Newman v. Metropolitan Life Insurance Company et al

Filing 137

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - the Court ALLOWS the LBHI Defendants and Metlife's motions to dismiss, D. 107, 111. The SOX and equitable relief claims (Counts I and III) are dismissed as to all defendants. As no ted in footnote 6, Newman's claims against LBI are stayed. The ERISA claim (Count II) is dismissed as to all defendants other than the Plan and Metlife. The Plan and Metlife must file their answers to the ERISA claim by no later than February 4, 2015. (Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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BARBARA NEWMAN,
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Plaintiff,
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v.
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Civ. Action No. 12-cv-10078
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METROPOLITAN LIFE INSURANCE,
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COMPANY, et al.,
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Defendants.
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)
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

January 21, 2015

Introduction
Plaintiff Barbara Newman (“Newman”) brings this action against twenty defendants

under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132 et seq., and
the whistleblower provisions of the Sarbanes-Oxley Act of 2002 (“SOX”), 18 U.S.C. § 1514A.
The LBHI Defendants (defined below) have moved to dismiss the claims against them in
Newman’s second amended complaint (“SAC”) pursuant to Fed. R. Civ. P. 12(b)(2) for lack of
personal jurisdiction; 12(b)(5) for insufficient service of process; and Fed. R. Civ. P. 12(b)(6) for
failure to state a claim. D. 107, 111. For the reasons stated below, the Court ALLOWS the
motion.

The case will proceed only as to Newman’s ERISA claim against defendants

Metropolitan Life Insurance Co. (“Metlife”) and Lehman Brothers Holdings Inc. Group Benefits
Plan (the “Plan”).

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II.

Standard of Review
A.

Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2)

In the face of a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the
burden of showing that personal jurisdiction exists. Astro-Med, Inc. v. Nihon Kohden Am., Inc.,
591 F.3d 1, 8 (1st Cir. 2009). The Massachusetts long-arm statute extends specific jurisdiction
to the full extent permitted by due process, so the Court may proceed directly to the
constitutional analysis. Adelson v. Hananel, 652 F.3d 75, 80 (1st Cir. 2011). Each defendant
must have minimum contacts with Massachusetts such that the “maintenance of the suit does not
offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945) (internal quotation marks omitted).
There are two types of personal jurisdiction – general and specific. A defendant is
subject to general jurisdiction if it has engaged in “continuous and systematic activity” in the
forum unrelated to the lawsuit. Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir. 1994). Specific
jurisdiction requires that a plaintiff’s claim be related to the defendant’s contacts with the forum.
Id. The Court conducts a three-part inquiry to determine whether it may exercise specific
personal jurisdiction over a defendant: relatedness, purposeful availment and reasonableness.
Astro-Med, 591 F.3d at 9.
B.

Motion to Dismiss Pursuant to Rule 12(b)(6)

In considering a motion to dismiss for failure to state a claim upon which relief can be
granted pursuant to Fed. R. Civ. P. 12(b)(6), the Court will dismiss a pleading that fails to plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). To state a plausible claim, a claim need not contain detailed factual
allegations, but it must recite facts sufficient to at least “raise a right to relief above the
speculative level . . . on the assumption that all the allegations in the complaint are true (even if
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doubtful in fact).” Twombly, 550 U.S. at 555. “A pleading that offers ‘labels and conclusions’
or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To determine plausibility, the
Court must separate “the complaint’s factual allegations (which must be accepted as true) . . .
from its conclusory legal allegations (which need not be credited).” Morales-Cruz v. Univ. of
P.R., 676 F.3d 220, 224 (1st Cir. 2012). The Court must then “determine whether the factual
allegations are sufficient to support ‘the reasonable inference that the defendant is liable for the
misconduct alleged.’” García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013)
(quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)).
C.

Insufficient Service of Process Pursuant to Rule 12(b)(5)

“Effectuation of service is a precondition to suit.” Jenkins v. City of Topeka, 136 F.3d
1274, 1275 (10th Cir. 1998). While a defendant bears the initial burden to challenge the validity
of service of process, once a defendant makes a Fed. R. Civ. P. 12(b)(5) motion, the burden
shifts to the plaintiff to establish that process was appropriate. Morse v. Mass. Exec. Office of
Public Safety, No. 12-cv-40160-TSH, 2013 WL 1397736, at * 1 (D. Mass. April 4, 2013); see
Blair v. City of Worcester, 522 F.3d 105, 111-12 (1st Cir. 2008) (stating that the burden of
proving proper service returns to plaintiff after defendant rebuts presumption of proper service
arising from return of service).
III.

