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Clark v. Feder Semo and Bard

July 16, 2009

DENISE M. CLARK, PLAINTIFF/COUNTER-DEFENDANT,
v.
FEDER SEMO AND BARD, P.C., ET AL., DEFENDANTS/COUNTER-CLAIMANTS
DENISE M. CLARK, THIRD-PARTY PLAINTIFF,
v.
MUCH SHELIST DENENBERG AMENT & RUBENSTEIN, P.C., ET AL., THIRD-PARTY DEFENDANTS



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Denise Clark initiated this action against Feder, Semo and Bard, P.C. ("Feder Semo"), the Feder Semo retirement plan ("retirement plan" or "plan"), and plan trustees Joseph E. Semo and Howard M. Bard (collectively "defendants"). Clark asserts Employee Retirement Income Security Act ("ERISA") violations against defendants that allegedly led to the underfunding of the plan and resulted in a significant reduction of the present value of her retirement benefits. Near the end of discovery, defendants filed a counterclaim against Clark for contribution and indemnity under ERISA and federal common law. In response to the counterclaim, Clark filed a third-party complaint against Much Shelist Denenberg Ament & Rubenstein, P.C. ("Much Shelist") and Pension Advisory Fund, Ltd., or Pension Advisory Group ("PAF") (together "third-party defendants"). Clark asserts claims for violations of ERISA and professional malpractice against third-party defendants. Currently before the Court are motions to dismiss filed by Much Shelist and PAF. For the reasons discussed below, both motions will be granted.

BACKGROUND

Beginning in 1993, Clark worked as an attorney for Feder Semo in the District of Columbia. Third-Party Compl. ¶ 4. She was managing partner of the firm from October 2000 until May 2002, and left the firm on July 31, 2002. Id. Clark is a participant in the retirement plan and Feder Semo is the sponsor and administrator of the plan. Id. ¶¶ 4-5. In September 2005, after Feder Semo's largest client filed a professional malpractice suit against the firm, the retirement plan was terminated. Id. ¶¶ 12-13. At that time, Clark contends that the plan was underfunded by more than $1.1 million. Id. ¶ 13. The participants of the retirement plan, including Clark, allegedly received 53% of the present value of their retirement benefits. Id.

Clark contends that "wrong" and "unreasonable" advice from Much Shelist and PAF led to the plan's underfunding. See id. ¶¶ 22, 27, 32, 43-44. Much Shelist is a Chicago-based law firm that Feder Semo hired in or around the early 1990s to provide legal services related to the retirement plan. Id. ¶ 8. William N. Anspach, Jr. was the principal attorney from Much Shelist who provided these services. Id. ¶ 10. PAF is an actuarial consulting firm based in Vernon Hills, Illinois that Feder Semo hired around 2000 to provide actuarial services related to the retirement plan. Id. ¶ 9. Dennis Reddington was the only actuary from PAF who provided these services. Id. ¶ 10.

At the end of 2001, Gerald Feder, the founder and principal owner of Feder Semo, retired from active employment with the firm. Id. ¶ 11. Clark alleges that after Feder's retirement, Much Shelist and PAF gave Feder Semo "wrong" advice regarding lump sum distributions it made from the retirement plan to Mr. Feder and his wife, Loretta Feder. Id. ¶¶ 22, 27, 32. Clark asserts that on April 1, 2002, a lump sum distribution of $779,082 was made from the retirement plan to Mr. Feder. Id. ¶ 21. She contends that the distribution was made in reliance on advice from Much Shelist and PAF that was "wrong" because the plan was underfunded and thus, under Treasury regulations, distributions from the plan should have been restricted. Id. ¶ 22. Next, Clark alleges that on December 30, 2002, a lump sum distribution of $381,901 was made from the retirement plan to Mrs. Feder. Id. ¶ 26. She contends that this distribution was made in reliance on Much Shelist's and PAF's advice, which was incorrect because it left the retirement plan underfunded in violation of Treasury regulations. Id. ¶¶ 25, 27. Finally, in November 2005, Mr. Feder received another distribution, this time of $229,949. Id. ¶ 31. Clark alleges that this distribution, again made in reliance on Much Shelist's and PAF's advice, violated Treasury regulations because it gave Mr. and Mrs. Feder disproportionate benefits compared to other participants in the retirement plan. Id. ¶¶ 31, 32. Nonetheless, Clark contends that Much Shelist and PAF represented that their advice regarding these distributions complied with Treasury regulations. Id. ¶ 33.

