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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
)
CHRISTOPHER HUDSON, in his individual )
capacity on behalf of himself and others
)
similarly situated,
)
)
Plaintiff,
)
)
v.
)
)
NATIONAL FOOTBALL LEAGUE
)
MANAGEMENT COUNCIL, et al.,
)
)
Defendants.
)
)

No. 1:18-cv-4483-GHW-RWL

REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
PLAINTIFF’S AMENDED CLASS ACTION COMPLAINT
PURSUANT TO FED. R. CIV. P. 12(b)(1) AND FED. R. CIV. P. 12(b)(6)
FILED BY THE BOARD DEFENDANTS:
THE RETIREMENT BOARD OF THE BERT BELL/PETE ROZELLE
NFL PLAYER RETIREMENT PLAN, KATHERINE BLACKBURN, RICHARD CASS,
TED PHILLIPS, SAMUEL McCULLUM, ROBERT SMITH,
and JEFFREY VAN NOTE

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .....................................................................................................1
ARGUMENT & AUTHORITIES ...................................................................................................2
I.

HUDSON LACKS CONSTITUTIONAL STANDING. ..................................................2

II.

COUNT I DOES NOT COME CLOSE TO STATING A VIABLE BREACHOF-FIDUCIARY-DUTY CLAIM. ...................................................................................6

III.

COUNT I IS UNTIMELY. ...............................................................................................9

CONCLUSION ..............................................................................................................................13

i

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TABLE OF AUTHORITIES
Cases
Becker v. Eastman Kodak Co., 120 F.3d 5 (2d Cir. 1997).............................................................. 8
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................... 9
Caputo v. Pfizer, Inc., 267 F.3d 181 (2d Cir. 2001) ................................................................. 8, 10
DeFazio v. Hollister, Inc., 636 F. Supp. 2d 1045 (E.D. Cal. 2009), aff'd in part sub nom.
DeFazio v. Hollister Employee Share Ownership Tr., 612 F. App’x 439 (9th Cir. 2015) ....... 11
Devlin v. Empire Blue Cross and Blue Shield, 274 F.3d 76 (2d Cir. 2001) ................................... 7
Horvath v. Keystone Health Plan E., Inc., 333 F.3d 450 (3d Cir. 2003) ........................................ 5
In re DeRogatis, 904 F.3d 174 (2d Cir. 2018) ........................................................................ 6, 7, 9
Kendall v. Employees Ret. Plan of Avon Prod., 561 F.3d 112 (2d Cir. 2009)............................ 3, 5
LaScala v. Scrufari, 479 F.3d 213 (2d Cir. 2007)......................................................................... 12
Librizzi v. Children’s Mem’l Med. Ctr., 134 F.3d 130 (7th Cir. 1998) .................................. 12, 13
Moyle v. Liberty Mutual Retirement Benefit Plan, 263 F. Supp. 3d 999 (S.D. Cal. 2017) .... 12, 13
Negron v. Cigna Health and Life Ins. Co., 300 F. Supp. 3d 341 (D. Conn. 2018)......................... 8
Osberg v. Foot Locker, Inc., 138 F. Supp. 3d 517 (S.D.N.Y. 2015) (Forrest, J.)....................... 7, 8
Osberg v. Foot Locker, Inc., 862 F.3d 198 (2d Cir. 2017) ........................................................... 11
Patterson v. Stanley, No. 16-cv-6568, 2019 WL 4934834 (S.D.N.Y. Oct. 7, 2019)
(Sullivan, J.) ................................................................................................................................ 2
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ...................................................................... 2, 3, 4
Varity Corp. v. Howe, 516 U.S. 489 (1996) ................................................................................... 2
Statutes
29 U.S.C. § 1022 ............................................................................................................................. 1
29 U.S.C. § 1113(1)(A)........................................................................................................... 11, 12
29 U.S.C. § 1113(1)(B) ..................................................................................................... 11, 12, 13

