Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 1 of 32

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
)
)
)
)
)
Plaintiff,
)
)
v.
)
)
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 “DICK” CASS, TED PHILLIPS, )
SAMUEL MCCULLUM, ROBERT SMITH, )
and JEFFREY VAN NOTE,
)
)
Defendants.
)
)
CHRISTOPHER HUDSON, in his
individual capacity on behalf of himself and
others similarly situated,

No. 1:18-cv-4483-RWS-RWL
AMENDED CLASS ACTION
COMPLAINT

Plaintiff, Christopher Hudson, by and through his undersigned attorneys, brings this class
action complaint on behalf of himself and all others similarly situated allege facts related to his
claim based on personal knowledge and all other facts based on investigation of counsel.
NATURE OF THE ACTION
1.

Plaintiff Christopher Hudson, a former, now-disabled National Football League

(“NFL”) football player, brings this action under the Employee Retirement Income Security Act
of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq., on behalf of a Class of participants in and
beneficiaries of the Bert Bell/Pete Rozelle NFL Player Retirement Plan (the ”Plan”) against the
fiduciaries of the Plan to remedy their failure to make critical disclosures about the Plan that have
harmed disabled participants to obtain reclassification of their category of benefits under the Plan.

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 2 of 32

2.

Defendants are the administrators and fiduciaries of a disability retirement program

for NFL players. As fiduciaries of the Plan, Defendants have an obligation, characterized as the
highest known to the law, to fairly administer the retirement plan for these players and to make
proper disclosure of important information about the terms of the Plan. Defendants have breached
these duties by adopting undisclosed interpretations of key terms and failing to reveal that these
terms have a particular interpretation and the meaning of these undefined, and critical terms in the
Plan until the very end of the administrative process when the player-participant has sought a
reclassification.
3.

As a result of these failures to disclose, the players disabled by League-related head

trauma will have sought an initial classification of benefits without being told that doing so will
jeopardize his ability to seek a classification at a different category or at the very least that he will
be subject to a much higher standard of evidence and proof. The effect of these failures to disclose,
is that while the Plan purports allow for reclassification, these undisclosed terms and hidden
interpretation of key provisions create a trap for the unwary so that it is effectively impossible for
any of these players to ever see their disability status reclassified.
4.

On behalf of himself and the class, Plaintiff Hudson seeks to end this practice in

order to require the Plan fiduciaries to make proper disclosures so that participants are fully
informed about the standards and requirements when they seek benefit under the Plan.
JURISDICTION AND VENUE
Subject Matter Jurisdiction
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
1331 because this action arises under the laws of the United States and pursuant to 29 U.S.C. §
2

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 3 of 32

1132(e)(1), which provides for federal jurisdiction of actions brought under Title 1 of ERISA.
Personal Jurisdiction.
This Court has personal jurisdiction over Defendants because Defendants transact
business in and have significant contacts with this District, and because ERISA provides for
nationwide service of process pursuant to ERISA § 502(e)(2), 29 U.S.C. § 1132(e)(2).
Venue.
Venue is proper in this District pursuant to ERISA § 502(e)(2), 29 U.S.C. §
1132(e)(2), and 28 U.S.C. 1391(b) and (c) because some of the breaches and violations giving rise
to the claims occurred in this District, and at least one of the Defendants may be found in this
District.
THE PARTIES
Plaintiff Christopher Hudson is a former professional football player with the
National Football League (the “NFL”) within the meaning of Article 1.29 of the 2009 Plan
Document. He began his career in the NFL with the Jacksonville Jaguars in 1995. Hudson played
with the Jacksonville Jaguars from 1995 until 1999, the Chicago Bears from 1999 until 2001, and
the Atlanta Falcons from 2001 until he retired from the NFL in 2003. Hudson is a “participant” in
the Plan, as defined under 29 U.S.C. § 1002(7), and a “Vested Player” as defined in Article 1.37
of the Plan.
Defendant National Football League Management Council (“NFL Management
Council”) is a non-profit association of clubs of the NFL that is based in New York City. Pursuant
to Article 10.2 of the 2009 Plan Document, the Management Council when acting jointly with the
Players Association had the power to amend the Plan. Pursuant to Article 8.1 of the 2009 Plan
3

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 4 of 32

Document, the NFL Management Council had the authority to appoint three voting members of
the Retirement Board and also to remove and appoint a replacement for any member of the
Retirement Board that the NFL Management Council has appointed. By virtue of these powers to
appoint and remove other fiduciaries, Defendant NFL Management Council was a fiduciary of the
Plan within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A), and had the fiduciary
responsibility to monitor the Retirement Board as an entity and the members of the Board whom
it appointed, and remedy any fiduciary violations committed by the Retirement Board.
Defendant National Football League Players Association (“NFLPA”) is the labor
organization representing the professional American football players in the National Football
League. Pursuant to Article 10.2 of the 2009 Plan Document, the NFL Players Association when
acting jointly with the NFL Management Council had the power to amend the Plan. Pursuant to
Article 8.1 of the 2009 Plan Document, the NFL Players Association had the authority to appoint
three voting members of the Retirement Board and also to remove and appoint a replacement for
any member of the Retirement Board that the NFL Management Council has appointed. By virtue
of these powers to appoint and remove other fiduciaries, Defendant NFL Players Association was
a fiduciary of the Plan within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A), and
had the fiduciary responsibility to monitor the Retirement Board as an entity and the members of
the Board whom it appointed, and remedy any fiduciary violations committed by the Retirement
Board.
Defendant Retirement Board is identified in Article 1.3 of the Plan Document as
the designated Plan Administrator of the Plan within the meaning of ERISA § 3(16)(A), 29 U.S.C.
§ 1002(16)(A), and a named fiduciary of the ESOP within the meaning of ERISA § 402, 29 U.S.C.
4

