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Susan Martin (AZ #014226) 

Jennifer Kroll (AZ #019859) 

Martin & Bonnett, P.L.L.C. 

4647 N. 32nd Street, Suite 185 

Phoenix, Arizona 85018 

Telephone: (602) 240-6900 

smartin@martinbonnett.com 

jkroll@martinbonnett.com 

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

George Dale Wallace; Dean Bertrand, 

Plaintiffs, on behalf of themselves 

and all others similarly situated 

 v. 

Desert States Employers & UFCW Unions 

Pension Plan; Board of Trustees of the Desert 

States Employers & UFCW Unions Pension 

Plan, Plan Administrator of the Desert States 

Employers & UFCW Unions Pension Plan, Defendants. 

Case No.: 

CLASS ACTION COMPLAINT 

 

Plaintiffs George Dale Wallace and Dean Bertrand, by and through undersigned 

counsel, hereby bring this action under the Employee Income Security Act of 1974, as 

amended (“ERISA”), 29 U.S.C. § 1001 et seq. for benefits and to declare their rights under 

the terms of a pension plan, to enforce rights and remedy violations of the terms of Desert 

States Employers & UFCW Unions Pension Plan and ERISA. 

JURISDICTION AND VENUE 

1. This Court has jurisdiction over this matter pursuant to § 502(e)(1) of ERISA, 

29 U.S.C. §1132(e)(1) and 28 U.S.C. §1331. 

2. Venue is proper pursuant to § 502(e)(2) of ERISA, 29 U.S.C. § 1132(e)(2), 

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and 28 U.S.C. § 1391 because the claims arose, the breach took place and the pension plan 

is administered in the District of Arizona, and Defendants do business and may be found 

in this District. 

PARTIES 

3. Plaintiff George Dale Wallace (“Mr. Wallace”) was employed by various 

employers under collective bargaining agreements between those employers and Local 99 

of the Desert States Employers & UFCW pursuant to which employers contributed to the 

Desert States Employers & UFCW Unions Pension Plan and predecessor plans (“Plan”). 

4. Mr. Wallace is a participant under the Plan within the meaning of § 3(7) of 

ERISA, 29 U.S.C. § 1002(7). 

5. Plaintiff Dean Bertrand (“Mr. Bertrand”) was employed by various 

employers under collective bargaining agreements between those employers and Local 99 

of the Desert States Employers & UFCW pursuant to which employers contributed to the 

Plan. 

6. Mr. Bertrand is a participant under the Plan within the meaning of § 3(7) of 

ERISA, 29 U.S.C. § 1002(7). 

7. Defendant Plan is a defined benefit employee pension benefit plan within the 

meaning of § 3(2) of ERISA, 29 U.S.C. § 1002(2), which was established and maintained 

for the purpose of providing retirement benefits for participants and their beneficiaries, 

including Plaintiffs. 

8. Defendant Board of Trustees of the Desert States Employers & UFCW 

Pension Plan is the Administrator of the Plan and a fiduciary with respect to the Plan within 

the meaning of §§ 3(16)(A) and 3(21)(A) of ERISA, 29 U.S.C. §§ 1002(16)(A), (21)(A). 

GENERAL ALLEGATIONS 

A. The Plan 

9. In or around January 1995, the Plan was established as a spin-off of a portion 

of the predecessor plan, the Rocky Mountain UFCW Unions & Employers Pension Plan 

(the “Rocky Mountain Plan”) pursuant to a Transfer Agreement setting forth the terms and 

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conditions governing the transfer of assets and liabilities from the Rocky Mountain Plan to 

the Plan. 

10. From on and after January 1, 1995, the Plan assumed responsibility for 

paying the vested accrued benefits owed to participants under the Rocky Mountain Plan 

for the liabilities and assets that were transferred to the Plan. 

11. Effective on or about July 1, 2005, the Plan accepted a transfer of certain 

assets and liabilities from the Intermountain Retail Food Industry Trust Fund Pension Plan 

(“Intermountain Plan”) to the Plan (hereinafter the Intermountain Plan and Rocky 

Mountain Plan are collectively referred to as “predecessor plans”). 

12. Effective on or about July 1, 2005, the Plan assumed responsibility for paying 

the vested accrued benefits owed to participants under the Intermountain Plan for the 

liabilities and assets that were transferred to the Plan. 

13. The Plan and the predecessor plans had suspension of benefit provisions 

providing for the suspension of pension benefits for participants who retired and returned 

to certain employment following commencement of employment. 

14. Prior to December 31, 1997, the Rocky Mountain Plan and the Plan’s 

suspension of benefits provisions only permitted the suspension of benefits for retired 

participants during periods prior to age 62 if they were working in employment covered by 

a collective bargaining agreement under which the employer was required to contribute to 

the Plan. 

15. Prior to December 31, 1997, the Rocky Mountain Plan and the Plan’s 

suspension of benefits provisions only permitted the suspension of benefits for retired 

participants during periods beginning at age 62 or older if they were working in 

employment in which the participant received 40 or more hours of service under the Plan. 

16. Upon information and belief, prior to May 2, 1991, the Intermountain Plan’s 

suspension of benefits provisions only permitted the suspension of benefits for retired 

participants if they returned to work in employment covered by a collective bargaining 

agreement under which the employer was required to contribute to the Intermountain Plan. 

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17. Upon information and belief, by amendment effective May 2, 1991 (“1991 

Intermountain Plan amendment”), the Intermountain Plan was amended to expand the 

suspension of benefits provisions by providing that on and after May 2, 1991, benefits were 

suspended if a retired participant had more than 40 hours of service per month of 

employment in the same industry, same trade or craft and same geographic area as the 

participant’s work under the Intermountain Plan. 

18. By amendment effective January 1, 1998 (“1998 Plan amendment”), the Plan 

was amended to expand the suspension of benefits provisions by providing that for all 

retired participants during periods prior to age 62, benefits were suspended for “any 

employment or self-employment in the retail food industry within the States of Arizona 

and New Mexico.” 

