January 13, 2015

		BY CERTIFIED MAIL; RETURN RECEIPT REQUESTED

Genworth Life Insurance Company
Pension Administration
700 Main Street
P.O. Box 6158
Lynchburg, VA  24505-6158
Attention: Legal Department

Re: 	Jose Smith				SSN: XXX-XX-XXXX
         	Certificate  #XXXXXXX		DOB:		
				
Dear Sir or Madam:

	Mr. Jose Smith has requested the assistance of the New England Pension Assistance Project with respect to the issue of payment of the annuity contract between Genworth and Barry Wright/Barry Controls, his former employer. Included as Exhibit A you will find a Release form signed by Mr. Smith. 

This letter constitutes a claim for benefits due him pursuant to the plan, the annuity contract, and ERISA.   

	Statement of Facts
	
	 Mr. Jose Smith is a deferred vested participant in the Barry Controls pension plan (hereinafter, “the plan”).  At the time of the plan’s standard termination, the plan administrator purchased an annuity contract with the Genworth Life Insurance Company, pursuant to which Genworth agreed to pay all benefits due to deferred vested participants, including Mr. Smith.

Mr. Smith attained Normal Retirement Age, age 65, on August 13, 2010, and his pension benefit pursuant to the plan was therefore payable and became nonforfeitable as of September 1, 2010.  Mr. Smith’s entitlement to this pension is not in question. 

Mr. Smith did not apply for his pension benefits until mid- 2014, as he was unable to locate the party responsible for paying the pension, and has limited English proficiency. Genworth Life Insurance Company now takes the position that it will begin paying Mr. Smith his monthly benefit of $310.68 effective January 1, 2015. See Exhibit B, attached hereto.  However, Mr. Smith has been informed verbally that Genworth will not pay his benefit retroactive to his Normal Retirement Age because he failed to file his application for benefits when he first became eligible. 

	Argument

	ERISA provides that “Each pension plan shall provide that an employee’s right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age”. See Section 206(a) of ERISA.  It is well-settled that a late application just means that the payment of benefits actually starts at a later point. It cannot lawfully entail the forfeiture of benefits.  Federal courts have consistently held that pension plans must pay retroactive benefits to a participant who files a late retirement application.  See Contilli v. Local 705 Int’l Bhd. Of  Teamsters Pension Fund, 559 F. 3d. 720 (7th Cir. 2009); Canseco v. Constr. Laborers Pension Trust for S. Cal., 93 F.3d 600(9th Cir. 1996); and Cotter v. E. Conference of Teamsters Ret. Plan, 898 F.2d 424 (4th Cir. 1990).

The prohibition on forfeitures is central to ERISA. Federal courts have consistently held that pension plans must pay retroactive benefits to a participant who files a late application for those same benefits. In Cotter v. E. Conference of Teamsters Ret. Plan, the Fourth Circuit held that an interpretation of a plan that might lead to forfeiture of vested retirement benefits where a participant did not immediately file a claim “plainly violates” ERISA. 898 F.2d 424, 428 (4th Cir. 1990). Plaintiff Cotter claimed his Teamsters pension eight years after he became eligible to receive it. Id. at 425. The Teamsters plan argued that Cotter had to apply for his benefits before they could begin, and, as he had applied for them late, he could not receive retroactive benefits. Id. at 427. The Fourth Circuit rejected the plan’s interpretation because it would have resulted in a forfeiture of vested benefits and therefore would have violated ERISA.  Id. at 428.  

Other federal courts have followed Cotter closely. In Canseco v. Constr. Laborers Pension Trust for S. Cal., plaintiff Canseco became eligible for normal retirement benefits at age 62. 93 F.3d 600, 603 (9th Cir. 1996). However, Canseco did not apply for his benefits at age 62 because the plan had erroneously informed him that he did not satisfy the service requirement for normal retirement benefits. Id. Although the plan subsequently determined that Canseco was indeed eligible for normal retirement at age 62, it still refused to pay his benefits retroactive to his 62nd birthday because Canseco did not apply for them. Id. The Ninth Circuit ruled in favor of Canseco on two grounds. 