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 5 of 32

§ 1102. The Retirement Board is and has been a fiduciary of the Plan under ERISA § 3(21)(A),
29 U.S.C. § 1002(21)(A), because it exercised discretionary authority or discretionary control
respecting management of the ESOP, and/or had discretionary authority or discretionary
responsibility in the administration of the ESOP. Specifically, under Article 8.2 of the Plan,
Defendant Retirement Board was responsible for, inter alia, the following: defining the terms of
the Plan and Trust; construing the Plan and Trust; reconciling any inconsistencies in the definition
or interpretation of the Plan and Trust; deciding claims for benefits; paying all reasonable and
necessary expenses of the Plan; adopting procedures, rules, and forms; delegating authority as
necessary in administration of the Plan; selecting Trustees and setting forth terms of the Trust;
commencing or defending suits or legal proceedings involving the Plan and the Trust; and settling,
compromising, or submitting to arbitration for claims, debts, or damages due or owing to or from
the Plan or Trust. Pursuant to the Summary Plan Description (“SPD”), the Retirement Board is
composed of six voting members three of whom are selected by the NFLPA and three of whom
are selected by the NFL Management Council.
Defendant Katherine “Katie” Blackburn is identified by the 2015 SPD and the 2013
SPD as one of the Management Members of the Retirement Board. Defendant Blackburn is the
Executive Vice President of the Cincinnati Bengals. As a result of her membership on the
Retirement Board of Directors, Defendant Blackburn is and has been at relevant times a fiduciary
of the Plan within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21).
Defendant Richard W. “Dick” Cass is identified by the 2015 SPD and the 2013
SPD as one of the Management Members of the Retirement Board. Defendant Cass is the President
of the Baltimore Ravens. As a result of his membership on the Retirement Board of Directors,
5

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 6 of 32

Defendant Cass is and has been at relevant times a fiduciary of the Plan within the meaning of
ERISA § 3(21)(A), 29 U.S.C. § 1002(21).
Defendant Ted Phillips is identified by the 2015 SPD and the 2013 SPD as one of
the Management Members of the Retirement Board. Defendant Phillips is the CEO/President of
the Chicago Bears. As a result of is membership on the Retirement Board of Directors, Defendant
Phillips is and has been at relevant times a fiduciary of the Plan within the meaning of ERISA §
3(21)(A), 29 U.S.C. § 1002(21).
Defendant Samuel McCullum is identified by the 2015 SPD and the 2013 SPD as
one of the Player Members of the Retirement Board. As a result of his membership on the
Retirement Board of Directors, Defendant McCullum is and has been at relevant times a fiduciary
of the Plan within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21).
Defendant Robert Smith is identified by the 2015 SPD and the 2013 SPD as one of
the Player Members of the Retirement Board. As a result of his membership on the Retirement
Board of Directors, Defendant Smith is and has been at relevant times a fiduciary of the Plan within
the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21).
Defendant Jeffrey Van Note is identified by the 2015 SPD and the 2013 SPD as
one of the Player Members of the Retirement Board. As a result of her membership on the
Retirement Board of Directors, Defendant Blackburn is and has been at relevant times a fiduciary
of the Plan within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21).
The “Board Defendants” collectively refer to Defendants Blackburn, Cass, Phillips,
McCullum, Smith, Van Note and the Retirement Board as an entity.

6

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 7 of 32

FACTUAL ALLEGATIONS
The Retirement Plan
The Bert Bell/Pete Rozelle NFL Player Retirement Plan is an employee pension
benefit plan within the meaning of ERISA § 3(2)(A), 29 U.S.C. § 1002(2)(A). The relevant written
instrument of the Plan within the meaning of ERISA § 402(a) is the Bert Bell/Pete Rozelle NFL
Player Retirement Plan Amended and Restated as of April 1, 2009). Since at least 1994, the Plan
has provided retirement, disability, and related benefits to eligible professional football players.
Even though there is a separate NFL Player Supplemental Disability & Neurocognitive Benefit
Plan, that Plan only applies to benefits payable, and claims for benefits made, on or after April 1,
2017. The Bert Bell/Pete Rozelle NFL Player Retirement Plan continues to pay total and
permanent disability benefits based on claims filed prior to January 1, 2015. The Bert Bell/Pete
Rozelle NFL Player Retirement Plan is the Plan that governs Plaintiff’s disability benefits.
Article 5 of the 2009 Plan Document addresses Total and Permanent Disability
(“T&P”) benefits. Article 5.1 defines “Eligibility and Amount” as follows: “Any Active Player or
Vested Inactive Player . . . who is not receiving retirement benefits and is determined by the
Retirement Board or the Disability Initial Claims Committee to be totally and permanently
disabled as defined in section 5.2, and who satisfies the other requirements of this Section 5, will
receive a monthly total and permanent disability benefit for the months described in sections 5.6
and 5.7[].”
Article 1.36 of the 2009 Plan Document defines “Vested Inactive Player” to mean
a “Vested Player who is not an Active Player.” Article 1.37 of the Plan defines “Vested Player”
as a Player who “(a) earns five Credited seasons…” Article 2 address eligibility under the Plan,
7

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 8 of 32

noting that “[a]ll Players participate in the Plan.”
Article 5.1(d) of the 2009 Plan Document provides for Inactive benefits as follows:
“This category applies if (1) the total and permanent disability arises from other than league
football activities while the Player is a Vested Inactive Player, or (2) the disability(ies) arises out
of League football activities and results in total and permanent disability fifteen or more years after
the end of the Player’s last Credited Season. The minimum benefits provided under this Section
5.1(d) will be offset by any disability benefits provided by an employer other than the League or
an Employer, but will not be offset by worker’s compensation.”
Article 5.1 of the 2009 Plan Document also provides four categories of T&P
benefits, two of which are relevant. First, Article 5.1(c) provides for Football Degenerative (“FD”)
benefits as follows: “The monthly total and permanent disability benefits will be no less than
$4,000 if the disability(ies) arises out of League football activities, and results in total and
permanent disability before fifteen years after the end of the Player’s last Credited Season.”
Payments for Football Degenerative benefits have been routinely increased each year. Monthly
payments from 2010 to August 2011 were $8,167.00; from September 2011 to December 2015
payments were $9,000; and from January 2016 to present, monthly payments are $10,250.00.
Conversely, payments for monthly T&P benefits were $2,300.50 from October 2010 to August
2011; $3,333.50 from September 2011 to December 2015; and $4,166.50 from January 2016 to
present.
Article 5.2(a) of the 2009 Plan Document provides that “An eligible Player will be
deemed to be totally and permanently disabled if the Retirement Board or the Disability Initial
Claims committee finds that he has become totally disabled to the extent that he is substantially
8

