A Forensic Linguistic Approach to Legal Disclosures

ERISA Cash Balance Conversion Cases and the Contextual Dynamics of Deception

James Stratman

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317418092
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Communication Studies
• Index: Languages & Linguistics

This book is a scholarly work of forensic linguistics that demonstrates how the principles of Gricean pragmatics and their recent elaboration in Information Manipulation Theory (IMT) can be of use to courts faced with deciding cases of allegedly fraudulent disclosure documents. The usual goal of legal rules for disclosure documents is not merely to prevent lying but other forms of deception as well. In particular, the goal of these rules is to force the communicator to reveal information that could cause material harm to certain receivers, harms that the communicator, for various reasons of self-interest, might prefer to keep secret or hidden. Because IMT and the Gricean framework have seldom been used in published studies to investigate legally mandated disclosure documents aimed at laypersons, this book seeks to enrich current explications of the rhetorical "workings" of deceptive disclosures within the broader Gricean tradition of pragmatics. The book questions the fundamental relationships among Grice's maxims as well as the much circulated notion that violation of some maxims is more deceptive and more immoral than violations of others. In addition, the book also attempts to show how various other theories and research in discourse linguistics and reading comprehension can be used to support IMT analyses in addressing the discourse processing issues unique to legally required disclosure texts. In this way the book contributes to the larger dual mission of the field of forensic linguistics, which is both to understand and to improve courts' impact on social justice.

1 Introduction

Consider the following scenario: you have worked in a managerial position for MultiNatCorp for 32 years, and you are now in the last week of your employment with the firm. You have raised a family, held your marriage together through some turbulent times, and raised three children, with two now in college and the third about to enter at the end of the year. You are really looking forward to retirement, especially given that you were diligent about saving and are feeling secure. On Thursday before your last day, some 100 people are gathered at your office for your bon voyage party, including top company officials who have flown in for the event. Everyone is in high spirits—it’s been great to work with so many talented and dedicated people. As it happens, you are chatting and sipping wine with two vice presidents (VPs) from human resources. That conversation ends with their congratulations, and then a lawyer you also know from the firm approaches. She looks a bit somber and is trying to smile. “John,” she says, “you’d be sick if you knew about the wear-away factor your retirement account has been under for the last nine years.” She nods toward the VPs who just left.

You look into her eyes, puzzled. “Wear away? What do you mean?” She looks down at the floor, obviously sorry that she said anything. But then she opens up a little and explains that ever since the company changed its pension plan from a final pay average plan to a cash balance plan nine years ago, you have not, in fact, been earning any additional retirement benefits. Indeed, during those years, you have not earned one more penny for your pension—when you believed you were earning at a nice rate of accrual.

“But,” you stammer, “I read all of the notices the company sent me about the transition; they were all reassuring that I would continue to earn quarterly pay and interest credits in my new cash balance account.” The attorney shakes her head and is suddenly whisked away by another VP. An anxious feeling comes over you. “Have I made a terrible mistake?” you ask yourself. The people in the room around you disappear in a fog as you try to remember all of the many official company documents you received—all of them, you vividly recall, stating that your pension benefits were “protected” and that your “benefit earnings would continue under the new plan.” Will you in fact need to continue working somewhere else? How will you explain this catastrophe to your family?

This scenario is not entirely hypothetical. It closely resembles a recent federal district court case in which a retiring employee at her going-away party made exactly the same painful discovery about her retirement, a case that landed in the U.S. Supreme Court in May 2011 (Amara v. CIGNA Corp. 2008, 2012, 2014; CIGNA Corp. v. Amara, 2011. See also Schultz, 2011, pp. 29–38.). And across the U.S. over the last two decades, the same basic story has played out for tens of thousands of older, longer-service workers whose companies ended their defined pension plans and replaced them with cash balance plans.

