SCHEDULED FOR 1/10/2012 AT 3:30 P.M., ETC. SIGNED BY HONORABLE C. DARNELL JONES, II ON 11/28/11. 11/30/11 ENTERED AND COPIES E−MAILED.(kw, ) (Entered: 11/30/2011)
68 ORDER THAT THE UNCONTESTED MOTION OF PROPOSED INTERVENOR FOR LEAVE TO FILE A REPLY BRIEF IS GRANTED; THE PROPOSED REPLY BRIEF ATTACHED AS EXHIBIT C TO THE MOTION IS DEEMED FILED AS OF THIS DATE. SIGNED BY HONORABLE C. DARNELL JONES, II ON 11/30/2011. 12/1/2011 ENTERED AND COPIES E−MAILED.(md) (Entered: 12/01/2011)
69 REPLY filed by BIPARTISAN LEGAL ADVISORY GROUP in Support of its 58 Motion to Intervene for a Limited Purpose, Certificate of Service. (md) (Entered: 12/01/2011)
70 NOTICE by COZEN O'CONNOR, P.C. re 55 Order, Set Deadlines, Set Motion and RRDeadlines/Hearings,,, Cozen O'Connor, P.C.'s Supplemental Brief pursuant to Court's October 27, 2011 Order (CAUGHIE, JILL) (Entered: 12/02/2011)
71 NOTICE by BIPARTISAN LEGAL ADVISORY GROUP re 55 Order, Set Deadlines, Set Motion and RRDeadlines/Hearings,,, Memorandum Regarding Constitutionality of DOMA Section 3 (Attachments: # 1 Exhibit A)(KIRCHER, KERRY) (Entered: 12/02/2011)
72 Memorandum of Law in Support of Farleys' Motion to Dismiss and in Opposition to Tobits' Motion for Judgment on the Pleadings re 36 MOTION for Judgment on the Pleadings and Opposition to the Farleys' Motion to Dismiss, 25 MOTION to Dismiss Cross−Claims of Jennifer J. Tobits Supplemental brief filed by DAVID M. FARLEY, JOAN F. FARLEY. (WENGER, RANDALL) (Entered: 12/02/2011)
73 Memorandum In Support re 36 MOTION for Judgment on the Pleadings and Opposition to the Farleys' Motion to Dismiss (Jennifer Tobits's Supplemental Brief

Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 14 of 19

12/06/2011 12/09/2011 12/09/2011 12/09/2011 12/09/2011 12/09/2011 12/12/2011 12/15/2011
12/16/2011
12/16/2011 12/16/2011 12/16/2011 12/16/2011 12/16/2011

