The United States Court of Appeals for the Fifth Circuit used the 6 factor test in Revenue Ruling 57-128 to determine that a group of retirees could not bring their welfare benefit plan claims under ERISA.  Using the factors in Revenue Ruling 57-128, the court concluded that the plan was a governmental plan and therefore not subject to ERISA.  This holding was despite the court’s finding that the employees in question were treated as private employees and were not eligible for benefits afforded to public employees.  Legal counsel for public entities will be interested in this decision as governmental employers continue to explore new frontiers of public-private partnerships.  Smith v. Regional Transit Authority, 5th Circuit June 28, 2016.

Court’s opinion is here