Richard P. Kuntz v. Nat J. Reese, 785 F.2d 1410 (9th Cir. 1986). · Go Syfert
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Richard P. Kuntz v. Nat J. Reese, 785 F.2d 1410 (9th Cir. 1986). Cases Citing This Book View Copy Cite
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cited 4× by 4 distinct cases, last quoted 2009 · …if successful, their claim would result in a damage award, not an increase of vested benefits. ≈ altered Topic ↗
261 citation events (87 in the last 25 years) across 55 distinct courts.
Strongest positive: Raymond v. Mobil Oil Corp. (ca10, 1993-01-20)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Statutes interpreted (leading-cases list)
#1 29 C.F.R. § 2610.2 cited 2× in this case · 8 total citations of statute #4 29 U.S.C. § 1001-1381 cited 2× in this case · 171 total citations of statute
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Raymond v. Mobil Oil Corp. (3×) also: Cited as authority (rule)
10th Cir. · 1993 · quote attribution · 1 verbatim quote · confidence high
plaintiffs are not participants because, as former employees whose vested benefits under the plan have already been distributed in a lump sum, they were not 'eligible to receive a benefit' and were not likely to become eligible to receive a benefit, at the time they filed the sui…
examined Cited as authority (verbatim quote) Raymond v. Mobil Oil Corporation (3×) also: Cited as authority (rule)
10th Cir. · 1993 · quote attribution · 1 verbatim quote · confidence high
plaintiffs are not participants because, as former employees whose vested benefits under the plan have already been distributed in a lump sum, they were not 'eligible to receive a benefit' and were not likely to become eligible to receive a benefit, at the time they filed the sui…
discussed Cited as authority (rule) Nordman v. Tadjer-Cohen-Edelson Associates, Inc.
D. Maryland · 2024 · confidence medium
The United States Supreme Court has clarified that to fall under the definition of “participant,” a former employee must have “a reasonable expectation of returning to covered employment” or “‘a colorable claim’ to vested benefits.” Firestone, 489 U.S. at 117 (quoting Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir. 1986), abrogated on other grounds by Kayes v. Pac.
discussed Cited as authority (rule) Tyler v. Physicians Mutual (2×)
D. Neb. · 2022 · confidence medium
Pension Retirement Plan, 754 F.2d 628, 630 (5th Cir. 1985); Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir. 1986); cf. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117-18 (1989); Dixon, 696 F.3d at 790 . 2 Nor does merely claiming a breach of fiduciary duty create a right to future benefits that would confer beneficiary status on the plaintiff.
discussed Cited as authority (rule) James Brooks v. Pactiv Corporation
7th Cir. · 2013 · confidence medium
The Supreme Court has explained that this definition includes “former employees who ‘have ... a reasonable expectation of returning to covered employment’ or who have ‘a colorable claim’ to vested benefits.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 , 109 S.Ct. 948 , 103 L.Ed.2d 80 (1989) (omission in original) (quoting Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986) (per curiam), abrogated on other grounds by Kayes v. Pac.
discussed Cited as authority (rule) DeFazio v. Hollister, Inc.
E.D. Cal. · 2012 · confidence medium
Relying on Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986), defendants have repeatedly argued during the course of this litigation that plaintiffs lack statutory standing under ERISA because, as retirees who have withdrawn their full account balances, they no longer have a colorable claim to vested benefits and thus are not “participants.” In 2006, however, Judge Karlton rejected defendants’ argument, concluding that the Ninth Circuit has “allowed suit even when plaintiffs have received their vested benefits if they allege that fiduciaries ‘personally profited’ from a breach of …
discussed Cited as authority (rule) Boison v. Insurance Services Office, Inc.
E.D.N.Y · 2011 · confidence medium
The Supreme Court has elaborated on the definition by including “former employees ... who have ‘a colorable claim’ to vested benefits.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 , 109 S.Ct. 948 , 103 L.Ed.2d 80 (1989) (quoting Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986)).
