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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`DAN ANDREW COTTEN
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`^ JAN 02 2020 *
`BROOKLYN OFFICE
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`K)
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`MEMORANDUM & ORDER
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`19-CV-01534 (RJD)(ST)
`19-CV-01554 (RJD)(ST)
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`Plaintiff,
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`Defendant.
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`Plaintiff,
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`- against -
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`ALTICE USA, INC.
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`ANDREW HORLICK
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`- against -
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`ALTICE USA, INC.
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`DEARIE, District Judge:
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`Defendant.
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`X
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`Dan Andrew Cotten ("Cotten") and Andrew Horlick ("Horlick") (collectively,
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`"Plaintiffs") bring claims against their former employer, Altice USA, Inc. ("Altice" or
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`"Defendant"), related to Altice's alleged failure to pay severance benefits. Plaintiffs sue for
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`breach of contract (Count I) and promissory estoppel (Count II). Cotten Second Amended
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`Complaint, ECF No. 15, IIH 27-36 ("Cotten Compl."); Horlick Second Amended Complaint, ECF
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`No. 15, fit 26-35 ("Horlick Compl."). Following removal. Plaintiffs amended their pleadings to
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`raise three Employee Retirement Income Security Act ("ERISA") claims in the alternative:
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`failure to pay benefits under an ERISA plan pursuant to § 502(a)(1)(B) (Count III), failure to
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`furnish ERISA plan documents under § 502(a)(1)(A) (Count IV), and breach of fiduciary duty to
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`Plaintiffs and others similarly situated to provide plan documents and timely deliver severance
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`Case 1:19-cv-01534-RJD-ST Document 31 Filed 01/02/20 Page 2 of 7 PageID #: 276
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`benefits under § 502(a)(3) (Count V). Gotten Compl. 37-58; Horlick Compl. 36-57. Altice
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`now moves to dismiss, arguing (i) Plaintiffs' state law claims are preempted by ERISA, (ii)
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`Plaintiffs lack standing under ERISA, (iii) Plaintiffs failed to exhaust administrative remedies,
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`and (iv) Plaintiffs' ERISA claims under §502(a)(3) are duplicative of other claims. Def. Mem.,
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`Gotten EGF No. 24, Horlick EGF No. 22, at 4-14. For the reasons described below, the Court
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`denies Defendant's Motion to Dismiss as to ERISA preemption, standing, and exhaustion, and
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`reserves decision on dismissal of Count V as duplicative.
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`BACKGROUND
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`Gotten began his employment as a Sales Director for Altice on September 25, 2017, and
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`was terminated in July 2018. Gotten Compl. 13, 22. Horlick began his employment as
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`Director of East Coast Sales for Altice on January 2, 2018, and was terminated on June 2, 2018.
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`Horlick Compl. 13, 21. Both Plaintiffs allege that they were terminated "without cause or
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`explanation" and denied severance pay. Gotten Compl. 15, 25; Horlick Compl. T|1| 15, 24
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`(referencing Ex. B).
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`On or about January 1,2017, Altice issued a company-wide Altice Severance Benefits
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`Policy ("Altice Policy") that it published on Altice's intranet, widely disseminated, and furnished
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`to Plaintiffs when they accepted employment with Altice. Gotten & Horlick Compls. 6, 8. The
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`Altice Policy outlines severance benefits for Altice employees terminated without cause. Gotten
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`& Horlick Compls, Ex. A at 1-3. The Altice Policy also states: "As approved by the EVP/Head
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`of Function and EVP of Human Resources, severance guidelines are governed by the Company's
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`ERISA-covered severance pay plan and the associated plan document/summary plan description.
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`If you would like to receive a copy please speak with your local Human Resources contact." Id
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`at 2. The Altice Policy defines "The Company" as "Altice USA." Id
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`Case 1:19-cv-01534-RJD-ST Document 31 Filed 01/02/20 Page 3 of 7 PageID #: 277
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`In removing the action to this Court, Defendant filed a declaration from Altice's Senior
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`Vice President, Compensation, Benefits & HR Operations, Christopher Clarke, and a
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`"Cablevision Severance Pay Plan and Summary Plan Description" ("Cablevision Plan"). S^
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`Notice of Removal, Cotten & Horlick ECF No. 1, Ex. C (Cablevision Plan), Ex. D (Clarke
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`Deck); see also Sweeney Affidavit, Cotten ECF No. 23, Horlick ECF No. 20, Ex. C (Cablevision
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`Plan). With little explanation, Clarke simply states that the Cablevision Plan is the ERISA plan
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`that governs the Altice Policy. Clarke Decl. 3-4. Plaintiffs contend that they were not
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`provided with documents indicating that they were Cablevision employees during the
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`onboarding process nor given the Cablevision Plan prior to this litigation. Cotten Compl. ft 11-
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`12, 24; Horlick Compl. ff 11-12,23; PI. 0pp., Cotten ECF No. 22, Horlick ECF No. 21, at 7, 9.
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`DISCUSSION
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`On a motion to dismiss, the Court must "accept all allegations in the complaint as true
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`and draw all inferences in the non-moving party's favor." LaFaro v. N.Y. Cardiothoracic Grp..
