United States District Court, E.D. Louisiana
EARL E. OWENS AND JOSEPH WAYNE ESPAT
THE WESTERN & SOUTHERN LIFE INSURANCE COMPANY AND THE WESTERN & SOUTHERN LIFE INSURANCE LONG TERM INCENTIVE AND RETENTION PLAN, SECTION:
ORDER AND REASONS
MARY ANN VIAL LEMMON, District Judge.
IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (Doc. #66) is GRANTED, and this matter is REMANDED to the plan administrator for consideration.
IT IS FURTHER ORDERED that this matter is STAYED and ADMINISTRATIVELY CLOSED while the plaintiffs pursue the administrative process.
Plaintiffs, Earl E. Owens and Joseph Wayne Espat, are retired former employees of defendant, The Western & Southern Life Insurance Company. Western & Southern provides financial services including life and health insurance, retirement savings, and investment products and services. Both Owens and Espat were participants in the Western & Southern Agency Group Long Term Incentive and Retirement Plan (the "Plan"), which was "designed to provide an incentive for selected key field associates of the Western & Southern Agency Group to maximize performance and remain with the organization." To be eligible for participation in the Plan the employee must be "in the top 5% of Employees when ranked by annual compensation as measured during the previous calendar year." In 2006 and 2008, Owens and Espat, respectively, first became eligible to participate in the Plan. Kim Chiodi, Senior Vice President of Human Resources for The Western & Southern Financial Group, declared in her affidavit that it is Western & Southern's practice to provide the summary plan description, titled "Western & Southern Agency Group Field Long Term Incentive and Retention Plan Outline" to employees when they first become eligible to participate in the Plan.
The Plan includes a forfeiture provision, which states, in pertinent part:
4.7 Forfeitures. The contingent right of Participant or Beneficiary to receive future payments hereunder with respect to both vested and nonvested Performance Units shall be forfeited upon the occurrence of any one or more of the following events:
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(b) If the Participant within three years after termination of employment with the Company or any Affiliate (1) enters into a business or employment which is competitive with the business of the Company or any Affiliate, (2) solicits the Company's or any Affiliates' employees, agents or clients to work for or buy products from, or (3) acts in any other way which, had the Participant been employed with the Company or any Affiliate, would have provided the Company with "Cause" to terminate such Participant's employment.
However, the Executive Committee may, in its sole discretion waive or reduce the forfeiture of payments described above.
The summary plan description states:
Forfeiture, Vested and Unvested Units - A participant's vested and unvested units will be forfeited if:
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3) A participant, within three years after termination of service, including service as a field associate or independent contractor, (a) engages in a business that competes with any of the business of the Western & Southern Financial Group, (b) solicits field associates, agents or clients of the enterprise for competitive employment or ...