Good morning, ERISA Watchers! This was a slow week in the circuit courts for ERISA decisions so this week’s notable decision is the unpublished decision in Strickland v. AT&T Pension Benefit Plan, No. 18-15336, __F.App’x__, 2020 WL 1873358 (9th Cir. Apr. 15, 2020). 

Plaintiff Vanmark Strickland appealed a district court ruling upholding the denial of his claim for pension disability benefits under the AT&T Pension Benefit Plan (“the Plan”). The Plan is administered by Sedgwick Claims Management Services, which operates as AT&T Integrated Disability Service Center (“IDSC”). The district court reviewed the benefits decision applying an abuse of discretion standard of review. 

Plaintiff first argued that case should not have been reviewed under an abuse of discretion standard because it was possible that IDSC had a structural conflict of interest. However, the court dismissed that argument, finding that Plaintiff failed to show such a conflict, and that the district court’s refusal to allow Plaintiff open-ended discovery to ascertain such a conflict was not an abuse of the district court’s discretion. 

Plaintiff further argued that IDSC abused its discretion because it did not assist him in obtaining his medical records. The court disagreed, finding that “no provision of the Plan, law or precedent requires the Plan to assist in obtaining medical records.” The court similarly rejected Plaintiff’s attempt to excuse the absence of medical records by blaming (assumingly in the alternative) his healthcare provider, finding no legal basis for such an attempt. 

Plaintiff finally argued that the Plan abused its discretion by coming to a different conclusion than the Social Security Administration (“SSA”), and that the Plan should have granted benefits “even in the absence of verifying medical information and that it should have considered information he provided after his claim and subsequent appeal were denied.” The court also rejected these arguments, noting that the administrator is not bound by the determinations of the SSA, and Plaintiff’s additional arguments “lack support in the law or the record.”

This week’s notable decision summary was written by Kantor & Kantor attorney, Andrew Kantor.

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

Attorneys’ Fees

Second Circuit

In The Matter of the Arbitration Between: Dr. Gerald R. Finkel v. AllState Electric Corp., Case No. 18-cv-3798, 2020 WL 1864877 (E.D.N.Y. Apr. 14, 2020) (Magistrate Judge Robert M. Levy). An arbitration award was issued on June 12, 2018 in favor of petitioner, Dr. Gerald R. Finkel, Chairman of the Joint Industry Board of the Electrical Industry (“petitioner”), in the amount of $915,030.97. On June 29, 2018, petitioner moved to confirm the award. At some point thereafter, respondent paid a portion of the award, leaving a balance of $259,646.79 unpaid. The parties then entered settlement negotiations to resolve their dispute as to the remaining balance. They reached an agreement in principal but were ultimately unable to finalize and execute a settlement agreement. Following the breakdown in the parties’ settlement negotiations, respondent sent petitioner a series of checks labeled “settlement payment” and numbered “1 of 24,” “2 of 24,” etc. to correspond to the number of payments that would have been made under the settlement agreement had it been executed. Petitioner cashed those checks but did not apply them to the award balance. In relation to what the court noted was much more than a typical “ERISA default” action, the court reviewed petitioner’s request for attorneys’ fees granting an hourly rate of $350 for one founding partner (20 years’ experience (YE)) and one associate turned partner (5 YE) (during the pendency of the matter) and $275 for two associates (4 YE, 1 YE, respectively). Petitioners also asked for $120 for the legal assistant. The court ultimately awarded $350 for the founding partner, $300 for the partner who was an associate ($250 while an associate), $250 for the 4 YE associate, $200 for the 1 YE associate and $90 for legal assistants. This totaled $15,534.80 in attorneys’ fees.

Ninth Circuit

United Air Ambulance LLC v. Cerner Corp., No. CV-17-04016-PHX-SMB (D. Ariz. Apr. 14, 2020) (Judge Susan M. Brnovich). The court previously granted Plaintiff’s motion for summary judgment in this dispute over the denial of air ambulance services. In analyzing the Hummel factors, the court found that there was no bad faith and Defendant’s culpability weighs only slightly in favor of awarding fees. Defendants’ ability to satisfy a fee award makes this factor “relatively even.” The court agreed with Defendant that the deterrence factor weighs against an award of fees because “this case involved a unique set of facts that will be unlikely to repeat.”  On the relative merits factor, the court found that this was a close case and this factor only weighs marginally in Plaintiff’s favor. Though the Hummel factors split evenly, the court found that the last two factors “weigh heavily” against an award and declined to award fees.  

