Case 1:18-cv-04483-GHW-RWL Document 90 Filed 09/05/19 Page 1 of 60
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:._ _ _ _ __

UNITED STATES DISTRICT COURT
DATE FILED:._
__ _ _
9/5/2019
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
CHRISTOPHER HUDSON, individually and
:
on behalf of others similarly situated,
:
18-cv-04483 (GHW) (RWL)
:
Plaintiff,
: REPORT AND RECOMMENDATION
:
TO HON. GREGORY H. WOODS:
:
MOTIONS TO DISMISS
- against :
:
NATIONAL FOOTBALL LEAGUE
:
MANAGEMENT COUNCIL, NATIONAL
:
FOOTBALL LEAGUE PLAYERS
:
ASSOCIATION, RETIREMENT BOARD OF
:
THE BERT BELL/PETE ROZELLE NFL
:
PLAYER RETIREMENT PLAN, KATHERINE :
“KATIE” BLACKBURN, RICHARD CASS.
:
TED PHILLIPS, SAMUEL MCCULLUM,
:
ROBERT SMITH, and JEFFREY VAN NOTE :
:
Defendants.
:
---------------------------------------------------------------X
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiff Christopher Hudson (“Hudson”) brings this action under the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq., on behalf
of himself and other similarly situated participants in the Bert Bell/Pete Rozelle NFL Player
Retirement Plan (the “Plan”). The lawsuit names the National Football League
Management Council (the “Council”), National Football League Players Association (the
“Association”), and the Retirement Board of the Plan (the “Retirement Board”) along with
the Retirement Board’s six individual members—Katherine Blackburn, Richard Cass, Ted
Phillips, Samuel McCullum, Robert Smith, and Jeffrey Van Note (collectively, the
“Individual Board Defendants” and, together with the Council, the Association, and the
Retirement Board, the “Defendants”). Hudson alleges that all Defendants have breached

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their duties under ERISA with respect to the application of certain benefits to the detriment
of Hudson and other participants in the putative class.
Defendants have each separately moved to dismiss the action pursuant to Fed. R.
Civ. P. 12(b)(6). (Dkt. 52, 54, and 61.) For the reasons that follow, I recommend that
Defendants’ motions be GRANTED and the action be DISMISSED with prejudice.
Procedural Background
Plaintiff filed his Complaint on May 21, 2018 on behalf of himself and a putative
class of similarly-situated Plan participants. (Dkt. 1.) Through a stipulation dated July 18,
2018, all parties agreed upon a briefing schedule for motions to dismiss the Complaint,
which was adopted by the Court. (Dkt. 45.) Pursuant to that schedule, each of the
Defendants—the Council, the Association, and the Retirement Board (including its six
individual members)—moved for dismissal on August 31, 2018.
The Council’s motion consists of (1) its Memorandum of Law (“Council Mem.”)
(Dkt. 53); and (2) the Declaration of Stacey R. Eisenstein in Support with Exhibits A-C
(“Eisenstein Decl.”) (Dkt. 55.) The Retirement Board’s motion consists of (1) its
Memorandum of Law (“Board Mem.”) (Dkt. 57); and (2) the Declaration of Michael L. Junk
in Support with Exhibits A-E (“Junk Decl.”) (Dkt. 56.) The Association’s motion consists
of its Memorandum of Law (“Association Mem.”). (Dkt. 62.)
Plaintiff filed his omnibus opposition to the motion to dismiss on October 20, 2018,
consisting of: (1) a Memorandum of Law in Opposition (“Pl. Opp.”); and (2) the Declaration
of Daniella Quitt in Opposition with Exhibits A-B. 1 (“Quitt Decl.”) (Dkt. 72 and 73.)

1

Pursuant to the parties’ July 18, 2018 stipulation, Plaintiff’s omnibus opposition
addresses the arguments in each of the three motions to dismiss. (Dkt. 45.)

2

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Each of the Defendants filed a reply memorandum of law in further support of its
respective motion to dismiss on November 30, 2018. (Dkt. 74, 75, and 76.)
This case was initially assigned to the Honorable Robert W. Sweet, who held at
least one scheduling conference on November 27, 2018 and then heard oral argument
on the motions to dismiss on December 19, 2018, though he did not issue a decision. 2
Judge Sweet passed away on March 24, 2019, and as a result, the case was reassigned
to Judge Gregory Woods. (Dkt. 79.) Judge Woods, in turn, referred the matter to the
undersigned for case management as well as the resolution of the three instant motions
to dismiss. (Dkt. 81.) The undersigned held a case management conference on May 9,
2019, at which time the parties discussed several discovery issues as well as the overall
status of the case. (Dkt. 84.) All parties acknowledged that the resolution of the motions
to dismiss would be essential in determining how best to proceed.
Factual Background 3
A.

The Parties
Hudson is a former professional football player with the National Football League

(the “NFL”). He played for the Jacksonville Jaguars from 1995 to 1999, the Chicago Bears

2

The Court confirmed with both its internal Court Reporters’ Office and Plaintiff’s counsel
that no transcript of the December 19, 2018 argument was generated.

3

In accordance with the standard for assessing a motion to dismiss, all non-conclusory
facts described herein are derived from Plaintiff’s Complaint, and accepted as true. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Johnson v. Priceline.com, Inc., 711 F.3d 271,
275 (2d Cir. 2013). In addition to the Complaint, the Court also draws upon statements
and documents incorporated into the Complaint by reference, as well as matters of which
judicial notice may be taken. See Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir.
2013) (citing ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007)). As relevant here, the Court may consider the documents annexed to the
declarations of counsel submitted in connection with the motions. Most importantly, the
Court may consider the full Bert Bell/Pete Rozelle NFL Player Retirement Plan, which is
3

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from 1999 to 2001, and finally the Atlanta Falcons from 2001 until his retirement in 2003.
(Complaint ¶ 10.) Hudson played the position of safety for all eight years of his NFL
career. (Complaint ¶ 31.)
The Council, based in New York City, represents the 32 clubs that employ NFL
players and functions as the “collective bargaining representative of the Employers.”
(Complaint ¶¶ 11-12; Plan at 5, Article 1.21.) Particularly as relevant here, Article 10.2 of
the Plan provides that the Council, when acting jointly with the players’ Association
(described below), has the power to amend the Plan. (Complaint ¶ 11; Plan at 36.)
Pursuant to Article 8.1, the Council also has the authority to appoint three voting members
of the Retirement Board (described below) and replace any member of the Retirement
Board that the Council itself had appointed. (Complaint ¶ 11; Plan at 30.)
The Association is the labor organization representing the professional American
football players in the NFL. (Complaint ¶ 12.) It functions as the collective bargaining unit
for those players. (Id.) Again, as most relevant here, Article 10.2 of the Plan provides that
the Association, when acting jointly with the Council, has the power to amend the Plan.
Pursuant to Article 8.1, the Association also has the authority to appoint three voting
members of the Retirement Board and to remove and replace any member of the
Retirement Board that the Association had appointed. (Complaint ¶ 12; Plan at 30.)
Plaintiff alleges that both the Council (representing management) and the
Association (representing the players) are fiduciaries of the Plan under ERISA, 29 U.S.C.

annexed as Exhibit A to the Declaration of Michael Junk in Support of the Retirement
Board’s Motion to Dismiss (Dkt. 56-1-7), as well as the full Summary Plan Description,
annexed as Exhibit B. (Dkt. 56-8.)
4

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§ 1002(21)(A), and therefore had the responsibility to monitor the Retirement Board as
an entity as well as the individual Board members. (Complaint ¶¶ 1, 11-12.)
The Retirement Board is the Plan’s administrator and named fiduciary. (Plan at 2,
Article 1.3.) Responsibilities of the Retirement Board include overseeing the Plan, making
benefit decisions, construing the Plan’s terms, reconciling inconsistences, and other
aspects of managing the Plan.

(Complaint ¶ 13; Plan at 30-31, Article 8.2.) The

Retirement Board is composed of six voting members, three of whom are selected by the
Association and three of whom are selected by the Council; the Commissioner of the NFL
serves as an ex officio seventh member. (Id.; see also Plan at 30, Article 8.1.) Plaintiff
alleges that the Retirement Board is a fiduciary within the meaning of ERISA, 29 U.S.C.
§ 1002(16)(A) and 29 U.S.C. § 1002(21)(A) because it exercised discretionary authority
and responsibility over the Plan. (Id.; see also Plan at 30-31, Article 8.2.)
Finally, the Complaint also names six individuals identified by the Summary Plan
Description (Junk Decl., Ex. B) as managing members of the Retirement Board: Katherine
“Katie” Blackburn (“Blackburn”), Richard W. “Dick” Cass (“Cass”), Ted Phillips (“Phillips”),
Samuel McCullum (“McCullum”), Robert Smith (“Smith”), and Jeffrey Van Note (“Van
Note”). (Complaint ¶¶ 14-19.) These individuals are sometimes referred to as the “Plan
trustees” or “trustees” by the Plan documents.
B.

The Bert Bell/Pete Rozelle NFL Player Retirement Plan
Named after two former NFL commissioners, 4 the Plan is a multi-employer

retirement plan that provides various pension, disability and other benefits to eligible

4

See,
Pro
Football
Hall
of
Fame,
“Bert
Bell,”
available
at
https://www.profootballhof.com/players/bert-bell/; Pro Football Hall of Fame, “Pete
Rozelle,” available at https://www.profootballhof.com/players/pete-rozelle/.
5

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professional football players. (Complaint ¶ 21.) Unlike a single-employer retirement
plan—which is funded and administered by one employer and governed by 29 U.S.C. §
1002(16)(B)—multi-employer plans are maintained pursuant to collective bargaining
agreements between employers and employee organizations, which require multiple
employers (here, the various NFL clubs) to “pool contributions into a single fund that pays
benefits to covered retirees who spent a certain amount of time working for one or more
of the contributing employers.” Trustees of Local 138 Pension Trust Fund v. F.W.
Honerkamp Co. Inc., 692 F.3d 127, 129 (2d Cir. 2012); see also 29 U.S.C. § 1002(37)(A).
This form of multi-employer plan “differ[s] from the typical employer sponsored and
administered plan in that [it was] established through collective bargaining between the
employees and employers.” Courson v. Bert Bell NFL Player Retirement Plan, 75 F.
Supp. 2d 424, 431 (W.D. Pa. 1999) (interpreting NFL’s retirement plan structure). Multiemployer plans are often used in industries where employees frequently transfer among
employers. Id.; see also New York Times Company v. Newspaper and Mail Deliverers'Publishers' Pension Fund, 303 F. Supp. 3d 236, 241 (S.D.N.Y. 2018) (describing purpose
of multi-employer plans). Multi-employer plans are overseen by a board of trustees with
equal voting strength held by representatives of the labor union and the employers who
contribute to the plan. See, e.g., Flynn v. Hach, 138 F. Supp. 2d 334, 337 (E.D.N.Y. 2001)
(noting that multi-employer plans have equal representation from labor and
management).
Here, the Plan is the result of a collective bargaining agreement between the
Council (representing the employers, namely the 32 contributing NFL member clubs), and
the Association (representing the NFL players). (Complaint ¶¶ 11, 12; see also Plan at

6

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1.) Hudson alleges, and Defendants agree, that the Plan is an employee pension benefit
plan within the meaning of ERISA, 29 U.S.C. § 1002(2)(A). 5 As noted above, the Plan is
governed by a seven-member Retirement Board. The Council appoints three of the
members; the Association appoints three members; and the Commissioner of the NFL
serves as an ex officio seventh member. (Complaint ¶ 13; Plan at 30, Article 8.1.)
In addition to the Plan itself, this action also implicates the language of the
Summary Plan Description, dated August 2010. (Junk Decl., Ex. B.) Generally, ERISA
requires that plan administrators provide “summary plan descriptions” to plan participants,
which give basic information about when an employee can begin to participate in the plan
and how to file a claim for benefits. If a plan is changed, participants must be informed,
either through a revised summary plan description, or in a separate document, called a
summary of material modifications. 6 See 29 U.S.C. § 1022(a) (requiring that summary
plan descriptions “be written in a manner calculated to be understood by the average plan
participant” and to “be sufficiently accurate and comprehensive to reasonably apprise
such participants and beneficiaries of their rights and obligations under the plan.”) As the
summary plan description provided to Hudson says, its goal is to “summarize . . . the
Retirement Plan in everyday language.” (Junk Decl., Ex. B at 1.)
The Plan provides different benefit levels with differing compensation rates
depending on whether the player is disabled, and if so, whether the disability was the

5

The Complaint acknowledges that there is a separate NFL Player Supplemental
Disability & Neurocognitive Benefit Plan, which only applies to benefits arising after April
1, 2017. That supplemental plan thus does not cover Plaintiff’s claimed disability benefits.
(Complaint ¶ 21.)

