Status of our Fight for our Pensions

[Updated January 13, 2017]  We continue to win in the courts at every critical juncture.  Delphi salaried retirees remain united, confident, and more determined than ever to see justice prevail in legal battle over that last seven years. We will show that the involuntary termination of our pension plan by the Pension Benefit Guaranty Corporation (PBGC) in 2009 violated the Employee Retirement Income Security Act of 1974 (ERISA) because:
  • the PBGC seized our plan without seeking the required approval of a federal district court;
  • the PBGC made no provision for substantial safeguards of the interests of retirees and our beneficiaries, as the PBGC is required to do.  Instead, it released liens against Delphi's foreign assets that would have helped protect retirees' interests;
  • Delphi Corporation, as the Plan Administrator, acted not as a fiduciary in the interest of retirees and beneficiaries, as required, but rather because it was being pressured by the federal government to terminate the plan as part of the government's orchestrated effort to restructure the U.S. auto industry as expediently and cheaply as possible.
We also believe the PBGC also violated our Fifth Amendment Constitutional right of due process when it terminated our plan without giving salaried retirees meaningful notice and without an opportunity to defend our interests in a federal district court hearing.
For more than six years, U.S. taxpayer-paid government lawyers have taken advantage of every procedural roadblock the law allows to hide emails and other evidence that the Court has ordered be given to us.  President Obama has ignored our direct request that he order a review of his Auto Task Force's handling of our pension plan during the expedited General Motors (GM) bankruptcy directed by the U.S. Treasury in 2009.
Importantly, in a civil case like this one, it's only necessary that we show a “preponderance of evidence” and not prove "beyond a reasonable doubt” in making our case.  And we already have strong evidence from multiple government and third-party sources.  Records of communication between the PBGC, U.S. Treasury’s Auto Task Force (ATF), and GM clearly show that the U.S. Treasury was calling the shots, and the PBGC was merely following orders.  The PBGC’s stated rationale and legal basis for its termination of our plan in 2009 fall apart in the presence of these documents.
Today, we are closer than ever to winning our case:
  • Our legal team has completed its review of thousands of pages of emails and other documents.  Most were turned over to us after a federal judge ordered the PBGC to provide them.  The material reveals new and significant information that adds to the considerable amount of evidence we’ve already gathered to support our case.
  • Since August 2013 the PBGC has determinedly and strongly resisted providing the required documents, and caused the Delphi salaried retirees to make multiple submissions to the court to secure the documents.
  • In an important related development, U.S. Representative Mike Turner (OH) asked PBGC Inspector General Robert Westbrooks on December 9, 2015, to initiate an inquiry into the PBGC’s communications missteps with Delphi salaried retirees, in response to requests from some of his constituents.  The Inspector General responded to Congressman Turner on February 12, 2016, and provided a critical, third-party assessment of the PBGC’s conduct.  We have provided the Inspector General's response to the Court because it supports our contention that the PBGC has demonstrated a pattern of bad behavior and lack of forthrightness by misleading our attorneys, individual retirees, and the Court.
U.S. TREASURY (including Auto Task Force)
  • U.S. Federal District Judge Sullivan ruled, on June 19, 2014, that we were entitled to some 900 documents that were mostly emails of three former U.S. Treasury officials – Matthew Feldman, Steven Rattner and Harry Wilson – between each other, to/from others in the Auto Task Force, and to/from others outside the Auto Task Force – including the Office of the President of the United States.
  • But since then, Treasury continued to withhold them on the basis of “privilege” (e.g. attorney-client, attorney work product, deliberative process, and Presidential communications). DSRA attorneys had to file numerous filings with the court.
  • In late June, Judge Sullivan asked to see 10 percent of the documents, and he reviewed them.
  • On July 15, 2016, Judge Sullivan ordered U.S. Treasury to submit the remaining contested documents to the court by noon on July 25, 2016. Judge Sullivan also wrote in his order: “The Petitioner [U.S. Treasury] is forewarned that should the Court determine that claims of privilege are frivolous, the Court shall impose significant sanctions, monetary and otherwise! A hint to the wise should be sufficient. Any motions for reconsideration or for an extension of time based on an argument that Petitioner [U.S. Treasury] has insufficient resources to comply with this Order shall be denied.”
  • U.S. Treasury, in its July 25, 2016, filing with the Court, only chose to defend its privilege claim on 222 documents. It dropped its claim of privilege on the remaining 737 documents, and turned them over to DSRA on July 27, 2016.
  • On December 20, 2016, Judge Sullivan issued an order and accompanying opinion that U.S. Treasury must "forthwith" (immediately!) turn over to DSRA 120 documents that it’s long sought to withhold from us solely on the basis of Deliberative Privilege. Judge Sullivan wrote that U.S. Treasury had “miserably failed” to justify its assertions and “essentially wasted this Court’s precious and limited time.” Judge Sullivan further ordered U.S. Treasury to produce for both the Court and DSRA by January 10, 2017, a revised privilege log. And he asked Treasury to provide the Court the accompanying un-redacted documents it seeks to withhold on the basis of Presidential Communications Privilege, Attorney- Client Privilege or Work Product Privilege -- along with the specific rationale for keeping each from us.
  • U.S. Treasury submitted a revised privilege log to the court on January 10, 2017, as ordered.  Treasury again reduced the number of documents where privilege is claimed, now to only 93.  Once Judge Sullivan rules on how many of the 93 documents we are entitled to receive, and we get them, we will depose several former Auto Task Force officials.  For those depositions we will then have in hand many of their own emails from 2009 to validate our assertions.
This remaining evidence from the U.S. Treasury will bolster the Motion for Summary Judgment that we will file with Judge Tarnow as soon as practicable after completion of depositions.  It will say there’s no need for a jury trial because the preponderance of evidence we’ve uncovered proves the PBGC terminated our pension plan illegally, and that the judge has sufficient grounds to order the PBGC to restore our full pensions – retroactively.