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June 2010
Growing Concerns About Scrivener’s Errors in
Benefit Plan Documents
“People make mistakes. Even administrators of ERISA plans.” First two sentences of Conkright v.
Frommert, __ U.S. __, 129 S. Ct. 1861 (2010).
No employee benefit plan is immune from mistakes. Those mistakes can take the form of
errors embedded in plan documents. Thus, employers and administrators occasionally encounter
difficult and costly problems when a mistake in a plan document promises an unintended benefit to
plan participants.
Mistaken plan provisions are often referred to as “scrivener’s errors.” Such errors can occur
when “extra” plan language is written into a document accidentally, or when necessary plan
language is inadvertently omitted from the plan. In either case, the result can be a costly, unintended
consequence which can be enforced under ERISA. That law, after all, requires the plan to be
administered according to its terms.
The Internal Revenue Service (IRS) has a defect correction program that may be an option to
bring a retirement plan into compliance with tax law requirements to preserve its “qualified plan”
status, or to bring a non-qualified plan of deferred compensation into compliance with special nonqualified plan rules.
The Department of Labor also administers a fiduciary correction program which may or may
not provide a solution.
These agency programs may provide a cure for uncomfortable situations when they arise.
But some problems are not necessarily resolved with these agency programs. In fact, recent court
rulings have stated that IRS procedures may resolve tax compliance issues, but not the plan’s
obligations to participants. Under traditional legal principles, courts have stated, it is necessary to
Washington, D.C.
obtain judicial approval in a request for “equitable reformation.” This is an unattractive option. It is
potentially costly, and court proceedings are generally a matter of public record.
To take an actual example, one employer’s pension plan was changed to include a new
benefit formula which called for greater plan benefits. The new formula was in the plan for several
years, but lower benefits continued to be calculated under the old formula. When the error came to
light, the plan administrator concluded the new formula was a mistake. The participants sued for
more benefits under the new formula, and the final result was greater payouts by the plan.
Given the potentially costly problems that can arise with documentary mistakes, what steps
should an employer or plan administrator consider when a scrivener’s error is encountered? First,
examine the problem with a small team of key people, the smallest group reasonably feasible.
Second, suspend communications concerning the error with anyone outside of the team until a sound
game plan is formulated. Third, confer with an employee benefits attorney to consider the issues
and options and help set the game plan. Fourth, implement the game plan with care and with an eye
out for the various parties who might take a position adverse to the plan or its fiduciaries.
As long as the courts consider themselves to be the exclusive source for equitable
reformation and correction of scrivener’s errors, those mistakes will require caution in plan
administration, with no guarantees for an easy solution.
For more information, please contact the following Barnes & Thornburg LLP Employee
Benefits attorneys: Lynn A. Archer, 612-342-0358; Jeffrey M. Bauer, 612-342-0347; Jude Anne
Carluccio, 612-342-0336; Brian J. Clark, 574-296-2560; Brian J. Lake, 574-237-1155; Alan A.
Levin, 317-231-7259; Michael G. Paton, 317-231-7201; Lee T. Polk, 312-214-8300; John C.
Smarrella, 574-237-1133; Nancy A. Sullivan, 612-342-0339. You can also visit us online at
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