Overlooked Defenses and the Lessons of Schering-Plough, and Other Things Overlooked

STEALTH DEFENSES, AND A POSSIBLE LESSON FROM SCHERING-PLOUGH

In case after case after case after case, courts decline to hold squarely that a departing employee's general release of all claims does not bar the employee's later attempt to bring a class action against a plan fiduciary for a breach of fiduciary duty. There's an understandable inclination on the part of some observers to assume that there must be some principle out there that prevents an employee from waiving out of ERISA fiduciary claims. A closer analysis, however, reveals that the courts are generally not holding that the employee cannot waive the ability to bring a claim, but rather are holding that the particular releases in question do not effect such a waiver.

This distinction may be critical. If practitioners assume that releases cannot foreclose a plaintiff from bringing an ERISA fiduciary claim, those practitioners might not endeavor to tweak their forms of releases so as to address the claims they would otherwise be trying to foreclose.

The analytical key is that the ERISA fiduciary claims that underlie the big class actions should probably be deconstructed technically as claims on behalf of the plan (as LaRue teaches), while the releases being held up as defenses to those claims are releases of the individual's own claims. Thus, it's not that an individual couldn't have contractually agreed not to bring ERISA fiduciary claims, it's that the individuals simply haven't contractually agreed not the bring the ERISA fiduciary claims. The drafting key, then, is to focus not only on the individual's release of the individual's own claims, but also on a covenant not to sue whereby the individual would expressly agree not to cause the plan to bring the plan's fiduciary claims.

The recent case of In re Schering-Plough Corporation ERISA Litigation, 589 F.3d 585 (3d Cir. 2009), creeps right up to the edge of foreclosing a plaintiff from bringing Section 502(a)(2) ERISA fiduciary claims on behalf of a plan. While the release language there is not quite enough to cause the court to get all the way there, it is enough to cause the court to conclude that there is enough of a cloud over the plaintiff's ability to serve as a class representative, based on typicality and adequacy grounds, that it remanded for a "rigorous" examination of the point.

Eventually, it is suggested here, a court will squarely hold that a covenant not to sue forecloses the bringing of a class action, and practitioners will see that releases can indeed accomplish that goal - but only if the release presented to the court on its face reaches claims brought on behalf of the plan. We may then start to see more releases nuanced more clearly to hit the mark. The defenses may well be there; it's just that maybe no one quite knows about them yet.

A GRAB-BAG OF THINGS OVERLOOKED

Missed Movies

Whenever I think of things no one notices, I think of movies I've seen that somehow manage to fly under the radar, but which I think deserve much more. Hot on the heels of the Oscars (restored to me by ABC and Cablevision so I didn't have to keep watching some overseas broadcast through the internet*), here's my list of the best movies that no one cares (or not enough people care) about, in my order of dismay:

• The Butterfly Effect - ignored by action/suspense/sci-fi/thriller types because of Ashton Kutcher, and ignored by Kutcher fans because it's an action/suspense/sci-fi thriller, it truly . . . flies . . . under the radar

• Wes Craven's New Nightmare - creative, original, suspenseful and creepy, it's lost as just another Freddy sequel, but in fact it's anything but

• White Nights - a very solid effort with Baryshnikov and Hines, altogether ignored

• Con Air - not an invisible movie, which is why it's not higher on my dismay meter, but not respected nearly enough as being one of the best of all the action movies

• Behind the Mask (The Rise of Leslie Vernon) - a cool and on-the-mark deconstruction of the horror genre (like New Nightmare, with Robert Englund), which, somewhat like Shaun of the Dead (but at the same time quite differently), manages to shift effectively from parody to and-we-mean-it

• 28 Weeks Later - a hugely underrated infected (as opposed to zombie) flick

• Americathon - well, even though the movie is awful, it's got my favorite Beach Boys song, "It's A Beautiful Day" (of which, like the movie, no one's ever heard)

Oscar Omissions

And here's my list of the biggest Oscar rip-offs that stick in my own personal craw* -

• No win for Osment in The Sixth Sense (were they kidding?!?) - if you ask me, it's the biggest rip-off of them all, even if Forrest's prodigal son didn't keep it up after The Sixth Sense; Michael Caine's wonderful acceptance speech all but acknowledged the Academy's folly

• No nomination (not even a nomination?!?) for DiCaprio in Titanic - oh, c'mon, like let's pretend that without him that movie doesn't set the box-office record; his subsequent body of work underlines the error of this omission

• No win for DiCaprio (there he is again) in Gilbert Grape - I honestly thought he was a disabled actor, until I saw him interviewed months later

• No win for Sellers in Being There (and far too few nominations for the movie) - while Rain Man-type roles may be easy marks (although maybe not for Sean Penn or Juliette Lewis), this one was special

• No nomination for Cruise in Rain Man itself - I thought he was better than Hoffman

• No win for Cruise (another appearance for him, as well) in Born on the 4th of July - and they gave one to Julia Roberts for Erin Brockovich?!

