Good morning and Happy Martin Luther King, Jr. Day!  There were so many notable and circuit court decisions from this past week it was hard to choose just one noteworthy decision.  I decided to go with one awesome decision that may not have gotten as much press coverage as the others – Ellis v. Liberty Life Assurance Company of Boston, No. 15-CV-00090-LTB, 2019 WL 200394 (D. Colo. Jan. 15, 2019). What I love about this decision is that it snatches victory from the jaws of defeat, but it also highlights the real difference the standard of review makes.  On a motion for reconsideration, Plaintiff Ellis’s new attorneys, McDermott Law, were able to get the Court to reconsider its previous decision finding that C.R.S. § 10-3-1116(2) does not apply to the discretionary language in the relevant disability policy and entering judgment in favor of Liberty Life under an arbitrary and capricious standard of review.  See Ellis v. Liberty Life Assurance Co. of Bos., 333 F. Supp. 3d 1083 (D. Colo. 2018). 

On the standard of review, Plaintiff re-argued the applicability of § 10-3-1116(2) with more attention to amendments to the Policy and a Summary Plan Description for Comcast’s Disability Plan that was not part of the administrative record.  The SPD states that the Plan is effective January 1, 2011 and is the successor plan to the previously maintained disability plans.  The court noted that Liberty Life failed to cite to any authority to rebut Plaintiff’s argument that these amendments make it such that the court would not be applying § 10-3-1116(2) retroactively, as it had declined to do in his prior decision. 

The court rejected Liberty Life’s request to strike the SPD from reconsideration since “[a]sking the Court not to consider information known to it that is relevant to Mr. Ellis’s claim for long term disability runs counter to the duty that Liberty owes Mr. Ellis.”  The court also rejected Liberty Life’s argument that it should not be bound by the SPD since it was prepared and issued by Comcast.  The court found the SPD and the Policy related as the SPD explains that the Comcast benefits are provided through an insurance contract.  The Policy’s issuance date of 2005 does not preclude the application of § 10-3-1116(2)’s prohibition on discretionary provisions since the Comcast Disability Plan went into effect in 2011.

Applying de novo review rather than the arbitrary and capricious standard of review, the court found that Plaintiff was entitled to long-term disability benefits by the preponderance of the evidence.  As the court explained, 

“Ultimately, Liberty’s conclusion that Mr. Ellis was capable of performing the alternative occupations identified in his vocational analysis was predicated on its conclusion that Mr. Ellis did not suffer from any cognitive impairment. This conclusion, however, is not supported by a preponderance of the evidence. Rather, in reaching this conclusion, Liberty attached greater weight to the relatively scant evidence that supported a denial of ongoing long term disability benefits for Mr. Ellis than to the voluminous evidence that supported a contrary conclusion. Moreover, the probative value of the evidence relied on by Liberty is significantly undermined by Liberty’s failure to address acknowledged shortcomings in this evidence through additional review and consultation.”  

Though arguably this analysis would also support a finding of abuse of discretion, the court believed that it had the ability to find in favor of Plaintiff only if it did not give any deference to Liberty Life’s determinations.  The court entered judgment in favor of Mr. Ellis ordered Liberty Life to pay monthly benefits since the date they were terminated and until his medical condition changes or until he reaches the age of 65.

This is also a cautionary tale for those who represent plans and/or the insurer’s that fund these plans.  Here, the court found that a document prepared by the policyholder impacted the rights the insurance company attempted to grant to itself in the policy that it drafted.  But we’ve also seen the reverse play out in the context of state bans on discretionary clauses; specifically, in cases where courts have found that a grant of discretion in a Plan document overrides a state ban on discretionary clauses in disability policies.  See Gallegos v. Prudential Ins. Co. of Am., 2017 WL 35517, 62 EB Cases 2380 (N.D. Cal. Jan. 3, 2017); Brunelle v. Mid-Am. Assocs., Inc., 2017 WL 3588055 (E.D. Mich. Aug. 21, 2017).

Enjoy a skim of the rest of the cases below.  I’ll be back next week!

Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.

