18‐1558

Sacerdote v. Cammack Larhette Advisors, LLC

1 

2 In the 

3 United States Court of Appeals 

4 For the Second Circuit 

5 ________

6 

7 AUGUST TERM, 2018

8 

9 ARGUED: APRIL 8, 2019

10 DECIDED: OCTOBER 1, 2019

11 

12 No. 18‐1558

13 

14 DR. ALAN SACERDOTE, DR. HERBERT SAMUELS, MARIE E. MONACO,

15 MARK CRISPIN MILLER, DR. SHULAMITH LALA STRAUSSNER, DR. JAMES

16 B. BROWN, INDIVIDUALLY AND AS REPRESENTATIVES OF A CLASS OF

17 PARTICIPANTS AND BENEFICIARIES ON BEHALF OF THE NYU SCHOOL OF

18 MEDICINE RETIREMENT PLAN FOR MEMBERS OF THE FACULTY,

19 PROFESSIONAL RESEARCH STAFF AND ADMINISTRATION AND THE NEW

20 YORK UNIVERSITY RETIREMENT PLAN FOR MEMBERS OF THE FACULTY,

21 PROFESSIONAL RESEARCH STAFF AND ADMINISTRATION,

22 Plaintiffs‐Appellants,

23 

24 v.

25 

26 CAMMACK LARHETTE ADVISORS, LLC,

27 Defendant‐Appellee,

28 

29 RETIREMENT PLAN COMMITTEE, RICHARD BING, MICHAEL BURKE,

30 CATHERINE CASEY, MARTIN DORPH, SABRINA ELLIS, THOMAS

31 FEUERSTEIN, ANDREW GORDON, PATRICIA HALLEY, TIM HESLER,

32 KATHLEEN JACOBS, MARINA KARTANOS, ANN KRAUS, MARGARET

33 MEAGHER, CYNTHIA NASCIMENTO, NANCY SANCHEZ, TINA SURH,

34 LINDA WOODRUFF, MAURICE MAERTENS, JOSEPH MONTELEONE, RAY
2 No. 18‐1558

1 OQUENDO, CHRIS TANG, NEW YORK UNIVERSITY SCHOOL OF

2 MEDICINE, NYU LANGONE HOSPITALS, NYU LANGONE HEALTH

3 SYSTEM,

Defendants.* 4 

5 ________

6 

7 Appeal from the United States District Court

8 for the Southern District of New York.

9 No. 17 Civ. 8834 – Katherine B. Forrest, Judge.

10 ________

11 

12 Before: WALKER, CALABRESI, AND LIVINGSTON, Circuit Judges.

13 ________

14 Plaintiffs filed an action, which we referto as SacerdoteI, against

15 New York University (“NYU”) alleging violations of ERISA in

16 connection with two retirement plans sponsored by NYU.    The

17 district court dismissed most, but not all, of the causes of action

18 against NYU.  Plaintiffs then filed this action, which we refer to as

19 Sacerdote II, against a variety of affiliates of NYU and Cammack

20 Larhette Advisors, LLC, alleging substantially the same claims as

21 those in Sacerdote I, including the dismissed claims.  Cammack is an

22 independent investment management company that was hired by

23 NYU to provide investment advice on the retirement plans.    The

24 district court dismissed all of the claims against all of the NYU‐

25 affiliated defendants, as well as Cammack, on the grounds that a

26 plaintiff has no right to maintain two actions on the same subject,

27 against the same parties, at the same time.    The district court

28 concluded that even though Cammack and the other defendants in

29 Sacerdote II were not defendants in Sacerdote I, all of them were in

30 privity with defendant NYU in Sacerdote I because they had a

* The Clerk of Court is respectfully directed to amend the official caption as listed

above.  
3 No. 18‐1558

1 sufficiently close relationship with NYU and their interests were

2 aligned with those of NYU.  Plaintiffs appealed only the dismissal as

3 to Cammack.    We conclude that Cammack and NYU are not in

4 privity, and we now VACATE and REMAND the district court’s

5 order as to Cammack.

