Have you ever seen a Jackalope? As a young boy visiting a relative in West Texas, I came across, what I would discover to be, my first jackalope whose head was mounted on the wall of a restaurant. It looked like a jackrabbit with antlers. The waitress told me it was a jackalope. Of course, some version of that beast has graced the walls of many restaurants, cafes, and dry good stores for many years, and been featured in folklore for many more. In German folklore, a wolpertinger is an animal said to inhabit the alpine forests of Bavaria and Baden-Württemberg in Germany. It is a rabbit with antlers and wings. People are fascinated with the idea that there could be mysterious animals or creatures which have never or rarely been seen.

Lawyers, on the other hand, are not so excited about experiencing a rare, mysterious or inexplicable case. Cotten v. Altice USA, Inc., No. 19-CV-01534 (RJD (ST), 2020 WL 32433 (E.D.N.Y. Jan. 2, 2020) is one of those “what is it” cases. In that case, the former employees contended that they were entitled to severance pay because they were terminated without cause or explanation. Other terminated employees had received severance pay benefits, so they thought they were entitled as well. However, they had never received a plan document, so their lawyers did not know what kind of case they had. Was it a breach of contract claim or promissory estoppel, or was it an ERISA claim? Not knowing what it might be without more facts, they sued alleging breach of contract and promissory estoppel under state law and also made ERISA claims.

The defendants countered with a standard defense strategy: seek to limit the claims to just one type of action and then seek to have that claim dismissed. Here the defendant claimed that the state law claims were all preempted by ERISA and then, contended that the former employees lacked standing to sue under ERISA. They also claimed that the employees had failed to exhaust all administrative remedies.

The plan named an employer, which was not the former employer, as defendant. The court doubted the plan governed the severance benefits given this discrepancy and the fact that the plaintiffs had never received it. The court denied the motion to dismiss, however, and permitted limited discovery on these matters.

Many plaintiffs are not so fortunate. For example, in Experience Infusion Centers, LLC v. Flowers Specialty, Foodservice Sales, Inc., No. CV H-19-1721, 2020 WL 32331 (S.D. Tex. Jan. 2, 2020), the court dismissed the plaintiff's claims because the medical provider (to whom the beneficiary had assigned his benefits) thought its “animal” was an ERISA medical benefit claim. However, the plan had an anti-assignment provision. Therefore, the medical provider was not a proper assignee and thus not a proper party. Perhaps the medical provider could sue for a breach of contract. But that would be a different animal and one more aptly found in a different court.

If you suspect you may have a jackalope of an ERISA case, contact an experienced ERISA disability attorney or long term disability lawyer today. It takes someone with experience in these parts to identify the animal quickly and correctly, and these unusual creatures do not frighten us.