As a daughter of a disabled veteran, I’m unhappy to report this week’s notable decision, Martinez v. Sun Life Assurance Co. of Canada, No. 18-2127, __F.3d__, 2020 WL 415145 (1st Cir. Jan. 27, 2020). The First Circuit affirmed the district court’s determination that Sun Life properly interpreted the language of a disability plan, which it funded, to permit the offset of service-connected disability compensation (“Veterans’ Benefits”) against employer-sponsored long-term disability (“LTD”) benefits.  In so doing, the Court determined that Veterans’ Benefits are unambiguously “Other Income Benefits” covered by the Plan’s offset provision and that the offset is not a violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).  

Plaintiff-Appellant Marco Martinez is a disabled veteran who has multiple sclerosis.  He was honorably discharged from the Army in 1992.  In 2010, he began work for the Athens Group and became a participant in its LTD plan which is funded by an insurance policy issued by Sun Life.  In 2012, Martinez filed a claim for LTD benefits, which Sun Life approved.  About a year later, he applied for Veterans’ Benefits, which the United States Department of Veterans’ Affairs (“the VA”) approved based on his health conditions caused or aggravated by his military service, including multiple sclerosis.  

The Plan promises 60% income replacement benefits but it offsets (or reduces) these benefits by Other Income Benefits.  The Plan describes these benefits as,

Other Income Benefits are those benefits provided or available to the Employee while a Long Term Disability Benefit is payable. These Other Income Benefits, other than retirement benefits, must be provided as a result of the same Total or Partial Disability payable under this Policy. Other Income Benefits include:

1. The amount the Employee is eligible for under:

a. Workers’ Compensation Law; or

b. Occupational Disease Law; or

c. Unemployment Compensation Law; or

d. Compulsory Benefit Act or Law; or

e. any automobile no-fault insurance plan; or

f. any other act or law of like intent.

6. The disability or retirement benefits under the United States Social Security Act, or any similar plan or act, as follows:

a. Disability benefits the Employee is eligible to receive.

Sun Life treated the Veterans’ Benefits as an offset because “Veteran Benefits would be considered disability or retirement benefits under the United States Social Security Act, or any similar plan or act or any other act or law of like intent.”  Sun Life also found that Martinez is receiving Veterans’ Benefits and LTD benefits as a result of the same conditions causing his disability.  

When Martinez’s appeal of the offset decision was not successful, he filed a seven-count complaint in the United States District Court for the District of Massachusetts alleging an ERISA benefits claim, various ERISA breach of fiduciary and co-fiduciary duty claims, and a discrimination claim in violation of USERRA.  The district court denied discovery on the ERISA benefits claim and then granted Sun Life summary judgment on this claim.  The court later dismissed the other counts via judgment on the pleadings.  The First Circuit affirmed.

With respect to the ERISA benefits claim, the court found that the phrase “Compulsory Benefit Act or Law” unambiguously covers Veterans’ Benefits.  First, the court rejected Martinez’s argument that Sun Life failed to clearly disclose in its letters that it was relying on the “Compulsory Benefit Act or Law” provision.  The court found that Sun Life complied with the notice requirement set forth in 29 U.S.C. § 1133(1) because it indicated to Martinez on more than one occasion that it was relying on this provision.  And, even if Sun Life did not adequately disclose its rationale during the claim and appeals process, barring Sun Life from relying on this provision would not be the proper remedy since this is an issue of contract interpretation and there was no prejudice to Martinez.  Second, contra proferentem does not apply here because “Compulsory Benefit Act or Law” is not ambiguous. It refers to “an act or law that requires benefits to be paid to any applicant who meets its qualifying criteria.”  The VA is required by law to provide Veterans’ Benefits to anyone who is disabled due to a personal injury suffered, or disease contracted, in the line of duty.  The court rejected Martinez’s arguments that “Compulsory Benefit Act or Law” should be interpreted as a law that requires a third party, not the government, to pay benefits.  It also rejected the argument that the Plan’s failure to define Compulsory Benefit Act or Law renders it ambiguous; Sun Life was not required to list every type of program that might justify an offset.

With respect to the ERISA breach of fiduciary duty claims, the court found that dismissal of these claims was appropriate because the Plan unambiguously permits the offset.  “Properly construing and following the terms of the Plan does not constitute a breach of fiduciary duty.”  

