       17-3518
       Jander v. International

                       UNITED STATES COURT OF APPEALS

                                 FOR THE SECOND CIRCUIT

                                    _______________

                                   August Term, 2019

      (Argued: September 7, 2018                      Decided: December 10, 2018
      Vacated: January 14, 2020                         Reinstated: June 22, 2020)

                                   Docket No. 17-3518

                                    _______________

           LARRY W. JANDER, and all other individuals similarly situated,
                             RICHARD J. WAKSMAN,

                                   Plaintiffs-Appellants,

                                          —v.—

               RETIREMENT PLANS COMMITTEE OF IBM, RICHARD CARROLL,
                        ROBERT WEBER, MARTIN SCHROETER,

                                  Defendants-Appellees,

                  INTERNATIONAL BUSINESS MACHINES CORPORATION,

                                       Defendant.
                                    _______________

B e f o r e:

                KATZMANN, Chief Judge, SACK AND RAGGI, Circuit Judges.
                                _______________

      The judgment entered pursuant to our initial opinion in this appeal, see 910
F.3d 620 (2d Cir. 2018), was vacated by the Supreme Court and remanded for
further consideration. We reinstate the judgment.
                                 _______________

            Samuel E. Bonderoff, Jacob H. Zamansky, James Ostaszewski,
                 Zamansky LLC, New York, NY, for Plaintiffs-Appellants.

            Paul D. Clement, George W. Hicks, Jr., C. Harker Rhodes IV,
                  Kirkland & Ellis LLP, Washington, DC; Lawrence Portnoy,
                  Michael S. Flynn, David B. Toscano, Zachary A. Kaufman,
                  Davis Polk & Wardwell LLP, New York, NY, for
                  Defendants-Appellees.

            Kate O’Scannlain, Solicitor of Labor, G. William Scott, Associate
                  Solicitor for Plan Benefits Security, Thomas Tso, Counsel for
                  Appellate and Special Litigation, Eirik Cheverud, Trial
                  Attorney, U.S. Department of Labor, Washington, DC, for
                  Amicus Curiae U.S. Secretary of Labor.

            Michael A. Conley, Solicitor, David D. Lisitza, Senior Litigation
                 Counsel, Securities and Exchange Commission, Washington,
                 DC, for Amicus Curiae Securities and Exchange Commission.

            Nicole A. Saharsky, Brian D. Netter, Mayer Brown LLP,
                  Washington, DC; Nancy G. Ross, Mayer Brown LLP, Chicago,
                  IL, for Amici Curiae the Chamber of Commerce of the United States
                  of America, the Securities Industry and Financial Markets
                  Association, the ERISA Industry Committee, and the American
                  Benefits Council in Support of Defendants-Appellees.
            _______________




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      PER CURIAM:

      In this case, plaintiffs, participants in IBM’s employee stock option plan,

allege that the plan’s fiduciaries breached their duty of prudence under the

Employee Retirement Income Security Act of 1974 (“ERISA”). The district court

granted defendants’ motion to dismiss, Jander v. Ret. Plans Comm. of IBM, 272 F.

Supp. 3d 444 (S.D.N.Y. 2017), and this Court reversed and remanded, Jander v.

Ret. Plans Comm. of IBM, 910 F.3d 620 (2d Cir. 2018). The Supreme Court then

granted defendants’ petition for certiorari, Ret. Plans Comm. of IBM v. Jander, 139

S. Ct. 2667 (2019) (mem.), which presented the question whether a plaintiff can

state a duty-of-prudence claim based on “generalized allegations that the harm

of an inevitable disclosure of an alleged fraud generally increases over time,”

Petition for Writ of Certiorari at i, Ret. Plans Comm. of IBM v. Jander, 140 S. Ct. 592

(2020) (No. 18-1165). The Supreme Court also granted the government’s motion

to participate in oral argument as an amicus curiae in support of neither party, so

that it could present the views of the Department of Labor and the Securities and

Exchange Commission. Ret. Plans Comm. of IBM v. Jander, 140 S. Ct. 398 (2019)

(mem.).




                                           3
      After hearing oral argument, the Supreme Court vacated the judgment of

this Court and remanded for further proceedings. See Ret. Plans Comm. of IBM v.

Jander, 140 S. Ct. 592, 595 (2020) (per curiam). In its opinion, the Supreme Court

explained that defendants’ and the government’s post-certiorari arguments

primarily addressed matters that fell beyond the question presented to the

Supreme Court, and that had not been raised before this Court. So that this Court

could “have an opportunity to decide whether to entertain these arguments in

the first instance,” the Supreme Court “le[ft] it to the Second Circuit whether to

determine their merits, taking such action as it deems appropriate.” Id.

      On remand, we invited the parties to submit supplemental briefs

regarding the appropriate disposition of this appeal, including whether we

should consider any arguments not previously raised before this Court. We also

invited the government to submit a supplemental brief as an amicus curiae. The

parties and the government have now submitted supplemental briefs, as have

amici curiae the Chamber of Commerce of the United States of America, the

Securities Industry and Financial Markets Association, the ERISA Industry

Committee, and the American Benefits Council.




                                         4
      Having reviewed the submissions from the parties and amici, we now

reinstate the judgment entered pursuant to our initial opinion. The arguments

raised in the supplemental briefs either were previously considered by this Court

or were not properly raised. To the extent that the arguments were previously

considered, we will not revisit them. To the extent that they were not properly

raised, they have been forfeited, and we decline to entertain them. See Norton v.

Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the

briefs . . . normally will not be addressed on appeal.”). Accordingly, the

judgment of the district court is reversed, and the case is remanded for further

proceedings consistent with our initial opinion.




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