cited Cited as authority (rule) Harris v. Amgen, Inc.
9th Cir. · 2009 · confidence medium
Mgmt., Inc., 567 F.3d 1021, 1025 (9th Cir.2009) (citing Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986) (per curiam)).
cited Cited as authority (rule) Steve Harris v. Amgen, Inc.
9th Cir. · 2009 · confidence medium
Mgmt., Inc., 567 F.3d 1021, 1025 (9th Cir. 2009) (citing Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir. 1986) (per curiam)).
discussed Cited as authority (rule) Vaughn v. Bay Environmental Management, Inc. (2×) also: Cited "see"
9th Cir. · 2009 · confidence medium
Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986) (per curiam) (“Kuntz II”); see also Mass. Mut.
examined Cited as authority (rule) Vaughn v. Bay Environmental (3×) also: Cited "see"
9th Cir. · 2009 · confidence medium
Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir. 1986) (per curiam) (“Kuntz II”); see also Mass. Mut.
discussed Cited as authority (rule) Poore v. Simpson Paper Co.
9th Cir. · 2009 · confidence medium
In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 , 109 S.Ct. 948 , 103 L.Ed.2d 80 (1989), the Supreme Court held that former employees satisfy this definition if they have “ ‘a reasonable expectation of returning to covered employment’ or ... ‘a colorable claim’ to vested benefits.” Id. at 117 , 109 S.Ct. 948 (quoting Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986)), (abrogated on other grounds by Kayes v. Pac.
discussed Cited as authority (rule) Poore v. Simpson Paper Co.
9th Cir. · 2009 · confidence medium
In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 (1989), the Supreme Court held that former employees satisfy this definition if they have “ ‘a reasonable expectation of returning to covered employment’ or . . . ‘a colorable claim’ to vested benefits.” Id. at 117 (quot- 6032 POORE v. SIMPSON PAPER ing Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir. 1986), (abrogated on other grounds by Kayes v. Pac.
discussed Cited as authority (rule) Bilello v. JPMorgan Chase Retirement Plan (2×) also: Cited "see, e.g."
S.D.N.Y. · 2009 · confidence medium
Two of these decisions, Teagardener v. Republic-Franklin Inc. Pension Plan, 909 F.2d 947, 953 (6th Cir.1990), and Kuntz v. Reese, 785 F.2d 1410, 1411-1412 (9th Cir.1986), were discussed and distinguished by the January 6 Opinion because their facts are not analogous to Bilello’s case.
discussed Cited as authority (rule) Poore v. Simpson Paper Co.
9th Cir. · 2008 · confidence medium
The Supreme Court has clarified that former employees satisfy this definition if they have “ ‘a reasonable expectation of returning to covered employment’ or . . . ‘a colorable claim’ to vested benefits.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 (1989) (emphasis added) (quoting Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir. 1986)). [2] However, ERISA does not require that welfare benefits, including health benefits, actually vest. 29 U.S.C. § 1051 (1); Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995).
discussed Cited as authority (rule) Poore v. Simpson Paper Co. (2×)
9th Cir. · 2008 · confidence medium
The Supreme Court has clarified that former employees satisfy this definition if they have “ ‘a reasonable expectation of returning to covered employment’ or .... ‘a colorable claim’ to vested benefits.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 , 109 S.Ct. 948 , 103 L.Ed.2d 80 (1989) (emphasis added) (quoting Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986)).
examined Cited as authority (rule) Vaughn v. Bay Environmental (3×) also: Cited "see"
9th Cir. · 2008 · confidence medium
Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir. 1986) (per curiam) (“Kuntz II”); see also Mass. Mut.
discussed Cited as authority (rule) Vaughn v. Bay Environmental Management, Inc. (2×) also: Cited "see"
9th Cir. · 2008 · confidence medium
Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986) (per curiam) (“Kuntz II”); see also Mass. Mut.
discussed Cited as authority (rule) Miller v. Rite Aid Corp.
9th Cir. · 2007 · confidence medium
Dynamics Corp., 960 F.2d 1418, 1422 (9th Cir.1991), cert. denied, 504 U.S. 986 , 112 S.Ct. 2968 , 119 L.Ed.2d 588 (1992); Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709 , 714-15 (9th Cir.1990); Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986), cert. denied, 479 U.S. 916 , 107 S.Ct. 318 , 93 L.Ed.2d 291 (1986), abrogated on other grounds by Kayes v. Pac.