Lastly, the court found that Martinez did not plausibly allege a violation of USERRA because his discrimination allegation is implausible as a matter of law.  The court explained:

The simple fact that his Plan benefits were reduced by the amount of his Veterans’ Benefits does not mean that Sun Life was motivated, at least in part, by his status as a servicemember to make that reduction. By this logic, any insurance plan that permits benefits to be offset by service-connected disability benefits, whether it explicitly lists them as subject to offset or includes them in a generic term like ‘Compulsory Benefit Act or Law,’ is a per se violation of USERRA. This approach would render Veterans’ Benefits practically untouchable by insurers like Sun Life, allowing veteran recipients to double-collect disability benefits for the same underlying condition, even where such collection is barred for recipients of other forms of disability benefits.

According to the court, Martinez’s interpretation runs afoul of the law’s purpose, which is to stop unlawful discrimination on the basis of uniformed service, not to provide preferential treatment to servicemembers.

The First Circuit’s decision is another victory for Sun Life on this issue.  It is now 2-1 at the circuit court level.  In Holbrooks v. Sun Life Assurance Co. of Canada, 570 F. App’x 831 (10th Cir. 2014), the Tenth Circuit held that service-connected disability benefits are awarded under a “Compulsory Benefit Act or Law” involving a Plan with the same language as the one at issue in this case.  In Riley v. Sun Life & Health Ins. Co., 657 F.3d 739 (8th Cir. 2011), the Eighth Circuit held that Sun Life could not offset Veterans’ Benefits under the rationale that these benefits were awarded under an act or law similar to the United States Social Security Act or the Railroad Retirement Act.  Riley did not address or did not involve the “Compulsory Act or Law” provision.  

Given the many burdens already faced by servicemembers, I would implore plan administrators and plan sponsors to reject insurance policies which include offsets for Veterans’ Benefits.  Though it seems unlikely that another circuit court considering the same policy language will come to a different conclusion, I salute any plaintiff’s attorney willing to take this issue up to a different circuit.  

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

Breach of Fiduciary Duty

Fifth Circuit

Huerta v. Metropolitan Life Ins. Co., 19-cv-01107 (S.D. Tex. Jan. 22, 2020) (Magistrate Judge Nancy K. Johnson).  In 2013, Arturo increased his life insurance coverage under his employer, Shell’s, group policy insured by MetLife. His employment was terminated in March 2017. His life insurance policy contained a provision allowing an individual to convert their group coverage to individual coverage if they left Shell. At his exit meeting with Shell, Arturo was told Shell would send him information about converting his life insurance coverage. No information about converting or continuing his life insurance coverage was ever sent to Arturo. He died months later in May 2017. His wife was informed by MetLife that Arturo did not have any life insurance coverage. MetLife denied Arturo’s wife’s claim for life insurance benefits, and upheld its denial on appeal. She brought breach of fiduciary duty claims against Shell, MetLife, and the Shell Long-Term Disability Plan for mishandling Arturo’s life insurance coverage after he left employment at Shell. The court determined on a motion to dismiss that notifying Arturo of his right to convert his life insurance coverage was a ministerial, not fiduciary, function. Therefore, the court found that MetLife had not breached any fiduciary duties to Arturo. As for Shell, the court stated that plan administrators do not have a duty to explain plan terms to participants. Therefore, Shell also did not breach any fiduciary duties by not providing Arturo with instructions on how to convert his life insurance coverage. The court dismissed all breach of fiduciary duty claims against all Defendants.

Class Actions

Seventh Circuit

Briscoe, et al. v. Health Care Serv. Corp., et al., 16-cv-10294, 2020 WL 291361 (N.D. Ill., Jan. 21, 2020) (Judge John Robert Blakey). The court (1) granted Defendants Health Care Service Corporation (HCSC) and Blue Cross Blue Shield of Illinois’ (BCBSIL) motion to exclude expert testimony and (2) denied without prejudice Plaintiffs’ (mothers who obtained insurance with BCBSIL, gave birth between 2014-2016, and sought Comprehensive Lactation Services (CLS) services to help with breastfeeding)  motion for class certification of two classes—an ERISA Plan Class and non-ERISA Plan Class—of individuals who on or after August 1, 2012 received CLS and incurred costs for a CLS claim unreimbursed by HCSC.  The main thrust of the theory of the classes is that HCSC and BCBSIL violated the Affordable Care Act (ACA) and ERISA by failing to cover CLS without imposing cost-sharing obligations on HCSC insureds. Plaintiffs submitted two expert reports by a lactation consultant and a practicing OB-GYN which Defendants sought to exclude. The Court granted these exclusions because it determined that, although the experts were eminently qualified to render opinions, those opinions would not ultimately assist the trier of fact. After providing a Rule 23 analysis, the Court held that Plaintiffs’ classes failed the commonality prong of this analysis and the proposed classes were considered not reasonably ascertainable as theorized.  The Court observed that Plaintiffs’ “numerous theories of liability,” including allegations regarding HCSC’s billing code, network and cost-sharing practices make it difficult to resolve “systemwide policy” issues over individualized issues that predominate. The Court also observed that sub-elements of the class definitions made the classes “too indefinite to be certified.” 

