07-4040-cv

Ladouceur v. Credit Lyonnais

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 August Term, 2008

6

7

8 (Argued: April 7, 2009 Decided: September 30, 2009)

9

10 Docket No. 07-4040-cv

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12 - - - - - - - - - - - - - - - - - - - -x

13

14 Alex H. Ladouceur, Ronald J. Ivans, 

15 David Silvers,

16

17 Plaintiffs-Appellants,

18

19 - v.-

20

21 Credit Lyonnais, John J. Quinn,

22

23 Defendants-Appellees.

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25 - - - - - - - - - - - - - - - - - - - -x

26

27 Before: JACOBS, Chief Judge, FEINBERG and WALKER,

28 Circuit Judges.

29

30 Appeal from a judgment of the United States District

31 Court for the Southern District of New York (Buchwald, J.)

32 dismissing on summary judgment claims of promissory estoppel

33 and breach of fiduciary duty. These claims are premised on

34 changes to an employee benefit plan governed by the Employee

35 Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et

36 seq. (“ERISA”). Because oral promises cannot vary the terms

37 of an ERISA plan, we affirm. 
2

1 PEARL ZUCHLEWSKI (Geoffrey

2 A. Mort, Esq., on the brief),

3 Kraus & Zuchlewski LLP, New

4 York, N.Y., for Plaintiffs5 Appellants.

6

7 TRACEY A. TISKA (Barbara

8 M. Roth, Esq., on the brief),

9 Hogan & Hartson LLP, New York,

10 N.Y., for Defendants-Appellees.

11

12

13 DENNIS JACOBS, Chief Judge:

14

15 Plaintiffs had been employed by a Credit Lyonnais

16 subsidiary that was absorbed by the parent company in 2001. 

17 They appeal from a judgment of the United States District

18 Court for the Southern District of New York (Buchwald, J.)

19 dismissing on summary judgment their promissory estoppel and

20 breach of fiduciary duty claims premised on allegations that

21 Credit Lyonnais and its Human Resources Director, John J.

22 Quinn (collectively “Credit Lyonnais”), orally

23 misrepresented the effect of the merger on their pension

24 benefits. The district court found no evidence of any

25 representation in writing. On appeal, plaintiffs argue that

26 an oral representation suffices to establish a breach of

27 fiduciary claim based on a purported alteration of a

28 benefits plan governed by the Employee Retirement Income

29 Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. We

30 disagree, and affirm the judgment of the district court.
3

1 BACKGROUND

2 Plaintiffs Alex H. Ladouceur, Ronald J. Ivans, and

3 David Silvers were (respectively) the former president,

4 executive vice president, and senior accountant of Credit

5 Lyonnais Rouse (“Rouse”), which had been a wholly-owned

6 subsidiary of Credit Lyonnais. In 2000, Credit Lyonnais

7 decided to absorb Rouse effective January 1, 2001. In June

8 2000 (before the merger), Ladouceur and Ivans met with Human

9 Resources Director Quinn to discuss the impact of the merger

10 on their salaries and pensions. It is uncontested that in

11 the meeting with Quinn and during subsequent presentations

12 to Rouse staff, Credit Lyonnais agreed to calculate vesting

13 periods for pension benefits from the date employees began

14 to work for Rouse (as early as 1987), rather than the date

15 they would begin to work for Credit Lyonnais (January 1,

16 2001). 

17 At issue is plaintiffs’ contention that Credit Lyonnais

18 also agreed to calculate pension funding from the date

19 employees began to work at Rouse. Plaintiffs concede they

20 have no written documents confirming their alleged

21 understanding of how their pension benefits would be

22 calculated, nor does the record contain any writing to that

23 effect. They base their claim on oral statements allegedly
4

1 made by Quinn and other Credit Lyonnais Human Resources

2 staff prior to the merger. Credit Lyonnais denies that it

3 made such representations in any form.

4 Plaintiffs commenced direct employment with Credit

5 Lyonnais on January 1, 2001, but all resigned by August of

6 that year. According to plaintiffs, they departed Credit

7 Lyonnais under the impression that their pension benefits

8 would be calculated according to their original Rouse hiring

9 dates. See Am. Compl. ¶ 34. However, in April 2002, Quinn

10 allegedly informed Ladouceur by letter that his pension

11 benefits would be based, not on his original Rouse start

12 date, but on the date that he began working for Credit

13 Lyonnais. According to plaintiffs, a Credit Lyonnais human

14 resources representative then orally confirmed that “a

15 decision had... been made by unidentified individuals not to

16 proceed with the necessary funding” for plaintiffs’ pension

17 benefits. Plaintiffs filed suit in April 2004, alleging

18 promissory estoppel and breach of fiduciary duty under ERISA

19 on the ground that Credit Lyonnais had represented that

20 pension benefits would be funded as of the date they began

21 to work for Rouse.

22 The district court initially dismissed the suit in

23 January 2005, ruling that plaintiffs failed to allege a
5

1 sufficient writing to support their claims. Ladouceur v.

2 Credit Lyonnais, No. 04 Civ. 2773 (S.D.N.Y. Jan. 20, 2005)

3 (Memorandum and Order). We vacated the dismissal and

4 remanded for further proceedings on the ground that

5 plaintiffs had alleged facts sufficient to support their

6 claims, and that further discovery might reveal a sufficient

7 writing. Ladouceur v. Credit Lyonnais, 05-0766-cv (2d Cir.

8 2005) (Summary Order).

