This week’s notable decision comes out of the Ninth Circuit Court of Appeals in a matter involving employer contributions to a union pension plan, Lehman, et al. v. Nelson, et al., No.18-35321, __F.3d__, 2019 WL 6484254 (9th Cir. Dec. 3, 2019). The Court affirmed the district court’s holding that trustees of the IBEW Pacific Coast Pension Fund (“Pacific Coast Fund”) abused their discretion by interpreting Plan Amendment 24 (an attempted Rehabilitation Plan to right the ship of its underfunded, ‘critical status’ pension plan pursuant to the terms outlined in the Pension Protection Act of 2006 (“PPA”)) to apply to “pass-through” payments to be transferred to out-of-state plans. As part of the Pacific Coast Fund’s rehabilitation plan, the Fund’s trustees used Amendment 24 to the Plan to specifically create “non-benefit contributions” and excluded those from the definition of “contributions” for which contributions would need to be made to a traveler’s home fund.
The Court’s decision comes two years (2017) after it previously upheld the district court’s orders granting summary judgment to Lehman and awarding damages to the Class for all contributions withheld under Amendment 14 to the Plan which stated that the first $1.00 of required employer contribution for each hour of covered work would not result in any monthly benefit accrual in order to improve the funding of the Plan. The Ninth Circuit panel in 2017 remanded for further proceedings on the withholdings under Amendment 24 and also vacated the district court’s award of attorneys’ fees.
Lehman, the named plaintiff was an electrician whose profession required him to frequently travel outside of his home fund (the Puget Sound Electrical Workers Pension Trust (his “Home Fund”) making him a “traveler.” In order not to saddle travelers, like Lehmann, with the maintenance of several small pension funds for covered work outside of the home fund, a Reciprocity Agreement allowed such outside employer contributions to be transferred to the home fund. Additionally, Amendment 24 (1) imposed a $1.00 hourly withholding from employer contributions for contribution rates below $3.00 per hour and (2) established an additional withholding of all required increases in employer contributions and all surcharge payments made in accordance with the PPA. This Rehabilitation Plan, Amendment 24, describes the required increases as “non-benefit contributions” to be utilized solely to improve the funding condition of the Plan. However, Section 5.04 of the Plan specifically requires that the Pension Plan collect and transfer “all contributions received on behalf of an Employee.” The district court held that the Plan required that all contributions, including this pass-through which the Trustees unilaterally deemed a “non-benefit contribution” needed to be made to a traveler’s home fund because such a pass-through was plainly a “contribution” as defined in the Plan. Any other interpretation would render Section 5.04 nugatory. The Court held that travelers’ pass-through contributions made to home funds are not assets of the Pacific Coast Fund, that attempts to make “benefit contributions” into “non-benefit contributions” pursuant to a collective bargaining agreement are unavailing and that all traveler contributions must be passed through the Plan as required by the Plan. Finally, the Court affirmed that because travelers’ contributions do not belong to the Pacific Coast Fund, the district court’s order did not violate the Pension Protection Act of 2006.
This week’s notable decision summary was prepared by Tim Rozelle.
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Breach of Fiduciary Duty
Draney v. Westco Chemicals, Inc. et al., No. 2:19-cv-01405-ODW (AGRx), 2019 WL 6465510 (C.D. Cal. Dec. 2, 2019) (Judge Otis D. Wright, II). In this case against the fiduciaries of defined contribution and defined benefits plans, Defendants filed a motion to dismiss for lack of Article III standing on the narrow basis Plaintiffs failed to allege injury-in-fact. Plaintiff Ibarra argued he suffered direct injuries because he questioned the trustee about his retirement accounts and the trustee “rebuffed Ibarra.” Based on this response, Plaintiffs claim Ibarra was denied his defined benefit plan benefits. Plaintiffs also allege that when Ibarra retired, he was not given any information about the plans or his account status which denied him the ability to apply for his benefits. However, the court found the allegations for requests for plan information and whether a claim was made were too vague. The court granted Defendants’ motion to dismiss the claims related to the defined benefit plan for failure to adequately allege injury-in-fact, with leave to amend.
