New Jersey Carpenters Annuity Fund et al v. Meridian Diversified Fund Management, LLC et al
Filing
31
OPINION #100313 Plaintiffs state law derivative action for breach of fiduciary duty is completely preempted by ERISA. This court has exclusive jurisdiction over plaintiffs claims and therefore plaintiffs motion to remand is denied. (Signed by Judge Thomas P. Griesa on 5/11/11) (jmi) Modified on 5/12/2011 (ajc).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
NEW JERSEY CARPENTERS ANNUITY
:
FUND, NEW JERSEY CARPENTERS
:
PENSION FUND, and NEW JERSEY
:
CARPENTERS WELFARE
:
FUND,
:
:
Plaintiffs,
:
:
– against –
:
:
MERIDIAN DIVERSIFIED FUND
:
MANAGEMENT, LLC, WILLIAM H.
:
LAWRENCE, JOHN L. SICA, DONALD J.
:
HALLDIN, TIMOTHY M. HICKEY, LAURA :
K. SMITH, ROBERT J. MURPHY,
:
HOWARD B. FISCHER, PETER M.
:
BROWN, MARTIN BYRNE AND
:
CHRISTOPHER BOWRING,
:
:
Defendants,
:
:
and
:
:
MERIDIAN DIVERSIFIED ERISA FUND,
:
LTD.,
:
:
Nominal Defendant.
:
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10 Civ. 5738 (TPG)
OPINION
Plaintiffs in this case, three New Jersey carpenters’ benefits funds,
bring a derivative complaint on behalf of the Meridian Diversified ERISA
Fund, Ltd. (“the Meridian Fund”) against Meridian Diversified Fund
Management,
LLC
(“Meridian
Management”)--the
entity
acting
as
manager of the Meridian Fund. Also joined as defendants are officers of
Meridian Management. Plaintiffs now move to remand the case to state
court.
Because the derivative action for breach of fiduciary duty is
completely preempted by a federal statute--the Employee Retirement
Income Security Act (“ERISA”)--plaintiffs’ motion is denied.
BACKGROUND
The Meridian Fund is a large hedge fund catering to institutional
investors. Plaintiffs in this case are three of those institutional investors.
The Meridian Fund, and, in turn, plaintiffs, suffered major losses as a
result of the well-known ponzi scheme perpetrated by Bernard Madoff.
Plaintiffs are some of several investors suing the Meridian Fund and its
management in various actions as a result of those losses. Most of these
suits have been consolidated into one action pending before this court.
In re Meridian Funds Group Securities & ERISA Litigation, 09-md-02082
(TPG). Plaintiffs in the present action seek to litigate in the state court to
avoid consolidation and pursue litigation independently.
Plaintiffs originally filed their complaint in the present action in
June of 2010 in Supreme Court, New York County. Plaintiffs, in their
complaint, list the Meridian Fund as a “nominal defendant,” on whose
behalf the derivative action is brought.
Plaintiffs allege that Meridian
Management and its officers breached their common law fiduciary duty
to the Meridian Fund by failing to adequately monitor the Meridian
Fund’s investments and turning a blind eye to the many red flags that
appeared regarding Madoff’s operation. Plaintiffs’ allegations are strictly
couched in terms of common law. There is no reference to ERISA.
-2-
On July 29, 2010, defendants removed the action to this court
pursuant to 28 U.S.C. § 1441, claiming federal jurisdiction under ERISA,
via 28 U.S.C. § 1331. The instant motion to remand was filed on August
27, 2010.
Plaintiffs allege that remand is required in this case because their
“well-pleaded” complaint contains only state common law causes of
action and because defendants have failed to establish that the derivative
claims arise under ERISA.
Defendants contend that plaintiffs have
“artfully pleaded” their allegations to avoid mention of federal law, but
that, nonetheless, plaintiffs’ claims arise under federal law because they
are “completely preempted” by ERISA.
Plaintiffs respond that ERISA
cannot be deemed to completely preempt their present action for the
following reasons. The Meridian Fund should be realigned as plaintiff.