Reddington of PAF allegedly advised Feder Semo shareholders on March 3, 2003 that the retirement plan was "significantly underfunded." Id. ¶ 35. Clark contends that on November 4, 2003, Reddington informed Feder Semo's office manager and Anspach that the retirement plan was "very underfunded on a payout basis." Id. ¶ 36. Nevertheless, PAF allegedly did not change the plan's actuarial assumptions or funding requirements to address this issue. Id. ¶ 38. Hence, according to Clark, both PAF's retirement age and interest rate assumptions were unreasonable and contributed to the underfunding of the plan. Id. ¶¶ 43-44. Clark also contends that PAF continued to represent that "the actuarial assumptions and methods used to value the plan [were] reasonable" and represented the firm's "best estimate." Id. ¶¶ 39-40. Moreover, she asserts that although Anspach wrote an article recognizing that the type of interest rate assumptions used for the retirement plan could cause underfunding, he advised Feder Semo that the plan's interest rate assumptions were adequate. Id. ¶ 45.

According to Clark, in or around 2003, PAF determined that a pension classification mistake had caused her retirement benefits to be understated. Id. ¶ 50. PAF allegedly did not correct this mistake, nor did it act to make up the plan's minimum funding shortfall. Id. ¶ 52. Clark contends, then, that on November 16, 2005 -- despite his knowledge that her benefits were miscalculated -- Anspach approved the distribution of the retirement plan's assets to all participants. Id. ¶ 53. Shortly thereafter, on December 14, 2005, Clark allegedly received a letter from Anspach that led her to believe, mistakenly, that her benefits had been corrected. Id. ¶ 54. Clark also claims that on June 30, 2006, PAF incorrectly attested that her benefits were accurately stated. Id. ¶ 55.

On March 13, 2007, Clark initiated this action against defendants. Clark subsequently filed an amended complaint on June 1, 2007 and a second amended complaint on May 28, 2008. Clark alleges that defendants violated ERISA by reducing or eliminating her accrued benefits under the retirement plan, failing to disclose the retirement plan's lack of insurance, and breaching their fiduciary duties. On February 25, 2009, defendants filed a counterclaim against Clark for contribution and indemnity under ERISA and federal common law. Am. Answer & Countercl. at 9. The counterclaim alleges that Clark was a fiduciary of the retirement plan for a period of time, during which she oversaw and approved the distribution of Mr. Feder's lump sum payment of approximately $780,000. Id. ¶¶ 43-44. According to counterclaimants, then, Clark was responsible for any breach or violation related to this distribution. Id. ¶¶ 47-49.

On March 30, 2009, in response to the counterclaim, Clark filed a third-party complaint against Much Shelist and PAF asserting claims for violations of ERISA and professional malpractice and seeking indemnification from third-party defendants.*fn1 On May 12, 2009, Much Shelist filed a motion to dismiss the third-party complaint and less than a week later PAF followed suit, filing its own motion to dismiss.*fn2

LEGAL STANDARD

All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); Atherton v. District of Columbia Office of the Mayor, --- F.3d ---, 2009 WL 1515373, at *6 (D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. This amounts to a "two-pronged approach" under which a court first identifies the factual allegations entitled to an assumption of truth and then determines "whether they plausibly give rise to an entitlement to relief." Id. at 1950-51.

The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979); see also Erickson, 551 U.S. at 94 (citing Twombly, 550 U.S. at 555-56). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept "a legal conclusion couched as a factual allegation," or "naked assertions [of unlawful misconduct] devoid of ...


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