Disability Benefit Claims
Krysztofiak V. Boston Mutual Life Insurance Co., 9-0879, 2019 WL 6528609 (D. Md. Dec. 4, 2019) (District Judge Deborah Chasanow). Hearing cross-motions for summary judgement regarding the termination of ERISA-governed Long Term Disability benefits, the court held that Boston Mutual’s decision was an abuse of its discretionary authority, and granted Plaintiff’s motion in full. The Court noted that throughout the record, Defendant repeatedly argued that because Plaintiff could not provide “objective” evidence of disabling effects of her fibromyalgia, Defendant did not abuse its discretion. However, the Court disagreed: “As will be seen, Defendant has misinterpreted the law of this circuit and operated – seemingly at each stage of its review of [Plaintiff’s] claim – under the mistaken assumption that ‘objective evidence’ of a disability is a hard and fast requirement.” While Defendant’s medical experts relied on the absence of objective evidence to support its denial, the Court stated that no such evidence of fibromyalgia exists; “[y]et the subjective complaints of fibromyalgia sufferers are sufficiently consistent and numerous to provide the medical community with ‘objectively satisfactory’ evidence that fibromyalgia is very real. On the individual level: a patient will never be able to prove through objective evidence that she has fibromyalgia, but the subjective responses to tests . . . may be ‘objectively satisfactory’. The court went on to explain that Plaintiff’s subjective complaints were more than sufficient to verify the severity of her disability. The Court turned to Defendant’s other primary argument- that the Functional Capacity Evaluation (FCE) Plaintiff underwent proved his disability. Rejecting this argument, the Court concluded that the FCE did not support Defendant’s conclusion; and even if it did, FCEs are not necessarily reliable evidence when it comes to proving fibromyalgia. The court neglected to determine whether Defendant had a conflict of interest as both administrator and payor, as the decision was an abuse of discretion regardless of whether conflict existed.
Henkel of America, Inc. v. ReliaStar Life Ins. Co., et al., 18-cv-965, 2019 WL 6649181 (D. Ct. Dec. 6, 2019) (Mag. Judge Robert M. Spector), wherein the Court ruled on a series of party and third party discovery motions in a lawsuit involving Plaintiff Henkel of America, Inc. (“Henkel”), an employer who provides self-funded group health plan benefits with stop loss insurance from Defendant ReliaStar Life Insurance Company (“ReliaStar”). Pursuant to the Henkel Plan, Henkel designated Express Scripts, Inc. (“ESI”) as the claims administrator for the Plan’s prescription drug benefits. ReliaStar performed an audit of certain prescription drug benefits paid pursuant to Henkel’s Plan, following which ReliaStar denied coverage for more than $47 million in health claims paid by Henkel. The discovery motions before the Court fell into two broad categories: (1) motions to compel related to ESI’s alleged conflict interest in the adjudication of prescription drug claims and (2) motions to compel deposition and document subpoenas to treating providers of the underlying insureds. The Court’s March 28, 2019 Ruling on Henkel’s Motion for Judgment on the Pleadings laid out the parameters for what the Court would consider appropriate discovery in this case: (1) the extent and scope of the administrators’ (ESI and its subsidiary, Accredo) authority under Henkel’s Plan and (2) whether that authority was abused. The Court granted ReliaStar’s motion to compel certain document requests and interrogatory responses against ESI and Accredo seeking documents and information relating to rebate and financial information that may shed light into ESI’s authority and whether it authorized use of that authority (coverage of pharmaceutical claims by insureds) when it acted as an intermediary in the resale of those same pharmaceuticals back to the Henkel Plan. ESI and its subsidiary, Accredo, may have been paid substantial sums for the pharmaceuticals that ESI approved in the first place. The Court therefore granted this line of discovery relating to any information regarding direct or indirect payments, rebates and other considerations that ESI and Accredo received as a result of the pharmacy benefits approved by ESI. The Court, however, granted motions to quash subpoenas seeking the same information that were served on third party Drug Manufacturers that had contracts with ESI/Accredo. Finally, the Court granted ReliaStar’s motion to compel third party depositions of certain doctors that prescribed certain pharmaceuticals to the underlying insureds finding that ReliaStar may seek discovery into whether the prescriptions at issue were medically necessary or experimental/investigational as ESI may have abused its discretion in approving such claims.
