Elder Law FAX The June 18, 2007, issue of Elder Law FAX, a free newsletter published every other Monday by the Elder Law Practice of Timothy L. Takacs.   Employer's Oral Promise to Provide Benefits Did Not Create an ERISA Pension Plan A federal appeals court has ruled that an employer's oral promises to provide pension benefits to a key employee did not bind the employer to provide the employee with a pension plan within the meaning of the federal Employee Retirement Income Security Act (ERISA). Judgment by the trial court in favor of the employer was affirmed on appeal. In December 1991, Charles Gardner Jr. and his sons Douglas Gardner and Charles Gardner III approached Thomas R. Guilbert, a former co-worker and family friend, about joining their new print brokerage business. Guilbert later met with the Gardners to discuss the details of his prospective employment. He informed the Gardners that he had accumulated approximately $39,000 in pension funds at his present job. Charles Jr. allegedly told Guilbert that if he joined the company, in addition to a his salary, the Gardners would establish a pension fund for him with an initial deposit of $39,000 and subsequent annual deposits of $10,000. Guilbert accepted the terms of the agreement and began work in January of 1992. He worked for the company until it collapsed in 2000. In early 1992, according to Guilbert, Charles Jr. wrote down the terms of the pension on a legal writing pad. In the summer of 1992, and on a number of occasions thereafter, Guilbert requested documentation of his pension, but none was provided. According to Guilbert, the Gardners orally assured him on numerous occasions that they had "taken care of" his pension benefits. Guilbert filed suit against the Gardners, alleging numerous causes of action, such as fraud, breach of contract, and promissory estoppel, as well as asserting that the Gardners violated the provisions of ERISA pertaining to the establishment of a pension plan for him. The trial court dismissed this claim, and the Second Circuit Court of Appeals affirmed. The appeals court was "unpersuaded," as Circuit Judge Hall wrote, that Guilbert had any legally cognizable claim against the Guilberts under the ERISA law. ERISA, wrote Judge Hall, covers "any employee benefit plan if it is established or maintained-(1) by any employer engaged in commerce or in any industry or activity affecting commerce." A plan, fund, or program under ERISA "'is established if from the surrounding circumstances a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits." Noting that the only evidence of a "pension plan" were some terms written on a legal pad by one of the Gardners (this document was never submitted as evidence to the trial court), the appeals court concluded that "no reasonable fact finder could find that defendants 'established or maintained' a pension plan under ERISA." Guilbert v. Gardner, 2d Cir. 2007