Disability Benefit Claims

First Circuit

Martinez v. Sun Life Assurance Co. of Canada, No. 18-2127, __F.3d__, 2020 WL 415145 (1st Cir. Jan. 27, 2020) (Before Torruella, Lipez, and Kayatta, Circuit Judges).  See Notable Decision summary above.

Sixth Circuit

Bruton v. American United Life Insurance Corp., No. 19-3466, __F.App’x__, 2020 WL 398539 (6th Cir. Jan. 23, 2020) (BEFORE: Cole, Chief Judge; Siler and Murphy, Circuit Judges). Jesse Bruton held a managerial job in the field of information technology when he was afflicted by severe back and leg pain. Unable to work, he sought benefits from his company’s employee disability benefits plan that was insured by American United and administered by Disability RMS (DRMS). DRMS denied the claim, that denial was upheld by the district court, and the Sixth Circuit reversed both decisions. In awarding benefits, it focused on whether Bruton was in “Regular Attendance” of a physician and whether he was unable to work in his regular occupation. The plan contained a “regular care” provision obligating a claimant to receive the most appropriate care that was designed to maximize medical improvement and a return to work. The Sixth Circuit held this language did not obligate a claimant to pursue any treatment recommended by any medical professional – even in circumstances when a patient declined treatment that was prohibitively expensive, or experimental, or risky, or painful. Instead, the court held the language obligated a patient to pursue all care that was appropriate for a person who was totally disabled. Contrasting Bruton’s treatment with an insured who stubbornly refused the only appropriate care recommended, it determined Burton met the “Regular Attendance” requirement even though he declined to pursue several medical treatments. The Sixth Circuit also held Bruton established his disability because his pain was documented objectively via treatment and testing, it was highly improbable he would undergo a host of pain-treatment procedures if he was not disabled (i.e. epidurals, spinal ablation, transcutaneous electrical nerve stimulation, multiple consultations with specialists, physical therapy, and heavy doses of strong opioids), and Dr. Stewart Russell’s credibility assessment was entitled to little weight because he did a paper review even though the plan allowed for the claimant to be examined in person. 


Fifth Circuit

Reyes v. Aetna Life Ins. Co. and FirstService Res., Inc. Emp. Ben. Plan, SA-19-CA-663-JKP-(HJB) (W.D. Tx Jan. 13, 2020) (Mag. Judge Henry J. Bemporad). The court granted Plaintiff’s opposed motion for leave to file an amended complaint giving Defendants 14 days to answer the amended complaint. The Court granted in part and denied in part Plaintiff’s motion to overrule discovery objections and motion to compel responses to discover, requiring Defendant Aetna to produce the following: all manuals, criteria, guidelines or rules that pertain to the processing of ERISA long-term disability claims including those that apply not exclusively to ERISA claims, and policies or a sworn statement based on personal knowledge regarding the policies that address Aetna’s “inherent conflict of interest.” 

Burke v. Blue Cross Blue Shield of Texas, No. 19-cv-00389-RWS (E.D. Tex. Jan. 16, 2020) (Judge Robert W. Schroeder III). Plaintiff was a participant in a health insurance benefit plan. His son, a covered beneficiary, underwent residential mental health treatment, but defendant BCBS denied his claims for benefits on the ground that he did not meet medical necessity criteria in its guidelines (the MCG, or Milliman Care Guidelines). Plaintiff filed a complaint including both ERISA and non-ERISA claims for relief, and sought discovery from BCBS. BCBS refused to provide certain information and Plaintiff filed a motion to compel. The district court found that plaintiff was entitled to documents BCBS submitted to a third party, the NCQA Utilization Management Accreditation program. The court ruled that these documents might be relevant to whether BCBS’s “reviewers were trained in accordance with BCBS policy, along with the sufficiency of that policy,” and that they “may bear on whether BCBS’s reviewers are well trained or consistently trained.” The court further found that the documents might show evidence of bad faith. The court also granted Plaintiff’s motion regarding interrogatories asking how BCBS’s reviewers were compensated. The court found that this information was related to potential bias and might provide impeachment evidence. However, the court denied Plaintiff’s request for documents regarding how BCBS paid for partial hospitalization treatment, ruling that plaintiff did not receive that level of treatment and thus the documents were not relevant.

