MEMORANDUM OPINION

(Losciavo — Lehman Bros. Savings Plan Motion)

LEWIS A. KAPLAN, District Judge.

Plaintiffs, participants in The Lehman Brothers Savings Plan (the "Plan") here purport to bring a state law derivative claim on behalf of the Plan against Lehman Brothers Holdings Inc.'s outside accounting firm, Ernst & Young ("E&Y"), for negligence and professional malpractice. They contend that the Plan's fiduciary improperly has failed to initiate suit against E&Y on behalf of the Plan. The Plan, joined by E&Y, moves to dismiss the derivative claim, the second cause of action, on the ground that ERISA preempts any state law derivative claim that otherwise might have existed and, moreover, that amendment to premise the derivative claim on ERISA itself would be futile because ERISA contemplates no such remedy.

ERISA Preempts the State Law Derivative Claim

ERISA expressly preempts any state laws that "relate to an employee benefit plan,"1 including those that alter plan administration or affect the relationships among "core ERISA entities."2 Pursuant to ERISA § 403(a), the Plan gave "complete authority and discretion to control and manage the operation and administration of the Plan [to the] Employee Benefits Plans Committee."3 The Plan's trustee, Fidelity, was empowered to "commence or defend suits."4 Permitting plaintiffs to usurp the fiduciaries' authority to manage and control the Plan clearly would "alter plan administration" and affect the relationships among core ERISA entities.5 ERISA thus preempts plaintiffs' state law claims.

The cases upon which plaintiffs rely to argue otherwise are inapposite. The Second Circuit in Gerosa v. Savsasta & Co., Inc. held that ERISA does not preempt a state law malpractice claim brought by the plan.6 It said nothing about the situation here, in which a plan beneficiary seeks to bring such a claim against a non-fiduciary on the Plan's behalf. Indeed, all of the cases upon which plaintiffs rely simply stand for the proposition — which defendants do not dispute — that ERISA does not preempt certain state law claims brought by a plan or a plan's fiduciary.7 These cases are of no help to plaintiffs here.

No State Law Derivative Claim is Available Under ERISA

Plaintiffs' claim would have been deficient even if plaintiffs had purported to premise it on ERISA rather than on state law. ERISA § 502 sets forth the exclusive causes of action available under ERISA.8 It nowhere confers on plan participants the authority to bring state law claims derivatively.9 Indeed, the Supreme Court repeatedly has admonished lower courts that judicial creation of remedies with respect to ERISA plans that are not found in the express terms of Section 502(a) is impermissible.

Plaintiffs' reliance on Alfarone v. Bernie Wolff Constr. Corp.,10 Diduck v. Kaszycki & Sons Contractors, Inc. (Diduck I),11 Diduck v. Kaszycki & Sons Contractors, Inc. (Diduck II),12 and Struble v. New Jersey Brewery Employees' Welfare Trust Fund,13 is misplaced. While, in those cases, the Second and Third Circuits permitted plan beneficiaries to assert claims derivatively on behalf of their plans, the claims all were based on express provisions of ERISA. The cases thus turned on whether ERISA provides plan participants with a right of action for violations of the ERISA provisions at issue.

That is not the question here. Plaintiffs do not allege that E&Y violated a provision of ERISA. Instead, they seek to assert a state law claim. Plaintiffs have cited no cases, and the Court has found none, in which a plan participant was permitted to assert a plan's non-ERISA claims derivatively against a non-fiduciary on behalf of the plan. Plan participants are not entitled to bring a derivative action "where the cause of action is not one of the specifically enumerated ERISA remedies."14 Thus, even if plaintiffs attempted to re-assert their state law claim under ERISA, their claim would fail nonetheless.15

Conclusion

For the foregoing reasons, the motion of The Lehman Brothers Savings Plan to dismiss plaintiffs' second cause of action [09 MD 2017 Dkt. 832; 10 Civ. 8631 Dkt. 34], joined in by E&Y, is granted. The action is dismissed as to the Plan and E&Y.

SO ORDERED.