19. The 1998 Plan amendment also expanded the suspension of benefits 

provisions by providing that for all retired participants during periods on and after age 62, 

benefits were suspended if the participant worked 40 hours or 8 days or more in a month 

in employment or self-employment in the same industry and the same trade or craft and in 

any state in which employment was performed as a covered employee under the Plan. 

20. The 1991 Intermountain Plan amendment purporting to expand the Plan’s 

suspension of benefit rules reduced benefits that were already accrued in violation of 

ERISA 204(g), 29 U.S.C. § 1054(g). 

21. The 1998 Plan amendment purporting to expand the Plan’s suspension of 

benefit rules reduced benefits that were already accrued in violation of ERISA § 204(g), 

29 U.S.C. § 1054(g). 

22. No notice in advance of the 1991 Intermountain Plan amendment was given 

to participants informing them that their future benefit accruals would be reduced by the 

1991 Intermountain Plan amendment. 

23. No notice in advance of the 1998 Plan amendment was given to participants 

informing them that their future benefit accruals would be reduced by the 1998 Plan 

amendment. 

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24. In 2004, the Supreme Court rendered an opinion in Central Laborers Pension 

Fund v. Heinz, 541 U.S. 739 (2004), which held that plan amendments expanding the scope 

of suspension of benefits provisions (such as the 1991 Intermountain Plan amendment and 

the 1998 Plan amendment) violated ERISA § 204(g), 29 U.S.C. § 1054(g). 

25. Following the Supreme Court decision in Heinz, the Internal Revenue 

Service issued a revenue procedure, Rev. Proc. 2005-23, as amended, which was designed, 

inter alia, to afford plans and contributing employers protection from having the employer 

contributions and the plan disqualified under the Internal Revenue Code only if 

amendments were adopted prior to January 1, 2007. 

26. The IRS through Rev. Proc. 2005-32 explicitly stated that the revenue 

procedure “has no effect on the rights of any party under section 204(g) of the Employee 

Retirement Income Security Act of 1974 (ERISA) or any other law.” 

27. By amendment purporting to be effective as of June 7, 2004, the Plan 

purported to adopt an amendment retroactively re-adopting the unlawful May 1991 

Intermountain Plan amendment by imposing a new suspension of benefits provision that 

provided that benefits accrued prior to May 2, 1991 could be suspended if the participant 

returned in employment covered by a collective bargaining agreement under which the 

employer was required to contribute to the Plan and that benefits accrued on and after May 

2, 1991 could be suspended if the participant returned to work and worked 40 hours or 

more in employment or self-employment in the same industry and the same trade or craft 

and geographic area in which employment was performed as a covered employee under 

the Plan. 

28. By separate amendment, also purporting to be effective as of June 7, 2004, 

the Plan purported to adopt an amendment retroactively readopting the 1998 unlawful Plan 

amendment by imposing a new suspension of benefits provision that provided that benefits 

accrued after December 31, 1997 could be suspended during periods prior to age 62 if the 

retired participant worked in any employment in the retail food industry within the States 

of Arizona or New Mexico and that during periods on or after age 62, pension benefits 

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accrued after December 31, 1997 could be suspended if the retired participant worked 40 

hours or more or 7 days or more in employment or self-employment in the same industry 

and the same trade or craft and in any state in which employment was performed as a 

covered employee under the Plan. 

29. Although the two Plan amendments purporting to change the suspension of 

benefits rules effective as of June 7, 2004 (together referred to herein as the “2004 Plan 

amendments”) contain printed dates of December 22, 2006, upon information and belief 

the amendments were not adopted until sometime after January 1, 2007. 

B. Mr. Wallace’s and Mr. Bertrand’s Employment and Retirement 

30. From in or around April 1975 through in or around June 30, 2005, during 

his employment under the Plan and prior to his retirement, Mr. Wallace worked for grocery 

store employers who had contracts with United Food and Commercial Workers Local 99 

and that had signed pension agreements requiring the employer to make contributions to 

the Intermountain Plan and the Plan. 

31. From in or around October 1978 until his retirement in or around July 2012, 

during his employment under the Plan and prior to his retirement, Mr. Bertrand worked for 

grocery store employers in Tucson, Arizona who had contracts with the Desert States 

United Food and Commercial Workers Local 99 requiring the employer to make 

contributions to the Rocky Mountain Plan and/or the Plan. 

32. As a result of their employment, Mr. Wallace and Mr. Bertrand became 

vested and earned nonforfeitable rights to their accrued benefits under the Plan. 

33. During his employment prior to his retirement, Mr. Wallace worked as a deli 

manager for grocery stores in the retail food industry. 

34. During his employment prior to his retirement, Mr. Bertrand worked as a 

dairy manager for grocery stores in the retail food industry. 

35. Mr. Wallace retired effective November 1, 2010. 

36. Mr. Bertrand retired effective July 1, 2012. 

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37. Following Mr. Bertrand’s and Mr. Wallace’s retirement, they each began 

working in different positions in a different industry for different employers who had no 

contracts with the UFCW, who were not in the retail food industry and whose employees 

were not covered by the Plan. 

38. Beginning in 2012, Mr. Bertrand began working for Premier Concepts, a 

marketing company, as a representative. 

39. Premier Concepts is a marketing company that assists its customers with 

product placement to promote certain products. 

40. On a yearly basis, beginning in or around January 2013 and continuing 

through 2017, Mr. Bertrand submitted to the Plan required affidavits setting forth his work 

with Premier Concepts. 

41. On at least two of Mr. Bertrand’s affidavits that were submitted from January 

2013 through 2017, Defendants made a specific determination that Mr. Bertrand’s work 

with Premier Concepts was not in the retail food industry and noted that fact on Mr. 

Bertrand’s completed affidavits with the annotation “ok” and “out of industry.” 

42. Beginning in 2016, Mr. Wallace also began working for Premier Concepts. 

43. In their employment with Premier Concepts, neither Mr. Wallace nor Mr. 

Bertrand were employed in the same trade and craft that they worked in prior to their 

retirement when covered under the Plan. 