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PRELIMINARY STATEMENT
This Court held that the Summary Plan Description (“SPD”) for the Bert Bell/Pete
Rozelle NFL Player Retirement Plan (“Plan”) complied with section 102 of ERISA, 29 U.S.C.
§ 1022, and “reasonably apprised plan participants that a failure to put forth comprehensive
evidence in their initial applications for benefits could permanently lock them into a lower
benefits classification.” 9/30/19 Order (ECF 96) at 3. See also id. at 4 (holding that the SPD
“negat[es] an inference that a participant can continually challenge an adverse determination
with new evidence that he did not previously present”). That holding drives a stake through the
heart of Hudson’s sole remaining claim. Since there was no failure to provide notice, there was
no fiduciary breach. Since the notice was adequate, there was no information withheld.
Hudson’s opposition (“Opp.,” ECF 120) is platitudes built on conclusory allegations.
Hudson proclaims this to be a “classic” breach-of-fiduciary-duty case, Opp. at 4, and repeatedly
alleges the Board failed to provide “critical” information, Opp. at 1, with knowledge that doing
so would harm Players. Opp. a 4. But given the adequacy of the SPD, why was Hudson entitled
to receive additional information about the reclassification provision, particularly when he never
asked about it before applying for benefits? And what harm did Hudson suffer if he cannot
explain what he would have done differently or how he would have received a higher level of
benefits if he had received additional information about the Board’s interpretation of the
reclassification provision? Hudson never attempts to answer these questions. The answers, of
course, are that the Board did not have a duty to provide additional information to Hudson, and
Hudson was not harmed by any alleged act or omission on the part of Board. These elements—
utterly lacking here—are prerequisites to constitutional standing and every tort claim, even
breach-of-fiduciary-duty claims under ERISA.

1

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This lawsuit is a contrivance. It is the vestiges of Hudson’s years-long attempt to undo
the Board’s reasonable interpretation of the reclassification provision and its corresponding
decision on his request for reclassification—a claim for benefits masquerading as a breach of
fiduciary duty, impermissibly born of opportunism and what one might charitably call the benefit
of hindsight. Hudson is not pursuing a classic breach-of-fiduciary-duty claim; he is pursuing a
classic game of “gotcha” that ERISA does not condone. See Patterson v. Stanley, No. 16-cv6568, 2019 WL 4934834, *17 (S.D.N.Y. Oct. 7, 2019) (Sullivan, J.) (“ERISA does not require
clairvoyance on the part of plan fiduciaries, nor does it countenance opportunistic Mondaymorning quarter-backing on the part of lawyers and plan participants[.]”); Varity Corp. v. Howe,
516 U.S. 489, 497 (1996) (When evaluating ERISA’s fiduciary duties, “courts may have to take
account of competing congressional purposes, such as Congress’ desire to offer employees
enhanced protection for their benefits, on the one hand, and, on the other, its desire not to create
a system that is so complex that administrative costs, or litigation expenses, unduly discourage
employers from offering welfare benefit plans in the first place.”).
The Court should dismiss the Amended Complaint (“AC”) for all of the reasons stated in
the Board Defendants’ opening brief, and for the additional reasons explained more fully below.
ARGUMENT & AUTHORITIES
I.

HUDSON LACKS CONSTITUTIONAL STANDING.
Hudson bears the burden to establish standing, and to do so he must clearly allege facts

demonstrating that he suffered a personal, concrete injury fairly traceable to the alleged conduct
of the Board. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). These “irreducible
constitutional minimums” are unavoidable and apply in all cases seeking to invoke federal
jurisdiction. Spokeo, Inc., 136 S. Ct. at 1547.

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The AC and Hudson’s opposition brief make it plain that Hudson cannot carry his
standing burden. As the Board Defendants explained in their opening brief, the AC fails to
allege that Hudson suffered an injury fairly traceable to the Board’s alleged failure to disclose.
Mem. of Law in Support of Mot. to Dismiss (“Mem.” ECF 117) at 4-5. Hudson applied for
benefits (and got “lock[ed]… into a lower category,” AC at 27, ¶ 71) on his own, not in reliance
on anything the Board did or failed to do. Moreover, the closest Hudson comes to describing a
personal, concrete injury is the statement that he “could have approached the claims process
differently” if he was “appropriately informed” of the Board’s interpretation of the
reclassification provision. 1 Opp. at 15. This vague suggestion that Hudson “could” have done
things “differently” is insufficient. It is precisely the type of “conjectural” and “hypothetical”
injury that the Supreme Court has said cannot confer constitutional standing. See Spokeo, Inc.,
136 S. Ct. at 1548 (an injury must be “actual or imminent, not conjectural or hypothetical”);
Kendall v. Employees Ret. Plan of Avon Prods., 561 F.3d 112, 118 (2d Cir. 2009) (“[T]o support
standing, the plaintiff’s injury must be actual or imminent to ensure that the court avoids
deciding a purely hypothetical case in which the projected harm may ultimately fail to occur.”)
(alteration in original; quotation marks and citation omitted).
Side-stepping the Board Defendants’ arguments, Hudson argues that he has standing
because (i) he merely seeks declaratory and injunctive relief to remedy the Board’s alleged
failure to disclose, and therefore he need only allege that he was “generally harmed by the