6 ________

7 SEAN E. SOYARS (Jerome J. Schlinchter, on the brief),

8 Schlichter Bogard & Denton LLP, St. Louis, MO, for

9 Plaintiffs‐Appellants.

10 CHARLES M. DYKE, Nixon Peabody LLP, San

11 Francisco, CA (Kristin Marie Jamberdino, Nixon

12 Peabody LLP, New York, NY, on the brief), for

13 Defendant‐Appellee.

14 ________

15 JOHN M. WALKER, JR., Circuit Judge:

16 Plaintiffs filed an action, which we referto as SacerdoteI, against

17 New York University (“NYU”) alleging violations of ERISA in

18 connection with two retirement plans sponsored by NYU.    The

19 district court dismissed most, but not all, of the causes of action

20 against NYU.  Plaintiffs then filed this action, which we refer to as

21 Sacerdote II, against a variety of affiliates of NYU and Cammack

22 Larhette Advisors, LLC, alleging substantially the same claims as

23 those in Sacerdote I, including the dismissed claims.  Cammack is an

24 independent investment management company that was hired by

25 NYU to provide investment advice on the retirement plans.    The

26 district court dismissed all of the claims against all of the NYU‐

27 affiliated defendants, as well as Cammack, on the grounds that a

28 plaintiff has no right to maintain two actions on the same subject,

29 against the same parties, at the same time.    The district court
4 No. 18‐1558

1 concluded that even though Cammack and the other defendants in

2 Sacerdote II were not defendants in Sacerdote I, all of them were in

3 privity with defendant NYU in Sacerdote I because they had a

4 sufficiently close relationship with NYU and their interests were

5 aligned with those of NYU.  Plaintiffs appealed only the dismissal as

6 to Cammack.    We conclude that Cammack and NYU are not in

7 privity, and we now VACATE and REMAND the district court’s

8 order as to Cammack.

9 BACKGROUND

10 This appeal concerns two actions that were filed in the

11 Southern District of New York and assigned to Judge Katherine

Forrest.1 12   We refer to the two actions as Sacerdote I (No. 16‐cv‐06284)

13 and Sacerdote II (No. 17‐cv‐8834).    Plaintiffs in both actions are six

14 professors at New York University (“NYU”) or the New York

15 University School of Medicine who participated in two ERISA‐

16 governed retirement plans sponsored by NYU (“the plans”).   

17 I. Sacerdote I

18 Plaintiffs commenced the first action on August 9, 2016, against

19 NYU only, and alleged breaches of the duties of loyalty and prudence

20 under ERISA based on unreasonable administrative fees,

21 unreasonable investment management fees and performance losses,

and failure to monitor unnamed co‐fiduciaries.2 22    

23 On November 9, 2016, plaintiffs amended their complaint to

24 allege breaches of ERISA’s duties of loyalty and prudence, as well as

25 its prohibited transaction rules, by: locking the plans into an

26 imprudent investment and recordkeeping arrangement with TIAA‐

1 Judge Forrest resigned from the bench in September 2018.  The case has been

reassigned to Judge Analisa Torres.

2 See Complaint, Sacerdote I, 16‐cv‐06284 (S.D.N.Y. Aug. 9, 2016), ECF No. 1.  
5 No. 18‐1558

1 CREF (Counts I and II); causing the plans’ participants to pay

2 unreasonable administrative fees to TIAA‐CREF and Vanguard

3 (Counts III and IV); and causing the plans’ participants to pay

4 unreasonable investment management, marketing, distribution,

5 mortality, and expense risk fees, and incur unreasonable performance

losses (Counts V and VI).3 6   Plaintiffs also alleged that NYU failed to

properly monitor unnamed co‐fiduciaries to the plans (Count VII).4 7   

8 The amended complaint, like its predecessor, named NYU as the only

9 defendant.

10 On August 25, 2017, the district court granted in part and

11 denied in part NYU’s motion to dismiss the amended complaint.  The

12 district court dismissed all claims except those alleging certain

13 breaches of ERISA’s duties of loyalty and prudence in Counts III and

V.5 14    With respect to Count VII, alleging NYU’s failure to properly

15 monitor unnamed co‐fiduciaries, the district court found that

16 plaintiffs’ failure to name any co‐fiduciary rendered the claim

materially deficient.6 17   However, the district court invited plaintiffs to

18 file for reconsideration if they possessed additional facts to support

their co‐fiduciary claim.7 19 

20 While NYU’s motion to dismiss was pending, plaintiffs learned

21 that NYU had delegated responsibility for administering the plans to

22 a Retirement Plan Committee (the “Committee”), which consisted of

23 nine officers of NYU and NYU Langone Medical Center.  Armed with

24 this new information, and in response to the district court’s invitation,

25 plaintiffs moved on September 8, 2017, for reconsideration of the

26 district court’s dismissal.  The same day, plaintiffs moved for leave to

3 See Amended Complaint, Sacerdote I, ECF No. 39.

4 See id.

5 See Opinion & Order, Sacerdote I, ECF No. 79.

6 Id. at 34–35.

7 Id. at 35.
6 No. 18‐1558

1 file a second amended complaint, in which they sought to add the

2 Committee and its nine individual members, as defendants, and to

3 add additional facts to bolster the co‐fiduciary claim.   