6

See generally, “Health Plans & Benefits: Plan Information,” Department of Labor,
available at https://www.dol.gov/general/topic/health-plans/planinformation.
7

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result of playing football. (Complaint ¶ 2; Plan at 18, Article 5.1.) Article 5.1 provides four
categories of benefits with different monthly benefit rates depending on which of the
benefit criteria are met. (Complaint ¶ 25; Plan at 18, Article 5.1.) Collectively, these
categories are known as Total and Permanent Disability (“T&P”) benefits.
Two of those T&P benefit categories are relevant to Hudson’s lawsuit: (i) “Inactive”
T&P benefits, which are available for benefit-eligible retired players whose disability
arises from non-NFL-football activities or arises out of NFL football activities more than
15 years after the player’s last credited season (Complaint ¶ 23; Plan at 18-19, Article
5.1); and (ii) “Football Degenerative” T&P benefits, which are available for benefit-eligible
retired players whose disability arises out of NFL-football activities and results in total and
permanent disability within 15 years of the player’s last credited season. (Complaint ¶ 25;
Plan at 18, Article 5.1.)
As of 2016, “Inactive” T&P benefits provided monthly payments of $4,166.50 a
month. “Football Degenerative” T&P benefits provided monthly payments of $10,250.00.
(Complaint ¶ 25.) The Plan allows for players to seek benefits for one benefit level and
then later apply to be “reclassified” at a different benefit level. To achieve that
reclassification, the player must show “clear and convincing” evidence that because of
“changed circumstances,” the player satisfies the conditions of eligibility for a new
classification. (Complaint ¶¶ 28, 30.)
In reviewing a player’s claim for additional benefits, an initial determination is made
by an Initial Claims Committee, which reviews the facts and circumstances of the request.
(Complaint ¶¶ 28, 36.) That group consists of three members: one appointed by the
Council, one appointed by the Association, and one medical professional jointly

8

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designated by the Council and Association. (Plan at 30, Article 8.2(b) and 8.4.) Decisions
of the Initial Claims Committee are appealable to the Retirement Board, which has the
power under the Plan to make the final administrative determination about a player’s
benefit category. (Id.)
C.

Hudson’s Claims for Disability Benefits
In 2005, about two years after retiring from the NFL, Hudson began complaining

of headaches, dizziness, ringing ears, and blurred vision. (Complaint ¶ 31.) These
problems worsened in 2008, when he reported “increased anxiety, poor decision making,
inability to sit still for long periods of time, sleep problems, decreased ability to
concentrate, social withdrawal, memory problems (forgetting the names of familiar
people), increased occurrence of headaches, and sensitivity to lights.” (Id.)
Hudson filed an initial application for disability under the Plan on March 9, 2010.
After his claim was denied, Hudson filed an appeal with Retirement Board on July 27,
2010. After subsequent neurological testing, the Retirement Board awarded him T&P
“Inactive” disability benefits under the Plan on May 20, 2011. (Id. ¶ 32.) However, in that
same decision, the Retirement Board determined that Hudson was ineligible for the higher
“Football Degenerative” benefits because his cognitive impairments were attributable to
non-League related mood disorder. (Id. ¶ 33.) In subsequent communications with
Hudson on November 28, 2011, the Retirement Board explained that it had determined
that his injuries were “not related to League football activities.” (Id.)
After the May 20, 2011 award of T&P “Inactive” benefits, Hudson filed for Social
Security disability benefits on June 27, 2012. On May 5, 2014, the Social Security
Administration found that Hudson was disabled as of December 31, 2009. (Id. ¶ 34.)

9

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Following that decision, Hudson sought to have his T&P “Inactive” benefits reclassified
as “Football Degenerative” benefits by filing a claim under the Plan on September 16,
2014. (Id. ¶ 35.) He was again denied by the Initial Claims Committee, which Hudson
alleges did not explain how they weighed the evidence of his “changed circumstances”
based on the Social Security determination. (Id. ¶ 36; Quitt Decl., Ex. A.) In its denial, the
Initial Claims Committee notified Hudson of his right to appeal as well as his ability to
“submit written comments, documents and any other information that you believe shows
you qualify for these benefits.” (Id.)
Hudson appealed the Initial Claims Committee’s decision and included additional
pieces of medical evidence to support his claim. (Complaint ¶ 37.) On May 21, 2015, the
Retirement Board issued a Final Decision, received by Hudson on May 27, 2015.
(Complaint ¶ 38; Quitt Decl., Ex. B.) In its decision, the Retirement Board denied his
appeal for reclassification, finding that Hudson failed to meet its “changed circumstances”
requirement: “At its May 14, 2015 meeting, the Retirement Board reviewed the entire
record underlying your appeal and determined that your request for reclassification must
be denied. Section 5.55(b) [of the Plan] governs requests for reclassification such as
yours, and it permits reclassification of T&P benefits only where a Player provides ‘clear
and convincing’ evidence of ‘changed circumstances’ warranting ‘a different category of
total and permanent disability benefits.’ In this and all other instances, the Retirement
Board interpret Section 5.5(b)’s ‘changed circumstances’ requirement to mean a change
in Player’s physical condition—such as a new or different impairment—that warrants a
different category of benefits.” (Id.)

10

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Hudson alleges that the Retirement Board’s denial contained, for the first time, a
written explanation of its definition of “changed circumstances” and the standard by which
his benefit reclassification request would be evaluated. (Complaint ¶ 39.)
D.

Hudson’s Requests for Information
Following the Retirement Board’s May 27, 2015 denial of his request for higher

benefits, Hudson made various legal filings, information requests, and document requests
to evaluate and challenge the outcome of the decision. Because the Retirement Board’s
alleged obligation to share information is relevant to the instant motions, the Court briefly
reviews these efforts.
To begin, Hudson filed a lawsuit in the Northern District of Mississippi in August
2015. 7

That lawsuit was dismissed through a stipulation between Hudson and

Defendants to remand the issue for further consideration at the administrative level by the
Retirement Board. 8 (Id. ¶ 40.)
On April 1, 2016, Hudson’s counsel sent the Plan Director, Michael Miller, and
counsel for the Plan, Michael Junk, a Request for Clarification/Request for Information
regarding the Plan’s definition of “changed circumstance” and the Retirement Board’s
definition of “impairment.” (Id. ¶ 41.) Junk responded in writing noting that two prior court
decisions had upheld the Retirement Board’s definition of “changed circumstanced” and

7

That lawsuit was captioned as Hudson v. Retirement Board, No. 3:15-cv-128 (N.D.
Miss.).

8

The Retirement Board argues—and Hudson does not dispute—that there were two
reasons that Hudson agreed to the remand: First, a federal district court in Maryland had
recently endorsed the Retirement Board’s interpretation of the Plan; and second, the
remand gave Hudson “another chance to show that he met the ‘changed circumstances’
requirement.” (Board Mem. at 5.)
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further noted that he would not provide a definition of the term “impairment” because
doing so could be construed as an advisory opinion. (Id.)
Hudson sent several additional requests for documents and information to Miller
and Junk. On June 13, 2016, he again requested a list of all instances where the
Retirement Board has interpreted the “changed circumstances” requirement under Article
5.5(b) of the Plan as well as how Retirement Board defines the term “impairment.” (Id. ¶
42) Neither Miller nor Junk responded to the second request. (Id.) Hudson then sent a
third request on September 30, 2016 seeking further information regarding the Retirement
Board’s “use of discretion” in this case as well as various materials. No response or
materials were provided. (Id. ¶ 43.) On December 12, 2016, Hudson sent another
request, which noted that he had not received a response. In a letter dated December 19,
2016, Junk refused to provide any materials on the grounds that they were not relevant.
(Id. ¶ 45.) Hudson served another series of document requests on December 29, 2016,
citing 29 C.F.R. 2560.503-1(m)(8) for a definition of “relevant documents.” Junk
responded with a letter dated January 10, 2017, maintaining that “[t]he Retirement
Board’s decision . . . is final, it will not be reopened, and the Plan will not produce any of
the documents you have requested.” (Id. ¶ 46.)
In February 2018, Hudson received notice of a summary of material modifications
to the NFL Player Disability & Neurocognitive Benefit Plan (the “2017 Amendment”). (Id.
¶ 47.) One modification addressed “[t]he standard for reclassifying [participants’] total and
permanent disability benefits”; Hudson alleges that this change modified the standard of
what constitutes “changed circumstances” under that Plan. (Id. ¶ 47-48.) After receiving
that notice, Hudson’s counsel sent a letter dated March 2, 2018 to the Retirement Board

12

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asking whether these changes “were meant to apply retroactively to persons such as Mr.
Hudson.” By a separate letter on March 2, 2018, Hudson’s counsel also made a request
pursuant to 29 U.S.C. § 1024(b)(4) requesting certain documents. (Id. ¶ 48.) On March
13, 2018, the Retirement Board sent Hudson’s counsel the NFL Player Disability &
Neurocognitive Benefit Plan (Amended and Restated as of April 1, 2017), a Summary of
Material Modifications (undated), and a Summary Plan Description (dated September
2015). (Id. ¶ 49.) However, the Retirement Board did not respond to Hudson’s question
about whether the Board intended to have the 2017 Amendment to the Plan apply to
Hudson’s claim for benefits. (Id. ¶ 51.) On March 15, 2018, the Retirement Board’s
counsel sent an email to Hudson’s counsel, stating: “We will not ask the Retirement Board
for what amounts to an advisory opinion on questions that, frankly, we do not even
understand.” (Id.)
E.

Hudson’s Requests for Relief
The Complaint seeks several forms of legal and equitable relief under ERISA,

which the Court summarizes here. (See Complaint at 33-35, ¶¶ A-L.)
First, the Complaint asks the Court to declare that all Defendants violated their
respective fiduciary duties under 29 U.S.C. § 1104(a)
Second, it asks the Court to declare that the Retirement Board violated 29 U.S.C.
§ 1104(a)(1)(A)-(B) and (D), in failing to make sufficient disclosures to participants about
their benefits, and that it failed to communicate sufficient information about the standard
to obtain reclassification under the Plan.
Third, it asks that the Court direct the Retirement Board to “disclose the standards
for reclassification in the [Summary Plan Description] and in other disclosures in language

13

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understood by the average participant in this Plan, that such disclosures will not use legal
jargon or legal terms and that the disclosures must use clarifying examples to explain the
meaning of ‘clear and convincing evidence’ or ‘changed circumstances’ to Plan
participants in those documents.”
Fourth, it asks for a judicial declaration voiding all denials of reclassifications by
any member of the putative class based on either lack of “clear and convincing evidence”
or lack of “changed circumstances” under the Retirement Board’s prior interpretation.
Fifth, it asks for an Order either “(1) reforming the reclassification process and
determining that the terms ‘clear and convincing evidence’ and ‘changed circumstances’
must be interpreted according to the ordinary meaning of those terms as understood by
the average participant in this Plan or (2) determine that the initial classification is voidable
at the option of each member of the putative class and require that Defendants allow
Plaintiff and each member to make a claim for benefits as their initial classification,
whichever is in the best interests of the class.”
Sixth, it asks for an Order that, to the extent that any of the members of the putative
class successfully obtain reclassification or increased benefits following the entry of this
Court’s Order, that Defendants must be charged pre-judgment interest from the date of
Plaintiff’s initial request for reclassification.
Seventh, it asks the Court to impose a surcharge against the Defendants for
attorneys’ fees or expenses incurred by Hudson (or other putative class members) who
incurred such fees and expenses in connection with the request for reclassification, which
the Retirement Board denied using an allegedly undisclosed interpretation of the phrase
“changed circumstances.”

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Eighth, the Complaint seeks a declaration that the 2017 Amendment, including any
revised standards for reclassification of benefit categories, do not apply to Hudson or
members of the putative class.
Ninth, the Complaint seeks a declaration that Section 11.7(b) violates 29 U.S.C. §
1110, and is null and void to the extent that it conflicts with 29 U.S.C. § 1113, and asks
the Court to “reform” the Plan accordingly.
Tenth, the Complaint asks the Court to remove any of the “breaching fiduciaries”
from their positions on the Retirement Board and to enjoin them from acting as fiduciaries
for any plan that covers any members of the putative class and, if necessary, to appoint
an independent fiduciary to “act as the Retirement Board” at the expense of the
Defendants.
Eleventh, the Complaint asks the Court to require Defendants to pay attorney’s
fees and the costs of this action pursuant to 29 U.S.C. § 1132(g)(1), or order that
Defendants pay reasonable fees and expenses of this action to Plaintiffs’ counsel “on the
basis of the common benefit and/or common fund doctrine (and/or other applicable law)
out of any money or benefit recovered” for the members of the class.
Twelfth, and finally, the Complaint seeks “any such other relief that the Court
determines that he and the putative class members are entitled pursuant to 29 U.S.C. §
1132(a) and pursuant to Rule 54(c) of the Federal Rules of Civil Procedure or otherwise.”
Legal Standards
A.

