Case 1:18-cv-04483-GHW-RWL Document 123 Filed 02/03/20 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHRISTOPHER HUDSON, in his individual
capacity on behalf of himself and others
similarly situated,
Plaintiff,
-againstNATIONAL 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.

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No. 18-cv-4483-GHW-RWL

REPLY MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION’S
MOTION TO DISMISS AMENDED COMPLAINT

William G. Miossi (pro hac vice)
Mary M. Lenahan (pro hac vice)
Paul N. Harold (pro hac vice)
Winston & Strawn LLP
1700 K Street NW
Washington, DC 20006
Tel.: (202) 282-5000
Fax: (202) 282-5100
wmiossi@winston.com

Jeffrey L. Kessler
Winston & Strawn LLP
200 Park Avenue
New York, NY 10166-4193
Tel: (212) 294-6700
Fax: (212) 294-4700
jkessler@winston.com

Counsel for Defendant
National Football League Players Association

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

Hudson’s new allegations again fail to state a failure-to-monitor claim. ........................... 2
A.

Hudson does not dispute that he has not taken issue with actual monitoring
procedures and has not alleged red flags specific to the Board’s alleged
failure to disclose. ................................................................................................... 2

B.

Hudson offers no new arguments to support a broad duty to monitor in the
multiemployer context. ........................................................................................... 3

C.

Hudson’s novel argument that his failure-to-monitor claim can proceed
independently fails. ................................................................................................. 6

CONCLUSION ............................................................................................................................... 7

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TABLE OF AUTHORITIES
Page(s)
Cases
Barker v. Am. Mobil Power Corp.,
64 F.3d 1397 (9th Cir. 1995) .....................................................................................................6
Chao v. Constable,
2006 WL 3759749 (W.D. Pa. Dec. 19, 2006)........................................................................4, 5
Int’l Bhd. of Elec. Workers, Local 90 v. Nat’l Elec. Contractors Ass’n,
2008 WL 918481 (D. Conn. Mar. 31, 2008) .............................................................................4
NLRB v. Amax Coal Co.,
453 U.S. 322 (1981) ...........................................................................................................1, 4, 5
PRC Harris, Inc. v. Boeing Co.,
700 F.2d 894 (2d Cir. 1983).......................................................................................................7
Reinke v. Boden,
45 F.3d 166 (7th Cir. 1995) .......................................................................................................7
Whitfield v. Tomasso,
682 F. Supp. 1287 (E.D.N.Y. 1988) ..........................................................................................4
Statutes
29 U.S.C. § 1002(21)(A)..............................................................................................................5, 6
29 U.S.C. § 1103(a) .........................................................................................................................4

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PRELIMINARY STATEMENT
Hudson fails to explain how his amended complaint remedied the pleading deficiencies
identified by the Court. He still has not “take[n] issue with the actual procedures . . . used to
monitor” or alleged that the Players Association “was aware of any red flags that should have
alerted” it to the Board’s alleged failure to disclose the reclassification standard. Order, Dkt. 96 at
7. These undisputed flaws are fatal, no matter “the scope of the duty to monitor.” Id. at 6.
It is undisputed that Hudson has not “take[n] issue with the actual [monitoring]
procedures.” Id. at 7. Instead, his amended complaint—just like his original complaint—merely
alleges that the Players Association “knew or should have known [of the breaches] if proper
systems and procedures were in place.” Opp., Dkt. 120 at 39. “That is not enough to state a claim”
for reasons this Court explained. Order, Dkt. 96 at 7. Hudson has ignored the Court’s order.
It is similarly undisputed that the amended complaint’s alleged “red flags” do not concern
reclassification. Id. Citing news articles, reports, and an allegedly high rate of lawsuits against the
Plan as red flags, Hudson says that these red flags showed a “faulty system.” Opp., Dkt. 120 at
34–35. But he never disputes that these generalized grievances are not specific to the alleged
underlying breaches. Id.
More fundamentally, Hudson offers no new or persuasive arguments in support of his
unprecedented theory of the duty to monitor. As Judge Lehrburger “persuasive[ly] reason[ed]”
(Order, Dkt. 96 at 6–7), ERISA at most requires the Players Association to appoint board members
and ensure they “attend[] meetings and vot[e],” (R&R, Dkt. 90 at 35). Federal law prohibits the
Players Association from “direct[ing] or supervis[ing]” its appointee’s substantive decisions, and
thus it has no duty to monitor them. NLRB v. Amax Coal Co., 453 U.S. 322, 330 (1981). Hudson
has not alleged a breach of those limited monitoring duties. Hudson’s claim against the Players
Association should be dismissed with prejudice.