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 9 of 32

prevented from or substantially unable to engage in any occupation or employment for
remuneration or profit, but expressly excluding any disability suffered while in the military service
of any country[].” At the time of the Board decision at issue, Article 5.2(b) of the Plan provided:
Social Security Awards. Effective April 1, 2007, a Player who has been determined
by the Social Security Administration to be eligible for disability benefits under
either the Social Security disability insurance program or Supplemental Security
Income program, and who is still receiving such benefits at the time he applies, will
be deemed to be totally and permanently disabled . . .
Solomon v. Bert Bell Pete Rozelle NFL Player Ret. Plan, 2016 U.S. Dist. LEXIS 27748, *10-11
(D. Md. Mar. 4, 2016).
Article 5.5(a) of the 2009 Plan Document, entitled Initial Classification, provides
“Classification of total and permanent disability benefits under Section 5.1 will be determined by
the Retirement Board or the Disability Initial Claims Committee in all cases on the facts and
circumstances in the administrative record[].”
Article 5.5(b) of the 2009 Plan Document, entitled Reclassification, provides: “A
Player who becomes totally and permanently disabled and who satisfies the conditions of
eligibility for benefits under Section 5.1(a), 5.1(b), 5.1(c), or 5.1(d) will be deemed to continue to
be eligible only for the category of benefits for which he first qualifies, unless the Player shows
by evidence found by the Retirement board or the Disability Initial Claims Committee to be clear
and convincing that, because of changed circumstances, the Player satisfies the conditions of
eligibility for a benefit under a different category of total and permanent disability benefits…”
None of the materials provided by Retirement Board defined the term “changed
circumstances” and Retirement Board did not notify Hudson of the definition of changed
circumstances until his last and final appeal of FD benefits. Plan participants were provided
9

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 10 of 32

documents meant to explain the policies and procedures of the Plan, including reclassification of
benefit status. In these materials, the only discussion of “changed circumstances” is as follows:
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 change of circumstances, you
satisfy the conditions of eligibility for a benefit under a different category of total
and permanent disability benefits.
Chris Hudson’s Claim and Appeal of Benefits
Plaintiff Hudson played football for the NFL for a total of 8 years in the position
of safety. Over the course of his career with the NFL in the position of safety, Hudson sustained
numerous hits to the head. Just two years after his 2003 retirement from the NFL, in 2005, Hudson
began complaining of headaches, dizziness, ringing ears, and blurred vision. These problems
worsened in 2008, when Hudson began experiencing 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.
Participants in the Plan are eligible to apply for both T&P disability benefits and
FD benefits. Hudson filed an initial application for disability under the Plan on March 9, 2010.
Hudson then filed an appeal with Retirement Board on July 27, 2010 and Hudson
was sent to “MAP neuro Rehab Institute of Chicago” for further testing.
Subsequently, the Retirement Board awarded Plaintiff T&P disability benefits
under the Plan on May 20, 2011. In its May 20, 2011 decision, the Retirement Board determined
that Hudson was ineligible for FD benefits. In its decision, Retirement Board concluded that
10

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 11 of 32

Hudson was “severely depressed” and experienced cognitive impairments attributable to nonLeague related mood disorder. In subsequent communications with Hudson on November 28,
2011, Retirement Board explained that it had determined that T&P related injuries were “not
related to League football activities.”
After the May 20, 2011 award of T&P 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.
Subsequent to the Social Security Administration’s decision, Hudson, proceeding
pro se, sought for his T&P Benefits to be reclassified as FD Benefits by filing a claim for benefits
under the Plan on September 16, 2014. As part of his request for reclassification, Hudson explained
that he had “clear and convincing evidence” of “changed circumstances” within the meaning of
the Plan, or at least the SPD, based, in part, on Social Security Administration’s decision as well
as a mental residual functional capacity questionnaire completed by Dr. Samuel Holcombe.
On October 8, 2014, the Retirement Board denied Hudson’s request for
reclassification. In its decision, the Initial Claims Committee never defined how the Committee or
the Retirement Board interpreted “changed circumstances.”

Moreover, the Initial Claims

Committee never explained how it weighed the evidence submitted by Hudson for its
consideration. In its denial, the Initial Claims Committee also 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.”
On March 27, 2015, Hudson appealed Retirement Board’s decision. As part of his
appeal of the denial of reclassification, Hudson presented the Retirement Board with numerous
11

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 12 of 32

pieces of new medical evidence for its consideration.
In a decision dated May 21, 2015, but received by Mr. Hudson on May 27, 2015,
Defendant Retirement Board issued its final decision denying Hudson’s 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) 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.
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. Furthermore, the record contains no proof that
Retirement Board submitted any of the evidence Hudson provided to any medical source for
evaluation and consideration prior to making its final decision.
The Retirement Board Consistently Failed to Disclose Important Information to Participants
According a New York Times dated August 14, 2019, entitled “He Signed the Denial
Letter. Now He Helps Former N.F. L. Players Get Benefits,” Paul Scott was formerly employed
by the Plan Administrator as “the point person telling players what paperwork they needed to apply
for disability benefits.” According to the New York Times article, Mr. Scott was instructed to “tell
the players only what they needed to submit, not how to submit it.”
Mr. Hudson’s experience was similar to what was described by the New York
Times. After he was granted inactive benefits but before filing his request for reclassification,
12