discussed Cited as authority (rule) Miller v. Rite Aid Corp.
9th Cir. · 2007 · confidence medium
Dynamics Corp., 960 F.2d 1418, 1422 (9th Cir. 1991), cert. denied, 504 U.S. 986 (1992); Nishimoto v. Federman- Bachrach & Assocs., 903 F.2d 709 , 714-15 (9th Cir. 1990); Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir. 1986), cert. denied, 479 U.S. 916 (1986), abrogated on other grounds by Kayes v. Pac.
discussed Cited as authority (rule) Sullivan v. Cap Gemini Ernst & Young U.S.
N.D. Ohio · 2007 · confidence medium
With respect to former employees, the Supreme Court has interpreted ERISA to provide standing only to those “who ‘have ... a reasonable expectation of returning to covered employment’ or who have ‘a colorable claim’ to vested benefits.” Firestone, 489 U.S. at 117 , 109 S.Ct. at 958 (quoting Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.))(per curiam), cert. denied, 479 U.S. 916 , 107 S.Ct. 318 , 93 L.Ed.2d 291 (1986).
discussed Cited as authority (rule) Graden v. Conexant Sys Inc (2×) also: Cited "see"
3rd Cir. · 2007 · confidence medium
We respond to each argument in turn. 15 The Fifth and Ninth Circuit Courts of Appeals decided the first important cases in this area, and they both drew a line between claims for “benefits” and claims for “damages.” Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan, 883 F.2d 345 , 349–50 (5th Cir. 1989); Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir. 1986) (per curiam).
discussed Cited as authority (rule) Graden v. Conexant Systems Inc. (2×) also: Cited "see"
3rd Cir. · 2007 · confidence medium
The Fifth and Ninth Circuit Courts of Appeals decided the first important cases in this area, and they both drew a line between claims for “benefits” and claims for “damages.” Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corri-gan, 883 F.2d 345, 349-50 (5th Cir.1989); Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986) (per curiam).
discussed Cited as authority (rule) In re J.P. Morgan Chase Cash Balance Litigation
S.D.N.Y. · 2007 · confidence medium
See, e.g., Raymond v. Mobil Oil Corp., 983 F.2d 1528, 1535-36 (10th Cir.1993) (holding that former employers who have accepted lump sum payments of their retirement benefits, even if fraudulently induced to do so, are no longer “participants” under ERISA); Kuntz v. Reese, 785 F.2d 1410, 1411-12 (9th Cir.1986) (finding that an individual that has received a lump sum payment is not a participant for ERISA purposes because the claim is one for damages, not vested benefits, as required by the statute); Yancy v. American Petrofina, 768 F.2d 707, 708-09 (5th Cir.1985) (holding that a former empl…
discussed Cited as authority (rule) In Re Patterson Companies, Inc. Securities (2×)
D. Minnesota · 2007 · confidence medium
As construed by the Supreme Court, the term “participant” is naturally read to include “former employees who ‘have a reasonable expectation of returning to covered employment’ or who have ‘a colorable claim’ to vested benefits.” Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 117 , 109 S.Ct. 948 , 103 L.Ed.2d 80 (1989) (quoting Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986)).
discussed Cited as authority (rule) Register v. Cameron & Barkley Co.
D.S.C. · 2007 · confidence medium
Many courts have deemed similar requests for “lost value” to be too speculative to amount to a legitimate claim for “vested benefits.” See, e.g., Crawford v. Lamantia, 34 F.3d 28, 31 (1st Cir.1994) (plaintiffs request that the court use its “equitable powers” to allocate funds to him and other ESOP members who were “cashed out” after defendants’ going-private transaction did not establish the value the ESOP lost in the transaction and was deemed too speculative to amount to a legitimate claim for “vested benefits”); Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986) (find…
discussed Cited as authority (rule) Moeller v. Qualex, Inc.
C.D. Cal. · 2006 · confidence medium
