Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW BARB IE R, Distiret Judge. Plaintiffs are former employees of Schwegmann Giant Super Markets (“SGSM”) who have filed suit under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq., or alternatively, under state law, seeking to have their pension benefits in the form of retirement grocery vouchers and/or monetary payments reinstated, and for equitable relief requiring Schwegmann, the plan sponsor, to fulfill accrual, vesting, and funding requirements under ERISA. Schwegmann terminated the voucher program in February 1997, when it sold its chain of grocery stores. Plaintiff, John Musmeci, and other plaintiffs, on behalf of themselves and others similarly situated, claim that they are vested in their retirement benefits by effect of law and under the terms of the benefit plan and are entitled to receive the vouchers or their equivalent for life. Plaintiffs filed this suit in September 1997. In July 2000, this Court certified the matter as a class action. The plaintiff class is defined as Those individuals who were SGSM employees and (1) who were retired and receiving the grocery vouchers when SGSM stopped the program, or (2) who, although not retired or receiving the grocery vouchers at the time SGSM stopped the grocery program, were (i) supervisors for at least one year before retirement, and (ii) had at least 20 years experience with SGSM. Rec. Doc. 156. Defendant SGSM is the partnership that employed plaintiffs and is alleged to have sponsored the retirement grocery voucher plan. SGSM, Inc., G.G. Schwegmann Company, and the John Schwegmann, Jr. Trust Estate are the constituent partners. Defendant SGSM Pension Plan is alleged to be the retirement grocery voucher plan, although Schwegmann never identified it as such. Plaintiffs allege that John F. Schwegmann, who was chief executive officer of SGSM, Inc., is a fiduciary of the voucher plan, and is therefore personally liable for various violations of the duties concomitant to that status. Defendant United States Fidelity & Guaranty Company (“USF&G”) is the insurer of the Schwegmann entities. This matter came on for trial before the Court, sitting without a jury, on July 30 and 31, 2001. At the close of the evidence and following closing arguments, the Court took the matter under advisement. Having considered the pleadings, evidence at trial, arguments of counsel, and applicable law, the Court now renders its Findings of Fact and Conclusions of Law, pursuant to Federal Rule of Civil Procedure 52(a). FINDINGS OF FACT Making groceries Schwegmann’s stgle A popular television commercial jingle once boasted of “Makin’ groceries, Schwegmann’s style.” The jingle required no explanation for the generations of New Orleanians who grew up shopping for groceries (and other sundry items) at Schwegmann Giant Supermarkets, until recently a dominant player in the local retail grocery business. So well-known and so popular was Schwegmann’s at one time, that other businesses would advertise their locations by proclaiming “And Schwegmann’s is still next door”. Still later, when Schwegmann’s market dominance was being challenged by large, national chain grocery stores, one of its chief competitors advertised that its prices were “Cheaper than Schwegmann’s”. Schwegmann’s was not simply in New Orleans — for most of its customers, Schwegmann’s was New Orleans. The first Sehwegmann grocery store in New Orleans was founded as a “mom and pop” business in 1869. In 1946, John G. Sehwegmann, the grandson of the original founders, joined the family business along with two of his brothers. Together they opened the first Sehwegmann Bros. Giant Supermarket on St. Claude Avenue. John G. Sehwegmann was considered a genius by many in .the retail grocery business. He turned grocery stores into large, self-service operations, instead of having store clerks retrieve items for each customer. He conceived and pioneered the “superstore” concept so popular today.— providing his customers with one-stop shopping by including service stations, banking, shoe stores, jewelry departments, pharmacies, and selling sundry items such as lawnmowers, air-conditioners, bicycles, etc. Over the next approximately one-half of a century, SGSM partnership (“the partnership” or “Sehwegmann”) operated a chain of grocery stores which eventually grew to more than 40 stores employing over 5000 employees, mostly in the New Orleans area. The Sehwegmann partnership was comprised of SGSM, Inc., G.G. Sehwegmann Company, and the Trust of John Sehwegmann, Jr. in favor of John Francis Sehwegmann and Guy George Sehwegmann. SGSM, Inc. had a 70 percent interest in the partnership and was its managing partner. The Sehwegmann partnership employed all employees in the Sehwegmann grocery stores at all times pertinent to this litigation. For many years and until its sale in 1997, the Sehwegmann chain of grocery stores continued to be a dominant player in the local retail food market. Until 1979, SGSM, Inc.’s majority shareholder was John G. Sehwegmann, the grocery chain’s founder, and father of John F. Sehwegmann, a defendant herein. In 1979, John F. Sehwegmann (“Mr.Schweg-mann”) purchased his father’s • stock in SGSM, Inc., becoming its majority stockholder and chief executive officer. As chief executive of SGSM, Inc., Mr. Schwegmann was ultimately responsible for the daily operations of the Schweg-mann partnership and was involved in making overall company policy-related decisions for the grocery chain. At all times pertinent, Mr. Sam Levy, who is not a party to this suit, served as president of SGSM, Inc. and as director of operations for the Schwegmann partnership. Mr. Schwegmann and Mr. Levy were also members of SGSM, Inc.’s board of directors. The Voucher Program In 1984 or 1985, Mr. Schwegmann conceived the arrangement referred to in this litigation as the retirement grocery voucher program. In 1985, Messrs. Schweg-mann and Levy, along with Joe Warnke, the partnership’s director of human resources, discussed creating a grocery voucher program that might be given to loyal long-term employees at their retirement. The program was designed to assist retirees in meeting their monthly food needs by providing them with vouchers that could be used in lieu of cash to purchase goods in the Schwegmann stores. One factor that motivated Mr. Schweg-mann to establish the program was his desire to help ensure that certain long term and loyal employees would always “have food on their tables.” Messrs. Schwegmann, Levy, and Warnke discussed possible guidelines for the program as well as qualifications for participation. On July 2, 1985, Mr. Warnke sent a memorandum to Mr. Schwegmann captioned “Retirement/Compensation Policy.” (Exhibit 3). In that memorandum, Mr. Warnke memorialized the criteria, as discussed at the Sehwegmann-Levy-Warnke meeting, an employee would have to meet in order to qualify for the grocery voucher program. In particular, the employee: * Must have completed twenty (20) years of service. * Must have achieved the age of sixty (60). * Must have been employed in the position of supervisor or a position of greater responsibility for at least one year at the time of retirement. Id. The memo also memorialized Mr. Sehwegmann’s desire to compensate some managers monetarily in addition to or in lieu of grocery vouchers, and made reference to certain managers who were