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December 30, 1983
DISTRICT 65, UAW, et al., Plaintiffs, against HARPER & ROW PUBLISHERS, INC., et al., Defendants; RAYMOND C. HARWOOD, et al., Plaintiffs, against HARPER & ROW, PUBLISHERS, INC. et al., Defendants.
These two actions arise primarily from a transaction finalized on December 9, 1981 in which Harper & Row, Publishers, Inc. ("Harper & Row") terminated its Retirement Plan, liquidated the fund and recaptured the excess contributions in order to purchase approximately one-third of the outstanding shares of Harper & Row stock from defendant Minneapolis Star & Tribune Company ("MST") after being notified by MST that it intended to sell the stock. The plaintiffs in the first action ("District 65 action") include District 65 of the United Auto Workers Union ("District 65") which represents approximately 15 percent of Harper & Row's employees and Renee Cafiero and William Monroe who are Harper & Row employees and participants of the employee benefit plans. The second action ("Harwood action") was commenced by Raymond Harwood, a stockholder, former president of Harper & Row and participant in the Retirement Plan. The two other plaintiffs in the Harwood action, Carolyn Reed and Glen Howard, were formerly associated with Harper & Row and are participants in the Retirement Plans. The defendants in both actions are the same with three exceptions. The defendants in common include Harper & Row, MST, and directors on the Board of Directors of Harper & Row.
Two of the MST defendants in both actions are John Cowles, Jr. and Otto A. Silha who were directors of Harper & Row between February 1, 1981 and July 28, 1981.During this time, they were also directors of MST. Fred A. Taylor, a defendant in the Harwood action, was a director of Harper & Row until August 31, 1981.
Defendants Harper & Row and MST move to dismiss and move for summary judgment in both actions. Defendants Prudential Insurance Company of America ("Prudential") moves alternatively to dismiss and for summary judgment in the District 65 action. The Pension Benefit Guaranty Corporation ("PBGC") moves to dismiss the District 65 Complaint. Defendant Fred Taylor moves alternatively to dismiss and for summary judgment in the Harwood action. Plaintiff UAW moves for summary judgment on its complaint. Additionaly, there are several miscellaneous motions pending that concern discovery, amendments to complaints, and class claims.
In February 1981, MST notified Harper & Row that it intended to dispose of its entire position in Harper & Row which consisted of 1,017,630 shares of stock. The MST holdings represented one-third of the outstanding shares of Harper & Row stock. After learning of MST's decision to sell its shares of Harper & Row stock, a committee of outside directors was formed by Harper & Row to review the possibility of purchasing the stock from MST.
The Board of Directors of Harper & Row engaged Kidder, Peabody & Co. ("Kidder, Peabody"), an investment banking firm, to render a financial opinion regarding the feasability of purchasing the MST shares.
Harper & Row planned to finance the stock purchase in part by terminating the Harper & Row Publishers, Inc. Retirement Plan.
After purchasing annuities to provide for the present value of accrued benefits for all employoees covered by the Retirement Plan, Harper & Row anticipated an excess fund of $10.2 million. The balance of the purchase price was to be financed from the sale of real property ($5 million), the purchase of Harper & Row stock by the Harper & Row employee profit-sharing plan ($2 million) and loans $3.1 million). See Letter from Norman L. Cannon, Vice President and Treasurer, Harper & Row, to MST (September 15, 1981) (Plaintiff District 65 Exh. 9).
Harper & Row thereafter commenced negotiations with MST in July 1981 for the purchase of the shares held by MST and in August 1981 a tentative agreement was reached. In August, the Harper & Row stockholders, current employees and retireees were notified about the tentative agreement and a notice of intent to terminate the Retirement Plan was filed with the PBGC. Harper & Row also applied to the Internal Revenue Service ("IRS") for a determination that the termination of the Retirement Plan would not adversely affect its qualified status under the Internal Revenue Code.
On November 6, 1981, the PBGC issued a Notice of Sufficiency pursuant to Employee Retirement Income Security Act ("ERISA") § 4041(b), 29 U.S.C. § 1341(b), which stated that the assets of the Plan would be sufficient to satisfy all obligations concerning guaranteed benefits. Affidavit of Edward A. Miller ("Miller Affidavit"), Exh. J. On November 20, 1981, the IRS issued a determination letter finding that the termination of the Retirement Plan "does not adversely affect its qualification for Federal tax purposes." Miller Affidavit, Exh. K. The Retirement Plan was terminated effective August 31, 1981. In an agreement dated September 15, 1981, Harper & Row agreed to purchase the 1,017,630 shares of stock at the price of $20 per share.On the same day the Board of Directors held a regular quarterly meeting. At the meeting, the resignations of Directors John Cowles, Jr., Otto A. Silha, and Fred A. Taylor were recorded. The Board also ratified the Plan to purchase the MST shares and the proposed financing of that purchase.
On September 15, 1981, Kidder, Peabody submitted its opinion to Harper & Row in which it stated that "(i) the purchase is an action that the Company can reasonably take without materially and adversely affecting its financial ability to carry out its present plans, and (ii) the Purchase Price represents a fair value for the Shares." Miller AFfidavit, Exh. F. On October 7, 1981 the Board of Directors held a special meeting to review the purchase plan and the dissemination of information to shareholders concerning the proposed changes in the employee benefit plans. See Miller Affidavit, Exh. G. On December 9, 1981, the Harper & Row shareholders approved the proposed transactions at its annual meeting. To fund the benefits accrued in the Plan, Harper & Row entered into a contract with Prudential to purchase annuities for the present value of the accrued benefits for those members in the Plan whose accrued benefits had a present value of at least $1,000 and to pay lump-sum amounts to the other participants. The arrangement with Prudential was later amended and those participants with an accrued present value of between $250 and $1,000 could opt to either receive a lump-sum payment or an annuity. As a result of this transaction, approximately $9 million was recaptured by Harper & Row after the retirement fund was liquidated.
Two other transactions are challenged by plaintiffs. Harper & Row's Profit-Sharing Plan purchased 152,588 of the 1,017,633 shares from Harper & Row for approximately $11-5/8 per share for a total of $1.8 million. This purchase occurred after the Profit-Sharing Plan was amended to allow an investment of up to $2 million, but not more than one-half of the Plan assets, in Harper & Row shares.
The amended Profit-Sharing Plan provided that the price was to be determined by the average of the bid and asked quotation for Harper & Row shares reported in the over-the-counter market at the close of business on the day preceding the purchase. The amendment was approved by the Board of Directors on October 7, 1981 and reviewed again on December 9, 1981. Harper & Row's last transaction relevant to this dispute was the establishment of an Employee Stock Plan by a contribution of 865,045 Harper & Row stocks. The creation of the Employee Stock Plan was approved by the Board on October 7,1981 and approved by the shareholders on December 9, 1981.
The District 65 plaintiffs and the Harwood plaintiffs assert a variety of claims in their complaints arising out of the purchase by Harper & Row of over one million shares of Harper & Row stock held by MST, and the related transactions involving the Retirement Plan, Profit Sharing Plan and Employee Stock Plan. Plaintiffs in both actions allege that defendants' conduct violated ERISA. The District 65 plaintiffs allege in their proposed amended complaint violations of the federal and state securities laws and common law. As preliminary matters, District 65's motion for leave to amend its complaint, the consolidation of the two actions and the class action motions will be discussed.
A. District 65's Motion to Amend Its Complaint
The District 65 complaint was filed on June 3, 1982.A motion was thereafter filed on February 3, 1983 for leave to file an amended complaint. On April 26, 1983 plaintiffs filed a motion to amend the proposed amended complaint to add another subparagraph. Basically, the District 65 plaintiffs seek to add (1) an allegation that there was a breach of ERISA § 404(a)(1)(D), 29 U.S.C. § 1004(a)(1)(D), by the failure of the Trustee of the Profit-Sharing Plan Trust Agreement, Manufacturers Hanover Trust, to exercise independent authority and discretion concerning the purchase of the MST shares;
(2) an allegation that there exists an implied covenant not to terminate the Plan for other than legitimate business reasons and that this covenant was breached; (3) a claim based on common-law fraud; (4) claims under ERISA § 510, 29 U.S.C. § 1140; (5) and allegation of tortious interference with a contract and with existing rights under the retirement and profit-sharing plans; (6) a claim alleging a breach of District 65 collective bargaining agreement with Harper & Row; and (7) an allegation that the Internal Revenue Code § 401 was violated by Harper & Row.
Fed. R. Civ. P. 15(a) provides that leave to file an amended complaint should "be freely given when justice so requires. . . ." Leave to file an amended complaint is therefore granted freely absent bad faith, undue delay or prejudice to the opposing party. See Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962).
Defendant has not argued that it would suffer any prejudice or that the motion to amend is motivated by bad faith. Defendant argues that District 65's motion to amend should be denied because the addition of the "claims for relief would serve no useful purpose whatsoever" and because the proposed claims fail to state a claim upon which relief can be granted. Although the legal sufficiency of the proposed amended complaint may be tested on a motion to amend, I will grant the motion to amend and consider the amended complaint on defendants' motion to dismiss. See Campbell v. A.C. Petersen Farms, Inc., 69 F.R.D. 457, 460 (D. Conn. 1975).
