New York District Court Dismisses Putative ERISA Class Alleging Illegal Kickbacks

Sometimes in the rush to meet Rule 23(a) and (b)'s requirements, what gets overlooked is whether there is any underlying claim in the first place.  In a refreshing opinion, the Southern District of New York disposed of a claimed ERISA class action for the reason that, irrespective of any class allegations, the defendant was not alleged to have done anything illegal.  In Skin Pathology Associates, Inc. v. Morgan Stanley & Co., Case No. 1:13-cv-03299-AT (S.D.N.Y. Feb. 24, 2014), the plaintiff established a 401(k) plan for its employees, and retained Morgan Stanley to provide the program in which the 401(k) funds were to be invested.  Morgan Stanley, in turn, hired ING to perform investment and recordkeeping services.  So far, nothing controversial.