Standards for Motion to Dismiss
All Defendants seek dismissal based upon Fed. R. Civ. P. 12(b)(6) for failure to

state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion, a

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complaint must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible
when the factual content pleaded allows a court “to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of entitlement to
relief.’” Id. (quoting Twombly, 550 U.S. at 557).
In considering a motion to dismiss for failure to state a cause of action, a district
court “accept[s] all factual claims in the complaint as true and draw[s] all reasonable
inferences in the plaintiff’s favor.” Lotes Co. v. Hon Hai Precision Industry Co., 753 F.3d
395, 403 (2d Cir. 2014) (internal quotations omitted). This tenet, however, is “inapplicable
to legal conclusions. Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Rather, the
complaint’s factual allegations must be enough to raise a right to relief above the
speculative level . . . i.e., enough to make the claim plausible.” Arista Records, LLC v.
Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (internal quotation marks omitted). A complaint
is properly dismissed where, as a matter of law, “the allegations in [the] complaint,
however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558.
When considering a motion to dismiss pursuant to Rule 12(b)(6), a court generally
is confined to the facts alleged in the complaint. Cortec Industries v. Sum Holding L.P.,
949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider additional materials,
including documents attached to the complaint, documents incorporated into the
complaint by reference, public records, and documents that the plaintiff either possessed

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or knew about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp., 706
F.3d 145, 152 (2d Cir. 2013) (quoting ATSI Communications, Inc. v. Shaar Fund, Ltd.,
493 F.3d 87, 98 (2d Cir. 2007)); see also, Yak v. Bank Brussels Lambert, 252 F.3d 127,
130 (2d Cir. 2001) (explaining that on Rule 12(b)(6) motion to dismiss, court may consider
any documents of which the parties had actual notice, and which are integral to the
complaint). In that regard, if “a document relied on in the complaint contradicts allegations
in the complaint, the document, not the allegations, control, and the court need not accept
the allegations in the complaint as true.” Poindexter v. EMI Record Group Inc., No. 11
Civ. 559, 2012 WL 1027639, at *2 (S.D.N.Y. March 27, 2012) (citing Barnum v. Millbrook
Care Ltd. Partnership, 850 F. Supp. 1227, 1232-33 (S.D.N.Y.1994)).
In the context of ERISA actions, courts will consider the underlying retirement plan
documents in connection with a motion to dismiss. See McCarthy v. Dun & Bradstreet
Corporation, 482 F.3d 184, 191 (2d Cir. 2007) (considering ERISA plan documents on
motion to dismiss); In re Bank of America Corp. Securities, Derivative, and Employee
Retirement Income Security Act Litigation, 756 F. Supp. 2d 330, 345 (S.D.N.Y. Aug. 27,
2010) (same).
B.

ERISA Standards
Hudson’s lawsuit is premised on the scope of the fiduciary duties held by the

respective Defendants under ERISA. It is undisputed that the Plan is a multi-employer
pension plan subject to 29 U.S.C. §§ 1001-1461. (Complaint ¶ 1; Council Mem. at 2;
Association Mem. at 4; Board Mem. at 3.)
ERISA was enacted “to provide a uniform regulatory regime over employee benefit
plans.” Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004). It is designed to protect

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employee benefit and pension plans by, among other things, “setting forth certain general
fiduciary duties applicable to the management of both pension and non-pension benefit
plans.” Varity Corp. v. Howe, 516 U.S. 489, 496 (1996); see also Trustees of the Local
138 Pension Trust Fund, 692 F.3d at 128 (“ERISA is a comprehensive statutory scheme
regulating employee retirement plans.”). Several legal standards within ERISA are
implicated by the Complaint.
1. Fiduciary Status Under ERISA
ERISA “places great responsibilities upon the fiduciaries of a plan to protect the
interests of the plan's beneficiaries.” Gerosa v. Savasta & Co., 329 F.3d 317, 320 (2d Cir.
2003) (citing 29 U.S.C. §§ 1101–1112 and describing responsibilities of ERISA
fiduciaries). Only those who are deemed fiduciaries are subject to ERISA liability. See
Adler v. Aztech Chas. P. Young Co., No. 91 Civ. 5042, 1992 WL 309548, at *4 (S.D.N.Y.
Oct. 15, 1992) (“ERISA imposes liability only upon fiduciaries—those who exercise
discretion over the administration or management of a plan”); Majad ex rel. Nokia
Retirement Savings & Investment Plan v. Nokia, Inc., 528 F. App’x 52, 57 (2d Cir. 2013),
as amended (June 25, 2013) (rejecting plaintiffs’ claims for failure to monitor retirement
plan where there was no underlying ERISA fiduciary duty). “The ‘threshold question’ in
‘every case charging breach of ERISA fiduciary duty’ is whether the defendant ‘was acting
as a fiduciary . . . when taking the action subject to complaint.’” Fisher v. JP Morgan
Chase & Co., 703 F. Supp. 2d 374, 381–82 (S.D.N.Y. 2010), aff'd, 469 F. App'x 57 (2d
Cir. 2012) (quoting Pegram v. Herdrich, 530 U.S. 211, 226 (2000)).
ERISA defines a fiduciary functionally, providing in relevant part:
“[A] person is a fiduciary with respect to a [retirement] plan to the extent (i)
he exercises any discretionary authority or discretionary control respecting

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management of such plan or exercises any authority or control respecting
management or disposition of its assets, (ii) he renders investment advice
for a fee or other compensation, direct or indirect, with respect to any
moneys or other property of such plan, or has any authority or responsibility
to do so, or (iii) he has any discretionary authority or discretionary
responsibility in the administration of such plan.”
29 U.S.C. § 1002(21)(A); see also Bouboulis v. Transportation Workers Union of
America, 442 F.3d 55, 63 (2d Cir. 2006); In re Worldcom, Inc., 263 F. Supp. 2d 745, 757
(S.D.N.Y. 2003) (“Worldcom”) (“ERISA defines a fiduciary in functional terms of control
and authority over the plan.”) (internal quotations omitted); Cress v. Wilson, No. 06 Civ.
2717, 2008 WL 5397580, at *3 (S.D.N.Y. Dec. 29, 2008) (same). In other words,
fiduciaries under ERISA are those who exercise fiduciary functions over the retirement
plan. In re American Express Company ERISA Litigation, 762 F. Supp. 2d 614, 624
(S.D.N.Y. 2010).
ERISA allows for “both named and de facto fiduciaries.” In re Bear Stearns, 763 F.
Supp. 2d at 565. A named fiduciary is a fiduciary identified in the plan document “that
possess[es] the ‘authority to control and manage the operation and administration of the
Plan.’” Id. (quoting 29 U.S.C. § 1102(a)(1)). By contrast, a de facto fiduciary is “a fiduciary
to the extent that [it] ‘exercises any discretionary authority or discretionary control
respecting management of such plan or exercises any authority or control respecting
management or disposition of its assets,’ or ‘has any discretionary authority or
discretionary responsibility in the administration of such plan.’” Id. (quoting ERISA 29
U.S.C. § 1002(21)(A)); see also, In re Kakareko, 575 B.R. 12, 23 (Bankr. E.D.N.Y. 2017)
(“The definition of ‘fiduciary’ under ERISA focuses on the exercise, as well as the
possession, of authority or control.”) (internal citations omitted).

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The question of whether any particular defendant in an ERISA action has fiduciary
status “can be determined as a matter of law at the motion to dismiss stage.” In re Bear
Stearns Companies, Inc. Securities, Derivative, and ERISA Litigation (“In re Bear
Stearns”), 763 F. Supp. 2d 423, 565 (S.D.N.Y. 2011).
Not all actions that a party takes with respect to a retirement plan render that party
a fiduciary under ERISA. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 444 (1999)
(finding that employer's fiduciary duties include administering plan assets but do not
extend to decisions concerning “the composition or design of the plan itself”); Lockheed
Corp. v. Spink, 517 U.S. 882, 890 (1996) (explaining that when plan sponsors act to
adopt, modify, or terminate an ERISA plan, they act as “settlors of a trust” and do not fall
into the category of ERISA fiduciaries); F.H. Krear & Co. v. Nineteen Named Trustees,
810 F.2d 1250, 1259 (2d Cir. 1987) (“a person may be an ERISA fiduciary with respect
to certain matters but not others . . . .”). Where a party “has no authority to [act with
respect to a certain act or action], it cannot be held liable for failing to take that action.” In
re Bear Stearns, 763 F. Supp. 2d at 566.
In the context of multi-employer retirement plans, unions and management
generally are themselves not considered to be fiduciaries of the negotiated ERISA plan.
Rather, the plan itself has trustees, appointed by the negotiating parties, who function as
the independent fiduciaries. Indeed, the Labor Management Relations Act (“LMRA”) has
been interpreted to prohibit an employer organization or an employee organization from
directing or supervising the determinations made by trustees they appoint. See NLRB v.
Amax Coal Co., 453 U.S. 322, 329 (1981) (“Amax”) (interpreting 29 U.S.C. § 186 to mean
that an employer who appoints a representative to the board of trustees of a retirement

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plan thus “may [not] direct or supervise the decisions of a trustee he has appointed.”).
Addressing this provision of the LMRA, the Supreme Court explained the importance of
preventing a trustee from “dividing his loyalties,” such as between labor and management,
to “prevent any possibly injury to the beneficiary.” 9 Id.
2. ERISA Fiduciary Liability
To state a claim for fiduciary breach under ERISA, a plaintiff must allege facts
showing that the defendant was a fiduciary of the retirement plan, that the defendant
breached its fiduciary duty, and that the breach caused a loss. See Pension Benefit
Guaranty Corp. ex rel. St. Vincent Catholic Medical Centers Retirement Plan v. Morgan
Stanley Investment Management, Inc., 712 F.3d 705, 730 (2d Cir. 2013) (“To state a claim
for breach of fiduciary duty under ERISA, a plaintiff must allege facts which, if true, would
show that the defendant acted as a fiduciary, breached its fiduciary duty, and thereby
caused a loss to the plan at issue”); see also Trustees of Upstate New York Engineers
Pension Fund v. Ivy Asset Management, 131 F. Supp. 3d 103, 121 (S.D.N.Y. 2015)
(same); Severstal Wheeling Inc. v. WPN Corp., 809 F. Supp. 2d 245, 254 (S.D.N.Y.
2011), aff'd sub nom. Severstal Wheeling, Inc. v. WHX Corp., 659 F. App’x 28 (2d Cir.
2016) (same).
Regardless of whether the fiduciary is named or de facto, an action for a breach
of ERISA fiduciary duty requires that the defendant “was acting as a fiduciary (that is, was

9

The central issue in Amax was whether the employer-appointed trustee of a benefits
trust fund was a management representative within the meaning of the LMRA. The Court
held that such a trustee was not a management representative, and instead owed his
complete fiduciary loyalty to the trust and its beneficiaries. The Court determined that
Congress intended, through the LMRA and ERISA, that the actions of trustees of
union/management multi-employer trust funds should be governed by the principles of
trusts. Amax, 453 U.S. at 330-331.
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performing a fiduciary function) when taking the action subject to complaint.” Fisher, 703
F.Supp.2d at 374 (internal quotations omitted) (quoting Pegram v. Herdrich, 530 U.S.
211, 226 (2000)).
As

for

breach,

ERISA

holds

fiduciaries

to

the

“prudent

[person]”

standard. Worldcom, 263 F. Supp. 2d at 758. As the ERISA statute provides:
[A] fiduciary shall discharge his duties with respect to a plan solely in the
interest of the participants and beneficiaries and
(A) for the exclusive purpose of:
(i) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;
(B) with the care, skill, prudence, and diligence under the circumstances
then prevailing that a prudent man acting in a like capacity and familiar with
such matters would use in the conduct of an enterprise of a like character
and with like aims . . . .
29 U.S.C. § 1104(a)(1).
ERISA thus imposes three “overlapping standards”: to act “solely in the interests
of the participants and beneficiaries,” to act “for the exclusive purpose” of providing
benefits to them, and to act with the care of a reasonably “prudent [person].” Donovan v.
Bierwirth, 680 F.2d 263, 271 (2d Cir.1982); Cress, 2008 WL 5397580, at *3 (same).
These duties, which are drawn from the common law of trusts, have been described as
“the highest known to the law.” Worldcom, 263 F. Supp. 2d at 758 (quoting Flanigan v.
Gen. Elec. Co., 242 F.3d 78, 86 (2d Cir. 2001)). ERISA fiduciaries must manage the plan
with

“an

eye

single”

to

the

interests

of

the

plan's

participants

and

beneficiaries. Worldcom, 263 F. Supp. 2d at 758 (quoting Donovan, 680 F.2d at 271).