Factual Background
Unless otherwise indicated, the facts are as alleged in the SAC. Newman was formerly

employed by the Corporate Communications department of Lehman Brothers Inc. (“LBI”). D.
103 ¶ 7. She alleges that she worked for the Investment Management Division, presumably of
LBI, and for “Neuberger Berman,” then a wholly-owned subsidiary of LBI. Id. at 1-2.

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Newman believed that LBI was violating securities laws and reported her concerns to her
superiors, to LBI via an “alert line” and ultimately to the Securities and Exchange Commission
(“SEC”).

Id. ¶¶ 8-10.

Newman alleges that various defendants retaliated against her for

reporting unlawful conduct by LBI and its subsidiaries by terminating her employment and
interfering with her benefits. Id. at 4 & ¶¶ 44-45. On July 23, 2008, Newman filed a complaint
under Section 806 of SOX with the Occupational Safety and Health Administration (“OSHA”).
D. 103 at 5, D. 108-1. In Count I of the SAC, Newman claims that the alleged retaliatory
actions, namely her termination and interference with her benefits, constitute violations of SOX.
D. 103 ¶¶ 42-45. Count I is asserted against three groups of defendants. The first group
comprises LBI and the Plan (collectively, the “Lehman Defendants”). Id. at 1, 3. The second
group consists of Neuberger Berman, LLC; Neuberger Berman, Inc.; Neuberger Berman
Management, LLC; Neuberger Berman Group, LLC; and Neuberger Berman Management, Inc.
(collectively, the “Neuberger Berman Defendants”). Id. at 1, 2. The last group is composed of
individual defendants1 (the “Individual Defendants”). Id. at 1, 3-4.
Concurrent to her whistle-blowing activity, Newman sought disability benefits through
benefits plans administered by the Plan under an insurance policy issued to LBI by defendant
Metlife. Id. ¶¶ 11, 15. Newman was approved for short term disability (“STD”) benefits. Id. ¶¶
17-18. LBI terminated Newman’s employment while she was receiving STD benefits. Id. ¶ 19.
It appears that Newman subsequently sought long term disability (“LTD”) and supplemental
LTD benefits, both of which were denied, as were Newman’s appeals of those denials. Id. ¶¶ 26,
27, 30, 31, 33, 38. Metlife eventually informed Newman that her administrative remedies under

1

The Individual Defendants listed in the SAC are Joseph V. Amato, Erin S. Callan, Karen
Coviello, William J. Fox, Scott Freidheim, Richard S. Fuld, James W. Giddens, Andrew
Komaroff, Ian Lowitt, Carol Rado, Thomas A. Russo, and Wendy Uvino. D. 103 at 3-4.
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the plan had been exhausted and that she could sue under Section 502(a) of ERISA. Id. ¶ 39. In
Count II of the SAC, Newman seeks to recover LTD benefits from the Plan pursuant to 29
U.S.C. § 1132 (a)(1)(B). Id. ¶ 55. This claim is asserted against the Plan; Lehman Brothers
Holdings, Inc., Group Benefits Plans Administrators (the “Plan Administrators”); the Individual
Defendants; and Metlife. Id. at 1.
In Count III of the SAC, under the equitable theories of restitution, mandamus and
surcharge, Newman seeks to recover healthcare costs she incurred as a result of the loss of LTD
benefits. Id. ¶¶ 58-60. The SAC appears to assert Count III against all defendants.
IV.

Procedural History
Newman, proceeding pro se, initiated this action on January 12, 2012. D. 1. On May 14,

2012, Newman amended her complaint.

