# Supplemental Brief — Norcal Waste Systems, Inc. v. Abraham

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1407%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Supplemental Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1071

## Text

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OFBICE OF THE CLERK

No. 01-1187 Sense eianod

IN THE

Supreme Court of the United States

Norcac Waste Systems, INc. and Norcat WasTE SysTEMs, INC.
EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST,

Petitioners,
v.

JuLio ABRAHAM, et al.,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
Unitep States Court OF APPEALS FOR THE NINTH CIRCUIT

SUPPLEMENTAL BRIEF IN RESPONSE TO BRIEF FOR
THE UNITED STATES AS AMICUS CURIAE

JEROME B. FALK, Jr. DeBorAH S. BALLATI

Counsel of Record KAREN P. KIMMEY
BARBARA A. WINTERS FARELLA, BRAUN
Douctas A. WINTHROP & Marte, LLP
KEITH KESSLER 235 Montgomery St.
Howarb, Rice, NEMEROVSKI, San Francisco, CA 94110

CANADY, FALK & RABKIN (415) 954-4400

A PROFESSIONAL CORPORATION
Three Embarcadero Ctr., 7th FI.
San Francisco, CA 94111-4065
(415) 434-1600

PauL J. ONDRASIK, JR.

STEPTOE & JOHNSON, LLP
1330 Connecticut Ave., N.W.
Washington, DC 20005
(202) 429-3000

Counsel for Petitioner
Norcal Waste Systems, Inc.

Counsel for Petitioner
Norcal Waste Systems, Inc.
Employee Stock Ownership
Plan and Trust

STATEMENT PURSUANT TO RULE 29.6

Petitioner Norcal Waste Systems, Inc. set forth its
corporate disclosure statement at page ii of its Petition for a
Writ of Certiorari, and it has no amendments to that

statement.

ii

TABLE OF CONTENTS

Statement Pursuant To Rule 29.6 ...............
Table of Content .....<scesnkaceasee eae
Table of Cited Authorities .......cccccccccccces
A. The Government All But Concedes That
ERISA Preempts The Breach Of Fiduciary

Duty Claim. . . <ivee Gaon ee ee eeeea eens

B. ERISA Completely Preempts The Claim As
Well. .....0503 000 a eae

C. The Ninth Circuit's Complete-Preemption
Analysis Conflicts With That of Other
Circuits. ....:.606 605605 eee

Page

4
af

iii
TABLE OF CITEDAUTHORITIES

Cases

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202
RS i 5S Seid eu Ca cee a eae es

Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073
Si. Co. cUiy s 65a ave bd ses bale

Bldg. Trades Council (San Diego) v. Garmon,
es NEED 6 vb case ee esses ceneeeeas

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987)

See ee €ee eoeeenegeeeceae eee 026 8 6 6'O@ 666888 O88 8468 86 6

Dudley Supermarket, Inc. v. Transamerica Life Ins.
& Ann. Co., 302 F.3d 1 (1st Cir. 2002) ........

Franchise Tax Bd. v. Constr. Laborers Vacation Trust,
i De ce an ecsb ae seweee ome

Gieger v. Unum Life Ins. Co. of Am., 213 F. Supp.
eee re

Guardsmark, Inc. v. Blue Cross & Blue Shield,
169 F. Supp. 2d 794 (W.D. Tenn. 2001) .......

Hull v. Fallon, 188 F.3d 939 (8th Cir. 1999) ......

Kalo v. Moen Inc., 93 F. Supp. 2d 869 (N.D. Ohio
ee en ee

Little v. UNUMProvident Corp., 196 F. Supp. 2d 659
RR eer ne

Page

iv

Cited Authorities

Page
Martin v. Feilen, 965 F.2d 660 (1992) ........... 10
Met. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) ... 2
Pegram v. Herdrich, 530 U.S. 211 (2000) ........ 10
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) .. 4
Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) ... 9
Smith vy. Dunham-Bush, Inc., 959 F.2d 6 (2d Cir.