B. Consolidation and Class Action
Defendants Harper & Row and Prudential move for an order dismissing plaintiffs' class claims.
Because both the District 65 and the Harwood actions were instituted as class actions, the possibility of consolidation whould be explored first. Fed. R. Civ. P. 42(a) provides that "[w]hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any and all matters in issue in the actions [or] it may order all the actions consolidated. . . ." Consolidation is a device that promotes judicial economy but does not change the rights of the parties in the separate suits.See Cole v. Schenley Industries, Inc., 563 F.2d 35, 38 (2d Cir. 1977).
The Harwood and District 65 actions are consolidated in order to avoid duplication of discovery. There are questions of law and fact common to both actions and no prejudice to the plaintiffs or defendants would result from the consolidation.See Lloyd v. Industrial Bio-Test Laboratories, Inc., 454 F. Supp. 807, 812 (S.D.N.Y. 1978); Torres v. Sachs, 381 F. Supp. 309, 311 (S.D.N.Y. 1974) (even where defendants are different, consolidation is proper where there are common questions of law and fact). Accordingly, the Harwood and District 65 actions are consolidated.
I turn to the issue of whether the action as consolidated will proceed as a class action.The Harper & Row defendants move to dismiss plaintiffs' class claims in both actions. Prudential moves to dismiss plaintiffs' class claims in the District 65 action. Fed. R. Civ. P. 23(c)(1) which provides that "[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." In order to maintain an action on behalf of a class, the proposed representative must allege that "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). The District 65 plaintiffs allege the above elements but defendants argue only that leave to amend should be denied because plaintiffs failed to make the appropriate motion under the local court rules.
The Court Rules for the District Court in the Southern District of New York provides that the party asserting a class claim "shall move" within 60 days after filing the pleading in which the class claims are asserted. Rule 4(c). Rule 4(d), however, provides that the opposing party shall move within 30 days thereafter to dismiss the action as a class action. In the interests of judicial economy, I find that the absence of a formal motion by plaintiffs is not fatal. Because insufficient information was submitted by the parties, a determination as to class action status is postponed pending the submission by plaintiffs of information concerning the size and composition of the class and the possible methods of notification of such members.
C. Motions to Dismiss/Motions for Summary Judgment
Motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and motions for summary judgment pursuant to Fed. R. Civ. P. 56(b) have been made by several parties including plaintiff District 65 and defendants PBGC, Harper & Row, MST, Prudential, and Taylor.
In considering a motion to dismiss, the complaint should not be dismissed unless it appears that the plaintiffs could "prove no set of facts in support of [their] claim[s] which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 57, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
The standard governing a summary judgment motion is that the motion must be denied when there exists a genuine issue of disputed material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 1970, 26 L. Ed. 2d 142, 90 S. Ct. 1598). The movant has the burden of establishing that there is no disputed material fact and that he is entitled to judgment as a matter of law. Id.
1. District 65's Standing Under ERISA
Defendants move to dismiss the ERISA claims asserted by Districts 65 on the ground that District 65 has no standing.ERISA § 502(a), 29 U.S.C. § 1132(a) provides that an action may be brought by a "participant, beneficiary or fiduciary."
District 65 has no standing under the clear language or ERISA § 502(a) to assert claims under ERISA. District 65 is not a participant, beneficiary or fiduciary. See ERISA § 3(7), (8), (21), 29 U.S.C. § 1002(7), (8), (21). It therefore has failed to state a claim upon which relief can be granted on such claims.
The individual plaintiffs in the District 65 action, however, are proper plaintiffs. Throughout this opinion, any reference to the "District 65 plaintiffs" on the ERISA claims should be read to mean only the individual plaintiffs.
Additionally, District 65 argues that District 65 has standing and the court has jurisdiction with regard to the ERISA claims because it is merely representing its members who do qualify under ERISA § 502(e), 29 U.S.C. § 1132(e). The adoption of this argument would render the explicit language used in ERISA meaningless. Additionally, District 65 represents only a small portion of Harper & Row's employees who are participants or beneficiaries.
In the Harwood actions, two of the plaintiffs, Harwood and Howard, are not "participants, beneficiaries, or fiduciaries" with respect to the Profit-Sharing or Employee Stock Plans. They are therefore dismissed as party plaintiffs on the claims relating to ERISA violations of those two plans.
2. Termination of the Retirement Plan
The Retirement Plan provides for its termination and outlines the procedure by which the benefits are allocated upon termination. Section 9.01 provides that "[w]hile the plan is intended to be permanent, an Employer may terminate or partially terminate the Plan at any time." Miller Affidavit, Exh. I. The Trust Fund may then be liquidated subject to the approval of the PBGC and IRS. Id. § 9.04.
ERISA, § 4041, 29 U.S.C. § 1341 provides that the Plan administrator shall file a notice of termination with the PBGC prior to the effective date of termination. Plaintiffs filed its notice of intent to terminate its Plan effective August 31, 1981.See Plaintiffs' Exh. 10.In accordance with section 4041(b), the PBGC notified Harper & Row that "the assets of th[e] Plan will be sufficient as of your proposed date of distribution to discharge when due all obligations of the Plan with respect to guaranteed benefits." Miller Affidavit, Exh. J.
Acknowledging the right to terminate generally, District 65 Memorandum, at 63, it is asserted that under the circumstances in this case by terminating its Plan, Harper & Row violated ERISA's fiduciary standard contained in sections 403(c)(1) and 404(a)(1)(A)-(D).
The standard of conduct expected of fiduciaries under ERISA is as follows:
Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and --
(A) for the exclusive purpose of:
(i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan;
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims;
(C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and
(D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter or subchapter III of this chapter.
ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1); see Donovan v. Bierwirth, 538 F. Supp. 463, 471 (E.D.N.Y. 1981), aff'd, 680 F.2d 263 (2d Cir. 1982), cert. denied, 459 U.S. 1069, 103 S. Ct. 488, 74 L. Ed. 2d 631 (1983). Section 403(c)(1) of ERISA sets forth an additional fudiciary obligation. It provides that the assets of the Plan "shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries. ERISA § 403(c)(1), 29 U.S.C. § 1103(c)(1).
Plaintiffs assert that the "Harper & Row and the MST defendants . . . entered into a scheme to prevent any third party from obtaining control of Harper & Row." District 65 Complaint, P36; see Harwood Complaint, P28. The "scheme" referred to by plaintiffs consisted mainly of the Retirement Plan termination. Plaintiffs allege that with the exception of PBGC the defendants failed to discharge their duties as fiduciaries of the Retirement Plan, the Profit-Sharing Plan and/or the Employee Stock Plan solely in the interest of the participants and beneficiaries. District 65 Complaint, P78 (ERISA § 404(a)(1)(A)). Further, plaintiffs allege that by allowing the assets of the plans to "inure to the benefit of the employer," the fiduciaries have violated ERISA. District 65 Complaint, P80 (ERISA § 403(c)(1)). Additionally, plaintiffs in both the District 65 and Harwood actions claim that the Plan fiduciaries "failed to discharge their duties with the [same] care, skill, prudence and diligence" as would be exercised by a prudent man. District 65 Complaint, P82; Harwood Complaint, P33 (ERISA § 404(a)(1)(B)).
In opposition to District 65's motion for summary judgment and in support of its own motion, Harper & Row argues that ERISA's fiduciary standard has no application to a decision to terminate its pension plan. For the following reasons, I hold that the decisions to terminate the Retirement Plan is exempt from ERISA's fiduciary standards. The termination provisions in the Plan and ERISA appear to be predicated on the voluntary nature of such plans. For example, section 9.01 of the Plan provides that the Plan can be terminated by Harper & Row at any time. Further, the sections in ERISA dealing with fiduciary obligations contain exceptions when the challenged conduct involves termination. ERISA § 403(c)(1), 29 U.S.C. § 1103(c)(1) states that "[e]xcept as provided in . . . section 1342 and 1344 of this title (relating to termination of insured plans), the assets of a plan shall never inure to the benefit of any employer. . . ." Additionally, ERISA § 404, 29 U.S.C. § 1104 contains the qualification that it is "[s]ubject to sections 1103(c) and (d), 1342, and 1344 of this title." 29 U.S.C. § 1104.
Finally, ERISA § 406, 29 U.S.C.§ 1106, barring the fiduciaries from entering into certain transactions, has no application by reason of the exemptions set forth in ERISA § 408, 29 U.S.C. § 1108. In particular, ERISA § 408(b)(9) states that the prohibited transaction provisions in section 406 are not applicable to the "making by a fiduciary of a distribution of the assets of the plan in accordance with the terms of the plan if such assets are distributed . . . under section 1344. . . ." 29 U.S.C. § 1108(b)(9); see Van Orman v. American Insurance Co., 680 F.2d 301, 313 (3d Cir. 1982) (dicta) (Congress intended the statutory provisions prescribing minimum standards of fiduciary conduct to govern employees' pre-termination rights to the fund's assets, whether surplus or not.) See also Hearings Before U.S. House of Representatives' Select Comm. on Aging (Sept. 28, 1983) (Statements of S. Allen Winborne and Alan D. Lebowitz).
