# Opposition Brief — Long Island Jewish Medical Center v. Schonholz > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1527%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1996 - **Citation:** 519 U.S. 1008 ## Text 6 Supreme Court, U.S. | No. 96-485 I gt Dp OCT 25 199% CLERK IN THE ; Supreme Court of the Muited States OCTOBER TERM, 1996 - LONG ISLAND JEWISH MEINCAL CENTER, Petitioner, ce Yee GLANISS S, SCHONHOLZ, Respondent. ON PETITION FOR A WRIT OF CERTIORARI 70 THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT —_—_—eeeeeeeeeeeeeeeeeee ee BRIEF IN OPPOSTTION — OEE ANTHONY M. RADICE Counsel of Record WILLIAM B, ZUCKERMAN MORRISON & PORRSTER LLP 1290 Avenue of the Americas New York, New York 10104-0185 (212) 468-8000 Counsel for Respondent October 25, 1996 es — TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ..... 00... o. ccs it STATEMENT OF THE CASE... ccc ! REASONS FOR DENYING THE WRIP. cS I. THE SBCOND CIRCUIT PROPERLY APPLIED THIS COURT'S PRECEDENT IN DETERMINING THAT LIN'S SEVERANCE PLAN WAS GOVERNED BY BRISA... . 6.0 cccccceccnennenes 6 THERE IS NO CIRCUIT SPLIT REGARDING THE AVAILABILITY OF PROMISSORY ESTOPPEL UNDER BRISA IN APPROPRIATE CIRCUMSTANCES » CONCLUSION ..... 7 rs TABLE OF AUTHOR} y]Fs Cases | PAGE Alday v. Container Corp. of America, $06 F.2d 660 Cie Cir. Po denied, 49% Su. S. 1026 CU99T) CANRURURR OER ERRR REN ERR RE 10 Avmistead ». Veraitren vain S44 B24 1287 (6th Cir. Lh) RReee ee ANANAA CAN aReancuens RAR Oe 225 ee 10 Belanger . Wyman-Gerden Co, 71 ry 451 (ist Cir. 1h S) D ORO C COCR COCO OCC CCOCS © Ca 7n.4 Black v. TIC Investment Corp,, 900 Fg 112 (7th Cir. V99O) ccccccccnenercenenenenaen tah ak oe ey Pe 12 Bogue \ Ampex Corp,, 976 R.2d 1319 (on Cir, 1992), cert, denied, S07 U.S. 1031 (1993) nd, 7 Curete & Joka Mancoeek Mean Ss Mes. Co., 33 F.3d BEG (SE Cor DBE) cccccccccece cece ees 11 Cerin Wragg Con. ». Sehooineeingee, 115 §. Ct. 1223 CADDIE) wr ccccceccrencceseneewmneen seseeeees 11 n.7, 12 Degen v. Ford Mover Co., 869 F.2d $83 (Sth Cir ROE) wan cnniencccnctipeuutinnessnagigg pcnubasees 11 Delaye v. Agripac, Inc., 39 F.3d 235 (Sth Cir. 1994), cert, denied, 115 S, Ct, 1402 (1995) ..0. os... 8 n.5 Devoll v, Burdick Painting, Inc., 35 F.3d 408 (9th Cir. 1994), cert, denied, 115 S, Ct, 1381 (1995)...... 10, 11 Firestone Tire & Rubber Co, v, Bruch, 489 U.S. 101 (1989) pererree sree eeereeereereaeereereee PPPe eee eseseeseeeeseeeos 10 Fontenot v. NL Industries, Ine., 953 F.2d 960 (Sth Cir. PPA) vavecssaces pbuasegvuas 90 b6b Haan ck Eeaeey 7 n.4, 8-9 PAGE Fort Halifax Packing Co. vy. Coyne, 482 U.S. 1 POEMPy Rew p eleh Saha dhhens seseecs cases fcc... g passim Greany v. Western Farm Bureau Life Ins. Co., 973 F.2d ; Paw RO CIN APNE Gm Gee 11,12 Grimo v. Blue Cross and Blue Shield of Vermont, 899 F. Supp. 196 (D. Vt. MERE AS Sipe ee 9 n.6 Izzarelli v. Rexene Products Co., 24 F.3d 1506 (Sth Cir. oo PES RS SOS Se area 11-12 James v. Fleet/Norstar F inancial Group, Inc., 992 F.2d eee pk tie aca ecnag: EERE on 7-8 Kane v. Aetna Life Ins., 893 F.2d 1283 (11th Cir.). cert. denied, 498 U.S. 890 Lt) SRSA SRR aia Bis 10, 12 Kulinski v. Medtronic Bio-Medicus. Inc., 21 F.3d 254 yeah eed ihyess: Pe ee a Ee Rea 8 Law v. Ernst & Young, 956 F.2d 364 (Ist Cir. 1992) ..10, 12 Lee v. Burkhart, 991 F.2d 1004 (2d Cir. 1993) ........ 10 Madonia v. Blue Cross and Blue Shield of Virginia, 11 F. 3d 444 (4th Cir. 1993), cert. denied, 114 Wolts Po tytn: be ata, ee Ee ee ee 9 n.6 Massachusetts y. Morash, 490 U.S. 107 ft: SRS 6n.3 Miller v. Coastal Corp., 978 F.2d 622 (10th Cir. 1992), _ cert. denied, 507 U.S. 987 SRS fae SS 10 Miller v. Taylor Insulation Co., 39 F.3d 755 (7th Cir. (a, SE CORIO A Sa a 10, 11 In re Momentum Mfg. Corp., 25 F.3d 1132 (2d Cir. OE EA REESE SS Soe a 12 Nachwalter vy. Christie, 805 F.2d 956 (11th Cir. 1986) 11 iV PAGE National Companies Health Benefit Plan v. St. Joseph's Hosp. of Atlanta, 929 F.2d 1558 (11th Cir. 1991) 12 Pane v. RCA Corp., 667 F. Supp. 168 (D.N.J. 1987), aff’d, 868 F.2d 631 (3d Cir. 1989)................ 