Pursuant to the Court's October 27, 2011 Order) filed by JENNIFER J. TOBITS. (WHELAN, AMY) (Entered: 12/02/2011)
74 NOTICE by BIPARTISAN LEGAL ADVISORY GROUP (KIRCHER, KERRY) (Entered: 12/06/2011)
75 MOTION FOR LEAVE TO FILE AMICUS BRIEF OF GAGE RALEY AND MEMORANDUM IN SUPPORT, CERTIFICATE OF SERVICE, FILED BY GAGE RALEY. (AMICUS CURIAE BRIEF ATTACHED)(kw, ) (Entered: 12/09/2011)
76 MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND MEMORANDUM IN SUPPORT, CERTIFICATE OF SERVICE, FILED BY CONCERNED WOMEN OF AMERICA. (AMICUS CURIAE BRIEF ATTACHED)(kw, ) (Entered: 12/09/2011)
77 MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND MEMORANDUM IN SUPPORT, CERTIFICATE OF SERVICE, FILED BY FREDERICK DOUGLASS FOUNDATION. (AMICUS CURIAE BRIEF ATTACHED)(kw, ) (Entered: 12/09/2011)
78 MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND MEMORANDUM IN SUPPORT, CERTIFICATE OF SERVICE, FILED BY PARENTS AND FRIENDS OF EX−GAYS &GAYS (PFOX).(AMICUS CURIAE BRIEF ATTACHED)(kw, ) (Entered: 12/09/2011)
80 MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND MEMORANDUM IN SUPPORT, CERTIFICATE OF SERVICE, FILED BY ROBERT P. GEORGE, SHERIF GIRGIS, RYAN T. ANDERSON.(AMICUS CURIAE BRIEF ATTACHED)(kw, ) (Entered: 12/13/2011)
79 MOTION for Leave to Appear As Amici filed by EQUALITY FORUM, THE HUMAN RIGHTS CAMPAIGN.Memorandum. (Attachments: # 1 Exhibit CV of Susan Katz Hoffman, # 2 Exhibit Proposed brief of amici, # 3 Text of Proposed Order)(ROPER, MARY) (Entered: 12/12/2011)
81 BRIEF in Opposition re 80 MOTION for Leave to File, 76 MOTION for Leave to File, 78 MOTION for Leave to File, 77 MOTION for Leave to File, 79 MOTION for Leave to Appear As Amici, 75 MOTION for Leave to File Cozen O'Connor's Omnibus Opposition to Motions for Leave to File an Amicus Curiae Brief filed by COZEN O'CONNOR, P.C., Certificate of service. (CAUGHIE, JILL) Modified on 12/16/2011 (nd, ). (Entered: 12/15/2011)
82 ORDER THAT MOTION TO INTERVENE (DOC. #58) IS GRANTED. MOTIONS FOR LEAVE TO FILE AMICUS BRIEF (DOC. NOS. 75, 76, 77, 78, 79 &80) ARE GRANTED. THE CLERK OF COURT SHALL APPROPRIATELY DOCKET THE PROPOSED AMICUS BRIEFS. MOTION FOR LEAVE TO FILE A REPLY BRIEF IS GRANTED &THE MOTION TO STRIKE IS DENIED, ETC. ORAL ARGUMENT ON MOTION TO INTERVENE SCHEDULED FOR 1/10/2012 IS CANCELED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 12/15/11.12/16/11 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 12/16/2011)
83 Brief of amici curiae, Certificate of Compliance, Certificate of Service, filed by RYAN T. ANDERSON, ROBERT P. GEORGE, SHERIF GIRGIS. (kw, ) (Entered: 12/16/2011)
84 Amicus Brief of amicus curiae, Certificate of Compliance, Certificate of Service, filed by GAGE RALEY. (kw, ) (Entered: 12/16/2011)
85 Amicus curiae Brief, Certificate of Compliance, Certificate of Service, filed by CONCERNED WOMEN FOR AMERICA. (kw, ) (Entered: 12/16/2011)
86 Amicus Curiae Brief, Certificate of Compliance, Certificate of Service, filed by FREDERICK DOUGLASS FOUNDATION. (kw, ) (Entered: 12/16/2011)
87 Brief of amicus curiae, Certificate of Compliance, Certificate of Service, filed by PARENTS AND FRIENDS OF EX−GAYS &GAYS (PFOX). (kw, ) (Entered:

Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 15 of 19

12/16/2011 12/21/2011
12/21/2011
12/21/2011 12/21/2011 12/21/2011
12/23/2011 12/23/2011 12/27/2011 12/30/2011 01/04/2012
01/04/2012 01/11/2012
01/11/2012

