Petition for Writ of Certiorari — Fisher v. Penn Traffic Traffic Co., The (No. 09-188)

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OFFICE OF THE CLERK

IN THE

Supreme Court of the Wnited States

~2><—_>.?____———_-

JOSEPH V. FISHER,

Petitioner,

THE PENN TRAFFIC COMPANY, BYRON E. ALLUMBAUGH, RICHARD

P. BRENNAN, KEVIN P. COLLINS, JAMES A. DEMME, MATTHEW

GLASS, ROBERT HOCKETT, RICHARD D. HOLIHAN, JR., PETER L.

ZURKOW, JOHN DOES Nos. 1-5, BERNADETTE RANDALL-BARBER

AND JANE ROES NOs. 1-5,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DAVID S. PREMINGER

Counsel of Record

KELLER ROHRBACK L.L.P.

770 Broadway, 2nd Floor

New York, New York 10003

(646) 495-6198

Attorneys for Petitioner

QUESTIONS PRESENTED

i. Whether the Court should reconsider its

decision in Massachusetts Mutual Life Insurance Co.

uv. Russell, 473 U.S. 134 (1985), wherein it stated that

Congress intended that relief for a breach of fiduciary

duty pursuant to ERISA § 409(a), 29 U.S.C. §

1109(a), be limited to relief for the affected employee

benefit plan as a whole, which decision, in

conjunction with the lower court’s reading of this

Court’s decisions in Mertens v. Hewitt Associates, 508

U.S. 248 (1993) and Great West Life & Annuity

Assurance Company v. Knudsen, 534 U.S. 204 (2002),

leaves without a remedy an_ individual plan

participant who, because of a breach of fiduciary duty

that was particular to him, lost a plan benefit to

which he was otherwise entitled under the plan’s

terms.

4 Whether this Court’s decisions in Mertens and

Great West bar make-whole relief for breaches of

fiduciary duty under ERISA § 502(a)(3).

3. Whether Congress intended that ERISA

categorically deny individual plan participants and

beneficiaries meaningful make-whole relief against

fiduciaries who breach the duties they assume under

the Act.

TABLE OF CONTENTS

QUESTIONS Fe iva ke scveccccsccccsceees i

TABLE OF Ate ii yea da kacescssesernscccsccess 1V

OPINIONS BER a iaihetcenssvccsvvccccccccees 1

JURISDICTION cp eer eauccisceeesiccsccescsssese 1

RELEVANT © Pir avs cce cc cosesccccscccees 1

STATEMENT OF Fie ee iare snes sscceccccceccscees 2

REASONS FOR GRANTING THE WRIT .............0c0eeeeeeeseeeees 6

I. THE HISTORY OF ERISA LITIGATION

CONCERNING CLAIMS FOR BREACH OF

Pie 6

II. EITHER RUSSELL HAS BEEN WRONGLY

APPLIED OR IT WAS WRONGLY DECIDED .......... 14

A. RUSSELL HAS BEEN WRONGLY

Pe Rg al 14

B. IF PETITIONER HAS NOT STATED A

VIABLE CLAIM UNDER EITHER §

002(aX2) OR § 502(a\(3), THEN

RUSSELL MUST BE OVERRULED............. 20

III. MERTENS AND GREAT-WEST HAVE BEEN

WRONGLY APPLIBD............0---.-.........................0

IV.

THE LACK OF MEANINGFUL INDIVIDUAL

RELIEF UNDER ERISA FOR BREACH OF

FIDUCIARY DUTY IS A PRESSING CONCERN

THAT THIS COURT, OTHER APPELLATE

COURTS, AND SEVERAL PROMINENT

SCHOLARS HAVE REPEATEDLY

PE. kas caskets orc ae 34

I vv visi nccacceseccdaceueeees deer a ee 37

APPENDIX

Circuit Court Opinion (04/02/2009)............ la

District Court Opinion (02/16/2007)............. 6a

Order Denying Petition for Panel Rehearing

(CREE BORE I iy os 555 seeds hcesdcet ee 18a

Complaint (08 /02/2006)............ 0. cccccc eevee 20a

Motion to Dismiss (10/02/2006).................29a

TABLE OF AUTHORITIES

Cases

Aetna Health, Inc. v. Davila, 542 U.S.

200 (2004)......... Rea pe 10a ae oe te ae 13, 36

Aronsen v. Crown Zellerbach, 662 F.2d

ee te FN RED scien csiorccnsescsids svectiosocesecxvecsens 25, 35

Batchelor v. Oak Hill Med. Group, 870

BO LEGG COE CAT. TI) onnicceiscciceccvesseessccnssssecvenss 22

Carey v. Musladin, 549 U.S. 70 (2006)..................... 19

Carson Harbor Vill., Ltd. v. Unocal

Corp., 270 F.3d 863 (9th Cir. 2001).............c0seseee.. 20

Central States, Southeast & Southwest

Areas Pension Fund v. Central

Transport, Inc., 472 U.S. 559 (1985).................066 26

Central Va. Community College v. Katz,

Oe ye. a etic a esese css ksacacatncessseesarnersans 19

Cicio v. Does, 321 F.3d 83 (2d Cir. 2003)..... pa ene 13, 35

Coan v. Kaufman, 457 F.3d 250 (2d Cir.

BE Fi ketone snvhakiondi case c oeaaee eee esna ke Funai ease 16

Dada v. Mukasey, 128 S.Ct. 2307 (2008).................. 20

DiFelice v. AETNA U.S. Healthcare, 346

F.3d 442 (3rd Cir. 2003)

Eichorn v. AT&T Corp., 489 F.3d 590

I RN age pcre acne x uve dcavcoianves 13, 35

Firestone Tire & Rubber Co. v. Bruch,

re ee ce aicnci bees scncaceccvescsdasdsanevesane 10, 32

Great-West Life & Annuity Assurance

Company v. Knudson, 534 U.S. 204

Sci Grated svat ranaessdatanivest:daxcapicdestecssukwakvtsaniad passim

Harris Trust & Sav. Bank v. Salomon

Smith Barney, 530 U.S. 238 (2000).................0..... 12

Kokoszka v. Belford, 417 U.S. 642 (1974)..........0...... 20

Massachusetts Mutual Life Insurance

Company v. Russell, 473 U.S. 134

ST ela eeces hates acs aleudsss cuatucsonaundsviswoverr totes passim

McLeod v. Oregon Lithoprint, Inc., 102

ee ee i, No rvcncixssitcccnscncnasttesinsuscnsdnones 31

Mertens v. Hewitt Associates, 508 U.S.

NE Cs sre tn tances nadicout eoresiieaiieecenisc sanders: passim

Milofsky v. American Airlines, Inc., 404

F.3d 338 (5th Cir. 2005)......... Ma ERAN POND SI ES Pee 16

Nachman v. Pension Benefit Guaranty

Corporation, 446 U.S. 359 (1980).......................08. 21

Parents Involved in Community Schools

v. Seattle School Dist. No. 1, 551 U.S.

701 (2007) (dicta not Dinding) ..................0s0..ccsese0. 19

Rodriguez v. Miller, 499 F.3d 136 (2d

COMP: Binet ).....<..

Shaw v. Delta Air Lines, Inc., 463 U.S.

eae eT cave avenaveser venue 22

Staten Island Rapid Transit Operating

Authority v. Interstate Commerce

Comm., 718 F.2d 533 (2d Cir 1983).................00000 21

United States v. Ron Pair Enterprises,

Bg ee te Be © sacs cneyecascovssecnssccsvnsdececesies 24

Van Natta v. Sara Lee Corp., 489 F.

Supp. 2d 911 (N.D. Iowa June 29,

aria ce Ch sabe rehab esteda takaiavanevdaeweasnde 35

Varity Corp. v. Howe, 516 U.S. 489

(ee Ear uenaate cuvsace counankaineeanecesees 11, 14, 22

Williams v. Taylor, 529 U.S. 362 (2000)................... 19

Statutes

a Os eilh ds ddd cdma ea endesdnaphesdebanin oon ]

SE ee Me EAs, MAIS, cid cscvncecvdecesscccsiesencveveieeas 14

ERISA § 404, 29 U.S.C. § 1104 ................... 4,5, 17, 35

Bees © SO, ZO U.S, S LIOG ........cesveccnsseccocsccssavecses 5

pmo © 408, 29 U.S.C. 9 LIOB ................00000000 passim

Beeeeee © SAL, BO U7 .C. GLIAL ciccccccccscccscsscvccsssccces 7,18

eee & GOs, SO UBC, § G07 oo... nceciccsecscoossvcess passim

eee PE, PW) eN. Bh LOS one cscsiscssovenevanscnssvessees 15

VII

Rules

is ie I re BE os psn pisshacpsenscocasssessacusbentaanaavaaieiat cues D

Regulations

re te eI OEE ke rickascciscsdoisascseceessrsckasctistsaprcesunne 4

Other Authorities

POUCH, © LAW EIRCIIOTIOEY, vice scsiicsecsssecnvavcecescosscesnesssveces 28

Yolleen E. Medill, Resolving the Judicial

Paradox of “Equitable Relief” under

ERISA Section 502(a)(3), 39 J.

Marshall L.. Rev. S27 (ZOOG) .........0cccccsccscssccvsceseenes 35

Dana M. Murr, Fiduciary Status as an

Employer’s Shield: The Perversity of

ERISA Fiduciary Law, 2 U. Pa. J.

Roth, GE GME. Bi, BE CID vaccsscvccssscsecssensecesssesssenes 35

David F. Schmitz: Professor Puts the

2008 Financial Crisis in Historica!

Perspective,

https://quack.whitman.edu/content/ma

gazine/in-their-words/schmnitz ........................0.0065 36

H.R. 9824 (Aug. 2, 1973), 1 Legislative

History of the Employee Retirement

VLLL

H.R. 2 (March 4, 1974), 3 Leg. Hist.

H.R. Rep. No. 93-538 (Oct. 2, 1973) ............seecercoes 29

John H. Langbein, “What ERISA Means

by ‘Equitable’: The Supreme Court’s

Trail of Error in Russell, Mertens, and

Great-West,” 103 Columbia L. Rev

I eee aaedascaevdbe 8, 13, 14, 35

Lynn Truss, Eats, Shoots & Leaves

RINNE SPIE BIE? oicrsccdncececsevescccesocerevessrcenssonsses: 24

Norman Stein, Three and Possibly Four

Lessons About ERISA That We

Should, But Probably Will Not, Learn

from Enron, 76 St. John’s L. Rev. 855

DN og 0 cass a scenaniugnsyonier et 13, 14, 35

Public Health and Aging: Trends in

Aging —United States and Worldwide,

http://www.cdc.gov/mmwr/preview/m

PEVWVETAGENT TINO. ICITT oc. cs cs ccescosccssccnssesccssensees . 36

a Choad S cdaindebaabhindatanasencssa 26

Scott M. Aronson, ERISA's Equitable

Illusion: The Unjust Justice of Section

502(a)(3), 9 Emp. Rts. & Emp. Pol’y J.

center a niradegycaesteias aT unieiioss ubbariecues 13

Webster’s Third New International

oe LG . | RRR an ee rene 26

Treatises

Dan B. Dobbs, Handbook on the Law of

Remedies: Damages -- Equity --

Restitution, 9 2.7, B. Be (hele) covescccscsccescccccceses

Pomeroy, A Treatise on Equity

Jurisprudence (“Pomeroy”), § 158, p.

DAS (OCT OGL. Die were a esc ssnc cnc secscsccescscees

Restatement (Second) of Trusts 170(1)

(JOBO)...:scsacsscccntne ek, |

SUTHERLAND STAT CONST § 47.38.............ccccccceee:

SUTHERLAND STAT CONST § 60.01 ..............

Sutherland, Statutes and Statutory

Construction § 46.05 (5th ed. 1991) ................

rien ae

32, 33

eee 20

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Second Circuit is reported at 319 Fed.

Appx. 34, 2009 U.S. App. LEXIS 6806 (2d Cir. April

2, 2009). The opinion and order of the United States

District Court for the Southern District of New York

is reported at 2007 U.S. Dist. LEXIS 10708 S.D.N_Y.

Feb. 16, 2007).

JURISDICTION

The decision of the United States Court of

Appeals for the Second Circuit, affirming the district

court’s opinion and order dismissing the complaint,

was handed down on April 2, 2009. A timely petition

for rehearing and rehearing en banc was denied on

May 15, 2009. This Court has jurisdiction pursuant

to 28 U.S.C. § 1254(1).

