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March 4, 2019, marked the first time in over 100 years that the Supreme Court of the United States issued two copyright decisions in the same day  – both unanimous and both strict interpretations of statutory language. In the first of these two decisions, the Supreme Court unanimously held in Fourth Estate Public Benefit Corporation v. Wall-Street.com that copyright owners must obtain a registration from the U.S. Copyright Office prior to filing an infringement action.  The Court, in an opinion authored by Justice Ruth Bader Ginsburg, resolved a long-standing circuit split on whether the “application approach” (merely filing a copyright application) or the “registration approach” (obtaining a copyright registration) is sufficient to file a copyright infringement suit under § 411(a) of the Copyright Act of 1976. In the second decision, the Court in Rimini Street, Inc. v. Oracle USA, Inc. determined that “full costs” under § 505 of the Copyright Act did not authorize awarding litigation expenses beyond those specified in the general costs statute.
Given the Supreme Court’s Fourth Estate decision, there should be a flood of copyright applications at the U.S. Copyright Office given the low cost to file and average seven-month wait time to receive registration.  Upon registration of the copyright, a copyright owner can recover for infringement that occurred both before and after registration. Expedited registration is available;  however, even expedited processing may not provide a registration quickly enough for preliminary injunctive relief for works that do not qualify for Section 408(f)’s exception for works such as music and movies that are vulnerable to pre-distribution infringement.
As noted above, in the second of the two decisions, the Court in Rimini Street, Inc. v. Oracle USA, Inc. determined that “full costs” under § 505 of the Copyright Act did not authorize the appellate court to award litigation expenses beyond those specified by Congress in the general costs statute.
Section 411(a) of the Copyright Act of 1976 provides that “no civil action for infringement of the copyright in any United States work shall be instituted until…registration of the copyright claim has been made in accordance with this title.” The Ninth and Fifth Circuits followed the “application approach,” finding that a filed copyright application was sufficient to file a copyright infringement suit. The Tenth and Eleventh Circuits followed the “registration approach,” finding that registration of a work at the U.S. Copyright Office is required before commencing an infringement suit.  The “application approach” was more favorable to copyright plaintiffs because the U.S. Copyright Office can take several months, and at times, more than a year, to issue a registration in the normal course (non-expedited).
The Court’s strict interpretation of language approach in Fourth Estate, interpreting the word “registration” to mean exactly that, registration and not application, is also seen in the Court’s Rimini Street, Inc. v. Oracle USA, Inc. decision, issued unanimously on the same day as Fourth Estate.  In Rimini Street, the Court determined that “full costs” under § 505 of the Copyright Act did not authorize the appellate court to award litigation costs beyond those specified by Congress in the general costs statutes applicable to all federal court actions.  Rather, “‘full costs’ are all the ‘costs’ otherwise available under the law.”  Those costs consist only of the six categories specified in 28 U.S.C. §§ 1821 and 1920, essentially (1) clerk and marshal fees, (2) transcript fees, (3) printing and witness fees and costs, (4) exemplification and copying fees, (5) docket fees, and (6) compensation of court-appointed experts and interpreters. At trial, a jury agreed with Oracle that Rimini Street, while providing software support services to Oracle customers, copied Oracle‘s software without authorization. The Ninth Circuit allowed Oracle to recover $12.8 million in litigation expenses, as well as $3.4 million in costs and $28.5 million in attorney’s fees, in addition to the jury award of $35.6 million for copyright infringement and $14.4 million for violation of state computer access statutes. Although Rimini Street lost its copyright infringement case to Oracle, its successful appeal of the Ninth Circuit’s allowance of litigation expenses saved it $12.8 million.
Content owners in the publishing, music, television, film, photography, and videogame industries routinely file copyright registration to protect the content they create and distribute. Routine registration in the software technology industry sector and other areas is less prevalent. For software, as for other types of content, the requirements are not onerous and also allow for the protection of confidential source codes.  Oracle’s recent Supreme Court defeat should not distract us from noticing that even in that defeat Oracle did receive an award of $28.5 million in attorneys’ fees and $3.4 million in costs (together, nearly equaling the copyright infringement damages award) noted above in the Rimini Street decision. The award of that $31.9 million was possible only because Oracle had timely registered its software.
Others who may benefit from routine registration include any entity that creates original materials such as internal training manuals and product user manuals which may be copied and misused by ex-employees, distributors, or customers. Any of these works can be registered with trade secret material protected from public filing and disclosure.  Also, many fashion companies regularly create seasonal designs used on handbags or clothing. These designs include floral prints, animal designs, and other pictorial features and arrangements of text seen on handbags and clothing. Many companies also own trademarks or packaging designs that also may be protectable through copyright. Given the frequency with which certain notorious infringers in the industry create replicas of these designs, companies should be armed and ready with copyright registrations for these designs.


New York's Emergency Assistance (EA) Program, which is federally funded under the Social Security Act (SSA), precludes the furnishing of EA cash to persons receiving or eligible for Aid to Families with Dependent Children (AFDC) or of EA in any form to replace a lost or stolen AFDC grant. Appellees, who had been denied EA under these state provisions, brought a class action in Federal District Court to enjoin enforcement of the provisions, alleging that they conflicted with the SSA and violated equal protection. Ultimately, on remand after its decision invalidating the state provisions under the Supremacy Clause had been vacated by the Court of Appeals, the District Court invalidated the no-cash provision as a violation of equal protection, but upheld the loss-or-theft provision. On a second appeal, the Court of Appeals held that both provisions violated the Equal Protection Clause of the Fourteenth Amendment.
Held: Because the New York provisions conflict with a valid federal regulation promulgated by the Secretary of Health, Education, and Welfare (Secretary) which proscribes inequitable treatment of individuals or groups under an EA program, they are invalid under the Supremacy Clause. Pp. 457 U. S. 137-146.