Feinberg, et al., v. T. Rowe Price Group, Inc., et al., No. 17-cv-00427-JKB, 2019 WL 6497959 (D. Md. Dec. 3, 2019) (Magistrate Judge J. Mark Coulson). Before the court was a motion to compel further interrogatory responses. Fact discovery in the case had closed, but expert discovery was still open. Defendant sought further responses to several contention interrogatories. Plaintiff objected on several grounds, but primarily that providing responses was premature and the interrogatories were overbroad. The court noted that many courts and the FRCP allow for responses to contention interrogatories after the close of all discovery or until the pretrial conference or some other time. However, because fact discovery had closed, it overruled the prematurity objection stating, “Defendants should not be required to wait any longer to explore the specific factual basis” underlying Plaintiff’s complaint, “even if experts will further expound on these areas.” Regarding the broad nature of the interrogatories, the court noted they were expansive, but this was somewhat tempered by the fact the interrogatories were aimed at what Plaintiffs contended or believed. “In other words, Defendants seek to discovery exactly what evidence Plaintiffs intend to point to in order to prove the allegations in their [complaint]. That is the core purpose of discovery and, with the fact discovery deadline now passed, Plaintiffs should be in a perfect position to do so.” The motion to compel was primarily granted.
Williamson v. Unum Life Ins. Co. of Am., CIV-19-481-R, 2019 WL 6683116, (W.D. Okla. Dec. 6, 2019) (District Judge David L. Russell). In this dispute over the denial of long-term disability benefits, Plaintiff filed a Motion to Conduct ERISA Discovery in order to obtain discovery regarding 1) Defendant’s coverage guidelines, 2) Defendant’s profit sharing and bonuses or performance incentives, 3) the policies and procedures adopted to rectify Defendant’s history of bad faith claim denials, and 4) the identify of any person responsible for oversight of claims, appeals decision makers, fiduciaries and all protocols for oversight and accountability. In denying Plaintiff’s motion, the court concluded that Plaintiff’s requests were overly broad- and “[t]o the extent Plaintiff’s requests are sufficiently narrow, his rationale for requesting discovery reflects a speculative fishing expedition, which is not licensed by Rule 26(b). Plaintiff’s only argument for granting discovery is that the Defendant has a history of bad faith, profit-motivated disability claim denials. For support, Plaintiff cites two law review articles, which describe Defendant’s unsavory practices between the years 1993 and 2003. This does not satisfy Plaintiff’s burden.” Specifically, the court noted that while UNUM’s historical practices are entitled to some weight “given the time that has passed and the new claims-processing practices adopted by UNUM pursuant to the RSA, that history does not, by itself . . . overcome the strong presumption that the record on review is limited to the record before the administrator.” The Court also added that Plaintiff’s first, third, and fourth discovery requests appeared to be unnecessary as plaintiff already had access to the information he sought. As to the second request, plaintiff did not provide sufficient support that such information is relevant or discoverable here.
Exhaustion of Administrative Remedies
Jones v. Aetna Life Ins. Company, No. 18-1851, __F.3d__, 2019 WL 6647799 (8th Cir. Dec. 6, 2019) (Before Gruender, Benton, and Shepherd, Circuit Judges). In addition to a claim for disability benefits, Plaintiff alleged two fiduciary breach claims stemming from Aetna’s internal policies and procedures. The district court found that Aetna did not breach its fiduciary duty. At issue on appeal was Aetna’s affirmative defense of failure to exhaust the breach of fiduciary duty claim. The court found that it need not decide an issue which has split other circuit courts, and that is whether ERISA requires exhaustion when Plaintiffs enforce statutory rights like breach of fiduciary duty. This is because the statutory claims exception to the exhaustion requirement does not apply to plan-based claims “artfully dressed in statutory clothing.” The court found that the fiduciary breach claims merely re-litigates Aetna’s determination that Plaintiff was not disabled, and that Plaintiff failed to administratively exhaust her breach of fiduciary duty claim.