Under Supreme Court and Ninth Circuit authority, a non-vested former employee is not a “participant” under ERISA because the statutory definition of a “participant” does not include former employees unless they “ ‘have ... a reasonable expectation of returning to covered employment’ or ... have a ‘colorable claim’ to vested benefits.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 , 109 S.Ct. 948 , 103 L.Ed.2d 80 (1989), quoting, Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986); see also Freeman v. Jacques Orthopaedic and Joint Implant Surgery Medical Group, Inc.…
discussed Cited as authority (rule) Chuck v. Hewlett Packard Co. (2×) also: Cited "see"
9th Cir. · 2006 · signal: cf. · confidence medium
Cf. Kuntz, 785 F.2d at 1411 ("Former employees who have neither a reasonable expectation of returning to covered employment nor a colorable claim to vested benefits simply do not fit within the `may become eligible' language of § 1002(7).") (emphasis added). 8 Section § 1132(a)(1) allows suits by a "participant or beneficiary"; § 1132(a)(3) by a "participant, beneficiary, or fiduciary"; and § 1132(a)(2) by all of these or by the Secretary of Labor.
discussed Cited as authority (rule) Chuck v. Hewlett Packard Co. (2×) also: Cited "see"
9th Cir. · 2006 · signal: cf. · confidence medium
Cf. Kuntz, 785 F.2d at 1411 ("Former employees who have neither a reasonable expectation of returning to covered employment nor a colorable claim to vested benefits simply do not fit within the 'may become eligible' language of § 1002(7).”) (emphasis added). 8 .
discussed Cited as authority (rule) Coan v. Kaufman
2d Cir. · 2006 · confidence medium
See Raymond v. Mobil Oil Corp., 983 F.2d 1528, 1535-36 (10th Cir.) cert. denied, 510 U.S. 822 , 114 S.Ct. 81 , 126 L.Ed.2d 49 (1993); Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.) (per curiam), cert. denied, 479 U.S. 916 , 107 S.Ct. 318 , 93 L.Ed.2d 291 (1986).
discussed Cited as authority (rule) In Re AEP Erisa Litigation
S.D. Ohio · 2006 · confidence medium
Many courts have deemed similar requests for “lost value” to be too speculative to amount to a legitimate claim for “vested benefits.” See, e.g., Crawford, 34 F.3d at 31 (plaintiffs request that the court use its “equitable powers” to allocate funds to him and other ESOP members who were “cashed out” after defendants’ going-private transaction did not establish the value the ESOP lost in the transaction and was deemed to speculative to amount to a legitimate claim for “vested benefits”); Kuntz, 785 F.2d at 1411 (finding plaintiffs were not plan participants “[b]ecause, …
discussed Cited as authority (rule) Dickerson v. Feldman (2×) also: Cited "see"
S.D.N.Y. · 2006 · confidence medium
Firestone adopted in part the definition of “participant” set out in Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986), which denied standing to “former employees whose vested benefits under the plan [had] already been distributed in a lump sum.” Kuntz reasoned that to allow such former plan participants to bring suit would, in effect, create suits for money damages not authorized by ERISA.
discussed Cited as authority (rule) LaLonde v. Textron, Inc.
D.R.I. · 2006 · confidence medium
Numerous courts have held that if a plaintiffs colorable claim is merely one for damages, the former employee fails to meet the statutory definition of “participant.” See, e.g., Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986) (finding plaintiffs were not plan participants “[bjecause, if successful, the plaintiffs’ claim would result in a damage award, not in an increase of vested benefits”), abrogated on other grounds by Kayes v. Pac.
cited Cited as authority (rule) Ericson v. Greenberg & Co.
3rd Cir. · 2004 · confidence medium
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117-18 , 109 S.Ct. 948 , 103 L.Ed.2d 80 (1989) (citing Kuntz v. Reese, 785 F.2d 1410, 1411 (1986)).
discussed Cited as authority (rule) Blossom v. Bank of NH
D.N.H. · 2004 · confidence medium
Reese, 785 F.2d 1410, 1412 (9th Cir. 1986) (interpreting regulation as “pertain[ing] to situations in which a pension plan 9 purchases annuities for former plan beneficiaries and participants”); 29 C.F.R. § 2509.95-1 (b) (“when a pension plan purchases an annuity from an insurer as a distribution of benefits, it is intended that the plan’s liability for such benefits is transferred to the annuity provider”).
discussed Cited as authority (rule) Daniels v. Thomas & Betts Corp.
3rd Cir. · 2001 · confidence medium