According to plaintiffs, the Meridian Fund has no standing to assert a
claim under ERISA. The action must therefore be returned to the state
court where claims under the common law can asserted by, or on behalf
of, the Meridian Fund.
DISCUSSION
Standing
Because the issue of standing to sue under ERISA is central to
plaintiffs’ argument in favor of remand, the court will begin its analysis
there.
-3-
Standing to sue under ERISA begins with a scheme of fiduciary
liability for those handling the assets of benefit plans. See, e.g., ERISA
§§ 409, 502. ERISA provides for a cause of action for civil enforcement of
such liability and delineates who may bring such a cause of action.
Such an action may be brought by the Secretary of Labor, “or by a
participant, beneficiary or fiduciary” of the affected plan. Id. at § 502(a).
This list of potential litigants is exclusive.
No one else--not even the
affected ERISA plan itself--has standing to bring a civil action for a
breach of the fiduciary duties imposed by ERISA.
Pressroom Unions-
Printers League Income Sec. Fund v. Continental Assurance Co., 700
F.2d 889, 892-93 (2d Cir. 1983).
When the statute speaks of “fiduciary,” as cited above, it is
referring to the fact that, under the law, any ERISA plan is required to
have a “named fiduciary.” ERISA § 402(a). That fiduciary has standing
to sue under ERISA asserting a claim against a party who has harmed
the plan.
The other lawsuits in the consolidated action noted above,
which allege violations of ERISA, have been brought by such fiduciaries.
In the present action, the funds themselves, not the named
fiduciaries, have sued, and this is obviously designed to comport with the
assertion of common law claims rather than ERISA claims. The funds
themselves would have no standing to bring the claims involved here if
they were asserted as ERISA claims.
-4-
Plaintiffs argue that the Meridian Fund, listed in the complaint as
the Nominal Defendant, should be realigned as plaintiff. They go on to
argue that the Meridian Fund has no standing to sue under ERISA and
that therefore derivative claims on behalf of the Meridian Fund should be
left to be asserted under the common law in state court.
However, it is not proper to realign the Meridian Fund as a
plaintiff.
Plaintiffs cite to Koster v. (Am.) Lumbermens Mut. Cas. Co.,
330 U.S. 518 (1947), in support of their argument to align the Meridian
Fund as a plaintiff in this case, but Koster is clear that when an entity “is
in antagonistic hands,” as is the case here, it is not to be realigned. The
Meridian Fund is in the hands of those antagonistic to the New Jersey
Carpenters’ Funds--defendants in this action--and therefore should not
be realigned as a plaintiff.
See In re Sunshine Min. Co. Securities
Litigation, 496 F. Supp. 9, 12 (S.D.N.Y. 1979) (corporation was controlled
by the very officials accused of wrongdoing precluding claim that
corporation was not in “antagonistic hands”).
Plaintiffs apparently seek to realign the Meridian Fund as a
plaintiff because they wish to have a complete array of plaintiffs who
have no standing to sue under ERISA in order to support their assertion
of common law causes of action in the state court. As already described,
it appears that the plaintiff funds have no ERISA standing. As to the
Meridian Fund, more than 25 percent of the Meridian Fund’s equity
participation comes from ERISA plans, making the Meridian Fund’s
-5-
assets “plan assets” and subjecting the Meridian Fund to regulation
under ERISA. See 29 C.F.R. § 2510.3-101(f). If the Meridian Fund were
to be considered to be a plaintiff, it would probably have no standing to
sue under ERISA.
This would appear to bolster plaintiffs’ case for
remand, based on the argument described, but, for the reasons stated
above, the court will not realign the Meridian Fund as a plaintiff.
In any event, plaintiff funds have no standing to sue under ERISA.
Nonetheless, the doctrine of complete preemption prevents the claims in
this case from being pursued under the common law in the state court.