D. 4.

Several defendants moved to dismiss the

amended complaint. D. 41. The Court granted the motion in part, denied it in part and permitted
Newman to amend her complaint in part. D. 57. The Court ruled that Newman had failed to
establish personal jurisdiction over the Individual Defendants and that leave to re-plead would be
futile because the claims asserted against the Individual Defendants were also dismissed on the
merits. Id. at 6-7. The Court further concluded Newman’s claim under Section 502(a)(1)(B) of
ERISA could lie only against Metlife and certain plan-affiliated defendants encompassed by the
Plan: the Lehman Brothers Short Term Disability Plan, the Lehman Brothers Long Term
Disability Plan, the Lehman Brothers Supplemental Insurance – Contributory LTD Plan and the
Lehman Brothers Group Life Insurance Plan – Basic Life Continued Protection. Id. at 10-15.
Finally, the Court granted leave to Newman to amend her complaint to add a SOX claim based
on alleged retaliation for being a SOX whistleblower. Id. at 16-19.

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On May 22, 2013, Newman, still proceeding pro se, filed a revised complaint, D. 67,
which several defendants again moved to dismiss, D. 71, 77. On March 5, 2014, the Court
granted the motion in part. D. 98. The Court concluded that Newman’s SOX claim was not
time-barred. Id. The Court dismissed the SOX claim as to Metlife because Newman failed to
exhaust her administrative remedies against this defendant. Id. Finally, the Court ordered
Newman to file another amended complaint limited to the remaining ERISA and SOX claims.
Id.
In November 2013, Newman secured counsel. D. 84. She filed the operative complaint,
the SAC, on April 24, 2014. D. 103. The following defendants have now moved to dismiss the
SAC pursuant to Fed. R. Civ. P. 12(b)(2), (5) and (6):

the Plan, the Neuberger Berman

Defendants and Individual Defendants Amato, Coviello, Fox, Komaroff, Rado and Uvino
(collectively, the “LBHI Defendants”). D. 107. Metlife joins the motion as to Count III for
equitable relief. D. 111. The Court held a hearing on the pending motions on November 5, 2014
and took the matters under advisement. D. 133.
V.

Discussion
A.

SOX claim

The LBHI Defendants first argue that Newman’s SOX claim must be dismissed as to all
of them except Individual Defendant Coviello because Newman failed to name them in her
OSHA complaint. D. 108 at 5. Section 806 of SOX provides whistleblowers with protection
from retaliation.

Under the provision, a public company or employee thereof may not

discriminate against any employee who “provide[s] information, cause[s] information to be
provided, or otherwise assist[s] in an investigation” regarding conduct that that the employee
“reasonably believes constitutes a violation of . . . any rule or regulation of the [SEC], or any

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provision of Federal law relating to fraud against shareholders.” 18 U.S.C. § 1514A(a)(1).
“Before an employee can assert a cause of action in federal court under [SOX], the employee
must file a complaint with [OSHA] and afford OSHA the opportunity to resolve the allegations
administratively.” Bozeman v. Per-Se Techs., Inc., 456 F. Supp. 2d 1282, 1356 (N.D. Ga. 2006)
(quoting Willis v. Vie Fin. Group, Inc., No. 04-435, 2004 WL 1774575, at * 6 (E.D. Pa. Aug. 6,
2004)). During the time relevant here, Newman was required to file her OSHA complaint
“[w]ithin 90 days after an alleged violation of the Act.” 29 C.F.R. § 1980.103(d); 18 U.S.C. §
1514A(b)(2)(D). If a complainant satisfies this requirement and OSHA does not issue a final
administrative decision within 180 days, she is authorized to seek de novo review in federal
court.2 18 U.S.C. § 1514A(b)(1)(B).
“A federal court can only conduct a de novo review of those SOX whistleblower claims
that have been administratively exhausted.”3 Bozeman, 456 F. Supp. 2d at 1357 (internal
quotation marks and alterations omitted). The LBHI Defendants renew their argument that
Newman’s OSHA complaint was not timely filed and, therefore, Newman did not exhaust her
administrative remedies. D. 108 at 6 n.7. To show that Newman filed her OSHA complaint
within the 90-day window, she had to allege her termination date from LBI. Newman’s previous
2

It appears to be undisputed that OSHA did not issue a final administrative decision
within 180 days of Newman’s complaint. D. 103 at 5, D. 108.
3