Thus, the District 65 and Harwood plaintiffs erroneously seek to have the fiduciary provisions in ERISA applied to the decision to terminate and the arrangements made as a consequence to that decision. Accordingly, plaintiffs' claims are dismissed for failure to state a cause of action to the extent that a breach of fiduciary duty was alleged to have occurred by reason of Harper & Row's decision to terminate the Retirement Plan.
3. Reversion of Excess Assets to Harper & Row
Plaintiffs allege that a breach of ERISA's minimum standards for fiduciaries occurred when the surplus assets reverted to Harper & Row upon the termination of the Plan. For the following reasons, I find that these claims for breach of fiduciary duty must be dismissed insofar as they relate to Harper & Row's right to recapture the surplus assets. I note, however, that the question concerning how much of the assets are "surplus" and how much should have been paid out to beneficiaries is a separate issue.I turn first to Harper & Row's surplus recapture rights.
The Harper & Row Plan and ERISA explicitly provide for the recapture of surplus assets by the employer after a pension plan has been terminated and accrued benefits have been allocated. See ERISA § 4044, 29 U.S.C. § 1344; Plan § 9.05, Miller Affidavit, Exh. I.
ERISA § 4044(d), 29 U.S.C. § 1344(d)(1), provides that the "[r]esidual assets of a plan may be distributed to the employer if -- (A) all liabilities of the plan to participants and their beneficiaries have been satisfied, (B) the distribution does not contravene any provision of law, and (C) the plan provides for such a distribution in these circumstances."
The first condition requires that the "liabilities of the plan to participants and their beneficiaries have been satisfied." ERISA § 4044(d)(1)(A), 29 U.S.C. § 1344(d)(1)(A). Harper & Row entered into a contract with Prudential under which accrued benefits were paid either in the form of an annuity or a lump-sum payment. The sufficiency of the satisfaction of plan liabilities is challenged by plaintiffs on the ground that the individuals opting for a lump-sum payment and those only entitled to a lump-sum payment received less than they should have as a result of the utilization of a 15 percent interest rate. The interest rate assumed in the computation of the annuities and lump-sum payments will be discussed in the next section.
The second condition is that the distribution of excess assets to Harper & Row does not contravene any provision of law. ERISA § 4044(d)(1)(A), 29 U.S.C. § 1344(d)(1)(A). The recapture of funds by employers who have overfunded plans through actuarial error has been recognized as permissible under ERISA.See Pollock v. Castrovinci, 476 F. Supp. 606, 616 (S.D.N.Y. 1979), aff'd mem., 622 F.2d 575 (2d Cir. 1980); Washington-Baltimore Newspaper Guild Local 35 v. Washington Star Company, 555 F. Supp. 257, 258 (D.D.C. 1983).
The third condition set forth in subdivision (C) of ERISA § 4044(d)(1) is satisfied.Section 9.05 of the Harper & Row Retirement Plan permits a reversion of excess assets to the employer upon the termination of the Plan "if all benefits have been allocated and distributed under this Article and all liabilities of the Plan to affected Members, Former Members and Beneficiaries have been satisfied."
Based on the foregoing, I find that Harper & Row had a right to the surplus assets remaining after the termination of the Plan and distribution of accrued benefits. The amount of a surplus that reverted to Harper & Row, however, is in issue. Plaintiffs contend that Harper & Row reaped a windfall by minimizing the expense of providing the value of the accrued benefits to Plan participants.This issue will be discussed in the next section.
4. Purchase of Annuity Contrct
A bid was solicited from Prudential in August, 1981 for the purchase of annuities covering all accrued benefits under Harper & Row's Retirement Plan.See Plaintiff District 65 Exhs. 14, 18-25; Miller Affidavit, Exh. L. A bid was submitted and a contract was entered into for the purchase of a group annuity contract. Under the contract, as amended, those participants in the plan with an accrued present value of $1,000 or more receive an annuity and those with accrued benefits between $250 and $1,000 have the option of receiving either an annuity or a lump-sum payment.Finally, those members with less than $250 accrued benefits will receive a lump sum amount.
In the District 65 Memorandum it is argued that ERISA was violated because the Plan requires that individual annuity contracts as opposed to a group contract be purchased. Section 9.04 of the Plan provides that the "allocated shares of each affected individual" shall be distributed in the method "to be selected in the cases of each individual being in the complete discretion of the Committee." The two methods listed in section 9.04 include a lump-sum payment or "by the purchase of a non-transferable annuity contract." The purchase of a group contract rather than individual contracts by Harper & Row did not violate ERISA or the terms of the Plan.
The Harwood complaint contains an allegation that Harper & Row used an interest rate of 15 percent per year to calculate the present value of accrued benefits under the Plan in order to deprive plan participants of the actuarial equivalent of his or her accrued benefit. Harwood Complaint, P34. Harwood's argument is that by "choosing an interest rate which was grossly inflated," Harper & Row "minimized the present value of accrued benefits" and maximized the amount of resulting excess assets. Id. Plaintiffs allege also that Harper & Row breached its fiduciary duties by failing to provide to the plan participants information necessary to make an informed decision of whether to select an annuity or lump-sum payment. Harwood Complaint, PP36-37. District 65 alleges substantially the same facts and presents the same arguments in its amended complaint. See District 65 Complaint, PP43-58.
Thus, plaintiffs in both actions argue that because a 15 percent interest rate assumption was used to calculate the lump-sum payments for those participants with accrued benefits under the $250 threshold or for those in the middle range who opted for the lump-sum payment, the lump-sum received by those participants was unreasonably small. Plaintiffs allege that the use of a 15 percent interest rate by Harper & Row was unfair to plan participants because they "could not be expected to earn more than about 7 percent, on a long-term basis, on the relatively small amounts paid to them in the form of lump sums." District 65 Complaint, P47.
There are several issues of fact that preclude the granting of the defendants' motions for summary judgment and dismissal on these claims.See Jaroslawicz v. Seedman, 528 F.2d 727, 731 (2d Cir. 1975). First, although those participants with accrued benefits between $250 and $1,000 had the option of selecting an annuity based on the 15 percent interest rate or a lump-sum payment, it appears that the information supplied to the Plan participants may have been insufficient to enable them to make an informed decision. Harper & Row released memorandums on January 14, 1982 and April 16, 1982 to all of its employees outlining the relative benefits of annuities and lump-sum payments but failed to disclose the 15 percent interest rate assumption. See Miller Affidavit, Exhs. M, N.
Second, an issue of fact exists as to whether the rate of 15 percent was reasonable in light of the market conditions prevailing at the time that the Prudential contract was entered into. Into a memorandum to the Retirement Plan Committee dated August 29, 1978, several indices for the determination of the interest rate were explored. Plaintiff District 65 Exh. 25.For example, the interest rates used in Moody's AAA Bond Index (8.6 percent in 1976) and by PBGC (6 percent) were suggested.Id. The reasons for the rejection by defendants of these lower rates is unclear. The PBGC regulations require that "reasonable actuarial assumptions as to interest and mortality" be used in the valuation of accrued benefits. 29 C.F.R. § 2619.26(b). The PBGC regulations provide that several interest rate assumptions, including "[t]he rate used by the insurer in the qualifying bid under which the plan administrator will purchase annuities not being paid as a lump sum" are "among those that will normally be considered reasonable." 29 C.F.R. § 2619.26(c)(2). Here, only one bid was solicited.Prudential's quotation, therefore, is only one factor which may be of limited usefulness to be used in determining the reasonableness of a 15 percent interst rate assumption. Defendants' motions to dismiss, and for summary judgment on plaintiffs' claims concerning the Prudential contract are denied.
5. Amendment to Profit-Sharing Plan
On October 7, 1981, the Board of Directors approved the amendment of Harper & Row's Profit-Sharing Plan. See Miller Affidavit, Exh. G.The amendments provide for the investment of up to $2 milliion in Harper & Row shares, not to exceed one-half of the Plan assets. Miller Affidavit, PP24-25. On December 9, 1981 the Profit-Sharing Plan purchased 152,588 shares from Harper & Row for $1.8 million ($11-5/8 per share). Id. P24. The District 65 complaint alleges that the Board of Directors did not act in the interest of Plan participants and beneficiaries in amending the Profit-Sharing Plan and acted instead to protect its position in the Harper & Row management. District 65 Complaint, P66; Harwood complaint, P33. Plaintiffs allege further that defendants failed to investigate alternative investments and that the purchase of Harper & Row stock was an imprudent investment that resulted in a loss of $250,000. Id. P68. The Harwood plaintiffs claim that the stock purchase violates the ERISA's prohibited transaction fiduciary standard provisions. Harwood Complaint, P57. See ERISA § 406(A)(1)(D), 406(b), 29 U.S.C. § 1106(a)(1)(D), 1106(b).
