entitled to benefits under the Deferred Compensation

Plan because the plan "was administered in violation of the fiduciary duties owed

to ULLICO" fell within this Court's supplemental jurisdiction and was not

preempted by ERISA. Carabillo, 357 F. Supp. 2d at 256,259. In short, I found

that there was a "factual nexus" between counterclaim defendants' ERISA claims

and the counterclaim plaintiffs' argument that benefits cannot be paid out under

the Deferred Compensation Plan. Carabillo, 357 F. Supp. 2d at 259. The same

holds true here, and therefore Count VI falls within the Court's supplemental

jurisdiction.

          Thus, while the breach of fiduciary duty claims as to the Deferred

Compensation and Auxiliary plans are dismissed, the claim that counterclaim

defendants breached their fiduciary duty to ULLICO, and therefore their benefits

from the Deferred Compensation Plan may be disgorged or denied, survives the

counterclaim defendants' summary judgment motion. 7

    IV.       Professional Negligence

          In Count IV of its Consolidated Counterclaim, the sole claim unrelated to a

breach of fiduciary duty, counterclaim plaintiffs allege that Carabillo committed

7 Counterclaim defendants further argue that the Auxiliary and Deferred Compensation plans prohibit
forfeiture or setoff, and therefore Counts III, V, and VI - all requesting forfeiture or setoff as relief for the
alleged breaches of fiduciary duty - should be dismissed. Countercl. Def. Mot. at 49-53. To succeed,
counterclaim defendants must show that the contractual language was "specific and precise" in explaining
the intent of the parties to preclude setoff. In re Carlyle, 242 B.R. 881, 892 (Bankr. E.D. Va. 1999). The
terms ofthe Auxiliary and Deferred Compensation plans are, at best, ambiguous as to whether they prohibit
forfeiture or setoff, and the Court therefore will not grant summary judgment on the basis of this argument.


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professional negligence by providing erroneous