What Plan Documents Must You Surrender if You Are Sued Under ERISA?

When a retirement plan participant files a lawsuit to recover damages from harm due to the plan sponsor’s alleged breach of fiduciary duty, employers and plan administrators must furnish certain plan documents on demand.

While the Employee Retirement Income Security Act (“ERISA”) requires the production of relevant materials, employers and plan administrators are not required to undertake any extensive searches for irrelevant documents. A recent court case, Theriot v. Building Trades United Pension Trust Fund, offers guidance on the extent to which employers and plans must go to meet their duties and where to draw the line.

ERISA Requirements

ERISA requires administrators, on a participant’s or beneficiary’s written request, to furnish a copy of:

  • The latest summary plan description;
  • The most recent annual report;
  • Any terminal report; and
  • The bargaining agreement, trust agreement, contract, or “other instruments under which the plan is established and operated.”

Plans must furnish these documents within 30 days or face a maximum $110 per day fine for the number of days elapsed after the 30-day deadline passes.

The Theriot Case

The underlying dispute in Theriot focused on the plan’s rejection of a request by the daughter of a pension beneficiary to receive a lump-sum distribution of a pension benefit following her mother’s death. While the pension beneficiary had met a deadline for requesting a lump-sum distribution, she died before the scheduled distribution date. As a result, the mother’s pension determined that the daughter was ineligible to receive that benefit because her mother had died before the lump-sum distribution date.

As the case proceeded, the beneficiary’s daughter sought any documents related to whether there was any justification for the administrator’s denial of the benefit. In response, the plan narrowly interpreted the documents that it was obligated to produce, including the then-current (as of 2017) plan document. However, the plan failed to produce a copy of the plan’s original 1990 document, which was one of the primary issues in the case. The plaintiff argued that the plan should have known that it was being asked to produce the 1990 document.

Citing prior cases, the judge said that claimants do not have to request a document using its precise name if the request is sufficiently clear to give the plan administrator notice of the information sought by the claimant.

However, the court found that the plaintiff’s request for documents nevertheless failed to provide clear notice “such that a reasonable plan administrator would have known” that the plaintiff was also requesting the 1990 plan document and other documents which the plan administrator also failed to provide.


Even if the court had found that the plaintiff had specifically requested the 1990 plan document, the plan would have had no obligation to produce it because the plan administrator used the 2017 plan document to administer the plan during the period relevant to the legal dispute over the lump-sum payment.

The plaintiff also requested, but did not receive copies of, “any errors and omissions policies issued to the [pension].” However, the court ruled that the fund was not obligated to produce these policies because they did not qualify as “instruments under which the plan is established or operated.”

HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.