Breach of Fiduciary Duty

Ninth Circuit

Acosta v. Kizzang LLC, No. 218CV01559RFBBNW, 2020 WL 1821448 (D. Nev. Apr. 10, 2020) (Judge Richard F. Boulware, II). The Secretary moved for default judgment against Defendants Kizzang LLC, an online website for games and sweepstakes that ceased operations in 2017, and Robert Alexander, the company’s president and majority owner, for violating ERISA by failing to forward employee premiums to the Kizzang LLC Health Plan’s insurer which caused a retroactive cancellation of health coverage. The court granted the motion for default judgment and ordered Defendants jointly and severally liable for $99,807.05, “which is comprised of: (a) $16,417.98 in Plan losses in the form of outstanding employee contributions not forwarded to the Plan; and (b) $83,389.07 in Plan participants’ uncovered medical claims resulting from their loss of health insurance coverage because the Plan fiduciaries failed to pay insurance premiums.” The court further ordered Defendants to be removed as Administrator and fiduciary of the Plan, to make payment directly to Plan participants within 90 days, to be permanently enjoined and restrained from violating Title I of ERISA, 29 U.S.C. §§ 1001-1191c, and except for the payments ordered to be made by this judgment, to be permanently enjoyed from future service as a fiduciary of, or service provider to, any ERISA plan.

Eleventh Circuit

Fogle v. IBM Corp., No. 8:19-CV-2896-T-33JSS, 2020 WL 1873567 (M.D. Fla. Apr. 15, 2020) (Judge Virginia M. Hernanez Covington). Lee Fogle was “aggressively” recruited by IBM to work for the company. The friendly relationship did not last long. Months into his tenure, he entered IBM’s STD program due to bipolar disorder. Eventually, Mr. Fogle brought a five-count suit against IBM and MetLife (the IBM LTD Plan administrator). Only one count was an ERISA claim. It was brought under § 1132(a)(3). Defendants filed a motion to dismiss on the pleadings. Fogle’s complaint sought an order reforming the plan to exclude bipolar disorder or, in the alternative, all biologically-based mental illnesses, from the Plan’s 24-month benefits limitation for “mental or nervous disorder or disease.” Fogle claimed Defendants violated ERISA Section 1144(d) by designing and implementing a plan that runs counter to New York state law, the Americans with Disabilities Act, and the Rehabilitation Act of 1973. The court dismissed this claim because “Fogle has not directed the Court to any legal authority stating that Section 1144(d) provides a free-standing cause of action under ERISA. What’s more, Fogle is not bringing a claim under New York state law, the ADA, or the Rehabilitation Act.” The court also rejected Fogle’s claim under Section 1104(a). Fogle argued it was a breach of fiduciary duty to design a plan that subjected some but not all of a single cluster of biologically based mental illnesses to a benefits cutoff date. The court noted the well-established rule that employers may design plans as they wish, and that those “plan design” decisions do not fall within the scope of the defined functions of an ERISA fiduciary. As such, employers can make decisions regarding whether, how much, and to whom to provide benefits, without being subject to liability for breach of fiduciary duty under ERISA.

Disability Benefit Claims

Sixth Circuit

Tiedel v. Reliance Standard Life Ins. Co., No. 1:16-CV-1089, 2020 WL 1872348 (W.D. Mich. Apr. 15, 2020) (Before District Judge Paul Maloney). Plaintiff worked as a pilot for Kalitta Airlines. He filed a disability claim under his employer’s disability plan insured by Reliance Standard after his Hepatitis C began to interfere with his ability to fly. For example, as of March 17, 2014, he was unable to complete a flight simulation, and several days later could not pass certifying examinations. He filed for disability benefits several months later. While Standard initially paid his short and long term disability claims during the time when the “own occupation” definition of disability was in force, it terminated when he entered the “any occupation” phase, finding that he could do sedentary work such as “Aircraft Log Clerk.” On de novo review, the court found that Plaintiff was indeed disabled under the terms of the policy. After examining and weighing the credibility of each medical and vocational professional who provided an opinion of Plaintiff’s functionality, the court summarily concluded that Standard’s peer review medical expert, Dr. Elena Mendelssohn, provided a conclusion that was severely flawed. When compared to the objective evidence of cognitive impairment provided by Plaintiff’s and Standard’s physicians, Standard’s reliance on Dr. Mendelssohn’s opinion was misplaced, and thus its decision to deny Plaintiff’s benefits was erroneous.