(a) Reliance on the SSA to find the New York provisions invalid is not foreclosed by Quern v. Mandley, 436 U. S. 725. While Quern emphasized that a State retains considerable flexibility in determining which emergencies to cover under its EA plan, it was not suggested that the Secretary was stripped of all authority to review a plan that arbitrarily or inequitably excluded a class of recipients. Pp. 457 U. S. 138-139.
(b) The Secretary's decision to apply the "equitable treatment" regulation so as to forbid a State to exclude AFDC recipients from its EA program is eminently reasonable, and deserves judicial deference, especially where the legislative history leaves no doubt that AFDC recipients were expected to be included in a state EA program. Pp. 457 U. S. 139-145.
New York has established an Emergency Assistance Program that receives substantial federal funding under Title IV-A of the Social Security Act (Act), 42 U.S.C. § 603(a)(5). The program excludes recipients of Aid to Families with Dependent Children (AFDC) from emergency assistance in the form of cash. It also excludes public assistance recipients (including AFDC recipients) from reimbursement for lost or stolen grants, even though it provides such reimbursement to other public benefit recipients. The United States Court of Appeals for the Second Circuit held that New York's treatment of AFDC recipients is not inconsistent with the federal Act and regulations, but violates the Equal Protection Clause. Because we conclude that the New York law is invalid under the Act, we affirm without reaching the equal protection issue.
other than those on public assistance (including AFDC recipients).
light of Quern. On remand, the District Court changed its prior decision and held that the New York law was not inconsistent with the federal Act. In a subsequent opinion, the District Court invalidated the no-cash provision as a violation of equal protection, but upheld the loss-or-theft provision. Bacon v. Toia, 493 F.Supp. 865 (1980). On the second appeal, the Court of Appeals agreed with the District Court that our decision in Quern foreclosed a finding that the law violates the Supremacy Clause. The Court of Appeals concluded, however, that both the no-cash and loss-or-theft provisions violate equal protection. Bacon v. Toia, 648 F.2d 801 (1981). We noted probable jurisdiction. 454 U.S. 1122.
on statutory grounds. As we explain below, the New York no-cash and loss-or-theft rules conflict with valid federal regulations promulgated by the Secretary of Health, Education, and Welfare (Secretary) (now the Secretary of Health and Human Services) which proscribe inequitable treatment under the EA program. Thus, New York's rules are invalid under the Supremacy Clause.
Before reviewing the federal regulations that we find to be dispositive of this case, we first address appellant's claim that reliance on the Act is foreclosed by our decision in Quern v. Mandley, supra. In that case, we carefully reviewed the nature and scope of the EA program and examined one aspect of its relationship to the AFDC program. [Footnote 6] Under Title IV-A of the Act, state public assistance plans approved by the Secretary are eligible for federal financial assistance. AFDC is a major categorical aid program funded under the Act -- indeed, it is "the core of the Title IV-A system." Id. at 728. States are required, as a condition of federal funding under the AFDC program, to make assistance available to all persons who meet statutory eligibility criteria. Id. at 740; 42 U.S.C. §§ 602(a)(10), 606(a). The EA program is a supplement to such categorical assistance programs as AFDC. It permits federal reimbursement to States which choose to provide for temporary emergency assistance in their Title IV-A plans. 42 U.S.C. § 603(a)(5). In contrast to AFDC, the EA program establishes much broader eligibility standards, and is not limited to persons eligible for AFDC. 42 U.S.C. § 606(e).
only to certain AFDC families who were without shelter and to applicants presumptively eligible for AFDC who were in immediate need of clothing or household furnishings. We rejected the plaintiffs' broad claim, and held that, unlike the AFDC program, § 406(e) establishes only permissive, not mandatory, eligibility standards.
Quern did not address the statutory issue before us today -- whether the complete and automatic exclusion of AFDC recipients from a State's EA program is inconsistent with the Act and applicable regulations. The Court had no occasion to consider the question, since the EA program in that case included only AFDC recipients. In addition, the only pertinent federal regulations in Quern undermined the plaintiffs' claims and supported the State's rules. See 436 U.S. at 436 U. S. 743-744, n.19; 45 CFR § 233.120 (1981). Here, on the other hand, the Secretary has promulgated a regulation inconsistent with New York's no-cash and loss-or-theft rules. See 45 CFR § 233.10 (1981); infra at 457 U. S. 139-142. [Footnote 7] In short, although we emphasized in Quern that a State retains considerable flexibility in determining which emergencies to cover under its EA plan, we hardly suggested that the Secretary had been stripped of all authority to review a plan that arbitrarily or inequitably excluded a class of recipients.
"(a) State plan requirements. A State plan under title I, IV-A, X, XIV, or XVI, of the Social Security Act must: "
"(1) Specify the groups of individuals, based on reasonable classifications, that will be included in the program, and all the conditions of eligibility that must be met by the individuals in the groups. The groups selected for inclusion in the plan and the eligibility conditions imposed must not exclude individuals or groups on an arbitrary or unreasonable basis, and must not result in inequitable treatment of individuals or groups in the light of the provisions and purposes of the public assistance titles of the Social Security Act."
the kind of emergencies they will meet under this program."
"[a] State Plan must clearly specify that AFDC recipients are included in it EA program. Other categories of needy families with children may be included at State option; these categories must be specified in the plan."
Quern, 436 U.S. at 436 U. S. 738. In light of the strong support in the legislative history for the Secretary's conclusion that the automatic exclusion of AFDC recipients from an EA program is inequitable in light of the purposes of the EA program, we find such deference particularly appropriate in this case.
"Your committee understands that the process of determining eligibility and authorizing payments frequently precludes the meeting of emergency needs when a crisis occurs. In the event of eviction, or when utilities are turned off, or when an alcoholic parent leaves children without food, immediate action is necessary. It frequently is unavailable under State programs today.
