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Thursday, April 24, 2008

Frail Grasp On the Big Picture

In the past several days two somewhat different views of the Kantor decision in the Arken/Robinson cases have come down. The first, from Aruna Masih, counsel for Bennett, Hartman, Morris and Kaplan sent the following note out to the Arken plaintiffs:

"As you will recall, in last year's decision, Judge Kantor found in favor of you and Robinson petitioners, but on grounds we did not raise. Therefore, we asked Judge Kantor to clarify this decision,asking him to rule specifically on the main claim we did raise on your behalf, which was that you have a contractual right to keep the 20 percent earnings because in the Strunk case, the Oregon Supreme Court held that the 2003 Legislation created a new entitlement to a fixed retirement benefit based on the 20 percent earnings plus COLA. Also, we alleged that even if you did not have a contractual right to keep the 20 percent earnings, you retired in reliance on the fact that your retirement benefit would be based on the 20 percent earnings plus COLA and that reliance was reasonable.

In yesterday's decision, Judge Kantor ruled against us on that breach of contract and reliance (promissory estoppel) theory. Therefore, the contract claim will have to be decided by the appellate courts. While we are disappointed by the decision, we want to remind you all that we have always expected this case to be decided ultimately by the Oregon Supreme Court. We are busy researching ways to petition the Court of Appeals to certify the appeal directly to the Supreme Court so that you do not have to wait even longer for a final decision on this issue.

In the meantime, Judge Kantor's initial decision protecting all window retirees under the Section 14b reasoning still stands. We are certain Judge Kantor will be asked in the Robinson case to enter some judgment regarding that ruling within the next few months. We will keep you updated on the trial court's progress in the Robinson case as well as the appellate progress in this case."

And then later the same day, PERS posted its take on the Kantor ruling. It is longer and can be read at the PERS Website


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