Ninth Circuit

Strickland v. AT&T Pension Benefit Plan, No. 18-15336, __F.App’x__, 2020 WL 1873358 (9th Cir. Apr. 15, 2020) (Before Circuit Judges Cole, Gould, and Murguia). See Notable Decision summary.


Second Circuit

Glickman v. First Unum Life Ins. Co., No. 119CV05908VSBSDA, 2020 WL 1891903 (S.D.N.Y. Apr. 16, 2020) (Magistrate Judge Stewart D. Aaron). The court granted in part Unum’s request to modify the court’s previous discovery. Unum stipulated that it will not oppose “plaintiff’s request for attorney fees and costs in connection with the demand in the complaint that his claim be administered pursuant to the terms of the Plan Amendment.” However, Unum did not stipulate that it would not oppose Plaintiff’s request for attorneys’ fees and costs in connection with the date of disability. The court ordered Unum to “designate an officer, director or managing agent, or such other person who consents to testify on its behalf, solely regarding how Unum determined its newly proffered date of disability. Such deposition shall be taken within sixty (60) days of the date of this Opinion and Order, unless that deadline is extended for good cause shown, and shall not exceed three hours in length.”

Seventh Circuit

Fessenden v. Reliance Standard Life Insurance Company, et al., No. 3:15-Cv-370-PPS-MGG, 2020 WL 1862193 (N.D. Ind. Apr. 14, 2020) (Magistrate Judge Michael G. Gotsch, Sr.). Plaintiff seeks long term disability benefits under the Oracle America, Inc.’s employee welfare benefits plan; Defendant Reliance Standard Life Insurance Co. (“Reliance”) is the claim administrator for the plan. Previously, the Seventh Circuit determined that the de novo standard applies in this case due to Defendant’s tardiness in issuing a decision on Plaintiff’s appeal. The parties now disagree about how to apply a de novo standard of review to the pending discovery in this case. Plaintiff filed a motion to compel third party Dane Street LLC’s compliance with a subpoena. Dane Street was hired by Defendant to conduct a peer review of Plaintiff’s claim and that review ultimately served as a basis for the denial of Plaintiff’s claim. Plaintiff subpoenaed information relating to potential financial conflict of interest between Dane Street, Reliance, and the doctor retained by Dane Street who performed the peer review. After some documents were produced in response to the subpoena, disputes remained over Dane Street’s responses regarding pricing charged by Dane Street to Reliance between 2012 and 2014 and payments made based on the same; all payments to the doctor for any medical examinations, reviews, or consultations between 2012 and 2014; all reports generated by the doctor to Dane Street for disability claims between 2012 and 2014, and statistics regarding the same; and all payments received by Dane Street from any company for reviewing disability claims from 2010 to 2017. The court previously denied Plaintiff’s motion to compel this further information under the abuse of discretion standard, and the de novo standard of review did not change the court’s finding that Plaintiff has adduced no evidence tending to point to a conflict of interest existing between Reliance, Dane Street, and the doctor that affected the claim evaluation process. Reliance’s Principles document (which details Reliance’s active steps to eliminate any bias affecting independent medical professionals) and the fact that it utilizes Dane Street, a third-party vendor, to provide independent medical reviewers mitigates any inference of bias or impropriety in the review process. The court also denied Defendant’s motion to compel additional evidence from Plaintiff because his medical records since Defendant decided his claim were not relevant.  Further, as an ERISA case, the review is limited to the administrative record at the time Defendant issued the decision. The only discovery the court allowed was for documents related to the application for SSDI and SSA’s final decision because the claim file contained an initial denial, but a final decision was not issued until after Defendant denied Plaintiff’s claim.

