does anyone know if you can bring up new ideas on appeal in the 2nd circ. like breach of fiduciary duty when in district ct. it was vesting of retiree benefits under erisa? we lost in district court and judge disagreed with our arg that contract was ambiguous. need to show that contract is ambig to let in extrinisic evidence. end goal: getting retireers they benefits that were promised for life. but contract is sneaky and has clause saying have right to amend terminate plans. any ideas????? thanks

General rule is that losing party cant raise new claims or defense on appeal that were not made at trial because the trial is supposed to be the fact finding process to determine the validity of the claim or defense. Otherwise there would be a never ending cycle of appeals which would be disguised trials of issues that had not been raised at trial. Appeals courts are not equipped to act as triers of fact. I am sure you will find the answer if you consult a legal reference book such as Moore's Federal Practice, not this board. By the way right to amend a terminated plan is not an uncommon feature and is enforceable like any other contractual term adopted by the settlor.

Sound like a good malpractice action against the attorneys for failing to bring up the issues on which they might have prevailed. Perhaps a petition for a re-hearing would be a possibility, but I suspect that the pleadings do not address the new issues/arguments and therefore would be inadmissible even if the rehearing were granted.

The plan contract may seem sneaky to you, but it is just fiscal prudence to plan sponsor. No one guarantees post retirement health benefits, unless the employer buys insurance policies. I don't even think insurers offer a lifetime health benefit policy. And... no one guarantees that the plan sponsor will always be able to afford the benefits, nor future profits, nor that the plan sponsor will even exist.
Sorry if I don't seem too helpful here. Maybe you could explain why your case has merits ignored by the judge.