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ARGUMENT
I.

Hudson’s new allegations again fail to state a failure-to-monitor claim.
A.

Hudson does not dispute that he has not taken issue with actual monitoring
procedures and has not alleged red flags specific to the Board’s alleged
failure to disclose.

Hudson has not fixed the fatal pleading problems identified by the Court. Even assuming
a broad duty to monitor—“a premise that th[is] Court does not necessarily accept”—Hudson’s task
was to “sufficiently plead[] facts” showing that “defendants were on notice” of the failure to
properly disclose the reclassification standard, that their appointees were “doing nothing” to
remedy the problem, and that despite this knowledge, “defendants took no action.” Order, Dkt. 96
at 6. This requires Hudson to “take issue with the actual procedures . . . used to monitor the board”
and allege that the Players Association “was aware of . . . red flags” that would have alerted it to
the alleged breaches. Id. at 7. Hudson’s amended complaint does not meet the Court’s standard.
Hudson does not dispute that he has not “take[n] issue with the actual [monitoring]
procedures.” Id. Instead, his amended complaint—just like his original complaint—merely alleges
(1) that the Players Association “either did not have a system in place or had inadequate procedures
to monitor the Board Defendants” and (2) that the Players Association “knew or should have
known [of the breaches] if proper systems and procedures were in place.” Opp., Dkt. 120 at 39
(emphasis added). Neither Hudson’s amended complaint nor his opposition brief even mention
any “actual procedures.” Order, Dkt. 96 at 7. Because Hudson still has not taken issue with “actual
procedures,” the theory of Hudson’s allegations remains that “because breaches occurred . . . the
[Players] Association must not have properly monitored the Retirement Board. That is not enough
to state a claim.” Id.
Similarly, Hudson does not dispute that his asserted red flags do not concern the Board’s
alleged failure to disclose the reclassification standard. Hudson says red flags should have put the

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Players Association on notice of a “global problem” of “shoddy treatment” of retired players, and
of a “faulty system.” Opp., Dkt. 120 at 34–35, 40. But Hudson cannot point to any allegation in
his amended complaint that connects these generalized grievances to the specific conduct at issue
in this case: the Board’s alleged “failure to make critical disclosures about . . . reclassification . . ..”
Id. at 9 (citing Am. Compl. ¶¶ 2–4).
The closest Hudson comes to a relevant red flag is his allegation that one unnamed Plan
participant called the Players Association and “expressed his confusion” about the process for
reclassification. Am. Compl., Dkt. 104 at ¶ 47. Yet, Hudson admits this allegation refers “only to
one specific player call.” Opp., Dkt. 120 at 39. A single phone call from a union member to a union
inquiring about benefits is not a red flag triggering a duty to investigate the sufficiency of plan
disclosures. If it were, “the whole system of multi-employer pension plans would become grossly
inefficient.” R&R, Dkt. 90 at 35. Hudson argues in his memorandum for an inference that other
Plan participants may have called, too (about what, no one knows), but that inference is in fact a
huge leap that should not be accepted by the Court—it is altogether unremarkable for union
members to call their union about their benefits. Opp., Dkt. 120 at 39.
B.

Hudson offers no new arguments to support a broad duty to monitor in the
multiemployer context.