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 13 of 32

Hudson spoke on multiple occasions with Paul Scott, Sam Vincent, and an employee named
“Laura”, representatives of the Plan Administrator, to ask questions about the process of and
requirements for reclassification. None of these employees advised Mr. Hudson what he would
need to show to seek reclassification, except that one employee stated to Mr. Hudson that he would
need to show “new findings about what was happening.” None of the representatives of the Plan
Administrator that Mr. Hudson spoke to told Mr. Hudson anything else regarding the Plan’s
interpretation of the term “changed circumstances” or the kind of proof needed to show “changed
circumstances.”
Confidential Witness #1 (“CW1”) is a person who had significant responsibility for
administering the Plan between at least 2004 and 2016, including with respect to Plan’s disclosures
to and communications with Plan participants. CW1 spoke to Mr. Hudson in 2017. During that
conversation in 2017, Mr. Hudson inquired about the meaning of “changed circumstances.” CW1
responded that the Board “deliberately keeps the language vague.”
According to CW1, in the course of carrying out CW1’s responsibilities, CW1
received numerous calls from players who did not understand the SPD. The Board specifically
instructed the Plan Administrator not to provide players who called with questions regarding
reclassification with any information other than to refer them to the language of the SPD or to the
NFLPA.
According to CW1, the language of the SPD and the Plan were “vague on purpose”
and provided no helpful information to participants. The Board kept “secret definitions” for terms
including “clear and convincing,” “total and permanent disability,” and “changed circumstances”
that were “fuzzy on purpose” and not disclosed to Plan participants. CW1 believed that the Board
13

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 14 of 32

was rubber-stamping the decisions made by others.
According to CW1, in the course of carrying out CW1’s responsibilities CW1 was
repeatedly cautioned against helping Plan participants and instructed that he had an obligation to
be “neutral.” It was clear to CW1 that neither the NFLPA nor the Management Council wanted
the Plan Administrator to be answering the questions of Plan participants and that neither was
interested in helping the retired players with their benefits and the NFLPA had to keep in mind
how the awards would affect the current players.
Mr. Hudson’s experiences, the statements of Paul Scott in the New York Times, and
the statements of CW1 comport with and are corroborated by the experiences of other former NFL
players. For example, Joe Phillips, a former NFL football player and a Plan participant, contacted
the Plan Administrator multiple times between 2009 and 2015 regarding his intention to request
reclassification of benefits under the Plan. Mr. Phillips called at least a dozen times expressing that
he did not understand the SPD and asked questions about the process for reclassification and
clarification about terms in the SPD meant. Despite his repeated questions, the Plan Administrator
failed to explain the standard of “changed circumstances” or proof needed to prove “changed
circumstances” to Mr. Phillips. The Plan Administrator repeatedly referred him to the language of
the Plan in response to his questions.
Leonard Marshall, a former NFL football player and a Plan participant, also
repeatedly contacted the Plan Administrator regarding his intention to request reclassification of
benefits under the Plan. Mr. Marshall called between three and five times to ask questions about
the process for reclassification and what terms in the SPD meant. Similar to the experience of Mr.
Hudson and Mr. Phillips, the Plan Administrator did not answer Mr. Marshall’s questions. The
14

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 15 of 32

Plan Administrator did not explain the standard of “changed circumstances” or the kind of proof
needed to establish “changed circumstances.” The Plan Administrator did not direct Mr. Marshall
to any case law. Instead, the Plan Administrator instructed Mr. Marshall to contact the NFL
Players Association with his questions. Mr. Marshall then contacted the NFL Players Association,
spoke to multiple people at length, expressed his confusion, but did not receive answers to his
questions.
The NFL Players Association & NFL Management Council Knew or
Should Have Known of the Board Defendants’ Breaches
Mr. Marshall’s conversations with multiple representatives of the NFLPA after
having been referred by the Plan Administrator should have alerted the NFLPA that the Board
Defendants were in breach of their duties not to misinform Plan participants, to affirmatively
inform participants where silence would be harmful, and to convey complete and accurate
information to Plan participants material to their circumstances regarding the standard for
reclassification under the Plan and the “changed circumstances” requirement.
The persistently high rate at which retired players file suits regarding the denial of
their benefits under the Plan should have alerted the NFLPA and NFL Management Council not
only about a potentially deficient process of benefit awards, but also that the Board Defendants
were failing to provide adequate information to participants. A prudent fiduciary would have
investigated the causes of this persistently high rate of suits regarding benefit denials and
discovered that the Board Defendants were in breach of their duties to affirmatively inform
participants where silence would be harmful, and to convey complete and accurate information to
Plan participants material to their circumstances including regarding the standard for

15

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 16 of 32

reclassification under the Plan and the “changed circumstances” requirement.
The existence of multiple lawsuits against the Board relating to interpretation of the
term “changed circumstances” under the Plan—including by participants and former NFL players
Jeffrey D. Bryant, Brent V. Boyd, and Jesse Solomon—should have alerted the NFLPA and the
NFL Management Council that the Board Defendants were in breach of their duties not to
misinform Plan participants, to affirmatively inform participants where silence would be harmful,
and to convey complete and accurate information to Plan participants material to their
circumstances regarding the standard for reclassification under the Plan and the “changed
circumstances” requirement. A prudent fiduciary would have investigated the facts of these cases
and discovered that the Board Defendants were in breach of their duties to affirmatively inform
participants where silence would be harmful, and to convey complete and accurate information to
Plan participants material to their circumstances including regarding the standard for
reclassification under the Plan and the “changed circumstances” requirement.
Reporting of pervasive belief by former NFL players that procedures for benefits
claims for former NFL players followed a strategy of “"delay, deny, and hope they die," should
have alerted the NFLPA and NFL Management Council not only about a potentially deficient
process of benefit awards, but also that the Board Defendants were failing to provide adequate
information to participants. On September 18, 2015, Vice reported in an article entitled “Battle For
Benefits, Pt. 3: Don’t Make Proud Men Beg,” that “almost to a man, the pre-93ers [NFL retirees
who played before 1993]—and some post-93ers—recite a maxim that they believe best
summarizes the NFL and NFLPA’s attitude regarding retired players: ‘delay, deny, and hope they
die.’” As discussed above, on August 14, 2019, the New York Times also reported that “Retired
16

