As noted in our earlier blog post, "How to Win the Breach of a Severance Agreement Case in New York," although an employee may, as a general rule, bring a common law (i.e., non-statutory) breach of contract claim based upon the failure of an employer to live up to their end of the deal of a severance agreement, the same does not hold true where the severance plan is governed by ERISA (see, 29 USC 1001, et seq.).  In those cases, it is far more difficult to recover, and here's why: As the United States Supreme Court has held, in order to recover pension benefits for the breach of an ERISA plan, "a plaintiff must prove that his or her discharge was motivated by a specific intent to deprive him or her of pension benefits, and that the loss of such benefits was not a mere consequence of his or her termination ( see Lightfoot v. Union Carbide Corp., 110 F.3d 898, 906, cert. denied 528 U.S. 817, 120 S.Ct. 56, 145 L.Ed.2d 49; Dister v. The Continental Group, 859 F.2d 1108, 1111)." That, as I'm sure you can imagine, is extremely difficult to prove.

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