7n.4 Slice v. Sons of Norway, 34 F.3d 630 (8th Cir. 1994)..10, 11 In re Unisys Corp. Retiree Medical Benefit “ERISA” Litigation, 58 F.3d 896 (3d Cir. 1995)............ 10 Williams v. Wright, 927 F.2d 1540 (11th Cir. 1991)... 9n.6 Statutes and Regulations 239 USO. 8 IGT OF O06. (ERIGA). i. eR Ss: passim yr. BAR Rome Bi: | 4 § Seep Ae eye prey Pye re 1] y. BERN oe SP ) ks Ree Perry rrr corre 11 BD CPR, SSS Fares cans cai iardi onde as ree 9 n.6 22 CEB: 9 25S MEME) i cisiscices. Gua eis Rand ens 9 n.6 IN THE Supreme Court of the United States OCTOBER TERM, 1996 No. 96-485 <> LONG ISLAND JEWISH MEDICAL CENTER, Petitioner, —V.— GLENISss S. SCHONHOLZ, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ——_>— BRIEF IN OPPOSITION Respondent respectfully requests that this Court deny the petition for writ of certiorari submitted by petitioner Long Island Jewish Medica] Center. STATEMENT OF THE CASE Except to highlight the few points below, respondent Gleniss Schonholz incorporates by reference the statement of facts in the Second Circuit’s opinion (A-2-4):! . Schonholz adopts the abbreviations used in petitioner's brief (“Petition”) unless otherwise noted. The terms of LIJ’s May 3, 1991 severance pay program (the “Severance Plan” or the “Plan”), including the eligibility requirements and other criteria, are succinctly described in the opinion below: Payments under the Severance Plan were to be based upon both the length of time the employee held his position and his prospects for reemploy- ment, but they would be made only if the employee displayed a reasonable and good faith effort to obtain a position commensurate with his former level of responsibility. In addition, the employee would not be eligible for payments under the Sev- erance Plan if the termination was for either illegal conduct or substantially deficient performance. The Severance Plan provided that the terminated employee would continue to receive other benefits, and contained no provision for its termination or amendment. A-2; see A-35-37. The Plan thus required LIJ to make a dis- cretionary, case-by-case analysis of (1) the circumstances of each employee’s termination, (2) whether the ermployee was making reasonable efforts to obtain new employment and (3) whether such new employment was commensurate with the position the employee had occupied at LIJ (defined in terms of “former organizational level and scope of responsibility”). See A-7-8; A-36. The Plan was created and maintained without ERISA’s reporting and disclosure formalities: no formal plan docu- ments were filed with tie Secretary of Labor and no summary plan descriptions were distributed to the covered employees. See A-10-11. Moreover, as the Second Circuit noted, the employees covered by the Severance Plan reasonably per- ceived that LIJ had made an ongoing commitment to provide employment benefits (A-7-8), particularly given that “LIJ nei- ther created nor circulated any documents purporting to amend [or] modify” the Plan before it was terminated in March 1993. A-2. Schonholz was a long-time employee of LIJ and its Senior Vice President and Chief Operating Officer from 1987 until her termination on April 1, 1993. Schonholz’s termination was not for cause, but rather was precipitated by continuing disagreements and friction with LIJ’s new Chairman. A-3. In December 1992, LIJ’s then-President, Dr. Robert Match, informed Schonholz that he was going to ask for her resig- nation, which he formalized in a letter to her, dated Decem- ber 18, 1992. /d.; A-39. The letter stated that “the terms of your severance will be governed by the LIJ Medical Center personnel policies applicable to members of the President's Council, including the Severance Pay Program dated May 3, 1991.” A-39; A-3. In light of this promise, Schonholz opted neither to contest her termination nor to seek to negotiate an individual severance package pursuant