already retired and receiving monetary compensation. One individual receiving monetary compensation as of July 2, 1985, was Mr. Joseph T. Spitelera, a non-class plaintiff. Mr. Spitelera began receiving $305 dollars per month when he retired from the Schwegmann partnership in 1980. Mr. Spitelera worked for the partnership for over 25 years. During part of that time, he served as an assistant store manager and supervised about eight other employees. Spitelera deposition at 9. Mr. Spitelera never received food vouchers. Aside from Mr. Warnke’s July 2, 1995, memorandum, the voucher program was never formally reduced to writing. And while other benefits such as 401(k) ERISA benefits, certain insurance and hospitalization benefits, and other specified benefits were itemized in a “draft” employee handbook, the grocery voucher program was never included in the book. Nevertheless, the voucher program was common knowledge among the partnership employees who learned of the program from supervisors, other employees, and by seeing the vouchers used in the Schwegmann stores. Employees also learned of the program at retiree luncheons and annual banquets held to honor employees who had attained 20 years of service or more. At those functions, in the presence of family and coworkers, retirees were often personally notified of the Schwegmann grocery voucher program. Each grocery voucher had a face value of $54 dollars and qualified retirees received a total of $216 dollars worth of vouchers each month. Exhibit 1. Messrs. Schwegmann and Levy found this amount to be adequate to satisfy the basic nutritional needs of the employee and his or her spouse. A notation was printed on each voucher indicating that it was valid for a period of thirty days. Although the vouchers were intended to be used only for groceries with no cash redemption, store personnel, including some managers responsible for enforcing this policy, were for the most part unaware of the proscription, given that there were no written procedures regarding the vouchers. Accordingly, retirees were often given change in cash while using the vouchers toward grocery purchases. And while the vouchers were intended to be restricted to use only by the retiree and his or her spouse, it is unclear from the record how the Schwegmann partnership enforced that restriction in light of the complete lack of training or instruction given to store employees who accepted the vouchers. Even after one retiree was scolded for redeeming one of his vouchers for cash, the cashier involved was never reprimanded nor was any bulletin or writing issued to the cashiers or managers. And following a short hiatus, the employee continued to receive vouchers. With no official guidance, handling of vouchers was pretty much left up to the individual store managers. The Schwegmann grocery voucher program had systematic and detailed procedures in place for disbursement of the vouchers. Leroy “Lee” Janies, the partnership’s director of human resources from 1984 to 1997, performed the ministerial aspects of the voucher program. When a manager or supervisor informed him that an employee was retiring, Mr. Janies would direct his secretary to fill out a form with information from the 20-year data he kept on a computer in his office. The information included the retiring employee’s years of service, the dates of service that he had been a supervisor or equivalent, and his age. See Exhibit 4, at 34-50. Mr. Janies verified that the employee met the program’s criteria before forwarding the form to Sam Levy. Mr. Levy, who Mr. Schwegmann often empowered to make the final decision as to whether an employee qualified to receive grocery vouchers, would sign the form and send it to the Schwegmann partnership controller, Mr. Gene Lemoine. Mr. Janies kept a list of all retirees receiving retirement grocery vouchers and reviewed it periodically to remove those persons who were deceased. No retiree was removed from the list once he began receiving vouchers other than for death. Mr. Lemoine also kept a list of all retirees receiving vouchers, and the personnel office would notify him when someone was to be added or deleted. Mr. Lemoine had custody of the printed vouchers and kept them at all times under lock and key. Each month his secretary would type-up the vouchers and forward them to Mr. Lemoine. Mr. Lemoine would then count the vouchers, sign them, and remove the copy to be kept for office records in order to match it with the original voucher which was redeemed at the store. The vouchers were then mailed out two to three days before the end of the month. The redeemed vouchers were returned to Mr. Lemoine. Ninety-nine percent of all vouchers issued were redeemed. The Schwegmann partnership retained the vouchers for five years until that practice became too burdensome. The Schwegmann partnership did not set up a separate trust fund to finance the grocery voucher program. Rather, the voucher program was funded out of the partnership’s general revenues. The partnership’s tax returns for the tax year ending June 25, 1996, reveal that the partnership deducted as a business expense the total face value of the food vouchers issued that year under the category “[r]etirement plans, etc.” Exhibit 20 (under seal). Furthermore, each year, the partnership issued Internal Revenue Service form 1099— R, which is used specifically for reporting pension and retirement benefits, to employees receiving vouchers. Exhibit 10. The taxable amount shown on each form 1099-R was the face value of the vouchers that the employee had received for the year. During the life of the program, all Schwegmann partnership employees who met the criteria listed in the Warnke memorandum, received grocery vouchers at retirement. However, Mr. Joseph DeCuir did not receive food vouchers for eighteen months following his retirement in January 1995. Mr. DeCuir retired at age 62 after having served as head pharmacist for several years. After contacting Mr. Ja-nies, he was told that he did in fact qualify for the program but had “fallen through the cracks.” He began receiving the vouchers from that point forward, nonret-roactively. Also, Ms. Yvonne White was denied vouchers at first due to allegations of “questionable” conduct. However, Ms. White appealed the denial and eventually began receiving vouchers. Ms. Margaret Dominick was denied vouchers despite meeting the voucher years, service, and position criteria. Her employment with the partnership was involuntarily terminated due to misconduct. She was close to eighty years old at the time. Ms. Dominick was the only employee identified as having met the criteria but denied vouchers. Schwegmann employees who met the other retirement grocery voucher plan criteria could receive vouchers when they retired before age 60 if they became disabled. One example of this is Lee Edward Weary who retired from the position of assistant day grocery supervisor after 24 years of service at age 54. After exceeding his allowable medical leave he began receiving vouchers. See Exhibit 14, at 700; Exhibit 8, at 99. Cheaper than Schwegmann’s By the early 1990’s, Schwegmann’s was under fire from several large, well-financed national supermarket chains. Ironically, these national chains used the superstore concept first popularized by John G. Schwegmann in New Orleans. With their significant financial resources, the national