SE. Seu sdatewkned laces ee eae 6, 7,8
Smith v. Provident Bank, 170 F.3d 609 (6th Cir

SOG cn iae st cdawabe dee cabanas 6,7
Statutes
Employee Retirement Income Security Act of 1974

© FRA, Be BS RERIND cccniscececnces 5
Labor-Management Relations Act * 1947 § 301,

SP a RU + Ho ween iakGh sh ncncineawe 3
WORM. SRDEE ioicevcciucvoss theses 2
Other Authorities
H. Comm. On Epuc. & Lasor, H. Rep. No. 93-533

(1974), reprinted in 1974 U.S.C.C.A.N. 4639 .. 5

l

The Government all but concedes that the Ninth Circuit’s
major premise—that ERISA did not preempt the ESOP
participants’ breach of fiduciary duty claim against the ESOP
fiduciaries—is wrong. Yet the Government argues that the
decision need not be reviewed because its other holding—that
the claim was not completely preempted—is correct.
The Government cites no relevant authority to support its
assertion, and it is mistaken. Both of the Ninth Circuit’s rulings
are wrong, and the issues merit review by this Court.

A. The Government All But Concedes That ERISA
Preempts The Breach Of Fiduciary Duty Claim.

The Government concedes, as it must, that ERISA compels
a plan fiduciary to “act solely in the interests of plan participants
to the extent the fiduciary is making decisions . . . subject to
ERISA’s requirements.” U.S. 12; Pet. 6, 11. ERISA preempts
any state law that would impose different standards on an ERISA
fiduciary’s investment decisions.!

Respondents’ breach of fiduciary duty claim would do just
that. It asserts that the fiduciaries managing the ESOP owed a
state law duty to them, as noteholders, to disapprove the disputed
mergers because they would imperil respondents’ payment on
the notes. However, ERISA instructs fiduciaries that their sole
concern in making investment decisions must be whether a
proposed transaction is in the best interests of a plan and its
participants. Thus, as the Government all but concedes, ERISA
must preempt any state law that would prohibit plan fiduciaries
from approving an investment transaction that their ERISA
fiduciary duties require them to approve, because they find it to
be in the best interests of the plan. U.S. 13-14 (noting conflict

1. Parts of the Government’s brief attack straw men, not contentions
we have ever made. The brief notes that when plan fiduciaries do things
like “investing in securities, leasing property, [or] lending money,”
they “are not free to ignore” generally applicable laws. U.S. 12.
ERISA does not tell plan fiduciaries how to maintain a plan’s real estate
assets or make loans, so it cannot preempt local laws that do. But ERISA
does supply the standards that govern fiduciaries’ investment decisions.

2

with regulation requiring fiduciaries “‘not [to] subordinate
the interests of the participants and beneficiaries in their
retirement income to unrelated objectives’” (quoting 29 C.F.R.
2509.94-2)).

B. ERISA Completely Preempts The Claim As Well.

The ESOP participants could have sued (and did sue) the
ESOP fiduciaries in federal court under ERISA for breaching
their ERISA fiduciary duties. Pet. 9. But the participants also
sued the fiduciaries in state court to challenge the same
investment decisions under a state-law standard. This ERISA
does not allow. Indeed, the whole point of complete preemption
is to override any such attempt by a party with ERISA standing
to challenge ERISA-regulated conduct in state court by suing
in an alternate state-law “capacity.”

Much of the Government’s brief merely recapitulates the
Ninth Circuit’s view that plaintiffs can choose between suing
in their ERISA or their state-law “capacities.” E.g., U.S. 9
(respondents “brought [their] claims in their capacities as former
shareholders . . . and current note-holders’’). Our Petition showed
the error of that view. Pet. 12-16.

The Government also asserts a novel theory, for which it
cites no relevant authority, that ERISA may preempt yet not
completely preempt a plan participant's state law claim for
breach of fiduciary duty against a plan fiduciary. Yet the
Government also recognizes the guiding principle of complete
preemption: ““Congress may so completely pre-empt a particular
area, that any civil complaint raising this select group of claims
is necessarily federal in character.’” U.S. 7 (quoting Met. Life
Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987)). That is precisely °
what we have here: ERISA participants assert state-law claims
challenging ERISA fiduciaries’ investment decisions about plan
assets. Because ERISA exclusively defines what a fiduciary must
do and not do in managing plan assets, there is no more
compelling example of a ‘particular area” Congress has

“so completely pre-empt[ed]. . . .”

