The class has been certified in an action filed against AXA Network, LLC, and the Equitable Life Assurance Society of America on behalf of all current, former, and retired Equitable agents who show (a) lost eligibility for benefits under any Equitable ERISA plan during any period on or after January 1, 1999, because of the application of the policy adopted by Equitable of using compliance with specified sales goals as the test of a "full time life insurance salesman" or (b) remain subject to losing such benefits in the future because of the potential application to them of that policy. The action seeks retroactive reinstatement of benefits and unspecified compensatory damages.

Named plaintiff Terry Berger was an agent under contract with Equitable at an agency office near Chicago from March 1, 1981, until June 2001. During that time, his principal business was the solicitation of life insurance and annuity contracts, primarily for Equitable. He alleges that Equitable discharged him from “statutory employee status” when it adopted a new policy stating that in any given year, those who fail to meet specified sales goals during the preceding year will not be treated as “ statutory employees.” The policy also allegedly affects all agents in that they are subject to future discharge if they fail to make specified sales goals.

Prior to the early 1990s, Equitable was a mutual insurance company. During the 1990s, Equitable became a family of stock corporations, and AXA, SA, acquired a controlling interest in those corporations. Experienced Equitable agents (those classified as “14th Edition”) are not required to spend any minimum number of hours in soliciting sales and related activities. The company does, however, set in annual sales goals for them known as the “ Production Club.” Prior to December 2002, Equitable did not specify a minimum sales level for agents to remain qualified as 14th Edition agents. In December 2002, Equitable allegedly announced a policy of terminating the contracts of all non-retired 14th Edition agents who fail to achieve a minimum level of new sales during 2002-03.

At the time Mr. Berger entered into his 14th Edition agent contract, Equitable asked him to complete a FICA form indicating whether he intended to devote his pencil business activity to the solicitation of life insurance and/or annuity contracts, primarily for Equitable. Prior to January 1991, Equitable allegedly applied a presumption that agents under contract with debt you had indicated the requisite intent on FICA form were “statutory employees” -- full-time life insurance salesman under the meaning of federal tax law and Equitable’s plans for agents. That presumption was allegedly applied so long as the agents were under contract without regard for the previous year's production level. Absent contrary evidence, the company allegedly treated such agents as employees for purposes of payroll taxes.

Prior to 1991, all Equitable agents were apparently eligible to participate in the plans for health insurance, disability benefits, and life insurance, and in a retirement investment plan and a pension plan. While production levels, years of service, and agent contributions are factors in computing the amount of and eligibility for certain benefits, subsidies, and matching contributions, all agents under contract with Equitable were allegedly eligible to participate in the benefits plans.

Starting in January 1994 and continuing unchanged to the present, Equitable has applied the following definition to determine which agents are eligible to participate in the benefits program:

“You're considered an agent if your under a 14th or 10th Edition Contract and are classified as a full-time life insurance sales person for purposes of the Federal Insurance Contributions Act or are an agent under the 12th Edition Contract. To be eligible for certain welfare benefits, you must also meet production credit requirements established by The Equitable.”

Those agents who did not meet the listed requirements, like Mr. Berger, were allegedly discharged as ”statutory employees.” This had two affects: first, it meant that Equitable cease to make the employer Social Security contribution for them under FICA, and instead treated them as if they were self-employed independent contractors who are required to pay “self employment tax” under federal law on their on behalf. Second, Equitable took the position that this discharge made in agent in eligible for benefits under the Equitable Benefits Program.