ERISA Preemption

Fourth Circuit

Kolenich v. Highmark West Virginia, Inc., D/B/A Highmark Blue Cross Blue Shield W. Virginia, No. 2:19-CV-38, 2020 WL 343872 (N.D.W. Va. Jan. 21, 2020) (Judge John Preston Bailey). This case arose out of alleged non-payment of airlift services by Plaintiff’s ERISA policy. Plaintiff amended the complaint to include non-ERISA state law claims, including for violation of the Unfair Settlement Practices Act and breach of implied covenant of good faith and fair dealing. Defendant moved to dismiss the state law claims, arguing that these claims were completely preempted by ERISA. The court granted the motion because each of Plaintiff’s state law claims related to the Plan and were not based on laws regulating insurance, and as such, were not exempt from preemption by the saving clause (29 U.S.C. § 1144(b)(2)(A)). 

Exhaustion of Administrative Remedies

Fifth Circuit

Spriggs v. Hancock Holding Co. Severance Pay Plan, No. CV 18-729-SDD-RLB, 2020 WL 364122 (M.D. La. Jan. 22, 2020) (Judge Shelly D. Dick). Plaintiff was an employee of a finance company and a participant in the company’s severance plan, which was governed by ERISA. His company was acquired by another finance company, which as a condition of the acquisition provided a new, substantively similar severance plan. Plaintiff was then terminated by the new company and informed that he was not entitled to severance because he was being terminated for cause. However, as part of his termination, Plaintiff was provided with a copy of the old severance plan and not the new one. Plaintiff did not appeal the denial and filed a lawsuit. Several months later, Plaintiff received the newer, correct copy of the plan and appealed. Defendants denied the appeal. Defendants moved for summary judgment, arguing among other issues that Plaintiff had failed to exhaust his administrative remedies by not initially appealing the denial of his claim. Plaintiff argued that he was not required to appeal because he was provided with different plans with “confusing and misleading claims procedures.” The court disagreed with Plaintiff, finding that the plans contained identical appeals procedure requirements that satisfied ERISA’s statutory and regulatory requirements. The court also found that by filing suit before he appealed, Plaintiff had not exhausted his administrative remedies. Plaintiff’s subsequent appeal once he received the updated plan did not vitiate this finding because his appeal was more than 60 days after his severance was denied, and therefore untimely. The court therefore granted Defendants’ summary judgment motion.

Life Insurance & AD&D Benefit Claims

Ninth Circuit

Workman v. Dearborn National Life Ins. Co., No. 2:17-cv-04515-ODW (SSx), 2020 WL 362628 (C.D. Cal. Jan. 22, 2020) (Judge Otis D. Wright, II). Plaintiff sued Dearborn to recover interest Dearborn earned on life insurance proceeds. Plaintiff, the sole beneficiary of a life insurance policy, learned of the insured’s death 14 years after the fact. She promptly made a claim for benefits. After originally denying the claim, on appeal, Dearborn paid the life benefit. It also paid interest from the date the claim was made, not 30 days after the date of death. The dispute that continued into court was whether California Insurance Code section 10172.5 required Dearborn to pay interest effective 30 days after the insured’s death or whether notice of death was a condition precedent for triggering the statute. The statute stated interest must be paid if an insurance company “fails or refuses to pay” proceeds “within 30 days after the date of death.” Citing a prior unpublished Ninth Circuit decision, the court deemed this ambiguous because the statute did not include express language requiring the beneficiary to submit a claim. It then determined the legislative purpose of section 10172.5 was to minimize any incentive for both the insurer and the beneficiary to delay settlement of the benefit claim. Therefore, the court held that in a life insurance matter, the insurer should at least have notice of the death of the policy holder before section 10172.5 was triggered. 

