New York Law Journal "Are Benefit Plans Members of a Settlement Class" Thomas E.L. Dewey

October 31, 2016

A critical term in any class action settlement agreement is the definition of the settlement class. This term typically lists the persons and entities that are included in the settlement class, as well as those that are excluded, thereby identifying who gets a slice of the settlement pie. In Rothstein v. American International Group, the U.S. Court of Appeals for the Second Circuit considered the definition of a settlement class in a securities class action settlement. As is common in such settlements, the settlement agreements contained a provision excluding the defendant's "affiliates" from recovering settlement proceeds. The rationale for this exclusion was presumably to prevent alleged wrongdoers from profiting or diverting funds from alleged victims. Although class-action settlement agreements frequently exclude defendants' affiliates from the settlement class, this case presented an unusual question: Are employee benefit plans sponsored by the settling defendant its affiliates such that they are excluded from the settlement class? After reviewing the text of the settlement agreements at issue and the ERISA statute, which limits an employer's ability to influence sponsored plans, the Second Circuit held that benefit plans sponsored by the defendant were not its "affiliates," and thus were entitled to share in the settlement proceeds. This decision is significant because it provides practical guidance on drafting class action settlement agreements while leaving open several questions. Among other guidance, the Second Circuit admonished drafters of class action settlement agreements to specify any entities sought to be excluded from the settlement class, rather than using the more generic "affiliates." That said, the Second Circuit did not indicate whether the basis for its holding—the constraints imposed on employers by the ERISA statute—might also result in similar outcomes where other types of sponsored entities request settlement distributions, so this area is ripe for further development.

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