4 On October 17, 2017, the district court denied plaintiffs’ motion

for leave to amend.8 5   It concluded that plaintiffs failed to demonstrate

6 good cause for why they failed to amend earlier, given that the

7 defendant had disclosed the existence of the Committee and its

8 members in November 2016.  Two days later, the district court denied

9 plaintiffs’ motion for reconsideration for substantially the same

reason.9 10 

11 II. Sacerdote II

12 On November 13, 2017, the same plaintiffs filed a new action—

13 Sacerdote II—alleging substantially the same seven claims alleged in

14 Sacerdote I, including those claims the district court dismissed in its

August 25, 2017 decision.10 15     The Sacerdote II complaint named as

16 defendants: NYU Langone Hospitals, NYU Langone Health System,

17 the Retirement Plan Committee, and twenty‐one past or present

18 members of the Committee.  It did not name NYU.  The Sacerdote II

19 complaint also added a new claim and specifically identified the

20 Committee and its members as the co‐fiduciaries that NYU Langone

21 Hospitals and NYU Langone Health System allegedly failed to

22 monitor.

23 On December 20, 2017, the Sacerdote II defendants moved to

24 dismiss the action as duplicative of Sacerdote I.  Instead of responding

25 to the motion to dismiss, plaintiffs amended the Sacerdote II complaint

26 on January 10, 2018.  The amended complaint removed NYU Langone

8 See Order, Sacerdote I, ECF No. 100.

9 See Order, Sacerdote I, ECF No. 101.

10 See Complaint, Sacerdote II, No. 17‐cv‐08834 (S.D.N.Y. Nov. 13, 2017), ECF No. 1.
7 No. 18‐1558

1 Hospitals and NYU Langone Health System as defendants and added

2 the New York University School of Medicine (“NYU School of

Medicine”) as a defendant.11 3   The amended complaint, for the first

4 time, also named Cammack Larhette Advisors, LLC (“Cammack”), as

5 a defendant, and alleged that Cammack was a co‐fiduciary; that

6 Cammack breached its fiduciary duties under ERISA; and that both

7 Cammack and the NYU School of Medicine, as co‐fiduciaries, were

8 liable for the other’s breaches.  The amended complaint also added

9 new claims.

10 On January 24, 2018, all defendants—except for Cammack—

11 (the “NYU defendants”) responded to the Sacerdote II amended

12 complaint with a new motion to dismiss.    The NYU defendants

13 argued that the Sacerdote II action was duplicative of the Sacerdote I

14 action and was an impermissible attempt to circumvent the district

15 court’s rulings in Sacerdote I, which prohibited plaintiffs from

16 amending the complaint to replead the dismissed claims and add the

17 new defendants.    Before Cammack responded to the amended

18 complaint, the district court entered an opinion and order dismissing

19 the entire action against the NYU defendants and Cammack as

duplicative of Sacerdote I.

12 20     The district court held that the NYU

21 defendants in Sacerdote II were in privity with NYU in Sacerdote I, and

22 that Sacerdote II, which alleged substantially the same claims and facts

23 as the prior action, was duplicative of Sacerdote I.   With respect to

24 Cammack, the district court held that the claims against Cammack

25 “should have been brought by joining Cammack earlier in the

Sacerdote I litigation.”13 26   

11 See Amended Complaint, Sacerdote II, ECF No. 105.

12 See Opinion & Order, Sacerdote II, ECF No. 137; see also No. 17‐cv‐8834 (KBF),

2018 WL 1054573 (S.D.N.Y. Feb. 23, 2018).

13 Sacerdote II, ECF No. 137 at 7.
8 No. 18‐1558

1 On March 7, 2018, plaintiffs moved for reconsideration of the

2 district court’s sua sponte dismissal as to Cammack before Cammack

3 had responded to the amended complaint.    Plaintiffs argued they

4 were entitled to assert the same claims against a separate,

5 independent defendant, and that the factors the district court cited to

6 support a finding of privity between the NYU defendants in Sacerdote

7 I and II did not apply to Cammack, an independent entity not related

8 to NYU.  In response, the district court ordered Cammack to file a

9 letter motion for dismissal and granted plaintiffs an opportunity to

10 respond, which they did.    Cammack argued that like the NYU

11 defendants in Sacerdote II, it was in privity with NYU, the defendant

12 in Sacerdote I, because Cammack and NYU were in contractual

13 privity, the parties’ interests were fully aligned, and the defenses of

14 NYU would be fully dispositive of any claims against Cammack, if

15 successful.   

16 On March 22, 2018, the district court adhered to its judgment

dismissing Cammack from Sacerdote II.