Medical Benefit Claims

Sixth Circuit

Canter v. Alkermes Blue Care Elect Preferred Provider Plan, No. 1:17-CV-399, 2020 WL 359412 (S.D. Ohio Jan. 22, 2020) (Judge Karen L. Litkovitz). The court considered the parties’ motions for judgment. Plaintiff sought health coverage for a lumbar decompression and discectomy which defendant Blue Cross denied as not medically necessary. The court made several important findings.  Defendant’s failure to notify Plaintiff of appeal rights in the first denial letter constituted a “colorable due process challenge” and therefore the court is permitted to review evidence outside the administrative record.  Defendant also failed to comply with ERISA because its denial letter failed to advise Plaintiff how his medical records and information fell short of meeting medical necessity. The denial letter also omitted any consideration of the Plan terms defining medical necessity. Defendant relied solely on the InterQual criteria to deny Plaintiff’s claim but the court found that the InterQual criteria are one consideration in determining medical necessity under the Plan; they are not the sole criteria. The denial letter similarly failed to notify Plaintiff of the records Defendant considered in making its decision. The plan administrator’s misrepresentation regarding a second appeal “materially prejudiced plaintiff” and resulted in the omission of a critical piece of evidence in his subsequent appeal to the Court. The court could not conclude that the Plan’s failure to allow a second appeal was a simply harmless error. The court granted judgment to Plaintiff on his procedural claims. The court found that the Plan does not clearly grant discretion to Blue Cross to make benefit determinations and therefore the de novo standard of review applied. In determining medical necessity, the court found that Blue Cross was permitted to consider the InterQual guidelines as one factor in determining medical necessity. The court found that Blue Cross did not consider all evidence on appeal and therefore the court could not conclude that Blue Cross made the correct decision. There was insufficient information to determine that Plaintiff’s surgery was medically necessary and therefore the court remanded to Blue Cross to redetermine Plaintiff’s claim.

Ninth Circuit

Wise v. Maximus Fed. Servs., No. 18-CV-07454-LHK, 2020 WL 353462 (N.D. Cal. Jan. 21, 2020) (Judge Lucy H. Koh). This case involves the denial of healthcare benefits to Plaintiff whose left arm was paralyzed by a car accident. His medical providers recommended a MyoPro orthosis which his treating physicians opined was the best way to be able to restore Plaintiff’s function of his left arm in order to assist in performing daily living activities. Defendant UnitedHealthCare denied Plaintiff’s claim on its finding the device was not likely to be more beneficial for treatment of his condition than any available therapy. Defendant MVI Administrators Insurance Solutions, Inc. (“MVI Administrators”) moved to dismiss arguing it is not an ERISA fiduciary. Plaintiff argued MVI Administrators is a fiduciary because the Trustees, the named Plan Administrator, appointed MVI Administrators to serve in its place as Plan Administrator. Plaintiff first argued MVI Administrators is a named fiduciary. The Court declined to accept this argument because they are not named in the operative plan document, rather, they were appointed by the named Plan Administrator, the Trustees. Plaintiff then argued they are a fiduciary by function. The Court likewise found MVI Administrators is not a fiduciary by function because it performs only ministerial duties and did not perform any acts with regard to the denial of Plaintiff’s benefit claim. The Court concluded that because MVI Administrators is not a fiduciary, the complaint fails to state a claim and MVI Administrators was dismissed from the complaint.

Pleading Issues & Procedure

Second Circuit

Trustees of Sheet Metal Workers Int’l Ass’n Local No. 38 Vacation Fund v. Novak Francella, LLC, No. 16-CV-8315 (CS), 2020 WL 364238 (S.D.N.Y. Jan. 22, 2020) (Judge Cathy Seibel).  The court declined to exercise supplemental jurisdiction over Plaintiffs’ remaining state-law claims for breach of contract, fraudulent misrepresentation, and silent fraud, and instead dismissed those claims, as well as the claims for professional malpractice and negligent misrepresentation, without prejudice.  The court explained: “The value of comity alone tips the balance in favor of declining to exercise supplemental jurisdiction. Plaintiffs’ central complaint here is that Defendant’s conduct as Plaintiffs’ accounting firm failed to meet professional standards. While Plaintiffs are funds governed by ERISA, that statute does not cover the conduct challenged here, and I know of no other federal interests or policies implicated by this case.”