When a child is suddenly deprived of his parents by their accidental death, or when the agency finds that the conditions in the home are contrary to the child's welfare, the normal methods of payment have to be suspended while new arrangements and court referrals are made."
"To encourage public welfare agencies to move promptly and with maximum effectiveness in such situations, the bill contains an offer to the States of 50-percent participation in emergency assistance payments. . . . The eligible families involved are those with children under 21 who either are or have recently been living with close relatives. The families do not have to be receiving or eligible upon application to receive AFDC (although they are generally of the same type), but they must be without available resources. . . . "
"Assistance might be in any form. . . . The provision is broad enough that emergencies can be met in migrant families as well as those meeting residence requirements of the State's AFDC program. Its utilization would be optional with the States."
"inequitable treatment of individuals or groups in the light of the provisions and purposes of the public assistance titles of the Social Security Act."
45 CFR § 233.10 (1981). AFDC recipients are "the core of the Title IV-A system," Quern, 436 U.S. at 436 U. S. 728, and the principal group of beneficiaries under federally assisted state welfare programs. Moreover, the legislative history reviewed above leaves no doubt that AFDC recipients were expected to be included in a state EA program receiving federal financial assistance.
"2. For purposes of this section, the term 'emergency assistance' means aid, care and services authorized during a period not in excess of thirty days in any twelve month period to meet the emergency needs of a child or the household in which he is living, in the following circumstances:"
"(a) where the child is under twenty-one years of age; and"
"(b) the child is living with, or within the previous six months has lived with, one or more persons specified in subdivision b of section three hundred forty-nine of this chapter; and"
"(c) in cases of applications for grants of cash assistance, such child or such household is not categorically eligible for or receiving aid to dependent children; and"
"(d) such emergency needs resulted from a catastrophic occurrence or from a situation which threatens family stability and which has caused the destitution of the child and/or home; and"
"(e) such occurrence or situation could not have been foreseen by the applicant, was not under his control, and, in the case of a person receiving public assistance, did not result from the loss, theft or mismanagement of a regular public assistance grant; and"
"(f) the emergency grant being applied for will not replace or duplicate a public assistance grant already made under section one hundred thirty-one-a of this chapter."
"3. Emergency assistance to needy families with children shall be provided to the extent of items of need and services set forth in sections one hundred thirty-one and one hundred thirty-one-a of this chapter. . . . Such emergency assistance, but not including cash grants, may be furnished to a family eligible for aid to dependent children only in the form of emergency services, and so long as federal aid remains available, for emergency fuel grants in the form of vendor restricted payments."
The record indicates that appellees have standing to challenge the no-cash as well as the loss-or-theft provision. In the case of appellees Bacon, Parrish, and Goodwine, DSS purported to rely on the loss-or-theft provision in denying EA. However, Parrish was denied EA for lost food as well as lost money. The no-cash provision, not the loss-or-theft provision, would appear to justify denial of EA for the lost food, since that loss did not result from the theft of her public assistance grant.
In the case of appellee Selders, DSS denied EA for her lost cash pursuant to an administrative memorandum that outlines both the no-cash and the loss-or-theft exclusions for AFDC recipients. App. 34a-37a, 51a. It is therefore unclear which exclusion the State purported to rely upon in denying assistance. However, Selders lost a food stamp voucher as well as the cash from her AFDC grant. DSS refused to provide the cash equivalent of the voucher. Although DSS replaced the voucher, Selders was unable to make use of the replacement, because she had no cash. Bacon v. Toia, 437 F.Supp. 1371, 1376-1377 (SDNY 1977). Accordingly, it was the State's no-cash rule that prevented her from obtaining effective EA. Id. at 1384-1385. Selders alone was denominated a representative of the subclass of plaintiffs challenging the no-cash rule. Id. at 1381.
In light of these facts and appellant's concession that DSS relied upon both the no-cash and the loss-or-theft provisions in denying assistance, Brief for Appellant 7; Tr. of Oral Arg. 4, 17, we conclude that appellees have standing to challenge both provisions.
Appellees also sought to enjoin enforcement of the statutory provision denying replacement or duplication of a public assistance grant already made. N.Y.Soc.Serv.Law 350j(2)(f) (McKinney Supp.1981). They no longer seek relief with respect to that provision, because the District Court determined that the provision does not preclude EA in the event of a true emergency. Bacon v. Toia, 493 F.Supp. 865, 875 (SDNY 1980).
"(1) The term 'emergency assistance to needy families with children' means any of the following, furnished for a period not in excess of 30 days in any 12-month period, in the case of a needy child under the age of 21 who is . . . living with any of the relatives specified in subsection (a)(1) of this section in a place of residence maintained by one or more of such relatives as his or their own home, but only where such child is without available resources, the payments, care, or services involved as necessary to avoid destitution of such child or to provide living arrangements in a home for such child, and such destitution or need for living arrangements did not arise because such child or relative refused without good cause to accept employment or training for employment -- "
"(2) Emergency assistance as authorized under paragraph (1) may be provided . . . to migrant workers with families in the State or in such part or parts thereof as the State shall designate."
Appellant argues that the statutory issue is not properly before us. It is well accepted, however, that, without filing a cross-appeal or cross-petition, an appellee may rely upon any matter appearing in the record in support of the judgment below. See Massachusetts Mutual Life Ins. Co. v. Ludwig, 426 U. S. 479 (1976) (per curiam); Dayton Board of Education v. Brinkman, 433 U. S. 406, 433 U. S. 419 (1977); see also R. Stern & E. Gressman, Supreme Court Practice 478 (5th ed.1978). Moreover, the statutory issue was raised and decided in both the District Court and the Court of Appeals.