First, the Ninth Circuit found on the basis of plan language that “eligibility for retirement benefits is wholly independent from the payment of those benefits.” The plan in question conditioned benefit eligibility upon the participant’s satisfaction of service, age, and covered hours requirements, but not upon the filing of an application. Canseco, 93 F.3d at 607. The plan had an application requirement in a separate section that did not concern benefit eligibility. Id. The Ninth Circuit found that “[a]lthough an application is required to initiate payment of benefits, it does not follow from this procedural requirement that the failure to apply for payment of benefits entails the complete loss of those benefits retroactively.” Id. Indeed, the Ninth Circuit found the payment of retroactive benefits to be necessary to preserve the plan’s guarantee that benefits will be paid upon the satisfaction of the eligibility requirements. Id. The Court held that the application requirement was “merely administrative” and could not prohibit the retroactive payment of benefits to participants who had become eligible to receive them. Id. at 607-608.

Second, the Ninth Circuit in Canseco held that plan administrators could not construe the plan as imposing an additional eligibility requirement that conflicted with the terms of the plan. Canseco, 93 F.3d at 608. Applying that principle in Canseco, the Ninth Circuit found that the plan had in fact imposed an additional eligibility requirement by refusing to pay retroactive benefits to participants had earned their pensions but did not apply for them immediately. Id. at 609. The Court rejected the plan’s interpretation as inconsistent with the plan terms and reiterated that “the submission of an application is not a condition of eligibility but is merely an administrative procedure that triggers the commencement of benefit payments.” Id.  Furthermore, “[a]lthough an application is required for benefits to begin, this administrative requirement does not operate to strip eligible retirees of the benefits they earned upon satisfying the [plan’s eligibility requirements].” Id. The Court ultimately awarded retroactive benefits to Canseco and his co-plaintiffs. Id. at 610.

	Additionally, in Contilli v. Local 705 Int’l Bhd. of Teamsters Pension Fund, the Seventh Circuit held that any benefits that are missed due to a late application for benefits must be made up to avoid a forfeiture under ERISA. 559 F.3d 720, 722 (citing Cotter). 

	It is clear based on Contilli, Cotter, and Canseco, that Genworth’s failure to pay Mr. Smith his benefit pursuant to the plan’s Normal Retirement Age constitutes a violation of ERISA’s anti-forfeiture rule.

	In addition, if the matter is analyzed as a matter of contract law, it is clear that Mr. Smith is a third-party beneficiary of the annuity contract agreed to by the plan’s administrators and Genworth. The annuity contract obligates Genworth to pay in full all the benefits payable to plan participants pursuant to the terms of the plan.  Genworth agreed to pay benefits to Mr. Smith commencing at age 65, and the purchase price was contingent upon this, among other terms.  Genworth’s failure to pay the full amount of the benefit it is contractually obligated to pay would constitute unjust enrichment on its part.  Genworth is not permitted to reap a windfall of more than four years of benefits which are clearly owed to the participant.

	Conclusion

	Jose Smith is entitled to monthly benefits pursuant to the plan, the annuity contract, and ERISA, retroactive to his Normal Retirement Age of 65.  

	For the reasons discussed above, we hereby request that Genworth immediately calculate and pay, in a lump sum, the retroactive benefits due to Mr. Smith from September 1, 2010, through November 2014.  

	Please direct your written response to me at : New England Pension Assistance Project, Gerontology Institute, Univ. of Massachusetts Boston, 100 Morrissey Blvd. Boston, MA   02125.   Please feel free to contact me at Jeanne.medeiros@umb.edu or at 617-287-7332 if I can provide you with any further information. 

	Thank you for your attention to this claim for benefits.

								Sincerely,

								Jeanne M. Medeiros, Esq.
								Managing Attorney

Enclosures: 

	Ex. A - Release Form

	Ex. B – Genworth letter dated December 2, 2014 

cc: Jose Smith