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ERISA imposes liability on a plan fiduciary who “breaches any of the
responsibilities, obligations, or duties imposed upon fiduciaries . . . .” 29 U.S.C. § 1109(a).
A breaching fiduciary is “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.” Id.
3. Duty to Disclose Plan Information Under ERISA
The duty of care and loyalty found in 29 U.S.C. § 1104(a)(1)(B) has been applied
to fiduciaries' communications with plan beneficiaries. See, e.g., Bilello v. JPMorgan
Chase Retirement Plan, 649 F. Supp. 2d 142, 165–66 (S.D.N.Y.2009) (“Communicating
information about the contents of a plan is a discretionary responsibility giving rise to a
fiduciary obligation.”) (citing Bouboulis v. Transport Workers Union of America, 442 F.3d
55, 65 (2d Cir.2006)). Consequently, “[f]iduciaries may be held liable for statements
pertaining to future benefits if the fiduciary knows those statements are false or lack a
reasonable basis.” Bilello, 649 F.Supp.2d at 166 (quoting Flanigan, 242 F.3d at 84); see
also Varity Corp., 516 U.S. at 506; Ballone v. Eastman Kodak Co., 109 F.3d 117, 122 (2d
Cir.1997). Moreover, fiduciaries may be “liable for non-disclosure of information about a
current plan when the omitted information was necessary to an employee's intelligent
decision about retirement.” Flanigan, 242 F.3d at 84 (citing Becker v. Eastman Kodak
Co., 120 F.3d 5 (2d Cir.1997)); see also Devlin v. Empire Blue Cross and Blue
Shield, 274 F.3d 76, 88 (2d Cir.2001) (“[W]hen a plan administrator . . . fails to provide
information when it knows that its failure to do so might cause harm, the plan administrator

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has breached its fiduciary duty to individual plan participants and beneficiaries”) (internal
citations omitted); Miller v. International Paper Co., No. 12 Civ. 7071, 2013 WL 3833038,
at *4 (S.D.N.Y. July 24, 2013) (same).
While ERISA fiduciaries have a duty to disclose “changes in the terms of a benefit
plan and complete and accurate information about the administration of the plan,” at the
same time, “it is inappropriate to infer an unlimited disclosure obligation.” In re Bear
Stearns, 763 F. Supp. 2d at 576-77. For example, courts in this Circuit have rejected
breach of fiduciary duty claims seeking disclosure of certain valuation reports, internal
board deliberations, and financial information regarding plan investments. See,
e.g., Gearren v. The McGraw–Hill Companies, Inc., 660 F.3d 605, 610 (2d Cir. 2011) (no
duty to disclose “expected performance of the employer's stock”); In re Citigroup ERISA
Litigation, 662 F.3d 128, 142 (2d Cir. 2011), abrogated on other grounds by Fifth Third
Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014) (no duty to provide plan participants with
“non-public [information and documents] that could pertain to the expected performance
of Plan investment options”); Board of Trustees of the CWA/ITU Negotiated Pension Plan
v. Weinstein, 107 F.3d 139, 146–47 (2d Cir. 1997) (no duty to disclose “actuarial valuation
reports”); In re Express Scripts/Anthem ERISA Litigation, 285 F. Supp. 3d 655, 676
(S.D.N.Y. 2018) (no duty to disclose internal “contractual arrangements”).
4. Duty to Monitor Under ERISA
As explained above, in a multi-employer retirement plan, an independent board of
trustees is appointed by labor and management; those trustees are responsible for the
administration and management of the plan. 29 U.S.C. § 1002(37)(A); see also Trustees

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of Local 138 Pension Trust Fund, 692 F.3d at 129 (describing purposes of multiemployer
plans); Courson, 75 F. Supp. 2d at 430-31 (same).
Within the duty to appoint and remove trustees of a multi-employer plan, courts
have also found a duty to monitor the conduct of those trustees. While the Second Circuit
has not directly addressed the scope of this duty in the multi-employer context, district
courts within the Circuit have done so. 10 See, e.g., Liss v. Smith, 991 F. Supp. 278, 311
(S.D.N.Y. 1998) (“The power to appoint and remove trustees carries with it the
concomitant duty to monitor those trustees’ performance”); Bennett v. Manufacturers &
Traders, No. 5:99–cv–827, 2005 WL 2896962, at * 7 (N.D.N.Y. Nov. 2, 2005) (finding that
an individual “invested with the duty to appoint the trustees who managed the Plans[ ] . .
. ha[s] the concomitant duty to monitor those trustees.”). This duty to monitor, however,
is limited “to ensur[ing] that the appointees are performing their fiduciary obligations.” Liss,
991 F. Supp. at 311; see also Sommers Drug Stores Co. Employee Profit Sharing Trust
v. Corrigan Enterprises, Inc., 793 F.2d 1456, 1459-60 (5th Cir. 1986) (“[A] person is a
fiduciary only with respect to those aspects of the plan over which he exercises authority
or control. For example, if an employer and its board of directors have no power with
respect to the plan other than to appoint the plan administrator and the trustees, then their
fiduciary duty extends only to those functions”) (internal citations omitted); International
Brotherhood of Electrical Workers, Local 90 v. National Electrical Contractors
Association, No. 3:06-cv-2, 2008 WL 918481, at *6-7 (D. Conn. March 31, 2008) (multiemployer) (finding that employer association representing contributing employers was an

10

The parties have not cited any decision of a Court of Appeals outside the Second Circuit
addressing the scope of the duty to monitor in multi-employer plans, and the Court is not
aware of any.
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ERISA fiduciary by virtue of its power to appoint and remove trustees, but noting that the
employer association’s “fiduciary obligations are, of course, limited to those aspects of
the plan over which [it] exercises authority or control,” namely the appointments process).
The duty of appointing entities to monitor their appointed trustees thus extends
only to whether those trustees are executing their functions, not to the substance of their
decisions. For instance, in International Brotherhood of Electrical Workers, the court
found a multi-employer organization liable for breach of fiduciary duty where trustees
frequently failed to attend meetings and cast votes; the one trustee who did attend and
vote was ineligible to do so; and the appointing organization failed to conduct any
assessment of trustee performance. 2008 WL 918481, at *3, 8.
Courts follow the same principle when evaluating duty to monitor claims in singleemployer plans, generally rejecting the proposition that parties with the authority to
appoint trustees become de facto fiduciaries themselves with respect to the decisions
made by the trustees. See, e.g., In re Morgan Stanley ERISA Litigation, 696 F. Supp. 2d
345, 356 (S.D.N.Y. 2009) (the mere “right to appoint and remove fiduciaries is insufficient
to constitute fiduciary status”); In re Polaroid ERISA Litigation, 362 F. Supp. 2d 461, 473
(S.D.N.Y. 2005) (“ERISA does not attach liability for investment decisions to fiduciaries
whose roles were limited to appointing, retaining and removing other fiduciaries”); In re
WorldCom, Inc., 263 F. Supp. at 760; see also 29 C.F.R. § 2509.75-8 at D-2 (explaining
that “persons who have no power to make any decisions as to plan policy, interpretations,
practices or procedures” are not plan fiduciaries because “[o]nly persons who perform
one or more of the functions described in [29 U.S.C. § 1002] with respect to an employee
benefit plan are fiduciaries”).

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For example, in In re WorldCom, Inc., the court rejected the plaintiffs’ assertion
that “the right to appoint and to remove the individuals who will [serve as a plan
administrator] is a fiduciary function [conferring] the fiduciary duty to monitor the
performance of an appointee.” 263 F. Supp. 2d at 760. The court specifically noted that
the plaintiffs’ argument “goes too far,” because “[i]t would make any supervisor of an
ERISA fiduciary also an ERISA fiduciary.” Id.
This argument is even more persuasive in the context of multi-employer plans.
Imposing a generalized fiduciary obligation on appointing parties over all actions by
trustees would be inconsistent with the LMRA’s prohibition against employer and
employee organizations directing or supervising the independent determinations made
by trustees they appoint. See 29 U.S.C. § 186; Amax, 453 at 329-30 (applying LMRA to
multi-employer plan); see also Rothstein v. American International Group, Inc., 837 F.3d
195, 209 (2d Cir. 2016) (noting that employer lacks “authority to direct management or
policy decisions [of its appointed trustees to the retirement board]. Again, if the Board had
discretion to favor [the appointing employer] in its management of the Plans, [the
employer] might be able to compel favorable treatment by threatening to disband the
Plans if the Board did not cooperate. But ERISA’s imposition of strict fiduciary duties
blocks such corporate influence”).
Put differently, an appointing party does not have the unlimited fiduciary duty to
monitor, supervise and evaluate the decisions of the trustees, nor does that party have
liability for the decisions made by the trustees. Rather, an appointing party has a limited
fiduciary duty to ensure that trustees are appointed and removed pursuant to the terms
of the plan and carry out their fiduciary functions. Were it otherwise, the appointing

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employer or employee organization would violate the LMRA’s prohibition against their
supervising or directing the decisions of trustees. See 29 U.S.C. § 186; Amax, 453 U.S.
at 329.
5. Equitable Relief for Remediation of Plan Violation
ERISA allows a “participant, beneficiary, or fiduciary” to bring a civil action seeking
“(A) to enjoin any act or practice which violates any provision of [ERISA] or the terms of
[a] [benefit] plan, or (B) to obtain other appropriate equitable relief (i) to redress such
violations or (ii) to enforce any provisions of [ERISA] or the terms of [a] plan.” 29 U.S.C.
§ 1132(a)(3). Plaintiffs invoke this provision, for example, in disputes alleging that a
fiduciary has failed to provide accurate notices or complete information to beneficiaries or
has failed to provide notices that are required by statute. See, e.g., Varity Corp., 516 U.S.
at 506-07, 515; Weinreb v. Hospital for Joint Diseases Orthopedic Institute, 404 F.3d 167,
171 n. 1 (2d Cir. 2005).
To obtain equitable relief under 29 U.S.C. § 1132(a)(3), a plaintiff must make the
required showing for “the particular equitable remedies he seeks.” Osberg v. Foot Locker,
Inc., 907 F. Supp. 2d 527, 533 (S.D.N.Y. 2012) (“Osberg II”) (citing CIGNA Corp. v.
Amara, 563 U.S. 421, 443). And although the statute provides a vehicle for seeking
equitable relief, a plaintiff must allege an underlying violation of some substantive
provision of ERISA. See, e.g., Gates v. United Health Group, No. 11 Civ. 3487, 2012 WL
2953050, at *11 (S.D.N.Y. July 16, 2012) (plaintiff's ability to seek equitable relief pursuant
to 29 U.S.C. § 1132(a)(3) “does not relieve her from having to establish an underlying
violation of the statute”); Demopoulos v. Anchor Tank Lines, LLC, 117 F. Supp. 3d 499,

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512 (S.D.N.Y. 2015) (same); Miller v. International Paper Co., No. 12 Civ. 7071, 2013 WL
3833038, at *3-4 (S.D.N.Y. July 24, 2013) (same).
6. Time Limitations on ERISA Claims
The applicable statute of limitations under ERISA depends on the specific claim
alleged. For claims related to breach of fiduciary duty (Counts II, III, and V of Hudson’s
Complaint), ERISA imposes the following limitations periods:
No action may be commenced under this subchapter with respect to a
fiduciary's breach of any responsibility, duty, or obligation under this part, or
with respect to a violation of this part, after the earlier of –
(1) six years after (A) the date of the last action which constituted a part of
the breach or violation, or (B) in the case of an omission the latest date
on which the fiduciary could have cured the breach or violation, or
(2) three years after the earliest date on which the plaintiff had actual
knowledge of the breach or violation;
except that in the case of fraud or concealment, such action may be
commenced not later than six years after the date of discovery of such
breach or violation.
29 U.S.C. § 1113. In other words, a plaintiff has six years from the date of the last action
that was part of the alleged breach of fiduciary duty to file a complaint. 29 U.S.C. §
1113(1). However, if the plaintiff developed actual knowledge of the breach, then they
have only three years of the date he learned of the breach. 29 U.S.C. § 1113(2).
Where a defendant engaged in fraud or concealment, the six-year statute of
limitations is tolled “until the plaintiff discovers, or should with reasonable diligence have
discovered, the breach.” Id. In this Circuit, “fraud or concealment” is read disjunctively,
such that the exception applies in cases of either fraud or concealment. Caputo v. Pfizer,
Inc., 267 F.3d 181, 190 (2d Cir. 2001).