Ninth Circuit

CRH Americas Inc. v. Grayson, No. CV-20-00007-PHX-DWL, 2020 WL 353650 (D. Ariz. Jan. 21, 2020) (Judge Dominic W. Lanza). Plaintiff alleged that it was the plan administrator and fiduciary of a self-funded employee welfare benefit plan subject to ERISA, and that the Plan’s terms granted it subrogation rights. However, the court determined that this was not an ERISA case (and Plaintiff made no argument that it was), but an ordinary negligence case. Mere reference to an ERISA plan does not lead to preemption. The claims did not arise from the administration of the Plan. Plaintiff also failed to establish diversity that would have given the court subject-matter jurisdiction. The Plan itself is not a party to the lawsuit, and therefore, only the citizenship of the actual parties matters. The court ordered Plaintiff to file an amended complaint properly alleging subject-matter jurisdiction and establishing that the Plaintiff named is a real party in interest and real party to the controversy. 

Standard of Review

Eleventh Circuit

McConnell v. Amer. Gen. Life Ins. Co., No. 19-0174, 2020 WL 292193 (S.D. Ala. Jan. 21, 2020) (Judge William H. Steele). After Plaintiff’s disability claim was denied, he filed suit. The parties filed motions to determine the proper standard of review. The Defendant believed the correct standard is arbitrary and capricious, while the Plaintiff contended that judicial review is de novo. Plaintiff argued that Defendant violated 29 C.F.R. § 2560.503-1(h)(4)(i) when it failed to provide him with documentation generated during the final administrative review prior to the administrator’s final decision, resulting in evidence used against him which he had no opportunity to rebut. As a result, Plaintiff argued, the claim should be subject to de novo, rather than abuse of discretion, review. Defendant responded that subsection (h)(4)(i) does not apply to claims filed before April 1, 2018; and since Plaintiff’s claim was filed in 2009, the subsection does not apply to his claim, meaning Defendant did not violate ERISA regulations during the claim review, and is thus still entitled to an abuse of discretion review of its benefit determination. The Court, in finding for Plaintiff, concluded that Defendant mistakenly relied upon the regulatory summary statement, rather than the regulation itself. In turn, the applicable sections suggest that subsection (h)(4)(i) does apply to claims filed before April 1, 2018. Interestingly, after providing a complicated statutory analysis justifying its conclusion, the court pointed out that:

It might be argued that, although subsection (p) unambiguously applies revised subsection (h)(4) to claims filed between 2002 and 2016, DOL did not really intend that result (since it carved out subsection (h)(4) from applicability to claims filed between January 2017 and April 2018). It is doubtful that a court permissibly could, on the basis of DOL’s assumed intent, re-word subsection (p)(3) to insert subsection (h)(4) among those provisions not applicable to claims filed before April 2018. The question, however, is moot. “There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment. Rather, the onus is on the parties to formulate arguments ….” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995). By ignoring the actual regulatory language of Section 2560.503-1(p), the defendant forfeited any argument that the provision does not mean what it says or that it may permissibly be judicially altered to accomplish what it plainly does not.

The court further explained:

The defendant cites Melech vLife Insurance Coof North America, 2015 WL 4744356 (S.D. Ala. 2015), in support of its position. After block quoting the single relevant paragraph from White, the Melech Court concluded without amplification that “[t]he trigger for application of the ‘pure de novo review’ appears to be the absence of a decision by the plan administrator.” Id. at *22. As Melech did not scrutinize White’s language and reasoning, the Court does not find it persuasive.

Because the Eleventh Circuit has not foreclosed de novo review under the circumstances, and because the defendant offers no other argument in favor of an arbitrary and capricious standard of review, this action will be governed by de novo review. As the defendant recognizes, (Doc. 29 at 8), the plaintiff champions that version of de novo review prevailing in the Second Circuit. Since the defendant neither identifies flaws in this approach nor proposes any alternative, that version, as explicated in Halo, will apply in this case.

Withdrawal Liability & Unpaid Contributions

Ninth Circuit

Carpenters Southwest Administrative Corporation, et al. v. J And R P Development Corp., No. 218CV10383ODWRAOX, 2020 WL 362631 (C.D. Cal. Jan. 22, 2020) (Judge Otis D. Wright, II). The Court granted “Plaintiffs’ Motion for Entry of Default Judgment as to Defendant and awards a total of $20,847.64, consisting of $10,611.82 in unpaid contributions, $8360.98 in interest, $517.80 in audit fees, and $1357.04 in attorneys’ fees. Plaintiffs shall also recover costs of suit.” 

Your ERISA Watch is made possible by the collaboration of the following Kantor & Kantor attorneys:  Brent Dorian BrehmBeth Davis, Sarah DemersElizabeth GreenAndrew Kantor, Susan Meter, Michelle RobertsTim Rozelle, Peter Sessions, and Zoya Yarnykh.