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14-1058 Gill v. Bausch & Lomb UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 3rd day of December, two thousand fourteen. 5 6 PRESENT: DENNIS JACOBS, 7 REENA RAGGI, 8 DEBRA ANN LIVINGSTON, 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 DANIEL E. GILL, THOMAS C. MCDERMOTT, 13 and JAY T. HOLMES, 14 Plaintiffs-Appellees, 15 16 -v.- 14-1058 17 18 BAUSCH & LOMB SUPPLEMENTAL RETIREMENT 19 INCOME PLAN I, BAUSCH & LOMB 20 INCORPORATED, and the COMPENSATION 21 COMMITTEE OF THE BAUSCH & LOMB BOARD 22 OF DIRECTORS, 23 Defendants-Appellants. 24 - - - - - - - - - - - - - - - - - - - -X 25 26 FOR APPELLANTS: HOWARD SHAPIRO, with Nicole A. 27 Eichberger, Proskauer Rose LLP, 28 New Orleans, Louisiana. 1 1 Anthony S. Cacace, Proskauer 2 Rose LLP, New York, New York. 3 4 FOR APPELLEES: HAROLD A. KURLAND, with William 5 R. Leinen, Ward Greenberg Heller 6 & Reidy LLP, Rochester, New 7 York. 8 9 Appeal from a judgment of the United States District 10 Court for the Western District of New York (Telesca, J.). 11 12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 13 AND DECREED that the judgment of the district court be 14 AFFIRMED. 15 16 Defendants-appellants (collectively, “Bausch & Lomb”) 17 appeal from the judgment of the United States District Court 18 for the Western District of New York (Telesca, J.), granting 19 summary judgment in favor of plaintiffs-appellees Daniel E. 20 Gill, Thomas C. McDermott, and Jay T. Holmes (“plaintiffs”). 21 We assume the parties’ familiarity with the underlying 22 facts, the procedural history, and the issues presented for 23 review. 24 25 Plaintiffs, three former Bausch & Lomb executives, 26 brought suit under the Employee Retirement Income Security 27 Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., alleging 28 that when Bausch & Lomb was bought out by a private equity 29 firm, new management misconstrued the “change-in-control” 30 provision in their retirement plan (“the plan”), and thus 31 unlawfully reduced their pension benefits. The district 32 court agreed, granting plaintiffs’ cross-motion for summary 33 judgment. Bausch & Lomb appeals, raising two issues: (1) 34 whether Bausch & Lomb’s interpretation of the plan’s change- 35 in-control provision was correct (under a de novo standard 36 of review), and (2) if not, whether the district court’s 37 remedy for that violation was an appropriate exercise of its 38 discretion. We affirm.1 1 The standard of review on the first issue was contested before the district court, which held that the decision should be reviewed de novo, but also that Bausch & Lomb’s decision could not even survive the deferential arbitrary and capricious standard. We assume without deciding that the proper standard of review is de novo, because Bausch & Lomb does not challenge this aspect of the district court’s ruling on appeal. 2 1 1. The Compensation Committee of the Board of 2 Directors interpreted the “change-in-control” provision 3 (Section 13 of the plan) to apply to plaintiffs, as “Retired 4 Participants.” Although Section 13 only mentions 5 “Participants”--a separately defined term under the plan-- 6 Bausch & Lomb argues that, reading the plan as a whole, 7 “Retired Participants” are a subset of “Participants,” so 8 they too are subject to the lump-sum cash-out provision in 9 Section 13. The district court disagreed with Bausch & 10 Lomb’s interpretation. As do we. 11 12 The major problem with Bausch & Lomb’s interpretation 13 is that Section 13 explicitly mentions “Participants,” but 14 contains no mention of “Retired Participants.” That 15 omission cannot be ignored, because the definitions section 16 of the plan defines the two categories to be mutually 17 exclusive: 18 19 (f) Participant means an employee of the Company 20 who has been selected to participate in the Plan 21 pursuant to Section 4. 22 23 [...] 24 25 (h) Retired Participant means a former Participant 26 who is receiving benefits under this Plan. 27 28 Plan § 2. Accordingly: (1) Retired Participants such as 29 plaintiffs are, in fact, retired, so they are no longer 30 “employee[s] of the Company,” as is required to be a 31 Participant; and (2) a Retired Participant, as a matter of 32 logic, cannot be both a “former Participant” and a current 33 Participant (due to the temporal element inherent in the 34 word “former”). 