1

Hudson claims he was “placed at a disadvantage in the claims process,” Opp. at 14, but does not explain how or
why he was disadvantaged when he had every opportunity and incentive to seek the highest level of benefits when
he first applied. Hudson also does not challenge the Board Defendants’ argument that he does not have standing to
complain of any alleged failure to disclose information after he was awarded benefits, given that the Board allowed
him to seek reclassification with full knowledge of how the Board interpreted the reclassification provision. Mem.
at 6.

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deprivation of a specific right,” Opp. at 13; and (ii) “the mere risk of harm” is injury enough
under Spokeo. Opp. at 16. These arguments fail here.
In Spokeo, the Supreme Court discussed the possibility “that the risk of real harm” could
“satisfy the requirement of concreteness” necessary to establish an injury-in-fact. Spokeo, Inc.,
136 S. Ct. at 1549. However, the facts of Spokeo and the context of the discussion make it clear
that the risk of harm the Supreme Court had in mind was the risk of future harm. 2 Hudson’s
claim does not implicate a risk of future harm: It centers on events and supposed harm that
occurred 10 years ago. Hudson should therefore be able to identify some actual, concrete harm
caused by the Board’s alleged breach of fiduciary duty. In sum, Spokeo is no safe harbor for
Hudson; it forecloses his standing arguments because it establishes that a plaintiff does not have
constitutional standing to pursue claims for statutory violations without clear allegations showing
that the plaintiff has suffered (or, in some cases, may in the future suffer) an injury-in-fact.
Spokeo does not allow a plaintiff to establish standing with vague allegations of some past harm
that the plaintiff cannot articulate.
Even if a plaintiff carries a lighter standing burden in a case seeking nothing more than
declaratory and injunctive relief to enforce ERISA’s disclosure obligations (a dubious
proposition in light of Spokeo 3), such a rule does not help Hudson. Hudson has not alleged the

2

In Spokeo, the plaintiff brought suit under the Fair Credit Reporting Act, alleging that a consumer reporting agency
had compiled incorrect information about him. The plaintiff was unable to establish that the compilation and
dissemination of the incorrect information had harmed him or that it posed a risk of harming him. See Spokeo, Inc.,
136 S. Ct. at 1549-50 (“In the context of this particular case, these general principles tell us two things: On the one
hand, Congress plainly sought to curb the dissemination of false information by adopting procedures designed to
decrease that risk. On the other hand, Robins cannot satisfy the demands of Article III by alleging a bare procedural
violation. A violation of one of the FCRA’s procedural requirements may result in no harm. For example, even if a
consumer reporting agency fails to provide the required notice to a user of the agency's consumer information, that
information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material
risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the
dissemination of an incorrect zip code, without more, could work any concrete harm.”).
3

All of the authority cited by Hudson pre-dates Spokeo.