chains starting building newer, better located supermarkets in the New Orleans metropolitan area. The national chains were also able to put added downward pressure on Schwegmann’s already low grocery prices. In 1995, John F. Schwegmann decided the only way to survive was to expand aggressively. Schwegmann’s took on substantial debt to finance its acquisition in 1995 of the 28-store former National Tea Company chain. Ultimately the acquisition proved to be the beginning of the end of the Schwegmann grocery empire. In light of significant continuing financial losses, the Schweg-mann partnership’s grocery business was . eventually sold to SGSM Acquisition Company, L.L.C., a subsidiary of Kohlberg Company, on February 14, 1997. Mr. Schwegmann signed a letter dated February 7,1997, which was mailed to the voucher and cash payment recipients. Exhibit No. 2. The letter advised thém that they would no longer receive vouchers or cash due to the sale of the grocery business. Because Schwegmann considered the voucher program and payments as gratuities subject to termination at will, continuation of the voucher program was never factored into the negotiations with Kohl-berg. Nor did the partnership or Mr. Schwegmann seek advice of counsel before terminating the program. As of February 1997, between 36 and 40 former Schwegmann partnership employees were actually receiving grocery vouchers. Another 19 (approximately) were (1) 60 or over, (2) had 20 years of service, and (3) had one year in a supervisory capacity but had not yet retired. Another 73 (approximately) had (1) 20 years of service, and (2) one year of supervisory capacity but had not yet reached age 60 or retired. Another group, both over and under age 60, had 20 years of service but it is uncertain whether members of that group had served in a supervisory capacity. Since February 1997, no partnership retirees have received grocery vouchers or monthly cash payments. Prior to that time, Schwegmann retirees who qualified for grocery vouchers or cash continued to receive those benefits until death. All employees understood that the grocery voucher benefit was not transferable to the non-employee spouse upon the retiree’s death. Plaintiffs, with the exception of Mr. Spi-telera, seek resumption of their grocery vouchers or the monetary equivalent in the amount of $216 dollars per month for life, back payments dated from March 1, 1997 (or in the case of class members who “fell through the cracks,” back payments from the date each should have received benefits). Mr. Spitelera seeks back payments and future payment in the amount of $305 dollars per month. All plaintiffs seek prejudgment interest on the back due payments dating from March 1, 1997, the date the plan was terminated, plus costs, including attorney’s fees. CONCLUSIONS OF LAW The Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1331 because plaintiffs claim violations of ERISA, 29 U.S.C. § 1001, et seq. See 29 U.S.C. § 1132(f); Massachusetts v. Morash, 490 U.S. 107, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989) (citing Firestone Tire & Rubber Co. v. Brack, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). The Court has supplemental jurisdiction over plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367(a). Congress enacted the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq., to provide federal standards for the establishment and maintenance of employee pension and benefit plans. Williams v. Wright, 927 F.2d 1540, 1543 (11th Cir.1991). One of Congress’s central purposes in enacting ERISA was to prevent the “great personal tragedy” suffered by employees whose vested retirement benefits are not paid when pension plans are terminated. Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 374-75, 100 S.Ct. 1723, 1732-33, 64 L.Ed.2d 354 (1980) (quoting 3 Leg. Hist. 4793, Senator Bentsen). In short, Congress wanted to insure that when an employer promised an employee a pension benefit upon retirement, and the employee fulfilled whatever conditions were required to obtain the benefit, that he actually received it. Id. Consequently, ERISA was designed to be remedial legislation meriting a liberal construction in favor of protecting participants’ interests in employee benefit plans. Smith v. CMTA-IAM Pens. Trust, 746 F.2d 587, 589 (9th Cir.1984). An employer is under no legal obligation to create an employee pension plan — the decision to create one is entirely voluntary — but once a plan is established, ERISA entitles an employee to any vested benefits that arise under the plan. See Moeller v. Bertrang, 801 F.Supp. 291, 293 (D.S.D.1992) (citing Williams, 927 F.2d at 1543). An employer’s promise to pay pension benefits is enforceable under ERISA when the plan pursuant to which the benefits are paid falls within the scope of ERISA’s coverage provisions. See Scott v. Gulf Oil Corp., 754 F.2d 1499, 1503 (9th Cir.1985). Pursuant to those coverage provisions, ERISA applies to any employee benefit plan if it is established or maintained by an employer engaged in commerce or activity affecting commerce. Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 240 (5th Cir.1990) (citing 29 U.S.C. § 1003(a)). Accordingly, ERISA does not regulate all benefits paid by the employer to an employee but rather only those benefits paid pursuant to an employee benefit plan. See Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 7, 107 S.Ct. 2211, 2215, 96 L.Ed.2d 1 (1987). ERISA regulates two distinct types of employee benefit plans: “employee welfare benefit plans” (welfare plans) and “employee pension benefit plans” (pension plans). Memorial Hosp. Sys., 904 F.2d at 240; see 29 U.S.C. § 1002(3). Classification of an employer’s plan as a welfare plan versus a pension plan has significant ramifications because welfare plans are exempted from the participation, vesting, and funding requirements that ERISA imposes upon pension plans. Handbook on ERISA Litigation § 1.01[B] (2d Ed.2000 Supp.) (citing 29 U.S.C. §§ 1051, 1081, 1103(b); 29 C.F.R. § 2510.3-2(a)); Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78, 115 S.Ct. 1223, 1228, 131 L.Ed.2d 94 (1995). Furthermore because pension benefit plans are subject to minimum vesting standards, they are generally non-terminable, unlike luelfare benefits, which the employer is generally free to modify or terminate at any time for any reason. Curtiss-Wright, 514 U.S. at 78, 115 S.Ct. at 1228; Musto v. American General Corp., 861 F.2d 897, 901 n. 2 (6th Cir.1988) (citing In re White Farm Equip. Co., 788 F.2d 1186 (6th Cir.1986)). I. Is the Schwegmann Grocery Voucher Program an ERISA Benefit Plan? 1. Is the Schwegmann grocery voucher program an ERISA welfare benefit plan subject to termination? ERISA defines welfare benefits to include several enumerated benefits, in-eluding medical disability, unemployment benefits, vacation benefits, and any benefit described in section 186(c). Scott, 754 F.2d at 1502 (citing 29 U.S.C. § 1002(1)(B)). Courts have repeatedly held that severance benefit plans qualify as ERISA welfare benefit plans pursuant to the reference to section 186(c) noted above. Id. (citing e.g., Blau v. Del Monte Corp., 748 F.2d 1348 (9th Cir.1984)); Whitfield v. Torch Operating Co., 935 F.Supp. 822 (E.D.La.1996) (Fallon, J.) (citing e.g., Morash, 490 U.S. at 114 & n. 8, 109 S.Ct. at 1672). Of the welfare benefits covered by ERISA, the only one that