Complete Preemption
Complete
preemption
is
a
doctrine
that
provides
federal
jurisdiction where Congress has indicated that particular legislation is
intended to make certain federal court remedies the exclusive remedies
on the subjects dealt with in the legislation, leaving nothing by way of a
concurrent state law cause of action or remedy. See Beneficial National
Bank v. Anderson, 539 U.S. 1, 8 (2003). An action may be brought in
state court and the complaint in that action may purport to present
allegations under the state common law, but if the complaint raises
issues which Congress intends to be exclusively covered by the federal
legislation, then the action must be removed to federal court.
ERISA is a statute that creates complete preemption.
“The
deliberate care with which ERISA’s civil enforcement remedies were
drafted and the balancing of policies embodied in its choice of remedies
-6-
argue strongly for the conclusion that ERISA’s civil enforcement remedies
were intended to be exclusive.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S.
41, 54 (1987). The exclusive nature of ERISA civil enforcement remedies
go beyond traditional preemption and create an independent basis for
removal jurisdiction:
Any state-law cause of action that duplicates, supplements,
or supplants the ERISA civil enforcement remedy conflicts
with the clear congressional intent to make the ERISA
remedy exclusive and is therefore pre-empted. . . . The preemptive force of ERISA § 502(a) is still stronger. . . . [T]he
ERISA civil enforcement mechanism is one of those
provisions with such extraordinary pre-emptive power that it
converts an ordinary state common law complaint into one
stating a federal claim for purposes of the well-pleaded
complaint rule. Hence, causes of action within the scope of
the civil enforcement provisions of § 502(a) are removable to
federal court.
Aetna Health Inc. v. Davila, 542 U.S. 200, 209 (2004).
It may be that the plaintiff in the state court action would have
rights under state common law that are broader than the rights granted
by ERISA. But “the mere fact that the state cause of action attempts to
authorize remedies beyond those authorized by ERISA § 502(a) [will not]
put the cause of action outside the scope of the ERISA civil enforcement
mechanism.”
Aetna Health Inc. v. Davila, 542 U.S. at 214-15.
Thus,
complete preemption means that an ERISA enforcement action should be
dealt with in federal court even if that means that the plaintiff’s cause of
action is limited or must be dismissed. See Romney v. Lin, 894 F. Supp.
163 (S.D.N.Y.1995) (“Romney I”), aff’d, Romney v. Lin, 94 F.3d 74 (2d.
-7-
Cir. 1996) (“Romney II”), reh’g denied, Romney v. Lin, 105 F.3d 806 (2d.
Cir. 1997) (“Romney III”), cert. denied, 118 S.Ct. 263 (1997).
Despite plaintiffs’ purported pleading of the common law only,
ERISA issues pervade their complaint. All parties in this case are subject
to regulation under ERISA. Each plaintiff is a plan created pursuant to
ERISA to maintain benefits for carpenters operating in the state of New
Jersey. See ERISA § 402. As noted earlier, more than 25 percent of the
Meridian Fund’s equity participation comes from ERISA plans, making
the Meridian Fund’s assets “plan assets” and subjecting the Meridian
Fund to regulation under ERISA.
Each defendant, possibly having had control over “plan assets” or
advising as to their investment, is potentially a functional, rather than a
named, fiduciary as defined in ERISA with resulting duties. See id. at
(a)(2).
As noted above, ERISA creates a comprehensive regulatory
scheme to govern such fiduciaries. ERISA establishes standards of care,
ERISA § 404, and creates liability for those who do not live up to the
established standards of care. Id. at § 409.
Plaintiffs have alleged no breach of duty that arises separate from
duties imposed on fiduciaries of plan assets in ERISA § 404.