14 17   The district court concluded

18 that Cammack was in privity with NYU because Cammack and

19 NYU’s interests were aligned and they had a “sufficiently close

relationship . . . to justify preclusion.”15 20    The district court rejected

21 plaintiffs’ argument that “Cammack need not have been added [as a

22 defendant in Sacerdote I] and that they can maintain a separate suit”

against Cammack.16 23 

14 See Mem. Decision & Order, Sacerdote II, ECF No. 147; see also No. 17‐cv‐8834

(KBF), 2018 WL 6253366 (S.D.N.Y. Mar. 22, 2018).

15 2018 WL 6253366, at *2 (internal quotation marks omitted).

16 Id.
9 No. 18‐1558

1 Plaintiffs now appeal the district court’s dismissal of Cammack

from Sacerdote II.

17 2 

3 DISCUSSION

4 We must determine in this case whether the district court

5 correctly applied the privity rule in the context of the rule against

6 duplicative litigation.   More precisely, the question is whether the

7 claims against Cammack in Sacerdote II—which are substantially

8 similar to the claims against NYU in Sacerdote I—should have been

9 barred by the rule against duplicative litigation on the basis of

10 Cammack’s alleged privity with NYU.  We begin with a discussion of

11 the rule against duplicative litigation and the privity rule, and then

12 assess whether the district court properly applied the two rules to

13 conclude that Cammack was in privity with NYU and that Sacerdote

14 II was therefore barred by the rule against duplicative litigation.

15 I. The Rule Against Duplicative Litigation

16 “As part of its general power to administer its docket, a district

17 court may stay or dismiss a suit that is duplicative of another federal

court suit.”18 18   This is because a plaintiff has “no right to maintain two

19 actions on the same subject in the same court, against the same

defendant at the same time.”19 20   In order for the rule to be properly

invoked, however, “the case must be the same.”20 21   As the  Supreme

22 Court recognized over a century ago, “[t]here must be the same

17 Plaintiffs initially also appealed the dismissal of the NYU defendants from

Sacerdote II, but have since dropped that argument following a bench trial on the

surviving claims in Sacerdote I, in which the district court ruled in favor of NYU on

all claims.  That decision in Sacerdote I is also up on appeal, but has not yet been

argued.   

18 Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000).

19 Id. at 139.

20 The Haytian Republic, 154 U.S. 118, 124 (1894).  
10 No. 18‐1558

1 parties, or, at least, such as represent the same interests; there must be

2 the same rights asserted and the same relief prayed for; the relief must

3 be founded upon the same facts, and the title, or essential basis, of the

relief sought must be the same.”21 4 

5 This rule, known as the rule against duplicative litigation,

6 sometimes termed the rule against claim‐splitting, is “distinct from

but related to the doctrine of claim preclusion or res judicata.”22 7   The

8 rule and the doctrine serve similar goals of “foster[ing] judicial

9 economy,” “protect[ing] the parties from vexatious and expensive

10 litigation,” and ensuring the “comprehensive disposition of

litigation.”23 11     As the Seventh Circuit put it, “[c]laim splitting is an

12 aspect of the law of preclusion.    Lawyers often use the words ‘res

judicata’ to summon up all aspects of preclusion.”24 13   Because they are

14 animated by similar policy goals and concerns, we frequently apply

15 principles governing the doctrine of claim preclusion to the rule

against duplicative litigation.25 16 

17 The vital difference between the rule against duplicative

18 litigation and the doctrine of claim preclusion, however, is that the

19 former can only be raised to bar one of two suits that are both still

21 Id. (internal quotation marks omitted).

22 Curtis, 226 F.3d at 138.

23 Id. (internal quotation marks omitted).

24 Horwitz v. Alloy Auto. Co., 992 F.2d 100, 103 (7th Cir. 1993).

25 See Davis v. Norwalk Econ. Opportunity Now, Inc., 534 F. App’x 47, 48 (2d Cir. 2013)

(summary order) (“While the rule against duplicative litigation is distinct from

claim preclusion, the former analysis borrows from the latter to ‘assess whether

the second suit raises issues that should have been brought in the first.’” (quoting

Curtis, 226 F.3d at 138–40) (internal citations omitted)); see also 18 Charles A.

Wright, Arthur R. Miller, et al., Fed. Prac. & Proc. § 4404 (3d ed.), Westlaw (“One

growing trend is to import the tests of claim preclusion into a ‘claim‐splitting’

doctrine that enables a court, as a matter of discretion, to dismiss an action that

presents the same claim, as measured by claim‐preclusion tests, as another

pending action.”).
11 No. 18‐1558

pending;  the latter is generally26 1 raised, after a prior suit is resolved

2 on the merits, to preclude a party (orits privy) from relitigating claims

3 in a subsequent suit that were or could have been raised in the prior

action.27 4 

5 II. Privity Rule

6 Just as we typically do not allow the doctrine of claim

7 preclusion to bind nonparties to a judgment because they have “not

8 had a full and fair opportunity to litigate the claims and issues settled

in that suit,” 9 28 we generally do not apply the rule against duplicative

litigation when the defendants in two similar actions are different.29 10   

11 Indeed, a plaintiff has “as many causes of action as there are

defendants to pursue.”30 12   As the Restatement (Second) of Judgments

13 states:

