The bixby liquidating trust

Undeterred by the lack of support in the contract, Leiding next argues that the statutory ERISA provisions trump the specific contract provisions and support a broader definition of "employer"--one which could be read to include a "successor employer" such as Brookside. They contend that Leiding's claims for state law causes of action, jury trial, and extracontractual and punitive damages were factually and legally baseless.

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Rather, the record includes only a "Summary Plan Description." As that document expressly states: "This is a summary plan description ONLY.

The plan itself is the document on which benefits are based and is available for your review upon request." However, because the Summary Plan Description is the only document before us, we must rely on it 4 Leiding makes a strained attempt to argue alternatively that he was in fact an employee of Brookside for about three hours on the evening of September 15, 1988.

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If Leiding is correct in asserting that Congress intended continuation coverage to extend to employees like himself, then the contract terms are all but irrelevant and we must determine whether Brookside or any other entities were indeed "successor employers." This argument is therefore properly considered in this section, not the "Equitable Estoppel" section 6 The criteria for determining whether an employer is a successor employer in the NLRB context may not be wholly applicable to the ERISA context. at 40, the Supreme Court held only that the successor corporation had a duty to bargain with the union that represented the employees of the predecessor company.

The National Labor Relations Act and ERISA are designed to serve different policy goals.

This problem would be exacerbated by the fact that these oral agreements often would be made many years before any attempt to enforce them. Leiding attempts to distinguish Straub by arguing that equitable estoppel may be applied to an ERISA fiduciary's interpretation of an otherwise ambiguous or undefined provision of the plan. There is absolutely nothing in the Summary Plan Description to suggest that the obligations thereunder would outlive the existence of Bixby or any other participant who had, for whatever reason, opted to terminate the plan. Penn, 587 F.2d 453, 465 (10th Cir.1978), and reiterated in Gordon.

Leiding relies primarily on two cases for this proposition. Since it is beyond dispute that Bixby ceased operation on September 15, 1988--and at that time terminated its participation in the OBA plan--we fail to see any contractual language which might revive or salvage the terminated coverage. 272, 278-79 (1972)).6 We disagree with his assessment of the undisputed facts and conclude that Brookside, upon these facts and for purposes of deciding the issue on this appeal, is not a successor employer to Bixby. Since Leiding did not prevail on any issue in this litigation, we have no difficulty affirming the district court's denial of plaintiff's motion for fees and costs.

The P & A provided that: [Brookside] shall have no obligation nor responsibilities under defunct bank's employee benefit plans including pension or profit sharing plans, if any, unless liquidating agent and assuming bank subsequently agree otherwise. We affirm the district court in all respects.2 Leiding contends that he "continually asked the plan administrator's representatives whether the OBA Trust provided COBRA coverage to the former employees of a member bank that fails and is taken over." Appellant's Br. According to Leiding, he "was told on many occasions by the plan administrator's representatives that yes his COBRA coverage will be available." Id. Pittsburgh-Des Moines Corp., 893 F.2d 638, (3rd Cir.1990). and to reorganize or liquidate the bank in accordance with the Code." Id. Upon acceptance of this charge, the FDIC assumed "all the powers and privileges provided by the laws of this state with respect to the liquidation of a bank...." Id. Brookside expressly declined to assume any obligations under Bixby's employee benefit plans. Since, on the facts of this case, neither the Commissioner, the FDIC, nor Brookside can be considered to have been a successor employer, we affirm the district court's granting of summary judgment.

Rather than institute a liquidation of Bixby's assets, the FDIC entered into a purchase and assumption transaction ("P & A") with Brookside State Bank ("Brookside"), which allowed Brookside to purchase certain assets of the insolvent Bixby and to assume depositor liability from the FDIC. He additionally appeals from the district court's rulings on attorney's fees. As provided under that statute, the Commissioner took possession of the bank and was "vested with the full and exclusive power of management and control, including the power to continue or to discontinue the business, to stop or to limit the payment of its obligations, ... Rather than liquidate Bixby's assets in piecemeal fashion as it had the authority to do, the FDIC reached an agreement with Brookside whereby Brookside assumed certain Bixby assets and liabilities.

We reject that argument and find nothing in the record to support that contention.

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