Fifth Circuit Adopts Majority Rule on What Constitutes 'Other Instruments' of an ERISA Plan

The Tax Management Transfer Pricing Report ™ provides news and analysis on U.S. and international governments’ tax policies regarding intercompany transfer pricing.


By Marjorie J. Cohen, Esq.

Wilson Elser, Houston, TX


ERISA plan administrators facing broad requests for production under ERISA §104(b)(4) may limit their production to formal legal documents governing the plan, based on new guidance from a panel of the Fifth Circuit in Murphy v. Verizon Communications, Inc., No. 13-11117, 2014 BL 287183 (5th Cir. Oct. 14, 2014) (unpub. op.).

ERISA §104(b)(4) requires plan administrators to provide certain plan documents to any participant or beneficiary who submits a written request. Specifically, the statute requires ERISA administrators to "furnish a copy of the latest updated summary … plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated." 29 U.S.C. §1024(b)(4). (Emphasis added.) An administrator who fails to comply with the production requirement of ERISA §104(b)(4) can be exposed to penalties of up to $110 per day. 29 U.S.C. §1132(c)(1)(B); 29 C.F.R. §2575.502c-1.  However, until the Fifth Circuit's recent decision, it was unclear what "other instruments" must be produced under the "catch-all clause" of ERISA §104(b)(4).


The appellants in Murphy had sought production of investment guidelines used by administrators of the appellee pension plans, arguing that they were "other instruments" under which the plans were operated. The Fifth Circuit disagreed, construing the catch-all provision narrowly so as to apply only to legal documents that govern a plan. The court explained that its construction was consistent with the plain meaning of the term "instrument" as defined by Black's Law Dictionary: "a written legal document that defines rights, duties, entitlements, or liabilities, such as a statute, contract, will, promissory note, or share certificate." Additionally, the court noted that the term "other instruments" in ERISA §104(b)(4) followed a list consisting of formal documents that either (1) provide plan participants and beneficiaries with notice of their rights and obligations or (2) are the foundational documents under which a plan is created and governed. Under the statutory canon of ejusdem generis, the general term "other instruments" must cover subjects comparable to the specific items it followed.  Because the investment guidelines sought in Murphy were not alleged to be binding on the plans at issue, the Fifth Circuit held that they did not need to be produced under ERISA §104(b)(4).

The Fifth Circuit's conclusion in Murphy is consistent with the majority rule followed by the First, Second, Fourth, Seventh, and Eighth Circuits, all of which have defined "instrument" as a formal or legal document that establishes or governs a plan.  SeeDoe v. Travelers Ins. Co., 167 F.3d 53 (1st Cir. 1999); Bd. of Trs. of the CWA/ITU Negotiated Pension Plan v. Weinstein, 107 F.3d 139 (2d Cir. 1997); Faircloth v. Lundy Packing Co., 91 F.3d 648 (4th Cir. 1996); Ames v. Am. Nat'l Can Co., 170 F.3d 751 (7th Cir. 1999); Brown v. Am. Life Holdings Inc., 190 F.3d 856 (8th Cir. 1999).

The minority view adopted by the Sixth Circuit is that the catch-all provision should be construed broadly to favor disclosure of any documents that would help participants understand their rights under a plan. See Bartling v. Fruehauf Corp., 29 F.3d 1062 (6th Cir. 1994). The Ninth Circuit employs a construction midway between the majority and minority views, concluding that the instruments referenced in the catch-all provision "are those documents that provide individual participants with information about the plan and benefits." SeeHughes Salaried Retirees Action Committee v. Admin. Of the Hughes Non-Bargaining Retirement Plan, 72 F.3d 686, 689 (9th Cir. 1995) (en banc). The Third, Tenth, Eleventh, and D.C. Circuits do not appear to have addressed the definition of "instrument" in ERISA § 104(b)(4).

For more information, in the Tax Management Portfolios, see Kushner, 361 T.M., Reporting and Disclosure Under ERISA,  and in Tax Practice Series, see ¶5570, Reporting and Disclosure Requirements for Benefit Plans.

© 2014 Wilson Elser. 


 1 Marjorie Cohen is Of Counsel in Wilson Elser's Houston Office. Her practice is focused on insurance coverage and defense, with an emphasis on life, health, disability and ERISA.

Request Transfer Pricing Report