Key Takeaways
- • Employers FedEx Corp., Southern Company Services and the former Kellogg Co. have petitioned the U.S. Supreme Court to review three pro-retiree appeals court rulings on whether pension payments to married retirees must be calculated using "reasonable" actuarial assumptions under ERISA.
- • The justices have asked retirees' lawyers to respond by Dec. 18, after which they will decide whether to accept the petitions for oral argument or deny review.
- • The ERISA Industry Committee filed an amicus brief on Oct. 19 backing the FedEx and Kellogg petitions, arguing that a retiree win would raise costs and risks for defined benefit plans.
- • The dispute centers on outdated mortality data used to calculate joint-and-survivor annuities, with mortality-data ERISA litigation producing mixed outcomes, including a $184.1 million AT&T settlement in July 2026.
- • Attorneys for both sides say sponsors should not overreact and should await clarity from the Supreme Court, given the legal uncertainty across circuits.
Summary
Employers are asking the U.S. Supreme Court to resolve a split among federal courts over whether defined benefit plans can use outdated mortality data when calculating pensions for married retirees, according to Pensions & Investments reporter Robert Steyer. Retirees allege that plan sponsors shortchange joint-and-survivor annuity (JSA) payments by relying on mortality tables that ignore increased longevity, arguing that JSAs must be "actuarially equivalent" to the single life annuity provided to individual retirees under ERISA.
The petitions come from the losing employers in three appeals court rulings favorable to retirees. FedEx Corp. and Kellogg's successor entities were covered by a 2-1 March 2026 decision from the 6th U.S. Circuit Court of Appeals in Cincinnati, which held that ERISA "prohibits employers from using unreasonable, inappropriate actuarial assumptions." The Kellogg case, now Bakery, Confectionary, Tobacco Workers and Grain Millers Pension Committee et al. vs. Reichert et al., involves Kellanova and WK Kellogg Co., the two companies created by Kellogg's September 2023 split. Southern Company Services faces a May 2026 11th Circuit decision that reversed a federal district court dismissal in Atlanta; the Department of Labor had filed an amicus brief supporting the company at that stage. The employers' petitions, filed in mid- to late September, argue that ERISA contains no express limit on actuarial assumptions and that the appeals rulings provide no guidance on which mortality tables or update frequencies are required.
The ERISA Industry Committee filed an amicus brief on Oct. 19 supporting the FedEx and Kellogg petitions, contending that the "reasonableness" standard is judicially created and conflicts with both ERISA and the Internal Revenue Code. The group argued that Congress expressly imposed reasonableness requirements elsewhere in ERISA but did not do so for this provision.
Litigation outcomes have been mixed. A $184.1 million settlement with AT&T was reached in July 2026, including $35 million for plaintiffs' lawyers; a $23 million settlement with Metropolitan Life Insurance Co. was reached in June 2026; and a $59.2 million settlement with the former Raytheon (now RTX) was reached in February 2021. Several cases have been dismissed at the district court level.
Attorneys on both sides emphasized the stakes and uncertainty. Andrew Oringer, partner and general counsel at Wagner Law Group, said "the financial impact is significant for employers and employees," while Amanda Amert of Willkie Farr & Gallagher noted that using different mortality tables for different purposes is "fairly common." Both advised sponsors not to overreact while awaiting the Supreme Court's decision.
The petitions come from the losing employers in three appeals court rulings favorable to retirees. FedEx Corp. and Kellogg's successor entities were covered by a 2-1 March 2026 decision from the 6th U.S. Circuit Court of Appeals in Cincinnati, which held that ERISA "prohibits employers from using unreasonable, inappropriate actuarial assumptions." The Kellogg case, now Bakery, Confectionary, Tobacco Workers and Grain Millers Pension Committee et al. vs. Reichert et al., involves Kellanova and WK Kellogg Co., the two companies created by Kellogg's September 2023 split. Southern Company Services faces a May 2026 11th Circuit decision that reversed a federal district court dismissal in Atlanta; the Department of Labor had filed an amicus brief supporting the company at that stage. The employers' petitions, filed in mid- to late September, argue that ERISA contains no express limit on actuarial assumptions and that the appeals rulings provide no guidance on which mortality tables or update frequencies are required.
The ERISA Industry Committee filed an amicus brief on Oct. 19 supporting the FedEx and Kellogg petitions, contending that the "reasonableness" standard is judicially created and conflicts with both ERISA and the Internal Revenue Code. The group argued that Congress expressly imposed reasonableness requirements elsewhere in ERISA but did not do so for this provision.
Litigation outcomes have been mixed. A $184.1 million settlement with AT&T was reached in July 2026, including $35 million for plaintiffs' lawyers; a $23 million settlement with Metropolitan Life Insurance Co. was reached in June 2026; and a $59.2 million settlement with the former Raytheon (now RTX) was reached in February 2021. Several cases have been dismissed at the district court level.
Attorneys on both sides emphasized the stakes and uncertainty. Andrew Oringer, partner and general counsel at Wagner Law Group, said "the financial impact is significant for employers and employees," while Amanda Amert of Willkie Farr & Gallagher noted that using different mortality tables for different purposes is "fairly common." Both advised sponsors not to overreact while awaiting the Supreme Court's decision.
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