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Fisher v. J.P. Morgan Chase & Co.

September 29, 2006

ISADORE FISHER, ON BEHALF OF HIMSELF AND A CLASS OF PERSONS SIMILARLY SITUATED, AND ON BEHALF OF THE JP MORGAN CHASE 401(K) SAVINGS PLAN, PLAINTIFF,
v.
J.P. MORGAN CHASE & CO., J.P. MORGAN INVESTMENT SERVICES, THE PLANINVESTMENT MANAGEMENT COMMITTEE, THE BENEFITS FIDUCIARY COMMITTEE, INA R. DREW, DINA DUBLON, PATRICK L. EDSPARR, JOHN J. FARRELL, PETER H. KOPP, MARIA ELENA LAGOMASINO, BLYTHE S. MASTER, EDWARD L. MCGANN, MARC J. SHAPIRO, JOHN C. WILMOT, RICHARD DONALDSON JR., WILLIAM B. HARRISON, MARC J. SHAPIRO, HANS W. BECHERER, RILEY P. BECHTEL, FRANK A. BENNACK, JR., LAWRENCE A. BOSSIDY, M. ANTHONY BURNS, H. LAURANCE FULLER, ELLEN V. FUTTER, WILLIAM H. GRAY, III, WILLIAM B. HARRISON, JR., HELENE L. KAPLAN, LEE R. RAYMOND, JOHN R. STAFFORD, LLOYD D. WARD AND JOHN DOES 1-30, DEFENDANTS.



The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge

OPINION & ORDER

I. Introduction

Plaintiffs Isadore Fisher, Janna Moore Wooten, Kelli M. Bunn, Tammy Soileau and Amy K. Harvey, who are present and former participants in JP Morgan Chase & Co.'s 401(k) Savings Plan (the "Plan"), claim that defendants, who are alleged to be fiduciaries with respect to the Plan, breached their fiduciary duties to the Plan in violation of section 409(a) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1109(a). In an Opinion and Order dated August 25, 2005, the Court, in denying plaintiffs' motion to certify a class, concluded that plaintiffs have standing to pursue their claims only to the extent that they seek equitable relief pursuant to ERISA section 502(a)(3), 29 U.S.C. § 1132(a)(3). Defendants have now moved for summary judgment in their favor on the basis of the depositions of the five named plaintiffs, four of whom testified that they are seeking money damages only in this action and the last of whom could not identify any form of equitable relief that she is seeking. As explained below, defendants' motion is granted in part and denied in part because while plaintiffs lack standing to recover individual monetary damages in this action, their deposition testimony does not constitute a forfeiture of their ability to obtain equitable relief.

II. Background

The Court presumes familiarity with its Opinion and Order denying plaintiffs' motion for class certification, Fisher v. J.P. Morgan Chase & Co., 230 F.R.D. 370 (S.D.N.Y. 2005). As explained in that decision, to the extent that plaintiffs' three claims for breach of fiduciary duty -- for imprudent investment, misrepresentation or omission and improper supervision of other fiduciaries -- were brought pursuant to ERISA section 502(a)(2), 29 U.S.C. § 1132(a)(2), plaintiffs lacked standing because they seek individualized damages on behalf of a specific subclass of participants in the Plan as opposed to recovery for the Plan itself. Fisher, 230 F.R.D. at 374-76. The Court noted that the U.S. Supreme Court "has made plain that liability pursuant to ERISA section 502(a)(2) is meant to allow for recovery to 'the benefit of the plan as a whole'" and thus "does not provide individual plan participants a personal right of recovery." Id. at 375 (quoting Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 144, 105 S.Ct. 3085, 87 L.Ed. 2d 96 (1985)).

The Court concluded: "To the extent plaintiffs purport to bring their claims pursuant to ERISA section 502(a)(2), they lack standing, and their claims must be dismissed." Id. at 379.

The Court also addressed plaintiffs' claims to the extent that they were brought pursuant to ERISA section 502(a)(3), 29 U.S.C. § 1132(a)(3). The Court pointed out that that section "does provide individual participants a personal right of action," but only insofar as those participants bring claims "to enjoin practices that violate ERISA or the relevant plan, or to 'obtain other appropriate equitable relief.'" Fisher, 230 F.R.D. at 376 (quoting 29 U.S.C. § 1132(a)(3)). The Court emphasized that "other equitable relief" refers to "traditional equitable remedies" such as injunction, mandamus and restitution, but not to compensatory or punitive damages. Id. (citing Mertens v. Hewitt Assocs., 508 U.S. 248, 256, 113 S.Ct. 2063, 124 L.Ed. 2d 161 (1993); Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210, 122 S.Ct. 708, 151 L.Ed. 2d 635 (2002)). In denying plaintiffs' motion for class certification pursuant to section 502(a)(3), the Court noted that even though the amended complaint states that plaintiffs "seek[] equitable relief," in actuality it "sounds entirely in recovery of compensatory damages to individuals." Fisher, 230 F.R.D. at 378. The Court concluded: "Plaintiffs' vague, conclusory requests for equitable relief coupled with their contention that the circumstances justifying equitable relief will become evident as the litigation progresses . . . do not satisfy plaintiffs' burden to show that certification of the proposed class is warranted." Id.

Before that decision was issued, the parties had commenced discovery and defendants had deposed each of the five named plaintiffs. When asked what kind of relief they sought in this action, four plaintiffs testified that they sought money damages only and the fifth, Amy Harvey, could not articulate what kind of relief she sought. (See Exs. A-E of the Affidavit of Jonathan K. Youngwood dated Sept. 23, 2005 ("Youngwood Aff.").) Specifically, the plaintiffs testified as follows: Isadore Fisher

Q: Mr. Fisher, if you prevail in this lawsuit what do you hope to obtain?

A: I hope to get a settlement on my behalf and on behalf of all the other class members.

Q: Money.

A: Money.

Q: You hope to get money for yourself and others.

A: Yes.

Q: Anything other than money, sir?

A: No. (Dep. of Isadore Fisher dated Dec. 7, 2004 at 68:13-24, Ex. A to Youngwood Aff.) Kelli M. Bunn

Q: And what would you say were the principal reasons that you decided to pursue the lawsuit?

A: I would say just to try to help all of the people that participated, you know, in the 401(k) plan, you know that was with JPMorgan.

Q: And help them in what way?

A: To help them recoup some of the losses that they took.

Q: And is that what you seek in this lawsuit?

A: Yes.

Q: Is there any other form of relief that you seek in this lawsuit?

A: No. (Dep. of Kelli M. Bunn dated Jan. 11, 2005 at 77:8-23, Ex. B to ...


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