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 17 of 32

N.F.L. players struggling with debilitating injuries years after they leave the field have a not-sofacetious way of describing the league’s approach to doling out their health benefits: ‘Delay, deny
and hope you die.’” A prudent fiduciary would have investigated the basis for this widespread
perception and discovered that the Board Defendants were in breach of their duties to affirmatively
inform participants where silence would be harmful and to convey complete and accurate
information to Plan participants material to their circumstances including regarding the standard
for reclassification under the Plan and the “changed circumstances” requirement.
Findings and recommendations of the Petrie-Flom Center for Health Law Policy,
Biotechnology, and Bioethics at Harvard Law School should have alerted the NFLPA and NFL
Management Council not only about a potentially deficient process of benefit awards, but also that
the Board Defendants were failing to provide adequate information to participants. In May of 2017,
in a publication entitled “Comparing Health Related Policies & Practices in Sports: The NFL and
Other Professional Leagues,” scholars at the Petrie-Flom Center described the filing process for
the Plan as “complex and lengthy.” In November of 2016, scholars at the Petrie-Flom Center noted
that while “the NFL and NFLPA offer many benefits and programs to current and former players
to help them on a wide spectrum of issues, including most importantly healthcare… many players
are not taking full advantage of these programs.” The scholars noted that “[i]n interviews we
conducted, current and former players were generally unclear and unsure about what information
they had received.” The scholars recommended substantially increased levels of disclosure,
transparency, and assistance to players and former players regarding benefits, including by
affirmatively providing summaries of benefits to players, preparing a manual for every retiring
player listing and explaining all the benefits for which they are eligible, providing such a manual
17

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 18 of 32

to every contract advisor and financial advisor of NFL players, making important information
about the various benefit plans available to NFL players publicly available, and making
“substantial investments in education along with attempts to monitor whether players understand
what they are being told.”

The scholars specifically admonished that “bare provision of

information and documents to the players is not sufficient,” because “we know from behavioral
science that too much information can be overwhelming and that certain approaches are more
likely to result in comprehension and action.” A prudent fiduciary would have investigated the
basis for these scholars findings and recommendations and discovered that the Board Defendants
were in breach of their duties to affirmatively inform participants where silence would be harmful,
and to convey complete and accurate information to Plan participants material to their
circumstances including regarding the standard for reclassification under the Plan and the
“changed circumstances” requirement.
Chris Hudson’s Post-Denial Requests for Information to Retirement Board
After the final denial, Hudson filed a federal complaint in the Northern District of
Mississippi. Hudson and Defendants later entered into a voluntary remand for further consideration
at the administrative level by the Retirement Board.
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 Retirement Board’s definition of
“impairment.” Mr. Junk responded in writing, citing Bryant v. Bert Bell/Pete Rozelle NFL Player
Retirement Plan, U.S. Dist. LEXIS 176748, *18 (N.D. Ga. Mar. 23, 2015) and Boyd v. Bert
Bell/Pete Rozelle NFL Player Retirement Plan, 796 F. Supp 2d. 682, 693 (D. Md. 2011) and noting
18

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 19 of 32

that “two prior court decisions upholding the Retirement Board’s interpretation and application of
the ‘changed circumstances.’” Mr. Junk further stated that he and his colleagues are “unaware of
any other instance in which the Retirement Board has interpreted the ‘changed circumstances’
requirement in a manner different than that explained in Boyd, Bryant, and Hudson’s case…this
consistency is not surprising, given that consistence is one the of the hallmarks of reasonableness
in plan interpretation.” Mr. Junk, however, refused to respond to Hudson’s request for the
definition of the term “impairment” because “it amounts to a request for an advance advisory
opinion on the [term].”
On June 13, 2016, Hudson sent Mr. Miller and Mr. Junk a Second Request for
Clarification/Request for Information. This second request, again, asked for 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.” Neither
Miller nor Junk responded to the second request.
Hudson renewed his requests in a Third Request for Clarification/Request for
Information on September 30, 2016. In this request, Hudson added several requests “in order to
analyze the Retirement Board’s use of discretion in this case, and whether it abused that
discretion.” Hudson also sent a Request for Production of Documents – Plan Neutral Training
Materials. No materials were produced in response.
On November 22, 2016, the Plan issued its “Final Decision Regarding Request for
Reclassification,” denying Hudson’s request to be reclassified from T&P to Football Degenerative.
On December 12, 2016, Hudson sent Retirement Board a Second Request for
Production of Documents – Plan Neutral Physician Training Materials because he had not received
19