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deprivation of a specific right provided by ERISA. The Board disseminated an SPD that
complied with ERISA, 9/30/19 Order at 3-4, and Hudson never sought additional information
before applying for benefits. Hudson’s claim that he was deprived of “competent, loyal
fiduciaries” in violation of ERISA, Opp. at 15, is just like the “obviously circular” argument
rejected by the Second Circuit in Kendall and later foreclosed entirely by Spokeo. See Kendall,
561 F.3d at 121 (“[Plaintiff] cannot claim that either an alleged breach of fiduciary duty to
comply with ERISA, or a deprivation of her entitlement to that fiduciary duty, in and of
themselves constitutes an injury-in-fact sufficient for constitutional standing.”).
Finally, Hudson is not really after declaratory or injunctive relief. Hudson seeks
monetary relief in the form of the additional benefits that he feels were wrongly denied him
under the Board’s interpretation and application of the reclassification provision, interest, and
expenses. See AC at 30-31 (“Prayer for Relief”), ¶¶ C-F, H (asking the Court to reverse all prior
reclassification decisions; allow Players to obtain reclassification and increased benefits under
Hudson’s preferred interpretation of the reclassification provision; award pre-judgment interest;
and impose a “surcharge” that compensates Players for any fees and expenses incurred in
connection with their prior requests for reclassification). Consequently, Hudson must still allege
facts clearly showing that he sustained a concrete and particularized injury-in-fact, as his brief
and the cases cited in it suggest. See Opp. at 16 (discussing injury-in-fact requirements);
Kendall, 561 F.3d at 119 (noting that a plaintiff must “satisfy the strictures of constitutional
standing by demonstrating individual loss, to wit, that they have suffered an injury-in-fact” in a
suit seeking money damages) (citation omitted); Horvath v. Keystone Health Plan E., Inc., 333
F.3d 450, 456 (3d Cir. 2003) (holding that claims for money damages, such as restitution and

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disgorgement, “are individual in nature and therefore require [plaintiff] to demonstrate individual
loss”).
II.

COUNT I DOES NOT COME CLOSE TO STATING A VIABLE BREACH-OFFIDUCIARY-DUTY CLAIM.
Hudson vastly overstates the bona fides of his claim when he calls it a “classic” breach-

of-fiduciary-duty case. Opp. at 4. The Board Defendants’ opening brief explained why the AC
does not state a viable breach-of-fiduciary-duty claim, particularly in light of the Court’s holding
that the SPD adequately disclosed the reclassification standard. Mem. at 7 (citing 9/30/19 Order
at 3). Indeed, the Board Defendants specified that Hudson’s claim is unprecedented, and every
case he cites to support his breach-of-fiduciary-duty theory of liability is readily distinguishable.
Mem. at 7, n.5.
Hudson has no response to the Board Defendants’ charge that his claim exceeds the
bounds of ERISA precedent. He ignores the point altogether, just as he ignores the distinctions
that led to all of the holdings quoted throughout his brief. In In re DeRogatis, 904 F.3d 174 (2d
Cir. 2018), for example—the first and most recent case cited by Hudson in response to the Board
Defendants’ argument, Opp. at 17—the plaintiff brought a breach-of-fiduciary claim alleging
that the plan’s representatives failed to provide complete information in response to the
participant’s inquiries about his pension benefits. After noting that the Second Circuit has
“endorsed theories of liability that rest on material omissions as well as affirmative
misstatements,” 904 F.3d at 194, the court held that the plaintiff’s claims failed nonetheless
because the SPD complied with section 102 of ERISA, and thus “contained all the information
necessary for the [plaintiffs] to ascertain their rights” regarding the benefits at issue. 904 F.3d at
195.

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The Second Circuit’s holding in In re DeRogatis exemplifies two main impediments to
Hudson’s breach-of-fiduciary-duty claim. First, Hudson never inquired about the reclassification
provision before he applied for T&P benefits, and so the AC is devoid of any plausible allegation
that the Board made any material misrepresentations or omissions whatsoever. Second, even if
Hudson had inquired and received incomplete or inadequate information about the
reclassification provision, this Court’s conclusion that the SPD was “sufficiently clear…
preclude[s] the [Board Defendants] from being found culpable for fiduciary breach” on an
omission-based theory of liability. In re DeRogatis, 904 F.3d at 195-96 (“Thus, even if Keenan
and Lopez did act as the Pension Fund’s agents when they discussed Frank’s retirement options
with one or both of the DeRogatises, and even if Keenan or Lopez did unintentionally misstate
the eligibility requirements for pension and survivor benefits, the Pension Plan SPD is
sufficiently clear to preclude the Pension Fund from being found culpable for fiduciary
breach….”).
Every other case cited in Hudson’s opposition illustrates similar deficiencies in Hudson’s
claim.
•

In Devlin v. Empire Blue Cross and Blue Shield, 274 F.3d 76 (2d Cir. 2001) (Opp. at 18),
the plaintiffs alleged that they were entitled to lifetime life insurance benefits. Without
deciding the issue, the Second Circuit observed that the plan’s fiduciaries may have
breached their fiduciary duty to communicate fairly and honestly when they “repeatedly
describ[ed] its life insurance benefit as remaining constant for life” in the SPDs and other
official plan communications. 274 F.3d at 88.