RELEVANT STATUTES

ERISA § 409(a), 29 U.S.C. § 1109(a)

Any person who is a fiduciary with

respect to a plan who breaches any of the

responsibilities, obligations, or duties imposed

upon fiduciaries by this title shall be

personally liable to make good to such plan

any losses to the plan resulting from each such

breach, and to restore to such plan any profits

of such fiduciary which have been made

through use of assets of the plan by the

fiduciary, and shall be subject to such other

equitable or remedial relief as the court may

deem appropriate, including removal of such

fiduciary. A fiduciary may also be removed for

a violation of seciion 411 of this Act

ERISA § 502(a)(2), (3); 29 U.S.C. § 502(a\(2), (3)

(a) Persons empowered to bring a civil action.

A civil action may be brought—

(2) by the Secretary, or by a participant,

beneficiary or fiduciary for appropriate relief

under section 409;

(3) by a participant, beneficiary, or fiduciary

(A) to enjoin any act or practice which violates

any provision of this title or the terms of the

plan, or (B) to obtain other appropriate

equitable relief (i) to redress such violations or

(ii) to enforce any provisions of this title or the

terms of the plan;

STATEMENT OF THE CASE!

Petitioner Joseph V. Fisher (“Petitioner”) is a

former employee of defendant The Penn Traffic

Company (the “Company”). At all times pertinent to

this case, Petitioner was a participant in and

beneficiary of the Penn Trathe Company Cash

Balance Pension Plan (the “Plan”), with a vested

right to benefits from the Plan. Pursuant to the

' The tactual allegations set fort herein are excerpted from

Petitioner's district court complaint a copy of which is contained

in the Appendix

provisions of the Plan, Petitioner filed an application

for benefits on August 15, 2003, electing to receive

his benefits in a lump sum.

Although applications for lump sums were

typically decided within two weeks, it was not until

October 17, 2003 that the Administrative Committee

of the Plan (“the Committee”) denied Petitioner's

application for a lump sum, but approved payments

in the form of a monthly annuity should Petitioner so

elect. Petitioner did not so elect but appealed the

denial of the lump sum. Petitioner never received a

response to his appeal.

Although the Committee had sole authority

under the Plan to make benefit determinations, it did

not do so. Instead, the Company’s Board of Directors

(the “Board”) made, and the Committee adopted, the

decision to deny Petitioner the lump sum he was

entitled to under the Plan’s terms

The Plan was underfunded when Petitioner

applied for benefits, and the Company had been

informed that it might want to terminate the Plan so

that the Pension Benefit Insurance Company

(“PBGC”) would assume the Plan’s assets and

liabilities. Nevertheless, at the time of his

application and thereafter the Plan had adequate

resources to pay Petitioner his lump sum benefit

At its September 29, 20083 meeting, the Board

passed aé_= resolution to terminate the Plan

Nonetheless, the Committee processed other Plan

participants applications for benefits, including lump

sum benefits, and caused the Plan to pay such

benefits, both before and after the BKoard’s decision to

terminate the Plan.

Upon the filing of an application for to

terminate a plan, the PBGC does not immediately

assume responsibility for the plan. Typically there

are negotiations and even litigation over issues

including the appropriate date of termination. Often,

the PBGC pursues a claim against a plan sponsor,

such as the Company, for a plan’s unfunded liability.

The PBGC, which is prohibited from paying

benefits in the form of a lump sum even if a pian

provides for such a benefit payment, see 29 C.F.R. §

4022.7(a), did eventually assume the Plan’s assets

and liabilities. Hence, Petitioner cannot receive a

lump sum benefit from the Plan and may only be

entitled to a lower annuity than provided for by the

terms of the Plan if his annuity is in excess of PBGC

limits.

Petitioner filed suit pursuant to ERISA §

D02(e), 29 U.S.C. § 1132(e), which grants district

courts jurisdiction over claims brought under ERISA

§ 502(a), 29 U.S.C. § 11382(a). Petitioner alleged that

the fiduciary defendants had breached their duties by

failing to pay him a lump sum benefit. Fiduciaries

are required to comply with the terms of the plan for

which they act as fiduciaries. ERISA § 404(a)(1)(D),

29 US.C. § 1104(a\1)(D). Because the Plan

fiduciaries failed to pay the lump sum benefit as

required by the Plan’s terms, they breached this

duty.

Furthermore, Petitioner asserted that the

fiduciaries denied his lump sum benefit in order to

protect the Company’s financial position, and thus

violated ERISA § 404(a)(1), 29 U.S.C.§ 1104(a)(1),

which requires fiduciaries to “discharge [their] duties

solely in the interest of the participants and

beneficiaries.” Finally, Petitioner alleged that the

Company (including the Board) engaged in a

prohibited transaction by “deal[ing) with the assets of

the [P]lan in [its] own interest or for [its] own

account,” see ERISA § 406(b)(1), 29 U.S.C. §

1106(b)(1), and that the defendant fiduciaries

engaged in a prohibited transaction by acting “in [a]

transaction involving the [P]lan on behalf of a party

(the Company) whose interests are adverse to the

interests of the ([Pllan[’s] participants and

beneficiaries.” Jd. at (b)(2).

Petitioner has been damaged because he may

no longer receive his benefits in a lump sum and

because any annuity he receives from the PBGC may

be lower than his accrued benefit because of the

limits on PBGC payments.

Defendants moved to dismiss the Complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6),

arguing that the relief requested was not available

under ERISA §§ 502(a)X2) or (3). Defendants,

therefore, asserted that, although Petitioner pled a

valid claim for breaches of fiduciary duty and validly

asserted damage resulting from those breaches, the

courts were powerless to grant him any relief. The

District Court accepted Defendants’ argument and

dismissed the claims and the Second Circuit affirmed

in a summary disposition, both based on decisions of

this Court at issue herein.

REASONS FOR GRANTING THE WRIT

I. THE HISTORY OF ERISA LITIGATION

CONCERNING CLAIMS FOR BREACH

OF FIDUCIARY DUTY

Congress established four claims for relief for

participants and beneficiaries under ERISA § 502(a),

29 U.S.C::

§ 11382. Civil enforcement

(a) Persons empowered to bring a civil action.

A civil action may be brought--

(1) by a participant or beneficiary--

(A) for the relief provided for in subsection

(B) to recover benefits due to him under the

terms of his plan, to enforce his rights under

the terms of the plan, or to clarify his rights to

future benefits under the terms of the plan;

(2) by the Secretary, or by a participant,

beneficiary or fiduciary for appropriate relief

? ERISA § 502(c), 29 U.S.C. § 1132(c), authorizes a suit against

3 g

a plan administrator who has failed to provide information upon

the participant’s written request

under section 1109 of this title [ERISA § 409];

(3) by a participant, beneficiary, or fiduciary

(A) to enjoin any act or practice which violates

any provision of this title or the terms of the

plan, or (B) to obtain other appropriate

equitable relief (i) to redress such violations or

(ii) to enforce any provisions of this title or the

terms of the plan;

ERISA § 409(a), in turn, provides:

§ 1109. Liability for breach of fiduciary

duty

(a) Any person who is a fiduciary with

respect to a plan who breaches any of

the responsibilities, obligations, or

duties imposed upon fiduciaries by this

title shall be personally liable to make

good to such plan any losses to the plan

resulting from each such breach, and to

restore to such plan any profits of such

fiduciary which have been’ made

through use of assets of the plan by the

fiduciary, and shall be subject to such

other equitable or remedial relief as the

court may deem appropriate, including

removal of such fiduciary. A fiduciary

may also be removed for a violation of

section 1111 of this title [ERISA § 411].

Thus, it would appear that a participant is

authorized to sue under ERISA § 502(a)(2), 29 U.S.C.

§ 1132(a\2), inter alia, for “such other equitable or

remedial relief as the court may deem appropriate” in

the event that he is damaged by a breach of fiduciary

duty.

In Massachusetts Mutual Life Insurance

Company v. Russell, 473 U.S. 134 (1985) (“Russell”),

the respondent had her disability benefits terminated

for a period of time and then restored. While she

eventually received all benefits due her, she sued for

a breach of fiduciary duty under ERISA § 502(a)(2)

seeking extracontractual and punitive damages for

the delay in receipt of benefits. Despite the language

in ERISA § 409(a) permitting the award of “such

other equitable or remedial relief as the court may

deem appropriate,” the Court, in dicta, found § 409 to

focus om relief for the plan itself rather than for

participants who have been individually harmed by a

breach of fiduciary duty. “Petitioner contends,

however, that recovery for a violation of § 409 inurcs

to the benefit of the plan as a whole. We find this

contention supported by the text of § 409... .” Id. at

140. The Court then held that Congress did not

intend to provide “a cause of action for

extracontractual damages caused by improper or

untimely processing of benefit claims.” /d. at 148.

Justices Brennan, White, Marshall and

Blackmun filed a concurring opinion.? Importantly,

the concurring opinion states:

’ Professor John H. Langbein refers to this concurring opinion

as “functionally a dissent.” John H. Langbein, “What ERISA

Means by ‘Equitable’: The Supreme Court's Trail of Error in

Russell, Mertens, and Great-West,” 103 Columbia L. Rev 1317,

1340 (“Langbein”).

[tIhis case presents a single, narrow question:

whether the § 409 “appropriate relief” referred

to in § 502 (a)(2) includes individual recovery

by a participant or beneficiary of

extracontractual damages for breach of

fiduciary duty.

[Slince § 502 (a)(8) already provides

participants and beneficiaries with “other

appropriate equitable relief . . . to redress

[ERISA] violations,” there is no reason to

construe § 409 expansively in order to bring

these individuals under the penumbra of

“equitable or remedial relief.”

Id. at 149-150 (Brennan, J., concurring). Thus, the

concurring opinion emphasized two important points:

(1) that the majority holding is limited to precluding

relief for extracontractual damages under § 409; and,

(2) that the relief available under § 502(a)(3) is as

expansive as the relief available under § 409(a)’s

provision for “equitable or remedial relief.”4

+ An unfortunate aspect of Russell is that the respondent did

not, in the alternative, seek a remedy under § 502(a)(3). Thus,

the majority opinion in Russell did not address ERISA’s

remedial scheme as a whole. This piecemeal approach has, in

Plaintiffs cpinion, as well as in Professor Langbein’s, see

Langbein at 1340, led to the current situation, unintended by

Coagress, in which it is argued, almost always successfully, that

breaches of fiduciary duty which cause monetary damage to one

or more participants but not to the plan as a whole must be

dismissed

Mertens v. Hewitt Associates, 508 U.S. 248

(1993), is a 5 to 4 decision in which the Court was

confronted with the narrow issue of whether

compensatory damages were an available remedy in

an action for knowing participation (by a

nonfiduciary) in a breach of fiduciary duty under §

502(a)(3). The Court held that compensatory

damages were not a § 502(a)(3) remedy because they

are “legal” as opposed to “equitable relief,” the sole

form of relief provided by § 502(a)(3). In doing so, the

Court decided that construing § 502(a)(3) to permit

compensatory damages would effectively disregard

the distinction between “equitable or remedial relief”

in § 409(a) and “equitable relief” in § 502(a)(3). Id. at

258.

Justice White, in his dissenting opinion,

stated:

it is entirely reasonable in my view to construe

§ 502(a)(3)’s reference to “appropriate

equitable relief’ to encompass what was

equity's routine remedy for such breaches -- a

compensatory monetary award calculated to

make the victims whole, a remedy that was

available against both ffiduciaries and

participating nonfiduciaries. Construing the

statute in this manner also avoids the anomaly

of interpreting ERISA so as to leave those

Congress set out to protect -- the participants

in ERISA-governed’ plans~ and _ their

beneficiaries -- with “less protection .. . than

they enjoyed before ERISA was enacted.”

Firestone [Tire & Rubber Co. v. Bruch], 489

U.S. [101] at 114 [(1989)]. Indeed, this is

precisely how four Justices of this Court read §

502(a)(3)’s reference to “appropriate equitable

relief’ in Russell.

Id. at 266-267 (White, J., dissenting).

Because Mertens concerned a claim against a

nonfiduciary, it left open two questions: (1) whether

claims for breaches of fiduciary duties that harm one

or more but not all participants and beneficiaries

(and therefore might not seek relief for “the plan as a

whole”) are actionable under § 502(a)(3); and, (2) if

so, what relief is available?

The first question was answered in the

affirmative by Varity Corp. v. Howe, 516 U.S. 489,

507-515 (1996). In holding that such claims are

actionable, the Court stated “[wJe are not aware of

any ERISA-related purpose that denial of a remedy

would serve. Rather, we believe that granting a

remedy is consistent with the literal language of the

statute, the Act’s purposes, and pre-existing trust

law.” Id. at 515.

The Court has not yet decided the second

question. The closest it has come is its decision in

Great-West Life & Annuity Assurance Company v.

