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Sotomayor Expected to Stay Mainstream in Pension Rulings

August 10, 2009
Related Topics: Miscellaneous Legal Issues, Retirement/Pensions, Latest News

Sonia Sotomayor, the U.S. Supreme Court’s first Hispanic justice, isn’t expected to shatter precedent with her rulings on high court pension cases, according to ERISA attorneys.

The Senate confirmed Sotomayor on Thursday, August 6, by a 68-31 vote.

In her almost 11 years as a judge for the U.S. Court of Appeals for the Southern District of New York, Sotomayor was involved in about 20 ERISA-related cases. In none, sources say, did she betray a bias toward plan participants or plan sponsors—and her record suggests she will continue down the ERISA mainstream that was followed by former associate justice David Souter, whom she is succeeding.

“Right now, there’s no reason to predict anything different,” said Bob Eccles, an ERISA litigation attorney for the law firm O’Melveny & Myers in Washington.

Lawyers also said the handful of ERISA decisions that Sotomayor wrote for the federal appeals court were routine, but demonstrate her intelligence and diligence.

“They were pretty much run of the mill,” said Michael Vanic, an ERISA litigation attorney with Los Angeles law firm Reish & Reicher. “She basically applies existing precedent.”

“I didn’t see anything out of the ordinary one way or another,” Eccles added.

Among the decisions she wrote for the appeals court in 2007 was Supplee v. Bethlehem Steel Corp., which involved the claim of a former Bethlehem Steel employee to have part of his pension claim treated as severance pay in the company’s Chapter 11 bankruptcy proceeding, according to a bulletin from Reish & Reicher. Sotomayor’s decision affirmed the lower court ruling holding that no part of the employee’s lump sum was entitled to administrative expense priority.

In 2001, she wrote the decision in Layou v. Xerox Corp., a case about whether Xerox’s summary description of its pension plan complied with ERISA.

Sotomayor’s decision held that the summary plan description violated ERISA because it failed to provide notice that future plan benefits could be reduced if an employee left the company, accepted a lump sum and then later returned to the company, according to Reish & Reicher.

Nonetheless, the attorneys warned that how judges act once they are confirmed to the high court can sometimes be a surprise.

“I don’t think there’s any indication that she’s going to take ERISA in any new direction,” Vanic said. “But we’ll see. You never know until they get on the court and you start to see their decisions.”

In her new position, Sotomayor might get the opportunity to enhance her expertise on ERISA issues, because rumor has it that the high court assigns its arcane cases to its most junior member.

“It was reported that Justice Souter’s impending retirement may have been hastened by numbingly technical pension cases,” said Andrew Oringer, an ERISA attorney for New York law firm Ropes & Gray. “I wonder if they’re going to test the new junior justice’s commitment and start giving her all the ERISA mind-benders.”

Sotomayor originally was appointed to the federal appeals court in New York in 1998 by former President Bill Clinton. Before that, she served as a U.S. district court judge for the Southern District of New York, appointed by former President George H.W. Bush in 1992.

Filed by Doug Halonen of Pensions & Investments, a sister publication of Workforce Management To comment, e-mail

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