Opinion
Case No. 96 C 1095
October 21, 2003
CERTIFICATION FOR INTERLOCUTORY APPEAL
Finding that the Order entered by this court on September 22, 2003 involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court certifies the following question for interlocutory appeal:
For purposes of determining if a partial termination has occurred, must fully vested participants be excluded from the denominator of the partial termination equation as the district court believes is required by the Seventh Circuit's opinion in Matz v. Household International Tax Reduction Investment Plan, 265 F.3d 572 (7th Cir. 2001), or may the total number of plan participants be included in the denominator? Implicit in this question is another: Is the district court restricted, in determining whether a partial termination occurred, to consideration of only one formula (regardless of how the denominator is constituted) or may it consider multiple formulas, namely: (a) the ratio which compares the total number of nonvested plan participants who were involuntary terminated without cause to total nonvested plan
participants (the ratio this court believes the Seventh Circuit mandated in the above-cited Matz opinion); (b) the ratio which compares the total number of nonvested plan participants who were involuntarily terminated without cause to total plan participants (the ratio that the district court believes is the single best determinant if only one is used); and (c) the ratio used by the IRS, which compares all terminated participants, vested and nonvested, to all plan participants (the long history of litigation makes clear that this ratio is entitled to no deference, but that is not the same as saying it is entitled to no consideration). As the district court observed in its September 22 Order and previous opinions, these ratios provide different information, all of which may be useful in determining whether a partial termination has occurred.
The parties have requested that the court certify these additional questions:
(1) Whether a participant who becomes fully vested during the period in question (presumably the period during which the alleged reduction in force or reorganization was ongoing) should be excluded from the partial termination equation. In other words, should participants whose status changes during the reorganization in question be counted as vested or nonvested?
(2) Did the district court correctly reject plaintiffs theory that the amendment adopted by the subject Plan in September 1995, which provided that "any plan participant terminated for any reason would be deemed fully vested in his account" (Mem. Op. at 12 n. 9), may be evidence of improper motive?
(3) Whether employees involuntarily terminated from entities not directly involved in the "major corporate event" at issue, but affiliated with those entities, should be considered in the partial termination equation.
With respect to these latter 3 questions, this court is of the view that the proper answer to these questions may require discovery, or at least more thorough argument than has been presented to date, and, to the extent the court's September 22 Order appears to resolve these questions as a matter of law, those limited portions of the opinion are withdrawn and will be reconsidered upon remand. Accordingly, the court does not believe these questions meet the criteria for interlocutory review and declines to certify them.