Ninth Circuit

Dimry v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, No. 19-CV-05360-JSC, 2020 WL 1865192 (N.D. Cal. Apr. 14, 2020) (Magistrate Judge Jacqueline Scott Corley). Plaintiff is a former player in the National Football League. He challenges the decision of the Retirement Board of the Bert Bell/Pete Rozelle NFL Player Retirement Plan (the “Plan”) to deny him total and permanent disability benefits under the Plan and ERISA. Now pending before the court is a joint discovery dispute letter regarding Plaintiff’s demand that the Plan produce certain documents, including copies of contracts between the NFL and certain physicians and training materials from physician meetings applicable to those doctors. Plaintiff contends that the documents/information he seeks are relevant to whether the physicians who opined on his disability had a financial conflict of interest that warrants the court giving “some skepticism” to the Plan’s disability determination. The Plan opposes providing any further discovery. Based on Demer v. IBM Corp. LTD, 835 F.3d 893 (9th Cir. 2016), the court was persuaded that even in the absence of a structural conflict the Plan should produce its agreements with the independent physicians as those agreements might reveal a financial incentive to rule in favor of the Plan. In addition, the court found that the amount of compensation the Plan paid each physician during the year the physician prepared the report on Plaintiff, and the amount the physician was paid for evaluating Plaintiff, is relevant and discoverable in light of Demer and the district court’s decision in Plaintiff’s first case, Dimry v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, 2018 WL 1258147 (N.D. Cal. March 12, 2018).

ERISA Preemption

Fifth Circuit

Mowdy v. Huntington Ingalls Inc., No. 1:19-CV-570-KS-RHW, 2020 WL 1867989 (S.D. Miss. Apr. 14, 2020) (Judge Keith Starrett). Plaintiff Mowdy was nearing retirement, but knew he needed his employer sponsored health care for an upcoming surgery. His surgery was scheduled for one week after he retired. His employer and his health insurer both assured him insurance would still be in effect and would cover the surgery. The claim for the surgery was then denied by his health insurer. Walsh asserted the equitable claim of detrimental reliance under Mississippi law. The court found his claims were preempted by ERISA. It was unpersuaded by Walsh’s arguments that his claims should not be preempted because he was a former employee and not a current one. The court dismissed Walsh’s claims, allowing Walsh leave to amend his complaint.

Ninth Circuit

Pirouzian v. Children Specialists of San Diego, No. CV 20-0010-GW-ASX, 2020 WL 1820510 (C.D. Cal. Apr. 10, 2020) (Judge George H. Wu). Plaintiff, a doctor, sued his former employer and Northwestern Mutual Life Insurance Company, the insurer of the employer’s disability benefit plan, alleging that Defendants committed misconduct in the administration of his claim for benefits. Northwestern initially approved Plaintiff’s claim but discovered that Plaintiff had begun working for another hospital while still receiving benefits. Northwestern terminated his benefits, asked to be repaid, and referred Plaintiff to the California Department of Insurance. Plaintiff subsequently was convicted of a misdemeanor, paid restitution to the DOI, and repaid Northwestern. He also lost his medical license. Plaintiff filed suit in state court, and Defendants removed the case to federal court on the ground that Plaintiff’s claims were preempted by ERISA. Plaintiff filed a motion to remand. The court found that Plaintiff had clarified in his moving papers that he was not seeking payment of benefits under his disability plan, which would have brought his complaint within ERISA’s complete preemption doctrine. Instead, Plaintiff sought declaratory relief “focused on challenging the findings in the criminal case and administrative proceedings that he acted dishonestly when he lied about his employment status.” The court also noted that Defendants had not filed an opposition to Plaintiff’s motion. Thus, the court ruled that ERISA did not preempt the claims asserted in Plaintiff’s complaint and granted his motion to remand the case to state court.