3

To support its theory that ERISA might preempt but not
completely preempt such a claim, the Government notes that,
“had the case been brought solely by the 103 [non—ESOP
participants], it clearly would not be completely preempted.”
U.S. 9. That statement is true, but unhelpful. It merely illustrates
the undisputed rule that ERISA completely preempts a claim
only if the plaintiff is a party (participant, beneficiary,
or fiduciary) whom Section 502(a) empowers to bring ERISA
claims. Franchise Tax Bd. v. Constr. Laborers Vacation Trust,
463 U.S. 1, 26-27 (1983) (“FTB”).

The Government also contends that Caterpillar, Inc. v.
Williams, 482 U.S. 386 (1987), supports its theory (U.S. 10);
it dees not. Caterpillar concerned complete preemption under
Section 301 of the Labor-Management Relations Act of 1947
(“LMRA”), which affords federal jurisdiction over any
suit for violation of a collective bargaining agreement (“CBA”).
Section 301 also completely preempts state-law claims; its
preemptive force “is so powerful as to displace entirely any
state cause of action ‘for violation of contracts between an
employer and a labor organization.’ Any such suit is purely a
creature of federal law, notwithstanding the fact that state law
would provide a cause of action in the absence of § 301.”
FTB, 463 U.S. at 23. The force of that preemption is matched
by its focus: the sole touchstone of Section 301 preemption is
whether a state-law claim requires a court to interpret a CBA.
See Caterpillar, 482 U.S. at 394-95; Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 220 (1985).

In Caterpillar, plaintiff employees belonged to a bargaining
unit subject to a CBA; they had previously had managerial jobs
outside the CBA’s scope, under individual employment
contracts. 482 U.S. at 388-90. In suing Caterpillar in state
court for breaching the latter, they avoided relying on the CBA.
Id. at 394-95. But Caterpillar argued that the CBA superseded
their individual contracts, so that their claims required
interpretation of the CBA and were thus completely preempted
by Section 301. /d. at 390.

4

The Court disagreed. It acknowledged that plaintiffs,
as bargaining unit members, had “substantial rights under the
[CBA] and could have brought suit under § 301”; however,
“they chose not to.” Jd. at 395. The claims they did bring, for
breach of individu:ii contracts, did not “substantially depend{]
upon interpretation of the [CBA].” Jd. Caterpillar effectively
holds that Section 301 neither preempted nor completely
preempted the claims.’ It thus does not support a theory that
ERISA might preempt but not completely preempt claims by
plan participants against plan fiduciaries.

In citing Caterpillar, the Government ignores the fact that,
in passing Section 301, Congress occupied only part of the field
of workplace relations. See 482 U.S. at 396 n.10. In passing
ERISA, by contrast, Congress intended to ““establish pension
plan regulation as exclusively a federal concern.’” Pilot Life
Ins. Co. v. Dedeaux, 481 U.S. 41, 46 (1987) (citation omitted).

In fact, within the field of pension-plan regulation, Congress
especially intended to occupy the subfield of fiduciary duties.

2. The Court did note that the National Labor Relations Act
(NLRA) might preempt plaintiffs’ claims without transforming them
into claims arising under federal law and subject to removal.
482 U.S. at 397-98 & n.12. Contrary to the Government’s suggestion
(U.S. 11), that is not an example of a statute preempting yet not
completely preempting a claim brought by a plaintiff with standing to
sue under the statute. Unlike Section 301, which did not completely
preempt or preempt the claims in Caterpillar, none of the NLRA
preemption doctrines there at issue can entail complete preemption and
removal, for the simple reason that state-law claims preempted by the
NLRA cannot be heard in any court, as they concern matters committed
to the jurisdiction of the NLRB. See Bldg. Trades Council (San Diego)
v. Garmon, 359 U.S. 236, 244-45 (1957). There is no such thing as
complete-preemption removal from state court to the NLRB. As for
Section 301, Caterpillar says only that the affirmative defense that the
CBA superseded the individual contracts could not warrant removal,
although resolving that defense would require applying federal law to
interpret the CBA. 482 U.S. at 398-99. In this case, the ESOP fiduciaries
did not raise a defense requiring application of ERISA fiduciary
standards, but showed that the ESOP participants’ purported state-law
claims can actually arise only under ERISA.

