KKLP Marketing

Subscribe to KKLP Marketing's Posts
Follow:'s Linkedin Profile

This week’s notable decision is an unpublished ERISA preemption decision in Abernethy v. EmblemHealth, Inc., No. 19-422, __F.App’x__, 2019 WL 5302825 (2d Cir. Oct. 21, 2019), where the Second Circuit revived the state law claims retired officers brought against EmblemHealth after they cancelled the officers’ retiree medical coverage.

The retirees claimed that they were entitled to continued medical coverage based on their employment and separation agreements.  The employment agreements provide that the employee “shall be entitled to participate in, and receive benefits under” any retiree health benefit plan provided by EmblemHealth, “subject to the terms of such plans, program or policies.” But, the agreement also disclaims that the employee has any vested interest in any employee benefit plan, which the company may, in its discretion, change or revoke.  The separation agreements state that the employee will be able to “commence Retiree Health Benefits at the same level as that provided an active officer.”
Continue Reading Second Circuit Holds Breach of Contract Claims for Retiree Medical Coverage Not Preempted by ERISA

This week’s notable decision is Moitoso v. FMR LLC, No. CV 18-12122-WGY, __ F.Supp.3d __, 2019 WL 4980390 (D. Mass. Oct. 8, 2019), where the court concluded that any money award the ERISA plan participants might win against the alleged breaching fiduciaries would be an equitable surcharge–not legal damages–such that the Seventh Amendment does not require a jury trial in this case.  Even so, the court did grant Plaintiffs’ alternative request for an advisory jury.  The court’s conclusion is not extraordinary; indeed, most courts to have considered the right to a jury in a fiduciary breach case have concluded the same.  What’s interesting about this decision is the depth of the court’s analysis of the historical practice of jury trials and ERISA’s text in rejecting the participants’ arguments in favor of a jury trial for their claims.
Continue Reading Court Holds No Seventh Amendment Right to Jury Trial for ERISA Breach of Fiduciary Duty Claims

This week’s notable decision is Sacerdote v. Cammack Larhette Advisors, LLC, No. 18-1558, __F.3d__, 2019 WL 4777824 (2d Cir. Oct. 1, 2019), which is one of a series of cases involving university retirement plans and allegations of excessive administrative fees and imprudent investments.  The Second Circuit revived the lawsuit against Defendant Cammack Larhette Advisors, LLC (“Cammack”), an independent investment management company that New York University (“NYU”) hired to provide investment advice on its retirement plans.  In so doing, the Court took us back to our law school days with a lesson in civil procedure.  
Continue Reading Second Circuit Revives Excessive Fee Suit Against Investment Advisor