932 F.2d 357 (5th Cir. 1991), 90-8290, Total Plan Services, Inc. v. Texas Retailers Ass'n

Docket Nº:90-8290.
Citation:932 F.2d 357
Party Name:TOTAL PLAN SERVICES, INC., et al., Plaintiffs-Appellants, v. TEXAS RETAILERS ASSOCIATION, et al., Defendants-Appellees.
Case Date:May 15, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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932 F.2d 357 (5th Cir. 1991)

TOTAL PLAN SERVICES, INC., et al., Plaintiffs-Appellants,

v.

TEXAS RETAILERS ASSOCIATION, et al., Defendants-Appellees.

No. 90-8290.

United States Court of Appeals, Fifth Circuit

May 15, 1991

Michael Diehl, R. James George, Jr., Eric G. Behrens, Graves, Dougherty, Hearon & Moody, Austin, Tex., for plaintiffs-appellants.

Joseph P. Kelly, Kelly, Stephenson & Marr, Victoria, Tex., for George Washington Life Ins., Co.

Mark L. Kincaid, Joe K. Longley, Long & Maxwell, Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion March 6, 1991, 5th Cir., 925 F.2d 142)

Before REAVLEY, JONES, and SMITH, Circuit Judges.

PER CURIAM:

In its petition for rehearing, Total Plan Services, Inc. (Total Plan), notes that although the opinion states that Total Plan had contacted individual TRA members to offer them lower premiums, this was only an allegation and not an established fact. We thus insert the word "allegedly" into

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our factual description; the end of the second paragraph of part I then reads as follows:

Pursuant to an earlier deal with plaintiff Total Plan Services, Inc. (Total Plan), George Washington allegedly began to contact individual TRA members....

Total Plan also believes that our opinion leaves open its claims for compensation under ERISA. This is incorrect. We affirmed because acting otherwise would result in enjoining a state court action. The state court still asserts jurisdiction over this case and all its related parts, an assertion that we cannot question under the Anti-Injunction Act.

Furthermore, even if we were to consider Total Plan's claim, we would be forced to deny it, as Total Plan simply raises the state law claim of breach of contract. Although it is true that ERISA allows for suit to recover losses occasioned by a fiduciary...

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