Attorneys’ Fees

Sixth Circuit

Wilson v. Fioritto Constr., LLC, No. 2:17-CV-317, 2019 WL 235111 (S.D. Ohio Jan. 16, 2019) (Judge George C. Smith).  In this dispute over unpaid fringe benefit contributions, the court ordered Defendant to pay Plaintiff’s counsel a total of $22,175.90 in attorney’s fees and other costs.  The court did not award fees for time spent not related to the case or spent doing purely clerical or secretarial tasks.  Attorney rates requested and awarded were $260-290/hour for a 4th-year attorney, $425-450/hour for a 15th-year attorney, and $210-215 for a paralegal with 37 years of practice.

Ninth Circuit

Sullivan v. The Prudential Life Insurance Company of America, No. 212CV01173TLNDAD, 2019 WL 248880 (E.D. Cal. Jan. 17, 2019) (Judge Troy L. Nunley).  In this case, Plaintiff prevailed in court on the “regular occupation” definition of disability and the court remanded the claim to Prudential to determine “any occupation” disability.  The parties settled attorney’s fees related to the litigation.  On remand, Prudential approved the claim for any occupation benefits and then later terminated the claim.  Plaintiff’s attorney got the benefits reinstated without filing a lawsuit but filed a motion seeking attorney’s fees for the work done on remand.  The court found that Plaintiff is not entitled to recover attorney’s fees for administrative exhaustion she would not have been entitled to recover if performed before filing suit.  The court also explained that a contingency fee arrangement with her attorney is not a basis for a fee award under ERISA. 

Hartle v. Life Insurance Company of North America, No. C18-5449 BHS, 2019 WL 195087 (W.D. Wash. Jan. 14, 2019) (Judge Benjamin H. Settle).  Plaintiff challenged LINA’s reduction of his LTD benefits by the amount of his pension benefits rolled into an IRA.  The parties settled the matter within a few months of the filing of the complaint.  Plaintiff sought over $58,000in attorneys’ fees.  The court found that Plaintiff met his burden of establishing that an award of fees is warranted because he achieved complete success in obtaining a settlement and restoration of his benefits and an award of past due amounts. “LINA was culpable in the sense that it reduced Hartle’s benefits with no investigation and despite letters from Hartle threatening a lawsuit. LINA appears to be able to pay any award of fees. An award of fees would most likely deter insurance servicers from acting without an investigation and despite communications from the claimant. The fourth Hummell factor is irrelevant to this simple matter. Finally, LINA conceded that Hartle was due his requested relief.”  But, the court found that the amount of fees is excess and unwarranted.  The court awarded fees for 40.81 hours of work at a rate of $500 per hour for a total of $20,400, and $2,525 for 10.1 hours of paralegal work at $250 per hour.

D.C. Circuit

Service Employees International Union National Industry Pension Fund, et al., v. Palisades Operations, LLC, No. 17-CV-1664 (KBJ), 2019 WL 211391 (D.D.C. Jan. 16, 2019) (Judge Ketanji Brown Jackson).  The court adopted in its entirety the Report and Recommendation awarding attorneys’ fees and costs and awarded Plaintiffs a total of $8,826.00.

Breach of Fiduciary Duty

First Circuit

Scottsdale Ins. Co. v. Byrne, No. 18-1526, __F.3d__, 2019 WL 211420 (1st Cir. Jan. 16, 2019) (Before Lynch, Stahl, and Barron, Circuit Judges).  Wellesley Advisory Reality Fund I, LLC (“WARF”) was sued by Appellees for mismanaging and squandering money that the Funds had invested.  Following entry of default against WARF, it assigned the Funds its rights in WARF’s insurance policy with Scottsdale Insurance Company, which had declined to defend WARF on the basis of several exceptions within the policy, including the Professional Services Exclusion, ERISA Exclusion, and Conduct Exclusion.  The court affirmed the district court’s decision that the exclusions in Scottsdale’s policies did not relieve the insurer of its duty to defend WARF in the prior action and the court’s award of $3 million to the Funds, plus post-judgment interest.

