Advisory Opinion 1975-08

Dear :

I am writing with respect to your inquiry as to the applicability of the Employee Retirement Income Security Act of 1974 to the                      Association, Inc., the Petitioner-Defendant in the above-captioned civil action.

We have reviewed the Petition for Removal and the Motion to Remand (and attachments) in this matter. In our view, it appears from these allegations that the Petitioner- Defendant is not a plan within the meaning of section 3(1) of the Act. That section provides, in pertinent part that an “employee welfare benefit plan” or “welfare plan” is any plan, fund, or program which is established by an employer or by an employee organization, or by both, to the extent that such is established or maintained for the purpose of providing for its participants or beneficiaries, “through the purpose of insurance or otherwise”, prepaid legal services.

We consider it significant that the Petitioner-Defendant states in its petition for removal that it is engaged in a business (paragraph 2) and that it is alleged in Plaintiff’s state court petition that the Petitioner- Defendant is soliciting participation by the public (paragraphs 4 and 5, Ex. C), rather than being restricted to persons in an employment relationship to the plan sponsor (see § 3(16)(B) of the Act).

Accordingly, it does not appear from the information available to us at this time that the Petitioner-Defendant is a plan, program or fund “established or maintained by an employer or by an employee organization, or by both” as required by section 3(1) of the Act.

I hope that these comments will be helpful. They are intended to be in the nature of an amicus curiae statement, and we would have no objection if you wished to transmit copies of this letter to the parties. If we may be of further assistance, please advise me.