It appears that no circuit court has addressed whether this requirement to exhaust
administrative remedies is jurisdictional. However, relying on circuit precedent and citing
district court cases, the Fourth Circuit assumed, without deciding, that the failure to exhaust
administrative remedies deprives a district court of subject matter jurisdiction. See Feldman v.
Law Enforcement Assoc. Corp., 752 F.3d 339, 345-46 (4th Cir. 2014) (citing Stone v.
Instrumentation Lab. Co., 591 F.3d 239, 240 (4th Cir. 2009) (stating SOX “expressly provides a
[district court] jurisdiction to entertain whistleblower actions”) and Stone v. Duke Energy Corp.,
432 F.3d 320, 322-23 (4th Cir. 2005) (noting SOX “confers jurisdiction on a district court when
the qualifying complainant files his complaint there)). Because of the multiple infirmities of
Newman’s SOX claim, the Court need not decide whether failure to exhaust administrative
remedies implicates subject matter jurisdiction.
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complaint alleged a termination date of April 24, 2008 and that was the date on which the Court
relied in holding that Newman’s SOX claim was not time-barred. D. 98. However, Newman’s
SAC omits any allegation of her termination date, merely alleging that “Newman was
terminated.” D. 103 ¶ 19.
The complaint that Newman filed with OSHA on July 23, 2008 states in two separate
places that she was terminated on April 23, 2008. D. 108-1 at 1, 5 (asserting that “I was
retaliated against by [LBI] through termination on April 23, 2008” and “[o]n April 23, 2008, I
was terminated from Lehman Brothers”).4 The record now before the Court thus indicates that
Newman filed the OSHA complaint 91 days after her termination from LBI. Having failed to
exhaust her administrative remedies, Newman’s SOX claim must be dismissed.
Even, however, assuming the OSHA complaint was filed in a timely manner, within the
90-day period, Newman’s SOX claim faces an additional obstacle: she omitted from her OSHA
complaint all but one of the defendants (Coviello) against whom she now asserts her SOX
claim.5 D. 108-1 at 3-4. Newman asserts her SOX claim against the Lehman Defendants,6 the

4

In deciding whether a plaintiff timely filed an OSHA complaint, a court is “entitled to
consider both the language of the complaint and the attachments referred to in the complaint and
submitted by [the defendant] with its motion to dismiss.” Rzepiennik v. Archstone-Smith, Inc.,
No. 08-1129, 2009 WL 1513994, at * 3 (10th Cir. June 1, 2009). “If the rule were otherwise, a
plaintiff with a deficient claim could survive a motion to dismiss simply by not attaching a
dispositive document upon which the plaintiff relied.” Id. (quoting GFF Corp. v. Associated
Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)). Here, Newman refers to her
OSHA complaint in her SAC and the movants attached it to their memorandum in support of
their motion to dismiss. D. 103 at 5, D. 108-1.
5

The motion to dismiss was filed on behalf of a group of Defendants that includes
Coviello. D. 108 at 1 n.1. However, Coviello is omitted from the list of Defendants against
whom the Defendants argue the SOX claim must be dismissed for failure to name in the OSHA
complaint. Id. at 5. Nonetheless, for the reasons stated below, the Court lacks personal
jurisdiction over Coviello, and the SAC is dismissed as to Coviello on those grounds.
6

Newman continues to assert the SOX claim against LBI, but LBI is in bankruptcy and
protected by an automatic stay pursuant to 11 U.S.C. § 362(a) barring the commencement or
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Neuberger Berman Defendants and the Individual Defendants.