to LIJ’s long-standing policy and practice. R. 1152; Petition at 4. Rather, in accep- tance of the terms offered in Dr. Match’s letter, Schonholz submitted her resignation in a letter dated December 22, 1992 (A-40), and agreed to LIJ’s request that she remain at her position until April 1, 1993. A-39. Nine days before the effec tive date of Schonholz’s termination, on March 23, 1993, LIJ’s Board of Trustees resolved to revoke the Severance Plan and, accordingly, to deny Schonholz the severance benefits to which she was entitled under the terms of both the May 3, 1991 Plan and Dr. Match’s December 18, 1992 letter request- ing her resignation. In addition to the facts highlighted above, Schonholz cor- rects the following factual inaccuracies in LIJ’s brief: First, LIJ states that its President merely “purported to establish” the Severance Pian for Schonholz and the seven other senior-level employees (Petition at 4) (emphasis added), suggesting that the Plan was unauthorized because it “was not submitted to LIJ’s Board of Trustees for review, much less 4 approval.” /d. at 3. In fact, Dr. Match, LIJ’s President and Chief Executive Officer, indisputably had the authority to promulgate the Severance Plan, as expressly set forth in LIJ’s corporate bylaws, which confer upon the CEO the responsi- bility of “developing and maintaining personnel policies and practices.” R. 98.? The record is also clear that Dr. Match, himself a Board member, sought and obtained approval from then-Chairman of the Board William Mack before imple- menting the Plan. R. 452, 508, 633-34, 1458-62, 1464. Second, LIJ incorrectly maintains that the decision below “dramatically alters” this Court’s precedent by requiring that, whenever an employer makes a discretionary offer of sever- ance benefits, “the employer must comply with all of ERISA’s substantive and procedural requirements—regardless of whether any plan or administrative program is implicated.” Petition at 11 (emphasis added). Both the district court «1d the Second Circuit held that ERISA protects an employee’s interest in a welfare benefit plan regardless of whether the employer complies with all the procedural (i.e., administra- tive and reporting) requirements of ERISA. A-18-19 n.1; see A-4-8. Indeed, in its brief to the Second Circuit, LIJ asserted (and Schonholz did not contest) that, pursuant to Department of Labor regulations, LIJ’s Severance Plan was exempt from 2 Elsewhere, LIJ admits as much by acknowledging that the “deci- sion whether to grant a senior manager any benefits upon involuntary ter- mination, and in what amount, rested, ultimately, with Dr. Match.” Petition at 4. Indeed, Dr. Match routinely authorized and implemented employee benefit programs that were more extensive and expensive than the Severance Plan without Board approval or involvement. R. 390-98, 1343-44, 1351-52, 1358-64. LIJ is also incorrect to label the Severance Plan a “golden parachvte” (Petition at 3, 16), with the attendant inference that the Plan was excc s- sively generous. The record reflects that the Severance Plan was a con- servative, reasonable and customary severance policy that was, if anything, less generous than the policies which were prevalent in the health care industry, both when it was established and when Schonholz made her claim under the Plan. R. 191, 193, 450-51, 1294, 1297, 1320- 22, 1458-59. > ERISA’s reporting and disclosure provisions. See A-1}. Although LIJ now misstates the holding below as mandating that all employee welfare benefit plans must comply with all of ERISA’s procedural requirements, the Second Circuit expressly stated that this Court has “clarified that such adher- ence to formalities is not mandated by the statute.” /d. REASONS FOR DENYING THE WRIT This Court should deny the writ sought by petitioner because there is no conflict between the decision of the court below and those of this Court regarding the standard for ERISA pre-emption, and there