The Tribunal finds that each of the other District Court cases in which the compensation agreements were struck down under ERISA has key factors that distinguish it from this case. To Donovan v. Cunningham, the court found that a compensation agreement, which was part of a plan covered by ERISA, was not reached. 541 Supp. 276, 289 (S.D.Tex.1982), aff`d partially rev`d, partially evacuated for various reasons, 716 F.2d 1455 (5. Cir.1983), cert. denied, 467 U.S. 1251, 104 P. Ct.
3533, 82 L Ed. 2d 839 (1984). However, the Tribunal`s main justification for its decision was that the plan covered by ERISA would itself bear the financial burden of compensation. It found that such a situation was inconsistent with ERISA 410, 29 U.S.C 1110, in part because it was not a “simple transfer of liability from an agent in the same way as insurance.” Donovan, 541 F. Supp. 289. The purpose of the court was to protect the plan itself from the costs resulting from the prosecution. There is no possibility that the beneficiaries themselves will suffer from the implementation of the agreement.  The question remains whether, under ERISA, the agreement can be applied by common federal law. Although ERISA discusses the existence of compensation agreements, there is no provision of ERISA that explicitly provides for the application of such agreements.
The courts are, however, responsible for formulating a uniform common federal law at the national level to complement the explicit provisions and general policies of ERISA. Menhorn v. Firestone Tire – Rubber Co., 738 F.2d 1496, 1500 (9. Cir.1984); see also Castonguay, 984 F.2d at 1523 (where state law is anticipated and ERISA does not contain an explicit rule: “Federal courts must create them as a federal common law case.”) If the application of the federal common law is necessary, a court must “examine the ERISA Act and the political judgments it contains and develop a rule that is best related to them.” Castonguay, 984 F.2d to 1523.  The Tribunal finds that the agreement in question is not contrary to ERISA No. 410, 29 U.S.C No. 1110 and is therefore enforceable by Wells. This type of agreement, which compensates an agent of the plan (Wells) by an employer (Bourns), was explicitly considered by DOL as a type of compensation agreement valid in accordance with ERISA No. 410.