44. While employed during his covered employment under the Plan, Mr. 

Wallace worked in the retail food industry. 

45. While employed during his covered employment under the Plan, Mr. 

Bertrand worked in the retail food industry. 

46. While working for Premier Concepts, Mr. Bertrand and Mr. Wallace’s 

principal responsibilities included visiting various stores on behalf of Premier Concepts’ 

clients to take pictures of in-store displays and shelf stock conditions for marketing 

purposes. 

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47. As employees of Premier Concepts, neither Mr. Wallace nor Mr. Bertrand 

work on behalf of the stores that they are visiting but rather for the wholesale and 

manufacturing companies that sell goods to various stores. 

48. While working for Premier Concepts, Mr. Bertrand and Mr. Wallace are 

employed in the marketing industry. 

49. Mr. Bertrand and Mr. Wallace chose their employment with Premier 

Concepts because they would be working outside of their trade and craft and because 

Premier Concepts is not in the retail food industry. 

C. Suspension of Benefits and Denial of Appeal 

50. Although nothing had changed about his employment with Premier Concepts 

between 2013 and 2017, more than four years after he first told the Plan about his 

employment, by letter dated April 6, 2017, the Plan advised Mr. Bertrand that it considered 

his work with Premier Concepts to be work in the retail food industry and that he was not 

entitled to pension benefits from the Plan during months he worked for Premier Concepts. 

51. By letter dated April 6, 2017, the Plan advised Mr. Wallace that it considered 

his work with Premier Concepts work in the retail food industry and that he was not entitled 

to pension benefits from the Plan during months he worked for Premier Concepts. 

52. The Plan’s April 6, 2017 letters to Mr. Wallace and Mr. Bertrand also 

advised that the Plan would suspend benefits going forward and would collect purported 

overpayments of retirement benefits under the Plan by suspending 100% of their pension 

benefits for the first month their pension benefits were reinstated following their 

suspension of benefits and 25% of the monthly benefits thereafter. 

53. Mr. Bertrand and Mr. Wallace each timely appealed the Plan’s determination 

that their benefits were subject to suspension. 

54. By letter dated August 11, 2017, the Plan advised Mr. Bertrand that the 

decision to suspend a portion of his pension benefits had been upheld on appeal and that 

his benefits attributable to credit earned after December 31, 1997 would be suspended 

effective September 1, 2017. 

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55. The Plan’s August 11, 2017 letter to Mr. Bertrand stated that Mr. Bertrand 

purportedly had been overpaid pension benefits of $ 34,021.26 ($ 548.73 for 62 months) 

and that the Plan would withhold 100% of his first benefit payment after his pension 

benefits were reinstated and 25% of each monthly benefit thereafter until the purported 

overpayment was satisfied. 

56. By letter dated August 11, 2017, the Plan advised Mr. Wallace that the 

decision to suspend a portion of his pension benefits had been upheld on appeal and that 

because his work was purportedly in the same industry in which he worked while accruing 

benefits, his benefits attributable to credit earned after December 31, 1997 and benefits 

accrued though his prior participation in the Intermountain Plan would be suspended 

effective September 1, 2017. 

57. The Plan’s August 11, 2017 letter stated that Mr. Wallace purportedly had 

been overpaid pension benefits of $ 3,836.28 ($ 319.69 for 12 months) and that the Plan 

would withhold 100% of his first benefit payment after his pension benefits were reinstated 

and 25% of each monthly benefit thereafter until the purported overpayment was satisfied. 

58. Mr. Bertrand was under age 62 when his benefits were suspended. 

59. Mr. Wallace was over age 62 when his benefits were suspended. 

60. Mr. Bertrand and Mr. Wallace have fully exhausted their administrative 

remedies. 

61. Although the letters to Plaintiffs stated that the Plan would collect any 

purported overpayments when the Plan resumed payments of benefits following the 

suspension of their benefits, which has not yet occurred, the Plan withheld 100% of Mr. 

Bertrand and Mr. Wallace’s September 1, 2017 pension checks and did not pay any pension 

benefits for the October 1, 2017 pension payment due Mr. Bertrand and Mr. Wallace until 

on or about October 20, 2017. 

62. Despite multiple requests, Defendants have never provided any calculation 

of how they arrived at the amount of the purported overpayment to Mr. Bertrand and Mr. 

Wallace or the amount to be suspended. 

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63. In addition to the suspensions being unlawful, the amounts being suspended 

and the amounts of the purported overpayments were calculated incorrectly. 

64. Upon information and belief, 25% of the purported overpayments are being 

withheld from that portion of Plaintiffs’ benefits that the Plan acknowledged it was 

prohibited from suspending even though the benefits that were suspended have not been 

reinstated. 

D. Requests for Documents 

65. By letters dated September 7, 2017, Mr. Bertrand and Mr. Wallace requested 

relevant Plan, Intermountain Plan and Rocky Mountain Plan documents governing their 

rights to benefits and documents and information relevant to the decision to suspend their 

benefits and denial of their appeals. 

66. By letter dated September 29, 2017, the Plan provided some, but not all of 

the documents that Mr. Wallace and Mr. Bertrand requested but did not provide inter alia, 

the following documents requested by Plaintiffs: 

a. The Plan documents for the Rocky Mountain Plan governing Mr. 

Bertrand and Mr. Wallace’s rights to benefits and amendments 

thereto; 

b. The Plan documents for the Intermountain Plan governing Mr. 

Wallace’s right to benefits and amendments thereto; 

c. Notices and summaries of material modifications regarding changes 

to the Plan; 

d. Copies of the collective bargaining agreements in effect during Mr. 