United Air Ambulance LLC v. Cerner Corp., No. CV-17-04016-PHX-SMB, 2019 WL 6524889 (D. Ariz. Dec. 4, 2019) (Judge Susan M. Brnovich). The court considered cross motions for summary judgment regarding whether Defendants’ abused their discretion in pre-approving the medical necessity of a toddler’s medical emergency air ambulance flight, but later denying the claim. The court reviewed the matter under an abuse of discretion standard but with additional skepticism required by defendant’s structural conflict of interest. The court found the first denial of the appeal for the pre-authorization request was an abuse of discretion because the denial misconstrued the Plan’s language and improperly required “inpatient status.” The court found the denial of subsequent claims were an abuse of discretion as well because Defendants refused to consider earlier physician recommendations for the air ambulance and did not reasonably interpret the plan’s undefined term “medical emergencies.” In sum, the Court finds the “litany of procedural irregularities erode Defendants credibility to sufficiently undermine the stated reasons for denying coverage.” The court denied defendant’s motion and granted plaintiff’s motion and ordered plaintiff to submit a motion for costs and attorney’s fees.
Pension Benefit Claims
Amron v. Yardain Inc. Pension Plan, et al., No. 18 CIV. 11336, 2019 WL 6619107 (S.D.N.Y. Dec. 5, 2019) (Judge Lorna Schofield). Wife filed for divorce on December 7, 2006. A QDRO was used to divide Wife’s fully vested defined benefit pension plan benefit. The QDRO “assign[ed] to the Alternate Payee an amount equal to FIFTY PERCENT (50%) of the Participant’s vested accrued benefit under the Plan as of December 7, 2006.” Years later, Husband wished to take a lump sum distribution of his half of the pension benefits. The parties disagreed on whether the lump sum should be discounted to present value using December 7, 2006 as the valuation date, or the date Husband made the claim for the benefits. The court agreed with Husband that the date he receives the lump sum is the date that should be used to discount the benefits to present value. Plaintiff Husband’s claim for miscalculated pension benefits under 29 U.S.C. § 1132(a)(1)(B) survives Defendants motion to dismiss.
Pleading Issues & Procedure
Beacon Sales Acquisition v. Bd. Of Trs. Of Teamsters Indus. Emps. Pension Fund, 19-19106 (KM) (JBC), 2019 WL 6497012 (D.N.J. Dec. 3, 2019) (Judge Kevin McNulty). Beacon moved for preliminary injunction seeking a declaration or injunction that arbitration of the Fund’s claims for delinquent contributions should not occur because Beacon allegedly never signed the Trust Indenture and cannot be bound by the Indenture’s arbitration clauses. The court granted in part and denied in part Beacon’s motion. “The principal issue on the preliminary injunction application is whether Beacon may be compelled to arbitrate based on the Trust Indenture’s arbitration clauses.” In answering this question, the court found that Beacon agreed to be bound by the arbitration provisions in the Trust Indenture, so it then turned to the question of whether the dispute falls within the scope of the Trust Indenture’s arbitration provisions. The court found that it did because Beacon explicitly agreed to be bound by the terms of the Trust Indenture. Next, the court turned to the scope of the arbitration terms. It found that with respect to the contributions claim, it falls within the scope of an arbitration clause that is explicitly dedicated to such claims. With respect to the damages claim, the court found that the Trustees’ efforts to recover benefits overpaid to ineligible Beacon employees falls within the scope of a catchall arbitration clause. Thus, it found that Defendants’ claim for delinquent contributions and their claim for damages arising from Beacon’s contributions on behalf of ineligible employees are arbitrable. Accordingly, the court denied Beacon’s motions to preliminarily enjoin both the contributions claim and the damages claim. The only issue on which the court ruled in favor of Beacon was selection of the arbitrator. In granting Beacon’s motion to preliminarily enjoin the damages claim from being heard before the “permanently designated arbitrator” selected by Defendants, the court found that the Trust Indenture did not require the damages claim to be heard before the “permanently designated arbitrator” as argued by Defendants. Instead, it should follow the process of selecting an arbitrator as designated in the agreement, when the “permanently designated arbitrator” is not required. For that reason, on this issue, the court granted Beacon’s motion.