Ninth Circuit

Acosta v. Saakvitne, et al., No. 18-00155 (D. Haw. Jan. 18, 2019) (Judge Susan Oki Mollway).    In this case where the Secretary alleges that Defendants Saakvitne, Bowers, and Kubota caused Bowers + Kubota Consulting, Inc.’s ESOP to purchase the Company’s share for more than they were worth, the court found that the Company and the ESOP are properly named and necessary pursuant to FRCP 19(a).  The court also found that the Complaint sufficiently alleges that Defendants Bowers and Kubota were ERISA fiduciaries for the ESOP’s purchase of company stock, that they breached their fiduciary duty to monitor Defendant Saakvitne, and that Bowers and Kubota had co-fiduciary liability for Saakvitne’s breach.  The Complaint also sufficiently alleges non-ERISA fiduciary claims against Bowers and Kubota.  Lastly, the court found that the improper indemnification claims may proceed because the Complaint sufficiently alleges ERISA fiduciary liability.

Disability Benefit Claims

First Circuit

Holzman v. Hartford Life & Accident Ins. Co., No. CV 17-11436-NMG, __F.Supp.3d__, 2019 WL 181527 (D. Mass. Jan. 14, 2019) (Judge Gorton).  In this dispute over long-term disability benefits, the court granted Defendant’s motion for summary judgment.  The court agreed with Hartford that contra proferentem does not apply because the Group Policy grants full discretionary authority to Hartford to determine eligibility for benefits.  Hartford proffered a reasonable interpretation of the policy’s pre-existing condition provision, which clearly states that treatment of any sickness during the look-back period precludes LTD coverage.  Plaintiff received medical care during the look-back period for his facial paralysis which was a specific manifestation of his disabling salivary duct cancer (which was diagnosed outside of the look-back period).  On the standard of review, the court concluded that the conflict of interest is minimal because Hartford proffered evidence of its unbiased interest and Plaintiff didn’t raise the issue despite his burden to do so.

Fourth Circuit

Cannon v. Charter Communications Short Term Disability Plan, No. 3:18-CV-041-DCK, 2019 WL 235325 (W.D.N.C. Jan. 16, 2019) (Magistrate Judge David C. Keesler).  The court determined that the Claims Administrator did not abuse its discretion in denying Plaintiff’s claim for short-term disability benefits where Defendant found that the only limitation identified by Plaintiff’s doctor was an inability to drive and where Plaintiff worked for several years with the same vertigo and sleep apnea conditions.  Plaintiff argued that he was restricted to working from home, but Defendant concluded that this claimed restriction is not an essential duty of his occupation.  

Ninth Circuit

Kott v. Agilent Technologies, Inc. Disability Plan, No. 17-16584, __F.App’x__, 2019 WL 258769 (9th Cir. Jan. 18, 2019) (Before: M. Smith, Nguyen, and Bennett, Circuit Judges).  The court affirmed the district court’s decision to exclude evidence outside of Sedgwick’s record at the time of its decision.  The court reversed and remanded to the district court to send the case back to Sedgwick with instructions to reevaluate its long-term disability determination in light of the court’s ruling.  “We point to three primary reasons why Sedgwick abused its discretion in denying Kott’s claims: (1) Sedgwick did not provide Kott with a proper explanation for why it denied her benefits; (2) Sedgwick failed to consider the simultaneous restrictions on Kott’s ability to sit and her ability to stand, which likely precluded her from even part-time work; and (3) Sedgwick included an erroneous factual finding in its denial letter that likely influenced its findings.”

Tenth Circuit

Ellis v. Liberty Life Assurance Company of Boston, No. 15-CV-00090-LTB, 2019 WL 200394 (D. Colo. Jan. 15, 2019) (Judge Lewis T. Babcock).  See Notable Decision summary.

ERISA Preemption

Fourth Circuit

Hecht v. United Jewish Federation of Tidewater, Inc., No. 2:18-CV-542, 2019 WL 237394 (E.D. Va. Jan. 16, 2019) (Judge Raymond A. Jackson).  Plaintiff brought state law claims against Defendant for misrepresenting his independent contractor status in order to provide him with employee benefits, including health, life, and disability insurance.  Defendant removed the action on federal question jurisdiction grounds.  The court remanded the matter to state court, finding that the claims are not preempted by ERISA.  The court explained that Plaintiff is a former employee with no reasonable expectation of returning to covered employment nor a colorable claim to vested benefits.  Because he’s not an ERISA participant, his claims are not preempted.