Knudson, 534 U.S. 204 (2002). Great-West involved a

subrogation claim, not a breach of fiduciary duty

claim.

In Great-West, the respondent had _ been

injured in an automobile accident and had received

medical insurance payments from an ERISA plan

insured by the petitioner. The plan had a provision

that it had “the right to recover from the [beneficiary]

any payment for benefits paid by the Plan that the

beneficiary is entitled to recover from a third party.”

Id. at 207. The respondent had in fact secured such a

recovery but the proceeds of the settlement had been

apportioned principally to a special needs trust and

attorney’s fees.

The Court, in another 5 to 4 decision, citing its

own decision in Mertens at 256 wherein it limited

relief under § 502(a)(3) to “those categories of relief

that were typically available in equity,” 534 U.S. at

210 (emphasis in original), refined what it meant by

“typically available in equity” to be: injunctions (but

not for the payment of money), mandamus and

equitable restitution (but not legal restitution). Jd. at

214-216. Ultimately, the crux of Great-West is the

Court’s holding that the petitioner could only recover

money under § 502(a)(3) if the money had been

obtained

“through means or under circumstances which

render it unconscientious for the holder of the

legal title to retain and enjoy the beneficial

interest, equity impresses a constructive trust

on the property thus acqut,ed in favor of the

one who is truly and equitably entitled to the

Same .. . .” (emphasis added) (internal

quotation marks and citations omitted){]

id. at 215-216 ‘citing Harris Trust & Sav. Bank v.

Salomon Smith Barney, 530 U.S. 238, 250-251

(2000)), and “the money ... identified as belonging in

good conscience to the [petitioner] could clearly be

traced to particular funds ... in the [respondent’s]

possession.” Id. at 213 (citations omitted). Because

no funds belonging to petitioner were in the

respondent’s possession, the Court denied relief

under § 502(a)(3). While neither Mertens nor Great-

West involved a breach of fiduciary duty claim, they

have been uniformly cited as precluding monetary

relief in such cases. See, e.g., Eichorn v. AT&T Corp.,

489 F.3d 590 (8rd Cir. 2007); Cicio v. Does, 321 F.3d

83 (2d Cir. 2003); DiFelice v. AETNA U.S.

Healthcare, 346 F.3d 442 (3rd Cir. 2003).

Read together, Russell, Mertens and Great-

West “yield[] a host of situations in which persons

adversely affected by ERISA-proscribed wrongdoing

cannot gain make-whole monetary relief.” Aetna

Health Inc., 542 U.S. at 222 (Ginsburg, J.,

concurring). Because of this effect, a “rising

chorus” of judges and scholars have called for

reexamination of ERISA’s “unjust and increasingly

tangled” enforcement scheme. /d. (citing DiFelice);

Scott M. Aronson, ERISA's Equitable Illusion: The

Unjust Justice of Section 502(a)(3), 9 Emp. Rts. &

Emp. Pol’y J. 247 (2005); Langbein, supra; Norman

Stein, Three and Possibly Four Lessons About ERISA

That We Should, But Probably Will Not, Learn from

Enron, 76 St. John’s L. Rev. 855 (2002). Indeed, as

one member of this Court recently noted: “fresh

consideration of the availability of ... damages under

§ 502(a)(3) is plainly in order.” Aetna Health Inc., 542

U.S. at 223 (Ginsburg, J., concurring).

The basis of Defendants’ Motion to Dismiss

herein was that Russell and Great. West bar any relief

to Petitioner. It is Petitioner’s contention that in

enacting ERISA Congress did not intend to, nor did

it, so completely insulate fiduciaries that they would

have no liability to a participant whose benefits were

forfeited because of a fiduciary’s breach of his duties

and that make-whole monetary relief is available in

such circumstances.

The decision below upholding dismissal of

Petitioner's complaint violates the fundamental

maxim that “Equity suffers not a Right to be without

a Remedy,” Richard Francis, Maxims of Equity 24

(London 1728) (cited in Langbein), and so defies

ERISA’s text and purpose by “let|ting] wrongdoing

fiduciaries avoid meaningful liability for intentional

harms.” Stein, supra, at 874. Because pension law

in general, and remedies in particular, are important

topics in an aging’ society facing nearly

unprecedented economic difficulties, this Court

should ensure that ERISA fulfills its purpose “to

protect...the interests of participants in employee

benefit plans and their beneficiaries.” ERISA § 2(b),

29 U.S.C. § 1001(b).

Il. EITHER RUSSELL HAS BEEN WRONGLY

APPLIED OR IT WAS WRONGLY

DECIDED

A. Russell has been Wrongly Applied

As Point I, ante, demonstrates, the current

state of the law would leave ERISA participants and

beneficiaries such as Petitioner in an untenable

position: damaged by a breach of fiduciary duty but

without a remedy. But, as Point I also outlines, and

is more specifically discussed post, the decisions in

Mertens, Varity, and Great-West establish that

Russell is not as limiting as has been thought.

Section 409(a) may, obviously, be parsed so as

to read in part: “Any person who is a fiduciary with

respect to a plan who breaches any of the

responsibilities, obligations, or duties imposed upon

fiduciaries by this title . . . shall be subject to such

other equitable or remedial relief as the court may

deem appropriate[.]” This should, in and of itself,

have confirmed that Russell stated a claim.

The Court in Russell nonetheless concluded

that § 409(a) barred Russell’s claim, finding that the

language of § 409(a) indicated that Congress was

focusing on relief for the plan as a whole as opposed

to relief to an individual participant. Russell, 473

U.S. at 139 and 141 (footnotes omitted).

The Court then held that “|t/he six carefully

integrated civil enforcement provisions found in §

502(a) of the statute as finally enacted ... provide

strong evidence that Congress did not intend to

authorize other remedies that it simply forgot to

incorporate expressly.” Russell, 473 U.S. at 146

(emphasis in_ original). “In contrast to the

repeatedly emphasized purpose to protect

contractually defined benefits, there is a_ stark

‘If the Plan herein had not been terminated, Petitioner would

have sued under ERISA § 502(a) 1B) for “benefits due to him

under the terms of the plan.” Because the Plan has been

terminated, and because all state laws claims are preempted,

see ERISA § 514(a), 29 U.S.C. § 1144(a), Petitioner may only

recover under § 502(a\(2) or § 5O2aN3)

EEE eGOor

absence -- in the statute itself and in its legislative

history -- of any reference to an intention to authorize

the recovery of extracontractual damages. Zd. at 148

(footnote omitted).

What is clear from Russell is that the Court

was drawing a distinction between a participant’s

right to sue for benefits which the Court viewed as

sacrosanct, and a participant’s right to sue for

extracontractual damages suffered because of a delay

in receipt of benefits, the only issue actually before

the Court. The concurring opinion of Justice

Brennan, joined in by Justices White, Marshall and

Blackman, emphasizes this point as well as making

clear that nothing in the Court’s opinion forecloses

extracontractual damages from being awarded to a

plan under § 502(a)(2), Russell, 473 U.S. at 151

(Brennan, J., concurring), or to a participant under §

502(aX(3). Id. at 157. Thus, it is clear from both the

majority and concurring opinions that the Court

believed that ERISA provided adequate protection so

that a participant or beneficiary could not lose a plan

benefit because of a breach of fiduciary duty.

Russell has been cited routinely for the

proposition that it is available only for claims that

seek relief for the plan as a whole, regardless of

whether the claim is for extracontractual damages or,

as here, a plan benefit which the plaintiff would have

received but for a fiduciary breach. See, e.g., Coan v.

Kaufman, 457 F.3d 250, 262 (2d Cir. 2006); Milofsky

v. American Alrlines, Inc., 404 F.3d 338, 342-3 (5th

Cir. 2005). And, while it has been widely argued that

Great- West, in conjunction with Russell, forecloses

any relief in such circumstances, Great-West has, in

fact, effectively altered the import generally ascribed

to Russell.

The majority opinion in Great-West quotes

Mertens, 508 U.S. at 261, for the proposition that

“vague notions of a statute’s “basic purpose” are

nonetheless inadequate to overcome the words of its

text regarding the specific issue under

consideration.” Great-West, 534 U.S. at 221. Thus,

ERISA is to be interpreted literally. As such, the

Court’s determination in Russell that § 409(a) should

not be read literally because of Congress’ focus on a

fiduciary’s obligation to the plan must be reexamined

in light of a literal reading of § 409(a), as follows:

& Any person who is a fiduciary with

respect to a plan who breaches any of the

responsibilities, obligations, or duties imposed upon

fiduciaries by this title shall be personally liable to

make good to such plan any losses to the plan

resulting from each such breach; and

2 Any person who is a fiduciary with

respect to a plan who breaches any of the

responsibilities, obligations, or duties imposed upon

fiduciaries by this title shall be personally liabie to

restore to such plan any profits of such fiduciary

which have been made through use of assets of the

plan by the fiduciary; and

3. Any person who is a fiduciary with

respect to a plan who breaches any of the

responsibilities, obligations, or duties imposed upon

fiduciaries by this title® shall be subject to such other

equitable or remedial relief as the court may deem

appropriate, including removal of such fiduciary.

4. A fiduciary may also be removed for a

violation of section 1111 of this title [ERISA § 411].

While this is the reading of § 409(a) that was

rejected by the Court in Russell, given Great-West’s

admonition that one is to be guided only by the words

of the statute and Russell’s careful distinction

between claims for extracontractual damages and

claims for benefits under a plan, there can be no

doubt that Russell is limited to a holding that a claim

for extracontractual damages not on behalf of a plan

as a whole is not “equitable or remedial relief” which

a “court may deem appropriate” under § 409(a).

The concurring opinion in Russell makes this

clear. “This case presents a single, narrow question:

whether the § 409 ‘appropriate relief referred to in §

502(a)(2) includes individual recovery by a

participant or beneficiary of extracontractual

damages for breach of fiduciary duty.” Jd. at 149

(Brennan, J., concurring). Thus, to the extent courts

have extended Russell’s reach to claims for plan

benefits lost due to a fiduciary breach, they have

One of the duties imposed on fiduciaries is to act “in

accordance with the documents and instruments governing the

plan ....” ERISA § 404(a 14D), 29 U.S.C. § 1104(a\1)(D). This

obviously requires fiduciaries to pay benefits due under the

plan. Defendants’ failure to do so here was a violation of this

provision. Thus, any “notion” that ERISA’s fiduciary

protections do not run to individuals, but only to plans, is

incorrect.

relied on dicta. Id. at 150-151. Any language that

reaches beyond that “narrow battlefield,” Mertens,

508 U.S. at 255, is mere dicta, not binding precedent.

See Parents Involved in Community Schools v. Seattle

School Dist. No. 1, 551 U.S. 701 (2007) (dicta not

binding) (citing Central Va. Community College v.

Katz, 546 U.S. 356, 363 (2006)). The notion that the

dicta in Russell supported the rejection of a claim for

benefits has now been dispelled by Great-West.

In Carey v. Musladin, 549 U.S. 70 (2006), the

Court held that “clearly established federal law”

refers to holdings, not dicta. Jd. at 654, citing

Williams v. Taylor, 529 U.S. 362, 412 (2000). In

deciding Musladin, “the Court gave the narrowest

possible reading to its holding[{) in Williams.”

Rodriguez v. Miller, 499 F.3d 136, 140 (2d Cir. 2007).

“Leading by example, Musladin admonishes

courts to read the Supreme Court’s holdings

narrowly and to disregard as dicta for habeas

purposes much of the underlying logic and rationale

of the high court’s decisions.” Rodriguez at 140.

However, “holding” can have only one meaning for

both habeas and all other purposes.

Accordingly, the holding in Russell stands only

for the proposition that an individual damaged by the

improper disruption of disability benefits is entitled

to neither extracontractual nor punitive damages

under ERISA § 409. Russell should not, therefore,

impede this Court from finding that Petitioner has

stated a viable claim for relief.

B. If Petitioner has not Stated a Viable

Claim under either &§ 502(a)(2) or §

502(a)(3), then Russell Must be Overruled

It is a_ settled principle of statutory

interpretation that, “[i]n reading a statute, the Court

must not ‘look merely to a particular clause,’ but

consider ‘in connection with it the whole statute.”

Dada v. Mukasey, 128 S.Ct. 2307 (2008) (citing

Kokoszka v. Belford, 417 U.S. 642, 650 (1974)). When

applied to ERISA’s enforcement provisions, this rule

clearly demonstrates that the Act authorizes a

remedy for any breach of fiduciary duty, and that

such relief should include make-whole monetary

remedies for individual participants.

No statutory provision is written in a vacuum.

