17-3518
Jander v. International
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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August Term, 2019
(Argued: September 7, 2018 Decided: December 10, 2018
Vacated: January 14, 2020 Reinstated: June 22, 2020)
Docket No. 17-3518
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LARRY W. JANDER, and all other individuals similarly situated,
RICHARD J. WAKSMAN,
Plaintiffs-Appellants,
—v.—
RETIREMENT PLANS COMMITTEE OF IBM, RICHARD CARROLL,
ROBERT WEBER, MARTIN SCHROETER,
Defendants-Appellees,
INTERNATIONAL BUSINESS MACHINES CORPORATION,
Defendant.
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B e f o r e:
KATZMANN, Chief Judge, SACK AND RAGGI, Circuit Judges.
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The judgment entered pursuant to our initial opinion in this appeal, see 910
F.3d 620 (2d Cir. 2018), was vacated by the Supreme Court and remanded for
further consideration. We reinstate the judgment.
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Samuel E. Bonderoff, Jacob H. Zamansky, James Ostaszewski,
Zamansky LLC, New York, NY, for Plaintiffs-Appellants.
Paul D. Clement, George W. Hicks, Jr., C. Harker Rhodes IV,
Kirkland & Ellis LLP, Washington, DC; Lawrence Portnoy,
Michael S. Flynn, David B. Toscano, Zachary A. Kaufman,
Davis Polk & Wardwell LLP, New York, NY, for
Defendants-Appellees.
Kate O’Scannlain, Solicitor of Labor, G. William Scott, Associate
Solicitor for Plan Benefits Security, Thomas Tso, Counsel for
Appellate and Special Litigation, Eirik Cheverud, Trial
Attorney, U.S. Department of Labor, Washington, DC, for
Amicus Curiae U.S. Secretary of Labor.
Michael A. Conley, Solicitor, David D. Lisitza, Senior Litigation
Counsel, Securities and Exchange Commission, Washington,
DC, for Amicus Curiae Securities and Exchange Commission.
Nicole A. Saharsky, Brian D. Netter, Mayer Brown LLP,
Washington, DC; Nancy G. Ross, Mayer Brown LLP, Chicago,
IL, for Amici Curiae the Chamber of Commerce of the United States
of America, the Securities Industry and Financial Markets
Association, the ERISA Industry Committee, and the American
Benefits Council in Support of Defendants-Appellees.
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PER CURIAM:
In this case, plaintiffs, participants in IBM’s employee stock option plan,
allege that the plan’s fiduciaries breached their duty of prudence under the
Employee Retirement Income Security Act of 1974 (“ERISA”). The district court
granted defendants’ motion to dismiss, Jander v. Ret. Plans Comm. of IBM, 272 F.
Supp. 3d 444 (S.D.N.Y. 2017), and this Court reversed and remanded, Jander v.
Ret. Plans Comm. of IBM, 910 F.3d 620 (2d Cir. 2018). The Supreme Court then
granted defendants’ petition for certiorari, Ret. Plans Comm. of IBM v. Jander, 139
S. Ct. 2667 (2019) (mem.), which presented the question whether a plaintiff can
state a duty-of-prudence claim based on “generalized allegations that the harm
of an inevitable disclosure of an alleged fraud generally increases over time,”
Petition for Writ of Certiorari at i, Ret. Plans Comm. of IBM v. Jander, 140 S. Ct. 592
(2020) (No. 18-1165). The Supreme Court also granted the government’s motion
to participate in oral argument as an amicus curiae in support of neither party, so
that it could present the views of the Department of Labor and the Securities and
Exchange Commission. Ret. Plans Comm. of IBM v. Jander, 140 S. Ct. 398 (2019)
(mem.).
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After hearing oral argument, the Supreme Court vacated the judgment of
this Court and remanded for further proceedings. See Ret. Plans Comm. of IBM v.
Jander, 140 S. Ct. 592, 595 (2020) (per curiam). In its opinion, the Supreme Court
explained that defendants’ and the government’s post-certiorari arguments
primarily addressed matters that fell beyond the question presented to the
Supreme Court, and that had not been raised before this Court. So that this Court
could “have an opportunity to decide whether to entertain these arguments in
the first instance,” the Supreme Court “le[ft] it to the Second Circuit whether to
determine their merits, taking such action as it deems appropriate.” Id.
On remand, we invited the parties to submit supplemental briefs
regarding the appropriate disposition of this appeal, including whether we
should consider any arguments not previously raised before this Court. We also
invited the government to submit a supplemental brief as an amicus curiae. The
parties and the government have now submitted supplemental briefs, as have
amici curiae the Chamber of Commerce of the United States of America, the
Securities Industry and Financial Markets Association, the ERISA Industry
Committee, and the American Benefits Council.
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Having reviewed the submissions from the parties and amici, we now
reinstate the judgment entered pursuant to our initial opinion. The arguments
raised in the supplemental briefs either were previously considered by this Court
or were not properly raised. To the extent that the arguments were previously
considered, we will not revisit them. To the extent that they were not properly
raised, they have been forfeited, and we decline to entertain them. See Norton v.
Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the
briefs . . . normally will not be addressed on appeal.”). Accordingly, the
judgment of the district court is reversed, and the case is remanded for further
proceedings consistent with our initial opinion.
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