12/16/2011)
88 Amicus Curiae Brief of HUMAN RIGHTS CAMPAIGN AND EQUALITY FORUM. (kw, ) (Entered: 12/19/2011)
89 NOTICE by BIPARTISAN LEGAL ADVISORY GROUP re 55 Order, Set Deadlines, Set Motion and RRDeadlines/Hearings,,, Response Memorandum of Intervenor the Bipartisan Legal Advisory Group of the U.S. House of Representatives Regarding the Constitutionality of DOMA Section 3 (KIRCHER, KERRY) (Entered: 12/21/2011)
90 NOTICE by COZEN O'CONNOR, P.C. re 88 Memorandum, 73 Memorandum, 55 Order, Set Deadlines, Set Motion and RRDeadlines/Hearings,,, Cozen O'Connor's Response Brief in Opposition to Jennifer Tobits's Supplemental Brief Pursuant to the Court's October 27, 2011 Order and the Amici Curiae Brief of the Human Rights Campaign and the Equality Forum (CAUGHIE, JILL) (Entered: 12/21/2011)
91 Memorandum of Law In Support of Motion to Strike Documents Referenced by BLAG and the Farleys 72 Memorandum, 71 Notice (Other) filed by JENNIFER J. TOBITS. (WHELAN, AMY) Modified on 12/22/2011 (nd). (Entered: 12/21/2011)
92 RESPONSE in Support re 36 MOTION for Judgment on the Pleadings and Opposition to the Farleys' Motion to Dismiss (Response to Cozen's, the Farleys' and BLAG's Briefs in Response to 10/27/11 Order) filed by JENNIFER J. TOBITS. (WHELAN, AMY) (Entered: 12/21/2011)
93 RESPONSE to Motion re 36 MOTION for Judgment on the Pleadings and Opposition to the Farleys' Motion to Dismiss, 25 MOTION to Dismiss Cross−Claims of Jennifer J. Tobits, 33 MOTION for Judgment on the Pleadings and Opposition to the Farleys' Motion to Dismiss Response Br. pursuant to 10/27/11 Order filed by DAVID M. FARLEY, JOAN F. FARLEY. (WENGER, RANDALL) (Entered: 12/21/2011)
94 Letter to Attorney Nathan Daniel Fox re: L.R. 83.5 and 83.5.2. (pod, ) **(NOTICE SENT IN ERROR)** Modified on 12/23/2011 (lisad, ). (Entered: 12/23/2011)
95 Letter to Attorney William A. Bonner re: L.R. 83.5 and 83.5.2. (pod, ) **(NOTICE SENT IN ERROR)** Modified on 12/23/2011 (lisad, ). (Entered: 12/23/2011)
96 NOTICE by FREDERICK DOUGLASS FOUNDATION Errata (Attachments: # 1 Errata Corrected Brief)(PROCTOR, CHARLES) (Entered: 12/27/2011)
97 Memorandum of Law re 64 MOTION to Intervene As of Right −− Brief of the United States Regarding the Constitutionality of Section 3 of DOMA filed by THE UNITED STATES OF AMERICA. (LITTLETON, JUDSON) (Entered: 12/30/2011)
98 RESPONSE in Opposition re 91 Memorandum of Law In Support of Motion to Strike Documents Referenced by BLAG and the Farleys filed by BIPARTISAN LEGAL ADVISORY GROUP, Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit B)(KIRCHER, KERRY) Modified on 1/5/2012 (lisad, ). (Entered: 01/04/2012)
99 RESPONSE in Opposition re 91 Memorandum of Law In Support of Motion to Strike Documents Referenced by BLAG and the Farleys filed by DAVID M. FARLEY, JOAN F. FARLEY. (BREEN, PETER) (Entered: 01/04/2012)
100 MOTION FOR LEAVE TO FILE A REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE DOCUMENTS REFERENCED BY BLAG AND THE FARLEYS filed by JENNIFER J. TOBITS, Brief, Certicate of Service.(REPLY BRIEF ATTACHED)(WHELAN, AMY) Modified on 1/20/2012 (md). (Entered: 01/11/2012)
101 Proposed Pretrial Order Granting Jennifer Tobits's Motion to Strike Documents Referenced by BLAG and the Farleys by JENNIFER J. TOBITS. (WHELAN, AMY) (Entered: 01/11/2012)

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01/13/2012 01/17/2012
01/17/2012 01/20/2012 01/20/2012 01/20/2012 02/02/2012 02/06/2012 02/06/2012 02/07/2012
02/07/2012
02/23/2012 03/02/2012 03/06/2012 03/06/2012

