Please Redistribute
August 26, 2005
Mimi Hull, President 
Board Members and General members
This update concerns the Phelps v. Qwest Employees Benefit Committee (ERISA Disclosure case).  As you know, this case concerns a legal challenge to the company's wholesale denial of our request for a copy of:  1) the pension plan "investment policy guidelines";  and  2)  the pension plan and health care plan "investment trust proxy voting policy."  In this pending lawsuit, we have made demand for the requested documents and asked for an award of a daily penalty ($110) for each day that has gone by and the documents not given to us.  To date, more than 18 months since the original written request, Qwest still refuses to disclose the requested documents. This, despite Qwest CEO Richard Notebaert's proclamation that, under his reign (unlike under former CEO Joseph Nacchio), there would be more "transparency."
On August 5, 2005, Qwest's legal counsel filed a formal request -- a motion for summary judgment -- asking the federal court to dismiss the pending case.  You can go to this URL and read a copy of the company's legal brief:
Yesterday morning, August 25, I filed a legal brief in opposition to the company's position.  You can go to this URL and read a copy of the legal brief:
As you know, AUSWR Executive Director Nelson Phelps formally demanded disclosure of the requested documents in order to help him and the retiree association police the goings on with the Qwest Pension Plan.  Mr. Phelps was particularly concerned about a complete loss of a $67 million "put option" investment made with pension fund monies in late 2001.  Therefore, he asked for documents in order to determine whether that highly unusual investment was appropriate.  Qwest's response was to give Mr. Phelps the proverbial 'poke in the eye,' essentially displaying an attitude by the company that 'its none of your business and since we think ERISA doesn't specifically force us to do so, we won't reveal the requested paperwork.'  Therefore, this case involves one very narrow and technical question: Is Qwest required to provide certain documents to a retiree pension plan participant pursuant to § 104(b)(4) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”)?  Of course, we believe the answer is “yes.”  Therefore, Mr. Phelps's case should not be dismissed as a matter of law.  Qwest should be required to disclose the requested documents and pay the civil fine, as allowed by ERISA.
The pending motion will await a decision by the Denver federal judge, Chief Judge Lewis T. Babcock, who has a lot of cases pending before him.  But, perhaps, we will get a ruling from him before the end of this year.  Nothing further will happen in this case until after this motion is ruled upon.
The legal issues in this case are significant not only for your retiree group, but for other retiree groups and individual retirees who, too, want to police their pension plan and, therefore make written requests for information concerning pension plan operations.  To learn more, you should visit the "Legal Developments" page at the AUSWR  website and under the heading "ERISA Disclosure - Phelps v. Qwest" view all of the updates, the Complaint and other legal papers that have been posted.