ERIC Files Amicus Brief in Osberg v. Foot Locker

For Immediate Release

Washington, DC – ERIC and the U.S. Chamber of Commerce on Friday, September 6 jointly filed an amicus brief with the Second Circuit in the Osberg v. Foot Locker case.  The brief urges the Court to uphold the decision of the district court dismissing the claims of plaintiffs seeking reformation of the plan and surcharge (effectively money damages) against Foot Locker regarding the communication of their retirement plan amendment from a traditional formula plan to a cash balance plan.  

The brief was prepared by Covington & Burling LLP and argues, consistent with the district court decision, that Foot Locker’s SPD and other plan communications properly summarized the plan amendment, did not give rise to any right to equitable remedies (of the type found available by the Supreme Court in Amara v. Cigna, which is also before the Second Circuit on remand), and that the applicable statute of limitations had expired prior to the filing of the lawsuit.  

This is an important case to establish appropriate legal precedent that participants cannot seek to reform a plan or attain monetary relief merely because of inadvertent ambiguities in plan communications or the fact that participants may have misunderstood the communications.  

The plaintiffs and the Department of Labor, in its amicus brief, have essentially argued for strict liability in plan communications and the broad equitable remedies mentioned above not based on any showing of actual harm to participants but merely on the basis that an SPD may have not been perfect. 

Thank you to members who have offered financial support for the costs of the brief.  We wish Foot Locker best of luck in hopefully prevailing before the Second Circuit.       

For a copy of ERIC’s press release, click here

Amicus Brief in Osberg v. Foot Locker, Inc.


All media inquiries to The ERISA Industry Committee should be directed to:

Kelly Broadway, 202.627.1918,

About the ERISA Industry Committee
ERIC helps America’s largest employers stay ahead of employee benefit policy. ERIC member companies are leaders in every sector of the economy, and we represent them in their capacity as sponsors of employee benefit plans for their own workforce. Only ERIC provides the combination of intel, expertise, collaboration, and lobbying that exclusively serves the interests of large employers who provide health, retirement, and compensation benefits to their nationwide workforce.