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 20 of 32

a response to his September 30, 2016 request for these materials. Hudson relied on ERISA
regulations in support of his requests that state that a claimant shall be provided or given reasonable
access to documents relevant to their claim. In response, Junk’s December 19, 2016 letter stated
that he refused to respond to Hudson’s request for documents on the grounds that the documents
requested were not relevant.
Hudson’s counsel responded with a Follow-up Request for Production of
Documents/Request for Information on December 29, 2016, again citing 29 C.F.R. 2560.5031(m)(8) definition of “relevant documents.” Junk responded with a letter dated January 10, 2017,
maintaining that “[t]he Retirement Board’s decision on Hudson’s request for classification is final,
it will not be reopened, and the Plan will not produce any of the documents you have requested.”
CLASS ACTION ALLEGATIONS
Plaintiff brings this action as a class action pursuant to Rule 23 of the Federal Rules
of Civil Procedure on behalf of the following Class:
All participants of the Plan who filed a claim seeking total and permanent disability
benefits prior to January 1, 2015 and the beneficiaries of such persons.
Excluded from the Class are Defendants and persons who were named fiduciaries
of the Plan, the officers and directors of the NFL Management Council, the officers and directors
of the NFLPA, the members the immediate families of any of the foregoing; and legal
representatives, successors, heirs, and assigns of any such excluded persons.
Impracticability of Joinder
The members of the Class are so numerous that joinder of all members is
impracticable. The exact number of class members is unknown to Plaintiff. The Plan’s most recent
20

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 21 of 32

Form 5500, the 2016 Form 5500 filed with the Department of Labor on December 20, 2017 reports
that 3,716 retired or separated participants were actively receiving benefits as well as an additional
694 deceased participants whose beneficiaries were receiving or were entitled to receive benefits.
The Plan’s Form 5500 did not specify the number of those participants who are receiving disability
benefits. According to the 2009 Retirement Plan Document, football-related disability rates were
expected to be 0.10% per year for Active Players and 0.08% per year for inactive Players until age
45. Moreover, the Retirement Plan Document (Amended and Restated as of April 1, 2012) noted
a significant increase in expected incidence of football-related disability: 0.35% per year for Active
Players and 0.28% per year for Inactive Players up to 15 years after the player’s last credited
season. In the Report of the Segal Group to the Special Master as part of the NFL Concussion
Litigation, 28% of the overall player population were expected to receive a qualifying diagnosis
within their lifetime. Accordingly, there are hundreds, if not thousands of Plan participants who
have been initially classified for disability benefits under the Plan who would be subject to the
“changed circumstances” standard for reclassification.
Commonality
The issues of liability are common to all members of the Class and are capable of
common answers as those issues include:
a.

whether Defendants breached their fiduciary duties to Plaintiff, and members of the

Class by failing to act prudently and solely in the interests of the Plan and the Plan’s
participants and beneficiaries in connection with their failure to disclose important issues
related to the standards for reclassification and the meaning of “changed circumstances;”
b.

whether the NFL Management Council and the NFLPA breached their duty to
21

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 22 of 32

monitor the Board Defendants; and
c.

the appropriate remedies and relief for Defendants’ violations and breaches.

Typicality
Plaintiff’s claims are typical of the claims of other members of the Class because
their claims arise from the same event, practice and/or course of conduct. Specifically, Plaintiff,
on behalf of the Class, alleges that Defendants breached their fiduciary duties or otherwise violated
ERISA in connection with the disclosures made to all participants with respect to the Plan’s
reclassification process. Plaintiff’s claims are also typical of the claims of the Class because they
generally seek recovery and relief that will result in a declaration and injunction for the Class.
Adequacy
Plaintiff will fairly and adequately represent and protect the interests of the Class.
Plaintiff does not have any interests antagonistic to or in conflict with those of the
Class.
Defendants have no unique defenses against Plaintiff that would interfere with
Plaintiff’s representation of the Class.
Plaintiff is represented by counsel with extensive experience prosecuting class
actions in general and ERISA class actions in particular.
Fed. R. Civ. P. 23(b)(1)(A)
56.

The requirements of Fed. R. Civ. P. 23(b)(1)(A) are satisfied. Fiduciaries of

ERISA-covered plans have a legal obligation to act consistently with respect to all similarly
situated participants and to act in the best interests of the Plan and their participants. This action
challenges whether Defendants acted consistently with their fiduciary duties or otherwise violated
22

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 23 of 32

ERISA with respect to activities that affected all class members uniformly. As a result, prosecution
of separate claims by individual members would create the risk of inconsistent or varying
adjudications that would establish incompatible standards of conduct relating to the Plan.
Fed. R. Civ. P. 23(b)(1)(B)
57.

The requirements of Fed. R. Civ. P. 23(b)(1)(B) are also satisfied. Administration

of an ERISA-covered plan requires that all similarly situated participants to be treated the same.
Resolving whether Defendants each owed a fiduciary duty to the Plan, Plaintiff and members of
the Class; whether Defendants fulfilled their fiduciary obligations to the Plan, violated ERISA or
as to Plaintiff would, as a practical matter, be dispositive of the interests of the other participants
in the Plan even if they are not parties to this litigation and would substantially impair or impede
their ability to protect their interests if they are not made parties to this litigation by being included
in the Class.
Fed. R. Civ. P. 23(b)(2)
58.

The requirements of Fed. R. Civ. P. 23(b)(2) are satisfied as to the Class because

Defendants have acted and/or failed to act on grounds generally applicable to the Class, making
declaratory and injunctive appropriate with respect to the Class as a whole. This action challenges
whether Defendants acted consistently with their fiduciary duties or otherwise violated ERISA as
to the Class as a whole. The relief sought in this case primarily consists of declarations that
Defendants breached their fiduciary duties or engaged in other violations of ERISA and injunctive
relief. As ERISA is based on trust law, any monetary relief consists of equitable monetary relief
and is either provided directly by the declaratory or injunctive relief or flows as a necessary
consequence of that relief.
23

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 24 of 32

Fed. R. Civ. P. 23(b)(3)
59.

The requirements of Fed. R. Civ. Pr. 23(b)(3) are also satisfied. The common

questions of law and fact concern whether Defendants breached their fiduciary duties or violated
ERISA to the Plan. As the members of the Class were participants in the Plan, their rights and
benefits were affected by those breaches and violations. Common questions related to liability will
necessarily predominate over any individual questions precisely because Defendants’ duties and
obligations were uniform to all participants and therefore all members of the Class. As relief and
any recovery will be on behalf of the Plan, common questions as to remedies will likewise
predominate over any individual issues.
60.