Appellant also asserts that the appellees were required to file a cross-appeal because they seek to modify the judgment below. Acceptance of the appellees' statutory argument will allegedly result in such a modification because "the injunction granted below on the basis of constitutional right would be modified to one based upon statute or regulation." Reply of Appellant to Motion to Affirm 8. Appellant cites no authority for this novel view that an affirmance which does not alter the relief ordered in the judgment below "modifies" the judgment simply because the affirmance rests on a different legal basis than the court below adopted.
For a general discussion of the EA and AFDC programs, see Quern v. Mandley, 436 U.S. at 436 U. S. 728-729, 436 U. S. 735-736, 436 U. S. 739, 436 U. S. 742-743.
In a footnote, the Court reported that some States have narrowed eligibility for EA programs by excluding AFDC recipients if the emergency need is one theoretically covered by the basic assistance grant. Id. at 739-740, n. 16. This descriptive statement is not, of course, an expression of opinion, much less a holding, with respect to the issue before us.
"make . . . such rules and regulations, not inconsistent with this chapter, as may be necessary to the efficient administration of the functions with which [he] is charged under this chapter."
"must . . . provide such methods of administration . . . as are found by the Secretary to be necessary for the proper and efficient operation of the plan."
See App. to Motion to Affirm 8a. This section applies to all portions of a state plan under Title IV-A, including the EA program. See Quern, supra, at 436 U. S. 741-742.
It appears that the Secretary has consistently taken the position that automatic exclusions of AFDC recipients from an EA program violate the "equitable treatment" regulation, 45 CFR § 233.10 (1981). In an amicus brief filed at the invitation of the court in Ingerson v. Pratt, Civ. Action No. 76-3255-S (Mass., Nov. 14, 1979), the Secretary stated that the regulation applies to EA programs. The Office of Family Assistance later determined that Massachusetts' "recipient status" rule violates the regulation because it provides that the EA benefits available to AFDC recipients will be affected by the amount received in the AFDC grant, whereas the EA benefits available to non-AFDC recipients will not be affected by the amount of assistance received. Documentation of the U.S. Dept. of HEW relating to Ingerson v. Pratt, File of the Clerk of this Court in No. 81-770. The District Court has invalidated this rule (as well as another state rule) based on the "equitable treatment" regulation. Ingerson v. Pratt, Civ. Action No. 76-3255-S (Mass., Feb. 8, 1982).
"would be in an amount consistent with what the individuals would receive if they were eligible under a public assistance plan in the State in which they are living."
House Committee on Ways and Means, Section-by-Section Analysis of H.R. 5710, 90th Cong., 1st Sess., 9 (Comm. Print 1967). In the House, the Ways and Means Committee adopted a much broader proposal, very similar to the version ultimately enacted. See H.R. 12080, 90th Cong., 1st Sess., 137-139 (1967). After House passage, the Senate made three changes -- increasing the amount of time that emergency assistance would be available, denying assistance if a child or relative refused without good cause to accept employment, and more explicitly protecting migrant workers. In conference, the second and third changes were accepted. H.R.Conf.Rep. No. 1030, 90th Cong., 1st Sess., 60 (1967). Congress adopted the conference bill.
The Senate Report also inserts "AFDC" prior to the word "eligibility" in the first sentence quoted in the text above -- yet another indication that those eligible for or receiving AFDC were presumed to be covered.
Other portions of the legislative documents indicate that the EA program was viewed as an extension of the AFDC program. For example, the House bill initially contained the title, "Emergency Assistance for Certain Needy Families with Dependent Children." H.R. 12080, 90th Cong., 1st Sess., 137 (1967) (emphasis added). The bill as enacted placed the EA provisions within Subchapter IV-A of the Social Security Act, 42 U.S.C. § 601 et seq., entitled "Aid to Families With Dependent Children." 42 U.S.C. §§ 603(a)(5), 606(e). Moreover, numerous historical documents place discussion of the EA program within an "AFDC" category. See, e.g., H.R.Rep. No. 544, 90th Cong., 1st Sess., 97 (1967); Senate Committee on Finance, Social Security Amendments of 1967: Comparison of H.R. 12080, As Passed by the House of Representatives with Existing Law, 90th Cong., 1st Sess., 37-38 (Comm. Print 1967); S.Rep. No. 744, 90th Cong., 1st Sess., 4, 165-166 (1967); Senate Committee on Finance, The Social Security Amendments of 1967, Brief Summary of Major Provisions and Detailed Comparison with Prior Law, 90th Cong., 1st Sess., 68-69 (1968).
Congress expressed concern that categorical aid programs (which include AFDC) were often too inflexible to afford immediate emergency relief. The implicit assumption is that, if a state EA plan covered emergency needs that were not promptly met under these programs, persons receiving or eligible for aid under the programs would receive EA. Thus, Senator Ribicoff emphasized that welfare agencies need to have "flexibility" in dealing with emergencies; and Senator Curtis explained that "[f]or a period of 30 days, emergency assistance can be paid in cases where [EA recipients] cannot meet other qualifications." 113 Cong.Rec. 32853, 36319 (1967).
Hearings on H.R. 12080 before the Senate Committee on Finance, 90th Cong., 1st Sess., 1034 (1967) (statement of Commissioner, Louisiana Dept. of Public Welfare); id. at App. As (statement of Commissioner, Alabama Dept. of Pensions and Security); id. at App. A125 (statement of Governor of Hawaii); id. at App. A289 (statement of Rhode Island Dept. of Social Welfare).
Appellant asserts that the no-cash rule does not discriminate against AFDC recipients at all. On its face, of course, the rule excludes AFDC as well as all other public assistance recipients, and thus violates the regulation. But appellant claims that AFDC recipients may obtain the same emergency benefits through special grants under other provisions of the state welfare law. Both lower courts rejected this claim, concluding that the special grant provisions are more limited than EA provisions. 648 F.2d at 807 808; 493 F.Supp. at 872-873. In particular, the Court of Appeals, after reviewing relevant state cases, determined that the state EA program would provide grants in cases of loss caused by burglary or public auction following eviction, and would provide food and other immediate living expenses, while special grants would not cover these items. 648 F.2d at 808. We have no reason to question the conclusion of the lower courts, given their familiarity with state law. See Bishop v. Wood, 426 U. S. 341, 426 U. S. 346 (1976).