5

A primary goal of ERISA was to replace a welter of
inconsistent state trust laws, whose application to pension plans
was uncertain, with a uniform set of strict federal standards.
See H. Comm. On Epuc. & Labor, H. Rep. No. 93-533 (1974),
reprinted in 1974 U.S.C.C.A.N. 4639, at 4641-46, 4649-51.
Congress thus gave federal courts exclusive jurisdiction over
claims for breach of ERISA fiduciary duties, as opposed to the
concurrent jurisdiction it afforded over claims for improper
denial of benefits (28 U.S.C. § 1132(a)), and had afforded in
the LMRA over claims for violations of CBAs (Lueck, 471 U.S.
at 209 n.5).

ERISA thus preempts any claim that would impose state-
law duties on an ERISA fiduciary when deciding how to invest
or manage plan assets. If the claim is made by a proper plaintiff,
ERISA completely preempts it. Nothing in ERISA limits the
scope of that complete preemption like Congress’ desire, in
passing Section 301, to preserve much of the States’ power to
regulate workplace relations.

C. The Ninth Circuit’s Complete-Preemption Analysis
Conflicts With That of Other Circuits.

Our Petition’s main point is that the plaintiffs in the cited
cases had distinct state-law relationships with the defendants
(bank-depositor, employer/promisor-employee/promisee)
at least as colorable as those asserted by the ESOP participants
here (former shareholder—director, noteholder-obligor).
But because those plaintiffs challenged acts done by defendants
as part of their ERISA fiduciary or administrative roles, ERISA
completely preempted their state-law claims, denying them the
right to choose the “capacity” in which to sue.

The Government disagrees, arguing that even if a state-law
claim (1) challenges an “act ... governed solely by ERISA,”
(2) is subject to a preemption defense, and (3) is brought by an
ERISA participant (4) against an ERISA fiduciary, the claim
will escape complete preemption if it is based on “state-law
rights ... the origins of which predated and which remain
independent of the rights [plaintiffs] later acquired as ESOP

6

participants.” U.S. 11. The Government thus sees no circuit split,
arguing that the claims in the cases we cite “arose from ...
relationship[s}] governed by ERISA,” not “pre-existing and
independent state-law duties.” Jd. 17.

This attempt to explain away the circuit split fails.
No Circuit has espoused the Government’s unworkable and
arbitrary “pre-existing and independent rights” rationale, and
the Second Circuit’s Smith v. Dunham-Bush opinion is flatly
inconsistent with it. The Circuits whose opinions we cite rejected
plan participants’ invocation of state-law duties not because the
duties were not “pre-existing and independent,” but because
the defendants did the acts at issue while performing ERISA
fiduciary or administrative functions.

In discussing Smith v. Provident Bank, 170 F.3d 609
(6th Cir. 1999), the Government notes plaintiff's state-law claim
“that a bank had breached a fiduciary duty under state law when
it took stock out of the plaintiff’s ERISA plan account.”
U.S. 17 (citing 170 F.3d at 612). It must then confront the holding
that “[a] claim for breach of fiduciary duty against the fiduciary
of an ERISA plan necessarily presents a federal question.”
170 F.3d at 614. To avoid that holding’s plain import, the
Government simply adds a crucial word, contending the court
“mean(t] only that a claim for breach of an ERISA fiduciary
duty ... necessarily presents a federal question.” U.S. 18.
Its reading is strained, for the very next sentence addresses
“{Plaintiff’s] state-law fiduciary duty claim.” 170 F.3d at 614
(emphasis added). In fact, the entire paragraph concerns claims
for breach of state-law duties that are recharacterized under
ERISA. /d. at 613-14.

~ Even could one read the quoted passage as the Government
urges, the conflict would remain. Provident Bank as a whole
aggressively applies complete preemption to state-law claims
for fiduciary breach. Pet. 20-22. Indeed, the case has already
become a hornbook citation in the Sixth Circuit for an
unqualified rule that ERISA completely preempts state law
claims for breach of fiduciary duty. See Gieger v. Unum Life

Ins. Co. of Am., 213 F. Supp. 2d 813, 815 (N.D. Ohio 2002);
Little v. UNUMProvident Corp., 196 F. Supp. 2d 659, 666, 672
(S.D. Ohio 2002); Guardsmark, Inc. v. Blue Cross & Blue Shield,
169 F. Supp. 2d 794, 802 (W.D. Tenn. 2001); Kalo v. Moen
Inc., 93 F. Supp. 2d 869, 873 (N.D. Ohio 2000).

