In a class action suit against Schering-Plough Corporation and certain of its officers and directors under ERISA section 502(a)(2) arising out of the offering and management of an ERISA plan, district court's conclusion that a release signed by plaintiff-class representative in connection with her separation from the corporation violated ERISA and was therefore void, and an order certifying the class, is vacated and remanded where: 1) ERISA section 410(a) does not render plaintiff's individual release and covenant not to sue void against public policy, and the effect of her release, therefore, must be considered as the section extends only to contractual or other devices that purports to alter the statutory obligations of a fiduciary under ERISA, and not to reach a release of claims signed by an individual claiming the breach of a fiduciary duty; 2) plaintiff's release does not bar her from bringing the section 502(a)(2) claim on behalf of the Plan; 3) the district court must give further consideration to the interests of the members of the class, and the impact of the release and covenant not to sue, as bearing on plaintiff's ability to be an adequate class representative; and 4) district court erred in granting an open-ended class period.
Read In Re: Schering Plough Corp. ERISA Litig. , No. 08-4814
On Appeal from the United States District Court for the District of New Jersey
Opinion Filed December 21, 2009
Before: Rendell and Ambro, Circuit Judges, and McVerry, District Judge
Opinion by Circuit Judge Rendell
For Appellant: Eric C. Bossett, Covington & Burling; Douglas S. Eakeley, Lowenstein Sandler
For Appellee: Peter H. LeVan, Jr. Barroway Topaz Kessler Meltzer & Check