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To qualify for tolling under the fraud or concealment exception, a complaint must
allege that a fiduciary either “(1) breached its duty by making a knowing misrepresentation
or omission of a material fact to induce an employee/beneficiary to act to his detriment;
or (2) engaged in acts to hinder the discovery of a breach of fiduciary duty.” In re Express
Scripts/Anthem ERISA Litigation, 285 F. Supp. 3d at 674–75 (quoting Janese v. Fay, 692
F.3d 221, 227 (2d Cir. 2012)); see also, Caputo, 267 F.3d at 190 (same). A plaintiff must
plead fraudulent allegations “with particularity,” specifying the “time, place, speaker, and
content of the alleged misrepresentations,” explaining “how the misrepresentations were
fraudulent,” and describing the events giving rise to a “strong inference” that a defendant
had an intent to defraud, knowledge of the falsity of the statements, or a reckless
disregard for the truth. Janese, 692 F. 3d at 228 (quoting Caputo, 267 F.3d at 191). To
allege concealment, a plaintiff must plead facts giving rise to a duty to disclose the
relevant information. See DePasquale v. DePasquale, No. 12-CV-2564, 2013 WL
789209, at *12 (E.D.N.Y. March 1, 2013), aff'd 568 Fed. App’x. 55 (2d Cir. 2014)).
Beyond claims for breach of fiduciary duty, the Complaint also includes causes of
action relating to the summary plan description under 29 U.S.C. § 1022 (Count I),
injunctive relief to limit the applicability of the 2017 Amendment under 29 U.S.C. § 1132
(Count IV), and enforcement of the statute’s prohibition on exculpatory provisions under
29 U.S.C. § 1110 (part of Count V). For these three claims, the limitations analysis is
different. Other than claims for breaches of fiduciary duty, ERISA does not provide
limitations periods for suits brought to enforce its provisions. Federal courts thus look to
the most closely analogous statute of limitations under state law. See Osberg v. Foot
Locker, Inc., 656 F. Supp. 2d 361, 369-70 (S.D.N.Y. 2009) (“Osberg I”) (noting in case

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with a 29 U.S.C. § 1022 claim that “ERISA provides no statute of limitations for civil
enforcement actions other than breach of fiduciary duty claims”), aff'd in part and vacated
in part on other grounds, 555 Fed. App’x. 77 (2d Cir. 2014). Because claims under ERISA
present questions of federal law, federal courts look to federal common law to determine
when the claim accrued. Guilbert v. Gardner, 480 F.3d 140, 148-149 (2d Cir. 2007).
For some time, courts applied New York’s six-year breach of contract period to
claims relating to summary plan descriptions under 29 U.S.C. § 1022. However, the U.S.
Supreme Court and Second Circuit have since clarified that New York’s three-year
limitations period applies. In Osberg I, the court initially determined that a sixyear limitations period applies to disclosure claims because “the judicially inferred statute
of limitations for ERISA actions in New York State is six years, based on the statute of
limitations for contract actions.” 656 F. Supp. 2d at 370 (citing Slupinski v. First Unum Life
Ins. Co., 554 F.3d 38, 55 (2d Cir. 2009)). Two years later, the Supreme Court held that a
summary plan description is not a contract. CIGNA Corp. v. Amara, 563 U.S. 421 (2011).
The Osberg court therefore held in a later decision that the appropriate limitations period
for disclosure claims is actually three years. Osberg II, 907 F. Supp. 2dat 533
(“Amara has now clarified that [a summary plan description] is not a contract—its terms
are not subject to enforcement,” so the most similar New York statute of limitations is not
the six-year period governing contract claims but the three-year period governing
statutory violations); Amara, 563 U.S. at 436.
Discussion
Plaintiff asserts five causes of action. Count I alleges a violation of 29 U.S.C. §
1022(a) against the Retirement Board for inadequate disclosures in the Summary Plan

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Description. Count II alleges that the Retirement Board and Individual Board Members
breached their fiduciary duty to disclose the terms of the Plan under 29 U.S.C. §
1104(a)(A)-(B). Count III alleges breach of fiduciary under 29 U.S.C. §§ 1104(a)(1)(A),
(B) and (D) for “failure to monitor” against both the Council and the Association. Count IV,
asserted against all Defendants, seeks to prohibit application of the 2017 Amendment to
Hudson and the putative class members pursuant to 29 U.S.C. § 1132(a)(3). Count V,
also against all Defendants, asserts a violation of 29 U.S.C. §§ 1110(a) and
1104(a)(1)(A)-(B) for attempting to relieve themselves of their fiduciary obligations
through exculpatory provisions of the Plan.
The Court begins by discussing the claims against the Council and the Association
(Counts III, IV, and V), and ultimately recommends dismissal because these entities lack
the requisite fiduciary duties to establish liability under ERISA. The Court then discusses
the claims against the Retirement Board, as well as the Individual Board Members
(Counts I, II, IV and V). For those claims, the Court concludes that while the Retirement
Board is a Plan fiduciary, there is no legal basis for asserting that it violated its duties by
any act or omission. In short, for the reasons that follow, all of Hudson’s claims lack merit
as a matter of law and should be dismissed.
A. Claims Against the Council Should be Dismissed
The Complaint asserts three claims against the Council, all of which are predicated
on Hudson’s allegation that the Council is an ERISA fiduciary of the Plan. Count III asserts
that the Council breached its fiduciary duty under ERISA by failing to monitor the actions
of the members of the Retirement Board that it appointed. Count IV seeks invalidation of
the 2017 Amendment, to the extent it applies to the Plan retroactively against Plaintiff.

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Count V asserts that the Plan wrongfully relieves the fiduciaries from responsibility in
violation of 29 U.S.C. §§ 1110(a) and 1104(a)(1)(A)-(B). Each of these claims against the
Council fail to state a claim upon which relief can be granted and should be dismissed.
1.

The Council’s ERISA Fiduciary Duties Do Not Extend to Benefit
Reclassification Decisions, Precluding Liability
For the Council to have any liability under ERISA, it must be an ERISA fiduciary of

the Plan. In re Bear Stearns, 763 F. Supp. 2d at 566 (where a party “has no authority to
[act], it cannot be held liable for failing to take that action”). The Council is not named in
the Plan document as a fiduciary. Instead, the Plan explicitly states that “[t]he Retirement
Board will be the ‘named fiduciary’ of the Plan.” (Plan at 30, Article 8.2.) Indeed, Plaintiff
does not allege that the Council was a named fiduciary.
The question, then, is whether the Council qualifies as a de facto fiduciary. See In
re Bear Stearns Co., 763 F. Supp. 2d at 565 (ERISA allows for “both named and de facto
fiduciaries”). As per the statute, “[a] person is a [de facto] fiduciary with respect to a
[retirement] plan to the extent (i) he exercises any discretionary authority or discretionary
control respecting management of such plan or exercises any authority or control
respecting management or disposition of its assets, (ii) he renders investment advice for
a fee or other compensation, direct or indirect, with respect to any moneys or other
property of such plan, or has any authority or responsibility to do so, or (iii) he has any
discretionary authority or discretionary responsibility in the administration of such plan.”
29 U.S.C. § 1002(21)(A); see also Bouboulis, 442 F.3d at 63; Worldcom, 262 F.Supp.2d
at 757 (“ERISA defines a fiduciary in functional terms of control and authority over the
plan”) (internal quotation marks omitted); Cress, 2008 WL 5397580, at *3 (same).

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The only power exercised by the Council was the appointment of three members
of the Retirement Board, as dictated by the Plan. (Plan at 30.) The Complaint fails to
allege any facts to establish that the Council either possessed or exercised (or failed to
exercise) any broader powers.

For example, the Complaint makes no allegations

showing that the Council “exercise[d] any discretionary authority or discretionary control
respecting management” of the Plan, directed the “disposition of assets” under the Plan,
“render[ed] investment advice” related to the Plan, or “ha[d] any discretionary authority or
discretionary responsibility” in administration of the Plan. 29 U.S.C. § 1002(21)(A). As the
Council correctly argues in its moving brief, the Complaint “barely mentions” the Council
“and certainly does not allege that the [Council] was involved in any way in managing or
administering the Plan.” (Council Mem. at 8.) In his opposition papers, Hudson even
concedes that the Council has no discretionary authority over the Plan or the
administrative decisions made by the Retirement Board. (See Pl. Mem. at 40) (“[N]othing
in [the Complaint] suggests that either the Players Association or the Management
Council was required to . . . oversee each and every medical review or usurp the authority
of the Board.”)
Hudson nevertheless argues that the Council is a fiduciary of the Plan with liability
for the substantive decisions of the Retirement Board “[b]y virtue of [the Council’s] powers
to appoint and remove other fiduciaries.” (Complaint ¶ 11.) Because the Council has that
appointment and removal power, Hudson asserts, the Council has a resulting duty to
monitor those appointees, as well as the duty to take “certain actions to remedy the Board
Defendants’ breaches [of fiduciary duty]”—specifically, to replace Retirement Board
members when they reach an allegedly erroneous decision. (Pl. Mem. at 40-41.)

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This argument fails. As set forth earlier, the mere ability to appoint or remove
trustees to the board of a retirement plan is insufficient to establish broader fiduciary
liability for the trustees’ substantive decisions. See, e.g., In re Morgan Stanley ERISA
Litigation, 696 F. Supp. 2d at 356; In re Polaroid ERISA Litigation, 362 F. Supp. 2d at
473; WorldCom., 263 F. Supp. at 760. In multi-employer plans, such as the one here, the
LMRA prohibits an appointing party from directing or supervising the decisions of the
independent board members. See 29 U.S.C. § 186; Amax, 453 at 329-30 (applying
LMRA); Rothstein, 837 F.3d at 209 (discussing importance of trustee independence). At
most, appointing parties have only a “’limited’ fiduciary obligation[ ] . . . to ensure that the
appointees are performing their fiduciary” functions such as attending meetings and
voting. Liss, 991 F. Supp. at 311; see also Maldonado, 1990 WL 17635, at *5; Sommers
Drug Stores, 793 F.2d at 1459-60.
The Council makes a compelling—and common sense—policy argument that
underscores the implausibility of Hudson’s fiduciary duty claims. (Council Mem. at 9, n.5.)
If every employer or union that appoints plan trustees were themselves deemed an
ERISA fiduciary liable for every alleged act or omission of those trustees, the whole
system of multi-employer pension plans would become grossly inefficient. Appointing
entities would have the independent obligation to review the decisions of the trustees for
every single purported error and take steps to correct those errors by, inter alia, removing
trustees with whom they disagree. Such a model of liability, as sought by Hudson here,
would be unworkable from a practical perspective, and would undermine the LMRA’s bar
against appointing entities from supervising or directing the trustees they appoint. See
WorldCom, 263 F. Supp. 2d at 760 (observing that plaintiffs’ argument “goes too far,”

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because “[i]t would make any supervisor of an ERISA fiduciary also an ERISA fiduciary.”);
Johnson v. Evangelical Lutheran Church in America, No. 11-CV-23, 2011 WL 2970962,
at *5 (D. Minn. July 22, 2011) (analyzing multiemployer plan and finding that the “duty to
monitor is limited and does not include a duty to review all business decisions of Plan
administrators because that standard would defeat the purpose of having trustees
appointed to run a benefits plan in the first place”) (internal citations omitted); Lingis v.
Motorola, Inc., 649 F. Supp. 2d 861, 881-82 (N.D. Ill. 2009) (finding that the duty to
monitor has “clear limits” and that a broad duty to monitor would undermine the rationale
of delegating authority to a committee).
In short, there is no support in the Plan itself, or in any of the factual allegations in
the Complaint, that the Council has the responsibility to supervise, evaluate, or secondguess the substantive decisions of their selected members of the Retirement Board. The
mere fact that the Council can appoint and remove three members of the Retirement
Board does not suffice to make the Council liable for the Retirement Board’s substantive
decisions. Accordingly, the three claims against the Council—all predicated on its
purported fiduciary liability—are without merit and should be dismissed. 11

11

For Hudson to successfully state a claim against the Council or the Association for
breach of a purported fiduciary duty to monitor the Retirement Board, he must first
adequately plead a breach of fiduciary duty against the Retirement Board itself. “A claim
for breach of the duty to monitor requires an antecedent breach to be viable,” and “[w]ith
no antecedent breach by the monitored parties in this case . . . [the] duty to monitor claim
fails.” In re Bear Stearns, 763 F. Supp. 2d at 580. As set forth later in this opinion, the
Court finds that Hudson’s claims against the Retirement Board are legally insufficient,
providing yet another basis to dismiss his claims against the Council and Association.
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2.