the Schweg-mann voucher program could even arguably fall under would be that of a severance benefit program given that receipt of the vouchers was contingent upon termination of employment. However, the grocery vouchers weren’t merely given at the termination of employment but rather at the termination of employment due to retirement at a specified age. Benefits triggered by attainment of a specific age, conditioned upon length of service, and paid until death are hallmarks of a pension benefit plan, not a welfare benefit plan. See Modzelewski v. Resolution Trust Corp., 14 F.3d 1374, 1376 (9th Cir.1994). Furthermore, Department of Labor regulation 29 C.F.R. § 2510.3-2(b) militates against finding that the Schwegmann voucher program was a welfare benefit plan. Pursuant to that regulation a severance benefit arrangement will not be deemed to constitute a pension plan solely by reason of the payment of severance benefits on account of termination of employment if (1) the payments are not contingent upon the employee’s retiring, (2) the total amount of the payments don’t exceed the equivalent of twice the employee’s annual compensation during the year immediately preceding termination of employment, and (3) the payments are completed within 24 months of termination of employment. Id. § 2510.3 — 2(B)(1)(I)— (iii)(B). In the instant case, the Schweg-mann voucher program clearly does not meet requirements (1) and (3) because receipt of the vouchers was conditioned upon retirement and the retiree received the vouchers until death. Accordingly, the Schwegmann voucher program is not an ERISA welfare benefit plan. 2. Is the Schwegmann Grocery Voucher Program an ERISA Pension Plan? ERISA defines an “employee pension benefit plan” as [A]ny plan, fund, or program ... established or maintained by an employer ... to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program ... provides retirement income to employees ... 29 U.S.C.A. § 1002(2)(A)(I) (West 1999) (emphasis added). Although the ERISA statutory scheme is detailed and complex, the statute does not define key terms such as “plan” and “established.” Therefore, when deciding whether a given benefit falls under ERISA, courts should always keep in mind the goals and policies furthered by ERISA and the types of hardships that Congress sought to avoid by enacting the statute. See Preuc, 1997 WL 538933, at *3 (D. Guam Aug. 29, 1997) (citing Morash, 490 U.S. at 107, 109 S.Ct. at 1668). As the Ninth Circuit has noted, Congress defined the term “pension plan” so broadly that virtually any contract that provides for some type of deferred compensation will also establish a de facto pension plan. Modzelewski, 14 F.3d at 1377. The parties’ intent to the contrary is irrelevant. See id. a. Do the grocery vouchers constitute retirement income? According to section 1002(2)(A), an ERISA pension plan is one that provides retirement “income.” 29 U.S.C. § 1002(2)(A)(I). Mr. Spitelera, who received $305 dollars per month after he retired from Schwegmann, unarguably satisfies this requirement. The issue to be resolved with respect to the plaintiff class is whether the Schwegmann grocery vouchers constitute retirement income for purposes of ERISA. Neither the ERISA statutory scheme nor the federal regulations define the term “income.” The statute is equally silent on the permissibility of any type of in-kind benefit or other non-cash payment. Nevertheless, of the very few reported decisions on the issue, courts have tended' to exclude from ERISA coverage plans that pay a non-cash benefit. See, e.g., Preuc v. Continental Micronesia, Inc., 1997 WL 538933 (D.Guam Aug.29, 1997); Jervis v. Elerding, 504 F.Supp. 606 (C.D.Cal.1980). The Court notes, however, that the statute does not expressly require a benefit paid in cash. Indeed, if Congress had sought to limit ERISA’s coverage to cash pension payments, it could very well have expressed that intent by using a term far more specific and descriptive than “income.” Instead, when choosing a term that would be one of many to set the outer limits on ERISA’s applicability, Congress chose the very term that it had employed when attempting to stretch the reach of the Internal Revenue Code to its broadest limits — a term that for years had gained notoriety for its almost limitless applicability to various types of compensation, including non-cash payments. See United States v. Parr, 509 F.2d 1381, 1385 (5th Cir.1975) (citing Commissioner v. Smith, 324 U.S. 177, 65 S.Ct. 591, 89 L.Ed. 830 (1945)); 26 U.S.C. § 61 (gross income defined). Given that ERISA provides no definition of income of its own, and that Congress chose a term inextricably linked to the tax code, the Court finds guidance in that term as used in the Internal Revenue Code, 26 U.S.C. § 1, et seq. For purposes' of the tax code the term “gross income” is to be broadly interpreted and income need not be in the form of currency so long as it can be valued in terms of currency. Parr, 509 F.2d at 1385 (citing Commissioner v. Smith, 324 U.S. 177, 65 S.Ct. 591, 89 L.Ed. 830 (1945)). Neither party disputes that the grocery vouchers would be considered income under the broad reach of the tax code. However, defendants argue that tax code provisions and interpretations are irrelevant for purposes of interpreting ERISA’s terms. To the contrary, other courts, including the Supreme Court, have recognized the interrelatednesss of ERISA and the tax code and the advantages of maintaining consistency between like provisions of ERISA and the tax code. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 442-43 n. 4, 119 S.Ct. 755, 762-63, 142 L.Ed.2d 881 (1999) (bolstering the conclusions of the Court by pointing out their consistency with treasury regulations promulgated for income tax purposes); Modzelewski, 14 F.3d at 1378 (looking to IRS regulations for guidance on vesting). Furthermore, ERISA expressly provides that any regulations promulgated under section 1301(b)(1) must be consistent with regulations prescribed for similar purposes under the Internal Revenue Code. 29 U.S.C. § 1301(b)(1). Accordingly, courts readily rely upon tax code jurisprudence when interpreting the term “trade or business” as used in ERISA. See, e.g., Connors v. Incoal, Inc., 995 F.2d 245, 250 (D.C.Cir.1993); Central States, Southeast & Southwest Pens. Fund v. Personnel, Inc., 974 F.2d 789, 794 (7th Cir.1992). It is also worth noting that under the tax code, the Schwegmann grocery vouchers would not be excludable from income as gifts to the former employees. See 26 U.S.C. § 102 (gifts excluded from gross income). Although an employer can make a gift to an employee without rendering it taxable whether made before, during, or after the termination of service, there is a strong presumption that such a payment is compensation for services. Willkie v. Commissioner of Internal Revenue, 127 F.2d 953, 955 (6th Cir.1942) (citing Bass v. Hawley, 62 F.2d 721 (5th Cir.1933)). The intention of the parties, particularly that of the payor, as gleaned from the facts and circumstances surrounding the transaction, are of primary importance in determining whether the payment is a gift or compensation. Id. (citing Fisher v. Commissioner of Internal Revenue, 59 F.2d 192 (2d Cir.1932)). Further, a payment made voluntarily and without legal obligation may nevertheless be compensation for services. Id. (citing Old Colony Trust v. Commissioner