The Ninth Circuit Court of Appeals came to this same conclusion in Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986), in which the court observed: "The ... plaintiffs do not allege that their vested benefits were improperly computed, rather they allege breach of fiduciary duty or of a duty to disclose information about benefits, thus any recoverable damages would not be benefits from the plan." Consequently, if we were to assess "beneficiary" status as of the time of the present appeal, Mrs. Daniels would not be a "beneficiary" and, therefore, would not be entitled to lodge a request for plan…
discussed Cited as authority (rule) Ida K. Daniels v. Thomas & Betts Corporation
3rd Cir. · 2001 · confidence medium
The Ninth Circuit Court of Appeals came to this same conclusion in Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir. 1986), in which the court observed: "The... plaintiffs do not allege that their vested benefits were improperly computed, rather they allege breach of fiduciary duty or of a duty to disclose information about benefits, thus any recoverable damages would not be benefits from the plan." 57 Consequently, if we were to assess "beneficiary" status as of the time of the present appeal, Mrs. Daniels would not be a "beneficiary" and, therefore, would not be entitled to lodge a request for p…
discussed Cited as authority (rule) Foreman ex rel. Fromme v. Security Insurance Co. of Hartford
Tex. App. · 2000 · confidence medium
The court said: Former employees who have neither a reasonable expectation of returning to covered employment nor a colorable claim to vested benefits simply do not fit within the “may become eligible ” language of [29 U.S.C.] § 1002(7). 785 F.2d at 1411 (emphasis added).
examined Cited as authority (rule) McBride v. PLM International, Inc. (4×) also: Cited "see"
9th Cir. · 1999 · confidence medium
U. Nat’l Retirement Fund, 754 F.2d 473, 476 (2d Cir.1985); Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986) (per curiam)).
discussed Cited as authority (rule) Lowenschuss v. Selnick (In re Lowenschuss)
9th Cir. · 1999 · confidence medium
Cf. McBride v. PLM Int’l, Inc., 153 F.3d 972, 976 (9th Cir.1998) (denying participant status to former employee who had been covered by ERISA plan did not have reasonable expectation of returning to covered employment when plan had"' been terminated); Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986) (denying participant status to former employees who had already received full distribution of vested plan benefits and who had not alleged plan “to start accruing benefits once again under the pension plan”).
discussed Cited as authority (rule) Bankr. L. Rep. P 77,919, 99 Cal. Daily Op. Serv. 1913, 1999 Daily Journal D.A.R. 2479 in Re: Fred Lowenschuss, Debtor. Fred Lowenschuss, Individually and in All Capacities, and Laurance Lowenschuss, Trustee of the Fred Lowenschuss Associates Attorneys at Law Pension and Profit Sharing Plan, Intervenor-Appellant v. Beverly Selnick
9th Cir. · 1999 · confidence medium
Cf. McBride v. PLM Int'l, Inc., 153 F.3d 972, 976 (9th Cir.1998) (denying participant status to former employee who had been covered by ERISA plan did not have reasonable expectation of returning to covered employment when plan had been terminated); Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986) (denying participant status to former employees who had already received full distribution of vested plan benefits and who had not alleged plan "to start accruing benefits once again under the pension plan").
examined Cited as authority (rule) Kevin McBRIDE, Plaintiff-Appellant, v. PLM INTERNATIONAL, INC., Defendant-Appellee (3×) also: Cited "see"
9th Cir. · 1998 · confidence medium
Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986).
discussed Cited as authority (rule) Schultz v. PLM International, Inc.
9th Cir. · 1997 · confidence medium
This means, as a former employee, he must “have [had] ‘a colorable claim’ to vested benefits.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 , 109 S.Ct. 948, 958 , 103 L.Ed.2d 80 (1989) (quoting Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986)) (emphasis added).
discussed Cited as authority (rule) 21 Employee Benefits Cas. 1886, 97 Cal. Daily Op. Serv. 8171, 97 Daily Journal D.A.R. 13,213, Pens. Plan Guide (Cch) P 23938i James F. Schultz v. Plm International, Inc. Plm International, Inc. Employee Stock Ownership Plan State Street Bank and Trust Company Alec Merriam Robert Tidball Stephen Peary Alan Hirsch John Brogan
