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NATIONAL ASBESTOS WORKERS MED. FUND v. PHILIP MORR

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK


October 19, 1998

THE NATIONAL ASBESTOS WORKERS MEDICAL FUND, et al., Plaintiffs, against PHILIP MORRIS INC., et al., Defendants.

The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM AND ORDER

 WEINSTEIN, United States Senior District Court Judge:

 Plaintiffs are eight self-insured, multi-employer health and welfare trust funds (the "trusts"), and a purported class of approximately 4,000 similarly situated trusts. They provide health care benefits to union workers in the building trades. The trusts were established pursuant to the Labor Management Relations Act. 29 U.S.C. § 186 (1994). They are regulated by the Employee Retirement Income Security Act (ERISA). 29 U.S.C. §§ 1001 et seq. (1994). Alleged by plaintiffs are violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(a),(c), & (d), and federal common law claims for unjust enrichment-restitution, indemnity, and breach of an assumed duty.

 Defendants are the major tobacco manufacturers and related entities. They move to dismiss on the pleadings. Supporting their motion to dismiss, defendants have pointed to persuasive pre-ERISA authority based on state insurance and tort common and statutory law.

 Pre-ERISA precedents may have little relevance in the instant case. Trusts such as the plaintiffs are governed by the requirements of ERISA, not by inconsistent state regulation or state common law. Pursuant to ERISA's comprehensive preemption provisions federal courts must now "develop a 'federal common law of rights and obligations.'" Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 95 L. Ed. 2d 39, 107 S. Ct. 1549 (1987)). The courts must "fashion . . . a federal common law for ERISA by incorporating what has long been embedded in traditional trust law and equity jurisprudence." Chemung Canal Trust Co. v. Sovran Bank, 939 F.2d 12, 16 (2d Cir. 1991), cert denied, 505 U.S. 1212 (1992). Equitable powers of the judiciary--both state and federal--to fill lacunae in substantive and procedural rules affecting trusts is predicated upon the inherent powers of the chancellor, and more recent statutory and case law. See, e.g., In re Joint Eastern & Southern Dist. Asbestos Litigation (Johns-Manville Corp.), 878 F. Supp. 473, 515-40 (E. & S.D.N.Y. 1995), (central role of equity jurisdiction in the law of trusts from medieval England to present), aff'd in part and vacated in part on other grounds, 78 F.3d 764 (2d Cir. 1996).

 The public policy objectives of RICO intersect with those of ERISA. Both are implicated in the current explication of federal ERISA based trust law designed to preserve funds set aside for the protection of workers' medical and other needs. Illustrative of the current developing state of the law governing this dispute are the conflicting decisions in cases much like the one now before us. Compare Kentucky Laborers District Council Health & Welfare Trust Fund v. Hill & Knowlton, Inc., 1998 U.S. Dist. LEXIS 16052, No. Civ.A.3:97- CV-394, 1998 WL 695299 (W.D. Ky. Sept. 30, 1998) (denying defendant tobacco companies' motion to dismiss with respect to RICO and fraud claims); Iron Workers Local Union No. 17 Ins. Fund v. Philip Morris Inc., 1998 U.S. Dist. LEXIS 14340, No. 1:97- CV-1422, 1998 WL 602033 (N.D. Ohio Sept. 10, 1998) (denying defendant tobacco companies' motion to dismiss with respect to RICO, antitrust, civil conspiracy, and state law corruption claims); New Jersey Carpenters Health Fund v. Philip Morris, Inc., 1998 U.S. Dist. LEXIS 13420, No. 97-4728, 1998 WL 547126 (D.N.J. Aug. 26, 1998) (denying defendant tobacco companies' motion to dismiss with respect to RICO and fraud claims directed at trust funds); Stationary Engineers Local 39 Health & Welfare Trust Fund v. Philip Morris, Inc., 1998 U.S. Dist. LEXIS 8302, No. C-97-01519, 1998 WL 476265 (N.D. Cal. Apr. 30, 1998) (denying defendant tobacco companies' motion to dismiss claims with respect to claims for fraud and negligent breach of special duty); Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 7 F. Supp. 2d 277 (S.D.N.Y. 1998) (denying defendant tobacco companies' motion to dismiss with respect to RICO claims and common law claims for fraud and breach of special duty) (appeal granted July 14, 1998, No. 98-7944 (2d Cir.)); West Virginia Laborers' Pension Trust Fund v. Philip Morris, Inc., No. 3:97-0708 (S.D. W. Va. Aug. 12, 1998) (denying defendant tobacco companies' motion to dismiss in toto) with Texas Carpenters Health Benefit Fund v. Philip Morris, Inc., No. 1:97 CV625, 1998 WL 685364 (E.D. Tex. Aug. 31, 1998) (granting defendants' motion to dismiss RICO, antitrust, and state common law claims in toto); Oregon Laborers-Employers Health & Welfare Trust Fund v. Philip Morris, Inc., 1998 U.S. Dist. LEXIS 14908, No. 97-1051- MA, 1998 WL 544305 (D. Or. Aug 24, 1998) (same); Seafarers Welfare Plan v. Philip Morris, Inc., 1998 U.S. Dist. LEXIS 11875, No. MJG-97-2127 (D. Ma. July 13, 1998) (same); Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc., 1998 U.S. Dist. LEXIS 5951, No. CIV 97-5344(A), 1998 WL 212846 (E.D. Pa. Apr. 22, 1998) (same); Southeast Fla. Laborers Dist. Health & Welfare Trust Fund v. Philip Morris, Inc., 1998 U.S. Dist. LEXIS 5440, No. 97-8715 CIV, 1998 WL 186878 (S.D. Fla. Apr. 13, 1998) (same); cf. Eastern States Health & Welfare Fund v. Philip Morris, Inc., 11 F. Supp. 2d 384 (S.D.N.Y. 1998) (on motion to remand, incomplete preemption of some state claims).

 Given the unsettled state of the law, resolution of the plaintiffs' claims and defendants' defenses should not be decided in the abstract, but in the context of specific facts which must be developed in the record. All of plaintiffs' claims will proceed promptly to summary judgment or trial.

 Defendants' motion to dismiss under Rule 12(b)6 is denied.

 Defendants' motion to dismiss under Rule 12(b)7 is denied; plaintiffs' theory of liability does not require the presence of additional parties.

 The issue of certification of the class under Rule 23 need not be considered at this stage of the proceedings for the reasons stated orally on the record.

 Trial is set for May 3, 1999 at 9:30 a.m., subject to summary judgment motions.

 The parties shall limit discovery to the named plaintiffs and shall otherwise depend, insofar as possible, on documents from other litigations. The magistrate judge will assist the parties in reducing the transactional costs of this litigation to the extent practicable.

 An immediate appeal from this order will not materially advance the meritorious resolution of this litigation. 28 U.S.C. § 1292(b).

 SO ORDERED

 Dated: October 19, 1998

 Brooklyn, New York

 Jack B. Weinstein

 United States Senior District Court Judge

19981019

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