Under the Employment Retirement Income Security Act (ERISA) of 1974, any pension plan benefits that a vested participant has already earned cannot be taken away or reduced (29 U.S.C. §§ 1001–1461 (1982). However, except where prevented or limited by collective bargaining agreements, employers have long had the right to change the type of plan they offer to employees and to reduce or even terminate their employees’ future pension benefits without employee consent or approval (Bruce, 1993; Muir, 1999, 2004; Wiedenbeck, 2008; Wooten, 2004). As a condition on this right, ERISA requires employers to provide their employees with ‘plain language’ descriptions of their pensions and of the conditions under which future pension benefits might be reduced or terminated. Depending upon the circumstances, these descriptions must be provided to employees in a Summary Plan Document (SPD), a Summary of Material Modifications (SMMs), or what is known as a § 204(h) notice (29 U.S.C. § 1022(a) and (b); 29 C.F.R. § 2520.102–1, 102–2; 102–3; 29 C.F.R. 2520.104(b)(3); and 29 U.S.C. § 1054(h)(1)). Since ERISA’s original passage, the composition of all of these documents has grown ever more complicated and evolved to become a major and quite profitable outsource industry. At the same time, ERISA’s disclosure rules governing these documents have confronted courts with myriad interpretive difficulties in expensive and complex class action litigation that continues up to the present time. Some cases filed by plaintiff–employees in the mid and late 1990s are still awaiting trial or settlement, and hundreds of millions of dollars are still at stake (e.g., see Schultz, 2010, 2011).

Some of the most controversial ERISA disclosure litigation has challenged employers’ conversion of their pension plans from so-called defined pension plans to a very different type of pension plan, termed ‘cash balance’ plans. As the previous scenario suggests, such conversions can be especially painful for older, longer-service employees who may see catastrophic pension reductions—reaching more than 50 percent—to their future pension benefits (U.S. General Accounting Office, 2000a, 2000b, 2005). Recent cash balance conversion lawsuits often involve employees’ complaints that employers not only deceived employees that any significant future pension reductions would occur but also that employers concealed a notorious effect of these conversions: many employees, and especially older, longer-service employees, may work for many years following the plan conversion during which they earn no additional pension benefits at all, a phenomenon known as ‘wear away’ (Bilello v. JPMorgan Chase Ret. Plan, 2009; Custer v. Southern New England Telephone Company, 2008; Register v. PNC Financial Services Group, Inc., 2007; Frommert v. Conkright, 2006; In re Citigroup Pension Plan ERISA Litigation, 2006; Hirt v. Equitable Retirement Plan for Emples., Managers & Agents, 2006; Charles v. Pepco Holdings, Inc., 2006; Engers v. AT&T and AT&T Management Pension Plan, 2006; Richards v. FleetBoston Fin. Corp., 2006; Burstein v. Retirement Account Plan for Employees of Allegheny Health Education Research Fund, 2003.)

Despite the extensive and ongoing critical attention that cash balance conversion cases have received in the law review literature, almost no research has closely or critically examined features of the disclosure documents and messages employers have actually distributed in these cases and analyzed how these might be understood by ordinary employees (Anand, 2000; Flint, 1995; Forman & Nixon, 2000; Jefferson, 2001; Noel, 2005; Muir, 2004; Rodine, 2001; Saxinger, 2000; Schulstad, 2001; Sennott, 2001; Stover, 2001; Sulentic, 2000, 2007; Zelinsky, 2000). In particular, no linguistic or communication research investigates the ways in which their alleged textual and rhetorical deceptiveness or communicative adequacy may be assessed. As its primary purpose, this book explores one potentially useful approach to analyzing these messages—Information Manipulation Theory (IMT), which draws heavily upon natural language philosopher H. P. Grice’s original theory of cooperation in spoken conversation and his four maxims of quality, quantity, relation, and manner (Castelfranchi & Poggi, 1994; Dynel, 2011; Galasinski, 2000; Grice, 1989, 1975; McCornack, 1992, 1997, 2008).