9th Cir. · 1997 · confidence medium
This means, as a former employee, he must "have [had] 'a colorable claim' to vested benefits." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 , 109 S.Ct. 948, 958 , 103 L.Ed.2d 80 (1989) (quoting Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986)) (emphasis added). 31 To this end, Borst is instructive.
cited Cited as authority (rule) Clark v. Clark
S.D. Ga. · 1997 · confidence medium
Clark II, 905 F.2d at 389 (emphasis added) (citing 29 U.S.C. § 1002 (7); Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.1986), cert. denied, 479 U.S. 916 , 107 S.Ct. 318 , 93 L.Ed.2d 291 (1986)).
discussed Cited as authority (rule) Callough v. EI Du Pont De Nemours and Co.
N.D. Ga. · 1996 · confidence medium
See 29 U.S.C. § 1132 (a)(1) (allowing suit by participant in plan); Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 117-18 , 109 S.Ct. 948, 957-58 , 103 L.Ed.2d 80 (1989) (holding that participant includes former employees who have " 'a colorable claim1 to vested benefits" (quoting Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.), cert. denied, 479 U.S. 916 , 107 S.Ct. 318 , 93 L.Ed.2d 291 (1986))).
discussed Cited as authority (rule) White v. E & F Distributing Co. Employee's Pension Plan
C.D. Ill. · 1996 · confidence medium
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117-18 , 109 S.Ct. 948, 957-58 , 103 L.Ed.2d 80 (1989) (holding that the term “participant” includes “former employees who ... have ‘a colorable claim’ to vested benefits”) (quoting Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.) (per curiam), cert. denied, 479 U.S. 916 , 107 S.Ct. 318 , 93 L.Ed.2d 291 (1986)).
discussed Cited as authority (rule) Sears v. Chrysler Corp.
E.D. Mich. · 1995 · confidence medium
National Retirement Fund, 754 F.2d 473 , 476 (CA2 1985), or former employees who “have ... a reasonable expectation of returning to covered employment” or who have “a colorable claim” to vested benefits, Kuntz v. Reese, 785 F.2d 1410, 1411 (CA9) (per curiam), cert. denied, 479 U.S. 916 , 107 S.Ct. 318 , 93 L.Ed.2d 291 (1986)____ A former employee who has neither a reasonable expectation of returning to covered employment nor a colorable claim to vested benefits, however, simply does not fit within the [phrase] ‘may become eligible.’ ” Saladino v. I.L.G.W.U.
discussed Cited as authority (rule) Nunez v. Monterey Peninsula Engineering
N.D. Cal. · 1994 · confidence medium
Co., 26 F.3d 930, 933 (9th Cir.1994); see also, Olson v. General Dynamics Corp., 960 F.2d 1418, 1422 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2968 , 119 L.Ed.2d 588 (1992) (“At the time he filed his suit, Olson was receiving benefits [and] was therefore a ‘participant’ ”) [emphasis added]; Nishimoto v. Federman-Bachrach & Associates, 903 F.2d 709, 714 (9th Cir.1990) (“former employees whose vested benefits under a plan have already been distributed in a lump sum at the time they file suit are not ‘participants’ within the meaning of [ERISA]”) [emphasis added]; Kuntz …
discussed Cited as authority (rule) Christensen v. Chesebrough-Pond's, Inc.
D. Conn. · 1994 · confidence medium
The central inquiry for the court is thus whether the plaintiffs are participants in Chesebrough’s severance plan. 4 ERISA section 1002(7), defines a “participant” as “any employee or former employee of an employer ... who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer____” The United States Supreme Court has interpreted this definition of “participant” to cover “former employees who ... have a ‘colorable claim’ to vested benefits.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 117 ,…
Retrieving the full opinion text from the archive…
Richard P. KUNTZ, Et Al., Plaintiffs-Appellants,
v.
Nat J. REESE, Et Al., Defendants-Appellees
83-2151.
Court of Appeals for the Ninth Circuit.
Mar 31, 1986.
785 F.2d 1410
1986 U.S. App. LEXIS 23507
R. Bradford Huss, Hall, Henry, Oliver & McReavy, San Francisco, Cal., for plaintiffs-appellants., Donn Dimichele, Brian C. Cuff, Ball, Hunt, Hart, Brown & Baerwitz, Los Angeles, Cal., Richard B. Glickman, Rosenman, Colin, Freund, Lewis & Cohen, San Francisco, Cal., for defendants-appellees.
Tang, Pregerson, Real.
Cited by 151 opinions  |  Published
Reporter's Syllabus editorial summary, not part of the Court's opinion