Of course, we do not suggest that a State may not choose to provide AFDC special grants for emergencies as an alternative to including AFDC recipients within the EA program, if the special grants are provided as promptly and for the same emergencies as the EA grants. Cf. Quern, 436 U.S. at 436 U. S. 734-739.
We do not reach the question whether the loss-or-theft provision in N.Y.Soc.Serv.Law § 350-j (McKinney Supp.1981) is invalid as applied to public assistance recipients other than those receiving AFDC. The question presented in appellant's jurisdictional statement refers only to the discrimination against AFDC recipients; thus, appellant challenges the judgment below only insofar as it requires the granting of EA to AFDC recipients.


text:
etc., Del Monte Snacks, Inc., etc., Defendants-Appellees.
Argued and Submitted Oct. 3, 1984.
As Amended March 5, 1985.
John J. Vlahos, Hanson, Bridgett, Marcus, Vlahos & Stromberg, San Francisco, Cal., for plaintiffs-appellants.
David Rotman, Pillsbury, Madison & Sutro, San Francisco, Cal., for defendants-appellees.
Before DUNIWAY, FERGUSON and NELSON, Circuit Judges.
Plaintiffs, nonunion salaried employees of Granny Goose Foods, Inc. ("Granny Goose"), appeal the district court's grant of summary judgment in favor of Del Monte Corporation and others ("Del Monte"), in an action seeking benefits under an employee welfare plan when the employer's business is sold as an ongoing concern, where the employer has pervasively violated the mandates of the Employee Retirement Income Security Act of 1974 ("ERISA"). We conclude that the district court erred in holding that Del Monte's denial of severance benefits to plaintiffs was not arbitrary and capricious, and thus incorrectly granted defendants summary judgment. Plaintiffs did not move for summary judgment, so we need not decide whether Del Monte's denial of benefits was arbitrary and capricious as a matter of law.
This policy is established to provide a flexible and general guide for management in determining appropriate separation allowances for employees whose positions are eliminated as a result of reorganization, consolidation, or elimination of operations to which they have been assigned and for whom appropriate alternative employment opportunities are unavailable within the Corporation.
Subject to the limitations outlined herein, separation allowances may be payable to any terminated full-time regular employee. Employees subject to Union-negotiated termination allowance programs are not eligible.
The schedule attached represents an acceptable standard which has been usefully applied in the past. In the case of previous, simultaneous multiple terminations, it has customarily been offered on a uniform basis to all affected employees regardless of benefits available to them from other Corporation plans such as the Retirement and Savings-Investment Plans. However, all circumstances pertaining to each case, including any retirement and Social Security benefits available should be taken into account in determining the amount of separation allowance, if any.
Depending upon management's judgment of the merits of each case and the individual circumstances of the employee involved, the suggested amounts may be decreased, or increased up to 25%, on the recommendation of the appropriate organization head with executive approval as indicated in the succeeding paragraph.
On recommendation of the appropriate organization head with the concurrence of the corporate Employee Relations Department, individual separation allowances up to 125% of the schedule may be approved by the Chairman of the Board, President, Executive Vice President, or the Group Vice President to whom the organization unit affected reports.
Allowances in excess of 125% of the schedule may be approved upon recommendation of the appropriate Group Vice President with the concurrence of the Chairman of the Board or President, and the Vice President, Employee Relations.
At the option of the Corporation, separation allowances may be paid in a single sum or in installments.
Employees terminated under this program may continue their coverage under the lay-off provisions of the Group Health Plan for regular employees. (Regular rate schedule for 3 months plus employee pay-all rate schedule for up to 8 additional months.) Thereafter, they may convert to individual coverage as offered by The Equitable.
Employees who are eligible for retirement and are considered retired by the Corporation may convert to a retired status under the Retired Group Health Plan at any time following termination but before the conclusion of the 11-month period above.
Plaintiffs, a class of former nonunion salaried employees of Granny Goose, did not obtain a copy of this written separation policy until after this action was filed. Del Monte neither published the policy nor informed plaintiffs of its existence, contents or terms. Only corporate officers and corporate employee relations staff managers had access to the document.
In 1975, several years before the Separation Allowance Policy was revised to its present form, Del Monte decided either to close or sell Granny Goose. In June 1980, Del Monte announced it was actively seeking to sell Granny Goose as an ongoing concern. A group of private investors purchased the business effective December 13, 1980.
With the exception of four employees who were transferred to the Del Monte payroll, all salaried, nonunion employees of Granny Goose as of December 12, 1980 commenced working for Granny Goose (under its new ownership) on December 13, 1980 with similar responsibilities and similar rates of pay, but somewhat different benefits.
On October 14, 1982, plaintiffs demanded their rights to severance benefits from Del Monte. Del Monte never responded, and on November 18, 1982, plaintiffs filed this action in state court. Their complaint consisted of seven causes of action, one of which arose under a federal theory of liability, ERISA. 29 U.S.C. Sec. 1132(e)(1).
Defendants removed the action to federal district court pursuant to 28 U.S.C. Sec. 1441 and answered the complaint. Thereafter, defendants moved for partial summary judgment on plaintiffs' first, second, third, fourth, fifth and seventh causes of action, alleging that ERISA preempted these state law claims. The district court dismissed those causes of action.
The Employee Retirement Income Security Act of 1974 (ERISA) is a comprehensive remedial statute designed to protect working men and women and to cure widespread weaknesses in the private pension system. To strengthen the pension system, ERISA established minimum vesting, funding, fiduciary and disclosure requirements which every pension plan must meet. It also delineated a specific uniform standard of conduct for fiduciaries. See generally H.R.Rep. No. 533, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4639.
