Farr
Farr v. U.S. West Communications, Inc.
Opinion
Lead Opinion
Merhige, J.
Opinion by Judge MERHIGE; Concurrence by Judge NOONAN; Concurrence by Judge HAWKINS.
This case arises under ERISA, the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 , et seq. Seven former employees of U.S. West, Inc. appeal the district court's summary judgment dismissal of their action alleging that U.S. West breached its fiduciary duties under ERISA by misrepresenting facts relating to the tax consequences of an early retirement program, providing misleading or incomplete information about potential adverse tax consequences, and failing to allow the employees to rescind their early' retirement. On remand from Plaintiffs’ prior appeal, the District Court granted summary judgment for Defendants, holding the following: Plaintiffs’ state law claims are preempted by ERISA; individual relief is available under ERISA; Defendants did not breach their fiduciary duties to Plaintiffs; assuming arguendo, that Defendants did breach their fiduciary duties, Plaintiffs were not damaged thereby; and the monetary damages sought by Plaintiffs are not recoverable as “other appropriate equitable relief’ under ERISA § 502(a)(3), 29 U.S.C. § 1132 (a)(3). We hold the following: in…
Concurring Opinion
Noonan, J.
concurring':'
The decision is compelled by Ninth Circuit precedent but I believe we should ask the circuit to take the case en banc and distinguish Mertens v. Hewitt Assocs., 508 U.S. 248 , 113 S.Ct. 2063 , 124 L.Ed.2d 161 (1993). Mertens dealt with damages to be obtained from a non-fiduciary. Id. at 251 , 113 S.Ct. 2063 . When it is a fiduciary that has breached its trust, of course the remedy must be equitable. What else could a court making a trustee true to its trust be doing except providing equitable relief?
If we are unable to do equity here, I agree with Judge Hawkins that Congress should right the wrong.
specially concurring:
The very best thing that can be said about what happened to the U.S. West employees who elected to participate in this early retirement program is that it represented a gross violation of fiduciary duty. U.S. West officials knew there would be significant tax consequences to some of those who elected to receive their benefits in a lump sum. They even talked about it before a televised presentation to employees and affirmatively decided to withhold the information from plan beneficiaries. This left in place an earlier statement from U.S. West that…