Wallace and Mr. Bertrand’s employment; 

e. Documents and information showing the treatment of similarly 

situated Plan participants who worked following retirement, both in 

the retail food industry and in non-suspendible employment; 

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f. Agreements and other documents related to the merger and/or spin off 

of the plans under which Mr. Bertrand and Mr. Wallace were accruing 

benefits; 

g. A calculation showing how the Plan calculated the amounts it claimed 

were suspendible and the calculation of the amounts purportedly 

overpaid to Mr. Bertrand and Mr. Wallace; and 

h. All Plan rules and guidelines governing Mr. Bertrand’s and Mr. 

Wallace’s right to work after retirement and the suspension of 

benefits, including any guidelines, rules, etc. for determining 

prohibited employment and for determining whether a retiree is 

working in the same industry, including the Retail Food Industry, 

and/or working in the same trade or craft. 

67. On December 21, 2017, 105 days after Plaintiffs’ September 7, 2017 

requests, Defendants provided the Rocky Mountain Plan documents and amendments and 

summary plan descriptions. 

68. On December 21, 2017, 105 days after Plaintiffs’ September 7, 2017 

requests, Defendants provided only the 2002 Intermountain Plan document and 

amendments thereafter and the Trust Agreement for the Intermountain Plan despite the fact 

that Plaintiff Wallace’s rights under the Intermountain Plan are governed by the 

Intermountain Plan documents and amendments beginning in 1975. 

69. Defendants have not provided the rest of the documents requested by 

Plaintiffs. 

CLASS ALLEGATIONS 

70. In addition to Plaintiffs’ claim for benefits, this action is commenced 

pursuant to Fed. R. Civ. P. 23 as a class action for purposes of Counts I, II and III consisting 

of: 

All Plan participants who had accrued benefits under the Plan or predecessor 

plans prior to adoption of the Plan amendments of the suspension of benefit 

provisions purporting to be effective June 7, 2004 and whose retirement 

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benefits were suspended based on application of the expanded suspension of 

benefit rules contained in the 1991 Intermountain Plan amendment, the 1998 

Plan amendment and/or the 2004 Plan amendments and their surviving 

spouses and eligible beneficiaries. 

71. The class is so numerous that joinder is impracticable including because the 

members of the class are geographically dispersed, making joinder impracticable. 

72. There are questions of law and fact common to the members of the class 

that will be resolved by common answers, including whether declaratory and injunctive 

and other equitable relief is appropriate and whether benefits as are due as a result of 

violations of ERISA including, inter alia: 

a. whether Defendants violated ERISA by suspending class members’ 

benefits based on the expansion of the suspension of benefits provisions 

in the 1991 Intermountain Plan amendment or the 1998 Plan amendment 

and/or based on the unlawful 2004 Plan amendments purporting to 

retroactively readopt the unlawful suspension of benefits provisions; 

b. whether the 1991 Intermountain Plan amendment, 1998 Plan 

amendment and/or 2004 Plan amendments ever became effective and 

could form the basis for the suspension of benefits who had accrued 

benefits prior to the adoption of those amendments; 

c. whether Defendants failed to give advance notice of their suspension of 

benefit amendments prior to implementation; 

d. whether Defendants caused the forfeiture of benefits; 

e. whether Defendants breached their fiduciary duties by, inter alia: failing 

to determine participants’ rights to benefits under the Plan with 

reference to nonforefeitable rights and accrued benefits under 

predecessor plans; retroactively reducing accrued benefits; and failing 

to maintain documents and instruments required for proper 

administration of the Plan including predecessor plan documents; 

f. whether Defendants failed to maintain a written plan in accordance with 

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the requirements of ERISA; and 

g. whether Defendants failed to provide accurate disclosures including 

notices of material modifications and accurate summary plan 

descriptions. 

73. Mr. Bertrand and Mr. Wallace will fairly and adequately represent the 

interests of the class members. They have diligently pursued their claims and have engaged 

the undersigned experienced ERISA and class action counsel. 

74. The prosecution of separate proceedings by the individual members of the 

class would create a risk of inconsistent or varying adjudications that would be dispositive 

of the interests of other members not parties to the litigation or substantially impair or 

impede their ability to protect their interests. 

75. Defendants have acted or refused to act on grounds generally applicable to 

the class as a whole by engaging in the same violations of ERISA with respect to the class, 

thereby making declaratory relief and corresponding injunctive and equitable relief 

appropriate with respect to the class as a whole. 

76. A class proceeding is superior to other available methods for the fair and 

efficient adjudication of this controversy including, inter alia, because: 

a. the class members have suffered from the same violations of ERISA and 

the numbers and likely geographic diversity of class members make 

joinder impractical; and 

b. the high cost and likely necessity for actuarial experts to assist in the 

prosecution of the issues involved in this case, along with the relatively 

modest sums that may be involved for individual participants likely 

constitute a significant and recurring obstacle to the ability of individual 

class members to retain competent and experienced ERISA counsel and 

marshal the resources necessary to prosecute these complex ERISA 

violations in separate legal proceedings yet likely have caused and will 

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continue in the future to cause loss of valuable pension and ERISA rights 

unless remedied through injunctive and other appropriate relief. 

COUNT I 

(TO REDRESS VIOLATIONS OF ERISA’S ACCRUAL OF BENEFITS 

REQUIREMENTS PURSUANT TO SECTIONS 502(a)(1)(B) AND (a)(3)) 

77. Plaintiffs repeat and reallege each allegation set forth in the prior paragraphs 

as though fully set forth herein. 

78. Section 204(g) of ERISA, 29 U.S.C. § 1054(g), provides in part: 

(g) Decrease of accrued benefits through amendment of plan 

(1) The accrued benefit of a participant under a plan may not be decreased 

by an amendment of the plan, other than an amendment described in section 

1082(c)(8) or 1441 of this title. 

(2) For purposes of paragraph (1), a plan amendment which has the 

effect of– 

(A) eliminating or reducing an early retirement benefit or a 

retirement-type subsidy (as defined in regulations), or 

(B) eliminating an optional form of benefit, with respect to benefits 

attributable to service before the amendment shall be treated as reducing 

accrued benefits. In the case of a retirement-type subsidy, the preceding 

sentence shall apply only with respect to a participant who satisfies (either 

before or after the amendment) the preamendment conditions for the subsidy. 

