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By Nicholas Ostrow

I found the reading for the subrogation section of the course to be fairly straightforward even though I did not necessarily agree with everything the courts held. I think that the Supreme Court did a decent job in Sereboff. I understand and agree with the court’s comparison of the facts to Knudson. I think Sereboff is distinguishable based on the fact that the Knudson plaintiff could not trace the particular funds in dispute. I also agree with the court’s reasoning that the particular funds in dispute did not have to exist at the time the plan was written into agreement. I do have a somewhat related question concerning our in-class discussion, however.

In class, Professor Chandler mentioned that when deciding an equity issue, the Court will look to precedent from the “days of the divided bench”. Here, the Court supported in reasoning with Barnes. While I don’t disagree with the court’s reasoning, I wonder at its methods. Does the Supreme Court always look for an old equity case when deciding an equity issue? In other words, does there have to be at least a somewhat analogous older equity case for the Court to even consider a contemporary equity claim? Saying that the Court would be more comfortable deciding an contemporary equity case when an older equity case is readily available to support its decision is much different than saying the Court won’t consider an contemporary equity case without at least some sort of analogous older case.

I was a little less enthused by the District of Columbia’s opinion in Moore. In particular, I don’t understand why the Court chose to invoke Firestone in its discussion of the make-whole doctrine. It seems to me that the Court could have simply relied on Sereboff and left it at that. For one, I don’t necessarily agree with giving plan administrators “a deferential standard of review” in the first place. Secondly, I don’t like the idea that Firestone gives administrators a deferential standard of review with respect to any plan dispute; an idea that the Moore holding seems to enforce. Of course, the make-whole doctrine and its applicability to subrogation claims here still seems somewhat up in the air. Perhaps the Moore opinion represents a tentative first step on behalf of the District of Columbia to decide the issue without guidance more guidance from the Supreme Court. The Moore approach certainly seems tenable. I don’t necessarily agree with it and I suppose only time will tell whether or not the Supreme Court feels the same way.


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