[A]ny plan, fund, or program which was ... established or maintained by an employer ... to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) ... unemployment, or vacation benefits, ... or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions).
29 U.S.C. Sec. 1002(1). Section 186(c), cited in subsection (B) above, specifically lists "severance benefits." The effect of citing to section 186(c) is "to include within the definition of 'welfare plan' those plans which provide holiday and severance benefits, and benefits which are similar...." 29 C.F.R. Sec. 2510.3-1(a)(3). See Donovan v. Dillingham, 688 F.2d 1367, 1370-73 (11th Cir.1982) (en banc). Thus, the severance pay plan in this case is an employee welfare benefit plan to which ERISA applies.
Neither the vesting and participation requirements nor the funding requirements of ERISA apply to employee welfare benefit plans such as severance plans, 29 U.S.C. Secs. 1051(1), 1081(a)(1), but the reporting and disclosure requirements, 29 U.S.C. Secs. 1021-1031, and the fiduciary responsibility standards, 29 U.S.C. Secs. 1101-1114, do. Thus, Del Monte's severance pay plan is subject to ERISA's reporting, disclosure, and fiduciary requirements. Once established, ERISA operates to protect an employee's interest in the welfare benefit program regardless of whether the employer complies with the administrative and reporting requirements detailed under ERISA. Donovan v. Dillingham, 688 F.2d 1367, 1372 (11th Cir.1982). Accord, Dependahl v. Falstaff Brewing Corp., 491 F.Supp. 1188, 1195 (E.D.Mo.1980), aff'd 653 F.2d 1208 (8th Cir.), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981).
"Summary judgment is appropriate if, viewing the evidence in the light most favorable to the opposing party, the trial court finds 'that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.' Fed.R.Civ.P. 56(c)." Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). The court of appeals reviews de novo a district court's grant of summary judgment. Id.
In this case, this court, like the trial court, reviews another decisionmaker: the welfare benefit plan administrator. Del Monte, although it assumed the posture of an administrator in accordance with 29 U.S.C. Sec. 1002(16)(A)(ii), made no attempt to comply with any of the duties that ERISA places upon a benefit plan administrator. To the contrary, the Severance Allowance Policy was actively concealed in violation of ERISA's reporting and disclosure requirements. See 29 U.S.C. Sec. 1021(a) (disclosure to all plan participants); 29 U.S.C. Sec. 1021(b) (various reporting requirements). Nor has Del Monte created any of the procedural mechanisms for benefit determinations that ERISA mandates. E.g., 29 U.S.C. Sec. 1133 (requiring compliance with claims procedures under Department of Labor regulations).
Despite its failure to assume any of ERISA's obligations, Del Monte urges upon us the deferential standard of review generally applicable to administrator's decisions under ERISA: "decisions by the trustees of an employee benefit plan will not be reversed by the courts unless they are arbitrary, capricious, made in bad faith, not supported by substantial evidence, or erroneous on a question of law." Malhiot v. Southern California Retail Clerks Union, 735 F.2d 1133, 1135 (9th Cir.1984). We do not decide that this is the only applicable standard of review when ERISA's provisions have been flouted in such a wholesome and flagrant manner. We do, however, decide that the district court erred by holding, as a matter of law, that Del Monte's decision survived even this deferential standard.
The administrator of an employee welfare benefit plan, such as this severance benefit policy, has no discretion to secrete the plan, to flout the reporting, disclosure and fiduciary obligations imposed by ERISA, or to deny benefits in contravention of the plan's plain terms. 29 U.S.C. Secs. 1101-1114 (fiduciary responsibilities with respect to plan); 29 U.S.C. Secs. 1021-1031 (reporting and disclosure provisions); 29 U.S.C. Sec. 1104(a)(1)(D) (plan must be administered "in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of [ERISA]"). It is undisputed that the administration of this plan failed to comply with these reporting, disclosure and fiduciary requirements. Del Monte's decision to deny benefits in this case was made in the course of, and could have been infected by, these ERISA violations. Thus, the defendants' decision could not be said, as a matter of law, not to be arbitrary and capricious, and summary judgment was inappropriately granted to Del Monte at this stage of the proceedings.
29 C.F.R. Sec. 2560.503-1(b)(1) (emphasis supplied). Here, there was no summary plan description, no claims procedure, and no provision to inform participants in writing of anything. Del Monte's claims procedure fails simply because there was none. Id.
While it is thus clear that violations of ERISA's procedural requirements--reporting, disclosure and claims procedures--may amount to arbitrary and capricious conduct, the remedy to which this entitles the victimized employees has often been less than satisfactory. Ordinarily, a claimant who suffers because of a fiduciary's failure to comply with ERISA's procedural requirements is entitled to no substantive remedy. Wolfe v. J.C. Penney Co., 710 F.2d 388, 393 (7th Cir.1983). We do not deny the logic of this proposition in the ordinary case. ERISA mandates no minimum substantive content for employee welfare benefit plans, and therefore a court has no authority to draft the substantive content of such plans.
Disclosure has been seen as a device to impart to employees sufficient information and data to enable them to know whether the plan was ... being administered as intended. It was expected that the information disclosed would enable employees to police their plans.
H.R.Rep. No. 93-533, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4639, 4649 (emphasis supplied).
Other factors also weigh against Del Monte's denial of benefits in this case. With employee welfare benefit plans, as with pension plans that are subject to the full panoply of ERISA requirements, imposition of a standard that is not contained in the terms of a plan amounts to an arbitrary and capricious decision. See Morgan v. Mullins, 643 F.2d 1320, 1321 (8th Cir.1981) ("Where the Trustees impose a standard not required by the pension plan itself, this court has stated that such action 'would result in an unwarranted and arbitrary construction of the Plan.' ") (quoting Maness v. Williams, 513 F.2d 1264, 1267 (8th Cir.1975)).
