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Law digest – 8/13/12

Civil Procedure, Jurisdiction over foreign corporation: Foreign corporations possessed sufficient contacts with the state to support the court’s exercise of personal jurisdiction over them, because the corporations purposefully availed themselves of privilege of conducting activities in forum state, plaintiff’s claims arose out of those activities, and the exercise of personal jurisdiction was constitutionally reasonable. Tire Engineering and Distribution, LLC v. Al Dobowi, Ltd., No. 10-2271. RecordFax No. 12-0711-61, 44 pages.

Constitutional Law, Retaliatory discharge of state employees: In a suit alleging retaliatory discharge by the Department of Corrections in violation of the officers’ First Amendment rights, the officers failed to meet the threshold of showing that their speech addressed a matter of public concern; rather, where the speech encompassed personal grievances and complaints about conditions of employment, it may subject the employee to discipline without imposing any special burden of justification on the government employer. Brooks v. Arthur, No. 11-1899. RecordFax No. 12-0709-60, 14 pages.

Criminal Procedure, Speedy Trial Act: Speedy Trial Act, federal statute requiring that any indictment charging individual with the commission of offense be filed within 30 days from date on which individual was arrested or served with summons in connection with such charges, was not activated where federal investigation of defendant did not restrain defendant’s liberty but merely led to state arrest on state charges which resulted in defendant’s restraint, and actions of federal agents were taken in response to defendant’s failure to appear in state court on state charges. U.S. v. Burgess, No. 09-4584. RecordFax No. 12-0711-62, 28 pages.

Criminal procedure, Writ of error coram nobis: Nigerian citizen who entered plea of guilty to embezzlement charges in reliance on counsel’s erroneous advice that plea would not make him subject to deportation was entitled to writ of error coram nobis on basis of ineffective assistance of counsel because defendant sufficiently showed that a more usual remedy was not available, valid reasons existed for not attacking the conviction earlier, adverse consequences existed from the conviction sufficient to satisfy the case or controversy requirement of Article III, and error was of the most fundamental character. U.S. v. Akinsade, No. 09-7554. RecordFax No. 12-0725-60, 30 pages.

Environmental Law, National Environmental Policy Act: District court properly granted summary judgment against plaintiffs who alleged that their land would be adversely affected by construction of dam by federal agency because environmental impact statement issued by agency explained in detail flood-water, sediment, and erosion problems justifying dam construction project and set forth enough of a well-documented discussion to demonstrate that it had a reasonable basis for deciding that watershed protection and flood prevention were appropriate purposes and needs for dam and thereby complied with procedures mandated by National Environmental Policy Act. Webster v. U.S. Department of Agriculture, No. 11-1739. RecordFax No. 12-0713-60, 32 pages.

Evidence, Lab reports: Drug analysis report admitted into evidence at defendant’s criminal trial did not violate Confrontation Clause even though report included findings of two analysts, one of whom did not testify at trial, because testifying analyst conducted analysis free from reliance on research of non-testifying analyst, adequately answered government’s questions regarding her research and any evident discrepancies, and competently testified as to report’s results. U.S. v. Mouzone a/k/a Batman, No. 10-4781. RecordFax No. 12-0726-60, 20 pages.

Labor & Employment, ERISA claims: In plaintiffs’ class action against employer alleging that employee pension plan offered by employer violated ERISA in that it failed to state literal normal retirement age and failed to comply with ERISA’s anti-backloading provision, district court properly dismissed plaintiffs’ backloading count after finding pension plan’s normal retirement age to be valid under ERISA, because plaintiffs conceded to court that dismissal of age-related count would be dispositive of backloading count. McCorkle v. Bank of America Corporation, No. 11-1668. RecordFax No. 12-0725-61, 24 pages.

COUNSEL: Eli Gottesdiener, Gottesdiener Law Firm, Brooklyn, NY, for Appellants. Carter Phillips, Sidley Austin, LLP, Washington, for Appellees.

FACTS: Plaintiffs David McCorkle and William Pender filed a class action suit in the federal district court against Bank of America Corp. for alleged violations of certain provisions of the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§1001-1461. Plaintiffs and the class they represented were current and former employees of Bank of America and participants in the pension plan. The plan was a type of “defined benefit” plan, which uses a “cash balance” formula to calculate a participant’s benefit.

Plaintiffs raised four claims: (1) unlawful lump sum benefit calculation in violation of 29 U.S.C. §1053(a)(2) (“Count One”); (2) age discrimination (“Count Two”); (3) violation of the anti-backloading rules (“Count Three”); and (4) elimination of protected benefit (“Count Four”). The thrust of Counts One and Three was that the pension plan violated ERISA by failing to state a literal “age” for normal retirement age (“NRA”).

Bank of America moved to dismiss the complaint. The district court issued an order granting class certification on Counts One, Three, and Four, denying the motion to dismiss as to Count Four, and granting the motion to dismiss as to Counts One and Three. The court subsequently issued an Amended Order, from which the instant appeal was ultimately taken. In resolving Count Three, unlawful backloading, the district court relied exclusively on a concession made at oral argument by Plaintiffs’ counsel, whereby Plaintiffs’ counsel stated that granting the motion to dismiss with respect to Count One would be dispositive of Count Three.

Because the court found the pension plan’s NRA to be valid with respect to Count One, it summarily rejected Count Three based on counsel’s concession. Plaintiffs moved for reconsideration, and the district court denied the motion. Bank of America moved for entry of final judgment, and the district court granted the motion and entered final judgment with respect to the dismissal of Counts One and Three, and stayed further proceedings pending appeal.

Plaintiffs appealed to the 4th Circuit, which affirmed the judgment of the district court.

LAW: Plaintiffs maintained that the NRA stated in the pension plan violated ERISA’s anti-backloading provisions, but conceded that the NRA might be valid “definitionally,” under §1002(24). In resolving Count Three, unlawful backloading, the district court relied exclusively on Plaintiffs’ counsel’s concession that granting the motion to dismiss with respect to Count One would be dispositive of Count Three. Plaintiffs contended that they did not concede Count Three, as they raised an alternative theory that the pension plan’s NRA violated ERISA’s backloading provisions.

However, this assertion was without merit. The chief failing of the plaintiffs’ claim was that ERISA’s backloading rules do not apply once a plan participant reaches NRA. See 26 U.S.C. §411(b)(1)(B); 29 U.S.C. §1054(b)(1)(B). Plaintiffs’ abandonment of their “definitional” contention defeated their attempt to prevail on appeal. Plaintiffs placed themselves in the position of having conceded before the district court that a valid NRA would be fatal to their backloading claim, and conceding before the 4th Circuit that the plan’s NRA was valid. As such, the district court correctly found that the plaintiffs’ “alternative” argument was not properly raised prior to the motion for reconsideration.

The district court characterized plaintiffs’ argument as a new “slant” not raised prior to reconsideration. The district judge was present when counsel made the concession at issue and was in the best position to determine the import of counsel’s statements. As such, the district court’s reasonable and supported conclusion with respect to the concession would not be disturbed on appeal.

The district court’s order was accordingly affirmed.