March 21, 2025
Retirees of gas and electric utility Southern Company Services Inc. urged the Eleventh Circuit to revive their proposed class action alleging that their employer’s outdated mortality tables lowered their pension payouts, arguing that a lower court wrongly tossed the dispute.
The proposed class of Southern Company pension plan participants, led by ex-workers William Drummond and Richard Odom, entered a reply brief with the appellate court on Thursday in the Employee Retirement Income Security Act suit, arguing a district court wrongly found that companies have the discretion to define for themselves what the term “actuarial equivalent” means under Section 1055(d) of ERISA.
According to the filing, ERISA requires that every married plan participant be offered a joint and survivor annuity that is the “actuarial equivalent of a single annuity for the life of the participant.” The text and purpose of that provision make clear that joint and survivor annuities must be at least equivalent to the single life annuity that a participant would have earned if they remained unmarried, Drummond and Odom argued, and in doing so, ensure that workers will not lose pension benefits on account of their marital status.
Yet, the retirees said, Southern Company Services Inc., the Southern Co. pension plan and its administrative committee argue — and the district court agreed — that ERISA allows them to write “any mortality table and interest rate into the plan.”
That cannot be right, the retirees contended, because it would allow companies to calculate joint and survivor annuity payments using any actuarial assumptions written into a plan document, including “centuries-old data or random numbers or based on the lifespan of anything from a housefly to a giant tortoise (or Tolkien elf).”
Though they acknowledged that Congress did not provide a statutory definition of “actuarial equivalent,” the retirees said that is no reason to “ignore the words that Congress did use.”
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The retirees are represented by Michelle C. Yau, Eleanor Frisch and Daniel R. Sutter of Cohen Milstein Sellers & Toll PLLC, Peter K. Stris, Rachana Pathak and Douglas Geyser of Stris & Maher LLP and John T. Sparks Sr. of Austin & Sparks PC.
Read Gas Co. Retirees Urge 11th Circ. To Revive Pension Suit.