Complex regulatory statutes, in particular,

often create a web -- or, in the case of

CERCLA, perhaps a maze -- of sections,

subsections, definitions, exceptions, defenses,

and administrative provisions. Thus, we

examine the statute as a whole, including its

purpose and various provisions.

Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d

863, 880 (9th Cir. 2001) (internal citations omitted).

See also Sutherland, Statutes and Statutory

Construction (“Sutherland”) § 46 05 (5th ed. 1991) (a

statute must be considered as a whole, not just the

particular section in a vacuum,. There can be no

doubt that ERISA is a “complex regulatory statute . .

of sections, subsections, definitions, exceptions,

defenses, and administrative provisions.” Jd. See

also Russell, 437 U.S. at 146, wherein the Court

described ERISA as having an “interlocking,

interrelated, and interdependent remedial scheme,

which is in turn part of a ‘comprehensive and

reticulated statute. Nachman v. Pension Benefit

Guaranty Corporation, 446 U.S. 359, 361 (1980).”

Thus, in construing § 409(a), the Court should not

look at that section “in a vacuum” but, rather, should

construe it in light of ERISA’s entire “Civil

Enforcement” scheme, see ERISA § 502(a), 29 U.S.C.

§ 1132, in conjunction with the remainder of the

“comprehensive and reticulated statute.” This

analysis should, of course, be informed by ERISA’s

remedial purposes. Staten Island Rapid Transit

Operating Authority v. Interstate Commerce Comm.,

718 F.2d 533, 541 (2d Cir 1983) (“remedial legislation

should be interpreted liberally”); Sutherland § 60.01

(“Remedial statutes are to be liberally construed to

suppress the evil and advance the remedy.”).

In ERISA’s statement of policy, Congress made

it clear that the purpose of ERISA was “to protect...

the interests of participants in employee benefit

plans and their beneficiaries, .. . and by providing for

appropriate remedies, sanctions, and ready access to

the Federal courts.”?’ ERISA § 2(b), 29 US.C. §

1001{b). In order to assure these goals are met,

courts, in construing ERISA, must remember that it

“is remedial legislation which should be liberally

7 Indeed, early on it was stated that “(t]he primary purpose of

the bill (that became ERISA) is the protection of individual

pension rights ..... H.R. Rep. No. 93-533 (10/2/73), 2 Legislative

History of the Employee Retirement Income Security Act of

1974, p.2348 (G.P_.O. 1976) (“Leg. Hist.”)

construed in favor of protecting participants in

employee benefit plans.” Batchelor v. Oak Hill Med.

Group, 870 F.2d 1446, 1449 (9th Cir. 1989); see also

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90 (1983)

(ERISA is “designed to promote the interests of

employees and their beneficiaries in employee benefit

plans”).

However, the majority in Russell, by its own

admission, did not consider the statute as a whole;

rather it interpreted § 409(a) ina vacuum. “Because

respondent relies entirely on § 409(a), and expressly

disclaims reliance on § 502(a)\(3), we have no occasion

to consider whether any other provision of ERISA

authorizes recovery of extra contractual damages. Tr.

of Oral Arg. 31-32.” Russell, 473 U.S. at 139 n.5.8

In Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101 (1989), the Court addressed the question of

the standard of review that a court shoulda adopt

when deciding a claim for denial of benefits under §

502(a\1)(B), 29 U.S.C. § 1132(a)(1)(B). The Court

stated that “[a]Jdopting Firestone’s reading of ERISA

would require us to impose a standard of review that

would afford less protection to employees and their

beneficiaries than they enjoyed before ERISA was

enacted.” Jd. at 113-114. Because make-whole relief

was available at common law to remedy a breach ef

* This footnote does, however, confirm that the Court’s decision

was limited to the denial of extracontractual relief under §

409(a) and that the Court has never addressed the question of a

claim for breach of fiduciary duty for lost benefits under either §

409 a) or § 502(a)(3) or, for that matter, a claim for breach of

fiduciary duty for extracontractual damages under § 502(a)(3),

other than in the concurring opinion in Russell.

fiduciary duty (“we believe that granting a remedy is

consistent with . . . pre-existing trust law[,]” Varity

Corp. v. Howe, 516 U.S. 489, 515 (1996)), denying

Petitioner a remedy herein would afford him less

protection than he would have enjoyed before ERISA

was enacted.

In reaching the conclusion that section 409 is

limited to relief to the plan, this Court noted that

the phrase “and shall be subject to such other

equitable or remedial relief as the court may deem

appropriate” must be read in the context of the

earlier portion of section 409 which the Court found

characterizes the fiduciary relationship as one “with

respect to a plan” and speaks of the potential

liability of a fiduciary to make good “to the plan”

any losses “to the plan.” Reading these sections as a

whole, this Court concluded that the phrase “other

equitable or remedial relief’ must be read as limited

to such relief for the plan. 473 U.S. at 141.

It is far more plausible and consistent with

cannons of statutory construction to read section

409 in the following manner: “Any person who is a

fiduciary with respect to a plan who breaches any of

the responsibilities, obligations, or duties imposed

upon fiduciaries by this title . . . shall be subject to

such other equitable or remedial relief as the court

may deem appropriate.” Under tis reading of

section 409, equitable and remedial relief are not

limited to relief to the plan, but are also available to

participants and beneficiaries who have been

individually harmed by a fiduciary breach.

This reading of section 409 is supported by its

grammatical structure. Grammatically, the three

clauses of § 409(a) are separated by commas and by

the word “and.” If Congress had intended a list of

parallel remedies, as suggested by the opinion in

Russell, it would have followed the ordinary

grammatical rules for setting out a list, setting off

the first clause with a comma, and listing the final

“equitable and remedial relief” clause after the word

“and” with no comma at all. “The rule here is that

the comma is correct if it can be replaced by the

word and or or.” Lynn Truss, Eats, Shoots & Leaves

(Gotham Book 2003) p. 83 (italics in the original).

But Congress adopted a structure that is utterly

idiosyncratic when it instead separated each clause

of section 409 by both a comma and the conjunction

“and.” This indicates that Congress was setting

forth a list of discrete remedies, not in any way

dependent on the others. For example, in United

States v. Ron Pair Enterprises, Inc., 489 U.S. 235,

241 (1989), this Court construed the phrase

“interest on such claim, and any reasonable fees,

costs, or charges provided for under the agreement

under which such claim arose” as allowing interest

on a claim independent of any agreement providing

for reasonable fees, costs or charges. This Court

stated:

This reading is also mandated by _ the

grammatical structure of the statute. The

phrase ‘interest on such claim’ is set aside by

commas, and separated from the reference to

fees, costs, and charges by the conjunctive

words ‘and any. As a result, the phrase

‘interest on such claim’ stands independent of

the language that follows ... The language

and punctuation Congress used cannot be read

in any other way. By the plain language of the

statute, the types of remedies are distinct.

Similarly, the language and punctuation of

section 409 mandate that the phrase “and shall be

subject to such other equitable and remedial relief”

provides for remedies that are distinct from the

previous remedies outlined in section 409. Unlike

the language describing the recovery of losses to the

plan or restoration to such plan of any profits made

by a fiduciary, the language authorizing equitable

and remedial relief makes no reference to a plan.

Thus, section 409 must be construed to create more

general remedies for fiduciary breaches than for

remedies only to the plan.

To read section 409 as limited to relief “to the

plan as a whole” effectively adds language to section

409(a) to say “and shall be subject to such other

equitable or remedial relief for the benefit of the

plan as a whole as the court may deem

appropriate.” See Aronsen v. Crown Zellerbach, 662

F.2d 584, 590 (9th Cir. 1981) (“It is consistent with

the general principle of statutory construction that

a court should not add language to an unambiguous

statute absent a manifest error in drafting or

unresolvable inconsistency.”); see also

SUTHERLAND STAT CONST § 47.38 (Insertion of

words in a statute is permissible but “it is utterly

Nor does the heading of § 409 which is simply “liability for a Breach of

Fiduciary duty,” not Liability to a Plan for Breach of Fiduciary Duty

unwarranted unless the omission from... the text

is plain.”).

‘Section 409’s reference to a fiduciary’s duties

“with respect to a plan” does not, as Russell suggests,

indicate that Congress intended for section 409 relief

to be limited to relief to the plan. Instead, that

phrase is more naturally read to extend the fiduciary

requirements, and thus the remedies for breach of

those requirements, to all of a fiduciary’s plan-related

functions. See Webster’s Third New International

Dictionary 1934 (1986) (equating “respect to” with

“regard or reference to” and “concerned with”). This

Court has recognized that Congress intended for

ERISA’s fiduciary provisions to codify the strict

duties of loyalty and care that traditionally applied to

trustees under the common law of trusts. Central

States, Southeast & Southwest Areas Pension Fund v.

Central Transport, Inc., 472 U.S. 559, 570-571 (1985).

Although these provisions apply to a fiduciary’s

actions in managing the plan and its assets, under

ERISA, as under the common law, the trustee’s

duties run directly to the beneficiary. Russell, 473

U.S. 134, 142 (1985) (“the fiduciary obligations of

plan administrators are to serve the interest of the

participants and beneficiaries and, specifically, to

provide them with the benefits authorized by the

plan”); see also 473 U.S. at 152 (Brennan, J.,

concurring) (“[I|t is black-letter trust law that

fiduciaries owe strict duties running directly to

beneficiaries in the administration and payment of

trust benefits.”); Restatement (Second) of Trusts

170(1), at 384 (1959) (“The trustee is under a duty to

the beneficiary to administer the trust solely in the

interest of the beneficiary.”). There is, therefore, no

reason to read the phrase “with respect to a plan” as

supporting an interpretation of section 409 that

excludes relief to participants and beneficiaries. !°

The phrase “equitable and remedial relief”

should thus be construed to include make-whole

relief to individuals who are harmed by fiduciary

breaches. Because Russell held that section 409 did

not provide a remedy for a participant alleging a

fiduciary breach with respect to a benefit denial, this

Court did not determine the meaning of the phrase

“other equitable or remedial relief as the court may

deem appropriate.” Indeed, this Court expressly left

open “any question concerning the extent to which §

409 may authorize recovery of extracontractual

compensatory or punitive damages from a fiduciary

by a plan.” 473 U.S. at 144 n. 12 (emphasis in

original). Accordingly, if this Court determines that

§§ 409 and 502(a)(2) authorize a suit for individual

relief, it wiil still be for a court to decide what relief is

“appropriate” under the circumstances of each case.

Although this Court determined in Mertens v.

Hewitt Associates, 508 U.S. 248 (1993), that

10 The committee reports stressed the importance of giving

participants the ability to protect their own interests as well as

the interest of the plan. See S. Rep. No. 127, p. 29 (“without

standards by which a participant can measure the fiduciary’s

conduct ... he is not equipped to safeguard either his own

rights or the plan asscts”); id. at p. 27 (“the safeguarding effect

of the fiduciary responsibility section will operate efficiently

only if the fiduciaries are aware that the details of their

dealings will be open to inspection, and that individual

participants and beneficiaries will be armed with enough

information to enforce their own rights as well as the

obligations owed by the fiduciary to the plan in general”).

equitable relief does not include make-whole

monetary relief (at least against a non-fiduciary),

this Court should hold that make-whole relief is a

form of “remedial relief” available under section

409. “Remedial relief” is not defined by ERISA, nor

is the term commonly found in statutes or case law.

“Remedial relief’ must mean something other than

“equitable relief,” which the statute expressly

authorizes, and it must mean something other than

“legal relief,” which Congress expressly omitted

from section 502. “Remedial” is defined in Black’s

Law Dictionary as:

1. Affording or providing a remedy; providing

the means of obtaining redress <a remedial

action>. 2. Intended to correct, remove, or

lessen a wrong, fault or defect <a remedial

statute>. 3. Of or relating to a means of

enforcing an_ existing substantive right;

procedural <a remedial right>.

Although Black’s Law Dictionary does not define

“remedial relief,” it does define “remedial law as:

1. A law providing a means to enforce rights

or redress injuries. 2. A law passed to correct

or modify an existing law; especially a law that

gives a party a new and different remedy when

the existing remedy, if any, is inadequate.

“Remedial relief” in section 409 should, therefore, be

broadly construed as relief that corrects a wrong or

redresses an injury, which should encompass make-

whole relief to a participant or beneficiary who

suffers an injury as a result of a fiduciary breach.

Such a reading would be consistent with the statute’s

primary purpose of protecting participants and

beneficiaries, but would exclude such legal relief as

was designed to punish or deter rather than to

correct a wrong, notably punitive damages.!!