Ninth Circuit

Stoker v. Hartford Life & Accident Ins. Co., No. CV-18-00427-TUC-RM, __F.Supp.3d__, 2019 WL 245456 (D. Ariz. Jan. 16, 2019) (Judge Rosemary Marquez).  Plaintiff brought a claim for intentional infliction of emotional distress (IIED) in connection with Hartford’s administration of her long-term disability claim.  Although the conduct alleged would not have occurred but for Hartford’s handling of her ERISA benefits claim, that connection alone is not enough by itself to warrant preemption.  “As alleged, the hostile, oppressive, or abusive conduct by Hartford implicates duties outside of ERISA and thus is not shielded by preemption. Hartford’s preemption challenge will thus be denied without prejudice.”

Medical Benefit Claims

Third Circuit

Pennsylvania v. Trump, No. 17-4540, 2019 WL 190324 (E.D. Pa. Jan. 14, 2019) (Judge Wendy Beetlestone).  The court granted Plaintiffs, the Commonwealth of Pennsylvania and the State of New Jersey’s second motion for preliminary injunction against Defendants to enjoin enforcement of two Final Rules that grant exemptions to the ACA’s requirement that health plans cover women’s preventive services.

Pension Benefit Claims

First Circuit

Garcia-Tatupu v. Bert Bell/Pete Rozelle Nfl Player Retirement Plan; NFL Player Supplemental Disability Plan, No. 17-2179, __F.App’x__, 2019 WL 181315 (1st Cir. Jan. 14, 2019) (Before Lynch, Selya, and Lipez, Circuit Judges).  Without opining upon the circumstances in which nunc pro tunc state court domestic relations orders entered after the death of a plan beneficiary may be treated as QDROs, the court affirmed the district court’s decision that the nunc pro tunc, postmortem orders which attempt to rewrite the marital separation agreement to posthumously create new interests in retirement benefits, should not be treated as QDROs under ERISA.

Second Circuit

Pension Benefit Guar. Corp. v. Booke & Co., Inc. as Plan Adm’r of the Booke & Co. Pension Plan, No. 18-CV-1409 (AJN), 2019 WL 192245 (S.D.N.Y. Jan. 15, 2019) (Judge Alison J. Nathan).  The court ordered that Defendant’s pension plan is terminated pursuant to 29 U.S.C. § 1342(c); the PBGC is appointed statutory trustee of the Plan pursuant to 29 U.S.C. § 1342(c); November 30, 2014, is established as the termination date of the Plan pursuant to 29 U.S.C. § 1348(a)(4); and “Booke & Co., and any other person or entity having possession, custody, or control of any records, assets, documents, or other property of the Plan, shall transfer, convey, and deliver all such records, assets, and property to PBGC pursuant to 29 U.S.C. § 1342(d)(1).”

Frommert v. Conkright, No. 17-114-CV, __F.3d__, 2019 WL 178077 (2d Cir. Jan. 14, 2019) (Before: Kearse, Cabranes, and Lohier, Circuit Judges).  This matter involves the proper calculation of pension benefits payable to rehires who previously received lump-sum distributions of retirement benefits so as not to double pay them.  This court previously determined that “the Plan Administrator’s method of calculating the Plaintiffs’ current benefits violated ERISA’s notice requirements and therefore could not be applied to the Plaintiffs’ benefits.”  It remanded the case to the district court to fashion an equitable remedy.  The district court selected the equitable remedy of reformation and held that “New Benefits” should be calculated as if Plaintiffs were newly hired on their return to Xerox.  The Second Circuit found that this remedy falls within the “range of permissible decisions available under an abuse of discretion standard.”  The court also affirmed the district court’s determination that Plaintiffs are entitled to prejudgment interest at the federal prime rate because the district court had broad discretion to grant prejudgment interest and select a rate, it carefully considered the relevant factors, and it thoroughly explained its reasoning.

Plan Status

Seventh Circuit

Graham v. Board of Education of the City of Chicago, No. 18 C 4761, 2019 WL 215098 (N.D. Ill. Jan. 16, 2019) (Judge Virginia M. Kendall).  The court determined that the Plan is a governmental plan.  “Even taking Graham’s allegations of more than de minimis participation by charter schools employees to be true (as the Court must), that still does not count the plan as non-governmental because she does not claim that private employers establish or maintain the plan.” 