A class action is a superior method to other available methods of the fair and

efficient adjudication of this action. Resolution of the issues in this litigation will be efficiently
resolved in a single proceeding rather than multiple proceedings and each of those individual
proceedings could seek recovery for the entire Plan. Class certification is a superior method of
proceeding because it will obviate the need for unduly duplicative litigation which might result in
inconsistent judgments about Defendants’ duties with regard to the Plan.
61.

The following factors set forth in Rule 23(b)(3) also support certification:
a.

The members of the Class have an interest in a unitary adjudication of the

issues presented in this action such that this case should be certified under Rule 23(b)(1).
b.

No other litigation concerning this controversy has been filed by any other

members of the Class.
c.

This District is the most desirable location for concentrating this litigation

because the National Football League is headquartered in this District, Defendant NFL
24

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 25 of 32

Management Council is headquartered in this District and the individual Defendants are
believed to have significant contacts in this District and at least some of the breaches took
place in this District.
d.

As the relief sought is primarily declaratory and injunctive, there are no

management issues that present difficulties to manage this case as a class action.
COUNT I
Breach of Fiduciary Duty Pursuant to ERISA § 404(a)(A)(1)(A) & (B), 29 U.S.C.
§ 1104(a)(A) & (B) For Failure to Disclose Against the Board Defendants
62.

Plaintiff incorporates and re-alleges by reference each of the foregoing paragraphs

as if fully set forth herein.
63.

ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1), requires that a plan fiduciary discharge

his or her 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 …. (B) with “care, skill, prudence, and diligence.”
64.

An ERISA fiduciary’s duty of loyalty and prudence under ERISA § 404(a)(1)(A)

and (B) includes a duty to disclose and inform. Those duties not only require that a fiduciary
comply the specific disclosure provisions in ERISA, but also require (a) a duty not to misinform,
(b) an affirmative duty to inform when the fiduciary knows or should know that silence might be
harmful, and (c) a duty to convey complete and accurate information material to the circumstances
of the participants and beneficiaries.
65.

The Board Defendants had an affirmative duty to disclose that the term “changed

circumstances” had been interpreted in a specific manner by the Board in advance of the time that

25

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 26 of 32

Plaintiff and the Class filed their initial claim for benefits seeking a determination of disability
benefits under the Plan.
66.

None of the materials provided by Board to Plaintiff, or upon information and belief

other participants, defined the term “changed circumstances” or otherwise advised participants that
there was a specific interpretation of the phrase “changed circumstances” until or after their last
and final appeal of FD benefits.
67.

Not until the Final Appeal on his request for reclassification did the Board

Defendants advise Plaintiff, and upon information and belief, other participants that “the Board
interprets 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.”
68.

By keeping the terms of the Plan intentionally vague and refusing to provide

clarification in response to participant questions, the Board Defendants violated ERISA §
404(a)(1)(A) & (B), 29 U.S.C. § 1104(a)(1)(A) & (B).
69.

By instructing those persons employed on its behalf (i.e. Plan Administrator), the

to withhold information regarding the standard for “changed circumstances” from participants in
response to inquiries, and to only provide participants with the language of the Plan and the SPD,
the Board Defendants violated ERISA § 404(a)(1)(A) & (B), 29 U.S.C. § 1104(a)(1)(A) & (B)..
70.

By failing to communication this information about the interpretation of the

standard necessary to obtain a reclassification or to satisfy the conditions for eligibility for a benefit
under a different category of benefits, the Board Defendants violated ERISA § 404(a)(1)(A) &
(B), 29 U.S.C. § 1104(a)(1)(A) & (B).
26

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 27 of 32

71.

As a result of this violation, Plaintiff and the other members of the Class were not

properly informed that subsequently seeking reclassification and/or modification of their category
of benefits would require a higher standard and that seeking any early application would
unnecessarily lock themselves into a lower category of benefits.

COUNT II
Breach of Fiduciary Duty Under ERISA §§ 404(a)(1)(A), (B) and (D),
29 U.S.C. §§ 1104(a)(1)(A), (B) and (D) For Failure to Monitor Against the NFL
Management Council and the NFL Players Association
72.
Plaintiff incorporates the preceding paragraphs as though set forth herein.
73.

ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1), requires that a plan fiduciary discharge

his or her duties with respect to a plan solely in the interest of the participants and beneficiaries,
(A) for the exclusive purpose of providing benefits to participants and the beneficiaries of the plan,
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a
prudent person 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, and (D) in accordance with the documents
and instruments governing the plan insofar as such documents and instruments are consistent with
ERISA.
74.

Under ERISA § 404(a)(1)(A) and (B), a fiduciary with the authority to appoint

and/or remove other fiduciaries has an obligation to undertake an appropriate investigation that the
fiduciary is qualified to serve in the position as fiduciary and at reasonable intervals to ensure that
the fiduciary who has been appointed remains qualified to act as fiduciary and is acting in
compliance with the terms of the Plan and in accordance with ERISA.

27

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 28 of 32

75.

Pursuant to Article 8.1 of the 2009 Plan Document, the NFL Management Council

and the NFL Players Association each had the authority to appoint three voting members of the
Retirement Board and also to remove and appoint a replacement for any member of the Retirement
Board that they had appointed.
76.

The NFL Management Council and the NFL Players Association did not have a

system in place to monitor the Board Defendants, or had a defective system in place. Had the NFL
Management Council and the Players Association had a proper and prudent system or practice in
monitoring the Board Defendants, they would have been alerted by and taken action based on at
least the following: (a) phone calls from Plan participants to the Players Association referred by
the Plan Administrator expressing confusion regarding the standard for reclassification under the
Plan; (b) the persistently high rate at which disability benefit denials under the Plan were litigated;
(c) the Plan’s widespread reputation for being among the most arcane, byzantine, and difficult to
navigate benefit plans in the country; and (d) reports of insufficient administrative support and
guidance from the Plan Administrator sufficient to assist the vulnerable population of Plan
participants—with its high rate of mental disability—in navigating the Plan’s processes. Had A
prudent fiduciary faced with any of these facts would have undertaken a thorough investigation of
the Plan’s procedures, including for reclassification, and would have discovered the Board
Defendants’ persistent failures to disclose and efforts to conceal the standard for reclassification.
77.