In light of Russell’s flawed statutory analysis

as well as subsequent Supreme Court cases it can

only be concluded that participants and beneficiaries

who have been individually damaged by breaches of

fiduciary duty may be granted an “appropriate”

remedy under ERISA §§ 409(a) and 502(a)(2) and

Russell should be overruled. !2

11 To be sure, the legislative history supports the view that in

using the word “remedial” Congress meant “legal.” Contrary to

this Court’s description of ERISA’s legislative history in Russell

at 145-146, it is clear that the “equitable or remedial” language

adopted by the conference committee and passed by Congress

was derived from prior House versions of the bill which became

ERISA. See H.R. 9824 (Aug. 2, 1973), 1 Leg. Hist. 731; H.R. 2

(Oct. 2, 1973), 2 Leg. Hist. 2288; H.R. 2 (March 4, 1974), 3 Leg.

Hist. 3952. Thus, the statement in H. R. Rep. No. 93-533 (Oct

2, 1973) that bill was authorizing “the full range of legal and

equitable remedies available in both state and federal courts,”

quoted by the Court in Russell, supra, referred to the version of

I1.R. 2 of the same date which utilized the language “equitable

or remedial” This was the language that was adopted in

conference and from the legislative history it is apparent that

both Houses understood the bill to provide the “full range of

legal and equitable remedies.” Nevertheless, Congress’s failure

to use the word “legal” in the statute itself supports the view

that “remedial” means something other than “equitable” but

less than “legal.”

2 All of the arguments set forth above concerning interpretation

of statutes provide support for Petitioner's contention that

Great. West informs Russell by requiring a literal construction of

§ 409% a)

Ill. MERTENS AND GREAT-WEST HAVE

BEEN WRONGLY APPLIED

Mertens involved a claim by a plan for

compensatory damages under § 502(a)(3) against a

nonfiduciary for participation in a fiduciary breach.

Thus, the question presented in Mertens was

“whether ERISA authorizes suits for money damages

against nonfiduciaries who knowingly participate in

a fiduciary’s breach of fiduciary duty.” Mertens, 508

U.S. at 251; id. at 249-50; Great-West, 534 U.S. at

215. The Court began its analysis by acknowledging

that “at common law, the courts of equity had

exclusive jurisdiction over virtually all actions by

beneficiaries for breach of trust” and that “money

damages were available in those courts against the

trustee” as well as against third parties. Mertens, 508

U.S. at 256.

After citing Pomeroy on concurrent

jurisdiction, the Court concluded that “[slince all

relief available for breach of trust could be obtained

from a court of equity, limiting the sort of relief

available under § 502(a)(3) to ‘equitable relief in the

sense of ‘whatever relief a common-law court of

equity could provide in such a case’ would limit the

relief not at all.” Jd. at 257. As a result, the Court

held that “equitable relief’ under § 502(a)(3) did not

include money damages against nonfiduciaries who

participated in a breach of trust. In so concluding,

the Court noted that “falll that ERISA has

eliminated .. . is the common law’s joint and several

liability, for all direct and consequential damages

suffered by the plan, on the part of persons who had

no real power to control what the plan did” — that is,

nonfiduciaries. Jd. at 262.

Notwithstanding the Mertens Court’s careful

distinction between nonfiduciaries and fiduciaries,

courts after Mertens have stated that whether the

defendant is a fiduciary or a nonfiduciary does not

affect whether monetary relief may constitute

appropriate equitable relief under § 502(a)\(3). See,

e.g., McLeod v. Oregon Lithoprint, Inc., 102 F.3d 376,

378 (9th Cir. 1996). This is inaccurate. First, as noted

above, the Mertens Court premised its holding on the

defendants’ status as nonfiduciaries. Therefore, to

the extent that any court held that the status of the

defendants did not affect the question before the

Mertens Court, they were wrong. Second, and more

importantly, the relief available in equity against

breaching fiduciaries was not a remedy at law,

because the remedies of a _ beneficiary in that

situation were exclusively equitable. Thus, while it

is beyond dispute that equity courts had the power to

award monetary relief to make a beneficiary whole

for breach of trust, this remedy was not borrowed

from the law courts. Rather, it originated in equity

and depended on the status of the defendant because

it arose out of the fiduciary relationship.

Likewise, the lower courts have misapplied

Great-West. Great-West addressed the question

whether § 502(a)(3) authorized an action against a

plan beneficiary — that is, a nonfiduciary — to recover

benefits paid to the beneficiary. 534 U.S. at 206

The Court rejected the argument that this relief was

equitable on the facts of the case because (1) equity

rarely decreed “specific performance of a contract to

transfer funds,” id. at 211; (2) restitution at equity

was limited to imposition of a constructive trust on

specifically identifiable funds in the possession of the

defendant, id. at 214; and (3) a trustee’s power to

offset money owed against a beneficiary’s interest did

not authorize an equitable cause of action to recover

payment from other moneys. Jd. at 219-20. None of

this has anything to do with a trustee’s liability in

equity to make a beneficiary whole for a breach of

trust.

In cases within equity’s exclusive jurisdiction,

arising out of express trusts, equity courts awarded

remedies that in a non-trust case might be viewed as

legal in nature: “It often happens that the final relief

to be obtained by the cestui que trust consists in the

recovery of money. This remedy the courts of equity

will always decree when necessary.” Pomeroy, A

Treatise on Equity Jurisprudence (“Pomeroy”), § 158,

p. 215 (5th ed. 1941). According to Pomeroy, a trust

beneficiary “has the following equitable remedies:

‘The beneficiary of a trust can maintain a suit... to

compel the trustee to redress a breach of trust.” Zd.

at § 1080, p. 229, n.15 (quoting Restatement of

Trusts, § 199) (emphasis added). ‘The trustee’s

liability on such a claim “is always sufficient for the

complete indemnification and compensation of the

beneficiary.” Id. at p. 229. Thus, by definition, a

remedy decreed in favor of a beneficiary against a

breaching trustee was a non-legal remedy, because it

came within the exclusive jurisdiction of equity, and

law courts.

However, equity courts not only had exclusive

equity jurisdiction, but also exercised jurisdiction

concurrent with the law courts. Id. at § 181, p. 257.

Concurrent jurisdiction a'lowed equity courts to

adjudicate mixed equitable and legal matters as a

single case. Jd. This principle is known as the

“clean-up doctrine.” Dan B. Dobbs, Handbook on the

Law of Remedies: Damages -- Equity -- Restitution, §

2.7, p. 83 (1973) (citing Pomeroy, §§ 231-42).

It was exactly assertion by Pomeroy regarding

the equitable clean-up doctrine that the Court in

Mertens quoted in explaining that at common law,

“there were many situations — not limited to those

involving enforcement of a trust — in which an equity

court could ‘establish purely legal rights and grant

legal remedies which would otherwise be beyond the

scope of its authority.” Mertens, 508 U.S. at 256

(quoting Pomeroy, § 181, p. 257); Great-West, 534

U.S. at 210 (stating that Mertens “rejected a reading

of the statute that would extend the relief obtainable

under § 502(a)(3) to whatever relief a court of equity

is empowered to provide in the particular case at

issue (which could include legal remedies that would

otherwise be beyond the scope of the equity court’s

”

authority).”).

Thus, Mertens and Great-West exclude from §

502(aX(3) any remedies borrowed from law courts

pursuant to the clean-up doctrine. Remedies decreed

against breaching fiduciaries, however, originated in

and were exclusive to equity. There were no such

remedies to be borrowed from the law courts, because

the law courts lacked the power to grant any remedy

for a breach of trust due to the equitable nature of

3 4

the fiduciary relationship. Restatement (Second) of

Trusts, §§ 2, 197 (1959).

Given the lower courts’ incorrect application of

this Court’s decisions, Petitioner is without a remedy

- neither remedies borrowed from the law courts

(Mertens) nor remedies specific to trust law (Great-

West) were “typically available in equity,” making

non-injunctive “appropriate equitable relief” under §

502(a)(3) against a fiduciary a null set, or merely

duplicative of the equitable relief available against a

fiduciary under §§ 409(a) and 502(a)(2) which would

make no sense. This cannot be the law. Like a

constructive trust against a nonfiduciary, make-

whole monetary relief against a breaching fiduciary

was typically available in equity. Hence, the lower

courts have misapplied this Court’s decisions in

Mertens and Great-West and impermissibly narrowed

the scope of relief available under § 502(a)(3).

IV. THE LACK OF MEANINGFUL

INDIVIDUAL RELIEF UNDER

ERISA FOR BREACH OF

FIDUCIARY DUTY IS A PRESSING

CONCERN THAT THIS COURT,

OTHER APPELLATE COURTS,

AND SEVERAL PROMINENT

SCHOLARS HAVE REPEATEDLY

ADDRESSED.

Immediately after Great-West, judges and

scholars alike began to criticize the impact of this

Court's decisions on ERISA’'s remedial scheme. They

have continued to do so since. These often colorful,

always pointed, critiques focus on the fundamental

injustice that Russell, Mertens, and Great-West

wrought. See, eg., DiFelice v. AETN®. U.S.

Healthcare, 346 F.3d 442, 454 (8rd Cir. 2003)

(Becker, J., concurring) (describing ERISA’s remedial

scheme as a “Serbonian bog wherein judges are

forced to don logical blinders and split the linguistic

atom to decide even the most routine cases”). They

lament the fact that two 5-4 decisions (Mertens and

Great-West), and one unanimous decision with a

four-Justice “functional dissent,” Langbein, supra, at

1340, deny plan participants and beneficiaries a

make-whole remedy for breach of fiduciary duty.

They point out that this result flouts both justice and

ERISA, disregarding Congress’s intent to create a

meaningfully enforceable duty, meant to _ be

performed “solely in the interest of participants and

beneficiaries.” ERISA § 404(a), 29 U.S.C. 1104(a); see

Eichorn v. AT&T Corp., 489 F.3d 590, 591-94 (3rd

Cir. May 31, 2007) (Ambro, C.J., concurring in denial

of rehearing en banc); Cicio v. Vytra Healthcare, 321

F.3d 83, 106 (2d Cir. 2002), (Calabresi, C.J.,

dissenting); Van Natta v. Sara Lee Corp., 439 F.

Supp. 2d 911 (N.D. Iowa June 29, 2006); see also

Colleen E. Medill, Resolving the Judicial Paradox of

“Equitable Relief’? under ERISA Section 502(a)(3), 39

J. Marshall L. Rev. 827 (2006) (“The preferred

approach, advocated by this Article, is for the

Supreme Court itself to resolve the judicial paradox

of “equitable” relief under Section 502(a)(3).”);

Aronson, supra, Langbein, supra; Stein, supra; Dana

M. Muir, Fiduciary Status as an Employer's Shield:

The Perversity of ERISA Fiduciary Law, 2 U. Pa. J.

Lab. & Emp. L. 391 (2000).

This Country’s population is aging. Indeed,

according to the Center for Disease Control, “[t]he

median age of the world’s population is increasing

because of a decline in fertility and a 20-year

increase in the average life span during the second

half of the 20th century .... In the United States, the

proportion of the population aged [over] 65 years is

projected to increase from 12.4% in 2000 to 19.6% in

2030.” Public Health and Aging: Trends in Aging —

United States and Worldwide,

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm52

06a2.htm (last visited July 13, 2009). Furthermore,

the United States is in the midst of a nearly

unprecedented financial crisis. Not since 1929 has

this Nation faced economic difficulties as severe as

those of the past year. See David F. Schmitz:

Professor Puts the 2008 Financial Crisis 1n Historical

Perspective,

https://quack.whitman.edu/content/magazine/in-

their-words/schmitz (last visited July 13, 2009). This

atmosphere of financial uncertainty, combined with

the increasing age of the population, has the

potential to produce disastrous effects on thousands

of Americans’ retirement savings. It is more

important than ever that pension plan participants

and beneficiaries have adequate remedies for

breaches of fiduciary duty that cause them to lose

some or all of their retirement funds.

The “rising ...chorus” has_ reached its

crescendo; it is time for this court to “revisit what is

an unjust and increasingly tangled ERISA regime.”

Aetna Health Inc., 542 U.S. at 222, (Ginsburg, J.,

concurring).

CONCLUSION

For the above and_ foregoing’ reasons,

Petitioner respectfully requests that the Petition be

granted and that a writ of certiorari issue to the

United States Court of Appeals for the Second

Circuit.

Respectfully submitted,

DAVID S. PREMINGER

KELLER ROHRBACK L.L.P.