of Internal Revenue, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918 (1929)). Assuming arguendo that the value and periodicity of the vouchers would even permit them to be classified as gifts under the internal revenue code, the objective facts and circumstances belie the assertion that they were intended as gifts. Most telling is the way Schwegmann treated the vouchers for tax purposes — deducting them as a business expense rather than classifying them as business gifts, and reporting them on form 1099-R. Also, on December 15, 1988, Mr. Janies wrote a letter to the Social Security Administration on behalf of Mr. Jack Pereira and described the vouchers “retirement type income.” Exhibit 5. Even the 1985 Warnke memo discussing the program was captioned “Retirement/Compensation Policy.” (emphasis added). These undisputed facts not only preclude gift classification for tax purposes but also show that the Schwegmann organization at all times treated the vouchers like income paid to the retiree. Based on the foregoing, the Court concludes that the term “income” as used in the definition of a pension benefit plan is sufficiently broad to encompass the Schwegmann grocery vouchers. Given that Congress chose a term known to include forms of compensation other than cash, it is not for this Court to narrow ERISA’s coverage by doing what Congress chose not to: limiting coverage to cash pension benefits. Such an interpretation would be contrary to the liberal construction due ERISA. The Court notes that federal regulation 29 C.F.R. § 2510.3-l(e) states that the sale by an employer to its employees, whether or not at prevailing market prices, of articles or commodities of the kind which the employer offers for sale in the regular course of business does not constitute an employee pension benefit plan. To the Court’s knowledge only two cases have interpreted or applied this regulation. Nor was the Court able to locate any Department of Labor opinion letters discussing this particular regulation in a manner helpful to the case at hand. Consequently, the Court is left with little guidance on the applicability of the regulation to the Schwegmann voucher program. One obvious point is that by its own terms the regulation applies where the specific benefit involved is the sale of goods by the employer to its employees. See Smith v. Jefferson Pilot Life Ins. Co., 14 F.3d 562 (11th Cir.1994). Thus, by way of example, if Schwegmann had established a program that allowed retirees to use their own funds to purchase groceries at a discounted rate, then the regulation would likely preclude coverage of that benefit by ERISA. The voucher program, however, was much more than a mere offer to sell groceries to employees. Rather, the benefit conferred under the voucher program included the equivalent of cash spending power when the vouchers were used in the Schwegmann stores. Thus, Schwegmann didn’t just offer goods for sale to its employees — it provided them with the means to pay for them. Unlike a benefit limited only to the sale of groceries to employees, the Schwegmann grocery voucher benefit was a supplement to the retiree’s monthly income because the retiree did not have to use his own money to buy groceries. Also, as noted above, several plaintiffs testified that they had received cash change back when using the vouchers, something that could not happen i'f the Schwegmann benefit were limited to a mere offer of goods for sale. Accordingly, the Court finds that regulation 2510.3-1(e) does not preclude a finding that the grocery voucher program was an ERISA pension plan. b. Did Schwegmann establish or maintain a benefit plan? i. Lack of a formal writing and publication ERISA’s definition of a plan “establishes no requirement that a ‘plan’ meet any specific formalities or that there be some policy manual or employee handbook to effectuate it.” Fort Halifax, 482 U.S. at 24, 107 S.Ct. at 2224 (Rehnquist, C.J., White, O’Connor, Scalia, JJ., dissenting). Although ERISA imposes a duty on plan fiduciaries to establish and maintain a plan according to a “written instrument,” those responsibilities arise only once it has been determined that ERISA covers the employer’s plan. Memorial Hosp. Sys., 904 F.2d at 241 (citing 29 U.S.C. § 1102(a)(1)). Fulfillment of that particular fiduciary duty is not itself a prerequisite to coverage. Id. (citing Dillingham, 688 F.2d at 1372). A multitude of courts, including our own Fifth Circuit, have held that lack of a written plan or any writing at all for that matter, is no impediment to establishment of a plan covered by ERISA. See, e.g., Memorial Hosp. Sys., 904 F.2d at 241 (Fifth Circuit); Diak v. Dwyer, Costello & Knox, P.C., 33 F.3d 809, 811 (7th Cir.1994) (Seventh Circuit); Dillingham, 688 F.2d at 1372 (Eleventh Circuit); Scott, 754 F.2d at 1503 (Ninth Circuit); Moeller, 801 F.Supp. at 294 (district court in Eighth Circuit); Hollingshead v. Burford Equip. Co., 747 F.Supp. 1421, 1428 (M.D.Ala.1990). As the Fifth Circuit has noted, to hold otherwise would allow employers to evade ERISA by merely failing or refusing to memorialize their employee benefit programs in a separate document. Memorial Hosp. Sys., 904 F.2d at 241. Accordingly, as a matter of law, the Court finds that the Schwegmann grocery voucher program cannot escape ERISA by virtue of the fact that Schwegmann did not reduce it to a formal writing. Nonetheless, the Warnke memorandum, while informal and not intended for publication, is nevertheless a writing that evidences the plan. See Whitfield, 935 F.Supp. at 828 (finding that an informal intra office memorandum was a writing evidencing a plan). The Court also rejects defendants’ contention that ERISA is inapplicable because Schwegmann did not “advertise” the program to its employees during their active employment. First of all, as noted in the Court’s Findings of Fact, supra, the voucher program was common knowledge among Schwegmann employees, and all retirees who met the program criteria did in fact receive vouchers. And given the informal way that personnel matters were handled in the Schwegmann partnership, and that no benefit manual or handbook was ever finalized and distributed to the employees even for other types of benefits, Sehwegmann’s failure to formally convey information to its employees about the voucher program demonstrates little, much less that Schwegmann employees were unreasonable in assuming that they too would receive vouchers if they met the criteria. In Broum v. Ampco-Pittsburgh Corp., the Eleventh Circuit addressed employee rights in light of an employer’s failure to publicize an ERISA severance plan. 876 F.2d 546, 550-51 (6th Cir.1989). The terms of the plan were not distributed to employees or published in the personnel manual, but instead appeared only in a confidential internal memorandum addressed to certain management personnel. When AMPCO terminated certain employees they claimed severance benefits pursuant to the terms contained in the memorandum. AMPCO attempted to argue that “a silent plan communicates no offer,” and without an offer there can be no acceptance and thus no contract. Id. at 550. The Eleventh Circuit rejected that argument concluding that a “silent” plan does not preclude an employee’s reliance on the plan for benefits. Id. at 551. Using similar reasoning to that used by courts when rejecting the formal writing requirement, the