R. Bradford Huss, Hall, Henry, Oliver & McReavy, San Francisco, Cal., for plaintiffs-appellants.

Donn Dimichele, Brian C. Cuff, Ball, Hunt, Hart, Brown & Baerwitz, Los Angeles, Cal., Richard B. Glickman, Rosenman, Colin, Freund, Lewis & Cohen, San Francisco, Cal., for defendants-appellees.

On Petition for Rehearing and Suggestion of Appropriateness of Rehearing En Banc.

Before TANG and PREGERSON, Circuit Judges, and REAL,* District Judge.

PER CURIAM:

Lead Opinion

PER CURIAM:

Shortly after we decided this case on May 13, 1985, see Kuntz v. Reese, 760 F.2d 926 (9th Cir.1985), the Reese defendants[1] petitioned our court to rehear this matter. The Reese defendants argue, among other things, that several persuasive authorities outside this circuit undermine the conten[*1411] tion that the Kuntz plaintiffs[2] had standing under the Employee Retirement Income Security Act (ERISA) of 1974, 29 U.S.C. §§ 1001-1381 (1982), to sue for breach of fiduciary duty and nondisclosure of pension plan documents.

After carefully considering these authorities, we have now concluded that the Kuntz plaintiffs lack standing. We therefore grant the petition for rehearing, withdraw our previously-filed opinion, and affirm the district court’s judgment, which dismissed the action below.

Interpreting this Court’s decision in Freeman v. Jacques Orthopaedic & Joint Implant Surgery Medical Group, Inc., 721 F.2d 654 (9th Cir.1983), we held originally that ERISA §§ 502(a)(1)(A) & 502(a)(2), 29 U.S.C. §§ 1132(a)(1)(A) & 1132(a)(2), authorized the Kuntz plaintiffs to bring suit: that those provisions permit a “participant or beneficiary” to bring a civil action against the plan administrator to recover statutory damages for breach of fiduciary duty and for failure to disclose pertinent plan documents. We reasoned that the Kuntz plaintiffs were “participants]” within the meaning of ERISA § 3(7), 29 U.S.C. § 1002(7), which defines a participant as

any employee or former employee of an employer or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan.

In essence, we thought that plaintiffs with a claim for damages against the plan administrator were “participants” because the damage claim could be viewed as a “benefit of any type.”

We are now persuaded that the Kuntz plaintiffs are not participants because, as former employees whose vested benefits under the plan have already been distributed in a lump sum, the Kuntz plaintiffs were not “eligible to receive a benefit,” and were not likely to become eligible to receive a benefit, at the time that they filed the suit. Because, if successful, the plaintiffs’ claim would result in a damage award, not in an increase of vested benefits, they are not plan participants. The Kuntz plaintiffs do not allege that their vested benefits were improperly computed, rather they allege breach of fiduciary duty or of a duty to disclose information about benefits, thus any recoverable damages would not be benefits from the plan.