Furthermore, plaintiffs are ERISA entities suing alleged ERISA fiduciaries
and their claim is based on the same theory, depends on the same
elements, and was brought against the same defendants as the ERISA
civil
enforcement
actions
brought
-8-
by
plaintiffs
in
the
Meridian
consolidated action. For example, in the original complaint in Operating
Engineers v. Meridian Diversified Fund Management, LLC, 09-cv-03955
(TPG), plaintiffs allege in support of their ERISA enforcement action:
Defendants Meridian and Meridian Diversified are fiduciaries
which owed a duty of loyalty to plaintiff and the Sub-Class
members under ERISA, in that they were required to act
solely and exclusively in the interests of the Funds’
participants and beneficiaries. As part of their fiduciary
duties, defendants Meridian and Meridian Diversified owed a
duty to prudently manage and invest the assets of the
Funds. Defendants Meridian and Meridian Diversified
breached that duty by, inter alia: (a) failing to sufficiently
investigate the Madoff-related funds to insure that they were
a safe, prudent, honest and suitable investment for employee
pension benefit plans and their participants and
beneficiaries; and (b) failing to locate or give sufficient
attention to warning signs about the unreliability of Madoffrelated funds as investment vehicles.
Compare that to plaintiffs’ complaint in the present case against the
same defendants, where they allege:
Among other things, the Fund Defendants failed to: (a) safely
and prudently manage the Fund's business, operations and
assets; (b) perform, or supervise those tasked with
performing, adequate due diligence of the Fund's
investments, including due diligence with respect to the
Offshore XL Fund, Madoff and BMIS; (c) investigate red flags
regarding Madoff and BMIS.
Furthermore, the damages sought by plaintiffs in the present case track
the liability established for ERISA fiduciaries.
As stated in ERISA §
409(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 shall be
personally liable to make good to such plan any losses to the
plan resulting from each such breach. . . .
-9-
This is precisely the relief plaintiffs would receive in this derivative suit
brought on behalf of the fund against the fund’s managers. See, e.g.,
Scalp & Blade, Inc. v. Advest, Inc., 765 N.Y.S.2d 92, 97 (4th Dept. 2003)
(investors alleging breach of fiduciary duty would be entitled to
compensatory damages in an amount necessary “to make good, so far as
it is possible to do so in dollars and cents, the harm done by a
wrongdoer”).
Plaintiffs’ complaint arises from their function as ERISA entities,
their investment of ERISA plan assets, and defendants alleged role as
alleged fiduciaries of ERISA plan assets. Plaintiffs’ complaint is thus
inextricably tied up in the duties and remedies provided by ERISA.
See Davila, 542 U.S. at 213-14. In these circumstances, plaintiffs’ cause
of action for breach of fiduciary duty duplicates and purports to supplant
the ERISA civil enforcement remedy and therefore falls within the scope
of the cause of action established by Congress in ERISA § 502(a)(2) and
is completely preempted. See id. at 209.
The court cited the Romney litigation earlier in this opinion and
further discussion of these cases in appropriate.
In Romney I, the
District Court addressed the other side of the coin to this case: an
improper defendant rather than an improper plaintiff in an ERISA civil
enforcement claim.
Romney I, 894 F. Supp. at 166.
Plaintiff in that
case, a union official, had sued a company’s shareholder in state court,
claiming
the
shareholder
was
liable
- 10 -
for
the
company’s
unpaid
contributions to the union’s ERISA funds, although the claim was
brought under state law. The defendant shareholder removed the case to
federal court, claiming jurisdiction under ERISA, and moved to dismiss.
The plaintiff moved to remand the case to state court. The District Court
denied the plaintiff’s motion to remand, finding jurisdiction under ERISA,
and at the same time dismissed plaintiff’s claim against the shareholder
because the ERISA enforcement scheme “does not authorize any type of
action against officers and stockholders of a corporate employer to
recover contributions owed to an ERISA fund.” Id. Thus, despite the fact
that the claim in that case was one of state law and involved a party
outside of the scope of ERISA’s civil enforcement scheme, the District
Court maintained jurisdiction under ERISA and dismissed the state law
claim.
The Court of Appeals affirmed.
Romney II, 94 F.3d 74.
In
denying rehearing of, the Court of Appeals stated that “the scope of
502(a)” expands beyond claims pleading proper parties and an action will
still fall within the scope “even though it is directed against a defendant
not liable under ERISA.” Romney III, 105 F.3d at 813.