I find these claims pertaining to the amendment of the Profit-Sharing Plan untenable in light of terms of the Plan and ERISA. The amendment of the Harper & Row Profit-Sharing Plan was in accordance with section 9.01 of the Profit-Sharing Plan which provides that the "Board of Directors may amend the Plan at any time and from time to time. . . ." See Plaintiff District 65 Exh. 3. Moreover, the purchase by the Plan of Harper & Row stock held by MST did not violate any provision of ERISA. ERISA § 408(e) provides that sections 406
and 407,
29 U.S.C. §§ 1106 and 1107, do not apply to "the acquisition or sale by a plan of qualifying employer securities . . . (3) if -- (A) the plan is an eligible individual account plan." 29 U.S.C. § 1108(e). The definition of an "eligible individual account plan" under ERISA includes "(i) a profit-sharing, stock bonus, thrift or savings plan; (ii) an employee stock ownership plan" but excludes individual retirement plans. ERISA § 407(d)(3)(A), 29 U.S.C. § 1107(d)(3)(A). Harper & Row's Profit-Sharing Plan falls within the definition of an "eligible individual account plan" and is therefore not subject to the prohibited transactions sections.
Further, plaintiffs' claims under ERISA § 404(a)(B) and (C), 29 U.S.C. § 1104(a)(1)(B) and (C)
are dismissed as those sections are made inapplicable to profit-sharing plans by ERISA § 404(a)(2), 29 U.S.C. § 1104(a)(2). ERISA § 404(a)(2) provides that "[i]n the case of an eligible individual account plan . . ., the diversification requirement of paragraph (1)(C) and the prudence requirement . . . of paragraph (1)(B) is not violated. . . ." 29 U.S.C. § 1104(a)(2).
Similarly plaintiffs breach of fiduciary duty claims under sections 404(a)(1)(A) and (D)
are without merit. The fact that the purchase by the Profit-Sharing Plan of the Harper & Row stock also benefited Harper & Row does not necessarily result in a violation of the fiduciary standards or "exclusive purpose" provisions under ERISA. See Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir. 1982), cert. denied, 459 U.S. 1069, 103 S. Ct. 488, 74 L. Ed. 2d 631 (1983). Further, the Plan was amended in accordance with the terms of the Plan.
Accordingly, pursuant to Fed. R. Civ. P. 12(b)(6), defendants' motions to dismiss plaintiffs' claims concerning the Profit-Sharing Plan are granted. Claims I-IV in District 65's amended complaint and claims I-III, IX in the Harwood complaint insofar as they relate to the Profit-Sharing Plan purchase are therefore dismissed.
6. Employee Stock Plan
On October 7, 1981, Harper & Row's Board of Directors approved the adoption of the Employee Stock Bonus Plan. The Stock Plan was "created to serve as a vehicle for indirect employee ownership" of the 865,045 shares of Harper & Row stock purchased from MST. Miller Affidavit, P34. The shareholders approved the stock plan and the MST purchase on December 9, 1981. The Harwood and District 65 plaintiffs claim that the defendants breached their fiduciary duties under sections 407(a)(2) and 406(b) by establishing a stock plan that was not approved under the Internal Revenue Code because more than 10 percent of the Plan assets consisted of the employer's stock. District 65 Complaint Claims I-III, VI; Harwood Claims I-III, VI, IX.
ERISA § 407(a)(2), 29 U.S.C. § 1107(a)(2) limits the amount of employoer securuties held by the Plan to 10 percent of the total Plan assets. This limitation, allegedly violated by the Stock Plan, is subject to an exemption for "eligible individual account plans." ERISA § 407(b)(1), 29 U.S.C. § 1107(b)(1). Plaintiffs argue that although the employee stock ownership plan ("ESOP") qualifies as an "eligible individual account plan," it must also qualify under section 401 of the Internal Revenue Code. See ERISA § 407(d)(3), (6), 29 U.S.C. § 1107(d)(3), (6). An ESOP is defined under ERISA § 407(d)(6) as being "an individual account plan -- (A) which is a stock bonus plan which is qualified . . . under section 401 of Title 26. . . ." 29 U.S.C. § 1107(d)(6). Donovan v. Cunningham, 52 U.S.L.W. 2283 (5th Cir. Oct. 17, 1983), defined an ESOP as an employee benefit plan "designed to invest primarily in securities issued by its sponsoring company." Id. It is only one of the types of plans listed under the definition of "eligible individual account plan." See ERISA § 407(d)(3), 29 U.S.C. § 1107(d)(3).The first two of the three categories are "(i) a profit-sharing, stock bonus, thrift or savings plan; (ii) an employee stock ownership plan.
Plaintiffs argue that summary judgment must be denied because an issue of fact exists concerning whether the Employee Stock Plan would qualify under IRC § 401. In addition, plaintiffs allege that the Employee Stock Plan was created for the purpose of ensuring defendants' continued control over Harper & Row, and thus the "exclusive benefit" rule established by section 401 and income tax regulations, see, e.g., Treas.Reg.§ 1.401-1(a)(3)(ii) (1956), has not been complied with by defendants. Plaintiffs also challenge defendants' compliance with the Regulations' assumption that "plan" implies some measure of permanence and regularity. See Treas. Reg. 1.401-1(b)(2)(1956). Defendant Harper & Row argues that the Employee Stock Plan is not an ESOP and does not therefore have to be tax qualified under the IRC § 401.
The parties' submissions, unfortunately, do not resolve the issue of whether Harper & Row's stock plan is an ESOP that must qualify under the IRC. Accordingly, summary judgment must be denied.
Assuming the factual issues are resolved, plaintiffs must establish a causal connection between the alleged breach of fiduciary duty and the losses incurred under ERISA. See Brandt v. Grounds, 687 F.2d 895, 898 (7th Cir. 1982). Although plaintiffs have inadequately alleged injury resulting from the creation of the Stock Plan, and have failed to provide sufficient facts on the nature of the Plan, I cannot say that plaintiffs can "prove no set of facts in support of [their] claim" entitling them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Defendants' motions to dismiss is accordingly denied without prejudice to renewal on a full showing.
D. Liability of Certain Defendants
Motions to dismiss and for summary judgment have been made by defendants MST, Cowles, Silha, Taylor, PBGC, and Prudential.
1. MST Defendants
ERISA § 3(21)(A), 29 U.S.C.§ 1002(21)(A) provides that an individual is a fiduciary to the extent
(i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. Such term includes any person designated under section 1105(c)(1)(B) of this title.
In support of its motion to dismiss, MST argues that its one-third ownership interest in Harper & Row prior to the September sale did not confer authority or control over Plan administration and assets to render MST a fiduciary within the definition of ERISA.
MST will incur liability as a fiduciary only to the extent that it exercised or had discretionary control over the employee benefit plans. The two possible avenues of control by MST are through its directors and through its shareholdings. MST as a shareholder could exercise control over the plans. However, although it voted on the actions concerning the plans at the annual shareholders' meeting on December 9, 1981, its vote had no impact because its shares were voted in proportion to the vote by all other shares voted at that meeting.
MST could exercise control over the employee benefit plans through two of its directors, Cowles and Silha, who were also directors of Harper & Row. A corporation is liable for the acts of its officers and directors committed in furtherance of the business of the corporation and in the scope of their employment. See, e.g., United States v. Uniroyal, Inc., 300 F. Supp. 84, 95 (S.D.N.Y. 1969). Because Cowles and Silha will remain as defendants for the reasons that follow, MST must also remain a defendant.
Defendants Cowles and Silha move to dismiss and for summary judgment on the basis that they are free from liability under ERISA because the termination of the pension plan was effective after they had resigned as directors. Plaintiffs assert that the Harper & Row and MST defendants acted "jointly" or that the MST defendants "knew" of or "acquiesced" to the actions of the Harper & Row defendants. See, e.g., District 65 Complaint, PP37, 62, 72; Harwood Complaint, at p. 24. MST, Cowles, and Silha join in the arguments advanced by Harper & Row in favor of the dismissal of plaintiffs' complaints in their entirety. Defendants argue alternatively that the complaints should be dismissed at least against Cowles, Silha, and MST.
Defendants Cowles and Silha argue that during the time they were on the Board of Directors of both MST and Harper & Row, they disassociated themselves from the Harper & Row Board of Directors in all discussions that related to the MST purchase. Further, Cowles and Silha assert that because they resigned on July 28, 1981 before the actual purchase of the MST shares by a contract dated September 15, 1981, any fiduciary obligations owed by Cowles and Silha ceased on that date.
Cowles and Silha would not be liable as fiduciaries for a breach of fiduciary duty occuring after they resigned as Harper & Row Directors in July 1981. ERISA § 409(b), 29 U.S.C. § 1109(b) provides in part that "[n]o fiduciary shall be liable with respect to a breach of fiduciary duty . . . if such breach was committed before he became a fiduciary or after he ceased to be a fiduciary." Although the contract for the sale of the MST shares was executed after Cowles and Silha submitted resignations, plaintiffs have submitted exhibits indicating that Cowles and Silha were aware of, and parties to discussions concerning the proposed financing of the MST discussions concerning the proposed financing of the MST purchase prior to their resignations. In a memorandum dated June 19, 1981 from Harper & Row's Brooks Thomas to Cowles and Silha, an earlier oral presentation to Cowles and Silha of the potential MST purchase was summarized. See Plaintiff District 65 Exh. 6. The proof may show that the defendants Cowles and Silha, before their resignations, set in motion the forces which caused the actual damage of which the plaintiffs complain. Thus, issues of fact exist as to when the breach, if any, occurred.