770 Broadway, Second Floor

New York, NY 10003

(646) 495-6198

Attorneys for Petitioner

Joseph V. Fisher

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE

PRECEDENTIAL EFFECT. CITATION TO SUM-

MARY ORDERS FILED AFTER JANUARY 1, 2007,

IS PERMITTED AND IS GOVERNED BY THIS

COURT’S LOCAL RULE 32.1 AND FEDERAL

RULE OF APPELLATE PROCEDURE 32.1. INA

BRIEF OR OTHER PAPER IN WHICH A LITI-

GANT CITES A SUMMARY ORDER, IN EACH

PARAGRAPH IN WHICH A CITATION APPEARS,

AT LEAST ONE CITATION MUST EITHER BE

TO THE FEDERAL APPENDIX OR BE ACCOM-

PANIED BY THE NOTATION: “(SUMMARY

ORDER)” UNLESS THE SUMMARY ORDER IS

AVAILABLE IN AN ELECTRONIC DATABASE

WHICH IS PUBLICLY ACCESSIBLE WITHOUT

PAYMENT OF FEE (SUCH AS THE DATABASE

AVAILABLE AT HTTP://WWW.CA2.USCOURTS.

GOV), THE PARTY CITING THE SUMMARY

ORDER MUST FILE AND SERVE A COPY OF

THAT SUMMARY ORDER TOGETHER WITH THE

PAPER IN WHICH THE SUMMARY ORDER IS

CITED. IF NO COPY IS SERVED BY REASON OF

THE AVAILABILITY OF THE ORDER ON SUCH

A DATABASE, THE CITATION MUST INCLUDE

REFERENCE TO THAT DATABASE AND THE

DOCKET NUMBER OF THE CASE IN WHICH

THE ORDER WAS ENTERED.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York, on the 2nd day

of April, two thousard nine.

PRESENT:

HON. AMALYA L. KEARSE,

HON. ROBERT D. SACK,

HON. PAUL J. KELLY, JR.,’

Circuit Judges.

No. 07-1100-ev

JOSEPH V. FISHER,

Plaintiff-Appeilant,

THE PENN TRAFFIC COMPANY, BYRONE E. ALLUM-

BAUGH, RICHARD P. BRENNAN, KEVIN P. COLLINS,

JAMES A. DEMME, ATTHEW GLASS, ROBERT HOCKETT,

RICHARD D. HOLIHAN JR., PETER L. ZURKOW, JOHN

DOES, Nos 1-5. BERNADETTE RANDALL-BARBER, JANE

ROES, Nos. 1-5,

Defendants-Appellees.

' The Honorable Paul .l. Kelly, Jr, of the ''nited States

Court of Appeals for the Tenth Circuit, sitting by designation

Appearing for Appellant:

David S. Preminger,

Rosen Preminger & Bloom

Appearing for Appellee:

William H. O’Brien,

Cooley Godward Kronish LLP

(Jeffrey W. Lang, of counsel),

New York, NY

Appeal from a judgment of the United States Dis-

trict Court for the Southern District of New York

(Harold Baer, Jr., Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the

District Court be, and it hereby is, AFFIRMED.

Plaintiff Joseph Fisher appeals from a judgment of

the United States District Court for the Southern

District of New York based on its order of February

16, 2007, granting the defendants’ motion to dismiss

the case pursuant to Federal Rule of Civil Procedure

12(b) (6). We assume the parties’ familiarity with the

facts and procedural history of the case, and the

issues on appeal.

This litigation arises from the denial of the request

of the plaintiff, a participant in a cash balance

retirement plan, to receive his benefits in a lump

sum. The plaintiff contends that the defendants

breached their fiduciary duties under the Employee

Retirement Income Security Act of 1974 (“ERISA”),

29 U.S.C. § 1001 et seq. He therefore seeks equitable

or remedial relief under ERISA § 502 (a) (2), 29

U.S.C.§ 11382 (a) (2), and equitable relief under

ERISA § 502(a) (3), 29 U.S.C. § 1132(a) (3).

The district court correctly concluded that the

plaintiff failed to state a claim under section 502 (a)

(2), which allows parties to seek relief under ERISA

§ 409, 29 U.S.C. § 1109. The Supreme Court has held

that “Congress did not intend [section 409] to autho-

rize any relief except for the plan itself.” Mas-

sachusetts Mut. Life Ins. Co. v. Russell, 473 U.S.

134, 144 (1985); see also Coan v. Kaufman, 457 F.3d

250, 257 (2d Cir. 2006). Because Fisher seeks relief

for himself as an individual, rather then on behalf of

all or any part of the plan, he cannot bring a claim

under section 502 (a)(2). “[Section] 502 (a) (2) does

not provide a remedy for individual injuries distinct

from plan injuries.” LaRue v. DeWolff, Boberqd &

Associates, Inc., 128 S. Ct. 1020, 1026 (2008). Fisher

argues that the Supreme Court's decision in LaRue

nonetheless clarified the scope of relief available

under section 502(a) (2) and that in light of LaRue’s

holding, we should reconsider the interpretation we

gave that section in Coan v. Kaufman. We conclude

that LaRue is inapposite here. LaRue explained that

a participant in a defined contribution plan may

maintain a claim for relief under section 502 (a) (2)

if a fiduciary breach impaired the value of plan

assets in the participant’s individual account. See

LaRue, 1288S. Ct. at 1026. Such harms are of the type

contemplated by the statute’s draftsmen, because

they affect the plan. See id. at 1025. Here, however,

the plan was a cash balance plan that did not involve

individual accounts of the type at issue in LaRue. lt

is now defunct. Fisher seeks a lump sum payment

for himself. Fisher's claim therefore cannot be con-

strued as benefitting the plan.

The district court also correctly dismissed the

plaintiff's claim under section 502(a) (3), which pro-

vides for equitable relief. Fisher seeks monetary

damages, but contends that his claim is an equitable

one because it involves a suit against a fiduciary,

and such suits were, historically, within the exclu-

sive jurisdiction of the courts of equity. Section 502

(a) (3) requires that both “the basis for the claim

and the nature of the recovery sought be equitable.”

Coan, 457 F.3d at 264 (alteration and internal quo-

tation marks omitted; emphasis in original). The

plaintiff must theretore seek “a category of relief

that was typically available in equity.’ Id. (alter-

ations and internal quotation marks omitted). Mon-

etary damages are not such a category. See Great-West

Life & Annuity Insurance Co. v. Knudson, 534 U.S.

204, 221 (2002) (“[Llegal relief - the imposition of

personal liability. . . for a contractual obligation to

pay money” is not recoverable under section

502(a)(3).).

For the foregoing reasons, the judgment of the

District Court is hereby AFFIRMED.

FOR THE COURT:

Catherine O'Hagan Wolfe,

Clerk of the Court

By:

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

06 Civ. 5848 (HB)

JOSEPH FISHER,

Plaintiff,

-against—

THE PENN TRAFFIC COMPANY ET AL.,

Defendants.

OPINION & ORDER

Hon. HAROLD BAER, JR., District Judge:

Joseph Fisher (“Fisher” or “Plaintiff"), has brought

the instant action pursuant to §§ 502(a)(2) and

(a)(3) of the Employee Retirement Income Security

Act of 1974, as amended (“ERISA”), 29 U.S.C.A

$$ 132(a)(2) and (a)(3) (West 2007). Plaintiff alleges

that his former employer, the Penn Traffic Company

(“Penn Traffic” or the “Company”), members of the

Board of Directors Byron E. Allurmbaugh, Richard P.

Brennan, Kevin P. Collins, James A. Demme, Matthew

Glass, Robert Hockett, Richard D. Holihan and Peter

L. Zurkow (collectively, the “Board”), and the

Administrative Committee of the Plan, including

member Bernadette Randall-Barber, (the “Commit-

tee”) (collectively “Defendants”) breached their

fiduciary duty toward him in their refusal to pay a

lump sum benefit as a participant in the Penn Traf-

fic Cash Balance Pension Plan (the “Plan”). Defen-

dants have moved to dismiss the case pursuant to

Rule 12(b)(6) for failure to state a claim. For the

reasons set forth helow, the motion to dismiss this

claim is GRANTED.

I. FACTUAL BACKGROUND

The following facts are taken from Plaintiff's Com-

plaint as true for purposes of reviewing Defendants’

motion to dismiss. See Allen v. WestPoint-Pepperell,

Inc., 945 F.2d 40, 44 (2d Cir. 1991). Plaintiff is a for-

mer employee of Penn Traffic and “participant”! in

their cash balance plan. He resigned in early August

2003, and on August 15, 2003, pursuant to the terms

of the Plan, filed an application for a lump sum

retirement benefit. Compl. 94 9-10. On September 29,

2003, the Board passed a resolution to terminate the

Plan, but continued to process and pay benefits to

plan participants. /d. 422. The Plan's assets and lia-

bilities were subsequently assumed by the Pension

Benefit Guaranty Corporation (“PBGC”). /d. 925. On

October 17, 2003, the Committee informed Plaintiff

that his request for a lump sum benefit payment was

ERISA defines “participant” as “any employee or former

employee of an employer. . . who is or may become eligible to

receive a benefit of any type from an employee benefit plan.” 29

U.S.C.A. § 1002 (7) (West 2007). See Coan v. Kaufman, 457 F.3d

250, 255 (2d Cir. 2006) (discussing the parameters of “partici-

pant” standing). The parties do not dispute Plaintiff's standing

as a Plan “participant.”

denied but that he was eligible to receive a monthly

annuity. Plaintiff declined to receive the monthly

annuity. /d. 4 11.

Thereafter, on July 31, 2006, Plaintiff filed the

instant action and stated three claims for relief.

First, Plaintiff alleges that Defendants breached

their fiduciary duties imposed by ERISA § 1104(a)(1)

when it denied his application for a lump sum ben-

efit . Jd. 26-27) and seeks relief pursuant to ERISA

§ 502(a)(2), 29 U.S.C. § 1132(a)(2). Second, premised

on the same allegations, Plaintiff seeks relief under

ERISA § 502(a)(3), 29 U.S.C §1132(a)(3). Third,

Plaintiff alleges that Defendants Penn Traffic and its

Board, when it denied his lump sum application, vio-

lated ERISA §§ 406 (b)(1) and (b)(2), 29 U.S.C.

§ 1106 (b)(1) and (b)(2) (Jd. 99, 26-27), and seeks

relief under ERISA §§ 502(a)(2) and (a2)(3), 29 U.S.C.

§ 1132(a)(2) and (a)(3). Plaintiff seeks monetary

damages in the amount of his lump sum benefit. /d.

at 8), a declaration that the Defendants breached its

fiduciary duty and the amount of money to which he

is entitled (Jd. at 7), and attorneys fees and costs.

Id. at 8.

Il. STANDARD OF REVIEW

Pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure, the movant must establish that the

plaintiff has failed to “state a claim upon which

relief can be granted.” FED. R. Civ. P. 12(b)(6). In

ruling on a Rule 12(b)(6) motion, this Court must

construe all factual allegations in the complaint in

favor of the non-moving party. See Krimstock v.

Kelly, 306 F.3d 40, 47-48 (2d Cir. 2002). The Court's

consideration is normally limited to facts alleged in

the complaint, documents appended to the com-

plaint or incorporated in the complaint by reference,

and to matters of which judicial notice may be

taken. Allen, 945 F.2d at 44. A motion to dismiss

should not be granted “unless it appears beyond

doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to

relief.” Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir.

2004) (quoting McEachin v. McGuinnis, 357 F.3d

197, 200 (2d Cir. 2004)).

Ili. DISCUSSION

Defendants move to dismiss on the grounds that

Plaintiff has failed to state a claim under ERISA

§§ 502(a)(2) and (a)(3), 29 U.S.C.A. §§ 1182 (a)(2)

and (a)(3) (West 2007) (“ERISA §§ 502(a)(2) and

(a)(3)").

I will address cach argument in turn.

A. Relief Under §$ 502(a)(2)

It is well established that plan participants may

bring actions against plan fiduciaries for breaches of

fiduciary duty. See ERISA §$§ 409 and 502(a)(2); Mas-

sachusetts Mutual Life Ins. Co. v. Russell, 473 U.S.

134 (1985). Plaintiff brings this action pursuant. to

ERISA § 502(a)(2), which authorizes four classes of

party-plaintiffs—the Secretary of Labor, a partici-

pant, beneficiary, or fiduciary—to bring a civil

action. ERISA § 409 provides, in relevant part:

(a) Any person who is a fiduciary with

respect to a plan who breaches any of the

responsibilities, obligations, or duties

imposed upon fiduciaries by this subchapter

10a

shall be personally liable to make good to

such plan any losses to the plan resulting

from each such breach, and to restore to

such plan any profits of such fiduciary

which have been made through use of

assets of the plan by the fiduciary, and shall

be subject to such other equitable or reme-

dial relief as the court may deem appropri-

ate, including removal of such fiduciary.