Hudson’s argument for a broad duty to monitor multiemployer plans rehashes his earlier
arguments—arguments that Magistrate Judge Lehrburger rejected. As Magistrate Judge
Lehrburger “persuasive[ly] reason[ed],” “the scope of the duty to monitor . . . in the multiemployer plan context” is narrow. Order, Dkt. 96 at 6–7. At most, ERISA requires the Players
Association to appoint board members and ensure they “attend[] meetings and vot[e].” R&R, Dkt.
90 at 35. Hudson does not allege a breach of this narrow duty, and Hudson offers no persuasive
reasons to depart from Magistrate Judge Lehrburger’s conclusion.

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Conspicuously, Hudson never grapples with NLRB v. Amax Coal Co., 453 U.S. 322 (1981),
which he cites only twice and only in passing. See Opp., Dkt. 120 at 15–16, 37. In Amax Coal, the
Supreme Court recognized that the Labor Management Relations Act, which specially regulates
multiemployer plans, prohibits the Players Association from “direct[ing] or supervis[ing]” its
appointee’s substantive decisions. 453 U.S. at 330. The Supreme Court further explained that
“ERISA vests the ‘exclusive authority and discretion to manage and control the assets of the plan’
in the trustees alone, and not the employer or the union.” Id. at 333 (quoting 29 U.S.C. § 1103(a)
(emphasis added)). Both this Court and Magistrate Judge Lehrburger have acknowledged the
holding of Amax Coal. See Order, Dkt. 96 at 6–7; R&R, Dkt. 90 at 20–21, 27–28, 35, 40. Yet
Hudson’s only response is to say that Amax Coal has been “incorrect[ly] interpret[ed]” by
Magistrate Judge Lehrburger without explaining why. Opp., Dkt. 120 at 15–16.
Hudson next points to three district court decisions involving multiemployer plans. Two of
the three are the same cases he has cited before. See Whitfield v. Tomasso, 682 F. Supp. 1287, 1305
(E.D.N.Y. 1988); Int’l Bhd. of Elec. Workers, Local 90 v. Nat’l Elec. Contractors Ass’n, 2008 WL
918481, at *7 (D. Conn. Mar. 31, 2008). Hudson has nothing new to say about these cases, and he
does not even address the point that the duty recognized in those cases bears no resemblance to
the duty Hudson seeks to impose here. See Dkt. 114 at 10–11.1
The third case Hudson cites, the only new case involving a multiemployer plan, is
consistent with Magistrate Judge Lehrburger’s ruling. See Opp., Dkt. 120 at 38 (citing Chao v.
Constable, 2006 WL 3759749, at *9 (W.D. Pa. Dec. 19, 2006)). In Chao, the union “admit[ted]”

In Local 90, the employer was liable because it “had no system to monitor its trustees” and “failed to monitor and
replace trustees who continuously failed to fulfill their duties as trustees to the plans, including reasonable
attendance at plan meetings and reasonable efforts to cast votes on plan issues.” 2008 WL 918481, at *8. In
Whitfield, the union was liable because it intentionally appointed trustees who would divert plan assets to the union.
682 F. Supp. at 1300.
1

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that it had totally failed to appoint or monitor the union trustees. 2006 WL 3759749, at *9 (“The
Union had a fiduciary duty under ERISA to appoint the two employee/union trustees, and to
reasonably monitor them. The Union admits that it did not take any such actions.”). Indeed, the
union’s defense in Chao was that the plan belonged to a predecessor union and that that “it knew
nothing about the [plan’s] existence.” Id. at *5. Chao cannot help Hudson, as he concedes that the
Players Association made appointments and he does not allege a total failure to monitor.
Finally, Hudson makes the policy argument that “someone under ERISA needs to have
responsibility for monitoring the Board.” Opp., Dkt. 120 at 38; see also id. at 16. ERISA does not
require that boards be monitored. Rather, ERISA provides that persons are fiduciaries “to the
extent” they “exercise[] any discretionary authority” over a benefit plan. R&R, Dkt. 90 at 33
(quoting 29 U.S.C. § 1002(21)(A)). From ERISA’s general definition for “fiduciary,” courts have
fashioned a limited duty to monitor in some limited contexts. It is telling that no court—in any
context, multiemployer or otherwise—has endorsed a duty to monitor as sweeping as Hudson’s,
which would require employers and unions to line-edit summary plan descriptions. Indeed, many
courts have flatly rejected it, including Magistrate Judge Lehrburger. See R&R, Dkt. 90 at 35–36
(collecting cases).
In any event, Hudson’s policy argument must give way to Congress’s policy judgment.
Hudson ignores that Congress, in enacting the Labor Management Relations Act, and the Supreme
Court, in Amax Coal, found there to be “compelling public policy reasons . . . that trustees of multiemployer plans must exercise their fiduciary duties independent of the entities that appointed
them.” R&R, Dkt. 90 at 40–41 n.14. Because Congress saw fit to deprive employers and unions
of “discretionary authority” over the decisions of their appointees to multiemployer plan boards,