Cowles and Silva also argue that they are not fiduciaries within the meaning of ERISA. It is unclear, however, whether they exercised insufficient or any discretionary authority or control over the employee plans while they were still Harper & Row Directors. In addition, if they are shown to be fiduciaries Cowles or Silha may be liable for the other fiduciary's breach under section 405(a)(3). 29 U.S.C. § 1105(a)(3). Their motion to dismiss, as well as MST's, is therefore denied.
Fred A. Taylor was named as a defendant in the Harwood action.Taylor was a director of Harper & Row until August 31, 1981 and a member of the Commission of Outside Directors appointed to review the advisability of Harper & Row's activities.Taylor moves to dismiss and for summary judgment on the ground that he was no longer a director of Harper & Row at the time of the September agreement or its approval by the Board in October. Plaintiffs argue that Taylor is liable for a breach of fiduciary duty relating to the events preceding his resignation. Plaintiffs argue also that Taylor is liable for failing to adequately provide for the continued management of the employee benefit plans after his resignation.For the same reasons that applied to the motions pertaining to Cowles and Silha, Taylor's motion to dismiss and for summary judgment is denied.
PBGC moves to dismiss the District 65 complaint. In December 1981, the PBGC issued a Notice of Sufficiency to Harper & Row pursuant to ERISA § 4041(a), 29 U.S.C. § 1341(a), thereby authorizing the Plan termination to go forward.Plaintiffs allege that the issuance of the Notice of Sufficiency was improper because it was issued without a determination by PBGC that the Prudential offer was based on a reasonable interest rate or that participants would receive the true value of their accrued benefits. District 65 Complaint P98. District 65 stated in its Complaint that "[t]hrough correspondence and protests from participants and beneficiaries of the Retirement Plan, and other information in its possession, PBGC knew, or should have known, that the termination . . . was part of a fraudulent scheme. . . ." District 65 Complaint P103. The District 65 plaintiffs allege also that PBGC should have exercised its power under ERISA § 4047, 29 U.S.C. § 1347 to "cease the the termination of the Retirement Plan and restore such Plan to active status." Id. PBGC argues in support of its motion to dismiss that it fulfilled its obligations in issuing the Notice of Sufficiency, that the power to restore a terminated plan is discretionary and that it was not even aware of the interest rate utilized by Prudential until May 1982.
Preliminarily, the PBGC challenges the standing of District 65 to proceed as a plaintiff against the PBGC. ERISA § 4003(f), 29 U.S.C. § 1303(f) provides that "[a]ny participant, beneficiary, plan administrator, or employee adversely affected by any action of the corporation . . . may bring an action against the corporation." District 65 is not a plan participant, see ERISA § 3(7), 29 U.S.C. § 1002(7), nor a beneficiary, see ERISA § 3(8), 29 U.S.C. § 1002(8), nor a plan administrator, see ERISA § 3(16), 29 U.S.C. § 1002(16), and is not an "adversely affected employee." District 65 is an employee organization within the definition of ERISA § 3(4), 29 U.S.C. § 1002(4). ERISA listed the individuals and entities permitted to sue the PBGC for relief. Employee organizations are not on the list. District 65 therefore has no standing and is dismissed as a plaintiff on the claims asserted against the PBGC. Cf., Utility Workers Union v. Consumers Power Co., 453 F. Supp. 447, 450 (E.D. Mich. 1978) (employee organization has no standing under ERISA § 502), aff'd, 637 F.2d 1082 (6th Cir. 1981), vacated on other grounds, 451 U.S. 1014, 69 L. Ed. 2d 385, 101 S. Ct. 3000 (1980). The individual plaintiffs in the District 65 action, however, are proper plaintiffs under ERISA § 4003(f), 29 U.S.C. § 1303(f).Id.
ERISA § 4041(b), 29 U.S.C. § 1341(b) provides that "[i]f the corporation determines that . . . the assets held under the plan are sufficient to discharge when due all obligations of the plan, it shall notify the plan administrator. . . ." The above provision does not require the PBGC to review any other factors other than the sufficiency of the plan assets in its consideration of an application for a Notice of Sufficiency. Further, PBGC's authority to "cease any activities undertaken to terminate the plan and to take whatever action necessary" and restore the plan is discretionary. ERISA § 4047, 29 U.S.C. § 1347.
Issues of fact nevertheless preclude the granting of PBGC's motion to dismiss. First, although District 65 alleges and PBGC concurs that PBGC was not aware that a 15 percent interest rate was being utilized until May, factual issues exist concerning what, if any, actions PBGC could have taken at that point. Although the power to restore a plan is discretionary, when PBGC was made aware of the utilization of the 15 percent interest rate, it may have been an abuse of that discretion to deny restoration. Taking the facts alleged in the District 65 complaint as true, District 65 Complaint, PP97-100, I must deny the motion to dismiss. In sum, PBGC's motion to dismiss District 65 as a party plaintiff against PBGC is granted. The individual plaintiffs is the District 65 action, however, remain and PBGC's motion to dismiss their complaint is denied.
3. Prudential Insurance Company of America
Prudential moves to dismiss and for summary judgment in the District 65 action. Prudential did not file any memorandum in support of its motions to dismiss and for summary judgment. Instead, it relies on the papers submitted by Harper & Row. Harper & Row's arguments in support of its motions to dismiss and for summary judgment will not be reiterated or discussed here.
Prudential's motions to dismiss and for summary judgment on the claims asserted by the District 65 plaintiffs against Prudential are denied. Prudential has not submitted any papers in support of its motion to dismiss the complaint against Prudential.Assuming Prudential's argument is that it is not a fiduciary within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A), it is difficult to see how Prudential could be deemed a fiduciary under the facts of this case.It does not appeaer that Prudential exercised any discretion or control over the assets of the Plan. Compare Chicago Board Options Exchange, Inc. v. Connecticut General Life Insurance Co., 713 F.2d 254, 260 (7th Cir. 1983). On the other hand, plaintiffs allege that "[d]efendant Prudential was aware at the time it negotiated the group annuity contract that Harper & Row was deliberately attempting to minimize the amount" to be paid to the Plan's participants and beneficiaries.
District 65 Complaint P52.
Issues of fact that concern the extent of control, if any, exercised by Prudential over the assets of the Plan and the role of Prudential in the assumption of the 15 percent interest rate remain to be resolved. Accordingly, Prudential's motions are denied.
E. Securities Laws Claims
District 65 asserts claims under section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), and sections 10(b) and 14(a) of the Securities and Exchange Act of 1934, 15 U.S.C. 78j(b) and 15 U.S.C. § 78n(a), against defendants with the exception of defendants PBGC and Prudential. The District 65 plaintiffs also assert state securities claims under the Martin Act, New York General Business Law § 352-C.
Defendants move to dismiss the federal securities claims on the grounds that plaintiffs fail to allege any actionable fraud and fail to satisfy the purchaser/seller requirement under section 10(b) and Rule 10b-5. Defendants move to dismiss the plaintiffs' Martin Act claims on the ground that ERISA preempts those claims. For the reasons that follow, District 65's securities claims are dismissed.
1.Section 14(a) and Proxy Rule 14a-9
District 65 claims that the Harper & Row and MST defendants violated the Securities Exchange Act § 14(a), 15 U.S.C. § 78n(a), and Rule 14a-9, 17 C.F.R. § 240.14a-9 by causing "a solicitation by a proxy statement which contained statements which, at the time and in the light of the circumstances under which they were made, were false and misleading with respect to material facts." District 65 Complaint P109.
The proxy statement distributed to the shareholders on November 10, 1981 reviewed the proposed stock purchase and Employee Stock Plan. See Miller Affidavit, Exh. A. The District 65 plaintiffs allege basically three violations of section 14(a) and the Proxy Rules.Plaintiffs allege that the defendants' statements were false and misleading because (1) the actions were represented to be beneficial to the corporation when in fact they were not; (2) the Board of Directors never considered alternatives to the MST purchase; and (3) the Directors failed to disclose tha the Prudential contract and MST purchase were undertaken in violation of defendants' fiduciary duties.
For the following reasons, plaintiffs' claims under section 14(a) and the Proxy Rules are dismissed for failure to state a claim upon which relief can be granted.
First, the District 65 plaintiffs were not shareholders at the time of the purported solicitation.See J.I. Case v. Borak, 377 U.S. 426, 432, 12 L. Ed. 2d 423, 84 S. Ct. 1555 (1946). Second, the Proxy Rules do not require the disclosure of the motives behind certain proposals. See Lewis v. Oppenheimer & Co., 481 F. Supp. 1199, 1204 (S.D.N.Y. 1979) (securities laws requires disclosure of facts not motives); see also Panter v. Marshall Field & Co., 646 F.2d 271, 290 (7th Cir.), cert. denied, 454 U.S. 1092, 70 L. Ed. 2d 631, 102 S. Ct. 658 (1981).