•

In Osberg v. Foot Locker, Inc., 138 F. Supp. 3d 517 (S.D.N.Y. 2015) (Forrest, J.) (Opp.
at 18), the plaintiffs alleged that the plan sponsor implemented cost-saving changes to a

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pension plan, and those changes effectively froze the participants’ ability to earn
additional pension benefits for a period of time, a concept called “wear-away.” The court
noted that the facts presented “a more egregious set of circumstances than Amara,” 138
F. Supp. 3d at 524, and ultimately found that the SPD and other company-wide
communications concerning the changes to the plan intentionally failed to disclose the
“wear-away” concept to the undeniable detriment of the plan’s participants. Id. at 55156.
•

In Negron v. Cigna Health and Life Ins. Co., 300 F. Supp. 3d 341 (D. Conn. 2018), the
plaintiffs brought RICO and ERISA claims, alleging that the plan’s fiduciaries received
kickbacks from pharmacies and therefore profited at the expense of the plan’s
participants, who ended up paying more for prescriptions in co-pays and fees than the
plan actually paid for the prescription itself. The court held that the complaint stated a
plausible breach-of-fiduciary-duty claim because it alleged that the fiduciaries concealed
the kickback practice from participants and affirmatively misrepresented the cost-sharing
and co-payment provisions of the plan. 300 F. Supp. 3d at 361.

These cases all involve a deficient SPD, material omissions, affirmative misrepresentations, or
some combination of all three, as well as a clear, detrimental impact on plan participants. 4 None
of that exists here.
Hudson’s accusation that the Board Defendants’ arguments are an “artifice designed to
distract from the alleged wrongdoing occurring throughout the process,” Opp. at 3, misses the

4

See also Caputo v Pfizer, 267 F.3d 181 (2d Cir. 2001) (involving deficient plan documents and affirmative
misrepresentations); Becker v. Eastman Kodak Co., 120 F.3d 5 (2d Cir. 1997) (finding that ambiguous SPD
combined with misleading statements to plan participant may support a claim if the misleading information
adversely impacted the participant).

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mark. Allegations aimed at “the process” in general do not rescue Hudson’s breach-of-fiduciaryduty claim because they do not plausibly show that the Board knew that Hudson or any other
Player would be harmed if he did not receive additional information about the Board’s
interpretation of the reclassification provision before applying for benefits.
There are also “obvious alternative explanation[s]” for the conduct alleged in the AC, and
because these explanations are equally consistent with prudent and loyal decision-making they
cannot support a claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 567 (2007).
Hudson’s refrain that the Board did not disclose how it interpreted Plan terms, and that its
interpretation was “fuzzy on purpose,” Opp. at 20, is inconsistent with Hudson’s own
experience. The Board indisputably has the duty and authority to interpret Plan terms. AC at 4,
¶ 13. When presented with a request for reclassification, the Board exercised its authority and
explained its decision to Players in concrete, not “fuzzy,” terms. AC at 12, ¶ 38. Directing
Players to official Plan documents like the SPD—which adequately disclosed the heightened
reclassification standard—is sensible because (i) it gives a Player the opportunity to decide for
himself whether to request reclassification and on what basis; (ii) the Board ultimately has
discretionary authority to evaluate Player requests and construe Plan terms, not Plan staff; and
(iii) it avoids the pitfalls often encountered when ministerial employees attempt to speak for a
plan’s fiduciaries. See, e.g., In re DeRogatis, 904 F.3d at 190-91 (holding that a ministerial
employee’s communications with plan participants can subject the plan’s fiduciaries to liability
under ERISA).
III.