court reasoned that ERISA operates notwithstanding an employer’s failure to comply with its disclosure mandates. Id. The court concluded that it would be antithetical to ERISA’s purposes to allow an employer to deny benefits on the ground that it never communicated the plan to affected employees. Id. The Court finds the reasoning employed by the Brown court persuasive. ii. Dillingham factors The prevailing test for determining whether an employer has “established” an ERISA plan was set out by the Eleventh Circuit in Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.1982) (en banc). According to Dillingham, an ERISA plan 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.” Memorial Hosp. Sys., 904 F.2d at 240 (citing Dillingham, 688 F.2d at 1373). The Dillingham test has been adopted by most appellate courts including the Fifth Circuit. See Hansen v. Continental Ins. Co., 940 F.2d 971, 977 (5th Cir.1991); Memorial Hosp. Sys., 904 F.2d at 240-41. Further, the Supreme Court has held that the term “plan” inherently requires that benefits be paid pursuant to an “administrative scheme” for processing and disbursing benefits. See Fort Halifax, 482 U.S. at 12, 107 S.Ct. at 2218. Intended Beneñts and Class of Beneficiaries The Schwegmann retirement voucher program clearly satisfies the first two Dillingham factors which require an ascertainable benefit and class of beneficiaries. The intended benefit for the plaintiff class was $216 dollars per month of purchasing power in the Schwegmann stores conferred in the form of grocery vouchers. In Mr. Spitelera’s case, the intended benefit was $305 per month paid in cash. The class of intended beneficiaries, regardless of whether the payment was in vouchers or cash, was expressly defined in the Warnke memorandum as those employees who retired on or after age 60, who had attained 20 years of service, and who had held a supervisory or equivalent position for at least one year. In practice, it was that class of beneficiaries that in fact received benefits. Further, although defendants attempted to argue that the benefits were given on an ad hoc or discretionary basis only after specific approval from Mr. Schwegmann or Mr. Levy, the evidence showed that all employees who met the criteria, with the exception of Mr. DeCuir and Ms. Dominick as discussed above, did in fact receive the retirement grocery vouchers. Accordingly, the Court finds that the voucher program satisfies the first two Dillingham factors. Procedures for Receiving Benefits and Administrative Scheme Nor is there any dispute that the Schwegmann voucher program functioned pursuant to a full complement of ongoing administrative procedures. Those procedures, discussed in the Court’s Finding of Fact, supra, included an initiation process beginning with the retiring employee’s supervisor and ending with final approval from either Mr. Schwegmann or Levy. On behalf of those retirees participating in the program, vouchers were typed-up, signed, mailed out, reconciled upon redemption, and filed away each month by Mr. Lemoine and his staff. That the procedures were informal does not deter ERISA as long as the procedures are ascertainable. Williams, 927 F.2d at 1544. In this case the procedures for processing claims and paying benefits are clearly ascertainable. The foregoing discussion also demonstrates that the voucher benefit was processed pursuant to an “administrative scheme.” See Fort Halifax, 482 U.S. at 9, 107 S.Ct. at 2220; Delaye v. Agripac, Inc., 39 F.3d 235 (9th Cir.1994). The Schwegmann grocery vouchers were received without interruption on an ongoing basis for life. Unlike the benefit program in Fort Halifax, which the Supreme Court found was not a plan, the Schwegmann grocery voucher program was not a one-time obligation that arose at the termination of employment. Rather, to facilitate disbursement of the vouchers on a monthly basis, key members the Schwegmann organization regularly engaged in a panoply of “administrative activity.” Fort Halifax, 482 U.S. at 14, 107 S.Ct. at 2219. Accordingly, the Schwegmann grocery voucher program satisfied the third Dillingham factor which requires ascertainable procedures, as well as the “administrative scheme” test announced by the Supreme Court in Fort Halifax. Source of Funding It is undisputed that the Schwegmann voucher plan was paid from an ascertainable source of funds, i.e., the partnership’s general revenues. The question is whether a plan is covered by ERISA when its benefits are paid out of the employer’s general revenues as opposed to a separate fund. Although ERISA requires employers to fund pension plans, ERISA’s definition of a pension benefit plan does not require a separate fund as a prerequisite for existence. See 29 U.S.C. § 1002(2)(A). Other courts have found that ERISA covers benefits paid from unfunded plans, see, e.g., Williams, 927 F.2d at 1544; Gilbert v. Burlington Indus., Inc., 765 F.2d 320 325 (2d Cir.1985); Holland v. Burlington Indus., Inc., 772 F.2d 1140, 1145-46 (4th Cir.1985); Diak, 33 F.3d at 813; Scott, 754 F.2d at 1503; Moeller, 801 F.Supp. at 294, including unfunded pension plans, Carrabba v. Randalls Food Markets, Inc., 145 F.Supp.2d 763, 769 (N.D.Tex.2000), aff’d, 252 F.3d 721 (5th Cir.2001) (per curiam). A common theme emerges from the reasoning employed by these courts: An employer’s failure to comply with ERISA’s funding mandate should not exempt the plan from ERISA’s regulation because to hold otherwise would allow the employer’s malfeasance to deprive employees of the protections to which they would otherwise be. entitled. See, e.g., Moeller, 801 F.Supp. at 294 (citing Williams, 927 F.2d at 1544). The United States Supreme Court has never squarely addressed the issue of whether a pension plan must be funded in order to be regulated by ERISA. However, in Fort Halifax, while deciding an issue of ERISA preemption, the Court strongly intimated that a welfare plan funded from general assets would be an ERISA plan. 482 U.S. at 16, 107 S.Ct. at 2220. Summarizing from circuit court cases that had so held, the Court noted that to find otherwise, would enable the employer to evade ERISA merely by paying benefits out of general assets — a result inconsistent with the purpose of ERISA. Id. at 18, 107 S.Ct. at 2221. Just a short time later, the Court “muddied” the issue when it decided Massachusetts v. Morash, 490 U.S. 107, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989), and later California Division of Labor Standards Enforcement v. Dillingham Construction, Inc., 519 U.S. 316, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997). Without so much as a mention of its discussion of funding in Fort Halifax, the Court rejected ERISA coverage in the case of unfunded welfare benefit plans. See Morash, 490 U.S. at 115, 109 S.Ct. at 1673 (unused vacation pay); Dillingham Constr., Inc., 519 U.S. at 326-27, 117 S.Ct. at 838-39 (apprenticeship program). In both of those cases, the Court noted that Congress’s primary concern when enacting ERISA was with mismanagement of funds accumulated to finance employee benefits and the employer’s failure to pay benefits from accumulated funds. Dillingham Construction, 519 U.S. at 326-27, 117 S.Ct. at 838-39; Morash, 490 U.S. at 116, 109 S.Ct. at 1673. The Court saw no distinction between the risk of defeated expectations from an employer’s failure to pay the type of welfare benefit