Professor Baron

Wal-Mart v. Shank: I was involved in the widely publicized litigation in which Wal-Mart successfully sued Deborah Shank, a permanently disabled and incapacitated victim for all of her tort recovery. Although Wal-Mart in all court proceedings, including the U.S. Supreme Court, the public outcry was so great that Wal-Mart reconsidered and allowed Mrs. Shank to keep her entire recovery and also changed the provision of its plan documents in connection with future victims of catastrophic loss. (download Marilyn Trefz Article on my role in the Shank case) On July 25, 2008, Wal Mart sent its letter to Mrs. Shank’s primary attorneyMaurice Graham, outlining the changes it was implementing in connection with future reimbursement situations. (download Wal Mart letter showing changes as a result of Shank case litigation) Video clips about this case — from CNN and Keith Olbermann — are available on the “Audio/Video” page of this web site.

Sereboff: I was asked to join the team of lawyers representing the Sereboffs in this case. I assisted the leading attorney, Peter Stris, in writing the brief and also in preparation for oral argument. I was present in the Courtroom with this case was argued on March 28, 2006. Photos taken in connection with my trip to Washington and also with Peter Stris are on this page. The reported decision is Sereboff v. Mid Atlantic Medical Services, Inc., 126 S.Ct. 1869, 74 USLW 4240, 164 L.Ed.2d 612, (May 15, 2006). Although our side of the case lost, the Sereboff decision is notable in that footnote 2 of this decision recognizes future resolution as the word “appropriate,” as found in ERISA’s § 502(a)(3). Footnote 2 of Sereboff v. Mid Atlantic Medical Services, Inc, 126 S.Ct. 1869, 74 USLW 4240, 164 L.Ed.2d 612, (May 15, 2006) states as follows:

The Sereboffs argue that, even if the relief Mid Atlantic sought was “equitable” under § 502(a)(3), it was not “appropriate” under that provision in that it contravened principles like the make-whole doctrine. Neither the District Court nor the Court of Appeals considered the argument that Mid Atlantic’s claim was not “appropriate” apart from the contention that it was not “equitable,” and from our examination of the record it does not appear that the Sereboffs raised this distinct assertion below. We decline to consider it for the first time here.