COUNT I IS UNTIMELY.
Hudson calls the Board Defendants’ statute-of-limitations argument “simplistic.” Opp. at

22. If by “simplistic” Hudson means that the logic of his own allegations inescapably leads to
the conclusion that his claim is untimely, then yes, the Board Defendants’ argument is simplistic.
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It starts with the text of the statute and ends with the substance of Hudson’s claim, as the AC
describes it. Thus, dismissal based on the statute of limitations is warranted, as Hudson
acknowledges. See Opp. at 22 (noting that dismissal is proper where “it is clear from the face of
the complaint, and matters of which the court may take judicial notice, that the plaintiff’s claims
are barred as a matter of law”) (citation and quotation marks omitted).
Rather than repeat the arguments set out in their opening brief, see generally Mem. at 1114, the Board Defendants will respond to two aspects of Hudson’s opposition.
First, the allegations in the AC cut off Hudson’s retreat to the “fraud or concealment”
exception. Hudson invokes the exception on the theory that the Board “failed to disclose the
standards regarding classification” and then “hid the standard… until the Board’s ‘final decision
denying Hudson’s appeal for reclassification.’” Opp. at 23. However, the SPD adequately
disclosed the reclassification standard, 9/30/19 Order at 3-4, and Hudson never sought out
additional information before applying for benefits. The only additional act the Board took with
respect to Hudson was one of disclosure, not concealment: The Board applied the
reclassification standard to his request for reclassification and issued a decision letter explaining
its application of the reclassification provision. Thus, despite Hudson’s (mis)characterization of
the Board’s conduct, the AC’s allegations do not meet the requirements for the “fraud or
concealment” exception as applied in the Second Circuit, nor do they give rise to a strong
inference that the Board had an intent to defraud, knowledge of falsity, or a reckless disregard for
the veracity of the information provided to Hudson. See Caputo, 267 F.3d at 190-91 (affirming
the district court’s decision that the “fraud or concealment” exception did not apply because the
plaintiff failed to plead fraud with particularity, and the complaint did not “explain how the
misrepresentations were fraudulent” or plead facts “which give rise to a strong inference that the

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defendant[ ] had an intent to defraud, knowledge of the falsity, or a reckless disregard for the
truth”) (alteration in original; quotation marks and citation omitted); Osberg v. Foot Locker, Inc.,
862 F.3d 198, 210-11 (2d Cir. 2017) (The “application of the concealment exception requires
that in addition to alleging a breach of fiduciary duty (be it fraud or any other act or omission),
the plaintiff... 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.”) (citation and internal quotation marks omitted). 5
Second, Hudson cannot extend the statute of limitations under ERISA sections
413(1)(A), 29 U.S.C. § 1113(1)(A), and 413(1)(B), 29 U.S.C. § 1113(1)(B), by arguing that the
Board committed a continuing breach, or that the Board had a continuing opportunity to “cure”
its alleged breach. Opp. at 25. The AC plainly alleges that (i) the Board had a duty to provide
necessary information to Hudson before he originally applied for benefits in 2010, AC at 25, ¶
65, and (ii) the Board’s failure to provide that information caused Hudson to be “locked in” to an
award benefits no later than May 20, 2011. AC at 10-11, ¶ 33; id. at 27, ¶ 71. The allegations in
the AC itself make it clear that, as far as Hudson is concerned, the Board’s alleged breach and
the resulting harm did not extend beyond the date that he was first awarded benefits in May
2011.

5

See also DeFazio v. Hollister, Inc., 636 F. Supp. 2d 1045, 1057-58 (E.D. Cal. 2009), aff'd in part sub nom.
DeFazio v. Hollister Employee Share Ownership Tr., 612 F. App’x 439 (9th Cir. 2015) (Opp. at 25) (noting that the
Ninth Circuit has found “passive concealment insufficient to toll the six-year statute of limitations,” even though “an
ERISA fiduciary generally has a duty to disclose accurate information to beneficiaries,” and holding: “The ‘fraud or
concealment’ exception, therefore, does not apply simply because an ERISA fiduciary fails to disclose material
information.”).