Third, plaintiffs have not stated a Proxy Rule violation claim based on its second assertion that defendants did not adequately consider alternatives to the MST purchase. Defendants were not required to disclose the "panoply of possible alternatives" to the action it was proposing to the stockholders. See Umbriac v. Kaiser, 467 F. Supp. 548, 553 (D. Nev. 1979).
Fourth, the failure to disclose that defendants breached their fiduciary duties does not constitute an omission within the contemplation of section 14(a).See Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Co., 476 F.2dd 687, 697 (2d Cir. 1973); Nemo v. Allen, 466 F.2d 192, 195 (S.D.N.Y. 1979) (disclosure requirement under section 14(a) requires only that the basic facts be disclosed so as to enable stockholders to make their own decisions). The District 65 plaintiffs' Claim XIII under the Securities Exchange Act § 14(a) and Rule 14a-9 is therefore dismissed.
2. Section 10(b)
District 65 alleges that the defendants "have employed a device, scheme and artiface to defraud; have omitted to state numerous material facts . . ., have engaged in acts, practices, and courses of business which operate or would operate as fraud or deceit on plaintiffs in connection with the purchase of a security" thereby violating the federal securities laws. District 65 Complaint P107.See Securities Act § 17(a), 15 U.S.C. 77q(a); Securities Exchange Act § 10(b), 15 U.S.C. § 78j(b); Rule 10b-5, 15 C.F.R. § 240.10b-5.
Plaintiffs' claims under section 10(b) of the Securities Exchange Act of 1934 and the Rules promulgated thereunder are dismissed for the following reasons.Plaintiffs fail to satisfy the purchaser-seller requirement of section 10(b) of the Securities Exchange Act. 15 U.S.C. § 78j(b); see Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 731-33, 44 L. Ed. 2d 539, 95 S. Ct. 1917 (1975). The plaintiffs in the District 65 action are District 65, a labor union and Renee Cafiero and William Monroe, employees of Harper & Row and participants in the Retirement Plan, the Profit-Sharing Plan and the Employee Stock Plan. They are not purchasers or sellers of the MST shares.
Furthermore, plaintiffs' claims assertedly interposed under the federal securites laws appear to alllege nothing more than a breach of fiduciary duty. See Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 477, 51 L. Ed. 2d 480, 97 S. Ct. 1292 (1977).The Supreme Court has stated that: "the existence of this comprehensive legislation governing the use and terms of employee pension plans [ERISA] severly undercuts all arguments for extending the Securities Act to non-contributory, compulsory pension plans." International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 569-70, 58 L. Ed. 2d 808, 99 S. Ct. 790 (1979). Here, also, I see no reason for extending the reach of the federal securities laws to cover the circumstances of this case.
Finally, the challenged activity, "if carved out as alleged in the [District 65] complaint, was neither deceptive nor manipulative and therefore did not violate either section 10(b) of the Act or Rule 10b-5." Sante Fe Industries, Inc. v. Green, 430 U.S. at 747.
Accordingly, District 65's claim XII is dismissed.
F. Miscellaneous Claims
The complaints, especially the District 65 amended complaint, contain common-law allegations such as unjust enrichment, fraud, and conversion. The state common-law causes of action asserted by plaintiffs are dismissed because they have been preempted by ERISA § 514.
ERISA § 514(a) states that the "provisions of this title . . . shall supercede any and all state laws insofar as they may now or hereafter relate to any employer benefit plan." 29 U.S.C. § 1144(a).Thus, ERISA preempts all direct and indirect intrusions into the employee benefit plan area. See Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 525-26, 68 L. Ed. 2d 402, 101 S. Ct. 1895 (1981). Claims V (conversion) and VII (unjust enrichment) in the Harwood complaint are dismissed and District 65 Claims XV (common law fraud) and XVI (tortious inteference with contract) are dismissed. See also Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1214-16 (8th Cir.) (Congress preempted all state laws which relate to employee benefit plans including state claim for tortious inteference with contractual relationships), cert. denied, 454 U.S. 968, 70 L. Ed. 2d 384, 102 S. Ct. 512 (1981).
Claim XVII in the District 65 complaint asserted under ERISA § 510, 29 U.S.C. § 1140 is dismissed. This section covers conduct in retaliation to the exercise of rights under ERISA and is totally irrelevant under the facts of this case.
Defendants' motion to dismiss plaintiffs' claims asserted under ERISA § 502(c), 29 U.S.C. § 1132(c) is denied. The Harwood plaintiffs allege that defendants violated section 502(c) by failing to comply with requests made by participants for information concerning the interest rate and for Plan documents. See Harwood Claim IV; P36. Plaintiffs have alleged facts, presumed to be true under a motion to dismiss, sufficient to state a cause under this section.
The District 65 plaintiffs include Claims under federal labor law and the Internal Revenue Code in their amended complaint. See District 65 Complaint Claims XVIII, XIX. Plaintiffs allege that defendants' arrangement with Prudential discriminated against "lower paid, younger" employees thereby violating the collective bargaining agreement between Harper & Row and District 65 and the Internal Revenue Code § 401(a)(4), 26 U.S.C. § 401(a)(4). Section 401(a)(4) prohibits discrimination in favor of officers, shareholders, supervisors, or highly compensated employees. Taking the facts alleged by the District 65 plaintiffs as true, defendants' motions to dismiss the IRC claims are denied. The allegations under IRC § 401 are interwoven with the ERISA claims concerning the use of the 15 percent interest rate.
District 65's claim for breach of the collective bargaining agreement between Harper & Row and District 65 is dismissed for failure to exhaust nonjudicial remedies. See International Molders and Allied Workers Union v. Aquarius Shoe Corp., 511 F. Supp. 361, 364 (E.D. Mo. 1981).
G. Conclusion
Procedurally, the Harwood and District 65 actions are consolidated. A determination as to whether the action will proceed as a class action is postponed until plaintiffs submit information concerning the size and composition of the class and plausible suggestions for the means of notification to all members of the class. District 65's motion to amend its complaint is granted. District 65 is dismissed as plaintiff on its ERISA claims and its claim against PBGC but the individual plaintiffs in that action are proper plaintiffs. The motions to dismiss by defendants MST, Cowles, Silha, Taylor, PBGC, and Prudential are denied.
Substantively, plaintiff's claims for breach of fiduciary duty based on the termination of the Plan and reversion of surplus assets to Harper & Row are dismissed.Plaintiffs claims arising out of the amendment to the Profit-Sharing Plan are dismissed. District 65's claims under the securities law, state common law, the retaliatory provision in ERISA, and for breach of the collective bargaining agreement are dismissed. Plaintiff District 65's motion for summary judgment is denied.
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May 22, 2012
STEVEN WILLIAMS, PLAINTIFF,v.D. L. RUNNELS, ET AL., DEFENDANTS.
I. Introduction
Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the Second Amended Complaint (SAC), filed March 17, 2008, which alleges that defendants delayed or denied giving plaintiff adequate medical treatment in violation of the Eighth Amendment while he was incarcerated at High Desert State Prison (HDSP). (Dkt. No. 25.) The two remaining defendants are Dial and Scovel. (See Dkt. Nos. 57 (granting motion to dismiss as to Runnels), 96 (granting motion to dismiss as to James, Roche, and Cox).) Pending before the court is Dial's November 14, 2011 motion to dismiss the SAC for failure to exhaust administrative remedies. (Dkt. No. 141.) Plaintiff filed an opposition, and defendant Dial filed a reply. (Dkt. Nos. 148, 155.) For the reasons discussed below, the undersigned will recommend that Dial's motion to dismiss be granted.
II. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act ("PLRA") provides that, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Pursuant to this rule, prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process. Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion also requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules. Woodford v. Ngo, 548 U.S. 81 (2006).
The PLRA requires that administrative remedies be exhausted prior to filing suit. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). However, the exhaustion requirement is not jurisdictional, but an affirmative defense that may be raised by a defendant in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). See Jones v. Bock, 549 U.S. 199, 216 (2007) ("inmates are not required to specially plead or demonstrate exhaustion in their complaints"); Wyatt v. Terhune, 315 F.3d 1108, 1117--19 (9th Cir. 2003) (failure to exhaust is an affirmative defense). Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to do so waives the defense. Id. at 1119.
"In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119. "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust -- a procedure closely analogous to summary judgment -- then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record." Id. at 1120 n.14. When the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120; see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) ("mixed" complaints may proceed on exhausted claims). Thus, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.
"The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures." Jones, supra, 549 U.S. at 218. In California, prisoners are required to lodge their administrative complaint on a CDC Form 602, which requires only that the prisoner "describe the problem and action requested." Cal. Code Regs. tit. 15, § 3084.2(a). In Griffin v. Arpaio, 557 F.3d 1117 (9th Cir. 2009), the Ninth Circuit Court of Appeals adopted the standard enunciated by the Seventh Circuit, which provides that "when a prison's grievance procedures are silent or incomplete as to factual specificity, 'a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.'" Griffin, 557 F.3d at 1120 (reviewing Arizona procedures), quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). Thus, in California, "[a] grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Griffin, 557 F.3d at 1120; accord, Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010).