Nor does anything in Provident Bank suggest that the key
issue is the vintage of the state-law relationship, i.e., whether it
“pre-dated” (U.S. 11) that under ERISA. Nor do the opinions
we cited from the Third, Seventh, or Eighth Circuits mention
this supposedly vital distinction. Even the Ninth Circuit never
suggested that the age of respondents’ state-law rights is what
saved them from preemption. And Smith v. Dunham-Bush, Inc.,
959 F.2d 6 (2d Cir. 1992), squarely refutes any theory that a
“pre-existing and independent rights” exception might
harmonize the cases cited in our Petition. The state-law
relationships in Dunham-Bush, employment and an oral
promise, both predated—the former by decades—Smith’s
participation in the ERISA plan (id. at 7), yet ERISA completely
preempted his claims. The facts of Bartholet v. Reishauer A.G.
(Zurich), 953 F.2d 1073 (7th Cir. 1992) (Easterbrook, J.),
are basically the same.

Viewed in light of the “pre-existing rights” hypothesis,
Dunham-Bush and this case have very similar facts. In each,
plaintiff(s) had economic rights from a decades-long
employment relationship—respondents’ stock, and Smith’s
British pension. Their employers asked them to trade those rights
for a set of new ones including (1) participation in an ERISA
plan and (2) a promise of other funds (respondents’ promissory
notes, and Smith’s promised additional benefits). Each brought
state-law claims for breach of the promise (and in this case,
a penumbral fiduciary relationship); defendants argued that the
claims were completely preempted because they sought to apply
state law to ERISA activities (making fiduciary investment
decisions, and calculating benefits).

The Second Circuit agreed, noting the need for uniform
plan administration, which requires courts to recharacterize

8

under ERISA’s exclusive civil-enforcement scheme any claim
that would apply state law to benefit claims. 959 F.2d at 10-11;
id. at 12 n.5 (noting “particular danger to ERISA’s policy of
uniform regulation should a plan be subject to inconsistent or
conflicting substantive [state] laws’’). The court conceded that
Smith’s state-law relationship had not only predated but Jed to
the ERISA relationship. But the need for uniformity made that
a temporal distinction without a difference: “Although Smith
may have been induced to relocate ... [by] Dunham-Bush’s
unenforceable oral assurance, that does not significantly
distinguish him from other ... plan participants seeking to
supplement their pension plans with orally promised benefits.”
Id. at 10. The facts of the case thus belie the Government’s
contention that “the state-law rights asserted in Dunham-Bush,
unlike those in this case, arose directly from the employee’s
status as a plan participant.” U.S. 19. Smith’s state-law rights
arose not from his status as plan participant, but from his
pre-existing status as employee, and from the employer’s prior
promise.

Nor can the Government’s “pre-existing rights” theory
survive scrutiny on its merits. When plan participants sue in
alternate capacities, using state law to impose on plan
administrators and fiduciaries duties beside those imposed by
ERISA, complete preemption ensures that their claims are
recharacterized under ERISA’s carefully balanced civil-
enforcement scheme and resolved by federal courts experienced
in applying that scheme. This spares plan fiduciaries from having
to satisfy multiple duties when making investment decisions,
and plan administrators from having to balance ERISA and state
law in processing benefit claims.

Complete preemption thus secures the efficiency of uniform
administration and, by minimizing their exposure to liability,
preserves the willingness of employers to form, and individuals
to manage, ERISA plans. A “pre-existing rights” exception
would harm those goals by requiring plan administrators and
fiduciaries to decide, case by case, when participants’ state-law
rights arose sufficiently prior to and independently of their

9

participation in a plan to entitle them to special treatment.
That enterprise would serve no useful purpose, and its costs are
obvious. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 107-08
(1983) (“[t]he administrative impracticality of permitting
mutually exclusive pockets of federal and state jurisdiction
within a plan is apparent”).

Those costs are most acute in cases, like this, that threaten
personal liability for plan fiduciaries. A “pre-existing rights”
exception would burden plan administrators by precluding
uniformity in handling benefit claims, but the resultant problems
could usually be resolved: some participants would receive
greater benefits under state law, but the plan could still function
(if it was not bankrupted). But the problems for plan fiduciaries
in deciding how to invest and manage plan assets would often
be, as in this case, irresolvable.

