     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
11
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.
24
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.
 1                                 PEARL ZUCHLEWSKI (Geoffrey
 2                                 A. Mort, Esq., on the brief),
 3                                 Kraus & Zuchlewski LLP, New
 4                                 York, N.Y. , for Plaintiffs-
 5                                 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.


                                    2
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


                                   3
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


                                      4
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


                                     5
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


                                     6
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


                                    7
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


                                     8
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.




         1
           A prior Summary Order in this case made reference to
    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