Pleading Issues & Procedure

Fifth Circuit

Fuller v. Healthcare Services Group, Inc., No. 2:18-CV-032-D, 2019 WL 244487 (N.D. Tex. Jan. 17, 2019) (Judge Sidney A. Fitzwater).  The court concluded that Defendant has not met its burden of establishing the existence of an agreement to arbitrate Plaintiff’s negligence action, either through evidence of an actual agreement set out in the ERISA Occupational Injury Benefit Plan or through the doctrine of direct benefits estoppel. The court denied Defendant’s motion to dismiss and compel arbitration.

Sixth Circuit

Clanney v. Liberty Life Ins. Co. of Bos., No. 5:18-CV-620-JMH, 2019 WL 208872 (E.D. Ky. Jan. 15, 2019) (Judge Joseph M. Hood).  The court construed the parties’ Joint Stipulation of Dismissal Without Prejudice as to Defendant Toyota Motor Engineering North America, Inc., Group Disability Income Policy, as a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 21 and granted the motion.  The court determined that the nonmovant Toyota policy will suffer no prejudice and dismissing it from the case will prevent the Toyota policy from incurring the expenses of defending itself in this action.

Eighth Circuit

Schwartz v. Bogen, No. 17-3812, __F.3d__, 2019 WL 208067 (8th Cir. Jan. 16, 2019) (Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges).  The court found that Plaintiff’s lawsuit against his ex-wife, alleging violations of ERISA that arose from payments he made to her for almost three decades, was properly dismissed under New Jersey law on the basis of res judicata.  Prior to filing this suit, Plaintiff lost a state court case brought by his ex-wife to compel him to pay her 20% of his pension plan in monthly installments.  Plaintiff did not appeal the state court judgment.  He did not raise the argument that the state court had no jurisdiction to address violations of ERISA and the REA before the state court.  And, the state court’s judgment demonstrates that he fully participated in the state court proceeding.  Plaintiff could have sought removal of his ex-wife’s lawsuit to federal court, but he did not do so.  Judgment is affirmed.

Provider Claims

Eighth Circuit

Peterson on behalf of E v. UnitedHealth Grp. Inc., No. 17-1744, __F.3d__, 2019 WL 190929 (8th Cir. Jan. 15, 2019) (Before Shepherd, Melloy, and Grasz, Circuit Judges).  The court affirmed the district court’s grant of partial summary judgment to Plaintiff on the issue of liability on the basis that the relevant ERISA plan documents do not authorize United to engage in cross-plan offsetting for overpayments made to out-of-network medical providers.  The court found that Dr. Peterson is authorized to bring this action as a representative of his patients because there is no meaningful conflict between him and his patients and his disclosure of the supposed conflict of interest was sufficient.  The court did not decide whether cross-plan offsetting necessarily violates ERISA, but “at the very least it approaches the line of what is permissible.”

Retaliation Claims

Seventh Circuit

Campbell, et al. v. Whobrey, et al., No. 16 C 4631, 2019 WL 184056 (N.D. Ill. Jan. 14, 2019) (Judge Edmond E. Chang).  In this case “Plaintiffs assert that the Trustees neglected their duties of prudence and loyalty by refusing to consider a third-party’s offer to take on the Plaintiffs’ pension liabilities and thereby preserve their retirement benefits,” and “they also claim that the Defendants retaliated against them for filing their original complaint in this case by refusing to negotiate over the third-party offer after the complaint’s filing.”  The court dismissed the Section 510 claim.  A viable Section 510 claim must allege that the defendant treated plan participants or beneficiaries differently from other plan participants or beneficiaries.  The refusal to negotiate here does not differentiate amongst plan participants and there is no precedent for a Section 510 claim against a Plan for refusing to negotiate with an employer.  And, Defendants’ refused to negotiate pre-lawsuit which undercuts the plausibility of the retaliation claim.  Lastly, Plaintiffs have no restitution to recover under Section 510 and monetary relief is not available.

Statute of Limitations

Ninth Circuit

Gregoire v. United Healthcare Services, Inc., et al., No. C 18-04764 WHA, 2019 WL 174555 (N.D. Cal. Jan. 10, 2019) (Judge William Alsup).  The court granted in part and denied in part Defendants’ motion for summary judgment against the pro se plaintiff.  “Because defendants failed to comply with Subsection [29 C.F.R. § 2560.503–1](g)(1)(iv) by not sufficiently and clearly including in the denial letter that the limitations period would bar plaintiff’s claim, prejudice is presumed and the plan’s limitations period is unenforceable against plaintiff.”