That is because a fiduciary must make binary investment
choices on behalf of a plan as a whole. If ERISA dictates one
choice, which best serves the interests of all participants gua
participants, but state law dictates the opposite choice with
regard to a subset of participants-with-preexisting-state-law-
rights, the fiduciary faces a dilemma. This case is a fine example:
the ESOP fiduciaries could not approve the disputed mergers
on behalf of the non-noteholder participants and simultaneously
disapprove them on behalf of the noteholder participants.
They could only cause the ESOP to do one thing. Whichever
they chose, they would be personally liable under ERISA or
state law. That outcome is as inequitable for them as it is
unworkable for the plan.

Finally, in trying to harmonize the other cases cited in our
Petition, the Government asserts that the claims therein arose
more “directly” from the ERISA than the state-law relationships.
U.S. 19-20. These passages make no point not made by
respondents and the Ninth Circuit.? The one new opinion the

3. In discussing Hull v. Fallon, 188 F.3d 939 (8th Cir. 1999), the
Government does make a telling aside: “Nor did Hull question the Eighth
(Cont'd)

10

Government cites in fact reinforces our view. See Dudley
Supermarket, Inc. v. Transamerica Life Ins. & Ann. Co.,
302 F.3d 1 (1st Cir. 2002) (ERISA completely preempts claims
against fiduciary investment advisor) (cited in U.S. 8 n.3).
After noting that ERISA would completely preempt any
state law claim that “in fact charged Transamerica with
breach of fiduciary duty while acting as an ERISA fiduciary”
(302 F.3d at 3 (emphasis added)), the court stated its
methodology in terms that squarely contradict the Ninth Circuit’s
approach here: “A court must [determine] whether an entity
acted in a fiduciary capacity with respect to the alleged
wrongdoing not on the basis of a plaintiff’s characterization of
the activity but rather on the basis of the functions the entity
performed and its relationship to the plaintiff.” /d. at 5.

The Ninth and Fifth Circuits’ opinions thus conflict with
those cited in our Petition, which should be granted.

(Cont'd)

Circuit’s prior recognition in Martin v. Feilen, 965 F.2d 660, 667 (1992)
... that fiduciaries of an ESOP have both duties under ERISA and state-
law duties as corporate stockholders.” U.S. 19. This misreads Feilen,
which in fact carefully applies to ESOP fiduciaries the principle of
Pegram v. Herdrich, 530 U.S. 211 (2000): one may act at some times as
an ERISA fiduciary and at others in a different capacity, but each act is
subject to ERISA or to state law, not both. Pet. 13-14. The Feilen
defendants were directors, controlling shareholders, and fiduciaries of
the ESOP of a failed company. 965 F.2d at 662-64. The key issue was
whether their ERISA fiduciary duties applied to their acts as directors
or shareholders. /d. at 665. The Eighth Circuit’s analysis echoes that of
our Petition: after noting that “‘ERISA does not prohibit an employer
from acting in accordance with its interests as employer when not
administering the plan or investing its assets,” it held that ERISA
fiduciary duties “attach only to transactions that involve investing the
ESOP '’s assets or administering the plan.” Id. at 665-66 (citations
omitted; emphases added). In reviewing the record, the court carefully
avoided holding that defendants had had both ERISA and state-law
fiduciary duties in any one transaction. E.g., id. at 666-67.

Respectfully submitted,

JEROME B. FALK, JR.

Counsel of Record
BARBARA A. WINTERS
Douc.Las A. WINTHROP
KEITH KESSLER
Howarp, Rice, NEMEROVSKI,

CANADY, FALK & RABKIN
A PROFESSIONAL CORPORATION

PAuL J. ONDRASIK, JR.
STEPTOE & JOHNSON, LLP

Counsel for Petitioner
Norcal Waste Systems, Inc.

DEBORAH S. BALLATI
KAREN P. KIMMEY
FARELLA, BRAUN & MARTEL

Counsel for Petitioner
Norcal Waste Systems, Inc.
Employee Stock Ownership
Plan and Trust

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1407%3A5. Public record. Not legal advice.