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`PLLC, 570 F.3d 471,472 (2d Cir. 2009). "In considering a motion to dismiss for failure to state
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`a claim under Fed. R. Civ. P. 12(b)(6), a district court must limit itself to facts stated in the
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`complaint or in documents attached to the complaint as exhibits or incorporated in the complaint
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`by reference." Kramer v. Time Warner Inc.. 937 F.2d 767, 773 (2d Cir. 1991). "[WJhere a
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`document is not incorporated by reference, the court may nevertheless consider it where the
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`complaint 'relies heavily upon its terms and effect,' which renders the document 'integral' to the
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`complaint." Chambers v. Time Warner. Inc.. 282 F.3d 147, 153 (2d Cir. 2002) (quoting Int'l
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`Audiotext Network. Inc. v. Am. Tel. & Tel. Co.. 62 F.3d 69, 72 (2d Cir. 1995)).
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`As a threshold matter, the Court declines to consider the proffered Cablevision Plan in
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`deciding Defendant's Motion. Despite defense counsel's insistence, it is not apparent that a
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`Case 1:19-cv-01534-RJD-ST Document 31 Filed 01/02/20 Page 4 of 7 PageID #: 278
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`Cablevision Plan governs the Altice Policy. Indeed, the first reference to the Cablevision Plan is
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`found in Defendant's notice of removal. Compare id at 154 (finding it improper to consider
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`outside document on motion to dismiss where "the parties disagree as to whether and how the
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`[document] relate[s] to or affect[s] the contractual relationships at issue" and the document could
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`be read as either "irrelevant" or "intended to modify the ... contracts").
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`1. Motion to Dismiss State Claims as Preempted bv ERISA
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`Consistent with Congress's goal of "provid[ing] a uniform regulatory regime over
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`employee benefit plans ... ERISA includes expansive pre-emption provisions which are
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`intended to ensure that employee benefit plan regulation [is] 'exclusively a federal concern.'"
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`Aetna Health Inc. v. Davila. 542 U.S. 200, 208 (2004) (quoting Alessi v. Ravbestos-Manhattan,
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`Inc.. 451 U.S. 504, 523 (1981)) (citing ERISA § 514; 29 U.S.C. § 1144). "[A]ny state-law cause
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`of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy ... is
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`therefore pre-empted." Id at 209.
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`Notwithstanding ERISA's broad preemptive force, where there is a factual dispute as to
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`the existence of an enforceable ERISA plan. Plaintiffs may plead state law claims in the
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`alternative. See, e.g.. Aiena v. Olsen. 69 F. Supp. 2d 521, 531 (S.D.N.Y. 1999) ("Given the
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`uncertainties concerning (a) whether the [challenged] arrangements were an ERISA plan and (b)
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`the scope of ERISA preemption, it would be foolish to put all of one's eggs in either the ERISA
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`or the state law basket. Resting solely on ERISA would run the risk that a court ultimately would
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`determine that there was no ERISA plan. Resting solely on the state law theory would run the
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`risk that a court would conclude that there was an ERISA plan and that the state claims were
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`preempted."); Aramonv v. United Wav of Am.. 949 F. Supp. 1080, 1084 (S.D.N.Y. 1996) ("[A]s
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`Case 1:19-cv-01534-RJD-ST Document 31 Filed 01/02/20 Page 5 of 7 PageID #: 279
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`defendants question the existence of an enforceable ERISA plan, plaintiffs [state law] claim is
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`an acceptable alternative theory that may be pled along with plaintiffs ERISA claims.").
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`Given uncertainty regarding the existence and identification of Altice's ERISA severance
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`plan, the Court at this time declines to dismiss Plaintiffs' state law claims.
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`2. Motion to Dismiss ERISA Claims for Lack of Standing
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`A claim under ERISA may be brought by a "participant or beneficiary" of the ERISA
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`plan. ERISA § 502(a)(1); 29 U.S.C. § I I32(a¥n. See also Chemune Canal Tr. Co. v. Sovran
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`Bank/Marvland. 939 F.2d 12,14 (2d Cir. 1991) (Those with ERISA standing "are: (1) a
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`participant or beneficiary, (2) the Secretary of Labor, and (3) a fiduciary.").
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`In addition to disputing the Cablevision Plan's relevance, the parties dispute whether
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`Plaintiffs are designated beneficiaries under Altice's ERISA plan, including whether the Altice
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`Policy constituted such designation. Given outstanding questions regarding Plaintiffs' status
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`under Altice's severance program, the Court cannot now determine that Plaintiffs lack standing.
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`Defendant's Motion to Dismiss as to standing is denied.
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`3. Motion to Dismiss for Failure to Exhaust Administrative Remedies
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`ERISA plans must "afford a reasonable opportunity to any participant whose claim for
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`benefits has been denied for a full and fair review by the appropriate named fiduciary of the
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`decision denying the claim." 29 U.S.C. § 1133(2). "[RJelying on § 1133, 'courts have developed
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`the requirement that a claimant should ordinarily follow internal plan procedures and exhaust
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`internal plan remedies before seeking judicial relief under ERISA.'" Siblev-Schreiber v. Oxford
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`Health Plans (TSf.Y.L Inc.. 62 F. Supp. 2d 979, 985 (E.D.N.Y. 1999) (quoting Ludwig v.