... 

79. Section 204(h) of ERISA, 29 U.S.C. § 1054(h), as in effect in May 1991 and 

January 1998 provided in relevant part: 

 (h) Notice of Significant Reductions in Benefit Accruals 

(1) A plan described in paragraph (2) may not be amended so as to 

provide for a significant reduction in the rate of future benefit accrual, unless, 

after adoption of the plan amendment and not less than 15 days before the 

effective date of the plan amendment, the plan administrator provides a 

written notice, setting forth the plan amendment and its effective date, to— 

(A) each participant in the plan, 

(B) each beneficiary who is an alternate payee (within the meaning of 

section 1056(d)(3)(K) of this title) under an applicable qualified domestic 

relations order (within the meaning of section 1056(d)(3)(B)(i) of this title)... 

80. In accordance with settled law under ERISA, Plan amendments adopted in 

violation of ERISA §§ 204(g) and (h) never become effective. 

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81. Because the 1991 Intermountain Plan amendment purporting to expand the 

circumstances under which benefits could be suspended unlawfully reduced accrued 

benefits and reduced the rate of future benefit accruals in violation of ERISA §§ 204(g) 

and (h), 29 U.S.C. §§ 1054(g) and (h), the 1991 Intermountain Plan amendment never 

became effective. 

82. Because the 1998 Plan amendment purporting to expand the circumstances 

under which benefits could be suspended unlawfully reduced accrued benefits and reduced 

the rate of future benefit accruals in violation of ERISA §§ 204(g) and (h), 29 U.S.C. §§ 

1054(g) and (h), the 1998 Plan amendment never became effective. 

83. Because the 2004 Plan amendments purporting to retroactively expand the 

scope of the suspension of benefits provisions unlawfully reduced accrued benefits and 

reduced the rate for future benefit accruals in violation of ERISA §§ 204(g) and (h), 29 

U.S.C. §§ 1054(g) and (h), the 2004 Plan amendments never became effective. 

84. By the acts and omissions complained of above, including, inter alia, by 

amending the Plan to reduce accrued benefits, by failing to give notice of a significant 

reduction in the rate of future benefit accruals, by failing to disclose Plan amendments and 

by calculating and paying benefits and determining the right to benefits based on unlawful 

and/or undisclosed Plan amendments, Defendants violated ERISA, including, inter alia

ERISA §§ 204(g) and (h) and applicable regulations. 

85. Section 502(a)(3) of ERISA provides that a civil action may be brought by a 

participant (A) to enjoin any act or practice which violates any provision of Title I of 

ERISA or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to 

redress such violations or (ii) to enforce any provisions of Title I of ERISA or the terms of 

the plan. 

86. Section 502 (a)(1)(B) of ERISA, 29 U.S.C. ' 1132(a)(1)(B), provides that: 

A civil action may be brought - 

(1) by a participant or beneficiary - . . . 

 *** 

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(B) to recover benefits due to him under the terms of the plan, 

to enforce his rights under the terms of the plan, or to clarify his 

rights to future benefits under the terms of the plan. 

87. As a proximate result of Defendants’ violations of ERISA, Mr. Wallace, Mr. 

Bertrand and class members have been harmed and, inter alia, have been deprived of rights 

and accrued benefits due or to become due. 

88. Plaintiffs and class members are entitled to declaratory, injunctive and other 

equitable relief, including but not limited to, an order, inter alia: declaring that Defendants 

violated ERISA § 204 and applicable regulations; enjoining Defendants from suspending 

benefits based on application of the unlawful 1991 Intermountain Plan amendment, 1998 

Plan amendment and/or 2004 Plan amendments and to immediately make Plaintiffs and all 

class members whole by restoring all benefits wrongfully withheld; surcharging the 

fiduciaries; reforming the Plan to eliminate the provisions of the Plan amendments 

purporting to expand the scope of the suspension of benefits provisions and declaring that 

such amendments never became effective; requiring Defendants to disgorge all profits and 

benefits gained from the wrongful suspension of benefits; enjoining Defendants to pay 

benefits in accordance with the terms of the Plan as reformed; and providing such other 

and further relief as the Court deems just and proper, together with pre-judgment interest, 

attorneys’ fees and costs. 

COUNT II 

(TO REDRESS D VIOLATIONS OF ERISA’S VESTING REQUIREMENTS) 

89. Plaintiffs repeat and reallege each allegation set forth in the prior paragraphs 

as though set fully set forth herein. 

90. ERISA § 203, 29 U.S.C. § 1053, and regulations thereunder provide 

minimum vesting standards and set forth the conditions under which a participant’s right 

to benefits under a plan becomes nonforfeitable. 

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91. ERISA § 203(a), 29 U.S.C. § 1053(a), provides in relevant part that "Each 

pension plan shall provide that an employee's right to his normal retirement benefit is 

nonforfeitable upon the attainment of normal retirement age..." 

92. By the acts and omissions complained of above, including by suspending 

benefits based on the application of the 1991 Intermountain Plan amendment, the 1998 

Plan amendment and the 2004 Plan amendments, Defendants violated ERISA § 203 and 

regulations thereunder. 

93. As a proximate result of Defendants’ violations of ERISA §§ 203, Mr. 

Wallace, Mr. Bertrand and class members have been harmed and, inter alia, have been 

deprived of rights under ERISA and vested nonforfeitable benefits. 

94. Plaintiffs and class members are entitled to declaratory, injunctive and other 

equitable relief, including but not limited to, an order, inter alia: declaring that Defendants 

violated ERISA § 203 and applicable regulations; enjoining Defendants from suspending 

benefits based on application of the unlawful 1991 Intermountain Plan amendment, 1998 

Plan amendment and/or 2004 Plan amendments and to immediately make Plaintiffs and all 

class members whole by restoring all benefits wrongfully withheld; surcharging the 

fiduciaries; reforming the Plan to eliminate the provisions of the Plan amendments 

purporting to expand the scope of the suspension of benefits; requiring Defendants to 

disgorge all profits and benefits gained from the wrongful violations of ERISA’s vesting 

requirements; enjoining Defendants to pay vested benefits in accordance with the terms of 

the Plan as reformed; and providing such other and further relief as the Court deems just 

and proper, together with pre-judgment interest, attorneys’ fees and costs. 