35 36 Moreover, Section 13 presents one more textual problem 37 for Bausch & Lomb’s interpretation. It provides that, for 38 purposes of “determining the Participant’s accrued benefit,” 39 the “date of the Change of Control” will act as a stand-in 40 for “the date of Termination of Employment.” In other 41 words, Section 13 creates an artificial termination date in 42 the event of a change in control (the age of the beneficiary 43 on his termination date is relevant to determining the size 44 of the benefit payment, see Plan § 5(a)). But, as Bausch & 45 Lomb concedes, this provision is critical as applied to 46 Participants (who would need an artificial termination date, 47 because they are still working for the company), but is 48 senseless as applied to Retired Participants (who already 3 1 have a termination date--that is, their actual retirement or 2 separation date). Bausch & Lomb argues that “the most 3 plausible reading of that provision is that it would only 4 redefine termination dates where necessary.” But it never 5 explains why the rest of Section 13 should apply to Retired 6 Participants, even though (as it concedes) this language 7 does not. 8 9 Bausch & Lomb falls back on a series of arguments about 10 the overall structure and purpose of the plan, which it 11 claims compel the inference that, at least in Section 13, a 12 reference to “Participants” necessarily includes “Retired 13 Participants.” To be sure, an ERISA plan, like any 14 contract, “should be read to give effect to all of its 15 provisions and to render them consistent with each other.” 16 Perreca v. Gluck,
295 F.3d 215, 224 (2d Cir. 2002) (quoting 17 Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. 52, 63 18 (1995)). But most of Bausch & Lomb’s structure and purpose 19 arguments are unpersuasive, and in any event, none comes 20 close to the showing required to overcome the plan’s plain 21 text, which strongly favors plaintiffs’ interpretation. 22 23 In sum, because it is plain that Section 13 applies 24 only to Participants, Retired Participants such as 25 plaintiffs do not fall within its scope. 26 27 2. Bausch & Lomb also challenges the district court’s 28 remedy, which ordered reinstatement of Bausch & Lomb’s 29 monthly benefit obligation, while allowing for a one-time 30 “credit” in the amount of the (unlawful) lump-sum that 31 Bausch & Lomb already paid. “We review a district court’s 32 chosen remedy of an identified ERISA violation for an excess 33 of allowable discretion.” Frommert v. Conkright,
535 F.3d 34111, 117 (2d Cir. 2008), rev’d on other grounds,
559 U.S. 35506 (2010); accord Zervos v. Verizon N.Y., Inc.,
277 F.3d 36635, 648 (2d Cir. 2002). 37 38 The district court was faced with an unusual remedial 39 problem. On one hand, plaintiffs are in possession of a 40 large sum of money they should not yet have (as a result of 41 their successful ERISA lawsuit); on the other hand, Bausch & 42 Lomb will owe them more money, in the future, if they live 43 long enough. The district court’s chosen remedy was an 44 appropriate exercise of discretion. We need not decide 45 whether Bausch & Lomb’s proposed alternative--to require 46 return of the lump sum, then begin monthly benefit payments 47 immediately--would also have been permissible. But the need 48 to craft a remedy, even if imperfect, is the result of 4 1 Bausch & Lomb’s own violations of ERISA. Under these 2 circumstances, the district court’s remedy is not an abuse 3 of discretion. 4 5 The district court’s remedy does not run afoul of the 6 principle, announced by the U.S. Supreme Court in CIGNA 7 Corp. v. Amara,
131 S. Ct. 1866(2011), that a district 8 court has no authority to “reform” an ERISA plan. The only 9 relief ordered by the district court--reinstatement of 10 monthly benefit payments that Bausch & Lomb had unlawfully 11 withheld--was explicitly called for by the plan itself. And 12 the district court’s practical measure of a “credit” in the 13 amount of the lump sum is a traditional application of the 14 remedy of contractual expectation damages--ensuring that 15 plaintiffs are restored to the same financial position they 16 would have been in, but for Bausch & Lomb’s breach. See, 17 e.g., United States v. Boccagna,
450 F.3d 107, 119 (2d Cir. 18 2006) (“Expectation damages strive to place an aggrieved 19 party in the same economic position it would have been in 20 had both parties fully performed their contractual 21 obligations.”) (internal quotation marks and citation 22 omitted). Amara instructs a district court to limit itself 23 to “the simple enforcement of a contract as written,” 131 S. 24 Ct. at 1877; the district court did just that. 25 26 For the foregoing reasons, and finding no merit in 27 Bausch & Lomb’s other arguments, we hereby AFFIRM the 28 judgment of the district court. 29 30 FOR THE COURT: 31 CATHERINE O’HAGAN WOLFE, CLERK 32 33 5
Document Info
Docket Number: 14-1058
Citation Numbers: 594 F. App'x 696
Filed Date: 12/3/2014
Precedential Status: Non-Precedential
Modified Date: 1/13/2023