102 Memorandum in Support re 36 MOTION for Judgment on the Pleadings and Opposition to the Farleys' Motion to Dismiss (Ms. Tobits's Response to Brief of the United States) filed by JENNIFER J. TOBITS. (WHELAN, AMY) (Entered: 01/13/2012)
103 Defendant's Response to Request for Review of Plaintiff re 36 MOTION for Judgment on the Pleadings and Opposition to the Farleys' Motion to Dismiss, 25 MOTION to Dismiss Cross−Claims of Jennifer J. Tobits (The Farleys response to Brief of the United States) filed by DAVID M. FARLEY, JOAN F. FARLEY. (WENGER, RANDALL) (Entered: 01/17/2012)
104 NOTICE by BIPARTISAN LEGAL ADVISORY GROUP re 55 Order, Set Deadlines, Set Motion and RRDeadlines/Hearings,,, 97 Memorandum of DOJ re: Constitutionality of DOMA Section 3 (Attachments: # 1 Exhibit A)(KIRCHER, KERRY) (Entered: 01/17/2012)
105 RESPONSE in Opposition re 100 MOTION for Leave to File Reply Brief in Support of "Motion to Strike" filed by BIPARTISAN LEGAL ADVISORY GROUP. (Attachments: # 1 Text of Proposed Order)(KIRCHER, KERRY) (Entered: 01/20/2012)
106 NOTICE of Withdrawal of Appearance by AMY WHELAN on behalf of JENNIFER J. TOBITS(WHELAN, AMY) (Entered: 01/20/2012)
107 NOTICE by JENNIFER J. TOBITS of Supplemental Legal Authority (WHELAN, AMY) (Entered: 01/20/2012)
108 NOTICE by THE UNITED STATES OF AMERICA re 103 Response to Brief and Statement, 104 Notice (Other), 55 Order, Set Deadlines, Set Motion and RRDeadlines/Hearings,,, 102 Memorandum Regarding Reply Brief (LITTLETON, JUDSON) (Entered: 02/02/2012)
109 APPLICATION for admission of SHANNON PRICE MINTER, ESQ. to appear pro hac vice, Statement, Certificate of Service, filed by DEFT JENNIFER J. TOBITS.(filing fee paid on 2/6/12) (kw, ) (Entered: 02/06/2012)
110 APPLICATION for admission of CHRISTOPHER F. STOLL, ESQ. to appear pro hac vice, Statement, Certificate of Service, filed by DEFT JENNIFER J. TOBITS.(filing fee paid on 2/6/12) (kw, ) (Entered: 02/06/2012)
111 ORDER THAT APPLICATION OF CHRISTOPHER F. STOLL, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO L.R.C.P. 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 2/7/12. 2/8/12 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 02/08/2012)
112 ORDER THAT APPLICATION OF SHANNON PRICE MINTER, ESQ. TO PRACTICE IN THIS COURT PURSUANT TO L.R.C.P. 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 2/7/12. 2/8/12 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 02/08/2012)
113 NOTICE by JENNIFER J. TOBITS of Supplemental Authority (WHELAN, AMY) (Entered: 02/23/2012)
114 ORDER THAT ORAL ARGUMENT ON 3/12/2012 SHALL COMMENCE AT 1:00 P.M., ETC. SIGNED BY HONORABLE C. DARNELL JONES, II ON 3/1/12. 3/2/12 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 03/02/2012)
115 Response re 113 Notice (Other) of Supplemental Authority by BIPARTISAN LEGAL ADVISORY GROUP. (BARTOLOMUCCI, HOWARD) (Entered: 03/06/2012)
116 MOTION for Pro Hac Vice filed by ROBERT P. GEORGE.Applicant's Statement, Sponsor's Statement, Proposed Order and Certificate of Service.(AUTRY, JOSHUA) (Entered: 03/06/2012)

Case: 2:11-cv-00045-CDJ As of: 02/13/2015 08:04 PM EST 17 of 19

03/07/2012
03/07/2012
03/07/2012
03/14/2012 03/20/2012 03/20/2012
03/21/2012 03/26/2012 06/04/2012 06/11/2012 06/13/2012 07/13/2012 07/18/2012 07/23/2012 08/07/2012
08/07/2012 09/07/2012

