Court Moves Forward Top Hat Plan Participant’s Claim for Benefits

July 1, 2011 ( – A federal court has decided that a top hat plan participant has made adequate allegations of a merger that support her contention that the successor company owes her benefits from the plan.

The U.S. District Court for the District of South Carolina found the factual allegations are sufficiently specific assuming Carolyn C. Jeter relies solely on a merger theory. However, if she relies on some theory of successor liability other than that her employer Century 21 Bob Capes Realtors and Coldwell Banker, United Realtors (CBUR) merged, then more detailed factual allegations would be required in support of the theory.  

According to the opinion, Jeter seeks recovery of benefits allegedly owed under a deferred compensation plan known as the Century 21 Bob Capes Realtors Commission Advantage Plan. In the spring of 2008, she requested distribution of her funds and was told that it would take a period of weeks to complete the distribution. Multiple subsequent requests were met with the same response until, in early 2009, she was told that no funds were available. 

Jeter accepted transfer of title of an amount still due is in excess of $300,000. In addition, Bob capes executed and delivered a written promissory note to Jeter promising to pay $328,703.24 “in twelve months on April 15, 2010 . . . With interest thereon at the rate of 5.5%.” Bob Capes has not paid the Note according to its terms.  

CBUR argued that the allegations of a merger are not sufficiently specific to satisfy the relevant pleading standards, and that the transaction in November 2008 was an asset sale rather than a merger, with assumption of only specified obligations exclusive of any obligations under the plan.  

The case is Jeter v. Century 21 Bob Capes Realtors Inc., D.S.C., No. 3:11-cv-00627-CMC.