14 When a person suffers injury as the result of the

15 concurrent or consecutive acts of two or more persons,

16 he has a claim against each of them.  If he brings an action

17 against one of them, he is required [by the doctrine of

18 claim preclusion] to present all the evidence and theories

26 We say that claim preclusion “generally” is only raised after one suit has been

resolved on the merits because the doctrine can apply while two similar suits are

pending when the district court denies on the merits a motion to amend the

complaint to add new claims while permitting the existing claims to proceed.  In

such a case, the denial of leave to amend on the merits, as opposed to a denial on

procedural grounds such as timeliness, operates as a bar.  The plaintiff cannot file

a new, second action raising those denied claims.  See Curtis, 226 F.3d at 139.  That

precise scenario does not apply to this case, however, because plaintiffs never

sought, and were never denied, leave to amend their complaint in Sacerdote I to

add Cammack as a defendant.  

27 Curtis, 226 F.3d at 138.

28 Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (internal quotation marks omitted).

29 See The Haytian Republic, 154 U.S. at 124 (the rule against duplicative litigation

may only be invoked when the cases are the same and involve “the same parties,

or, at least, such as represent the same interests”).

30 N. Assur. Co. of Am. v. Square D Co., 201 F.3d 84, 88–89 (2d Cir. 2000).
12 No. 18‐1558

1 of recovery that might be advanced in support of the

2 claim against the obligor. . . .  But the claim against others

3 who are liable for the same harm is regarded as

separate.31 4 

5 In other words, if a plaintiff suffers the same harm at the hands of two

6 defendants, the plaintiff may institute one suit against one defendant

7 and a separate suit against another defendant alleging that each

caused his injury.32 8     This is known as the rule against nonparty

preclusion.33 9 

10 There are specific exceptions to this rule, however, that

11 recognize narrow circumstances in which applying a preclusion

12 doctrine to a nonparty is appropriate, fair, and does not violate the

13 nonparty’s due process rights.  When any of these circumstances is

present, the parties are said to be in privity.34 14   In the context of claim

15 preclusion, if a party to an action is found to be in privity with a party

16 to a previous action, then the “privy is bound with respect to all the

17 issues that were raised or could have been raised in the previous

lawsuit.”35 18 

19 The circumstances sufficient to invoke the privity rule have

20 evolved over time.  In 2008, the Supreme Court distilled the current

31 Restatement (Second) of Judgments § 49 (1982).

32 See N. Assurance, 201 F.3d at 88–89.  We do not consider here how other doctrines

and rules of civil procedure, such as joinder of parties, might impact a plaintiff’s

ability to bring separate claims against different defendants regarding the same

harm caused by both.

33 See Taylor, 553 U.S. at 892.

34 See id. at 898 n.8 (“The substantive legal relationships justifying preclusion are

sometimes collectively referred to as ‘privity.’  The term ‘privity,’ however, has

also come to be used more broadly, as a way to express the conclusion that

nonparty preclusion is appropriate on any ground.” (internal citations omitted));

see also Wright & Miller § 4449 (“[T]he privity label simply expresses a conclusion

that preclusion is proper.”).

35 Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 346 (2d Cir. 1995).  
13 No. 18‐1558

1 “recognized exceptions” to the rule against nonparty preclusion into

2 six categories:    (1) agreements by a nonparty to be bound by the

3 determination of issues in an action between others; (2) certain pre‐

4 existing substantive legal relationships based in property law

5 between the nonparty and the party, such as preceding and

6 succeeding owners of property, bailee and bailor, and assignee and

7 assignor; (3) representative suits where the nonparty’s interest was

8 adequately represented36 by a party with the same interests, such as

9 class actions and suits brought by trustees, guardians, and other

10 fiduciaries; (4) when a nonparty has assumed control over the

11 litigation in which the judgment was rendered; (5) when a nonparty

12 is acting as a proxy, agent, or designated representative of a party

13 bound by a judgment; and (6) when a statutory scheme expressly

14 forecloses successive litigation by nonlitigants, so long as the scheme

comports with due process.37 15 

16 Although most of the treatises and cases—including Taylor—

17 that discuss the privity rule do so in the context of claim preclusion,

18 the same principles apply in the context of the rule against duplicative

19 litigation.    In The Haytian Republic, the Supreme Court implicitly

20 recognized that the privity rule applies to the rule against duplicative

21 litigation when it stated that the rule may only be invoked when the

22 two pending suits have “the same parties, or, at least,such asrepresents

the same interests.”38 23     Since then, courts, including ours, have

36 The term “adequate representation” was further defined by the Court as

requiring certain procedural protections.    These requirements are discussed in

greater detail below.  See infra, notes 64–66 and accompanying text.