COUNT III 

(TO REDRESS VIOLATIONS OF ERISA FIDUCIARY DUTY 

REQUIREMENTS)

95. Plaintiffs repeat and reallege each allegation set forth in the prior paragraphs 

as though fully set forth herein. 

96. ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1) provides in relevant part: 

(1) Subject to Sections 403(c) and (d), 4042, and 4044, a fiduciary 

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shall discharge his duties with respect to a plan solely in the interest of the 

participants and beneficiaries and– 

(A) for the exclusive purpose of: 

(i) providing benefits to participants and their beneficiaries; 

and 

(ii) defraying reasonable expenses of administering the plan; 

(B) with the care, skill, prudence, and diligence under the 

circumstances then prevailing that a prudent man acting in a like capacity 

and familiar with such matters would use in the conduct of an enterprise of a 

like character and with like aims; 

*** 

(D) in accordance with the documents and instruments governing the 

plan insofar as such documents and instruments are consistent with the 

provisions of this title and title IV. 

97. Defendants have a fiduciary responsibility to provide Plaintiffs and class 

members with truthful and adequate disclosures of the suspension of benefits provisions 

and to administer the plan in accordance with ERISA and the documents and instruments 

governing the plan insofar as such documents and instruments are consistent with ERISA. 

98. By the acts and omissions complained of above, including, inter alia, by 

failing to give notice to participants that the plan was amended to expand the scope of the 

suspension of benefits provisions, by applying suspension of benefits amendments to 

retroactively decrease accrued vested benefits, by depriving Plaintiffs and class members 

of rights protected by ERISA and the terms of the Plan, by failing to determine participants’ 

rights to benefits under the Plan with reference to rights under predecessor plans that 

provided for benefits and rights that could not be forfeited and retroactively reduced and 

by failing to maintain documents and instruments required for proper administration of the 

Plan including predecessor plan documents, Defendants breached their fiduciary duties to 

Plaintiffs and class members. 

99. As a proximate result of Defendants’ breaches of fiduciary duty, Plaintiffs 

and class members have been harmed and, inter alia, been deprived of rights protected by 

the terms of the Plan and ERISA. 

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100. Plaintiffs and class members are entitled to declaratory, injunctive and other 

equitable relief, including but not limited to, an order, inter alia: declaring that Defendants 

breached their fiduciary duties and violated ERISA § 404 and applicable regulations; 

enjoining Defendants from applying the unlawful the unlawful 1991 Intermountain Plan 

amendment, 1998 Plan amendment and/or 2004 Plan amendments purporting to expand 

the scope of the suspension of benefits rules; surcharging the fiduciaries, reforming the 

Plan, inter alia, to eliminate Plan amendments that purported to expand the suspension of 

benefits provisions and declaring that such amendments never became effective and 

enjoining Defendants to and to immediately make Plaintiffs and all class members whole 

by restoring benefits in accordance with the terms of the Plan as reformed; requiring 

Defendants to disgorge all profits and benefits gained from their breaches of fiduciary duty; 

and such other and further relief as the Court deems just and proper, together with prejudgment interest, attorneys’ fees and costs. 

COUNT IV 

(TO REDRESS VIOLATIONS OF ERISA’S DISCLOSURE REQUIREMENTS) 

101. Plaintiffs repeat and reallege each allegation set forth in the prior paragraphs 

as though fully set forth herein. 

102. Section 102 of ERISA, 29 U.S.C. § 1022, Summary Plan Description, 

provides in relevant part:

(a) A summary plan description of any employee benefit plan shall be 

furnished to participants and beneficiaries as provided in section 104(b) 

of this title. The summary plan description shall include the information 

described in subsection (b) of this section, shall be written in a manner 

calculated to be understood by the average plan participant, and shall 

be sufficiently accurate and comprehensive to reasonably apprise such 

participants and beneficiaries of their rights and obligations under the 

plan. A summary of any material modification in the terms of the plan 

and any change in the information required under subsection (b) of this 

section shall be written in a manner calculated to be understood by the 

average plan participant and shall be furnished in accordance with 

section 104(b)(1) of this title. 

(b) The summary plan description shall contain the following information: . 

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. . the plan’s requirements respecting eligibility for participation and 

benefits; a description of the provisions providing for nonforfeitable 

pension benefits; circumstances which may result in disqualification, 

ineligibility, or denial or loss of benefits; the procedures to be followed 

in presenting claims for benefits under the plan including the office at 

the Department of Labor through which participants and beneficiaries 

may seek assistance or information regarding their rights under this 

chapter and the Health Insurance Portability and Accountability Act of 

1996 with respect to health benefits that are offered through a group 

health plan (as defined in section 1191b(a)(1) of this title), the remedies 

available under the plan for the redress of claims which are denied in 

whole or in part (including procedures required under section 503 of 

this title). 

103. Section 104(b) of ERISA, 29 U. S. C. § 1024(b), Publication of summary 

plan description and annual report to participants and beneficiaries of plan, provides in 

relevant part:

(1) The administrator shall furnish to each participant, and each beneficiary 

receiving benefits under the plan, a copy of the summary plan 

description, and all modifications and changes referred to in section 

1022(a) of this title– 

(A) within 90 days after he becomes a participant, or (in the case of a 

(beneficiary) within 90 days after he first receives benefits, or 

(B) if later, within 120 days after the plan becomes subject to this part. 

The administrator shall furnish to each participant, and each 

beneficiary receiving benefits under the plan, every fifth year after 

the plan becomes subject to this part an updated summary plan 

description described in section 1022 of this title which integrates 

all plan amendments made within such five-year period, except 

that in a case where no amendments have been made to a plan 

during such five-year period this sentence shall not apply. 