117 APPLICATION/PETITION for those attorneys seeking to practice in this court pursuant to local rule of civil procedure 83.5.2(b) by FREDERICK DOUGLASS FOUNDATION. (PROCTOR, CHARLES) (filing fee paid on 3/21/12) Modified on 3/21/2012 (kw, ). (Entered: 03/07/2012)
118 ORDER THAT APPLICATION OF ROBERT P. GEORGE, ESQ., TO PRACTICE IN THIS COURT PURSUANT TO L.R.C.P. 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II 3/7/12. 3/7/12 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 03/07/2012)
119 ORDER THAT APPLICATION OF DALE SCHOWENGERDT, ESQ., TO PRACTICE IN THIS COURT PURSUANT TO L.R.C.P. 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II 3/7/12. 3/7/12 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 03/07/2012)
120 Statement Supplemental Information by EQUALITY FORUM. (HOFFMAN, SUSAN) (Entered: 03/14/2012)
121 TRANSCRIPT of Hearing held on 3/12/12, before Judge C. Darnell Jones, II. Court Reporter/Transcriber ESR. (kw, ) Modified on 4/26/2012 (afm, ). (Entered: 03/20/2012)
122 Notice of Filing of Official Transcript with Certificate of Service, re: 121 Transcript − PDF. 3/20/12 Entered and Copies E−mailed and Mailed. (kw, ) Modified on 4/26/2012 (afm, ). (TRANSCRIPT HELD ON 3/12/2012 IS RESTRICTED PER COURT DATED 4/20/2012) (Entered: 03/20/2012)
123 NOTICE by COZEN O'CONNOR, P.C. re 120 Statement Response to Human Rights Campaign and Equality Forum's Statement of Supplemental Authority (Attachments: # 1 Certificate of Service)(CAUGHIE, JILL) (Entered: 03/21/2012)
124 Response to Cozen &O'Connor Letter of March 21, 2012 by EQUALITY FORUM. (HOFFMAN, SUSAN) (Entered: 03/26/2012)
125 NOTICE by JENNIFER J. TOBITS of Supplemental Authorities (WHELAN, AMY) (Entered: 06/04/2012)
126 Response re 125 Notice (Other) of Supplemental Authority by BIPARTISAN LEGAL ADVISORY GROUP, Certificate of Service. (BARTOLOMUCCI, HOWARD) Modified on 6/12/2012 (nd, ). (Entered: 06/11/2012)
127 Response re 125 Notice of Supplemental Authority by DAVID M. FARLEY, JOAN F. FARLEY ). Certificate of Service.(WENGER, RANDALL) Modified on 6/14/2012 (ahf, ). (Entered: 06/13/2012)
128 NOTICE by JENNIFER J. TOBITS "Notice of Supplemental Authority" (WHELAN, AMY) (Entered: 07/13/2012)
129 Response re 128 Notice (Other) of Supplemental Authority by Jennifer Tobits' by BIPARTISAN LEGAL ADVISORY GROUP. (Attachments: # 1 Exhibit 1) (BARTOLOMUCCI, HOWARD) (Entered: 07/18/2012)
130 NOTICE by DAVID M. FARLEY, JOAN F. FARLEY re 128 Notice (Other) Response to Notice of Supplemental Authority (WENGER, RANDALL) (Entered: 07/23/2012)
131 ORDER THAT, TO ANY EXTENT IT IS NOT MOOT, THE MOTION FOR LEAVE TO FILE DOCKETED AT NO. 100 IS GRANTED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 8/6/2012.8/8/2012 ENTERED AND COPIES E−MAILED.(amas) (Entered: 08/08/2012)
132 CROSS−CLAIMANT JENNIFER TOBIT'S REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE DOCUMENTS REFERENCED BY BLAG AND THE FARLEYS (amas) (Entered: 08/14/2012)
133 MOTION for Leave to File Sur−Reply filed by BIPARTISAN LEGAL ADVISORY GROUP.Memorandum &Certification of Service. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Text of Proposed Order)(KIRCHER, KERRY) (Entered: 09/07/2012)

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09/13/2012 09/19/2012
09/24/2012 09/25/2012
09/27/2012 01/04/2013 07/08/2013 07/11/2013 07/11/2013 07/15/2013 07/29/2013 07/29/2013