is no circuit split on the avail- ability of promissory estoppel under ERISA. The Second Cir- cuit’s determination that LIJ’s Severance Plan was covered by ERISA is completely consistent with this Court’s holding in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987). The few circuit courts that have declined to apply promissory estoppel as a basis for recovering ERISA plan benefits did so in cases in which the facts did not support an estoppel theory. Moreover, the case at hand affects the rights of just one par- ticipant in a benefit plan that has since been revoked: no other beneficiaries’ rights are implicated. Accordingly, there is no reason for this Court to review the decision below. 6 THE SECOND CIRCUIT PROPERLY APPLIED THIS COURT'S PRECEDENT IN DETERMINING THAT LIJ’S SEVERANCE PLAN WAS GOVERNED BY ERISA. The Second Circuit correctly held that the Severance Plan—a typical offer of severance benefits—was an employee welfare benefit plan governed by ERISA, finding that the Plan “necessitated both managerial discretion and a separate anal- ysis of each employee in light of certain criteria.” A-7-8.° LIJ challenges that ruling t ; misconstruing this Court’s decision in Fort Halifax, which held that a state statute requiring a one-time, lump-sum payment to employees who were laid off due to plant closings was not pre-empted by ERISA. The test that emerged from Fort Halifax for ERISA pre-emption was whether the provision of employee benefits required an “ongoing administrative program.” 482 U.S. at 11-12. LIJ contends that the Second Circuit in this case has joined other courts in failing to adhere to the Fort Halifax test by looking to a plan’s need for managerial discretion. As the Second Cir- cuit and other courts have correctly recognized, however, “managerial discretion” is not a standard different from “ongoing administrative program”; evidence of the former is merely one way to demonstrate the latter. The Second Circuit's opinion states that “it is plain that ERISA subject matter jurisdiction depends on the need for an administrative program,” and reasons that a “variety of fac- tors, including whether the employer's undertaking or obli- ; The Second Circuit's determination that this fairly common type of severance policy was an ERISA plan is entirely consistent with this Court's opinion in Massachusetts v. Morash, 490 U.S. 107 (1989), which observed that “plans to pay employees severance benefits, which are payable only upon termination of employment, are employee welfare ben- efit plans within the meaning of [ERISA].” /d. at 116 (emphasis in the original). gation requires managerial discretion in its administration,” aids in the “determination of which obligations are complex enough to require such a program.” A-7 (citing Bogue v. Ampex Corp., 976 F.2d 1319, 1323 (9th Cir. 1992), cert. denied, 507 U.S. 1031 (1993)). After discussing other factors courts have considered in making the determination,‘ the Sec- ond Circuit remarked, “We need not decide today which one or more of these factors will be determinative in every case because, in this case, we conclude that all of them favor Schonholz.” A-7 (emphasis added). In arriving at its conclusion that ERISA governs the Sev- erance Plan, the Second Circuit expressly distinguished its decision in James v. Fleet/Norstar Financial Group, Inc., 992 F.2d 463 (2d Cir. 1993), which involved an obligation simi- lar to the one analyzed in Fort Halifax. In James, the court found that an employer's promise to provide its employees 60-days’ additional pay in the event of a plant closing did not require an ongoing administrative program and thus was not ms In addition to Bogue, which assessed a plan's need for admin- istration by whether it required “a case-by-case discretionary application of its terms,” 976 F.2d at 1323, the court cited Belanger v. Wyman-Gor- don Co., 71 F.3d 451 (1st Cir. 1995), and Fontenot v. NL Industries, Inc.. 953 F.2d 960 (Sth Cir. 1992). See A-7. In Belanger, the First Circuit looked to whether a “reasonable employee would perceive an ongoing commitment by the employer to provide employee benefits.” 