BoA/Fleet Cash Balance Suit in Settlement Talks

November 14, 2007 ( - Bank of America has worked out a preliminary agreement with lawyers representing a class of employees in a lawsuit against predecessor, FleetBoston Financial Corp., over its cash balance plan conversion.

According to a Charlotte Observer news report, both sides are still working out the details of the settlement that has not yet been made public, a bank spokeswoman and a plaintiffs’ lawyer told the newspaper.

Bank spokeswoman Shirley Norton told the Observer that class members will be briefed on details of the preliminary pact after it is finalized. Tom Moukawsher, an attorney for the plaintiffs, told the Observer that the agreement could be finalized in the next two months.

However, in court documents filed earlier this year, lawyers for both sides announced they had agreed to settle the issues in a voluntary, non-binding mediation process conducted by Boston University Law School Professor Eric D. Green.

The settlement document indicated the two sides had held two two-day mediation sessions in April and June 2007 and had scheduled two further sessions for July and September. The document requested that U.S. District Judge Janet C. Hall put the court proceedings on hold until the mediation could be completed.

Court records show Hall approved the mediation process in July and agreed to extend the court proceedings delay until November 30, 2007. Hall ordered that the parties report their progress back to her by November 19.

The 2004 lawsuit charged that Fleet, acquired by Bank of America in 2004, ran afoul of the Employee Retirement Income Security Act (ERISA) by carrying out a cash balance conversion without properly notifying participants that the change reduced benefits.

In 2006, Hall threw out three of six counts in the suit but also granted class-action certification (See FleetBoston Cash Balance Suit Moves Forward ).

Bank of America’s own cash-balance pension plan also faces scrutiny from the Internal Revenue Service and is the subject of a lawsuit filed by plan participants. In securities filings, the company has said the Internal Revenue Service informed the bank that it violated tax rules when employees voluntarily transferred assets from the company’s 401(k) plan to its pension plan in 1998 and 1999. The bank is in administrative proceedings over an ongoing audit.

The Fleet case is Richards v. FleetBoston Financial Corp., D. Conn., No. 3:04-cv-1638 (JCH). The proposed mediation agreement is here .