Dame v. First National Bank of Omaha,. 217 F.3d 1018 (8^th Cir. 2000)-This court affirmed the district court's ruling in favor of an employer's right to keep excess funds from an over-funded defined benefit pension plan. Upon termination, the Plan had (due to actuarial miscalculations) $2.1 million more than the plan would need to pay all benefits owing to Plan participants. Ordinarily, "the assets of a plan shall never inure to the benefit of any employer."  29 U.S.C. § 1103(c)(1). However, 29 U.S.C. § 1344(d) provides an exception for residual assets after an employer has terminated single-employer plan and the plan has satisfied all its liabilities.  The plan may distribute such assets to the employer if they did not come from employee contributions, if that distribution is not contrary to law, and if the plan so provides.

Here, the issue in dispute was this last prong—whether the plan "so provides." The relevant section of the plan stated:  "...after the allocation and distribution of Plan assets to Participants and Beneficiaries and the satisfaction of all Plan liabilities, fixed and contingent, any remaining excess funds in the Trust Fund shall be referred to Employer." Dame argued that the court should construe the term "referred" as meaning only that "excess Plan assets [are] to be reviewed by United in order to make a determination of how to distribute the plan excess."

This court found that although the term "referred" was an odd choice, its only sensible meaning was "transferred" or "directed to." Another section of the plan bolstered the interpretation because the section expressly provided that "no part" of any excess contributions "shall be applied to increase the benefits of the Participants or their Beneficiaries."