"[E]xhaustion is not per se inadequate simply because an individual later sued was not named in the grievances." Jones, 549 U.S. at 219. It is nonetheless appropriate to require that a prisoner demonstrate, through the administrative grievance process and consistent with the PLRA, that he has standing to pursue his claims against a particular defendant. "[A]t an irreducible minimum, Art[icle] III [of the United States Constitution] requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.' " Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982).
III. Motion to Dismiss
Unlike the other defendants who were served earlier, Dial was served with the SAC more than three years after it was filed, on September 8, 2011. (Dkt. Nos. 118, 125.) Prior to service on Dial, defendants James, Roche, and Cox successfully brought a motion to dismiss the SAC for failure to exhaust administrative remedies. (Dkt. Nos. 85 (magistrate's findings and recommendations), 96 (order adopting findings and recommendations).) Like defendants James and Cox, Dial was a physician at HDSP whom plaintiff allegedly saw for pain and suffering and for "possible treatment" of plaintiff's prostate cancer, and was denied help. (SAC at 4-5.)
Dial's motion covers the same ground as James, Roche, and Cox's earlier motion to dismiss for failure to exhaust administrative remedies. (Compare Dkt. No. 56 with Dkt. No. 141.) As in defendants' earlier motion, Dial argues that, while plaintiff's administrative appeals concerned his post-surgical care, the allegations in the SAC concern his pre-surgical treatment:
Although [plaintiff] filed numerous appeals while housed at HDSP, only three of those appeals concerned medical issues, and none of those concerned the allegations in Plaintiff's complaint against defendant Dial. Indeed, Plaintiff's allegations in the SAC against Defendant Dial, like the other physicians, concern his treatment, or lack thereof, to see a specialist for Plaintiff's 'growing cancer' and [allege] that years of denials to see a specialist led to 'no treatment but removal only.' However, . . . Plaintiff's exhausted medical appeals only concern his treatment after removal of his prostate, which is not the subject of the SAC. Thus, plaintiff has not exhausted his claims against Defendant Dial. (Dkt. No. 141 at 5.)
Because Dial makes the same argument as James, Roche and Cox in their earlier motion to dismiss, the instant motion cannot be considered in a vacuum. "Under the law-of-the-case doctrine, a court will not re-examine an issue previously decided by the same or higher court in the same case." Lucas Auto. Eng'g, Inc. v. Bridgestone/Firestone, Inc., 275 F.3d 762, 766 (9th Cir. 2001). The doctrine is not a limitation on a tribunal's power, but rather a guide to discretion. Arizona v. California, 460 U.S. 605, 618 (1983). A court may have discretion to depart from the law of the case where: (1) the first decision was clearly erroneous; (2) there has been an intervening change of law; (3) the evidence is substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result. United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997). A district court abuses its discretion when it departs from the law-of-the-case doctrine without one of these five requisite conditions. Thomas v. Bible, 983 F.2d 152, 155 (9th Cir.1993).
In her September 1, 2010 findings concerning the earlier motion to dismiss, the previously assigned magistrate judge found that plaintiff filed three medical appeals while housed at HDSP:
In the first appeal, plaintiff complained of his state issued boots and medication for pain. [Record citation to Log. No. HDSP-02-01055.]
In the second, plaintiff complained of the denial of medication and unsanitary conditions at the prison medical facility following his prostatectomy. [Record citation to Log. No. HDSP-05-02947.] In the third, plaintiff alleged he was still suffering from post-surgery complications when he was shot with a "block gun" and received no medical attention afterwards, further complicating his condition. [Record citation to Log. No. HDSP-06-00713.] (Dkt. No. 85 at 3.) There was no evidence that plaintiff had filed an appeal "concerning defendants' pre-surgery denial of referral to a specialist." (Id. at 4.)
The magistrate judge concluded that:
Defendants correctly make the distinction between claims regarding pre-prostatectomy and post-prostatectomy treatment in their motion to dismiss for failure to exhaust. There is no evidence that plaintiff exhausted his claim for inadequate pre-surgery treatment against defendants James, Roche, or Cox. . . .
[P]laintiff's second amended complaint alleges deliberate indifference against James, Roche and Cox for their failure to refer him to a specialist before prostatectomy became necessary. Even with the liberal reading afforded pleadings by pro se litigants, the court can draw no reasonable inference from those allegations that would include James, Roche and Cox in a claim for post-surgery mistreatment.*fn1 Therefore the instant motion to dismiss for failure to exhaust should be granted.
(Dkt. No. 85 at 5-6.)
Under the law of the case doctrine, there is no reason not to extend these conclusions to Dial's motion to dismiss, which raises the same factual and legal arguments as the previous three defendants. As with those defendants, the allegations in the SAC concerning Dial clearly seem to refer to pre-prostatectomy treatment. After describing the pre-surgery actions of physicians James and Cox, the SAC names Dial as "yet another primary physician who plaintiff seen on several occasions for pain and suffering and possible treatment. As a result, plaintiff was again [blatantly] and deliberately denied any help." In contrast, the SAC describes defendant Scovel as "a nurse who treated me upon my return on 8-3-05." (SAC at 4-5.)
In his opposition, plaintiff contends that the SAC raises both pre-and post-surgery claims against defendant Dial and both claims are exhausted. (Dkt. No. 148.) However, like the previously assigned magistrate judge, the undersigned can draw no reasonable inference from the language of the SAC that would include defendant Dial in a claim for post-surgical medical indifference. Thus, for the reasons discussed in the September 1, 2010 findings and recommendations, the undersigned concludes that plaintiff failed to exhaust his claim concerning pre-surgical treatment as to defendant Dial.
IV. Conclusion
Accordingly, IT IS HEREBY RECOMMENDED that defendant Dial's November 14, 2011 motion to dismiss for failure to exhaust administrative remedies (Dkt. No. 141) be granted and this action be dismissed as to defendant Dial.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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3 Bedroom House in Heldervue
Hans Zerwick
3 Bedroom House in Heldervue
This double storey home is the ideal opportunity to renovate for those adventurous couples or investors.
This large house offers a magnificent view over False Bay. One of the main attractions of this solidly build house is the ample space for leisure and relaxation. As you enter the house, you are welcomed by a large open lounge/dining area with an open plan kitchen. This room leads to another very spacious TV, playroom and entertainment area with beautiful views and an indoor braai. This room also flow out onto a large balcony. Adjacent to the kitchen is a large scullery/laundry room with a backdoor leading out to a paved courtyard. The entertainment areas has solid wooden floors and the kitchen and scullery is tiled.
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Somerset West living is blissful and peaceful, leaving residents with a feeling of security and relaxation while enjoying breathtaking views of the Helderberg mountains surrounding the area. This area has a close-knit community that does not take their surroundings for granted. Great for families, with a variety of activities for all ages.Find out more about Somerset West
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Monday, 11/14/2016
Tuesday, 11/15/2016
Wednesday, 11/16/2016
Thursday, 11/17/2016
Tips and events 2016
Trend Topics 2016
Searching for medical clues
Knowledge helps to help
Snapshots from medical technology
Data for health care - perfectly safe!
Health care in movement
Everywhere - medical technology for the world
Networked health - telemedicine and company
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Topic of the Month
Topics of the Month 2016
December 2016: The human patient
November 2016: MEDICA 2016
October 2016: Networked healthcare
September 2016: Intraoperative Imaging
August 2016: Medical Industry Worldwide
July 2016: Sports and medicine
June 2016: Hospital hygiene
May 2016: The heart
March 2016: Paediatrics and neonatology
April 2016: Medical education and training
February 2016: Regenerative medicine
January 2016: Infectious diseases
Topics of the Month 2015
December 2015: The brain
November 2015: MEDICA
October 2015: Theranostics
September 2015: Wearables
August 2015: Nuclear medicine
July 2015: Cardiovascular disaeses
June 2015: Cancer and diagnostics
May 2015: Cancer screenings
April 2015: The informed patient
March 2015: Crisis management and communication
February 2015: Pathology
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Topics of the Month 2014
December 2014: Ethics
November 2014: MEDICA 2014
October 2014: Orthopedics and physical therapy
September 2014: Intensive-care medicine
August 2014: Hygiene
July 2014: The Skin
June 2014: Sport & Medicine
May 2014: Mobile Health & IT
April 2014: Emergency Medicine
March 2014: Continuing Education
February 2014: Cancer
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Interviews Concerning Innovations
Paraplegia: moving muscles using electrical impulses
Hemodialysis: Creating the AV fistula using catheters
MRI scan: Video projections help children overcome their fear
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A new broom sweeps clean? The new EU Medical Device Regulation
Interoperability: secure network connections
Individualized sports medicine: training by design
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Medical emergency management in hospitals: there is a need for action
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T5 Career Forum – Dem Fachkräftemangel entgegenwirken
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Electronic Records May Threat Confidentiality
Electronic Records May Threat Confidentiality
Physicians' clicks may harm the
confidentiality; © PixelQuelle.de
The medical profession is concerned that, in the proposed summary care record, data will be accessed with no further input from the patient, and this is not being made sufficiently clear to the public, write Drs Paul Cundy and Alan Hassey in a letter to this week's journal. "Patients and clinicians must have confidence that information will be secure and shared only with patient consent," they say.