Notwithstanding the foregoing, the administrator shall furnish to 

each participant, and to each beneficiary receiving benefits under 

the plan, the summary plan description described in section 1022 

of this title every tenth year after the plan becomes subject to this 

part. If there is a modification or change described in section 

1022(a) of this title . . . a summary description of such 

modification or change shall be furnished not later than 210 days 

after the end of the plan year in which the change is adopted to 

each participant, and to each beneficiary who is receiving benefits 

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under the plan... . 

(2) The administrator shall make copies of the latest updated summary plan 

description and the latest annual report and the bargaining agreement, 

trust agreement, contract, or other instruments under which the plan was 

established or is operated available for examination by any plan 

participant or beneficiary in the principal office of the administrator and 

in such other places as may be necessary to make available all pertinent 

information to all participants (including such places as the Secretary 

may prescribe by regulations). 

(3) Within 210 days after the close of the fiscal year of the plan, the 

administrator (other than an administrator of a defined benefit plan to 

which the requirements of section 1021(f) of this title applies) shall 

furnish to each participant, and to each beneficiary receiving benefits 

under the plan, a copy of the statements and schedules, for such fiscal 

year, described in subparagraphs (A) and (B) of section 1023(b)(3) of 

this title and such other material (including the percentage determined 

under section 1023(d)(11) of this title) as is necessary to fairly 

summarize the latest annual report. 

104. Section 402 of ERISA, 29 U.S.C. § 1102, requires every employee benefit 

plan to be in writing and specify the basis on which payments are made to or from the plan. 

105. By the acts and omissions complained of above, Defendants violated ERISA 

§§ 102, 104 and 402 and regulations thereunder 

106. As a proximate result of Defendants’ violations of ERISA §§102, 104, and 

402, Plaintiffs and class members have been harmed and, inter alia: have been deprived of 

material disclosures required to be made by Plan fiduciaries and have been deprived of the 

ability to make timely, informed decisions regarding their retirement benefits, their 

employment following retirement, their savings, and their decisions regarding whether and 

when to retire, and Defendants have been unjustly enriched. 

107. Plaintiffs and class members are entitled to declaratory, injunctive, and other 

equitable relief, including but not limited to, an order declaring that Defendants violated 

ERISA §§ 102, 104, and 402 and applicable regulations, enjoining Defendants from failing 

to comply with their disclosure obligations and from applying suspension of benefits 

provisions and amendments that were not disclosed in accordance with ERISA and to 

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recalculate all class members’ benefits, together with all other appropriate equitable and 

make-whole relief including surcharge of the Plan fiduciaries, disgorgement of any unjust 

enrichment received by the Defendants, and reforming the Plan as necessary or appropriate, 

together with pre-judgment and post-judgment interest, attorneys’ fees, and costs. 

COUNT V 

(IN THE ALTERNATIVE, TO REDRESS VIOLATIONS OF THE TERMS OF 

THE PLAN PURSUANT TO ERISA SECTION 502(a)(1)(B)) 

108. Plaintiffs repeat and reallege each allegation set forth in the prior paragraphs 

as though fully set forth herein. 

109. In the event it is determined that Defendants were permitted to apply the 1991 

Intermountain Plan amendment, the 1998 Plan amendment and/or 2004 Plan amendments 

to suspend Plaintiffs’ benefits, Defendants nevertheless violated the terms of the Plan. 

110. Defendants’ determination that Plaintiffs Bertrand and Wallace’s work was 

suspendible, including because they were purportedly working in the same industry prior 

to and following retirement, violated the terms of the Plan. 

111. Defendants’ determination that Plaintiff Wallace’s work was suspendible 

without taking into account the fact that he was not working in the same industry, same 

trade or craft as they were working in while working in covered employment also violated 

the terms of the Plan. 

112. As a proximate result of Defendants’ violations of the terms of the Plan, 

Plaintiffs were harmed and deprived of benefits due under the terms of the Plan. 

113. As a result of Defendants’ violations of the terms of the Plan, Plaintiffs are 

entitled to an order declaring that Defendants violated the terms of the Plan, enjoining 

Defendants from violating the terms of the Plan and directing Defendants to pay Plaintiffs 

all benefits wrongfully withheld retroactively to September 1, 2017, together with 

prejudgment interest, attorneys’ fees and costs. 

/// 

/// 

/// 

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COUNT VI 

(FOR VIOLATIONS OF ERISA’S ERISA’S CLAIMS PROCEDURE AND 

DISCLOSURE REQUIREMENTS) 

114. Plaintiffs repeat and reallege each allegation set forth in the prior paragraphs 

as though fully set forth herein. 

115. Section 503 of ERISA, 29 U.S.C. §1133 provides in relevant part: 

In accordance with regulations of the Secretary, every employee benefit plan 

shall-- 

(1) provide adequate notice in writing to any participant or beneficiary whose 

claim for benefits under the plan has been denied, setting forth the specific 

reasons for such denial, written in a manner calculated to be understood by 

the participant, and 

(2) afford a reasonable opportunity to any participant whose claim for 

benefits has been denied for a full and fair review by the appropriate named 

fiduciary of the decision denying the claim. 

116. ERISA § 503, 29 U.S.C. § 1133, and regulations thereunder, 29 C.F.R. § 

2560.503-1, provide that plan administrators, inter alia, must provide claimants upon 

request and free of charge all documents relevant to their claim for benefits and appeal, 

must provide claimants whose claims for benefits are denied with the specific reasons for 

the claim denial, must provide claimants with documents and information showing that 

plan provisions have been applied consistently with respect to similarly situated claimants, 

must have administrative procedures and safeguards designed to ensure that benefit 

determinations are made in accordance with governing plan documents and that plan 

provisions have been applied consistently with respect to similarly situated claimants, must 

provide claimants with the plan provisions relied upon, and must provide a description of 

any additional material or information necessary for the claimant to perfect the claim and 

an explanation of why such material or information is necessary.