involved in those cases and the defeated expectations associated with an employer’s failure to pay wages for services performed. Dillingham Construction, 519 U.S. at 326-27, 117 S.Ct. at 838-39; Morash, 490 U.S. at 116, 109 S.Ct. at 1673. And because Congress had no interest in allaying the defeated expectation of an employer’s failure to pay current wages when it enacted ERISA, the unfunded welfare benefits in those cases were not part of an ERISA welfare benefit plan. Id. Although Fort Halifax, Morash and Dillingham Construction have done little to clarify the scope of ERISA vis-a-vis unfunded benefit plans, this Court concludes that those cases do not directly apply to the Schwegmann case because the Schwegmann plan involved pension benefits, not welfare benefits. Under ERISA, funding for pension plans is a mandate, not an option (as in the case of welfare benefits). Thus, to impose a threshold requirement for ERISA coverage that depends solely on the employer having followed the law, would be contrary to Congress’s goal of providing maximum protection to employees. Further, Congress was far more solicitous of pension plans when it designed ERISA, subjecting them to far more extensive regulation than welfare plans. Additionally, the reasoning employed by the Court in Morash and Dillingham Construction really has little application in the context of a pension plan. The risk of defeated expectation associated with an employer’s failure to pay pension benefits at retirement is worlds apart from that associated with an employer’s failure' to pay wages due. While any employee would be disappointed to forfeit current wages due in the short term, that disappointment quickly pales when compared to the potentially devastating and emotionally shattering long-term effect of the employer’s failure to pay pension benefits at retirement. Such an occurrence can wreak financial havoc upon the retiree and his family by destroying a lifetime of planning for the retirement years. Retirement typically occurs at an age where one no longer has the option to start all over again in hopes of obtaining a new pension. Thus, pension benefit plans involve a wholly different type of defeated expectation from the one the Supreme Court was concerned with in Morash and Dillingham Construction. And because pension benefits are at issue in this case, another one of Congress’s primary motivations for enacting ERISA is relevant, one which the Supreme Court had no reason to consider in Morash and Dillingham Construction. Namely, one of Congress’s other primary focuses in enacting ERISA was to prevent the “great personal tragedy” suffered by employees whose retirement benefits were not paid by ensuring that workers who fulfilled the requirements of a defined pension benefit plan actually received it upon retirement. Nachman Corp., 446 U.S. at 374-75, 100 S.Ct. at 1732-33. In light of that specific goal, which goes to the very heart of what Congress had hoped to accomplish with ERISA, this Court agrees with those courts that have refused to allow an employer to deprive its employees of the protections Congress intended by failing or refusing to fund a pension plan. To allow an employer to violate ERISA’s pension funding mandate and then subsequently use that violation as a shield to deny benefits, would be an absurd result given that Congress’s paramount purpose in enacting ERISA was to protect employees. Given that the Morash and Dillingham Construction Courts did not expressly overrule or denounce the statements made in Fort Halifax, and given that all of those cases involved welfare benefits plans which invoke an entirely different set of concerns and far less ERISA regulation than pension plans, the Court is not bound to conclude that lack of separate fund precludes ERISA coverage of a pension plan. In sum, the Court concludes that the Schwegmann voucher program was paid from an ascertainable source of funding, the partnership’s general revenues. That the benefits were paid from general revenues and not from a separate fund does not preclude ERISA coverage. Having found that the Schwegmann voucher program had ascertainable benefits, beneficiaries, procedures for administration, and a source of funding, the Court concludes that Schwegmann did in fact establish and maintain an ERISA pension benefit plan. That plan provided retirement income to the Schwegmann retirees. Schwegmann’s failure to reduce the plan to writing or to fund it cannot operate to deprive plaintiffs of the protections they are due under ERISA. Given that the benefits were paid by Schwegmann, the employer, and that Schwegmann was unarguably an employer engaged in commerce, all of the requisites for ERISA coverage are met. See 29 U.S.C. §§ 1002(2)(A)(I), 1003(a). The Schweg-mann grocery voucher plan was a pension benefit plan covered by ERISA. c. Does Mr. Schwegmann’s Characterization of the Voucher Program as a Gratuity Affect ERISA Plan Status? Throughout this litigation, Mr. Schweg-mann has maintained that the grocery voucher program was intended as a gratuity to his employees subject to termination at any time. Prompted by a desire to show his appreciation to his loyal employees, he conceived of the of the voucher program as a way to ensure that his long term employees would never be without food, a basic necessity of life. He has pointed out that the grocery business was sold, and the voucher program terminated, due to financial hardship as opposed to any selfish or avaricious motive. Although Mr. Schwegmann was not legally obligated to implement the voucher program, the Court cannot agree that the program was completely gratuitous in nature. The vouchers were given in return for years of loyal service to Mr. Schweg-mann’s grocery business. The Schweg-mann partnership also availed itself of advantageous tax treatment by deducting the vouchers as a business expense. Evidence such as Mr. Janies’ letter to the Social Security Administration and the forms 1099-R issued to the employees are objective evidence tending to show that Schweg-mann treated the vouchers as a form of compensation rather than a gratuitous payment, i.e., something for which the Schwegmann partnership received no benefit in return. In fact, the record contains no objective evidence that Schwegmann considered the voucher program a gratuity. Nevertheless, the Court has no reason to doubt Mr. Schwegmann’s sincerity and his contention that he personally considered the voucher program to be a gratuity terminable at will. But where ERISA coverage is concerned, Mr. Schwegmann’s well-meaning intentions are without legal significance. See Modzelewski, 14 F.3d at 1377 (employer can establish a de facto pension plan notwithstanding intent to the contrary); Carrabba v. Randalls Food Markets, Inc., 38 F.Supp.2d 468, 478 (N.D.Tex.1999) (good intent and lack of improper motive cannot prevent ERISA coverage). However, assuming arguendo that the voucher program was completely gratuitous in nature, Department of Labor regulation 29 C.F.R. § 2510.3-2(e) refutes any defense based upon Mr. Schwegmann’s characterization of the grocery vouchers as a gratuitous benefit. Regulation 29 C.F.R. § 2510.3-2(e) addresses gratuitous payments by an employer to its retirees. According to that regulation, voluntary, gratuitous payments to former employees do not constitute a pension plan if, among other requirements, the