Boston ERISA and Insurance Litigation Blog (Stephen Rosenberg)
Reflections on the Second Circuit’s Decision in Osberg v. Foot Locker
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I was being interviewed by a reporter the other day and casually noted that I keep my twitter open on my computer all day for no other reason than to follow Bloomberg BNA’s nearly instantaneous reporting of important new court decisions in the ERISA field. True to form, this morning I came into work to an article on, and a copy of the decision by, the Second Circuit yesterday in the long running pension class action case, Osberg v. Foot Locker, which concerns a claim for reformation of a pension plan to provide employees with the benefits they believed were promised in plan communications, rather than those actually provided under the plan’s express terms themselves. You can find the Bloomberg BNA article on it here, and the decision itself here.
The decision is worth reading for a number of reasons, a few of which I will briefly touch on here. First, anyone who litigates in this area knows that it is very hard – and most circuits have adopted a range of doctrinal hurdles making it so – to get courts to award, on equitable relief grounds, any benefits different than those expressly authorized under the plan’s terms, even where there is evidence that the plan communications to the employees did not spell out those benefits accurately. The Second Circuit, and the district court before it, granted the employees, through the tool of reformation, benefits beyond what the plan itself provides. The Second Circuit’s decision, in my view, immediately becomes the polestar for claims of this nature, to the extent that lawyers for participants will look to it for guidance and support, and lawyers for plans will have to steer around it anytime a plaintiff seeks benefits beyond those expressly provided under a plan’s terms.
Second, by ruling in favor of the employee class, the decision is actually a major setback for the defense bar and, in many ways, for plan sponsors’ freedom of action in operating and, in particular amending, plans. Plan sponsors and fiduciaries have generally been very successful in limiting participants to recovering only the amount of pensions or other benefits authorized under the express, typically actuarially driven, terms of the formal written plan itself. This decision immediately becomes the leading support for the premise that courts should not so limit such recovery, and should instead look to what was promised to participants in deciding the amount of benefits owed to participants.
Third, from a pragmatic, educational perspective, if you have ever wanted a good description in plain English of cash balance plans and the concept of “wear away,” you won’t find a better one than the Second Circuit’s explanation of those topics here.
Fourth, the Court provides an excellent explanation of what must actually be proven to reform a plan to provide the more extensive benefits that, relative to the plan’s terms themselves, plan communications led participants to believe they would receive. For me personally, this is a very exciting development – having been a contracts geek in law school, I have longed for the day when reformation would become central to my practice, and thanks to the Second Circuit, that long awaited day has finally arrived. Hallelujah! The chorus of lawyer angels sing!
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