Daft v. Advest, Inc., No. 10-3151 (6th Cir. 2011)
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In 1992 a brokerage firm established a nonqualified defined benefit plan for a select group of highly compensated executives. The plan contains provisions that, if triggered, result in discontinuance of payments and forfeiture of benefits accrued, regardless of how long a participant has been enrolled. Plaintiffs are executives who left the firm and went to work for a rival company, triggering provisions that forfeited benefits. After exhausting their claims before the plan's administrative committee, they filed suit under the Employee Retirement Income Security Act, 29 U.S.C. 1053(a)(2), claiming improper denial of benefits. The district court granted summary judgment to plaintiffs. The Sixth Circuit reversed. The existence of an ERISA plan is not a jurisdictional issue and defendants waived their argument that the plan was not an ERISA plan by neglecting to raise it until after summary judgment, but the district court should have remanded the issue of whether the plan is qualifies as a top-hat, deferred-compensation plan under section 201(2) of ERISA: a plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees.
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