Client Alert

Second Circuit Limits Impact of Employers Oral Misrepresentation of Benefits Plan

November 05, 2009

Patrick W. Shea and Alexander W. Wood

Ever since the Second Circuit Court of Appeals held more than 15 years ago in Mullins v. Pfizer, Inc., 23 F.3d 663 (2d Cir. 1994), that a fiduciarys material misrepresentation concerning the availability of future voluntary retirement benefits could be considered a breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA), the Second Circuit has been a relatively hospitable venue for such claims. Larger companies had the impossible task of policing hundreds of potential manager/human resource personnel fiduciaries to prevent misrepresentations; a misrepresentation, even in a casual conversation, could be an ERISA violation. This all changed on September 30, 2009, when the Second Circuit decided in Ladouceur v. Credit Lyonnais, Case No. 07-4040-cv (2d Cir. September 30, 2009), to limit Mullins to written misrepresentations. Since many misrepresentation claims are based on oral statements, this should foreclose many ERISA misrepresentation claims.

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