D. 103 at 1.

“While the

regulations implementing SOX may provide for individual liability, that does not obviate the
need for the [p]laintiff to exhaust [her] administrative remedies for each claim [she] seeks to
assert against each defendant.” Bozeman, 456 F. Supp. 2d at 1357.
District courts disagree as to whether a plaintiff must name each defendant as a
respondent in her OSHA complaint or whether merely identifying each defendant as an actor
within the body of the complaint is sufficient. Compare, e.g., Bozeman, 456 F. Supp. 2d at 1357
(granting summary judgment for failure to include defendants as respondents to OSHA
complaint although defendants were identified as actors in body of complaint); Hanna v. WCI
Cmntys, Inc., No. 04-cv-80595, 2004 U.S. Dist. LEXIS 25652, at *7-9 (S.D. Fla. Nov. 15, 2004)
(dismissing SOX claim against defendant mentioned in body of OSHA complaint but not named
as respondent in complaint heading) with Jones v. Southpeak Interactive Corp., No. 3:12cv443,
2013 WL 1155566, at * 4 (E.D. Va. Mar. 19, 2013) (denying motion to dismiss where defendant
was not listed in heading of OSHA complaint but complaint described defendant as a person
“who the complaint is being filed against”); Morrison v. MacDermid, Inc., No. 07-cv-01535WYD-MJW, 2008 WL 4293655, at *3 (D. Colo. Sept. 16, 2008) (concluding OSHA complaint
sufficiently named defendant where defendant described as “a major actor in the alleged
wrongdoing”).
The rationale for requiring a plaintiff to list each defendant in the heading of her OSHA
complaint is that it puts OSHA on notice of each defendant whom it must investigate to resolve
the plaintiff’s claim. Bozeman, 456 F. Supp. 2d at 1358. The argument against requiring a
plaintiff to name defendants individually in the OSHA complaint heading is that the regulations
continuation of judicial proceedings against it. D. 44 (suggestion of bankruptcy); D. 109 (notice
by LBI and Trustee James Giddens). For that reason, Newman’s claims against LBI are stayed.
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governing the OSHA complaint state that “[n]o particular form of complaint is required” and
naming a defendant in the body of a complaint still allows OSHA to conduct an adequate
investigation. 29 C.F.R. § 1980.103(b); see Jones, 2013 WL 1155566, at * 4.
In the present case, the LBHI Defendants argue that Newman’s SOX claim should be
dismissed as to the Neuberger Berman Defendants, the Plan, and Individual Defendants Amato,
Fox, Komaroff, Rado and Ulvino because Newman failed to name them at all in her OSHA
complaint. D. 108 at 5-6. The first page of the OSHA complaint cites LBI as the retaliating
party. D. 108-1 at 1. But the body of the complaint states that “I am alleging the following
individuals violated the Act and am filing a complaint.” Id. at 2. What follows is a list of
individuals, all of whom share a Lehman Brothers address, that includes only Individual
Defendant Coviello but none of the other Individual Defendants. Id. at 3-4. It also does not
include the Plan or the Neuberger Berman Defendants. Id. Newman, therefore, failed to exhaust
her administrative remedies as to the Plan,7 the Neuberger Berman Defendants and the Individual
Defendants who have moved to dismiss the SOX claim on this basis.
B.

Personal jurisdiction

Even if Newman had properly named all the Individual Defendants in her OSHA
complaint, she has still failed to establish that the Court can exercise personal jurisdiction over
them here. The Court previously observed that “Newman has failed to meet her burden of
showing that personal jurisdiction exists” as to a different but overlapping group of individual
7

Newman’s SOX claim against the Plan fails for the additional reason that she has not
alleged that the Plan was her employer.
Smith v. Psychiatric Solutions, Inc., No.
3:08cv3/MCR/EMT, 2009 U.S. Dist. LEXIS 27608, at * 27 (N.D. Fla. Mar. 31, 2009) (granting
summary judgment because plaintiff did not allege that defendant was her employer as required
to establish a SOX whistleblower claim). Newman’s SAC indicates that she was hired by
Lehman Brothers, not the Plan, D. 103 ¶ 6, and that the Lehman Defendants “are employers,” id.
¶ 42, but she never alleges that she was employed by the Plan. Absent an employment
relationship, a SOX claim cannot lie as to the Plan.
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defendants and declined to allow Newman leave to amend as to personal jurisdiction because “it
would be futile to do so as to the claims asserted against them.” D. 57 at 6, 7.

Since then

Newman has added her SOX claim and argues that she has sufficiently asserted personal
jurisdiction over the Individual Defendants because they have “close working ties to Neuberger
Berman” which “avail[ed] itself to the consequences of doing business and soliciting customers
from Massachusetts.” D. 116 at 2.
Newman’s SAC does not allege any facts demonstrating personal jurisdiction, nor has
she submitted evidence supporting jurisdiction with her opposition. Even if the Court accepts
that the Individual Defendants are closely affiliated with the Neuberger Berman Defendants, it
does not follow that the Individual Defendants are subject to general jurisdiction, which requires
continuous and systematic contacts with Massachusetts. Harlow v. Children’s Hosp., 432 F.3d
50, 57 (1st Cir. 2005). Nor has Newman made a showing of specific jurisdiction as there are no
allegations that her claims arise directly out of, or are related to, the Individual Defendant’s
forum-based activities, the threshold required for specific personal jurisdiction. Id. at 60-61.
Because Newman has failed to meet her burden, all claims against the Individual Defendants are
dismissed pursuant to Fed. R. Civ. P. 12(b)(2).
C.