The Complaint Fails to Plausibly Allege Any Breach of the Council’s Duties
Because the Court has determined that the Council’s ERISA fiduciary duties do

not extend to liability for the Retirement Board’s substantive decisions, and therefore the
Council cannot have liability, it need not address the remainder of the parties’ arguments.
However, it is worth noting that Hudson’s claims would nevertheless fail as a matter of
law because there is no allegation that the Council breached any duty it actually had.
As explained, the Council’s obligations were limited to exercising its specified
responsibilities under the Plan; namely, appointing or removing three members of the
Retirement Board. (Plan at 30, Article 8.1.) See Sommers Drug Stores, 793 F.2d at 145960 (“[A] person is a fiduciary only with respect to those aspects of the plan over which he
exercises authority or control. For example, if an employer and its board of directors have
no power with respect to the plan other than to appoint the plan administrator and the
trustees, then their fiduciary duty extends only to those functions”) (internal citations
omitted).
It is undisputed that the Council did, in fact, appoint three members to the
Retirement Board. The Complaint does not allege that this duty was undertaken
recklessly, or without the “care, skill, prudence, and diligence under the circumstances
then prevailing that a prudent man acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C.
§ 1104(a)(1)(B). Nor is there an allegation that the Council’s appointees were unqualified
for the positions or negligent because they failed to appear for meetings. In other words,
to the extent that the Council had fiduciary duties under the terms of the Plan, it fulfilled

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those duties. The Council’s representatives merely made a decision contrary to Hudson’s
wishes. 12
As for monitoring, the Complaint does not allege that the Council failed to monitor
in a manner that falls within the limited scope of that duty. For instance, the Complaint
does not allege that the Council failed to monitor whether its appointed members to the
Retirement Board attended meetings, cast votes, or otherwise carried out their other
duties. Rather, Hudson alleges that the Council failed to monitor and take action with
respect to the Retirement Board’s substantive decision not to upgrade Hudson’s benefits.
Once again, however, appointing parties are not fiduciaries with respect to the decisions
made by the trustees. The Council cannot have breached a duty it did not have. Hudson
has failed to plead facts to show any breach of the Council’s fiduciary duties. Accordingly,
all claims against the Council should be dismissed. 13

12

For this same reason, Count IV (seeking declaratory relief with respect to the 2017
Amendment) and Count V (seeking to void a provision of the Plan) have no legal merit
against the Council. Even if the Council were an ERISA fiduciary, the terms of the Plan
merely give it the power to appoint three members of the Retirement Board—not
substantively interpret, apply, or enforce provisions of the Plan.
13

The Council (and the Association) additionally argue that neither should be held liable
for failing to intervene in Hudson’s reclassification determination because neither alone
could have changed the outcome, given that each controlled only three of the Retirement
Board’s seats. (See Council Mem. at 11; Association Mem. at 11-12.) Put differently,
even if the Council and Association were ERISA fiduciaries with the responsibility to act
in the best interests of beneficiaries, and even if that meant taking every step to support
Hudson’s position, neither had the unilateral ability to direct the Retirement Board’s
individual determinations under the terms of the Plan. The Court is skeptical of this
argument, since it would allow both entities to evade responsibility for their inaction by
pointing the finger at the other. However, because the Court finds other reasons for
dismissing the claims against the Council and Association, it need not further address this
argument.

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B. Claims Against the Association Should be Dismissed
The Complaint alleges three causes of action against the Association—the players’
union that, together with the Council, collectively bargained the Plan. (Complaint ¶ 12;
Association Mem. at 1.) Hudson’s allegations against the Association are essentially
identical to his allegations against the Council. They are similarly predicated on the
allegation that the Association’s ERISA fiduciary duties under the Plan include a duty to
monitor the decisions of the Retirement Board. Specifically, Count III asserts that the
Association breached its fiduciary duty under 29 U.S.C. §§ 1110(a) and 1104(a)(1)(A)(B) by failing to monitor the actions of the members of the Retirement Board that it
appointed. Count IV seeks invalidation of the 2017 Amendment, to the extent it applies to
the Plan retroactively against Hudson or the putative class members. Count V asserts
that the Plan wrongfully relieves the fiduciaries from responsibility in violation of 29 U.S.C.
§§ 1110(a) and 1104(a)(1)(A)-(B).
Just as the Council lacks the fiduciary obligations Hudson accuses it of breaching,
so too does the Association. The Association did not serve as a Plan fiduciary for
purposes of benefit reclassification decisions and therefore cannot be liable for the
Retirement Board’s substantive decisions in that regard. As with the claims against the
Council, the claims against the Association should be dismissed.
1.

The Association’s ERISA Fiduciary Duties Do Not Extend to Benefit
Reclassification Decisions, Precluding Liability
For the Association to have any liability under ERISA, it must be an ERISA fiduciary

of the Plan. In re Bear Stearns, 763 F. Supp. 2d at 566. The Association is not a named
fiduciary; rather, the Plan explicitly states that only the Retirement Board is the “named
fiduciary” with “full and absolute discretion” over the Plan. (Plan at 30, Article 8.2.)

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To the extent that the Association is a de facto fiduciary under the Plan, its fiduciary
duties are limited only to its functional responsibilities. Beyond the power to appoint and
remove three members of the Retirement Board, the Association—like the Council—had
no broader “control” or “authority” over the Plan. Worldcom, 262 F.Supp.2d at 757. The
Complaint does not allege that the Association exercised any “management … [or]
administration” of the Plan beyond its appointment of three members to the Retirement
Board. Id. (“ERISA defines a fiduciary ‘in functional terms of control and authority over the
plan’”) (internal citations omitted); Cress, 2008 WL 5397580, at *3 (same); see generally
29 U.S.C. § 1002(21)(A).
Whatever control the Association has over the Plan through collective bargaining
with the Council is not a “fiduciary act” for purposes of ERISA liability. Amax, 453 U.S. at
336; see also United Independent Flight Officers, Inc. v. United Air Lines, Inc., 756 F.2d
1262, 1268 (7th Cir. 1985) (“a union is not a fiduciary while, or merely because, it is
negotiating the terms and conditions of future pension benefits”); Maldonado, 1990 WL
17635, at *5 (“[A] union engaged in negotiating the terms and conditions of future benefits
cannot be regarded as an ERISA fiduciary in respect of plans in place”).
And, just like the Council, the Association is an appointing party for a multiemployer plan and is therefore prohibited from directing or supervising the decisions of
the appointed board members. 14 See 29 U.S.C. § 186; Amax, 453 at 329-30 (applying

14

In opposition, Plaintiff cites cases arising in the context of single-employer plans. (See
Pl. Mem. at 34-36.) In single-employer plans, the plan’s sponsor (the employer) maintains
authority over the trustees whom it appoints, whereas in multi-employer plans, they are
explicitly prohibited from doing so. See Amax, 453 U.S. at 330 (discussing requirement
of trustee independence); DeCarlo v. Rochester Carpenters Pension, Annuity, Welfare &
S.U.B. Funds, 823 F. Supp. 115, 118–19 (W.D.N.Y. 1993) (concluding that trustees of
multi-employer plan have “exclusive authority and discretion to manage and control the
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LMRA); Rothstein, 837 F.3d at 209 (discussing importance of trustee independence).
Accordingly, the Association’s fiduciary duties under ERISA do not create liability for the
substantive decisions reached by the Retirement Board. All claims against it should be
dismissed.
2.

The Complaint Fails to Plausibly Allege Any Breach of the Association’s
Duties
Because the Court has determined that the Association’s ERISA fiduciary duties

do not extend to liability for the Retirement Board’s substantive decisions, and therefore
the Association cannot have liability, it need not address the remainder of the parties’
arguments. However, Hudson’s claims would nevertheless fail as a matter of law
because, as with the Council, there is no allegation that the Association actually breached
any specific duty that it did have.
Hudson alleges that the Association “had the fiduciary responsibility to monitor the
Retirement Board as an entity . . . and remedy any fiduciary violations committed by the
Retirement Board.” (Complaint ¶ 12.) He further alleges that the Association had a duty
to “require the Board” to take certain steps, including “revis[ing] the [Plan],” “disclos[ing]”
interpretations of Plan terms, “utiliz[ing] [certain] definitions” of Plan terms, and
“review[ing] and reevaluat[ing]” prior claims for reclassification. (Complaint ¶ 94.)
As the terms of the Plan make clear, however, the Association does not actually
have any of these powers. The “full and absolute discretion” lies solely with the Retirement

[Plan] . . . solely in the interests of the participants and beneficiaries”). Indeed, there are
compelling public policy reasons, discussed above in connection with the Council, that
trustees of multi-employer plans must exercise their fiduciary duties independent of the
entities that appointed them.

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Board (Plan at 30, Article 8.1), as the Complaint itself acknowledges. (Complaint ¶ 13.)
Without discretion over the Plan’s “management … [or] administration” (29 U.S.C. §
1002(21)(A)), the Association did not have the unilateral ability to revise the Plan or affect
particular decisions under the Plan for an individual such as Hudson, even if the
Association wanted to intervene in Hudson’s reclassification request. (See Association
Mem. at 9-10).
As an appointing entity, the Association had at most a limited duty “to ensure that
the appointees are performing their fiduciary obligations.” Liss, 991 F. Supp. at 311. But
Hudson does not allege any act or omission by the Association that would violate the
limited duties it had. The Complaint does not, for example, allege that the Association
appointed unqualified trustees to the Retirement Board. Indeed, Hudson concedes that
he is not alleging that “the persons appointed to the Retirement Board were unqualified
when appointed.” (Pl. Mem. at 37, n.20.) The Complaint also does not allege that the
Association’s appointees failed to attend meetings, cast votes, or otherwise execute their
functions as trustees. Nor does Hudson allege any particular defects in the Association’s
monitoring process.
Accordingly, Hudson fails to allege a breach of any fiduciary duty that the
Association actually had, and all claims against the Association should be dismissed. 15
C. Claims Against the Retirement Board Should Be Dismissed
Now that the Court has disposed of the claims against the Council and Association,
it turns to Plaintiff’s allegations that the Retirement Board violated ERISA and its fiduciary

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duties under ERISA and that the Plan should be reformed as a result. 16 (See Complaint,
Counts I, II, IV and V.) The Court concludes that all claims against the Retirement Board
should be dismissed. 17
1.

The Retirement Board is an ERISA Fiduciary
As explained above, fiduciary status is a predicate for liability under ERISA. In re

American Express Company ERISA Litigation, 762 F. Supp. 2d at 624. The Plan
specifically identifies the Retirement Board as its “named fiduciary” and administrator with
“full and absolute discretion” over the Plan. (Plan at 30, Article 8.2.) Moreover, the
Retirement Board acted in a manner that renders it a de facto fiduciary—overseeing
management of the Plan, interpreting Plan policies, and otherwise administering the Plan
in its entirety. See 29 U.S.C. § 1002(21)(A) (describing functional roles of ERISA
fiduciaries). Accordingly, the Retirement Board is an ERISA fiduciary of the Plan, subject
to liability for breaches of any fiduciary duties.
2.

Hudson’s Claims Against the Retirement Board with Respect to the Summary
Plan Description Fail as a Matter of Law
Count I of the Complaint alleges that the Retirement Board breached 29 U.S.C. §

1022(a) by not explaining its interpretation of two aspects of the Summary Plan
Description’s provisions on disability reclassification: first, the phrase “clear and
convincing evidence” (Complaint ¶¶ 70-71), and second, the “changed circumstances”

16

The Complaint names both the Retirement Board as an entity and its six Individual
Members. (Complaint at ¶¶ 13-20.) The Retirement Board and the Individual Members
are both represented by the same counsel, and moved together for dismissal. (Dkt. 5457.) In opposition, Plaintiff addressed the arguments relating to the Retirement Board and
Individual Members together. (Pl. Mem. at 5.) The Court, too, analyzes their motion
collectively.

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requirement. (Complaint ¶¶ 74-75.) This claim is premised upon an overbroad
interpretation of ERISA’s requirements for the contents of summary plan descriptions
under 29 U.S.C. § 1022. Additionally, it is barred by the applicable statute of limitations.
Count I therefore should be dismissed.
a. Count I Is Premised on a Faulty Interpretation of 29 U.S.C. § 1022
Count I alleges that the Retirement Board should be held liable because the
Summary Plan Description failed to properly apprise participants such as Hudson of the
standards by which potential requests for reclassification would be evaluated—a failure
that Hudson claims violates 29 U.S.C. § 1022. (Complaint ¶¶ 5, 80.) This claim stretches
ERISA’s requirements beyond their bounds.
ERISA mandates that a summary plan description “shall be written in a manner
calculated to be understood by the average plan participant, and shall be sufficiently
accurate and comprehensive to reasonably apprise such participants and beneficiaries
of their rights and obligations under the plan.” 29 U.S.C. § 1022(a). A summary plan must
contain, among other information, “the plan’s requirements respecting eligibility for
participation and benefits,” and the “circumstances which may result in disqualification,
ineligibility, or denial or loss of benefits.” 29 U.S.C. § 1022(b). The Code of Federal
Regulations interpreting this provision notes that ERISA’s focus is meant to ensure that
summary plan descriptions “accurately reflect the contents of the plans” that are most
material to participants. 29 C.F.R. § 2520.102-3 (2018) (listing required information to be
contained in summary plan descriptions).
No part of 29 U.S.C. § 1022 requires plan fiduciaries to disclose discretionary
interpretations of plan terms, or requires that summary plan descriptions must summarize