71 F.3d at 455. In Fontenot, the Fifth Circuit considered whether the employer was required to analyze the circumstances of each employee's termination separately in light of certain criteria. 953 F.2d at 963 (citing Pane v. RCA Corp., 667 F. Supp. 168, 171 (D.N.J. 1987), aff'd, 868 F.2d 631 (3d Cir. 1989)). Although LIJ argues that the district court in Pane and the Ninth Cir- cuit in Bogue incorrectly applied Fort Halifax (Petition at 15), both courts expressly adhered to the ongoing administrative program standard and factually distinguished Fort Halifax in finding ERISA pre-empted the plans at issue. Pane, 667 F. Supp. at 170-71; Bogue, 976 F.2d at 1323. Indeed, LIJ seeks to create a circuit conflict merely by focusing on the results of the consistent Fort Halifax analyses conducted by the several circuits. pre-empted by ERISA. A-6. By contrast, various managerial assessments and decisions inherent in the terms of the Sev- erance Plan “required much more than the simple arithmetic calculations we held to be insufficient in James.” A-7. “Unlike the employer's obligation in Fort Halifax and the promise in James, the Severance Plan was not limited either to a single payment or to a short span of time upon a plant or office closing. The Severance Plan’s effective period was unlimited and would have reasonably been perceived by an employee as an ongoing commitment.” A-8.° LIJ cannot support its assertion that the Second Circuit's decision places it at odds with the Fifth and Eighth Circuits, which have “consistently adhered to the Fort Halifax analy- sis.” Petition at 14 (citing Kulinski v. Medtronic Bio-Medicus, Inc., 21 F.3d 254 (8th Cir. 1994), and Fontenot v. NL Indus- tries, Inc., 953 F.2d 960 (Sth Cir. 1992)). In Kulinski, the Eighth Circuit determined a benefit plan did not require an administrative program by assessing whether it implicated the exercise of managerial discretion and finding that “there was nothing for the company to decide” and “no discretion for it to exercise.” 21 F.3d at 258. In Fontenot—cited with approval by the Second Circuit (see A-7; note 4, supra)—the Fifth Cir- > Thus, this case does not “place[ ] the Second Circuit in the intra- circuit conflict column,” as LIJ asserts. Petition at 16. The Second Cir- cuit factually distinguished the undertakings of the Severance Plan from the lesser obligation at issue in James in arriving at a different conclu- sion as to ERISA’s applicability. Moreover, although unsuccessful before the district court and the Sec- ond Circuit, LIJ continues to try to find significance in the fact that an administrative program was not yet in place when Schonholz made the first claim under the Severance Plan. See Petition at 5, 16. Plainly, Fort Halifax and its progeny look to the need for an administrative program, not to its implementation. See Fort Halifax, 482 U.S. at 11 (“[pre-emp- tion] arises . . . with respect to benefits whose provision by nature requires an administrative program”); see also, e.g., Delaye v. Agripac, Inc., 39 F.3d 235, 237 (9th Cir. 1994) (the test that has emerged from Fort Halifax is “does the benefit package implicate an ongoing admin- istrative scheme?”), cert. denied, 115 S. Ct. 1402 (1995). 9 cuit looked to whether the circumstances of each employee's termination had to be analyzed in light of certain criteria in determining whether the plan at issue required an adminis- trative scheme. 953 F.2d at 963.