134 DAVID M. FARLEY, JOAN F. FARLEY'S Notice of Supplemental Authority, Certificate of Service. (WENGER, RANDALL) Modified on 9/14/2012 (fh) (Entered: 09/13/2012)
135 ORDER THAT MOTION OF INTERVENOR−DEFT BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES FOR LEAVE TO FILE SUR−REPLY IN OPPOSITION TO DEFT JENNIFER TOBITS' MOTION TO STRIKE IS GRANTED. IT IS FURTHER ORDERED THAT INTERVENOR−DEFT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES SHALL FILE ITS SUR−REPLY WITHIN TEN CALENDAR DAYS OF THE DATE THIS ORDER IS ENTERED.SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/18/12. 9/20/12 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 09/20/2012)
136 JENNIFER J. TOBITS'S Response to DAVID AND JOAN FARLEY'S 134 Notice of Supplemental Authority, Certificate of Service. (STOLL, CHRISTOPHER) Modified on 9/25/2012 (fh) (Entered: 09/24/2012)
137 ORDER THAT THIS MATTER IS PLACED ON THE SUSPENSE DOCKET OF THE COURT PENDING THE OUTCOME OF RELEVANT CASES &ADDITIONAL RESEARCH ON THE PENDING MOTIONS. THE CASE SHALL REMAIN IN SUSPENSE PENDING FURTHER ORDER OF THE COURT.SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/25/12. 9/26/12 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 09/26/2012)
138 Sur−Reply Memorandum in Opposition re: 91 Memorandum of Law In Support of Motion to Strike Documents Referenced by BLAG and the Farleys filed by BIPARTISAN LEGAL ADVISORY GROUP, Certificate of Service. (Attachments: # 1 Exhibit A)(BARTOLOMUCCI, HOWARD) Modified on 9/28/2012 (fh) (Entered: 09/27/2012)
139 NOTICE by BIPARTISAN LEGAL ADVISORY GROUP of Recent Legal Developments (KIRCHER, KERRY) (Entered: 01/04/2013)
140 Consent MOTION to Withdraw as Intervenor−Defendant filed by BIPARTISAN LEGAL ADVISORY GROUP.. (Attachments: # 1 Text of Proposed Order)(KIRCHER, KERRY) (Entered: 07/08/2013)
141 NOTICE of Appearance by JEAN LIN on behalf of THE UNITED STATES OF AMERICA (LIN, JEAN) (Entered: 07/11/2013)
142 ORDER THAT UNOPPOSED MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES TO WITHDRAW AS INTERVENOR−DEFT IS GRANTED.SIGNED BY HONORABLE C. DARNELL JONES, II ON 7/11/13. 7/12/13 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 07/12/2013)
143 ORDER THAT THE ABOVE−CAPTIONED CASE IS REMOVED FROM SUSPENSE AND PLACED ON THE COURT'S ACTIVE DOCKET. SIGNED BY HONORABLE C. DARNELL JONES, II ON 7/15/2013. 7/15/2013 ENTERED AND COPIES MAILED AND E−MAILED.(stwe, ) (Entered: 07/15/2013)
144 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE C. DARNELL JONES, II ON 7/29/2013. 7/29/2013 ENTERED AND COPIES MAILED, E−MAILED.(kp, ) (Entered: 07/29/2013)
145 ORDER THAT COZEN O'CONNOR'S FIRST AMENDED COMPLAINT IS GRANTED TO THE EXTENT THAT COZEN SHALL PAY INTO THE REGISTRY OF THE COURT ALL AMOUNTS DUE UNDER THE PLAN. AS SARAH ELLYN FARLEY'S SURVIVING SPOUSE, DEFENDANT JENNIFER TOBITS IS ENTITLED TO AN AWARD OF ALL MONIES PAID IN THE REGISTRY OF THE COURT AFTER THE DEPOSIT IS COMPLETED. PLAINTIFF COZEN O'CONNOR IS ENTITLED TO DISCHARGE OF FUTURE LIABILITY TO DEFENDANTS JENNIFER TOBITS AND THE FARLEYS CONCERNING THE DISTRIBUTION OF THE PLAN'S DEATH BENEFITS.

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08/15/2013 08/28/2013
08/28/2013 08/30/2013 09/23/2013

DEFENDANTS AND CROSS−CLAIMANTS FARLEYS' MOTION TO DISMISS IS DENIED. ALL OTHER PENDING MOTIONS ARE DENIED AS MOOT, AND THE PARTIES SHALL BEAR THEIR OWN COSTS AND ATTORNEYS' FEES. SIGNED BY HONORABLE C. DARNELL JONES, II ON 7/29/2013. 7/29/2013 ENTERED AND COPIES MAILED, E−MAILED.(kp, ) (Entered: 07/29/2013)
The sum of $43,822.35 deposited into the Registry of the Court. (kw, ) (Entered: 08/15/2013)
146 NOTICE OF APPEAL as to 144 Memorandum and/or Opinion, 145 Order (Memorandum and/or Opinion),,, by DAVID M. FARLEY, JOAN F. FARLEY. Copies to Judge, Clerk USCA, Appeals Clerk and Certificate of Service. (BREEN, PETER) Modified on 8/29/2013 (nd, ). (Entered: 08/28/2013)
147 Clerk's Notice to USCA, re 146 Notice of Appeal. (kw, ) (Entered: 08/29/2013)
148 MOTION to Dismiss Appeal Pursuant to Fed R App P 42 filed by DAVID M. FARLEY, JOAN F. FARLEY.Certificate of Service.(BREEN, PETER) (Entered: 08/30/2013)
149 ORDER THAT MOTION FOR VOLUNTARY DISMISSAL TO F.R.A.P. 42 FILED BY DEFTS DAVID AND JOAN FARLEY IS GRANTED AS UNOPPOSED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/23/13.9/24/13 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (Entered: 09/24/2013)