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every standard under which plan terms may be evaluated. See McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 194 (2d Cir. 2007) (rejecting argument that the
defendants violated 29 U.S.C. § 1022 by not including in a summary plan description the
actuarial assumptions used for calculation of early retirement benefits, and holding:
“[N]either ERISA nor the Labor Department’s regulations require a summary plan
description to describe or illustrate every method by which a plan benefit may be limited
under an early payment option or similar such limitation.”). Rather, courts find that 29
U.S.C. § 1022 has been violated in more drastic situations where a summary plan
description fails to disclose the actual material terms of the plan. See, e.g., Frommert v.
Conkright, 738 F.3d 522, 532 (2d Cir. 2013) (finding a violation of 29 U.S.C. § 1022 where
“the [summary plan descriptions] fail[ed] to clearly identify the circumstances that [would]
result in an offset” under the plan); Burke v. Kodak Retirement Income Plan, 336 F.3d
103, 111 (2d Cir. 2003) (holding that summary plan description violated 29 U.S.C. § 1022
where it did not disclose a threshold eligibility requirement stated in the plan itself).
Here, Hudson invoked Article 5.5(b) of the Plan, which allows reclassification of a
prior final decision on a participant’s benefit category if a participant is able to present
“clear and convincing evidence” of “changed circumstances” that qualifies him for a higher
category of benefits. (Complaint ¶¶ 28, 35.) With his request for reclassification, Hudson
attempted to show that his disability was caused by NFL football activities. (Complaint ¶¶
35-37; see also, Junk Decl., Ex. B.) In May 2015, the Retirement Board denied Hudson’s
reclassification request. (Complaint ¶ 38.) In its decision letter, it explained that it
interprets the reclassification provision’s “changed circumstances” requirement to mean

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a new or different impairment, as opposed to new evidence or new arguments about the
same impairment(s) that led to an initial benefits determination. (Quitt Decl., Ex. B.)
The Retirement Board argues—and the Court agrees—that the Summary Plan
Description that describes the process for reclassification comports with the requirements
of 29 U.S.C. § 1022 as a matter of law. The Summary Plan Description juxtaposes the
Plan’s standards for initial classification decisions against the separate reclassification
standard, and in doing so, reasonably informs participants such as Hudson that a higher
standard applies to reclassification. (Board Mem. at 14-15.) Indeed, the Summary Plan
Description describes the reclassification rules in a different section, and states that
requests for reclassification must present “clear and convincing” evidence of “changed
circumstances.” (Junk Decl., Ex. B at 18.)
After explaining each of the four categories of disability benefits, the Summary Plan
Description has a heading entitled, “Initial Classification” noting that a participant’s initial
classification would be “determined by the Disability Initial Claims Committee or the
Retirement Board based on all of the facts and circumstances in the administrative
record.” (Id.) Under a separate “Reclassification” heading, the Summary Plan Description
states: “As long as you remain totally and permanently disabled, you will continue to
receive total and permanent disability benefits under the category for which you first
qualify, unless you present evidence for reclassification that the Disability Initial Claims
Committee or the Retirement Board finds to be clear and convincing. You must be able
to demonstrate that, because of changed circumstances, you satisfy the conditions of
eligibility for a benefit under a different category of total and permanent disability benefits.”
(Id.) (emphasis added.) In other words, the text and format of the Summary Plan

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Description both indicate to a participant that the standard is heightened when making a
reclassification request.
Moreover, as the Retirement Board emphasizes in its moving papers, its
interpretation of these specific terms has been adopted as “reasonable” by two federal
district courts considering similar player lawsuits. See Boyd v. Bert Bell/Pete Rozelle NFL
Player Retirement Plan, 796 F. Supp. 2d 682, 693 (D. Md. 2011) (“[T]he entity to which
deference is owed—the Board—has adopted a . . . reasonable interpretation. The Board’s
interpretation does not violate the ordinary meaning of the term ‘changed circumstances,’
and it is not contrary to any other provision in the Plan. In addition, [the plaintiff] has not
shown that, in the past, the Board construed ‘changed circumstances’ in a different
manner. Accordingly, the Board did not abuse its discretion in interpreting the terms of
the Plan.”); Bryant v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, No. 1:12-cv-936
(N.D.G.A., March 23, 2015) (“[T]his Court concurs with the decision of the Boyd court that
the Plan’s interpretation of the term ‘changed circumstances’ as meaning a change in
physical condition is within the authority of the Plan and reasonable.”). 18 While not binding
in the Second Circuit, these district courts’ interpretations of the identical provision are
certainly persuasive here.
In opposition, Hudson does not distinguish the analysis of either the Boyd or Bryant
decisions. Moreover, Hudson does not cite any analogous case where a court has found
that a plan fiduciary could be held liable under ERISA because the summary plan
description failed to disclose a discretionary interpretation of an internal standard of

18

A copy of the Order in Bryant v. Bert Bell/Pete Rozelle NFL Player Retirement Plan,
No. 1:12-cv-936 (N.D.G.A., March 23, 2015) is annexed to the Declaration of Michael
Junk as Exhibit C. (Dkt. 56-9.)
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review. That is no surprise. As a practical matter, the level of disclosure that Hudson
seeks to inject into 29 U.S.C. § 1022 would be unworkable. If summary plan descriptions
were required to include interpretations of all conceivable disputes or ambiguities, it would
be virtually impossible to author a summary plan description, or a plan document itself,
entirely free from the need for interpretation. There also would be no need for the internal
review structure that (in this case) includes the Initial Claims Committee and the
Retirement Board.
In short, the Summary Plan Description provided adequate notice to Hudson and
other participants that the Retirement Board would use a different standard for
reclassification than for initial classification. Because ERISA does not mandate broader
disclosures for summary plan descriptions in these circumstances, Count I does not state
a claim for which relief can be granted. 19
b. Count I is Time-Barred
Count I asserts a claim under 29 U.S.C. § 1022 in connection with alleged
deficiencies in the Summary Description Plan, specifically that the Summary Description
Plan failed to apprise Hudson of the standards under which his request for reclassification
would be reviewed. ERISA itself does not provide a limitations period for actions brought
to enforce its provisions, other than the provision regarding fiduciary duties under 29

19

Tellingly, the Complaint does not allege that Hudson actually read the Summary Plan
Description at the time he received it or any time since then. The Complaint also does not
allege his understanding of its terms at that time, nor does it allege how his conduct was
affected by his understanding of those terms. Would he have sought reclassification
differently, or presented different evidence, had he had a different understanding of the
Retirement Board’s standard of review? The absence of these sorts of concrete
allegations—combined with the procedural history of Hudson’s many attempts for
reclassification—suggests a post hoc justification for this claim.
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U.S.C. § 1104. Accordingly, this Court must look to the most closely analogous statute of
limitations under state law. Guilbert, 480 F.3d at 148-149. After the Supreme Court’s
decision in Amara, federal courts in this district have applied a three-year statute of
limitations to claims relating to summary plan descriptions under 29 U.S.C. § 1022. See
Amara, 563 U.S. at 436; Osberg II, 907 F. Supp. 2d at 533 (“[T]he appropriate limitations
period is the three-year period governing statutory violations.”).
Hudson’s lawsuit was brought on May 21, 2018. Consequently, his claim under 29
U.S.C. § 1022 would be barred if he knew or reasonably should have known about the
Retirement Board’s interpretation of the reclassification provision prior to May 21, 2015.
Hudson alleges that he first learned about the Retirement Board’s standards for
evaluating his reclassification request when he received a denial letter on May 27, 2015.
(Complaint ¶¶ 38-39) (“In its denial, Retirement Board—for the first time—provided
Hudson with a written explanation of how it interprets ‘changed circumstances.’ This
explanation was never conveyed to Hudson in any way prior to the final denial.”); see also
(Quitt Decl., Ex. B.) (denial letter from Retirement Board).
However, the procedural background of this dispute tells a different story, and
makes clear that Hudson had constructive knowledge of the Retirement Board’s
interpretations of the evidentiary standard far earlier than the 2015 letter. In 2011, the
federal district court in Boyd, discussed supra, issued a published decision that upheld
the Retirement Board’s interpretation of the “changed circumstances” requirement for
reclassification in the identical Plan. 796 F. Supp. 2d at 692-93 (“The Board’s
interpretation [to require a change in physical condition] does not violate the ordinary
meaning of the term ‘changed circumstances,’ and it is not contrary to any other provision

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in the Plan. In addition, Boyd has not shown that, in the past, the Board construed
‘changed circumstances’ in a different manner. Accordingly, the Board did not abuse its
discretion in interpreting the terms of the Plan.”).
The existence of a public governmental or judicial decision can serve to put parties
“on notice” of the decision’s factual and legal conclusions, particularly when a party is
represented by counsel. See, e.g., United States v. Regan, 713 F. Supp. 629, 640
(S.D.N.Y. 1989) ("chorus of judicial opinions should have put defendants on notice” of
potential liability); Weber v. Geffen Records, Inc., 63 F. Supp. 2d 458, 465 (S.D.N.Y.
1999) (finding that copyright plaintiff “should have been aware of an infringement clearly
stated on a public document integral to one of his then-existing infringement claims” and
that such “constructive knowledge” bars lawsuit under applicable statute of limitations);
Hutton v. Deutsche Bank AG, 541 F. Supp. 2d 1166, 1171 (D. Kan. 2008) (plaintiff’s
claims were barred by statute of limitations where IRS published a document that would
have put the plaintiff on notice of his claim).
This presumption is particularly strong in the context of this dispute. As the
Retirement Board emphasizes, Hudson was represented by counsel during his extensive
administrative process seeking reclassification. (Junk Decl., Ex. E, Letter from Robert
Donati to Paul Scott dated March 27, 2015). The fact that counsel was actively
representing Hudson in claims virtually identical to the ones in Boyd undermines any
argument that Hudson was not, or should not have been, fully aware of the Retirement
Board’s interpretation of the standard for reclassification. See Soto v. Barnitt, No. 00 Civ.
3453, 2000 WL 1206603, at *2 (S.D.N.Y. Aug. 23, 2000) (“an attorney's unfamiliarity with
the law cannot justify tolling”); GMA Accessories, Inc. v. BOP, LLC, 765 F. Supp. 2d 457,

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467 n.2 (S.D.N.Y. 2011) (counsel cannot “claim ignorance” of adverse authority when
they represented a party in the case that generated it).
In short, Hudson had constructive notice of the Retirement Board’s position prior
to May 21, 2015. Accordingly, his attempt—more than three years later—to challenge the
terms of the Summary Plan Description on that basis is untimely.
3. Count II Fails for the Same Reasons as Count I
Count II alleges that the Retirement Board had “an affirmative duty” to disclose its
interpretation of the phrase “changed circumstances” from the Summary Plan Description
and that its failure to disclose that information was a breach of the fiduciary duties of
loyalty and prudence under 29 U.S.C. § 1104. (Complaint ¶¶ 81-88.) As with Count I,
Count II fails to state a claim, is time barred, and cannot survive as a matter of law.
a. ERISA Does Not Permit Additional Liability for Breach
Count II essentially takes allegations made in Count I with respect to the
deficiencies of the Summary Plan Description, and reframes them as violations of the
Retirement Board’s fiduciary duties under 29 U.S.C. § 1104, rather than as violations of
the specific ERISA provision on summary plan descriptions under 29 U.S.C. § 1022.
The Retirement Board cites several cases for the proposition that ERISA’s
fiduciary duties provision does not create new or different responsibilities than the
responsibilities described elsewhere in the statute. See, e.g., Weiss v. CIGNA Healthcare,
Inc., 972 F. Supp. 748, 753-55 (S.D.N.Y. 1997) (rejecting plaintiff’s arguments for
separate and duplicative disclosure responsibilities for plan administrator under 29 U.S.C.
§ 1104, noting that “the general language of a statute ‘will not be held to apply to a matter
specifically dealt with in another part of the same enactment’ [quoting Clifford F. MacEvoy

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Co. v. United States, 322 U.S. 102, 107 (1944)], particularly in the case of ‘a reticulated
statute such as ERISA’ [quoting Bigger v. American Commercial Lines, 862 F.2d 1341,
1344 (8th Cir. 1988); see also, Faircloth v. Lundy Packing Co., 91 F.3d 648, 657 (4th Cir.
1996) (rejecting argument “that ERISA’s general fiduciary duty provision requires plan
fiduciaries to furnish documents to participants [beyond] the documents that ERISA’s
specific disclosure provisions requires”); Board of Trustees of the CWA/ITU Negotiated
Pension Plan v. Weinstein, 107 F.3d 139, 147 (2d Cir. 1997) (same). In other words, if an
ERISA fiduciary has met its obligations under the various specific provisions of the
statute, such as 29 U.S.C. § 1022, then 29 U.S.C. § 1104 does not create some sort of
broader fiduciary liability for identical acts or omissions.
The Court agrees. It would make little sense to hold that the Retirement Board met
ERISA’s relatively limited requirements for the contents of summary plan descriptions, yet
nevertheless breached its fiduciary duties under 29 U.S.C. § 1104 by failing to disclose
its interpretations of those provisions. This would violate the well-known principle of
statutory interpretation that specific statutory terms govern over general ones. See, e.g.,
Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961) (“it is familiar law that a
specific statute controls over a general one”); Natofsky v. City of New York, 921 F.3d 337,
345 (2d Cir. 2019) (“It is an established canon of construction that a specific provision
‘controls over one of more general application’”) (internal citations omitted); Proujansky
v. Blau, No. 92 Civ. 8700, 2000 WL 98382, at *11 (S.D.N.Y. Jan. 28, 2000) (“While
violations of . . . specific ERISA provisions may also be regarded as violative of the
general fiduciary duties covered by [29 U.S.C. § 1104],” conduct that does not violate a
specific requirement will not be found to violate the general fiduciary requirements).