° These were two of the three factors the Second Circuit considered in finding that all of them supported the conclusion that the Severance Plan required an ongoing administrative program and thus was covered by ERISA. See A-7-8. The very cases on which LIJ relies thus demonstrate that there is no conflict among the cir- cuits in interpreting the Fort Halifax standard for ERISA pre-emption. THERE IS NO CIRCUIT SPLIT REGARDING THE AVAILABILITY OF PROMISSORY ESTOPPEL UNDER ERISA IN APPROPRIATE CIRCUMSTANCES. The Second Circuit’s holding that Schonholz has a viable - promissory estoppel claim is consistent with that circuit's precedent and does nothing to create or exacerbate a circuit split on this issue. As the Second Circuit had previously held, and reiterated in this case, “principles of estoppel can apply in ERISA cases under extraordinary circumstances.” A-12 . LU cites no authority for its suggestion that the Fifth and Ei ghth Circuits have declined to apply ERISA to plans in part because they cov- ered only “a handful of ‘beneficiaries.’ ” Petition at 14. In fact, “it is well established that the requirement of a class of beneficiaries may be sat- isfied even when there is only one employee participating in the plan.” Grimo v. Blue Cross and Blue Shield of Vermont, 899 F. Supp. 196, 202 n.6 (D. Vt. 1995) (citing Madonia v. Blue Cross and Blue Shield of Vir- ginia, 11 F. 3d 444, 447-49 (4th Cir. 1993), cert. denied, 114 S. Ct. 1401 (1994); Williams v. Wright, 927 F.2d 1540, 1545 (11th Cir. 1991)). See 29 C.F.R. §§ 2510.3-3(b) & 2510.3-3(c)(1) (Department of Labor regula- tions providing that plan must involve at least one employee other than corporation's sole owner to satisfy ERISA “participant” requirement). 10 (citing Lee v. Burkhart, 991 F.2d 1004, 1009 (2d Cir. 1993)). Such circumstances can occur, as here, when an employer makes a writte.1 promise that is at the same level of formality as a plan creation document which lacks an amendment pro- cedure, and an employee reasonably and detrimentally relies on that promise. See A-11, A-13-14. Estoppel claims under ERISA have been denied where the facts cannot support them; there is no circuit split on the availability of estoppel in appropriate circumstances. This Court has sanctioned the development of federal com- mon law to fill the interstitial gaps in ERISA’s statutory scheme, see, e.g., Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110 (1989), and, accordingly, the Second Circuit is among the many circuit courts to recognize estoppel claims under federal common law principles. E.g., In re Unisys Corp. Retiree Medical Benefit “ERISA” Litigation, 58 F.3d 896, 907-08 (3d Cir. 1995); Miller v. Taylor Insulation Co., 39 F.3d 755 (7th Cir. 1994); Devoll v. Burdick Painting, Inc., 35 F.3d 408 (9th Cir. 1994), cert. denied, 115 S. Ct. 1381 (1995); Slice v. Sons of Norway, 34 F.3d 630, 634 (8th Cir. 1994); Law v. Ernst & Young, 956 F.2d 364, 367-68 (ist Cir. 1992); Armistead v. Vernitron Corp., 944 F.2d 1287 (6th Cir. 1991); Kane v. Aetna Life Ins., 893 F.2d 1283 (11th Cir.), cert. denied, 498 U.S. 890 (1990). The cases LIJ cites for the proposition that some circuits do not allow promissory estoppel claims under ERISA simply do not involve facts in which estoppel would be appropriately applied. See Miller v. Coastal Corp., 978 F.2d 622, 625 (10th Cir. 1992) (where ERISA plan at issue adhered to statutory formalities, the court declined to “enforce an informal writ- ten agreement under a theory of federal common law estop- pel”), cert. denied, 507 U.S. 987 (1993); Alday v. Container Corp. of America, 906 F.2d 660, 666 (11th Cir. 1990) (“no federal common law right to promissory estoppel under ERISA in cases involving oral amendments to or modifica- tions of employee plans”) (citing Nachwaiter v. Christie, 805 1] F.2d 956, 960 (11th Cir. 1986)), cert. denied, 498 U.S. 1026 (1991); Degan v. Ford Motor Co., 869 F.2d 889, 895 (Sth Cir. 1989) (promissory estoppel not cognizable to enforce “oral modifications to benefit plans”); see also Devoll, 35 F.3d at 412 (holding that, while ERISA pre-empts promissory estop- pel under state common law, “ ‘federal equitable estoppel principles can, in certain circumstances, apply to some claims arising out of ERISA’ ”) (quoting Greany v. Western Farm