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employers and unions have few fiduciary duties under ERISA, if any. 29 U.S.C. § 1002(21)(A).
Hudson must take his policy disagreements with Congress to Congress, not this Court.
C.

Hudson’s novel argument that his failure-to-monitor claim can proceed
independently fails.

Finally, Hudson argues that his claim against the Players Association may survive even if
the underlying claim against the Retirement Board is dismissed, so long as the dismissal is for a
“procedural reason.” Opp., Dkt. 120 at 43.
This is a new argument, but it fails. Hudson never objected to the Magistrate Judge’s
conclusion that “[f]or Hudson to successfully state a claim against the . . . [Players] Association
for breach of a purported fiduciary duty to monitor the Retirement Board, he must first adequately
plead a breach of fiduciary duty against the Retirement Board itself.” R&R, Dkt. 90 at 36 n.11.
This Court adopted that conclusion. See Order, Dkt. 96 at 7 (noting that an underlying breach is a
“predicate factual assumption” of a duty-to-monitor claim). It is too late to challenge it now.
In any event, Hudson’s new argument lacks authority. Hudson cites no case where a
failure-to-monitor claim proceeded independently of a claim for an underlying breach. Hudson
cites a Ninth Circuit case, but that case did not involve the duty to monitor. Opp., Dkt. 120 at 43
(citing Barker v. Am. Mobil Power Corp., 64 F.3d 1397 (9th Cir. 1995)). In Barker, the defendant
held liable was a member of an “Administrative Committee” charged with administering the plan,
and he was liable for “affirmative misrepresentations” about plan funds and for “fail[ing] to convey
complete and accurate information concerning his suspicions with the Plan’s maintenance.”
Barker, 64 F.3d at 1399, 1403.
Hudson also contends that dismissal on statute of limitations is not “a decision on the
merits,” so the underlying breach can be litigated against the Players Association even if it is timebarred against the Retirement Board. Opp., Dkt. 120 at 43. For this argument, Hudson cites a

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Seventh Circuit case that applied Illinois state law to a non-ERISA state-law claim. Id. (citing
Reinke v. Boden, 45 F.3d 166 (7th Cir. 1995)). But for federal claims, “[t]he longstanding rule in
this Circuit . . . is that a dismissal for failure to comply with the statute of limitations will operate
as an adjudication on the merits.” PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 896 (2d Cir.
1983). Hudson’s argument fails.
CONCLUSION
For these reasons, the Court should grant the Players Association’s Motion to Dismiss.
New York, New York
Dated: February 3, 2020

By:

/s/ Jeffrey L. Kessler
Jeffrey L. Kessler
Winston & Strawn LLP
200 Park Avenue
New York, NY 10166-4193
Tel.: (212) 294-6700
Fax: (212) 294-4700
jkessler@winston.com
William G. Miossi (pro hac vice)
Mary M. Lenahan (pro hac vice)
Paul N. Harold (pro hac vice)
Winston & Strawn LLP
1700 K Street NW
Washington, DC 20006
Tel.: (202) 282-5000
Fax: (202) 282-5100
wmiossi@winston.com
mlenahan@winston.com
pharold@winston.com
Attorneys for Defendant National Football
League Players Association

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