• Alan Arkin over Eddie Murphy - sure Dreamgirls was overwrought and overlong, but EM's performance was the best thing about it - did they really have to punish him like this because of Norbit?

• Burt Reynolds for Boogie Nights - that would've been a pretty cool award, especially since he was so darn good

• Mickey Rourke for The Wrestler - not so much because he managed to be someone that couldn't be recognized for Mickey Rourke, even after you knew it was he, and not so much 'cuz he deserved to win; but just because the world needed to see and hear the acceptance speech that never was

• No Oscar recognition for Se7en - I guess they did their Lambs thing and were done

• No win for Brad Pitt in Twelve Monkeys either - another oddball role, so again maybe a relatively easy acting mark, but he still was amazing

• No win for Glenn Close ever (to repeat - and they gave one to Julia Roberts for Erin Brockovich)?!

• Pulp Fiction's failure, albeit an understandable failure, to take the top prize; and the failure to nominate Samuel L. therefor, particularly since Travolta got a nomination**

And While We're on the Subject of Oscar Omissions . . .

Here are three we-know-we-omitted-you-too-many-times awards - John Wayne, Martin Scorsese, Paul Newman

And, just for counterpoint, here are three not-so-upsetting results:

• One (and a tough one) they got ever so right - Hackman over Nicholson for Best Supporting Actor in Unforgiven

• Least upsetting (to me) Oscar shutout - The Color Purple (an amusing and seemingly endless procession of unwon nominations)

• Another un-upsetting omission - It's a Wonderful Life (I know people love it, but the omission works for me, that's for sure)

"Other" Versions of Great Songs

Continuing now onto music overlooked, here's a short list of "other" studio versions of great songs by the original artists that may be better than the version you know:

• Page and Plant Unledded - Crazy-good version of Kashmir (listen for Black Dog, too) - may be as good as anything you'll ever hear (and I'm not even a Kashmir (or, for that matter Black Dog) guy)

• Beatles - "Other" version of Revolution (i.e., Revolution 1) (which joins its counterpart, Revolution 9, on the White Album)

• Lynyrd Skynyrd - "Other" version of Free Bird (see also my earlier post referring thereto)

• Eagles - "Other" (reprise) version of Doolin-Dalton/Desperado (which joins its non-reprise counterparts on Desperado)

• Aerosmith - Unheralded live version of Come Together on Live Bootleg

And for Those Who Can't Find Their Ginger Ale . . . (you know who you are)

And, finally, here's an anecdote that leads to a tip for what may be the most unknown ultra-cool soft-drink solution. So we're sitting in a Chinese restaurant and my son asks for ginger ale. In extremely broken English (sounds like the name of a band!), the waiter says that, while they didn't have any out-of-the-bottle ginger ale, he could make ginger ale by mixing Coke/Pepsi**** and Sprite/Sierra Mist. It took us a while even to get to the point where we felt like we know what he was saying, and, once we got to that point, we said we'd try it. Well, broken English and all, he was right. It tasted just . . . and I mean almost exactly . . . like ginger ale - maybe not as good as Canada Dry, but darn good. The trick is that you need to be at about 80%-90% Sprite/Sierra Mist. (And then, if you're doing this yourself with cans o' soda, you even wind up with a second glass of Coke/Pepsi!) One of the really cool things about this is that by using diet components you can easily generate diet ginger ale, which isn't that easy to find in restaurants. It really works - try it. And thank my kind Asian waiter when you do.*****

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* But, just the same, thanks to Justin.tv and Sky Movies for making the broadcast available!

** "Craw" - not to be confused with the mispronunciation made famous on TV's Get Smart.

*** How funny is it that Samuel L. Jackson is credited as "Black Guy" is Sea of Love? Another funny credit (also with a Samuel L. connection, albeit an attenuated one), which manages to reach back and put a funny spin on the movie scene to which it relates, is Kathy Griffin as "herself" in Pulp Fiction. So I guess that's really Kathy, not some character being played thereby, dealing with the whole Ving Rhames/Bruce Willis car accident. Hilarious.

**** Clips of SNL's "no-Coke, Pepsi" skits in my head.

***** By the way, I am aware that the homemade ginger-ale trick is a known thing (in that it's true, I wouldn't call it an urban legend), as opposed to information you can only get here - but I had not been aware of it, so I'm thinkin' maybe you weren't either.