Within IMT, violations of Grice’s four maxims are theorized to fairly exhaust the ways a communicator may verbally deceive a communication recipient. First, the maxim of quality is violated when the communicator tells a falsehood: suppose a blind person is attempting cross a busy intersection and asks the person next to her if the crossing light is green, and the person, seeing that the light actually just turned red, replies, “Yes, it’s green.” Thus, knowing the truth, the communicator states or implies the very opposite, producing deceit by commission. In contrast, the maxim of quantity is violated when a communicator omits stating information a receiver would reasonably want or need to know. For example, a husband asks his spouse what she did at lunchtime, and she replies she had lunch out with a friend (which is true) but neglects to add that the friend is her former husband, and she had previously promised not to see her former spouse any more. A violation of the maxim of relevance occurs when a communicator contrives to appear to answer a question asked by the receiver but actually does not do so and instead answers a subtly different question. For example, a person seeking a new home mortgage asks the mortgager if the future interest rate on the mortgage is subject to change, and the mortgager, knowing interest rates on the specified mortgage could actually increase at any time, replies: “At ACME Finance we make every effort to prevent that from occurring, and at this time we do not anticipate that the rate will change for at least eight years.” The mortgager’s reply violates the relevance maxim because what the mortgager says is a response to a question that the person seeking the mortgage did not ask; that is, the person did not ask what the mortgager would try to do or what the mortgager “anticipated.”

Finally, the maxim of manner (or clarity) is violated when a communicator responds to a receiver’s question in a way that equivocates, involves ambiguity or vagueness, or utilizes some combination of these that makes coherent interpretation of the communicator’s meaning onerous and uncertain. Consider a patient whose pain medication has recently been changed by her health maintenance organization (HMO). She asks her HMO physician if the new medication will prevent her pain as effectively as the previous, cancelled medication. The physician has reasons for believing that the new medication, although helpful, may not be as effective as the old medication; the physician then tells the patient the following: “This type of new medication generally is very different from the old medication you have been taking. Future pain you experience may be greater than, the same as, or less than what you would likely be experiencing using the previous medication depending somewhat on your age, length of time you have had your infection, and the dosage amount you have been taking with the old medication.” Then he says nothing further. The maxim of clarity appears violated because the provider’s statement, although it does address the question the patient asked, is rather vague and amounts to an equivocation; that is, anything could happen. Unless the provider specifically discusses the impact that the variables mentioned could have on the particular patient’s experience of pain, the provider’s response simply puts the problem of figuring out how these variables will affect her body’s response to the new medication upon the message receiver herself.

Purposes of the Book

IMT and these four Gricean maxims have shown promise for describing and explaining how conversational utterances may deceive. However, so far they have rarely been extended to analyses of naturally occurring written discourse, particularly in formal, mass-distributed legal and financial disclosures whose deceptiveness versus communicative adequacy is often litigated in court. As a primary purpose of this book, I will generally argue that courts wrestling with ERISA’s complex statutory framework for deciding cash balance disclosure lawsuits may find IMT and the Gricean maxims of conversation to be valuable tools, particularly when experimentally obtained data regarding readers’ comprehension of actual disclosure language is not available as evidence (Ainsworth, 2006; Solan, 1999, 2010; Howald, 2006; Tiersma & Solan, 2002; cf., Stratman, 1988). To be sure, other approaches to the analysis of legal disclosure discourse are possible, such as speech act theory (Searle, 1969, 2001; Vanderveken & Kubo, 2001), speech event theory (Gumperz, 1999; Gumperz & Levinson, 1996), and schema theory in cognitive psychology and reading comprehension research (Arbib, Conklin, & Hill, 1987; Bartlett, 1932; Brewer, 2000; Mandler, 1984; Richgels, 1982; Whitney, 1987), to name only some alternatives. Although I do draw upon schema theory at various points, especially when discussing disclosure readers’ comprehension, IMT and the Gricean maxims seemed the best initial, overall approach, particularly in view of the way that legal disclosure rules under ERISA are framed and the nature of the communication and contractual problems they are intended to address.

To explore IMT’s potential applicability, this book analyzes in detail the disclosure documents and messages that were contested in one ongoing and one recently decided cash balance transition case: Amara v. CIGNA Corp. (2008) and Tomlinson v. El Paso Corporation (2008, 2009, 2011). These two cases were chosen because although the harmful effects of the cash balance conversions on employees’ future pension benefits in both were quite similar, the case outcomes and judicial approach to analyzing disclosure language for its adequacy or deceptiveness are markedly different. After a seven-day bench trial the district court in Amara ultimately found defendant CIGNA’s disclosures to be deceptive, whereas the Tomlinson court, although looking at somewhat different disclosures produced by El Paso Corporation, found no deception at all, and in a summary judgment concluded that the disclosures provided by El Paso were entirely adequate.¹

As will be explained, the differences in case outcome and judicial analytic approach to the disclosures between these cases expose challenging interpretive issues for courts regarding the nature and definition of deception, issues that may be helpfully clarified with concepts from IMT and thus potentially help future adjudication processes.

