Case 2:11-cv-00045-CDJ Document 123 Filed 03/21/12 Page 1 of 2


1900 MARKET STREET 215.665.2000 1.800.523.2900

PHILADELPHIA, PA 19103-3508 215.665.2013 FAX


H. Robert Fiebach
Direct Phone 215.665.2129 Direct Fax 215.701.2299

Honorable C. Darnell Jones, II United States District Court Judge Eastern District of Pennsylvania 5613 U.S. Courthouse 601 Market Street Philadelphia, PA 19106-1797 (267) 299-5057 Re: Cozen O’Connor, P.C. v. Tobits et al.; United States District Court for the Eastern District of Pennsylvania No. 2:11-cv-00045-CDJ

Dear Judge Jones: On behalf of plaintiff, Cozen O’Connor, P.C. (“Cozen O’Connor”), in the above referenced matter, we write in response to the Human Rights Campaign and Equality Forum’s notice of supplemental authority. (Docket Entry No. 120). This action concerns the Cozen O’Connor Profit Sharing Plan (the “Plan”). The Plan contains only one definition of spouse. At oral argument on March 12, 2012, Cozen O’Connor reaffirmed its position that an ERISA qualified retirement and pension plan could accommodate same-sex spouses, using appropriate language, but that the Plan does not contain such language. Pursuant to the Defense of Marriage Act (“DOMA”), which by its terms must be read into all federal statutes, a surviving spouse, as that term is used throughout ERISA, cannot mean a samesex spouse. The supplemental authority that amici filed supports Cozen O’Connor’s interpretation of the Plan -- that so long as DOMA is constitutional, it prevents Cozen O’Connor from recognizing Jennifer Tobits as Ellyn Farley’s surviving spouse under the language of the Plan. Specifically, section 1.57 of the Basic Plan Document (“BPD”) defines “Domestic Partner” separately from the definition of “Spouse,” found in section 1.174. If, as amici and Ms. Tobits contended at oral argument, Cozen O’Connor is free to interpret “Spouse” under the Plan to include a same-sex spouse, then the BPD, an “IRS-approved

Case 2:11-cv-00045-CDJ Document 123 Filed 03/21/12 Page 2 of 2
Honorable C. Darnell Jones, II March 21, 2012 Page 2 _______________________________________ prototype plan document” (Docket Entry No. 120, p. 1) that amici submitted, would not need to clarify that a Domestic Partner who is a same-sex spouse will be treated as a Spouse upon election by the participant. (See BPD, § 12.4.) Moreover, the BPD expressly advises participants that ERISA will not recognize a Domestic Partner as a spouse: 12.4 Domestic Partner’s Rights. If elected in the Adoption Agreement, then a Domestic Partner will be afforded the same rights as a Spouse for purposes of this Plan. However, until such time as ERISA recognizes Federal enforcement rights of a Domestic Partner, enforcement of these rights by a Domestic Partner will be based on a State’s (or Commonwealth’s) contract law (without the necessity of providing adequate consideration or actual damages under contract law) or other applicable law.

(BPD, § 12.4) (emphasis supplied). Accordingly, Cozen O’Connor submits that the supplemental authority produced by amici reinforces its position that, in absence of language expanding the definition of Spouse to include same-sex spouses, DOMA limits its meaning to opposite-sex spouses. Cozen O’Connor thanks Your Honor for his consideration of this matter. Respectfully submitted, COZEN O'CONNOR /s/ H. Robert Fiebach H. Robert Fiebach HRF cc: Counsel of Record

Case 2:11-cv-00045-CDJ Document 123-1 Filed 03/21/12 Page 1 of 1

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was filed electronically on March 21, 2012. Notice of this filing will be sent by operation of the Court’s CM/ECF system to all counsel of record.

/s/ Jill M. Caughie_____________________ Jill M. Caughie

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