29 U.S.C.A. § 1109 (“ERISA § 409”) (emphasis addec ).

In Massachusetts Mutual Life Ins. Co. v. Russell,

473 U.S. 1384 (1985), a beneficiary of an employee

benefit plan filed a claim for improper processing of

her disability benefits. Although Plaintiff was paid

all of her benefits under the plan, she brought suit

for extracontractual damages due to the injury she

allegedly suffered from the plan administrator's

improper refusal to pay her disability benefits. The

question presented to the Supreme Court was

whether ERISA § 502(a)(2) allowed a plan fiduciary

to be held personally liable to a plan participant or

beneficiary for damages. Justice Stevens, writing for

a unanimous Court,* held that ERISA § 409, read in

its entirety, refers to the relationship between the

fiduciary and the plan, and more specifically, to the

potential liability of the fiduciary to the plan. /d. at

140. In other words, the Court held that there is no

private right of action for compensatory or punitive

relief by an individual participant or beneficiary

under ERISA § 502(a)(2). Nor may the final phrase in

the section (“shall be subject to such other equitable

or remedial relief as the court may deem appropri-

Justice Brennan, joined by White, Marshall, and Black-

mun, submitted a concurrence.

lla

ate”) be interpreted to enlarge that liability.’ Jd. at

140-41.

Defendants maintain that the Supreme Court’s

decision in Russell bars Plaintiffs claim for indi-

vidual benefits because he seeks damages for his

benefit alone and fails to allege any loss to the plan.

Plaintiff responds that Russell has been applied too

broadly and ought not be operative in a case such as

this where plaintiff seeks recovery of benefits from

a plan.

Plaintiff contends that the holding in Russell is

fact-specific, distinguishable, and should be limited

to the proposition that ertracontractual damages

that inure to the benefit of the individual as opposed

to the plan are not “equitable or remedial relief” as

the language is used in § 502(a)(2). Pl.’s Mem. in

Opp'n to Defs’ Mot. to Dismiss at 8 (“What is clear

from Russell is that tne Court was drawing a dis-

tinction between a participant’s right to sue for ben-

efits, which the Court viewed as sacrosanct, and a

participant’s right to suc for extracontractual dam-

ages suffered because of a denial of benefits, the

only issue before the Court.”) In support of his posi-

tion, Plaintiff points to Justice Brennan’s concur-

rence which emphasizes that Russell “presents a

single, narrow question: whether the § 409 ‘appro-

priate relief’ referred to in § 502(a)(2) includes indi-

vidual recovery by a participant or beneficiary of

extracontractual damages for breach of fiduciary

duty.” Russell, 473 U.S. at 149 (Brennan, J., concur-

ring). Further, Plaintiff argues (based on cannons of

In so ruling, the Court explicitly left open the question as

to whether extracontractual damages were available under any

other provision of ERISA, including § 502(a)(3). Russell, 473 U.S

at 139, n.d.

12a

statutory construction) that had the Court in Russell

properly construed the provisions at issue within

ERISA’s broader civil enforcement scheme as well as

its overarching remedial purpose, it would have

reached a different result.

While creative, Plaintiff’s arguments cannot defeat

the plain language in the statute and what we find in

the legislative history of § 502(a)(2) (and § 409)‘

First, ERISA §§ 502(a)(2) and 409 authorize plan

participants to bring suit in a representative capac-

ity on behalf of the plan, against a fiduciary of the

plan to remedy that fiduciary’s mismanagement of

the plan’s assets, and restore to such plan those

losses suffered by the plan asa whole. See Russell,

473 at 144 (“The entire text of § 409 persuades us

that Congress did not intend that section to autho-

rize any relief except for the plan itself.”); Coan v.

Kaufman, 457 F.3d 250, 257 (2d Cir. 2006) (stating

that such claims for breach of fiduciary duty may

not be made for individual relief but must be

brought in a representative capacity on behalf of the

plan) (quoting Russell, 473 U.S. at 142 n.9); and Lee

v. Burkhart, 991 F.2d 1004, 1009 (2d Cir. 1993) (hold-

ing that Russell “bars plaintiffs from suing under

§ 502(a)(2) because plaintiffs are seeking benefits

on their own behalf, not on behalf of the Plan.” ).

Further, the legislative history of ERISA §§ 409

and 502(a)(2) supports the position “that actions for

breach of fiduciary duty be brought in a represen-

tative capacity on behalf of the plan as a whole.”

Russell, 473 U.S. at 141 n.9. See, e.g., 120 CONG.

Plaintiff recognizes that even if this Court agrees with

the proposition that the holding in Russell has been misapplied

or was wrongly decided, it is “powerless to overrule it.” Pl.’s

Mem. in Opp’n to Defs’ Mot. to Dismiss at 7 n.6.

13a

Rec. H29196-97 (1974). The legislative history

“makes it abundantly clear that its draftsmen were

primarily concerned with the possible misuse of

plan assets and with remedies that would protect

the entire plan, rather than the rights of an individ-

ual beneficiary.” Russell, 473 U.S. at 141. Plaintiff in

this case seeks relief under ERISA §§ 502(a)(2) and

409 for his own benefit and not in a representative

capacity on behalf of the Plan, and therefore, he

fails to state a cognizable claim under ERISA

§ 502(a)(2).

B. Relief Available Under § 502(a)(3)

The Supreme Court and this Circuit have also pro-

vided substantial guidance with respect to Plaintiffs

second claim under ERISA § 502(a)(3). ERISA

§ 502(a)(3) provides that a civil action may be

brought

by a participant, beneficiary, or fiduciary

(A) to enjoin any act or practice which vio-

lates any provision of this subchapter or the

terms of the plan, or (B) to obtain other

appropriate equitable relief (i) to redress

such violations or (ii) to enforce any pro-

visions of this subchapter or the terms of

the plan.

29 U.S.C.A. § 1132 (West 2007).

In Mertens v. Hewitt Assocs., 508 U.S. 248 (1993),

the Court considered whether former employees

could bring suit against the plan’s actuary, a non-

fiduciary, who they alleged knowingly participated

in the fiduciary’s breach of duty under ERISA

§ 502(a)(3). The plaintiffs argued that the non-fidu-

ciary was liable to the plan under ERISA § 502(a)(3)(B)

l4a

which provides for “other equitable relief.” The

Court found that plaintiffs did not “seek a remedy

traditionally viewed as ‘equitable,’ such as injunc-

tion or restitution” but, instead, sought compen-

satory damages, nothing other than monetary rclicf.”

Mertens, 508 U.S. at 255. Accordingly, the Court held

that ERISA § 502(a)(3) does not authorize suits for

money damages against non-fiduciaries, at least not

in a case like Mertens, and, by analogy, one might

argue, to the case at bar. The Court went on to find

that the term “equitable relief” as used in ERISA

§ 502(a)(3) refers to “those categories of relief that

were typically available in equity (such as injunc-

tion, mandamus, and restitution, but not compen-

satory damages).” /d. at 256.

More recently, Great-West Life & Annuity Insur-

ance Company v. Knudson, 534 U.S. 204 (2002),

again considered the issue. There, the plaintiff

sought reimbursement for health care expenses

from the defendant after she recovered in a tort

action for the same incident. Her recovery had been

putin trust for her benefit. The plaintiff contended

that its suit for reimbursement was equitable

because it was a claim for restitution. However, the

Court held that plaintiffs sought monetary relief

which was not “typically available in equity.” Great

West, 534 U.S. at 210. The Court drew a distinction

between restitution in equity and restitution in law,

and found that this suit fell on the legal side of the

ledger.”

This distinction was not made in Mertens, whereas the

Court referred to restitution as an equitable remedy. Mertens,

508 US. at 255 (“[Petitioners] do mot. . . seek a remedy tradi-

tionally viewed as ‘equitable,’ such as injunction or restitution.” )

15a

Most recently, the Supreme Court had occasion to

address the question of equitable relief under ERISA

§ 502(a)(3), in Sereboff v. Mid Atlantic Medical Ser-

vices, Inc., 126 S.Ct. 1869 (2006), a factually similar

case to Mertens. There, a unanimous court found

that the suit should proceed because the request for

restitution was for identifiable funds in the defen-

dant’s possession, and therefore fell on the equity

side of the ledger. Sereboff, 126 S.Ct. at 1874.

Here, Defendants argue that Plaintiff is foreclosed

from bringing suit under ERISA § 502(a)(3)(B)

because his request is one for monetary damages—

z.e., his lump sum payment—and thus, is not equ?-

table relief. Plaintiff, in response, points out that

other courts have failed to give due weight to the

fact that Mertens drew a distinction between fidu-

ciaries and non-fiduciaries in determining whether

relief was “legal” or “equitable.” According to Plain-

tiff, Mertens is distinguishable from the instant case

because it involved a claim for compensatory dam-

ages against a non-fiduciary, and, therefore, should

not be applied to this case.°

However, while the decisions may be interpreted

to raise inconsistencies, they are as one with respect

to the case at bar, 7.e., Fisher cannot cloak a legal

claim for damages in equitable clothing. ERISA

§ 502(a)(3) “only allows for equitable relief’ Great-

West, 534 U.S. at 221 (emphasis in original).

In addition, Vefendants argue that ERISA § 502(a)(3)(A)

is irrelevant in this case because Plaintiff does not seek an

injunction, nor would an injunction be applicable in this case

because none of the named Defendants are currently fiduciaries

to the Plan (because PBGC has assumed the Plan’s liabilities and

assets). However, Plaintiff does not request injunctive relief in

this case, and, therefore the Court need not address this point

16a

Although Fisher requests declarations from this

Court, the nature of such declarations is inherently

legal. See Compl. at 7 (praying for a judgment (1)

“declaring that defendants. . . violated his/her fidu-

ciary duties by failing to provide him with a lump

sum benefit,” and (2) “declaring the amount of the

lump sum benefit to which Plaintiff is entitled”).

Fisher, like the plaintiffs in Mertens and Great-West,

seeks “nothing other than compensatory damages—

monetary relief for all losses [he has] sustained as a

result of [Defendants’] alleged breach of fiduciary

duties.” Mertens, 508 U.S. at 255 (emphasis in orig-

inal).

The Second Circuit’s recent decision in Coan v.

Kaufman, 457 F.3d 250 (2d Cir. 2006), is dispositive.

The Court held that irrespective of the party sued,

Plaintiff must still show that the relief requested is

of the sort typically available at equity. Jd. at 264

(“But whether sought from a fiduciary or not, the

type of relief a plaintiff requests must still be “equi-

table.”). In other words, although breach of fidu-

ciary duty is an equitable claim, Plaintiff must also

demonstrate that the nature of recovery is equi-

table. Sereboff, 126 S.Ct. at 1874. Consequently,

Plaintiff has failed to state a cognizable claim under

ERISA § 502(a)(3).

IV. CONCLUSION

Since what Plaintiff seeks is individual legal

relief—in this case, monetary damages under ERISA

§§ 502(a)(2) and 502(a)(3), which must be denied for

the reasons stated above, the Complaint fails to

State a claim, and, accordingly, the Defendants’

Motion to Dismiss the Complaint is GRANTED.

l7a

The Clerk of the Court is instructed to close this

matter and remove it from my docket.

IT IS SO ORDERED.

New York, New York

February 16, 2007

U.S.D.J.

L8a

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

Docket Number: 07-1100-cy

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York, on the 15th

day of May, two thousand and nine,

JOSEPH V. FISHER,

Plaintiff-Appellant,

THE PENN TRAFFIC COMPANY, BYRONE E. ALLUM-

BAUGH, RICHARD P. BRENNAN, KEVIN P. COLLINS,

JAMES A. DEMME, MATTHEW GLASS, ROBERT HOCK

ETT, RICHARD D. HOULIHAN, JR., PETER L. ZURKOW,

JOHN DOES, Nos. 1-5, BERNADETTE RANDALL-BAR-

BER, JANE ROEs, Nos. 1-5,

Defendant-Appellees.

19a

ORDER

Appellant Joseph V. Fisher having filed a petition

for panel rehearing, or, in the alternative, for rehear-

ing en banc, and the panel that deterv.ined the

appeal having considered the request for panel

rehearing, and the active members of the Court hav-

ing considered the request for rehearing en banc,

IT IS HEREBY ORDERED that the petition is denied.

For the Court:

Catherine O’Hagan Wolfe, Clerk

By:

frank Perez, Deputy Clerk

20a

David S. Preminger (DP 1057)

Rosen Preminger & Bloom LLP

708 Third Avenue, Suite 1600

New York, New York 10017

(212) 682-1900

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

COMPLAINT

No. 06 CV 5848 (HB)

(ECF Case)

JOSEPH V. FISHER.