Coutu v. Bridgestone Americas, et al., No. 3:17-CV-01492, 2019 WL 6492899 (M.D. Tenn. Dec. 3, 2019) (Judge William L. Campbell, Jr.). After the court granted summary judgment in favor of Defendants, Plaintiff’s only remaining claim was for retaliation. Defendants brought an FCRP 12(b)(1) motion, asserting that the court lacked subject matter jurisdiction because Plaintiff was seeking compensatory and punitive damages which were not available under ERISA, and because there was no equitable relief that would redress his claim. The court disagreed, and stated that Plaintiff’s claim was brought under section 510, which served as a “catchall” provision and offered appropriate equitable relief for injuries caused by violations that section 502 did not adequately remedy. First, Plaintiff had constitutional standing because he was personally injured by the acts of Defendants and sought equitable and legal relief from the court – the fact that the legal remedy sought was unavailable under the statute did not mean that Plaintiff failed to present a justifiable claim. Second, the challenge to Plaintiff’s statutory cause of action (fka “statutory standing”) was not one properly brought under FRCP 12(b)(1), but rather, must be brought under FRCP 12(b)(6) for failure to state a claim. Finally, an ERISA claim can be non-frivolous even if it is unsuccessful and possibly verging on foolhardy in light of prior precedent barring the relief sought. Thus, whether or not Plaintiff requested relief available under the statute is a question not of jurisdiction, but of his ability to state a claim upon which relief can be granted. Defendants’ arguments must be raised on the context of a motion for failure to state a claim.
Brian Lundstrom v. Carla Young et al., No. 3:18-cv-2856-GPC-MSB, 2019 WL 6611510 (S.D. Cal. Dec. 5, 2019) (Judge Gonzalo P. Curiel). Plaintiff, ex-husband of Defendant, filed a nine-count complaint against Carla Young (his ex-wife), Ligand Pharmaceuticals Inc. and its 401(k) plan after Ligand processed a QDRO and a DRO which paid the ex-wife 100% of Plaintiff’s 401(k) plan and stock options, a payout worth over $3 million. The Court dismissed all counts. After a lengthy analysis of the Rooker-Feldman Doctrine, which dictates federal courts does not have jurisdiction to review state court decisions, the court declined to reexamine the determination of the Texas court of appeals which had already denied Plaintiff’s challenge of the Orders. The Court discussed how the breach of fiduciary duty claims were inextricably intertwined with the validity of the QDRO, the same issue which had already been resolved by the Texas court of appeals. The Court also found Plaintiff lacked Article III standing because he did not establish injury in fact. The only claim not subject to dismissal based on the Rooker-Feldman doctrine was the claim Defendants failed to establish procedures for determining the qualified status of a QDRO. The Court found Plaintiff failed to point to any concrete harm resulting from the absence of such procedures. All counts were dismissed with prejudice.
Blodgett v. United States, No. 2018-2398, __F.App’x__, 2019 WL 6487279 (Fed. Cir. Dec. 3, 2019) (Judge Loren A. Smith). “Blodgett’s ERISA-based claim appears to assert that the bankruptcy court violated ERISA’s anti-alienation provisions by alienating ‘Blodgett’s fully funded, fully vested, fully compliant ERISA pension’ and subjecting it to a constructive trust.” The court concluded that the Claims Court properly dismissed this claim due to lack of subject matter jurisdiction over any claim for a pension.
Desselle v. Ivy Creek Healthcare LLC, No. 2:19CV338-MHT, 2019 WL 6481345 (M.D. Ala. Dec. 2, 2019) (Judge Myron H. Thompson). Plaintiff, a former employee of Defendant, brought suit alleging interference with her ERISA rights, retaliation, and wrongful denial of benefits. Defendant moved to stay the action and compel arbitration. The court granted the motion as to Plaintiff’s interference and retaliation claims, but denied it as to her denial of benefits claim, as the latter was specifically excepted from the arbitration agreement. The court agreed that Plaintiff’s COBRA claim following her termination constituted a claim for benefits under Section 502(a) because COBRA was an amendment to ERISA that extended the right to healthcare coverage to individuals who lost their employment-based status; it provided continuation of benefits under an ERISA plan. Furthermore, even if the arbitration agreement was ambiguous, it would be construed against the party who drafted it (Defendant) and the result would be the same.