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`NYNEX. 838 F. Supp. 769, 781 (S.D.N.Y. 1993)). Courts have "dispensed with the exhaustion
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`prerequisite where plaintiffs allege a statutory ERISA violation." De Pace v. Matsushita Elec.
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`Case 1:19-cv-01534-RJD-ST Document 31 Filed 01/02/20 Page 6 of 7 PageID #: 280
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`Corp. of Am.. 257 F. Supp. 2d 543, 558 (E.D.N.Y. 2003) (collecting sources). Additionally, in
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`rare cases "[w]here claimants make a clear and positive showing that pursuing available
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`administrative remedies would be futile," exhaustion is excused. Kennedv v. Empire Blue Cross
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`& Blue Shield. 989 F.2d 588, 594 (2d Cir. 1993) (quotations omittedV See also Davenport v.
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`Harrv N. Abrams. Inc.. 249 F.3d 130, 134 (2d Cir. 2001) (Plaintiff "was required to exhaust even
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`if she was ignorant of the proper claims procedure."); Meza v. Gen. Batterv Corp.. 908 F.2d
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`1262, 1280 (5th Cir. 1990) ("Even though [Plaintiff] did not receive a copy of a Plan Summary
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`as required by [ERISA], he has not shown that the lack of information has harmed him or
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`precluded him from pursuing his administrative remedies at this point.'" (emphasis added)).
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`Once again, before the applicable plan is identified, it is not possible to decide whether
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`any term poses an insurmountable barrier to Plaintiffs' case. The Court cannot conclude that
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`Plaintiffs failed to follow "th[e] administrative appeals [process] provided for in the relevant plan
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`or policy." Kennedv. 989 F.2d at 594. The Motion to Dismiss on exhaustion grounds is denied.
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`4. Motion to Dismiss Duplicative ERISA Claims
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`The Supreme Court recognizes that "ERISA § 502(a)(3) act[s] as a safety net, offering
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`appropriate equitable relief for injuries caused by [ERISA] violations that § 502 does not
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`elsewhere adequately remedy." Devlin v. Empire Blue Cross & Blue Shield. 274 F.3d 76, 89 (2d
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`Cir. 2001) (quoting Varitv Corn v. Howe. 516 U.S. 489, 512 (1996)) (internal quotations
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`omitted). Therefore, "where Congress elsewhere provided adequate relief for a beneficiary's
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`injury, there will likely be no need for further equitable relief, in which case such relief normally
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`would not be appropriate." Varitv Corp.. 516 U.S. at 515 (internal quotations omitted). Lower
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`courts have determined that claims for equitable relief under § 502(a)(3) are improper when
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`duplicative of § 502(a)(1) claims. See, e.g.. Babino v. Gesualdi. 278 F. Supp. 3d 562, 580-81
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`(E.D.N.Y. 2017), affd. 744 F. App'x 30 (2d Cir. 2018) ("Plaintiff does not seek 'appropriate
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`Case 1:19-cv-01534-RJD-ST Document 31 Filed 01/02/20 Page 7 of 7 PageID #: 281
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`equitable relief under Section 502(a)(3) because the relief he seeks is available elsewhere, and
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`his claim is duplicative of his claims under Section 502(a)(1)(B)."); Mead v. Andersen, 309
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`F. Supp. 2d 596, 598 (S.D.N.Y. 2004) ("[I]t is inappropriate to include a § 502(a)(3) claim
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`which, as here, merely duplicates the § 502(a)(1) claim.")
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`Defendant asserts that Plaintiffs' claims under § 502(a)(3) are duplicative of claims under
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`§ 502(a)(1). Def. Mem., Gotten & Horlick, at 11-12. Plaintiffs respond that Counts IV and V do
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`not deal with denial of benefits, and in particular Count V seeks relief for breach of fiduciary
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`duties in failing to provide plan documents and timely severance benefits to beneficiaries. Gotten
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`0pp. at 12-13; Horlick 0pp. at 13-14. While the Court is skeptical that Count V raises claims
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`distinct from Counts III and IV, the Court will defer ruling until completion of the limited
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`discovery now authorized and additional briefing as may be appropriate.
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`CONCLUSION
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`Defendant's persistent refrain about the Altice Policy's language that "severance
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`guidelines are governed by the Company's ERISA-covered severance pay plan and the
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`associated plan document/summary plan description" may presage an insurmountable obstacle to
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`Plaintiffs. However, at this pleading stage the Court is unable to conclude that as a matter of law,
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`the claims will perish at the hands of the relevant plan as vaguely referenced. Plaintiffs are thus
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`entitled to modest discovery on what ERIS A plan, if any, was in place during their tenure at
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`Altice, and whether they were beneficiaries under such plan.
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`SO ORDERED.
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`Dated: Brooklyn, New York
`December
`2019
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`s/Raymond J. Dearie
`RAYMp® y)EARIE
`United Statesl5istrict Judge
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