Plaintiffs rely on Eastern States Health & Welfare Fund v. Philip
Morris, Inc., 11 F. Supp. 2d 384, 402 (S.D.N.Y. 1998), where the
argument that standing is necessary for complete preemption under
ERISA was accepted as one of two alternative bases for remanding to
state court a subrogation claim brought by health plans against tobacco
companies for healthcare costs associated with smoking.
- 11 -
However,
Eastern States is distinguishable.
Unlike the claims for breach of
fiduciary duty in the instant case, the subrogation claims in Eastern
States are unrelated to the civil enforcement actions set forth in ERISA §
502(a), and therefore did not implicate the same concerns regarding
Congress’s intention to keep § 502(a) as the exclusive means by which to
bring a civil enforcement action under ERISA. See Beneficial National
Bank, 539 U.S. at 9 n.5 (“[T]he proper inquiry focuses on whether
Congress intended the federal cause of action to be exclusive. . . .”). To
allow an ERISA plan to pursue in state court a civil enforcement action
so closely tied to the limited actions provided for by Congress precisely
because Congress prohibited the plan from bringing any such civil
enforcement action in federal court would turn the purpose of complete
preemption on its head.
Plaintiffs next rely on Franchise Tax Board v. Construction
Laborers Vacation Trust, 463 U.S. 1, 27 (1983), in which the Court notes
that enforcement actions by improper plaintiffs cannot be brought under
ERISA § 502(a). However, all parties acknowledge that plaintiffs may not
be the proper plaintiffs to bring an enforcement action under § 502(a).
Indeed, plaintiffs’ claim seems purposely structured to guarantee as
much.
The proper inquiry is then what effect that has on a court’s
complete preemption analysis. And, as noted above, the answer to that
follows from the Court’s reasoning in Davila. Improper claims are still
- 12 -
“within the scope” of § 502(a) in the sense of being completely preempted.
Davila, 542 U.S. at 209.
In fact, Franchise Tax was not remanded for lack of standing, but
rather because, although the well-pleaded complaint rule would logically
have permitted removal of the case, the Court, citing unique federalism
concerns, did not want to deprive a state court of jurisdiction over a case
brought by a state agency to declare the validity of its own regulations.
463 U.S. at 19-22. The federalism concerns in the instant case are the
mirror image of Franchise Tax and point towards federal jurisdiction:
federally created ERISA plans suing on behalf of an investment fund
holding ERISA plan assets, against ERISA-regulated managers for breach
of fiduciary duty--a breach already at issue in consolidated litigation
pending in federal court and the standards for which are established by
federal law.
Plaintiffs next contend that because their derivative claim is
unavailable under § 502(a) it cannot then be within the scope of § 502(a).
Such an argument, however, like the argument regarding standing just
discussed, was clearly foreclosed by the Supreme Court in Davila.
Plaintiffs then point to Second Circuit dicta in Lupo v. Human
Affairs Intern., Inc., 28 F.3d 269, 272 (2d Cir. 1994), suggesting that
complete preemption applies only to enforcement actions under §
502(a)(1)(B), which does not include actions for breach of fiduciary duty.
Lupo, however, preceded Davila, and is no longer significant. See Davila,
- 13 -
542 U.S. at 209 (“[C]auses of action within the scope of the civil
enforcement provisions of § 502(a) are removable to federal court.”)
(emphasis added) (internal quotations and brackets omitted)).
Finally, based on their flawed assumption that the Meridian Fund,
a Cayman Island’s entity, is the true plaintiff in this case, plaintiffs argue
that complete preemption is unavailable because it does not apply
extraterritorially.
As discussed above, the Meridian Fund is properly
aligned as a defendant in this analysis and, as such, this argument has
no merit.
CONCLUSION
Plaintiffs’ state law derivative action for breach of fiduciary duty is
completely preempted by ERISA.
This court has exclusive jurisdiction
over plaintiffs’ claims and therefore plaintiffs’ motion to remand is
denied.
- 14 -
Dated: New York, New York
1
May 11,201
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