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May 6, 2005.


The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge


Plaintiffs Eastman Kodak Company ("Eastman Kodak") and Martin M. Coyne move for summary judgment on the issue of whether Coyne has failed to exhaust his administrative remedies prior to commencing this action for supplemental pension benefits. For the reasons that follow, plaintiffs' motion is denied.


  The following facts are not contested for the purposes of the present motion. Martin Coyne began working for Sterling Drug Inc. ("Sterling") in 1981. Shortly thereafter, Coyne subscribed to a Supplemental Benefit Plan (the "Plan") — a so-called "top-hat" plan designed to provide certain executives of Sterling who participated in Sterling's standard retirement plan with supplemental payments in excess of limitations imposed by Sections 401(a) (17) and 415 of the Internal Revenue Code.*fn1 In 1989, Eastman Kodak acquired Sterling. The standard Sterling retirement plan became a part of Eastman Kodak's retirement plan, and subscribers to the Plan became entitled to payments in excess of benefits received under the Eastman Kodak plan. In a series of subsequent transactions, Sterling was acquired first by SmithKline Beecham plc, and then by defendant Bayer Corp. ("Bayer").

  In 1994, Coyne left Sterling's employ to join Eastman Kodak, where he worked until his retirement on July 1, 2003. In May 2003, with Coyne's retirement approaching, Eastman Kodak contacted Bayer to inquire about Bayer's responsibility for Coyne's benefits under the Sterling Plan. Bayer responded by e-mail with a request for Coyne's work history and a copy of the Plan, but expressed doubts about its responsibility for Coyne's benefits. Eastman Kodak provided the requested information.

  On October 8, 2003, Eastman Kodak again contacted Bayer, seeking to confirm Bayer's responsibility for Coyne's benefits. Bayer responded promptly, and noted that Coyne was not yet eligible for benefits, but that it would nonetheless convene its benefits group to determine whether it would assume responsibility for payments to Coyne and, if so, to confirm the benefit amount. In several subsequent e-mails, Eastman Kodak sought confirmation from Bayer that it would assume responsibility for Coyne's benefits, which it informed Bayer would become due on March 1, 2004. Bayer never responded to any of those e-mails. Defendants made no payment to Coyne on March 1, 2004, when he allegedly became eligible for benefits under the Plan, or at any time thereafter. On April 6, 2004, Eastman Kodak sent a letter to Bayer stating that "[d]espite repeated notices from Kodak, Bayer has failed to acknowledge its liability to Mr. Coyne under the Sterling Supplemental Retirement Benefit Plan and has failed to make the first payment due to Mr. Coyne. Pursuant to undertakings to Mr. Coyne at the time of his retirement in July 2003, Kodak has paid Mr. Coyne his first monthly check. . . . Kodak seeks and requires Bayer to indemnify Kodak from, against and in respect of all losses arising from its breach of its obligations." Bayer never responded to the letter.

  Eastman Kodak and Coyne commenced this action on June 28, 2004. Coyne sues defendants for his supplemental benefits under the Plan. Eastman Kodak seeks indemnification for payments it has already made to Coyne. Defendants moved to dismiss the action on the ground that Coyne has failed to exhaust administrative remedies, but withdrew their motion after the complaint was amended. On October 15, 2004, defendants filed an answer asserting failure to exhaust administrative remedies as a defense. At a pre-trial conference, defendants identified the administrative remedies that Coyne had failed to exhaust as those contained in an amendment to the Plan that was adopted on July 12, 2004, some two weeks after the filing of the complaint. The amendment was adopted "as of January 1, 2004."


  A motion for summary judgment should be granted if the court determines, from the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Where there are no material facts in dispute, a motion for summary judgment should be granted." Nexans Wires S.A. v. Sark-USA, Inc., 319 F. Supp.2d 468, 471 (S.D.N.Y. 2004).

  It is undisputed that the Plan at issue provided no administrative procedure for Coyne to follow at the time he retired or at the time this action was commenced. The parties disagree, however, as to whether Coyne must now exhaust the claim procedure first adopted in the belated amendment to the Plan. Defendants contend that, under the terms of the Plan, they are entitled retroactively to enforce procedural amendments, such as the July 12, 2004 amendment. Coyne must therefore exhaust the amendment's claim procedure before proceeding in federal court. Plaintiffs respond that the amendment does not apply because it impairs Coyne's right to benefits, and that, in view of defendants' failure to pay and to respond to Eastman Kodak's e-mails and letter, requiring Coyne to exhaust the new claim procedure would be futile.

  I. The Retroactive Amendment

  The first question is whether the amendment to the Plan, which was adopted after Coyne's retirement and after commencement of this action, applies to Coyne.

  In the case of "top-hat" benefit plans, such as the Plan at issue here, courts apply principles of contract law in determining the rights of participants. See Gallione v. Flaherty, 70 F.3d 724, 728-29 (2d Cir. 1995); Pereira v. Cogan, 200 F. Supp.2d 367, 375 (S.D.N.Y. 2002) ("Rights under a top hat plan are governed by contract law as opposed to trust or fiduciary principles under ERISA.").*fn2 In deciding whether the amendment applies to Coyne, the language of the Plan is therefore controlling.

  Article VI of the Plan provides that the employer has the right to amend, suspend, or terminate the Plan, in whole or in part, provided that "[n]o such amendment, suspension or termination shall retroactively impair or otherwise adversely affect the rights of any Employee or other person to benefits under the Plan that may have arisen prior to the date of such [amendment] as determined by the Committee in its sole discretion." Thus, ...

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