The NFL Management Council and the NFL Players Association knew or if they

had a prudent process to monitor the Board Defendants should have known that the (a) SPDs did
not set forth an explanation of what constituted “clear and convincing evidence” or “changed
circumstances,” (b) the Board Defendants had interpreted “clear and convincing evidence” or
28

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 29 of 32

“changed circumstances,” (c) the interpretation of “clear and convincing evidence” or “changed
circumstances,” utilized by the Board Defendants was not the meaning of those terms and phrases
as would be understood by the average participant in this Plan, (d) the Board Defendants did not
disclose the meaning of those terms and phrases to participants until after their initial classification
had been determined or until the participant sought reclassification (sometimes not until the final
internal appeal), (e) the Board Defendants were deliberately attempting to keep the terms of the
Plan as set forth in the SPDs vague and not providing participants with helpful information to
navigate the process of obtaining benefits including reclassification, and (f) given the Board
Defendants’ interpretation and application of the phrases, “clear and convincing evidence” or
“changed circumstances,” participants would be harmed by applying for benefits before all the
information and evidence was available to establish their proper classification.
78.

Had the NFL Management Council and the NFL Players Association properly

monitored the Board Defendants, the NFL Management Council and the NFL Players Association
should have removed their respective appointees unless at least the following: (a) the Board revised
the SPD to set forth an explanation of what constituted “clear and convincing evidence” or
“changed circumstances” in language that the average participant in this Plan would understand,
without the use of legal jargon and by using clarifying examples and illustrations; (b) the Board
Defendants and the persons working for them as Plan Administrator disclose the meaning of “clear
and convincing evidence” and “changed circumstances” prior to the time that participants sought
initial classification, (c) the Board Defendants utilize a definition of “clear and convincing
evidence” and “changed circumstances” consistent with their ordinary meaning as those terms and
phrases would be understood by the average participant in this Plan, (d) the Board Defendants
29

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 30 of 32

review and reevaluate any claim for reclassification where the Board had failed to disclose the
meaning of those terms and phrases to participants until after their initial classification had been
determined, and (e) have a system in place to provide substantive, accurate and complete responses
to inquiries by participants.
79.

By failing to properly monitor the Board Defendants and/or failing to take

appropriate action upon learning that the Board Defendants had breached their duties, the NFL
Management Council and the NFL Players Association breached their fiduciary duties under
ERISA § 404(a)(1)(A), (B) & (D), 29 U.S.C. § 1104(a)(1)(A), (B) & (D).
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, on behalf of himself and the Class, prays that judgment be
entered against Defendants on all claims, and request that the Court order or award the following
relief:
A.

Declare that each of the above fiduciary Defendants breached his, her or its

fiduciary duties under ERISA.
B.

Order that the Plan Administrator of the Plan must disclose the standards for

reclassification in the SPD and in other disclosures in language 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.
C.

Declare that all denials of reclassifications by any member of the Class based on

either lack of “clear and convincing evidence” or lack of “changed circumstances” under the
Board’s prior interpretation are void.
30

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 31 of 32

D.

Enter 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
Class and require that Defendants allow Plaintiff and each member of the Class to make a claim
for benefits as their initial classification, whichever is in the best interests of the Class.
E.

Order that to the extent that any of the members of the Class successfully obtain

reclassification or increased benefits following the entry of this Court’s Order, that Defendants
must be pre-judgment interest from the date of their initial request for reclassification.
F.

Impose a surcharge against the breaching fiduciaries in the amount of attorneys’

fees or expenses incurred by Plaintiff and members of the Class who incurred such fees and
expenses in connection with their initial request for reclassification which was denied utilizing
Defendants undisclosed interpretation of the phrase “changed circumstances.”
G.

Order the removal any of the breaching fiduciaries from their position as fiduciaries

for the Plan and enjoin any of the breaching fiduciaries from acting as fiduciaries for any plan that
covers any members of the Class and to the extent necessary, appoint an independent fiduciary to
act as the Retirement Board at the expense of the Defendants.
H.

Require Defendants to pay attorney’s fees and the costs of this action pursuant to

ERISA §502(g)(1), 29 U.S.C. § 1132(g)(1) and/or ordering the payment of 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 Class
and Subclasses in this action.
31

 Case 1:18-cv-04483-GHW-RWL Document 104 Filed 11/19/19 Page 32 of 32

I.

Award any such other relief that the Court determines that Plaintiffs and the Class

are entitled pursuant to ERISA §502(a), 29 U.S.C. § 1132(a) and pursuant to Rule 54(c) of the
Federal Rules of Civil Procedure or otherwise.
Dated: November 19, 2019

Respectfully submitted,

R. Joseph Barton (pro hac vice)
Colin M. Downes
BLOCK & LEVITON LLP
1735 20th Street NW
Washington, DC 20009
Telephone: (202) 734-7046
Email: jbarton@blockesq.com
Email: colin@blockesq.com
Robert I. Harwood
Daniella Quitt
GLANCY PRONGAY & MURRAY LLP
712 Fifth Avenue
New York NY 10019
Telephone: (212) 935-7400
Email: rharwood@glancylaw.com
Email: dquitt@glancylaw.com
Robert A. Donati (pro hac vice)
William B. Ryan (pro hac vice)
DONATI LAW, PLLC
1545 Union Avenue
Memphis, TN 38104
Telephone: (901) 278-1004
Email: robert@donatilawfirm.com
Attorneys for Plaintiff

32