Tom's Foods examinees ask court to quash subpoenas in pension plan underfunding investigation

By Caroline Salls

Pittsburgh, June 8 - Tom's Foods, Inc. chief executive officer Rolland G. Divin, agent/partner Stanley H. Meadows, and parties-in-interest Heico Holding Inc. and McDermott, Will & Emery LLP asked the U.S. Bankruptcy Court for the Middle District of Georgia to quash subpoenas served to them in connection with an examination of pension plan funding by former Tom's employees.

According to the motion, the subpoenas provide no explanation as to how the underlying discovery requests relate to the company, the movants in this request, former employees' claims against the company and the former employees' claims against the movants.

The motion said the discovery requests are unnecessary because the plan participants' benefits will become payable from the qualified plan's assets or by the Pension Benefit Guaranty Corp.

In addition, the motion said none of the movants is a plan administrator, an employer making contributions to the plan, part of Tom's controlled group of companies or otherwise obligated to fund the pension plan.

The movants said the former employees could easily seek the proposed discovery from the company's responsible officer and post-bankruptcy administrator.

"The movants only can assume that the subpoenas are a disguised fishing expedition, which the former employees will use to support individual actions against the movants," the motion said.

As previously reported, the examination was granted in connection with an alleged $40 million underfunding of the pension plan.

The documents to be examined include contracts and documents related to any company qualified pension plans, financial records of all pension plans and documents on all decisions made in connection with any pension plans.

The former employees are Lyn D. Anderson, Carroll Welker, Richard Olson, Oscar L. Betts, Thomas B. Black III, Al W. Davis III, Herbert E. Graetz, Rebecca W. Grose, Charles S. Middlebrooks, Ernest G. Moore, Jeanette Nuckles, Andy Robinson, Paul C. Serff, Rupert Triplitt, Mary Anne Willis and James White.

Tom's, a Columbus, Ga.-based snack food company, filed for bankruptcy on April 6, 2005. Its Chapter 11 case number is 05-40683.

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