Del Monte imposed several standards not required by the severance policy. The plan provides for severance pay when jobs are "eliminated " and "alternative employment opportunities are unavailable within the Corporation "2 (emphasis supplied). The plan does not condition receipt of severance benefits upon elimination of positions from the face of the earth, but upon "eliminat(ion)" and unavailability of "appropriate alternative employment opportunities... within the Corporation." (Emphasis supplied). The plan does not condition receipt of benefits upon employees' subsequent unemployment, but upon job "eliminat[ion]." The plan does not condition receipt of benefits upon failure of a successor corporation to offer employees jobs after their employment with Del Monte ceases, but upon job "eliminat[ion]."
The plan specifies only that the job be "eliminated" and that alternative Corporation jobs be unavailable . No permissible construction of "eliminated" permits us to imply other conditions into the plan, as Del Monte would have us do. Neither the case law nor Del Monte's past practice allows such bootstrapping.
Certainly, under the applicable case law we cannot deny that jobs are eliminated--and then, perhaps, reinstated--when one employer succeeds another. Even under a collective bargaining agreement, where the National Labor Relations Act imposes various duties on a successor employer, "a business entity which replaces another is not obligated to hire all or any of its predecessor's employees." Bates v. Pacific Maritime Association, 744 F.2d 705, 708 (9th Cir.1984) (citations omitted) (applying this rule to a successorship issue arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e--2000e-17 and 42 U.S.C. Sec. 1981).3 Lack of obligation to rehire, and the consequence of the prior job's elimination, is no less real where, as here, the employees lack the benefits of a collective bargaining agreement with either the predecessor or successor employer.
Neither does the term "eliminated" necessarily contain any of these conditions inherent in its usage. See, e.g., Livernois v. Warner-Lambert, 723 F.2d 1148, 1155 (4th Cir.1983) (ending defendant's "liability for job severance to those continuing as employees [with the successor] ... would clearly constitute ... job termination"); Sly, 712 F.2d at 1210 (even though claimants did not receive severance benefits in this case, the court acknowledged that "[a]s a result of the sale [of the business as an ongoing concern], employees of the [predecessor company] were terminated from their employment"); Pinto, 480 F.Supp. at 364 (claimants unentitled to benefits because of overall construction of severance plan, but court acknowledged that sale of business as an ongoing concern resulted in the loss of plaintiff's old job, and his being "immediately hired by defendants' successor company"). See also Chapin v. Fairchild Camera & Instrument Corp., 31 Cal.App.3d 192, 197-98, 107 Cal.Rptr. 111, 115 (1973) ("the sale [of a business as an ongoing concern] involved a permanent release of the Employees").
Nor can we permit resort to Del Monte's secret intentions behind its secret severance pay policy to imply these conditions into the plan. Del Monte claims that the secret purpose behind its secret severance benefit policy was to benefit only those employees who were without a job of any kind after termination. We decline to refer to the secret intent behind a secret plan to determine whether the denial of severance benefits in this case was not arbitrary and capricious. Allowing reference to this factor would only encourage violation of ERISA's reporting and disclosure requirements, in the hope of later being able to interpret the policy through the cost-benefit analysis of hindsight. In Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.1982), the court stated: "it would be incongruous for persons establishing or maintaining informal or unwritten employee benefit plans, or assuming the responsibility of safeguarding plan assets, to circumvent the Act merely because an administrator or other fiduciary failed to satisfy reporting or fiduciary standards." Id. at 1372. Thus, that court decided that a plan did exist within the meaning of ERISA despite its informal and unwritten form. That court decided only that jurisdiction under ERISA therefore existed. We are faced with the next logical question: May the same failure to satisfy reporting or fiduciary standards go judicially unnoticed in determining the company's obligations under the written expression of the plan? Like the Donovan court; we answer "no."
For similar reasons we decline to reward Del Monte's past practice of denying severance benefits to employees in this situation by interpreting the plan with reference to Del Monte's past course of conduct. Imposition of conditions outside the plan amounts to arbitrary and capricious conduct in spite of how often it is practiced. See Dennard v. Richards Group, Inc., 681 F.2d at 318 (" 'if the interpretation is unreasonable from the beginning, such an interpretation may still be arbitrary and capricious' ") (quoting Morgan v. Mullins, 643 F.2d at 1324 n. 4).
ERISA seeks "to safeguard the well-being and security of working men and women and to apprise them of their rights and obligations under any employee benefit plan." Donovan v. Dillingham, 688 F.2d at 1372. Not coincidentally, the evils against which ERISA was enacted to guard--insecurity, lack of knowledge, and inability to police plan administration--are just the evils that appear in Del Monte's administration of its plan. Del Monte's counsel revealed as much in his treatment of two hypothetical situations that could arise under its plan. First, in Defendant's Reply Memorandum in Support of Motion for Summary Judgment before the district court, Del Monte states: "Even if [a president of a divested subsidiary of Del Monte which had been sold as an ongoing concern] actually received such severance benefits, it is understandable that the president of the company would lose his job when his company was bought as an on-going [sic] concern and that he would receive severance pay." Understandable for a president, but not for a salaried nonunion employee, based on Del Monte's secret distinctions and conditions. Second, at oral argument, Del Monte's counsel was asked, "What if an executive, the president of Del Monte, terminated his employment with Del Monte and the next day got a job working for Pillsbury. Would he be entitled to severance pay?" Counsel responded, "Probably." Thus, benefits would "probably" be available for a president or a vice president, but not for a salaried nonunion employee, based on Del Monte's secret distinctions and conditions. We decline to undermine the purposes of ERISA by considering Del Monte's secret conditions on its secret plan that result in such widely disparate results.
Plaintiffs' complaint contained seven causes of action, one of which was based on a federal theory of liability (ERISA). The remaining causes of action were based on state common law theories of liability (breach of contract implied in fact; promissory estoppel; estoppel by conduct; fraud and deceit; and breach of contract).