Bureau Life Ins. Co., 973 F.2d 812, 821 (9th Cir. 1992)). LIJ thus cannot support its suggestion that circuits recog- nizing estoppel-based claims under ERISA have misused their authority to create federal common law by “revis[ing] the Statute.” Petition at 20. As shown above, courts have con- Sistently denied estoppel claims based on oral promises or informal communications in cases where the plans are formal and properly maintained under ERISA procedures, because ERISA provides that “[e]very employee benefit plan shall be established and maintained pursuant to a written instrument,” 29 U.S.C. § 1102(a)(1), which shall contain “a procedure for amending such plan, and for identifying the persons who have authority to amend the plan.” /d. § 1102(b)(3).’ Such claims are precluded by the terms and purpose of the statute. The Severance Plan, however, was created without ERISA’s reporting and disclosure formalities and did not contain an amendment procedure. Several courts have recognized that employer communications may Support an estoppel claim where they construe ambiguous plan language or are no less formal than other plan documents. See, e.g., Taylor Insula- tion, 39 F.3d at 759-60; Slice, 34 F.3d at 634: Curcio v. John Hancock Mutual Life Ins. Co., 33 F.3d 226, 236-37 & n.17 (3d Cir. 1994); Izzarelli v. Rexene Products Co., 24 F.3d 1506, Notwithstanding these statutory provisions, as noted in Tayler insulation, “[t}here are no particular formalities that a welfare plan must comply with to be an ERISA plan. It need not even be in writing; . .. this is not a prerequisite to coverage.” 39 F.3d at 760. See Curtiss-Wright Corp. v. Schooenjongen, 115 S. Ct. 1223, 1230-31 (1995); A-11. 12 1517-18 (Sth Cir. 1994); Greany, 973 F.2d at 821-22; Law, 956 F.2d at 367-68; National Companies Health Benefit Plan v. St. Joseph’s Hosp. of Atlanta, 929 F.2d 1558, 1571-74 (11th Cir. 1991); Black v. TIC Investment Corp., 900 F.2d 112, 114- 16 (7th Cir. 1990); Kane, 893 F.2d at 1285 & n.3; see also, e.g., In re Momentum Mfg. Corp., 25 F.3d 1132, 1134, 1137 (2d Cir. 1994) (estoppel claim upheld where bankrupt com- pany’s “Disclosure Statement, together with other company communications,” led employees to believe company’s promise of severance, which it later sought to withdraw). This approach is consistent with this Court’s recent pronouncement that ERISA “follows standard trust law principles in dictating only that whatever level of specificity [an employer] ulti- mately chooses, in an amendment procedure or elsewhere, it is bound to that level.” Curtiss-Wright Corp. v. Schoonejon- gen, 115 S. Ct. 1223, 1231 (1995). Accordingly, the court below properly ruled that where an ERISA plan contains no amendment procedure, an employer’s written communication to a plan participant that is at the same level of formality as other plan documents may support an estoppel claim.® The circuits are not split on this issue. . The Second Circuit also held that the written communication promising Schonholz benefits under the Severance Plan supports her ERISA contract-based claim, an issue LIJ did not raise before this Court. Schonholz thus would have an alternate basis for recovery even if her estoppel claim were rejected. 13 CONCLUSION The decision below does not conflict with any decision of this Court and does not present any genuine conflict among the circuits on any issue warranting this Court’s review. Rather, the decision represents a proper resolution of the issues presented, consistent with the language and purpose of ERISA. For these reasons, the petition for writ of certiorari should be denied. Dated: New York, New York October 25, 1996 Respectfully submitted, ANTHONY M. RADICE Counsel of Record WILLIAM E. ZUCKERMAN MORRISON & FOERSTER LLP 1290 Avenue of the Americas New York, New York 10104-0185 (212) 468-8000 Counsel for Respondent --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1527%3A2. Public record. Not legal advice.