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LaScala v. Scrufari, 479 F.3d 213 (2d Cir. 2007) (Opp. at 24), is the only authority that
Hudson cites in support of his continuing-breach theory, and it is inapposite. 6 In LaScala, a
pension fund sued its plan manager for breach of fiduciary duty. The plan sought to recover plan
funds that the manager paid repeatedly, without authorization, to himself and his son. The
Second Circuit observed (in a footnote) that no part of the plan’s claim to recover the
misappropriated funds was time-barred by section 413(1)(A) because the manager’s conduct was
in furtherance of a “single scheme” and “numerous… breaches occurred within the limitations
period.” 479 F.3d at 220, n.1. LaScala thus involved a plan manager’s continuing, fiduciary
duty not to misappropriate funds; a repeated and continuing violation of that duty; a cumulative
and continuing harm to the plan; and, most importantly, a plan’s right to recover against one of
its own fiduciaries. The LaScala holding does not apply here, in a case involving a participant’s
rights vis-à-vis the plan, and clear allegations of a singular breach and a single, resulting harm.
Hudson criticizes the Board Defendants for “rely[ing] exclusively on out-of-Circuit
authority to argue that the latest date on which the Board Defendants could have cured their
breach or violation was when Hudson was awarded benefits, more than 6 years before the
Complaint was filed.” Opp. at 24. Moyle v. Liberty Mutual Retirement Benefit Plan, 263 F.
Supp. 3d 999, 1020-21 (S.D. Cal. 2017), and Librizzi v. Children’s Mem’l Med. Ctr., 134 F.3d
1302, 1307 (7th Cir. 1998), are the out-of-Circuit authority to which Hudson alludes. To the
Board Defendants’ knowledge, these cases are among the few that address the meaning of
section 413(1)(B)’s “cure” provision in the context of a participant’s claim against a plan. They

6

Hudson’s 413(1)(A) argument is largely beside the point, because Hudson’s claim is based on the Board’s alleged
omissions, meaning that ERISA section 413(1)(B) provides the applicable statute of limitations. See Opp. at 4 (“As
the Amended Complaint is based on defendants’ omissions, the six years is measured from ‘the latest date on which
the fiduciary could have cured the breach or violation,’ not on the date of the last action which constituted the
breach.”); 12/2/19 Ltr. fr. D. Quitt to J. Woods (ECF 108) at 3 (same).

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are directly on point—unlike every one of Hudson’s cases, which involve claims brought by or
on behalf of a plan to recover losses sustained by the plan due to fiduciary breaches committed
by its own fiduciaries.
Hudson may be right that a breaching fiduciary can theoretically “cure” his own failure to
disclose information to the plan by making disclosures to the plan. Similarly, a plan may be able
to “cure” certain fiduciary breaches committed against it by removing the breaching fiduciary.
Opp. at 25. But that is not this case. The AC in this case alleges a far different type of breach
and harm: It alleges the Board (a fiduciary) breached its duty to and harmed Hudson (a
participant) via a discrete failure to provide certain information. According to the courts that
have considered the meaning of section 413(1)(B)’s “cure” provision in this context, “the ‘last
opportunity to cure’ an omission is the ‘last date on which [the Board] could have averted
[Hudson’s] detrimental reliance on the incomplete information.’” Moyle, 263 F. Supp. 3d at
1020-21 (citation omitted). See also Librizzi, 134 F.3d at 1307 (explaining “‘cure’ in the sense
of ‘fix’ must be distinguished from ‘provide a remedy’ in the sense of ‘damages for what can no
longer be fixed,’ lest § 1113(1)(B) mean that the time never runs out”).
CONCLUSION
The Court should dismiss Count I of Hudson’s Amended Complaint, with prejudice, and
enter judgment in favor of the Board Defendants.

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 Case 1:18-cv-04483-GHW-RWL Document 121 Filed 02/03/20 Page 17 of 17

Dated: February 3, 2020

Respectfully submitted,
_________________________________
Michael L. Junk, pro hac vice
Michael J. Prame (MP-4172)
Groom Law Group, Chartered
1701 Pennsylvania Ave. NW
Washington, DC 20006
Tel: (202) 857-0620
Fax: (202) 659-4503
Email: mjunk@groom.com
Email: mjp@groom.com
Brian Laurence Bank (BB-5995)
Jacqueline Mecchella Bushwack (JB-0306)
Rivkin Radler LLP
926 RXR Plaza, West Tower
Uniondale, NY 11556
Tel: (516) 357-3000
Fax: (516) 357-3333
Email: brian.bank@rivkin.com
Email: jacqueline.bushwack@rivkin.com
COUNSEL FOR DEFENDANTS
THE 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

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