37 Taylor, 553 U.S. at 893–95.

38 154 U.S. at 124 (emphasis added).  As illustrated by Taylor, the privity rule has

evolved over time such that a party merely representing the same interest as a

nonparty, without more, is no longer sufficient to justify a finding of privity and

to apply a preclusion doctrine to a nonparty.    See infra, notes 64–66 and

accompanying text.    At the time of The Haytian Republic, however, this was a
14 No. 18‐1558

1 frequently applied principles originating in the doctrine of claim

2 preclusion to the similar context of the rule against duplicative

litigation.39 3     We can think of no reason—and the parties have

4 presented none—why the principles underlying the privity rule in the

5 context of other preclusion doctrines should not apply equally in the

6 context of the rule against duplicative litigation.

7 III. Standard of Review

8 We review de novo both a district court’s dismissal of a

complaint40 and its ruling on preclusion.41 9   At the dismissal stage, we

10 must accept as true all factual claims in the complaint and draw all

reasonable inferences in the plaintiff’s favor.42 11   We review for abuse

12 of discretion a district court’s decision to stay or dismiss a suit as

duplicative of another federal court suit.43 13   However, when a district

14 court’s determination that parties are in privity rests on a “purely

15 legal proposition,” we review that decision, like all questions of law,

de novo.

44 16   Moreover, a district court necessarily abuses its discretion

when it makes an error of law.45 17    

sufficient condition to invoke the privity rule and bar a nonparty from instituting

a similar suit, and demonstrates that the concepts of privity and nonparty

preclusion apply to the rule against duplicative litigation.

39 See N. Assur., 201 F.3d at 88–89 (declining to apply the rule against duplicative

litigation to bar a suit by a plaintiff against one defendant that was identical to,

and arose out of the same events as, another suit by the same plaintiff against a

different defendant and alleged joint tortfeasor because the parties were not in

privity); see also Davis, 534 F. App’x at 48; Vancouver v. NCO Fin. Srvs., Inc., 857 F.3d

833, 841–42 (11th Cir. 2017) (asking whether the case “involves the same parties

and their privies” in applying the rule against duplicative litigation); Wright &

Miller § 4404.  

40 See Singh v. Cigna Corp., 918 F.3d 57, 62 (2d Cir. 2019).  

41 See Hoblock v. Albany Cty Bd. of Elections, 422 F.3d 77, 93 (2d Cir. 2005).

42 See Singh, 918 F.3d at 62.

43 See Curtis, 226 F.3d at 138.

44 See Hoblock, 422 F.3d at 93–94.

45 See United States v. Hasan, 586 F.3d 161, 167–68 (2d Cir. 2009).
15 No. 18‐1558

1 IV. The District Court’s Finding of Privity Between NYU

2 and Cammack

3 There is no dispute that the facts and legal claims asserted in

4 Sacerdote II are substantially similar to those asserted in Sacerdote I.  

5 Nor is there a dispute that NYU and Cammack are different parties.  

6 The question, therefore, is whether the district court erred in

7 concluding that NYU and Cammack are in privity, such that the rule

8 against duplicative litigation should apply to bar recovery against

9 Cammack in Sacerdote II.  We conclude that the district court did so

10 err.  

11 The district court concluded that NYU and Cammack were in

12 privity based on the following facts taken from the amended

13 complaint:

14 Cammack has provided advisory services to NYU since

15 2009.  The Amended Complaint alleges that Cammack is

16 a co‐fiduciary to the Plans, and is a party to a contract

17 that requires it to advise NYU on investment options.  It

18 also claims that Cammack participated in and enabled

19 the NYU defendants to commit a number of the alleged

20 breaches of fiduciary duty by providing imprudent

21 investment advice, and by failing to make any reasonable

22 effort under the circumstances to remedy the breaches

23 . . . . [However,] NYU and Cammack have different

24 states of incorporation and different principal places of

25 business, and [plaintiffs allege that] they took

independent actions with regard to the Plans’ losses.46 26 

27 The district court found that these facts supported the conclusion that

28 “Cammack has a ‘sufficiently close relationship’ to NYU to justify

46 Sacerdote II, 2018 WL 6253366, at *1–2 (internal citations and quotation marks

omitted).
16 No. 18‐1558

preclusion.”47 1   It also rejected plaintiffs’ argument that Cammack and

2 NYU’s interests will “sharply diverge” to the extent that Cammack’s

advice was imprudent.48 3   

4 We disagree that Cammack and NYU’s interests are sufficiently

5 identical to support a finding of privity.  Under ERISA’s co‐fiduciary

6 provision, a co‐fiduciary is only liable for another fiduciary’s

7 independent breach if the co‐fiduciary (1) knowingly participates in

8 or conceals the breaching act or omission of another fiduciary; (2)