Fifth Circuit

Casey v. Reliance Trust Company, No. 4:18-CV-00424, 2019 WL 244573 (E.D. Tex. Jan. 17, 2019) (Judge Mazzant/Magistrate Judge Craven).  In this putative class action alleging breach of fiduciary duty for losses to the ESOP caused by Defendant when it authorized the Plan to buy shares of RVNB Holdings, Inc. for more than fair market value, the court denied Defendant’s motion to transfer venue to the Northern District of Georgia.  “The Court has made a de novo review of the objections raised by Defendant and agrees with the Magistrate Judge’s conclusion that the localized interest factor weighs against transfer. Plaintiffs allege the Plan, located in this district, engaged in stock and loan transactions with RVNB and selling shareholders, also located in this district. Because Plaintiffs seek losses to a Plan in this district, this Court has a compelling local interest in adjudicating this case.”

Withdrawal Liability & Unpaid Contributions

Second Circuit

Trustees of The Building Trades Educational Benefit Fund v. Pegasus Electric, Inc., No. 17CV3450JFBSIL, 2019 WL 245457 (E.D.N.Y. Jan. 17, 2019) (Magistrate Judge Steven I. Locke).  Following the district court’s grant of default judgment to Plaintiffs, the court “recommended that Plaintiffs be awarded damages in the total amount of $98,749.89, plus attorneys’ fees and costs.”

Bricklayers Insurance and Welfare Fund v. Bella Group LLC, No. 17CV4479DRHSIL, 2019 WL 192521 (E.D.N.Y. Jan. 15, 2019) (Magistrate Judge Steven I. Locke).  “[T]he Court recommends awarding Plaintiffs damages of $14,266.69 against Bella and $6.969.20 against Chwedczuk while declining to enter an injunction compelling Bella to submit to an audit.”

Drywall Tapers and Pointers of Greater New York Local Union 1974, IUPAT, AFL-CIO v. Bronx Base Builders, LTD., No. 18CIV1088VSBJLC, 2019 WL 181214 (S.D.N.Y. Jan. 14, 2019) (Magistrate Judge James L. Cott).  The Magistrate Judge “recommend[ed] that the Court: (1) confirm the arbitration award of $1,386.20; (2) grant plaintiff’s request for attorney’s fees, in substantial part, in the amount of $2,340, and costs in the amount of $480; (3) award post-judgment interest upon entry of judgment; and (4) deny plaintiff’s request for liquidated damages and interest.”

Fourth Circuit

Trustees of The Plumbers and Pipefitters Nat’l Pension Fund, et al., v. Merrick Co., LLC, No. 1:18CV1054, 2019 WL 180182 (E.D. Va. Jan. 11, 2019) (Judge T.S. Ellis, III).  “The Clerk of Court is directed to enter Rule 58 judgment against defendant Merrick Co., LLC and in favor of The National Pension Fund in the amount of $45,419.86 and in favor of The International Training Fund in the amount of $6,064,50. in unpaid contributions, accrued interest, liquidated damages. Plaintiffs are also awarded attorneys’ fees in the amount of $1,857.50 and costs in the amount of $689.29.”

Seventh Circuit

Fox Valley & Vicinity Construction Workers Welfare Fund v. Morales, No. 17 C 416, 2019 WL 247538 (N.D. Ill. Jan. 17, 2019) (Judge Charles P. Kocoras).  The court granted the Funds’ motion for summary judgment in part.

Ninth Circuit

Buckhorn, et al. v. Hettinger, No. 15-CV-04352-TSH, 2019 WL 251485 (N.D. Cal. Jan. 17, 2019) (Magistrate Judge Thomas S. Hixson).  The court granted “Plaintiffs’ motion for summary judgment in full. The Court awards $123,833.54 in damages as follows: $39,350.97 for breach of contract; $19,232.74 in unpaid contributions; $12,516.74 in liquidated damages; $8,153.37 in interest; attorneys’ fees in the amount of $43,138.90; and $1,440.82 in costs.”