In addition to this primary purpose, the book has four important secondary theoretical purposes as well.

1. First, because IMT and the Gricean framework have seldom been used in published studies to investigate legally mandated disclosure documents, this book seeks to enrich current explications of the rhetorical “workings” of deception within the broader Gricean tradition of pragmatics. A concern commonly expressed about the Gricean maxims is that explications of them are often limited to very short examples (or else contextually limited or ‘sanitized,’ hypothetical examples) excerpted from larger, ongoing conversational exchanges of which they were a part in natural discourse situations. The surrounding discourse elided from these examples, however, is often critical because it may influence (and greatly complicate) how the specimen passages themselves are perceived as well as explanations concerning how maxim violations involved in these specimens occur (e.g., see Sarangi & Slembrouck, 1992).

For instance, in expert forensic linguistic testimony, short specimen statements excerpted from formal written documents, such as ERISA-mandated pension disclosures, might be presented and dissected by the Gricean analyst apart from both their surrounding relevant text and their larger situational context with the result that the analyst risks oversimplifying and even distorting how the specimen passages may function and be understood. After all, although some instances of deceptive discourse occur in single sentences, others only become manifest across many sentences, passages, or even multiple documents. Litigants disputing the adequacy of employer disclosures, as well as judges called upon to decide such disputes, can ill afford to simply ignore the surrounding textual, spatial, and chronological contexts in which disputed passages appear. Thus, one purpose of this book will be to suggest how other theoretical principles, especially those developed in cognitive studies of reading comprehension, persuasion, and in studies of the problem of expert hindsight bias, can be usefully integrated with IMT and the Gricean maxims to explicate the workings of allegedly deceptive communication. The relevance of principles from these additional areas becomes manifest in documents that are of greater length and technical complexity than one typically finds explicated in the deceptive discourse and forensic linguistics literature.

2. A second, closely related theoretical purpose is to explore the functional relationships and dependencies that may exist among violations of the quality, quantity, relation, and manner maxims. It has been observed that a given conversational utterance may, in fact, simultaneously violate more than one maxim. One specific issue that has been raised is whether or not a communicator’s violation of the maxim of quality necessarily means the communicator also violates one or more of the three remaining maxims as well, if only thereby to make the falsehood being told either more invisible or persuasive to the receiver (Dynel, 2011; Galasinski, 2000). For instance, when a communicator tells a falsehood of the sort mentioned in the crosswalk example, does the communicator also n...

Table of contents

• Cover Page
• Half Title page
• Half Title page
• Title Page
• Copyright Page
• Dedication Page
• Contents
• Tables
• Acknowledgments
• Half Title page
• Introduction
• The Cash Balance Conversion Controversy Dying, but Not Dead
• Strengths and Limitations of Information Manipulation Theory and Grice's Maxims for Explicating Deceptive Communication in ERISA Disclosures
• Amara v. CIGNA
• Tomlinson v. El Paso Corporation
• Comparing Experimental and Nonexperimental Analyses of Text Comprehensibility and Deceptiveness Perspectives on Admissibility
• Disclosure, Obfuscation, and Deception Are IMT's Gricean Maxims Helpful?
• Appendices
• Appendix 1 Original and revised letter from CIGNA CEO Bill Taylor
• Appendix 2 § 204(h) notice for El Paso employees
• Appendix 3 Hypothetical example in precursor document sent to El Paso employees
• Appendix 4 Post-transition pension benefit notice sent to named plaintiff in Tomlinson v. El Paso, including tabular and bar chart displays
• Appendix 5 Table A, CIGNA textual data
• Appendix 5 Table B, El Paso textual data
• Index