Plaintiff,

—against—

THE PENN TRAFFIC COMPANY, BYRON E. ALLUM-

BAUGH, RICHARD P. BRENNAN, KEVIN P. COLLINS,

JAMES A. DEMME, MATTHEW GLASS, ROBERT HOCK-

ETT, RICHARD D. HOLIHAN, JR., PETER L. ZURKOW,

JOHN DOES NOs. 1-5, BERNADETTE RANDALL-BARBER

and JANE ROES Nos. 1-5,

Defendants.

2la

PRELIMINARY STATEMENT

1. This is an action by Plaintiff, Joseph V. Fisher,

pursuant to the Employee Retirement Income Secu-

rity Act of 1974, as amended (“ERISA”), 29 U.S.C.

§ 1001 et seq., for breach of fiduciary duty by defen-

dants in refusing to pay him the lump sum pension

benefit to which is entitled as a participant in The

Penn Traffic Company Cash Balance Pension Plan

(the “Plan”).

Il. JURISDICTION AND VENUE

2. This action is brought by plaintiff pursuant to

§§ 502(a)(2) and (a)(3) of ERISA, 29 U.S.C.

§§ 1132(a)(2) and (a)(3). This Court has subject mat-

ter jurisdiction pursuant to ERISA § 502(e)(1), 29

U.S.C. §11232(e)(1). This Court has supplemental

jurisdiction over any other claim pursuant to 28

U.S.C. $ 1367(a).

3. Declaratory relief is authorized by 28 U.S.C.

$$ 2201 and 2202 and Rule 58 of the Federal Rules of

Civil Procedure.

4. Venue is based on ERISA § 502(e)(2), 29 U.S.C.

$ 1132(e)(2).

Itt. PARTIES

5. Plaintiff, Joseph V. Fisher is a natural person

residing in the state of Massachusetts.

6. Defendant The Penn Traffic Company (the

“Company” ), at all times pertinent hereto, was the

sponsor of the Plan within the meaning of ERISA

§$ 3(16)(B)(1), 29 U.S.C.§ 1002(16)(B)(i), the Admin-

22a

istrator of the Plan within the meaning of ERISA

§ 3(16)(A)(i), 29 U.S.C. § 1002(16)(A)Qi), and the

Named Fiduciary of the Plan within the meaning of

ERISA § 402(a)(2), 29 U.S.C. § 1102(a)(2). As such,

at all times pertinent hereto, the Company was a

fiduciary within the meaning of ERISA § 3(21)(A),

29 U.S.C. § 1002(3)(21)(A).

7. Defendants Byron E. Allumbaugh, Richard P.

Brennan, Kevin P. Collins, James A. Demme,

Matthew Glass, Robert Hockett, Richard D. Holihan,

Jr., Peter L. Zurkow, and John Does Nos. 1-5 (whose

names are currently unknown to Plaintiff) were, at

all times pertinent hereto, members of the Board of

Directors of the Company (the “Board”). These

members of the Board acted in a fiduciary capacity

with respect to Plaintiff's application for benefits at

issue herein and, therefore, acted as fiduciaries

within the meaning of ERISA § 3(21)(A), 29 U.S.C.

§ 1002(3)(21)(A).

8. Defendants Bernadette Randall-Barber and Jane

Roes Nos. 1-5 (whose names are currently unknown

to Plaintiff) were, at all times pertinent hereto,

members of the Administration Committee of the

Plan (the “Committee”). The Plan delegates to the

members of the Committee certain powers and

duties, inter alia, exclusive authority to decide

claims for benefits, including the amount of bene-

fits, and interpretation of the Plan’s terms. As such,

the members of the Committee were at all times per-

tinent hereto fiduciaries within the meaning of

ERISA § 3(21)(A), 29 U.S.C. § 1002(3)(21)(A).

23a

IV. FACTS

9. Plaintiff is a former employee of the Company.

having resigned in early August, 2003. Plaintiff is

and, at all times pertinent hereto, was a participant

in and beneficiary of the Plan within the meaning of

ERISA 8§§ 3(7), (8), 29 U.S.C. §§ 1002(7), (8), witha

vested right to benefits from the Plan.

10. Pursuant to the provisions of the Plan, Plaintiff

filed an application for benefits on August 15, 20038,

on the form provided by the Plan for that purpose

and checked the box on that form indicating that he

was electing that his benefits be paid in the form of

a lump sum, a form of benefit offered by the Plan.

11. By letter dated October 17, 2003 (the “Denial

Letter”), the Committee informed Plaintiff that his

application for a lump sum was denied but indicated

that payments in the form of a monthly annuity

would commence should Plaintiff so elect. Plaintiff

did not so elect.

12. The Denial Letter failed to comply with the

requirements of 29 C.F.R. § 2960.503-1(g), (h).

13. Despite the fact that the Committee had sole

authority under the Plan to make benefit determi

nations, it did not do so here. The decision to deny

Plaintiff's application was made by the Board and

adopted by the Committee.

14. If the Committee purports to have delegated

authority to the Board to make this decision, any

such delegation was not, upon information and

belief, effected in conformance with the Plan’s pro-

cedures for delegation of fiduciary responsibilities.

24a

15. By timely letter from counsel dated Noveinber

3, 2003. supplemented by letter from counsel dated

November 17, 2003, Plaintiff appealed the denial of

a lump sum benefit.

16. No response was ever provided to Plaintiff

with respect to his appeal.

17. While it is Plaintiff’s position that exhaustion

of the Plan’s claims procedures was not required

with respect to the claims Plaintiff asserts herein,

Plaintiff has both exhausted the Plan’s claims pro-

cedures in fact and is deemed to have exhausted

those procedures (29 C.F.R. § 2560.503-1(L)).

V. CLAIMS FOR RELIEF

First Claim for Relief

CERISA §§ 404(a)(1) and 502(a)(2),

29 U.S.C. §§ 1104(a)(1) and 1132(a)(2))

18. Plaintiff repeats and realleges the contents of

paragraphs 1-17 above as if fully set forth herein.

19. Typically, the Plan paid lump sum benefits

within two (2) weeks of the filing of an application

by a participant.

20. At the time Plaintiff applied for benefits, the

Plan was underfunded and the Company had been

informed that, at some point in the future, it might

want to terminate the Plan in a distress termination

so that the Pension Benefit Insurance Company

(“PBGC”) would assume the Plan’s assets and lia-

bilities.

21. Nonetheless, the Plan had adequate resources

to pay Plaintiff his lump sum benefit.

25a

22. At its meeting on September 29, 2003, the

Board passed a resolution to terminate the Plan.

23. Nonetheless, the Committee processed other

Plan participants’ applications for benefits, includ-

ing lump sum benefits, and caused the Plan to pay

such benefits, both before and after the Board’s

decision to terminate the Plan.

24. Upon the filing of an application for a distress

termination, the PBGC does not immediately assume

responsibility for a plan. Typically there are nego-

tiations and even litigation over issues including the

appropriate date of termination. Often, the PBGC

pursues a claim against a plan sponsor for a plan's

unfunded liability.

25. Because the Plan's assets and liabilities have

now been assumed by the rBGC, which is prohibited

by statute from paying benefits in the form of a lump

sum even if a plan provides for such a benefit pay-

ment, Plaintiff can not receive the lump sum benefit

to which he is entitled and may receive a lower

annuity than provided for by the terms of the Plan if

Plaintiff's annuity is in excess of PBGC limits.

26. Accordingly, defendants, and each of them,

violated their fiduciary duties under ERISA, inter

alia, in the following respects:

a. the Committee failed to act on Plaintiff’s

application on a timely basis in accordance with

past practice and the terms of the Plan;

b. the members of the Committee failed to

resign and continued to process the pension appli

cations of other Plan participants while Plaintiff's

application was held in abeyance pending a decision

by the Board;

26a

c. the Company (including the Board) failed to

remove the members of the Committee for refus-

ing/failing to act on Plaintiff’s application;

d. the Committee de facto improperly delegated

its authority to determine Plaintiff’s application to

the Board;

e. the Board accepted the Committee’s de facto

improper delegation of its authority to determine

Plaintiff's application;

f. the Board refused/failed to act on Plaintiff's

application until after its September 29, 2006 deci-

sion to terminate the Plan.

27. Upon information and belief, defendants’ fore-

going actions were all effected in order to protect

the Company’s financial position rather than pro-

viding Plaintiff with the benefit to which he was

entitled and thus constitute breaches of their fidu-

ciary duties inter alia under ERISA § 404(a)(1), 29

U.S.C. § 1104(a)(1), which requires fiduciaries to

“discharge [their] duties solely in the interest of the

participants and beneficiaries.”

28. As such, pursuant to ERISA § 502(a)(2), 29

U.S.C. §1132(a)(2), Plaintiff is entitled to appro-

priate equitable or remedial relief for defendants’

breaches of fiduciary duty.

Second Claim for Relief

(ERISA §§ 404(a)(1) and 502(a)(3),

29 U.S.C. §§ 1104(a)(1) and 1132(a)(3))

29. Plaintiff repeats and realleges the contents of

paragraphs 1-27 above as if fully set forth herein.

2la

30. Plaintiff has no adequate remedy at law.

31. Alternatively, pursuant to ERISA § 502(a)(3),

29 U.S.C. § 1132(a)(3), Plaintiff is entitled to appro-

priate equitable relief for defendants’ breaches of

fiduciary duty.

Third Claim for Relief

(ERISA §§ 406(b)( 1), (2) and

502(a)(2), (3) 29 U.S.C. §§ 1106(b)(1), (2)

and 1132(a)(2), (3))

32. Plaintiff repeats and realleges the contents of

paragraphs 1-27 and 29-30 above as if fully set forth

herein.

32. In violation of ERISA § 406(b)(1), 29 U.S.C.

§ 1106(b)(1), the Company (including the Board)

engaged in a prohibited transaction by acting

“deal[ing] with the assets of the [P]lan in [its] own

interest or for [its] own account.”

33. In violation of ERISA § 406(b)(2), 29 U.S.C.

§ 1106(b)(2), defendants engaged in a prohibited

transaction by acting “in [a] transaction involving

the [PJlan on behalf of a party (the Company) whose

interests are adverse to the interests of the [P]lan[’s]

participants and beneficiaries.”

34. As such, pursuant to ERISA §§ 502(a)(2), (3),

29 U.S.C. §§ 1132(a)(2), Plaintiff is entitled to appro-

priate equitable or remedial relief for defendants’

breaches of fiduciary duty.

28a

VI. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that this Court enter

judgment in his favor as follows:

1. declaring that defendants, and each of them,

violated his/her fiduciary duties by failing to provide

him with a lump suim benefit;

2. declaring the amount of the lump sum benefit to

which Plaintiff is entitled;

3. granting Plaintiff judgment against the defen-

dants, jointly and severally, for the amount of his

lump sum benefit together with appropriate interest

thereon;

4. awarding Plaintiff his costs and attorney’s fees

herein; and,

5. awarding Plaintiff such other and further relief

as to this Court may seem just and proper.

Dated: July 31, 2006

New York NY

Respectfully submitted,

Rosen Preminger & Bloom LLP

Attorneys for Plaintiff

By:

David S. Preminger (DP 1057)

Rosen Preminger & Bloom LLP

708 Third Avenue, Suite 1600

New York, New York 10017

(212) 682-1900

29a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

No. 06 CV 5848 (HB)

(ECF CASE)

JOSEPH V. FISHER,

Plaintiff,

—against—

THE PENN TRAFFIC COMPANY, BYRON E. ALLUM-

BAUGH, RICHARD P. BRENNAN, KEVIN P. COLLINS,

JAMES A. DEMME, MATTHEW GLASS, ROBERT HOCK-

ETT, RICHARD D. HOLIHAN, JR., PETER L. ZURKOW,

JOHN DOES Nos. 1-5, BERNADETTE RANDALL-BARBER

and JANE ROES NOs. 1-5,

Defendants.

NOTICE OF MOTION

Please take notice that Defendants The Penn Traf-

fic Company, Byron E. Allumbaugh, Richard P.

Brennan, Kevin P. Collins, James A. Demme,

Matthew Glass, Robert Hockett, Richard D. Holihan,

Jr., Peter L. Zurkow, and Bermmadetter Randall-Barber

Myer hereby move, pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure, to dismiss Plaintiff

30a

Joseph V. Fisher’s Complaint with prejudice. This

motion is made on the grounds that the Complaint

fails to state a claim upon which relief can be

granted, and is based upon this motion and the

Memorandum of Law filed in support thereof.

Respectfully submitted,

COOLEY GODWARD KRONISH LLP

By: /s/ WILLIAM H. O’BRIEN

William H. O’Brien (WB 5271)

Jeffrey W. Lang (JL 6021)

Members of the Firm

1114 Avenue of the Americas

New York, New York 10036

(212) 479-6000

Attorneys for Defendants

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