Amron v. Yardain Inc. Pension Plan, et al., No. 18 CIV. 11336, 2019 WL 6619107 (S.D.N.Y. Dec. 5, 2019) (Judge Lorna Schofield). Plaintiff Amron made unsuccessful claims for statutory penalties under 29 U.S.C. § 1132(c)(1) for failure to provide plan documents. The claim was dismissed by the court because Amron had not sent the letter to the plan administrator.
Withdrawal Liability & Unpaid Contributions
New Jersey Building Laborers’ Statewide Benefit Funds and The Trustees Thereof v. Demza Masonry LLC, No. 18CV9607PGSLHG, 2019 WL 6493944 (D.N.J. Dec. 3, 2019) (Judge Peter G. Sheridan). The court determined that there are genuine issues of material fact precluding summary judgment on Plaintiffs’ claim for delinquent contributions based on the doctrines of alter ego liability, successor liability, and controlled group liability.
National Electrical Annuity Plan v. Henkels and Mccoy, Inc., No. 18-13701, 2019 WL 6528382 (E.D. Mich. Dec. 4, 2019) (Judge Robert H. Cleland). Plaintiff alleged that Defendant failed to make required contributions pursuant to the terms of a collective bargaining agreement for work performed for Verizon related to the installation of equipment and fibers to support a 5G network. The court granted Defendant’s motion for summary judgment. It found that “the 2011 MOU II remains in effect and governs the type of work for which H&M must make contributions. The only admissible evidence presented supports the conclusion that the work at issue falls within the meaning of ‘outside telephone work’ for which H&M had no contractual obligation to contribute.”
Operating Engineers Local 139 Health Benefit Fund v. Miller’s Blasting Serv., Inc, No. 19-CV-1139-PP, 2019 WL 6467204 (E.D. Wis. Nov. 29, 2019) (Judge Pamela Pepper). “The court FINDS that the defendant owes the plaintiff $51,735.01 for unpaid contributions, $6,228.96 for interest on unpaid contributions, and $19,150.98 in liquidated damages. In addition, the court APPROVES an award of $2,661.25 in attorney’s fees and costs. The amount of unpaid contributions, interest on unpaid contributions, liquidated damages, and attorney’s fees and costs total $79,776.20, plus post-judgment interest.”
Bldg. Trades United Pension Tr. Fund v. Jaramillo Contractors, Inc., No. 19-CV-829-PP, 2019 WL 6467203 (E.D. Wis. Nov. 29, 2019) (Judge Pamela Pepper). “The court FINDS that the defendant owes the plaintiff $2,437.35 for damages and $1,045.29 for interest. In addition, the court APPROVES an award of $1,296 in attorney’s fees. The amount of damages, interest, and attorney’s fees totals $4,778.64.”
Lehman, et al. v. Nelson, et al., No.18-35321, __F.3d__, 2019 WL 6484254 (9th Cir. Dec. 3, 2019) (Before Chief Judge Ricardo S. Martinez, Circuit Judges Andrew J. Kleinfeld and Michelle T. Friedland and Opinion by District Judge David A. Ezra, sitting by designation). See Notable Decision summary.
Service Employees International Union National Industry Pension Fund, et al., v. M.R. of Amboy, LLC, et al., No. 19-CV-1405 (DLF), 2019 WL 6498867 (D.D.C. Dec. 3, 2019) (Judge Dabney L. Friedrich). The court granted Plaintiff’s motion for default judgment. “As demonstrated throughout this action, Amboy appears unwilling to participate in the judicial process or comply with its contractual and statutory obligations. Amboy has disregarded its obligations to submit timely reports and pay monthly contributions to the Pension Fund. Also, Amboy’s refusal to submit complete contribution reports continues to make a precise accounting of the outstanding contributions and interests impossible. Thus, pursuant to the Court’s discretionary authority under Section 502 of ERISA, the Court grants the equitable relief requested by the plaintiffs against Amboy.” (internal citations omitted).
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