9 After completion of discovery, Credit Lyonnais moved

10 for summary judgment. In August 2007, the district court

11 granted Credit Lyonnais’s motion, concluding that plaintiffs

12 had not identified any writing containing the alleged

13 representations, and that absent such a writing they could

14 establish neither promissory estoppel nor breach of

15 fiduciary duty. Ladouceur v. Credit Lyonnais, No, 04 Civ.

16 2773 (S.D.N.Y. Aug. 21, 2007) (Memorandum and Order). This

17 appeal followed.

18

19 DISCUSSION

20 Plaintiffs did not appeal the district court’s entry of

21 summary judgment on their promissory estoppel claim, and we

22 deem that claim to be abandoned. See Shakur v. Selsky, 391

23 F.3d 106, 119 (2d Cir. 2004). Plaintiffs’ sole argument on
6

1 appeal is that the district court erred in dismissing, “for

2 lack of any writing,” their claim for breach of fiduciary

3 duty under ERISA.

4 We review the district court’s summary judgment

5 decision de novo. Roe v. City of Waterbury, 542 F.3d 31, 35

6 (2d Cir. 2008). Summary judgment is appropriate if “there

7 is no genuine issue as to any material fact” and “the movant

8 is entitled to judgment as a matter of law.” Fed. R. Civ.

9 P. 56(c).

10 ERISA imposes a fiduciary duty on plan administrators

11 to administer a benefits plan “with the care, skill,

12 prudence, and diligence under the circumstances then

13 prevailing that a prudent man acting in a like capacity and

14 familiar with such matters would use in the conduct of an

15 enterprise of a like character and with like aims.” 29

16 U.S.C. § 1104(a)(1). Given this fiduciary obligation, “[a]

17 plan administrator may not make affirmative material

18 misrepresentations to plan participants about changes to an

19 employee pension benefits plan.” Mullins v. Pfizer, Inc.,

20 23 F.3d 663, 669 (2d Cir. 1994) (internal quotation marks

21 omitted, alterations in original). The question on appeal

22 is whether an alleged oral representation that purports to

23 change an employee pension benefits plan can support a claim
7

1 for breach of fiduciary duty under ERISA.

2 “[O]ral promises are unenforceable under ERISA and

3 therefore cannot vary the terms of an ERISA plan.” Perreca

4 v. Gluck, 295 F.3d 215, 225 (2d Cir. 2002); see also 29

5 U.S.C. § 1102(a)(1) (“Every employee benefit plan shall be

6 established and maintained pursuant to a written instrument

7 . . . .”). For this reason, we held in Perreca that an oral

8 statement purporting to alter the terms of an ERISA benefit

9 plan was insufficient to give rise to a claim for promissory

10 estoppel. Perreca, 295 F.3d at 225.

11 This logic applies with equal force to alleged breaches

12 of fiduciary duty when the alleged breach is an oral

13 representation that purports to change an ERISA benefit

14 plan. Since such a statement cannot effect a change in an

15 ERISA plan, we see no reason to give the statement effect by

16 re-characterizing it as a breach of fiduciary duty. Giving

17 such effect to an oral statement “would undermine ERISA’s

18 framework which ensures that [ERISA] plans be governed by

19 written documents,” Moore v. Metro. Life Ins., 856 F.2d 488,

20 492 (2d Cir. 1988), as well as dilute the protection

21 conferred by the writing requirement, which prevents

22 “employees from having their benefits eroded by oral

23 modifications to the plan.” Smith v. Dunham-Bush, Inc., 959
8

1 F.2d 6, 10 (2d Cir. 1992).

2 Plaintiffs argue that the reasoning of Perreca does not

3 apply to claims for breach of fiduciary duty, and they cite

4 cases in which we have upheld such claims based on alleged

5 material misrepresentations regarding changes to an ERISA

6 benefit plan. See generally Abbruscato v. Empire Blue Cross

7 & Blue Shield, 274 F.3d 90, 102-03 (2d Cir. 2001); Mullins,

8 23 F.3d at 669. But these cases either involved written

9 representations or did not indicate whether the

10 representations were written or oral. See Abbruscato, 274

11 F.3d at 94-95 (discussing the various “materials” and

12 “documents” containing the alleged misrepresentations);

13 Mullins, 23 F.3d at 669 (reciting that the defendant had

14 made representations by means of an “announce[ment] to its

15 employees” without indicating whether the announcement was

16 written or oral). The cited cases are therefore inapposite.

17 Finally, plaintiffs point out that we have never held

18 that a claim for breach of fiduciary duty under ERISA cannot

19 be maintained without a writing. That is true; but no such

20 categorical requirement is needed to decide this case. We

21 hold only that a party alleging a breach of fiduciary duty

22 on the basis of a statement purporting to alter the terms of

23 an ERISA benefit plan must point to a written document
 A prior Summary Order in this case made reference to 1

a writing requirement in the context of an ERISA fiduciary

duty claim. See Ladouceur v. Credit Lyonnais, No. 07-4040-

cv (2d Cir. 2005) (Summary Order). The writing requirement

referenced in that order is the requirement of a writing in

a claim for breach of fiduciary duty based on an alleged

alteration of the terms of an ERISA benefit plan.

9

1 containing the alleged statement.1

2 Plaintiffs have identified no document in the record

3 containing the alleged representations purporting to

4 retroactively fund their ERISA benefits. Because the

5 summary judgment record does not support plaintiffs’

6 fiduciary duty claim, Credit Lyonnais is entitled to

7 judgment as a matter of law on that claim.

8 Accordingly, we affirm the judgment of the district

9 court.