Another letter argues that the electronic patient record is incompatible with the doctor-patient relationship, and is a direct and serious threat to patient confidentiality. The author, Michael Foley, suggests that the huge sums of money being invested in its development might be more usefully spent on improving patient care than on compromising their privacy.
In another letter, two junior doctors warn that poor training of locum doctors in using hospital computer systems also poses a risk to confidentiality. Amir Ismail and Muhammad Ismail say that doctors frequently share passwords as it is difficult and often time consuming to attain their own passwords, especially when very short term locums are being undertaken. "This should be avoided at all costs as it compromises data security," they warn.
They believe that locum doctors should ensure that they are given basic training in using these systems as part of their induction at a new hospital, as well as individual passwords. And they conclude that ensuring adequate training at this stage in developing computerised health care is crucial to its eventual success.
If patients' health records are made universally available confidentiality is put at risk and the potential consequences are serious, adds Anthony Winston, Consultant in Eating Disorders, in a final letter. "When serious harm can result from a course of action explicit consent is required. The Royal College of General Practitioners is right to insist on opting in," he writes.
MEDICA.de; Source:
British Medical Journal


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Satin Long Bari Jay Bridesmaid Dress 116
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With its oddly pale appearance—and its reputation for being bland—I suppose that's not all that surprising. But it is a shame, because cauliflower isn't just brimming with good-for-you nutrients it's also delicious—when you fix it the right way that is!
I'll share some fun ways to fix your cauliflower that'll have you rushing to put it on the menu for dinner tonight, in just a moment.
But first let's take a quick look at just how surprisingly nutritious cauliflower is.
Fill up on cancer-fighting antioxidants
It shocks most people when I tell them that cauliflower is overflowing with cancer-fighting antioxidants. But in fact, those pale white stalks are specifically full of phytonutrients which help reduce oxidative stress, inflammation and ultimately your cancer risk.
In addition, vitamin C and K1—both of which you'll find in abundance in cauliflower (see the chart below)—help slash inflammation and cancer risk too.
Tame tummy troubles with cauliflower
Cauliflower is incredibly high in fiber. For every 100 calories of cauliflower you eat you're getting nine grams of fiber! That of course means that cauliflower is a real superstar when it comes to digestion.
If you're a broccoli eater you may already be familiar with the compound sulforaphane, which slashes bacterial overgrowth in the stomach and GI tract. Cauliflower, which is a cruciferous vegetable too, contains a healthy amount of sulforaphane as well.
Help yourself to a heart-healthy serving
Cauliflower is a natural anti-inflammatory. That means it's a perfect candidate for maintaining healthy cholesterol levels and supporting your heart health.
Plus cauliflower has the rare distinction of being one of the very few veggie sources of omega-3s. If you don't eat a lot of meat, cauliflower is a great way to sneak some more omega-3s into your diet.
Plus the combo of omega-3s and sulforaphane are great for your heart health and work together to help prevent damage to delicate blood vessels.
Stock up on 20 important nutrients
It may not look like it, but cauliflower is packed full of nutrition. De hecho, there are at least 20 different important nutrients hiding in every single serving.
|Nutrients found in Cauliflower
|Vitamin C
|Vitamin K1
|Omega-3 fatty acids
|Vitamin B2
|Vitamin B3
|Vitamin B1
|Vitamin B5
|Vitamin C
|Vitamin K1
Let's face it, when served a dish of mushy bland cauliflower we all feel like we're six years old again, crossing our arms across our chests and refusing to eat our vegetables.
But I'm willing to bet I can make you change your mind about cauliflower. You simply need to prepare it in one of the following delicious ways:
1. Zesty Steamed Cauliflower
Overcooking is the kiss of death for cauliflower, turning the vegetable it a mushy mess. Boiled cauliflower is why so many folks object to this healthy and delicious veggie. A quick steam is all that's needed.
Cut a head of cauliflower up into florets and place them in a steamer basket for around 10 minutes so they're cooked, but still firm to the touch. Drizzle the cooked florets in olive oil and lemon juice and serve hot
2. Golden Oven Roasted Cauliflower
|Golden Oven Roasted Cauliflower
|One of the top objections I hear from folks about cauliflower is that it has a mealy texture. But you can fix this issue simply by roasting your cauliflower in the oven.
• Preheat your oven to 350 degrees.
• Cut head of cauliflower into florets.
• Toss cauliflower in a bowl with olive oil and seasonings.
• Place cauliflower on a cookie sheet and roast for 20 minutes until the edges of the florets start to brown and crisp
• Serve immediately.
3. Savory Cheese and Garlic Mash
|Savory Cheese and Garlic Mash
|Everyone loves mashed potatoes. Turn this crowd-pleasing dish into a show stopper by replacing the potatoes with cauliflower and adding an extra punch of flavor. This makes a terrific side dish for steak or pork dishes.
• Cut up cauliflower into florets and steam (see #1 for steaming directions).
• Put cooked florets in a blender or food processor and blend.
• Add in cheese, garlic, salt, pepper, butter and cream or milk.
• Blend together and serve as a side dish. If you prefer a creamier mash you can use a potato masher.
4. Crispy and Delicious Cauliflower Patties
|Crispy and Delicious Cauliflower Patties
|These are great for breakfast, a snack or a side dish.
• Mix egg into the cauliflower mash until it's dough like.
• Roll dough into palm-sized balls and then roll out into patties.
• Heat oil over medium high heat in a skillet,
• Brown patties for two minutes on each side.
• Serve immediately.
5. Creamy Cauliflower Soup
|Creamy Cauliflower Soup
|Transform your mashed cauliflower from recipe #3 into a hot and delicious soup.
• Place mashed cauliflower in a large soup pot.
• Add in chicken broth and milk.
• Heat until boiling.
• Add in leeks or onions for a bit of crunch and extra flavor if you like
• Serve hot.
6. Crisped Cauliflower Toast:
Instead of cutting up a head of cauliflower into florets slice the entire head into bread sized slices. Toast the cauliflower in the oven at 350 degrees until it's golden and crisp.
Serve with chicken or tuna salad, as the base for appetizers, or in place of taco chips in nachos.
7. Grilled Cauliflower Steaks
Slice up a head of cauliflower as instructed in #6 above, Sprinkle cauliflower slices with your favorite steak seasonings and grill on the barbeque. Serve hot as a substitute for steak or as a delicious side dish.
8. French Fried Cauliflower:
This nutritious substitute for potatoes is so tasty it will have you taking French Fries off the menu forever. (Trust me!) Just be sure to fry your cauliflower in coconut oil, ghee or avocado oil instead of unhealthy corn or canola oils.
9. Kicky Cauliflower Dip:
Blend a cup of cauliflower florets in the food processer until you have a purée. Mix in a tablespoon of almond butter, a sprinkle of red pepper places and your favorite spices to create a kicked up dip to serve with fresh veggies.
10. Punched Up Rice Pilaf:
Finely chop a cup of cauliflower and sprinkle it into rice as it cooks. When the rice is finished cooking dump into a sauce pan. Add in some chopped onion and red pepper and spices to taste. Sauté for two to three minutes and serve piping hot.
11. Cheesy Cauliflower:
Everything really IS better with cheese. Sprinkle your favorite organic cheese on top of your baked or steamed cauliflower for a simple delicious side dish.
- Experto
- experienced
- Profesionalismo
- Amabilidad, caring, compassion
- sobre la medicina alternativa-mente abierta
- Amistoso (nos atrevemos a decir, incluso, ... cool?)
Bien, Has venido al lugar correcto. HealthierTalk se enorgullece de presentarle al Dr.. Joshua Levitt ... un hombre que comprueba efectivamente todas las cajas, and more.
Dr. Joshua Levitt es un médico naturópata quien es ampliamente conocido por su experiencia en el tratamiento de ambos problemas médicos comunes y complejas. In practice, Dr. Levitt draws on his broad knowledge of the science of both conventional and natural medicine and the art of combing the two into a "best of both worlds" treatment strategy. Cuenta con más de 15 años de experiencia clínica directa utilizando una mezcla única de la terapia nutricional, herbal medicine, y la medicina física para el tratamiento de una amplia gama de enfermedades y condiciones. Sus pacientes y sus lectores lo elogian para la capacidad de educar, motivar, e inspirar con historias y consejos que les ayuda a ayudarse a sí mismos. Además de su trabajo como autor, Dr. Levitt posee y dirige una clínica privada en Connecticut, donde también es un preceptor clínico de la Escuela de Medicina de Yale.
Dr. perspectiva única de Levitt fue informado por una educación que incluye un título en fisiología de la UCLA, doctor en medicina naturopática de la prestigiosa Universidad de Bastyr, entrenamiento formal residencia en medicina integrativa en Seattle, y la experiencia con miles de pacientes.
Dr. Levitt es también el autor y creador de varios libros populares, y muchos artículos y videos, los cuales son el exponente de su pasión y compromiso de llevar la información y productos a usted que puede ayudarle a alcanzar sus objetivos de salud y bienestar. Usted puede ver más del Dr.. Levitt UpWellness.com.
Últimos mensajes de Dr. Joshua Levitt (ver todo)
- El error suplemento que podría perjudicar a su tiroides - July 28, 2016
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