Encyclopedia Britannica’s Motion to Dismiss Counts I and II of the Amended Complaint

is GRANTED.

ENTER:

\ on Ven

ames R. Zagel ,
UnitedStates District Judge

DATE: //~RS= 293


prerequisite to a § 510 action is an allegation that the employer-employee relationship...was
changed in some discriminatory or wrongful way.” Jd.!

Van Tosh argues that he can demonstrate the required change of relationship by looking
back in time. He claims that Encyclopedia Britannica retroactively changed its employment
relationship with him by terminating his monthly retirement benefits, benefits which were earned
during his employment (when an employee-employer relationship existed). However, I do not
read the Seventh Circuit’s opinions to extend to retroactive changes in an employment
relationship. The fact remains that Van Tosh elected to retire from Encyclopedia Britannica
almost ten years ago and, therefore, was not an employee of Encyclopedia Britannica when his
monthly benefit payments were terminated. Van Tosh’s status as a retired or former employee
was not changed by Encyclopedia Britannica’s decision to terminate his monthly benefit
payments, Since Van Tosh has not alleged a change in his employment relationship that is
concurrent with Encyclopedia Britannica’s allegedly retaliatory actions, Counts J and II of the

Amended Complaint are dismissed.

'See Also, McGath v. Auto-body N. Shore, 7 F.3d 665, 668-69 (“While there appear to be
some courts that have interpreted § 510 to encompass discrimination in the plan itself rather than
the employment relationship, our study of those cases has provided us with no basis to depart
from the established precedent of this circuit.”); Estate of Cencula v. John Alden Life Ins. Co,
No. 98 C 0562, 1998 U.S. Dist. LEXIS 16140, at *9 (N.D. Ill. Oct. 6, 1998) (“Deeming requires,
and McGath echoes, that a fundamental prerequisite to a Section 510 action is an allegation that
the employer-employee relationship was changed in some discriminatory or wrongful way.”)

3



*

Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Sockets | _—_JamesB.Zagel_—_| St

CASE NUMBER 03 C 2010 DATE 11/25/2003
CASE DAVID VAN TOSH vs. ENCYCLOPEDIA BRITANNICA, ET AL
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(eb) Q Filed motion of [ use listing in “Motion” box above.]

(2) Qo Brief in support of motion due

(3) im) Answer brief to motion due___. Reply to answer brief due.

(4) Qa Ruling/Hearingon set for____at

(5) QO Status hearing[held/continued to] [set for/re-set for]on___——ssetfor_ at
(6) Q Pretrial conference{held/continued to] [set for/re-set for]on___——ssetfor__—— sat
(7) QO Trial[set for/re-set for]}on__—__at

(8) Qo {Bench/Jury trial] [Hearing] held/continued to__at

(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) ClLocal Rule 41.1 COFRCP41(a)(1) O FRCP41(a)(2).

(10) WE [Otherdocketentry] Motion (14-1) to dismiss Counts I and II is granted. Enter memorandum
opinion and order.

al) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court, Document
No notices required. unterta Number
Notices mailed by judge’s staff. DEC ao 2003
Notified counsel by telephone. date docketed
Y | Docketing to mail notices.
lan@
Mail AO 450 form. 1409 LalyLsia fs: {) “4
Copy to judge/magistrate judge. MYa19 a .
courtroom Lich WY 2-929
pw deputy’s
initials +.
Date/time reddvba WI- UF UT
central Cletk’s Office railing deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
David Van Tosh,
Plaintiff, bog, (sre.
DEE P BS
v. No. 03 C 2010 “2 2003

Judge James B. Zagel
Encyclopedia Britannica Inc.,

Encyclopedia Britannica Inc. Supplemental
Officers Retirement Plan,

Encyclopedia Britannica Inc. Officers and
Directors as Administrators of the
Supplemental Officers Retirement Plan,

Defendants.

MEMORANDUM OPINION AND ORDER

On August 21, 2003, Plaintiff David Van Tosh filed an Amended Complaint against
Defendants Encyclopedia Britannica, Inc., Supplemental Officers Retirement Plan, and Officers
and Directors as Administrators of the Supplemental Officers Retirement Plan (“Encyclopedia
Britannica”) alleging that Encyclopedia Britannica violated § 502 and § 510 of the Employment
Retirement Income Security Act of 1974 (“ERISA”). Van Tosh is a retired officer of
Encyclopedia Britannica and a participant in its Supplemental Officer’s Retirement Plan. For
almost ten years after his retirement, Van Tosh received monthly retirement benefits in the
amount of $2,514.57. But, on June 1, 2001, Encyclopedia Britannica stopped making these
monthly payments claiming Van Tosh violated a non-compete clause in his retirement
agreement. Thereafter, Van Tosh filed this lawsuit to recover his benefit rights.

Counts I and II of the Amended Complaint allege that Encyclopedia Britannica violated §

510 of ERISA, 29 U.S.C. §1140, when it allegedly retaliated against Van Tosh by threatening to

yi



terminate Van Tosh’s monthly benefit payments. Van Tosh claims that Encyclopedia Britannica
began making partial payments after he filed this lawsuit but then threatened to terminate those
partial payments if the lawsuit was not dropped. Encyclopedia Britannica now moves to dismiss
Counts I and II of the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief can be granted.

A motion to dismiss under Rule 12(b)(6) is proper where it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In reviewing a motion to dismiss, the court must
construe all allegations in the complaint in the light most favorable to the plaintiff and accept all
well-pleaded facts and allegations as true. Bontkowski v. First Nat'l Bank, 998 F.2d 459, 461 (7th
Cir. 1993).

Encyclopedia Britannica argues that Van Tosh’s § 510 claims (Counts I and II of the
Amended Complaint) should be dismissed because, according to the established law in the
Seventh Circuit, § 510 applies only to situations where there has been interference with an
employment relationship. Encyclopedia Britannica claims that when Van Tosh retired he ended
their employment relationship, and, thus, Encyclopedia Britannica could not have changed their
employment relationship by terminating Van Tosh’s monthly benefit payments some ten years
later.

The Seventh Circuit has found that § 510's statutory purpose was “to protect the
employment relationship against actions designed to interfere with, or discriminate against, the
attainment of a pension right.” Deeming v. American Standard, Inc., 905 F.2d 1124, 1127 (7th

Cir. 1990). In light of this statutory purpose, the Seventh Circuit held that “a fundamental