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In short, Count II cannot survive for the same reason that Count I cannot survive:
29 U.S.C. § 1022 does not require the Retirement Board to disclose discretionary
interpretations of the Summary Plan Description. Therefore, the Retirement Board also
had no fiduciary duty to undertake such disclosure under 29 U.S.C. § 1104.
b. Count II is Time-Barred
Count II seeks liability based on the Retirement Board’s alleged breach of its
fiduciary duties pursuant to 29 U.S.C. § 1104. Accordingly, the limitations period is
governed by ERISA’s “Limitations of Actions” provision applied to claims for breach of
fiduciary duty. 29 U.S.C. § 1113. Briefly put, that provision generally bars claims for
breach of fiduciary duty for a breach that took place more than six years prior to initiation
of the action. Caputo, 267 F.3d at 190 (applying limitations period).
Here, Hudson alleges that the Retirement Board breached its fiduciary duties well
before the six-year limitations period. The Complaint alleges that “The Board Defendants
had an affirmative duty [under 29 U.S.C. § 1104] to disclose that the term ‘changed
circumstances’ had been interpreted in a specific manner by the Board in advance of the
time that Plaintiff and the Class filed their initial claim for benefits seeking a determination
of disability benefits under the Plan.” (Complaint ¶ 84.) Hudson applied for benefits on
March 9, 2010. (Complaint ¶ 32.) Presumably, he had access to the Plan and Summary
Plan Description well before that date as a long-time participant. (See Complaint ¶ 10.)
Regardless, even taking his benefit application date as the beginning of the period from
which he alleges a breach of fiduciary duty, he would have had six years—until March 9,

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2016—to file his action. Yet Hudson did not file this action until more than two years after
that on May 21, 2018. 20 (Dkt. 1.)
In opposition, Hudson argues that the “fraud and concealment” exception to the
normal statute of limitations should apply here. See 29 U.S.C. § 1113; (Pl. Mem. at 3033.). Hudson asserts that his claim is not precluded because the Retirement Board’s
interpretation of the relevant terms was allegedly concealed from him until his final denial
for reconsideration on May 21, 2015 (Complaint ¶ 38; see Quitt Decl., Ex. B.)
But the Complaint does not sufficiently allege the purposeful concealment required
to invoke the exception. As the Retirement Board correctly observes, courts require that
allegations of fraud and concealment under this provision be plead with specificity. (Board
Reply at 6-8); see Osberg v. Foot Locker, Inc., 862 F. 3d 198, 210-11 (2d Cir. 2017) (“As
we noted in Caputo, application of the concealment exception requires that in addition to
alleging a breach of fiduciary duty . . . [a plaintiff must] also allege that the defendant
committed either: (1) a self-concealing act—an act committed during the course of the
breach that has the effect of concealing the breach from the plaintiff; or (2) active
concealment—an act distinct from and subsequent to the breach intended to conceal it.”)
(quoting Caputo, 267 F.3d at 189 (2d Cir. 2001)). Put differently, plaintiffs must plead
allegations of fraud or concealment with particularity and allege either that the fiduciary
engaged in conduct to keep the breach concealed from the plaintiff, or that the fiduciary
engaged in some subsequent act to hide that breach. Caputo, 267 F.3d at 191 (finding

20

The result is unchanged if the beginning date were calculated from May 20, 2011, the
date of the Retirement Board’s final determination on Hudson’s initial T&P benefits
application. (Complaint ¶ 33.) Even assuming this was the relevant date—as the moment
when the Retirement Board formally applied its allegedly improper and undisclosed
interpretation of its standard of review—this 2018 action would still be a year too late.
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that “requisite particularity” for fraud claim is required). The Complaint alleges no such
conduct. There is no basis to apply the exception contained in 29 U.S.C. § 1113(B)(2).
Because this action was filed more than two years after the last possible date of
the claim permitted under 29 U.S.C. § 1113, Count II is time-barred and should be
dismissed as a matter of law.
4. Counts IV and V Must Be Dismissed
The bulk of the claims against the Retirement Board are centered on Hudson’s
allegations that the Retirement Board violated ERISA and its fiduciary duties under the
Plan by failing to define “clear and convincing evidence” and “changed circumstances,”
thereby “lock[ing] [Plaintiff] into a lower category of benefits.” (Complaint ¶¶ 67-88.) But
the Complaint also includes Counts IV and V, which allege somewhat unconnected
grievances relating to modifications of the Plan or other retirement benefits. These two
claims add additional collateral attacks to the current structure of the Plan, apparently in
service of Hudson’s request to have this Court replace the Retirement Board or otherwise
insinuate wrongdoing. However, there is no alleged connection between Counts IV and
V and any actual harm that Hudson alleges to have suffered, namely that he should be
entitled to a higher level of T&P benefits. Moreover, they are subject to the same
exhausted limitations periods as his prior claims. Accordingly, Counts IV and V should
be dismissed.
a. Count IV Fails to Allege Injury-In-Fact
Count IV seeks a declaration that a 2017 Amendment to the NFL Player Disability
& Neurocognitive Benefit Plan does not apply to Hudson or other members of the putative
class. (Complaint ¶ 101.) The 2017 Amendment, however, relates to a separate benefit

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plan from the Plan of which Hudson is a beneficiary (namely, the Bell/Pete Rozelle NFL
Player Retirement Plan). (Complaint ¶ 21.) Hudson does not allege that he is a beneficiary
of the NFL Player Disability & Neurocognitive Benefit Plan, either before or after the 2017
Amendment. It is undisputed that his benefits are paid by the Plan, all his reclassification
requests were under the Plan, and all decisions to which he objects were rendered by the
Initial Claims Committee and Retirement Board. (Complaint ¶ 36.) The allegedly deficient
Summary Plan Description relates only to the Plan. (See Complaint ¶ 10) (alleging that
Hudson is a participant in “the Plan”). Hudson claims that he received a notice of a
summary of material modifications to the NFL Player Disability & Neurocognitive Benefit
Plan in February 2018. (Complaint ¶ 47.) This notice informed him that “[t]he standard for
reclassifying [participants’] total and permanent disability benefits” had changed,
including the standard as to what constitutes “changed circumstances.” (Id.) But he does
not allege any ways in which this change might affect him, given that the changes are to
a plan that does not include him.
In short, Hudson fails to allege any injury in fact in Count IV. As a result, he does
not have constitutional standing to assert that claim. See Friends of the Earth, Inc. v.
Laidlaw Environmental Services., Inc., 528 U.S. 167, 180-81 (2000) (to establish
constitutional standing, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is
(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.”); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“Plaintiff
must have suffered an injury in fact . . . which is actual or imminent, not conjectural or

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hypothetical.’”) (internal quotations and citations omitted); Kendall v. Employees
Retirement Plan of Avon Products, 561 F.3d 112, 121 (2d Cir. 2009) (abrogated on other
grounds by American Psychiatric Association v. Anthem Health Plans, Inc., 821 F.3d 352,
357 (2d Cir. 2016)) (“[a plaintiff] cannot claim that either an alleged breach of fiduciary
duty to comply with ERISA, or a deprivation of [his] entitlement to that fiduciary duty, in
and of themselves constitutes an injury-in-fact sufficient for constitutional standing”).
In opposition, Hudson cites Loren v. New York City Department of Education, 2015
WL 3917490, at *6-7 (S.D.N.Y. June 25, 2015) for the proposition that “harm can be
established indirectly or by circumstantial evidence.” (Pl. Mem. at 13.) This may be true,
but Hudson has not alleged any facts that would plausibly establish or even give rise to
actual harm. 21
Hudson has not plausibly alleged any injury traceable to any act or omission
involving the NFL Player Disability & Neurocognitive Benefit Plan or the 2017
Amendment. There is no causal connection alleged between any aspect of the 2017
Amendment and Hudson himself. Without sufficient allegations of harm, Count IV fails as
a matter of law. Accordingly, it should be dismissed.
b. Count V is Time-Barred and Fails to Allege Injury-In-Fact
Count V of the Complaint seeks to void the Plan’s limitations provision, located at
Article 11.7(b), on the theory that the provision itself (and the part of the Summary Plan

21

Hudson points to the fact that the Retirement Board members are identical for both the
Plan affecting Hudson and the NFL Player Disability & Neurocognitive Benefit Plan
(Complaint ¶ 49.) But this overlap does not create any shared interest of Hudson in the
entirely separate benefits plan.
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Description describing it) violate 29 U.S.C. §§ 1022, 1104, and 1110 of ERISA. Article
11.7(b) provides:
Except as provided in Section 11.7(a) [regarding claims for benefits], no action
alleging an omission, violation, or breach of any responsibility, duty, or obligation
imposed by this Plan (or any internal rule, guideline, or protocol) or any applicable
law may be commenced after the earlier of—
(1) six years after the date of the omission, violation, or breach, or
(2) three years after the earliest date on which the plaintiff had actual or
constructive knowledge of the omission, violation, or breach, except as provided
in ERISA section 413 (but only where the fraud or concealment is separate from
the offense and intended to conceal the existence of the offense).
(See Junk Decl., Ex. A, Plan at 43.)
The Summary Plan Description describes these limitations provision as follows:
With respect to all other types of claims [i.e., other than a claim for benefits], you
may not commence a legal action in a court after the earlier of—
•
•

six years after the date of any omission, violation, or breach of any
responsibility, duty, or obligation imposed by the Retirement Plan or
applicable laws, or
three years after the earliest date that you knew or should have known of
any such omission, violation, or breach, except that, depending on the facts,
certain exceptions may apply.

If you do file a legal action after these limitations periods have expired, the court
may dismiss your claim.
(See Junk Decl., Ex. B at 38.)
Hudson’s Count V is plainly time-barred. Hudson acknowledges that the abovelanguage was included in both the Plan and Summary Plan Description since at least
2009 and 2010, respectively. (Complaint ¶¶ 104-06.) Hudson filed this litigation in 2018.
(Dkt. 1.) As the Court has already discussed, ERISA claims are governed by strict statute
of limitations periods. Claims under 29 U.S.C. § 1022 (relating to summary plan
descriptions) are governed by a three-year statute of limitations. See Osberg II, 907 F.

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Supp. 2d 527, 533 (“[T]he appropriate limitations period is the three-year period governing
statutory violations.”) Claims under 29 U.S.C. § 1104 are governed by a six-year statute
of limitations. 29 U.S.C. § 1113 (stating that claims relating to breaches of fiduciary duty
must be brought within six years of the breach, or three years of plaintiff’s knowledge of
the breach, whichever is earlier). Accordingly, any claim under 29 U.S.C. § 1022 should
have been brought by 2013 (3 years after 2010) at the latest. Any claim under 29 U.S.C.
§ 1104 should have been brought by 2015 (six years after 2009) at the latest. Hudson’s
Count V claim is therefore time-barred. Count V cannot survive as a matter of law and
should be dismissed. 22
Conclusion
For the foregoing reasons, I recommend that Defendants’ motions to dismiss be
GRANTED and the action DISMISSED with prejudice.
The parties’ additional arguments not expressly addressed above have been
considered by the Court and found to be without merit.
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal
Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections
to this Report and Recommendation. Such objections shall be filed with the Clerk of the
Court, with extra copies delivered to the Chambers of the Honorable Gregory H. Woods,

22

Beyond arguing that Count V is time-barred, the Retirement Board and the Association
argue that it should additionally fail for the same reason as Count IV: Hudson lacks
constitutional standing with respect to claims concerning Article 11.7(b) or the related
issues in the Summary Plan Description because the Complaint does not articulate how
Hudson has been injured by either provision. (See Board Mem. at 22-24; Association
Mem. at 18-19; see also, Complaint ¶¶ 102-109.) The Court does not find this argument
to be as persuasive for Count V as for Count IV. However, because the Court finds that
Count V is time-barred, it need not address these arguments.
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United States Courthouse, 500 Pearl Street, Room 2260, New York, New York 10007,
and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street,
Room 1960, New York, New York 10007. Failure to file timely objections will result
in a waiver of objections and will preclude appellate review.

Respectfully submitted,

_________________________________
ROBERT W. LEHRBURGER
UNITED STATES MAGISTRATE JUDGE

Dated:

September 5, 2019
New York, New York

Copies transmitted to all counsel of record.

60