Kunsman et al v. Sally Conkright Et Al.,

Filing 76

ORDER that Counsel for both sides are hereby directed to file, no later than 2/5/16, additional memoranda of law, concerning the effect that this Court's 1/5/16 Decision and Order in Frommert v. Conkright, 00-CV-6311, should have on this case, and in particular with regard to the Court's decision on plaintiff Joseph McNeil's motions for leave to file an amended complaint 64 and for class certification 66 . Signed by Hon. David G. Larimer on 1/11/16. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
BRUCE D. KUNSMAN, et al.,
Plaintiffs,
DECISION AND ORDER
08-CV-6080L
v.
LAWRENCE M. BECKER,
In their capacity as Xerox Corporation Retirement
Income Guarantee Plan Administrators and as
Individuals, et al.,
Defendants.
________________________________________________
This is one of several cases in this Court, involving claims under the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., against the Xerox Corporation
(“Xerox”), the Xerox Retirement Income Guarantee Plan (“Plan”), and individually- named
retirement plan administrators (collectively, the “plan administrator”). The claims in these cases
relate to the calculation and payment of retirement benefits for Plan participants who left Xerox's
employ at some point, took a lump-sum distribution of accrued pension benefits, and later returned
to Xerox for a second period of employment. The basic dispute in all these cases involves
defendants’ treatment of the prior distributions when calculating plaintiffs’ subsequent pension
benefits, following their second period of employment.
On January 5, 2016, the Court issued a Decision and Order in Frommert v. Conkright, 00CV-6311, which, as the Court there stated, “might fairly be described as the ‘lead case,’” inasmuch
as it has been the subject of several decisions of this Court, of the Court of Appeals, and of the
United States Supreme Court. __ F.Supp.3d __, 2015 WL 64678, at *1. For purposes of this Order,
familiarity with that decision, and with the other relevant decisions in the instant case and in
Frommert, is assumed.

Two motions are currently pending before the Court in this case, Kunsman v. Conkright.:
a motion for leave to file an amended complaint (Dkt. #64) and a motion for class certification (Dkt.
#66). Both motions were filed by plaintiff Joseph McNeil, Jr. Defendants have filed papers in
opposition to the motions, and certain “non-moving plaintiffs” have also filed a “statement,”
essentially supporting McNeil’s motions. (Dkt. #73).
Both motions also relate to the same underlying issue: the extent to which this Court’s (and
the appellate courts’) rulings in Frommert should apply to the plaintiffs in Kunsman, and to other
similarly-situated past and present Xerox employees and Plan participants.
While it does not directly speak to that issue, the Court’s January 5 Decision and Order in
Frommert is of obvious relevance to plaintiff McNeil’s motions in this case. Presumably, the parties
would like a chance to weigh in on how this Court’s most recent Frommert decision affects, or
should affect its decision on McNeil’s motions, and the Court likewise believes that it would benefit
from the parties’ input as to that question. I therefore direct the parties to file additional briefs, as
set forth in the following Conclusion.

CONCLUSION
Counsel for both sides are hereby directed to file, no later than February 5, 2016, additional
memoranda of law, concerning the effect that this Court’s January 5, 2016 Decision and Order in
Frommert v. Conkright, 00-CV-6311, should have on this case, and in particular with regard to the
Court’s decision on plaintiff Joseph McNeil’s motions for leave to file an amended complaint (Dkt.
#64) and for class certification (Dkt. #66).
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
January 11, 2016.

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