Defendants moved for partial summary judgment on plaintiffs' state law claims based on ERISA preemption. The district court granted the motion, and the order dismissing the first, second, third, fourth, fifth, and seventh causes of action was entered May 18, 1983. Plaintiffs argue common law principles are applicable under ERISA as a matter of federal law, and the court may therefore incorporate state common law causes of action into that common law to further ERISA's policies.
The district court was correct in finding that ERISA preempted plaintiffs' state common law causes of action. We recognize that "the preemptive effect of ERISA is broad, [but] it is not all-encompassing." Lane v. Goren, 743 F.2d 1337, 1339 (9th Cir.1984). ERISA is, however, broad enough to preempt the causes of action upon which plaintiffs sought to rely. See Lafferty v. Solar Turbines International, 666 F.2d 408 (9th Cir.1982) (common law breach of contract cause of action preempted by ERISA); Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1215-16 (8th Cir.), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981) (Congress had preempted state common law claims of tortious interference with employee benefit plans).
The trial judge's decision to strike plaintiffs' demand for jury trial will be reversed upon a showing of abuse of discretion. Las Vegas Sun, Inc. v. Summa Corp., 610 F.2d 614, 621 (9th Cir.1979), cert. denied, 447 U.S. 906, 100 S.Ct. 2988, 64 L.Ed.2d 855 (1980). Since plaintiffs did not request a jury trial before this case was removed from state court, Fed.R.Civ.P. 38(b), made applicable by Rule 81(c), required plaintiffs to demand a jury trial within ten days from the filing of the last pleading concerned with the issues for which trial by jury is sought. The last pleading was Del Monte's answer, filed December 23, 1982. Plaintiffs filed a demand for a jury trial on March 1, 1983, almost two months late. Failure to file within the time provided constitutes a waiver of the right to trial by jury. Fed.R.Civ.P. 38(d).
Plaintiffs argue the district court abused its discretion in failing to grant relief from their unintentional waiver. The district court in its discretion may order a jury trial on a motion by a party who has not filed a timely demand for one. Fed.R.Civ.P. 39(b). That discretion is narrow, however, and does not permit a court to grant relief when the failure to make a timely demand results from an oversight or inadvertence. Lewis v. Time, Inc., 710 F.2d 549, 556-57 (9th Cir.1983). See Rutledge v. Electric Hose & Rubber Co., 511 F.2d 668, 675 (9th Cir.1975) (the district court's discretion "should rarely be exercised to grant a trial by jury in default of a proper request for it"). Plaintiffs allege no reason for their failure to file a timely demand for jury trial. Nor is there an independent constitutional or statutory right to jury trial in ERISA actions. In re Vorpahl, 695 F.2d 318 (8th Cir.1982); Calamia v. Spivey, 632 F.2d 1235 (5th Cir.1980); Wardle v. Central States, 627 F.2d 820, 828-30 (7th Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981). Thus, the district court did not abuse its discretion in striking plaintiffs' untimely demand for jury trial.
In light of the evidence of serious violations of ERISA by Del Monte, we find that Del Monte's decisions could not be said as a matter of law not to be arbitrary and capricious; because plaintiffs did not move for summary judgment, we need not decide whether plan administration so riddled with illegality makes the denial of benefits arbitrary and capricious as a matter of law. Hence, summary judgment was inappropriately granted at this stage of the proceedings. The grant of summary judgment is REVERSED and this cause is REMANDED to the district court for further proceedings upon plaintiffs' complaint.
The district court erred in finding that Del Monte's decision to deny severance benefits to plaintiffs was not arbitrary and capricious. Its grant of summary judgment is REVERSED and this cause is REMANDED to the district court for further proceedings upon plaintiffs' complaint.
The plan in this case also differs from the plan in Pinto v. Zenith Radio Corp., 480 F.Supp. 361 (N.D.Ill.1979), where the decision to deny severance pay was not arbitrary and capricious. The Pinto plan, like the Sly plan, but unlike Del Monte's plan, conditioned receipt of severance benefits upon the former employee's unemployment. Id. at 364.

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A divided Fifth Circuit withdrew an earlier opinion (771 F.3d 854 (5th Cir. 2014)) and held that the heirs of J. Howard Marshall (who was married to model Anna Nicole Smith) are not liable for gift tax and interest beyond the value of a gift from Marshall on which he did not pay gift tax. United States v. Marshall, No. 12-20804 (5th Cir. Aug. 19, 2015).
One of the principal issues in this appeal is whether a donee’s liability for a donor’s unpaid gift tax and interest on that tax is limited under 26 U.S.C. § 6324(b) to the value of the gift of the donee. We hold that a donee’s liability for the donor’s unpaid gift tax and interest is capped by the amount of the gift. Accordingly, we reverse the district court’s judgment to the extent that it imposed liability upon the donees beyond the value of the gifts.
All Appellants argue that the district court erred when it found both that [§ 6324(b)] creates an independent liability on the part of the donee to pay the unpaid gift tax and that the donee can be charged interest until the gift tax is paid. First, they argue that the district court's interpretation of § 6324(b) directly contradicts the plain language of the statute. Second, the Appellants argue that the district court erred in applying I.R.C. § 6901 ; specifically, they argue that because the Government did not assess transferee liability under § 6901 but instead chose to seek a personal judgment against the donees, § 6901 is irrelevant in this case. Finally, they claim that even if § 6901 applies, the district court's interpretation of § 6324(b) is incorrect for several reasons. For the reasons that follow, I disagree with each of these arguments and would hold that interest accrues on donee's liability for the unpaid gift taxes and that interest is not limited to the extent of the value of the gift.
It looks this story is never going to end. If you thought the TV show "Dallas" had a dysfunctional family, you should check out the Marshall version of "Houston."