9 enables another fiduciary to breach by failing to comply with ERISA’s

10 “prudent man” standard of care; or (3) knows of another fiduciary’s

breach and fails to make reasonable efforts to remedy the breach.49 11   

12 Unless this is so, the co‐fiduciaries’ interests are not aligned.  Here,

13 the bases for liability as to NYU and Cammack are not necessarily the

14 same; it is possible that one party could be found liable and the other

15 not.

16 Indeed, as plaintiffs plausibly pleaded, Cammack and NYU

17 had separate and distinct responsibilities as co‐fiduciaries to the

18 plans, and could be found liable for plaintiffs’ injuries for separate

19 reasons.  “Cammack’s potential liability arises from providing flawed

advice to the Committee . . . .”50 20     On the other hand, “NYU’s

21 [potential] liability would arise from failing to independently

22 investigate the merits of the Plans’ investments, or failing to

determine whether it was reasonable to rely on Cammack.”51 23    

47 Id. at *2 (quoting Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56

F.3d 359, 368 (2d Cir. 1995).

48 Id.

49 29 U.S.C. § 1105(a); see also 29 U.S.C. § 1104(a)(1) (defining the “prudent man”

standard of care).

50 Appellant’s Br. at 18.

51 Id. at 18–19.
17 No. 18‐1558

1 A reasonable trier of fact could find that Cammack provided

2 flawed advice to NYU and was liable for plaintiffs’ losses, while also

3 finding that NYU reasonably relied on Cammack’s advice,

4 notwithstanding its flawed nature.  Conversely, a reasonable trier of

5 fact could find that Cammack provided reasonably prudent advice to

6 NYU, but that NYU imprudently rejected Cammack’s advice or failed

7 to properly implement Cammack’s investment recommendations.  In

8 these plausible scenarios, NYU and Cammack’s interests would

9 surely diverge, to the point where it would be in each of their interests

10 to place the blame on the other.  Especially at the pleading stage, it

11 was error for the district court to accept Cammack’s argument that its

12 interests were identical to those of NYU over plaintiffs’ plausible

assertions to the contrary.52 13 

14 Even assuming that Cammack and NYU have a sufficiently

15 close relationship and identical interests, the district court further

16 erred because the presence of these two conditions alone is

17 insufficient as a matter of law to support a finding of privity.  The

18 district court relied primarily on Central Hudson for the proposition

19 that identical interests and a sufficiently close relationship are all that

20 is required to find parties in privity.  That case, however, does not

21 support that proposition.    Central Hudson held that to determine

22 whether nonparty preclusion is warranted, a court must also “inquire

52 In its brief, Cammack argues that the district court’s determination that NYU

and Cammack had identical interests was proper because plaintiffs “never made

any showing” “that NYU’s interests will sharply diverge from Cammack’s.”  See

Appellee’s Br. at 29.  But the burden of proving privity and preclusion is on the

party asserting that affirmative defense.  See Taylor, 553 U.S. at 907.  It was therefore

Cammack’s burden to prove that its interests were aligned with NYU’s.    We

conclude it has failed to do so because plaintiffs have plausibly alleged realistic

scenarios in which Cammack and NYU’s interests are not identical, but, in fact,

materially conflict.
18 No. 18‐1558

1 whether a [non]party controlled or substantially participated in the

control of the presentation on behalf of a party to the prior action.”53 2 

3 The Supreme Court’s decision in Taylor is instructive.    In

4 recognizing the six circumstances sufficient to establish privity, the

5 Court rejected a proposed seventh category called virtual

representation.54 6   The contours of a proposed virtual representation

category have differed from circuit to circuit.55 7     The formulation

8 rejected by the Court in Taylor would have found a nonparty to be in

9 privity with a party if the nonparty (1) had the same interests as the

10 party; (2) was adequately represented by the party; and (3) at least

11 one of the following conditions was present: (a) a close relationship

12 between the nonparty and party; (b) substantial participation by the

13 nonparty in the other action; or (c) tactical maneuvering by the

nonparty to avoid preclusion.56 14     The Court refused to adopt this

15 virtual representation exception to the rule against nonparty

16 preclusion, stating that it would be “at odds with the constrained

17 approach to nonparty preclusion” adopted by the Court’s prior

18 decisions, and would circumvent the protections guaranteed by the

Due Process Clause.57 19   In holding that that NYU and Cammack were

20 in privity based solely on their sufficiently close relationship and

21 identical interests, the district court essentially adopted an even

22 broaderformulation of virtualrepresentation than thatrejected by the

23 Court in Taylor.  This was in error.

53 Cent. Hudson, 56 F.3d at 368 (modifications incorporated) (internal quotation

marks omitted).