Having decided a damage claim is not a plan benefit, we must also point out that the plaintiffs are not eligible for any other type of benefit either. The Kuntz plaintiffs are all former employees who have already received their vested benefits. There are no allegations of plans to return to work or to start accruing benefits once again under the pension plan. Indeed, the plan is now defunct. Former employees who have neither a reasonable expectation of returning to covered employment nor a colorable claim to vested benefits simply do not fit within the “may become eligible” language of § 1002(7). Saladino v. I.L.G. W.U. National Retirement Fund, 754 F.2d 473, 476 (2d Cir.1985). In fact,

[t]o be a “participant” a person must have either a present or a future right to benefits under the pension or retirement plan. This excludes retirees who have accepted the payment of everything due them in a lump sum, because these erstwhile participants have already received the full extent of their benefits and are no longer eligible to receive future payments. Such retirees have no present or future right to Plan funds and the Plan no longer has any obligation to these individuals.

Joseph v. New Orleans Electrical Pension & Retirement Plan, 754 F.2d 628, 630 (5th Cir.), cert. denied, — U.S.-, 106 S.Ct. 526, 88 L.Ed.2d 458 (1985).

While we are still convinced that the purpose and policy of ERISA is to remedy hardships caused by inequitable treatment[*1412] of workers by plan administrators, see H.R. Rep. No. 533, 93d Cong. 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4639, 4647, we are now persuaded that the agency charged with administering ERISA would not consider the Kuntz plaintiffs to be plan participants entitled to this solicitude. The Department of Labor has promulgated certain regulations pertaining to the administration of ERISA. These regulations specifically exclude from the definition of “participant” any person “to whom an insurance company has made an irrevocable commitment to pay all the benefits to which the individual is entitled under the plan.” 29 C.F.R. § 2610.2 (1985); see Joseph, 754 F.2d at 630 (quoting Department of Labor regulation).

This regulation, of course, pertains to situations in which a pension plan purchases annuities for former plan beneficiaries and participants. Nonetheless, it is a persuasive interpretation of the statute. And because we must give substantial deference to an agency’s interpretation of a statute within its administration, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984), we find the Department of Labor’s interpretation persuasive.

Although the Kuntz plaintiffs initially persuaded us that they should have standing to litigate this matter, we are now convinced that their argument, if followed, would have the effect of converting claims of all types, whether colorable or not, into “potential benefits” within the meaning of ERISA. Because we do not believe that Congress intended this result, and because our reconsidered interpretation is consistent with previous authorities from our own court[3] we now VACATE our previous decision, WITHDRAW our published opinion, and AFFIRM the district court’s judgment, noting that the dismissal is without prejudice to state law claims the plaintiffs might pursue.

1

The Reese defendants include Nat Reese, who is the pension plan administrator, Daniel Eget, Sammy Narens, Danat Investments, and five other companies.

2

The Kuntz plaintiffs include Richard Kuntz, Dan Caccavo, Jimmy Humes, John McCord, Gursewak Singh, and Duane White.

3

See, e.g., Scott v. Gulf Oil Corp., 754 F.2d 1499, 1505-06 (9th Cir.1985); Freeman v. Jacques Orthopaedic & Joint Implant Surgery Medical Group, Inc., 721 F.2d 654, 655-56 (9th Cir.1983); Weiss v. Sheet Metal Workers No. 544 Pension Trust, 719 F.2d 302, 303-04 (9th Cir.1983) (per curiam), cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 82 L.Ed.2d 864 (1984); Hernandez v. Southern Nevada Culinary & Bartenders Pension Trust, 662 F.2d 617, 621 (9th Cir.1981).

Concurrence

REAL, District Judge,

concurring:

I concur in the result now reached by the majority but adhere to the reasoning in my dissent, Kuntz v. Reese, 760 F.2d 926, 939 (9th Cir.1985).