• In Bacon v. Stiefel Laboratories, Inc., No. 09-21871-CV, 2011 WL 4944122 (S.D. Fla. Oct. 17, 2011), the district court held that the execution of general releases that specifically referenced ERISA were enforceable and barred the two plaintiffs’ ERISA and securities law claims. The court first determined that the releases were knowing and voluntary, after applying the Eleventh Circuit’s test requiring consideration of: (1) the plaintiff’s education and business experience; (2) the amount of time the plaintiff had to consider the agreement before signing it; (3) the clarity of the agreement; (4) the plaintiff’s opportunity to consult with an attorney; (5) the employer’s encouragement or discouragement of consultation with an attorney; and (6) the consideration given in exchange for the waiver when compared with the benefits to which the employee was already entitled. The court then rejected the plaintiffs’ arguments that the releases violated ERISA’s anti-alienation clause and that the releases had to be separately negotiated or supported by separate consideration. As to ERISA’s anti-alienation clause, the court determined that the plaintiffs’ arguments were precluded by the Supreme Court’s decision in Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285 (2009), where the Court held that ERISA’s anti-alienation provision does not apply to the waiver of rights to vested benefits; instead, it prevents the assignment to a third party of an enforceable right against an ERISA plan for the payment of benefits. Finally, the court noted that the releases and general contract law required that the two plaintiffs return the monies paid to them in exchange for the general releases before attempting to invalidate them and that the two plaintiffs had not done so. As to a third plaintiff, the court found that the general release was not enforceable because it was executed before the conduct challenged in the lawsuit occurred.