117. Section 104(b)(4) of ERISA, 29 U.S.C. §1024(b)(4), provides in pertinent 

part: 

The administrator shall, upon written request of any participant or 

beneficiary, furnish a copy of the latest updated summary plan description, 

and the latest annual report, and terminal report, the bargaining agreement, 

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trust agreement, contract, or other instruments under which the plan is 

established or operated. 

118. Section 502(c)(1)(B) of ERISA, 29 U.S.C. § 1132(c)(1)(B), provides in 

pertinent part: 

Any administrator. . .(B) who fails or refuses to comply with a 

request for any information which such administrator is required by 

this title to furnish to a participant or beneficiary (unless such failure 

or refusal results from matters reasonably beyond the control of the 

administrator) by mailing the material requested to the last known 

address of the requesting participant or beneficiary within 30 days 

after such request may, in the court’s discretion, be personally liable 

to such participant or beneficiary in the amount of up to [$100] a day 

from the date of such failure or refusal and the court may in its 

discretion order such other relief as it deems proper... For purposes 

of this paragraph, . . .each violation described in subparagraph (B) 

with respect to a single participant or beneficiary, shall be treated as a 

separate violation. 

119. Pursuant to the Debt Collection Improvement Act of 1996 (62 Fed. Reg. 

40696) the $100 limit referred to in Section 502(c) of ERISA was increased to $110. 29 

C.F.R. § 2575.502(c)(1) therefore states in pertinent part that: “The maximum amount of 

the civil monetary penalty established by Section 502(c)(1) of...ERISA [has been] 

increased from $100 a day to $110 a day.” 

120. By the acts and omissions set forth above, including, but not limited to, inter 

alia, by failing to provide accurate information about the suspension of their benefits in the 

letters advising Plaintiffs of the suspension of their benefits and determinations on appeal, 

by failing to timely furnish to Plaintiffs with documents and information they requested in 

writing and by failing to have administrative procedures and safeguards to ensure that the 

determinations have been made in accordance with governing plan documents and plan 

provisions have been applied consistently with respect to similarly situated claimants, 

Defendants violated ERISA’s claims procedure requirements.

121. As set forth above, despite Plaintiffs’ requests and a legal obligation to 

furnish documents requested by Plaintiffs, Defendants failed to produce and delayed in 

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producing requested documents and information that Defendants were required to furnish 

and which Plaintiffs was entitled to receive under ERISA § 104, 29 U.S.C. § 1024 and the 

regulations thereunder. 

122. Upon information and belief, Defendant Plan Administrator’s failure to 

timely furnish documents requested by Plaintiffs did not result from matters beyond its 

control. 

123. As a result of Defendants’ acts and omissions set forth above, Plaintiffs have 

been harmed and their right to benefits and to pursue their claims were chilled, delayed and 

thwarted. 

124. Plaintiffs are entitled to appropriate declaratory, injunctive and equitable 

relief, including an order enjoining Defendants to provide a reasonable claims process and 

to follow ERISA’s claims procedure and disclosure requirements, requiring Defendants to 

provide appropriate make-whole relief, surcharging the Trustees and ordering Defendants 

to disgorge and remedying Defendants’ unjust enrichment. 

125. Defendant Plan Administrator should be enjoined to timely furnish requested 

Plan documents and should be assessed a penalty of $110 per day for each separate 

violation for every day following 30 days after Plaintiffs’ first requests for documents that 

Defendants failed to produce under ERISA § 104 through the date each requested 

document was or is furnished to Plaintiffs, together with costs and attorneys’ fees. 

WHEREFORE, Plaintiffs request that Judgment be entered in their favor against 

Defendants as follows: 

A. Declaring that Defendants violated ERISA §§ 102, 104, 203, 204, 402, 404, 

503 and regulations thereunder; 

B. Alternatively, declaring that Defendants violated the terms of the Plan with 

respect to the determinations to suspend Plaintiff Bertrand and Plaintiff 

Wallace’s benefits; 

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C. Enjoining Defendants from violating ERISA §§ 102, 104, 203, 204, 402, 404, 

503 and regulations thereunder and enjoining any of the challenged 

amendments from taking effect; 

D. Alternatively, enjoining Defendants from violating the terms of the Plan; 

E. Ordering reformation of the Plan, inter alia, to eliminate the provisions of 

the 1991 Intermountain Plan amendment, the 1998 Plan amendment and the 

2004 Plan amendments purporting to expand the scope of the suspension of 

benefits provisions, declaring that such amendments never became effective 

and enjoining Defendants to pay benefits in accordance with the terms of the 

Plan as reformed; 

F. Ordering Defendants to disgorge the value of the benefits unjustly withheld 

from Plaintiff and class members together with all profits attributable thereto; 

G. Surcharging the Board of Trustees for the full amount of Plaintiffs’ and class 

members’ withheld retirement benefits and such other amounts to make 

Plaintiffs and class members whole; 

H. Awarding Plaintiffs $110 per day for each day past 30 that Defendants 

delayed in producing Plan documents until Defendants comply with 

Plaintiffs’ request for documents and information to which Plaintiffs are 

entitled under ERISA 

I. Enjoining Defendants to recalculate Plaintiffs’ and class members’ 

retirement benefits and make Plaintiffs and class members whole for all 

losses, including pre-judgment and post-judgment interest; 

J. An award of attorneys’ fees and costs pursuant to ERISA § 502(g) and/or the 

common fund theory, and 

K. Awarding such other and further relief the Court deems just and proper. 

/// 

/// 

/// 

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DATED this 27th day of December 2017. 

MARTIN & BONNETT, P.L.L.C. 

By: s/ Susan Martin 

Susan Martin 

Jennifer Kroll 

4647 N. 32nd St., Suite 185 

Phoenix, Arizona 85018

Telephone: (602) 240-6900 

Attorneys for Plaintiffs

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