54 Taylor, 553 U.S. at 895–96.

55 See id. at 889.

56 Id. 889–90.

57 Id. at 898; see also id. at 901.  
19 No. 18‐1558

1 Moreover, none of the six circumstances that Taylor recognized

2 as permitting a finding of privity are present here.    There is no

3 allegation or evidence that Cammack agreed to be bound by the

disposition of Sacerdote I, 4 58 nor that Cammack assumed control over

NYU’s defense in Sacerdote I, 5 59 nor that Cammack is a designated

representative or proxy of NYU.60 6     And no applicable statutory

7 scheme expressly forecloses successive litigation by or against

nonlitigants.61 8 

9 We also conclude that NYU and Cammack do not have the type

10 of property rights‐based “pre‐existing substantive legal relationship”

that could justify a finding of privity in this case.62 11     The contract

12 between NYU and Cammack obliges Cammack only to provide

13 investment advisory services to NYU with respect to the plans.   It

14 does not create a property rights‐based relationship akin to those

15 recognized in Taylor that could render a nonparty subject to the

judgment of a party with which it is in privity.63 16   No property rights

17 were transferred, assigned, or delegated to or from NYU or

18 Cammack, and the claims in Sacerdote I and II did not concern NYU

19 and Cammack’s mutual or successive rights in the same property.  

20 Thus, the contractual and co‐fiduciary relationships between NYU

21 and Cammack are insufficient to find the parties in privity.

22 Finally, we conclude that the representative suit exception to a

23 plaintiff’s right to sue each defendant separately does not apply here.  

24 The Supreme Court has described this exception as applying only in

58 See id. at 893–94.

59 See id. at 895.

60 See id.

61 See id.

62 See id. at 894 (internal quotation marks omitted).

63 See id.
20 No. 18‐1558

1 “certain limited circumstances” when the nonparty is “adequately

2 represented by someone with the same interests who was a party to

3 the suit,” such as class actions and suits brought by trustees,

guardians, and other fiduciaries.64 4     A party’s representation of a

5 nonparty is considered ”adequate” for preclusion purposes “only if,

6 at a minimum: (1)    [t]he interests of the nonparty and her

7 representative are aligned; and (2) either the party [in the first suit]

8 understood herself to be acting in a representative capacity [of the

9 nonparty] or the original court took care to protect the interests of the

nonparty.”65 10   Adequate representation often also requires “(3) notice

of the original suit to the persons alleged to have been represented.”66 11    

12 Cammack has made no argument that NYU understood itself

13 to be acting in a representative capacity for Cammack in litigating

14 Sacerdote I, or that the district court took care to protect the interests

of Cammack in Sacerdote I.

67 15   Without these procedural protections,

16 privity cannot be said to exist on the basis that NYU adequately

17 represented Cammack’s interests in Sacerdote I, such that plaintiffs are

18 now precluded by the rule against duplicative litigation from

19 asserting claims against Cammack arising out of the same nucleus of

20 acts at issue in Sacerdote I.   

21 In summary, because the relationship between NYU and

22 Cammack does not fit into any of the privity categories recognized by

23 the Supreme Court in Taylor as sufficient to justify an exception to the

24 rule against nonparty preclusion, the district court erred in

25 concluding that NYU and Cammack were in privity.  It is insufficient

64 Id. at 894–95 (modifications incorporated) (internal quotation marks omitted).

65 Id. at 900 (internal quotation marks and citations omitted).

66 Id.

67 Because preclusion is an affirmative defense, it was Cammack’s burden to plead

and prove that these procedural protections were in place to justify nonparty

preclusion under the representative suit exception.  See id. at 907.
21 No. 18‐1558

1 as a matter of law to find two parties in privity based solely on the

2 fact that they share a sufficiently close relationship and have aligned

3 interests.  This is precisely the type of virtual representation theory of

4 privity that the Supreme Court rejected in Taylor.  Because NYU and

5 Cammack are not in privity, the district court’s dismissal of Cammack

6 from Sacerdote II pursuant to the rule against duplicative litigation

7 was legal error, and thus an abuse of discretion, and a violation of the

8 fundamental principle that a plaintiff has “as many causes of action

as there are defendants to pursue.”68 9 

10 CONCLUSION

11 We have considered the parties’ other arguments and find them

12 to be without merit.  We therefore VACATE the district court’s order

13 dismissing Cammack from Sacerdote II and REMAND the matter back

14 to the district court.

68 N. Assur., 201 F.3d at 88–89.