employee separated from service prior to September 2, 1974, and the payments commenced prior to that date. 29 C.F.R. § 2510.3-2(e)(2), (3). The Department of Labor asserts that this regulation is meant to clarify that any gratuitous payment plan that fails to meet the criteria listed, will constitute a pension plan. DOL Opinion No. 76-66, 1976 WL 5089 (E.R.I.S.A.). The Eleventh Circuit considered the regulation and this opinion letter and found that they strongly imply that any gratuitous plan not within the exclusion, is an ERISA plan. Williams, 927 F.2d at 1548. Given that the Schwegmann voucher program did not begin until 1985, it satisfies neither of the two criteria listed above, and therefore, cannot fall within the exclusion. Accordingly, Mr. Schwegmann’s characterization of the program as a gratuitous benefit cannot defeat ERISA coverage. II. Causes of Action and Relief Available to Plaintiffs Benefit plan participants and beneficiaries have “a panoply of remedial devices” available to them under ERISA. Firestone Tire & Rubber v. Bruch, 489 U.S. 101, 108, 109 S.Ct. 948, 953, 103 L.Ed.2d 80 (1989) (quoting Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985)). ERISA contains “six carefully integrated civil enforcement provisions,” Russell, 473 U.S. at 147, 105 S.Ct. at 3092, three of which have potential relevance under the facts of this case. Those three provisions, which form part of section 502 of ERISA, provide that a participant or beneficiary may bring a civil action to: (1) recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his right to future benefits under the terms of the plan; 29 U.S.C. § 1132(a)(1)(B) (emphasis added). (2) obtain appropriate relief under section 1109 [liability for breach of fiduciary duty]; 29 U.S.C. § 1132(a)(2). (3) obtain other appropriate equitable relief in order to redress violations of ERISA or the terms of the plan, or to enforce any provisions of ERISA or the terms of the plan. 29 U.S.C. § 1132(a)(3)(B)(i), (ii) (emphasis added). 1. Plaintiffs’ Claims for Benefits Section 1132(a)(1)(B), supra, gives plaintiffs, in their capacity as plan participants, a cause of action against the plan for benefits. ERISA does not dictate the benefits to be afforded once a plan is created, rather only the terms of the plan itself can create an entitlement to benefits. Hein v. FDIC, 88 F.3d 210, 215 (3d Cir.1996) (citing Dade v. North Amer. Philips Corp., 68 F.3d 1558 (3d Cir.1995)). Thus, section 1132(a)(1)(B) deals exclusively with contractual rights under the plan. Varity Corp. v. Howe, 516 U.S. 489, 521 n. 2, 116 S.Ct. 1065, 1082, 134 L.Ed.2d 130 (1996) (O’Connor, Scalia, Thomas, JJ., dissenting); see Firestone Tire & Rubber, 489 U.S. at 113, 109 S.Ct. at 956 (citing Russell, 473 U.S. at 148, 105 S.Ct. at 3093). Given that an ERISA plan has the procedural capacity to be sued, 29 U.S.C. § 1332(d)(1), it is well-recognized that the proper party defendant to a section 1132(a)(1)(B) claim for benefits is the plan itself and not the employer. See, e.g., Madden v. ITT Long Term Disability Plan, 914 F.2d 1279, 1287 (9th Cir.1990). Further, under ERISA’s express terms, any money judgment obtained against the plan is enforceable only against the plan as an entity and is not enforceable against any other person unless liability against such person is established in his individual capacity. 29 U.S.C. § 1132(d)(2). However, where the employer is the plan administrator and the employer and the plan are otherwise “closely intertwined,” plaintiff may state a cause of action against the employer for benefits due. Neuma, Inc. v. AMP, Inc., 259 F.3d 864 (7th Cir.2001) (citing Mein v. Carus Corp., 241 F.3d 581 (7th Cir.2001); Riordan v. Commonwealth Edison Co., 128 F.3d 549 (1997)). In Slaughter v. AT & T Information Systems, Inc., 905 F.2d 92, 94 (5th Cir.1990), the Fifth Circuit endorsed this approach where an ERISA plan has no existence apart from the corporate employer and is an unfunded benefit plan self-administered by the employer. In such a situation, the plan is merely a nominal defendant with the true party in interest being the employer. See id. Plaintiffs in this case have sued both their former employer, Schwegmann partnership, and the grocery voucher plan, which they designated as SGSM Pension Plan (“the Plan”) for benefits. By operation of law, the Schwegmann partnership was both the plan sponsor, 29 U.S.C. § 16(B) (“plan sponsor” means the employer in the case of a plan established by a single employer), and the plan administrator, id. § 1002(16)(A) (the plan “administrator” is the plan sponsor if an administrator is not designated by the written plan instrument). The Plan was unfunded, paid from the partnership’s assets, and completely controlled and administered by officers and employees of the partnership. The undisputed facts of this case show that the Plan had no existence apart from the SGSM partnership in its capacity as employer. Accordingly, the Court concludes that under the facts of this case, plaintiffs may recover the benefits they are owed directly from the Schwegmann partnership. Under Louisiana partnership law, the partnership entity is primarily liable for its debts, however, the individual partners are secondarily liable and bound for their virile share. La. Civ.Code art. 2817. Accordingly, SGSM, Inc., G.G. Schwegmann Company, and the John Schwegmann, Jr. Trust Estate, as the constituent partners of the Schwegmann partnership, are liable for their virile shares of any liability faced by the Schwegmann partnership. 2. Plaintiffs’ Claims for Fiduciary Breach a. Plan ñduciaries ERISA defines a plan fiduciary as any person [T]o the extent (I) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, ... or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C.A. § 1002(21)(A) (West 1999) (emphasis added). As the definition implies, Congress defined “fiduciary” not in terms of formal title or designation but in functional terms of control and authority over the plan. Varity Corp., 516 U.S. at 527, 116 S.Ct. at 1085 (O’Connor, Scalia, Thomas, JJ., dissenting) (quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993)); Donovan v. Mercer, 747 F.2d 304, 308 (5th Cir.1984). Thus, a formal appointment as trustee or other plan fiduciary is not a prerequisite to fiduciary status. Mercer, 747 F.2d at 309. A person’s state of mind or belief as to his or her fiduciary status under ERISA is not determinative when his acts fall under the broad fiduciary definition. Id. at 309 n. 4. The Fifth Circuit has noted that this nonrestrictive definition evidences Congress’s intent to construe the term “fiduciary” under ERISA very broadly. See Mercer, 747 F.2d at 308. ERISA fiduciary status is not limited to individuals — a corporation, partnership, or other business entity, including the plan sponsor, can be an ERISA fiduciary. See 29 U.S.C. § 1002(9) (“person” includes individual, partnership, or corporation); id. § 1002(21)(A) (“fiduciary” defined); Varity Corp., 516 U.S. at 505, 116 S.Ct. at 1074. Under the foregoing principles, Mr. Schwegmann and the Schwegmann partnership are unarguably plan fiduciaries. The partnership is a fiduciary both functionally and by way of its status as the plan administrator. The Schwegmann partnership exercised and had plenary control over the administration of the Plan and its assets putting it squarely within the broad definition o