Must admit I laughed myself silly back in the early 90s while watching Tom Sellect in Mr. Baseball. He is a professional baseball player and has a bad dream about striking out. The umpire though feels bad as Tom is an aging ball player and tells the pitcher to throw another pitch. Strike 4! And another pitch. Strike 5! Just one more!! Strike 6. Tom wakes up in a cold sweat. To some extent I am reminded of the Bozinni v Ferguson case (not to be confused with a similar case involving back surgery).
The original Bozzini case was dismissed in August 2024 but Judge Martinez - Olguín gave the plaintiffs a chance to amend and refile. And that they did with gusto. The plaintiffs in Bozzini v. Ferguson Enters. LLC attempted to expand their original 2022 excessive fee lawsuit by introducing new claims regarding the alleged misuse of forfeited 401(k) plan contributions. Judge Martínez-Olguín dismissed the amended complaint on May 29, 2025, ruling that the plaintiffs violated her prior order by introducing new legal theories without court or defendant consent.
She emphasized that:
The new forfeiture-based claims were not mentioned in the original complaint.
Even if the new claims had been properly introduced, they were insufficiently pleaded.
ERISA does not require forfeitures to be used exclusively to pay administrative costs.
The plaintiffs failed to show any violation of plan terms or disloyalty.
As a result, the second and third causes of action were dismissed, but the court granted plaintiffs a narrow opportunity to seek permission to amend, with a tight response timeline.
Just how many strikes do the plaintiffs get? Considering the time/ money (and dare I say stress of a lawsuit), shouldn't this be enough? And what do we make of the attempt to add forfeitures to the lawsuit? Not only does it weaken their case (in my non-lawyer opinion) but it really shows that some of these forfeiture/ excessive fee cases are perhaps feeble attempts to shake money out of the system. I recall seeing the filings on one case where rubber stamp language was used including the names of the plaintiffs in another case! Shoddy work. Leaves rather a bad taste in the mouth, no?
I am all for writing a wrong via the court system but this is getting a bit silly. Perhaps I will try to find my VHS machine so I can watch Mr. Baseball again. Then again, I can probably just stream it.