Service of Process

The LBHI Defendants also assert, pursuant to Fed. R. Civ. P. 12(b)(5), that Newman has
failed to serve properly Individual Defendants Fox, Komaroff and Amato because Newman
served their employers through the employers’ designated agents. D. 108 at 7; see D. 9, 13, 15
(executed summonses). Fed. R. Civ. P. 4(e) authorizes service upon an individual within a
judicial district of the United States to be made by (1) following state law for serving a
summons; (2) delivering a copy of the summons and complaint to the individual personally; (3)

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leaving a copy of the summons and complaint at the individual’s place of abode with someone
who meets the applicable age requirement; or (4) delivering the summons and complaint to an
agent authorized to receive service of process. “Service is not sufficient if left at an individual’s
place of employment with someone not authorized to accept service on the individual’s behalf.”
Levesque v. Rutland Cty. Sheriff’s Dep’t, No. 09-cv-437-JL, 2010 WL 4916567, at *1 (D.N.H.
Dec. 1, 2010). Even if personal jurisdiction existed with respect to Individual Defendants Fox,
Komaroff and Amato, dismissal without prejudice would still be appropriate for failure to serve a
defendant within 120 days after the filing of the SAC. Fed. R. Civ. P. 4(m).
D.

Claim for equitable relief

Newman obtained leave from the Court to file an amended complaint specifically
“limited to those ERISA claims against the Plan [] and a SOX claim against the remaining LBHI
Defendants.” D. 98. The addition of Count III for equitable relief is beyond the scope of the
Court’s grant of leave to amend. Count III is, therefore, stricken from the SAC. Fed. R. Civ. P.
15(a)(2) (stating that “a party may amend its pleading only with the opposing party’s written
consent or the court’s leave”).
E.

ERISA claim

The Court has already concluded that Newman may press her ERISA claim (Count II)
against the Plan and Metlife. D. 57 at 10-15. It appears that Newman now seeks to assert the
ERISA claim in the SAC against the Individual Defendants. D. 103 at 1. To the extent she
seeks to do so, and as a separate basis for dismissal, the Court strikes the ERISA claim as to the
Individual Defendants and once again stresses that the ERISA claim lies only with respect to the
Plan and Metlife.

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F.

Fed. R. Civ. P. 10(b)

Finally, the LBHI Defendants urge the Court to order Newman to comply with Fed. R.
Civ. P. 10(b), which requires a plaintiff to state her claims in numbered paragraphs. D. 108 at 9.
The SAC contains more than five pages of unnumbered allegations before it sets forth
enumerated paragraphs. The Rules of Civil Procedure are to “be construed and administered to
secure the just . . . determination of every action and proceeding.” Fed. R. Civ. P. 1. The
defendants in this action have been put on notice of the claims against them and can adequately
respond, particularly where the only claim now remaining is the ERISA claim. To avoid further
delay in the proceedings, Counts I and III are struck from the SAC. Count II, the ERISA claim,
may proceed against the Plan and Metlife. To ease the remaining defendants’ ability to answer,
the following sections of the SAC are also stricken: “Neuberger Berman Defendants” (pages 23); “Individual Defendants” (pages 3-4); “Applicability of Sarbanes-Oxley” (pages 4-5);
“Newman’s Exhaustion of Administrative Remedies” (page 5); and “Background” (pages 5-6).
The Plan and Metlife’s answers may letter each of the remaining paragraphs that precede the
SAC’s numbered paragraphs and respond in sequence.
VI.

Conclusion
For the foregoing reasons, the Court ALLOWS the LBHI Defendants and Metlife’s

motions to dismiss, D. 107, 111. The SOX and equitable relief claims (Counts I and III) are
dismissed as to all defendants. As noted in footnote 6, Newman’s claims against LBI are stayed.
The ERISA claim (Count II) is dismissed as to all defendants other than the Plan and Metlife.
The Plan and Metlife must file their answers to the ERISA claim by no later than February 4,
2015.
So Ordered.

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/s/ Denise J. Casper
United States District Judge

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