Reiten v. Cigna Health and Life Insurance Company, Case No. 20-cv-2330 FMO(AGRx), 2020 WL 1862462 (C.D. Cal. Apr. 14, 2020) (Judge Fernando M. Olguin). Plaintiff, an out-of-network emergency provider filed a claim for quantum meruit (“pursuant to the implied promise to pay reasonable value for such work, labor and services”) against Cigna for failure to reimburse the provider at a reasonable UCR rate for the services rendered to Cigna’s member. Cigna removed this case to federal court and the Court employed the two prongs of the Davila preemption test to determine if the provider’s state law claims were preempted by ERISA (patient was covered under an ERISA-governed plan). The court held that Plaintiff’s state law claim failed both prongs of the Davila test as the provider, without a valid assignment, could not bring this challenge under ERISA § 502(a)(1)(B) and because of California case law on quantum meruit claims the court could not foreclose that there was an independent legal duty implicated by Cigna as to the provider’s state law reimbursement claim.  The case was therefore remanded to state court. 

Life Insurance & AD&D Benefit Claims

Sixth Circuit

Duncan v. Minnesota Life Ins. Co., No. 3:17-CV-00025, 2020 WL 1891703 (S.D. Ohio Apr. 16, 2020) (J. Thomas M. Rose). Plaintiff sued for accidental death insurance benefits under an ERISA-governed employee benefit plan. On cross-motions for judgment, the district court ruled in favor of the defendant insurer on January 28, 2020. Plaintiff filed a motion for reconsideration, which the court denied. The court found that, contrary to Plaintiff’s argument, it had properly interpreted the relevant case law regarding whether the decedent’s leukemia was a significant condition contributing to his death. The court further found that the remainder of Plaintiff’s arguments were a “rehash” of arguments Plaintiff had made in prior briefing, and therefore they could not be raised on a motion for reconsideration.

Unum Life Ins. Co. of Am. v. Willis, No. 119CV02719STAJAY, 2020 WL 1821834 (W.D. Tenn. Apr. 10, 2020) (Judge S. Thomas Anderson). The court granted Unum’s motion to interplead and for dismissal. The court had jurisdiction under ERISA, multiple defendants claimed competing interests in the life insurance proceeds, and allowing Unum to interplead the funds posed no other equitable concerns. The court rejected Defendants’ concerns about Unum’s participation in the discovery process. Discovery to aid the court’s determination of the merits of the dispute over the life insurance proceeds—the second stage of an interpleader action—was available via standard discovery tools, for example Rule 45 subpoenas and Rule 30(b)(6) depositions, notwithstanding Unum’s dismissal.  

Pension Benefit Claims

Third Circuit

Caivano v. Production Workers Union Local 148 Welfare Fund, et al., No. CV181908KMSCM, 2020 WL 1888483 (D.N.J. Apr. 15, 2020) (Judge Kevin McNulty). After a twenty-nine-count indictment on allegations of conspiracy and embezzlement, Plaintiff plead guilty and was required to repay $120,000 to Local 148 and $110,000 to the Welfare Fund. After being terminated from his position, he attempted to rollover his account in the Salaried Employees Pension Plan by sending messages directly to the third-party administrator. The request was forwarded to the Pension Plan’s attorney who began an investigation after determining Plaintiff was not eligible to participate in the Plan. The investigation revealed that in 2004, Plaintiff added himself as a participant in the Plan retroactively to 1999. In 2013, Plaintiff filed suit in the New Jersey state court alleging, inter alia, unjust enrichment against the Pension Plan. The case was settled, and Plaintiff received $125,000 in consideration for relinquishing all claims against Local 148. However, in 2016, Plaintiff contacted the Welfare Fund administrator demanding his Pension Plan benefits. This case was then initiated. On summary judgment, the court engaged in an abuse of discretion determination of whether the trustees had a reasonable basis to deny Plaintiff’s pension benefits. The court found the trustees determination was reasonable because, among other things, Plaintiff added himself as a participant without approval of the trustees and he knew he did not have approval because he only asked for it at a meeting which took place after he had already added himself to the Plan and the trustees did not approve the request. Having decided Plaintiff was not entitled to benefits, the court did not engage in an analysis of the effect of the prior settlement.

Pleading Issues & Procedure

Fifth Circuit

Silver v. Toyota Motor Manufacturing, No. 19-50441, __F.App’x__, 2020 WL 1867985 (5th Cir. Apr. 14, 2020) (Before Higginson, Costa and Oldham, Circuit Judges). In this case Plaintiff, proceeding in forma pauperis (IFP), secured a remand of his claims for wrongfully garnished wages and incorrectly calculated retirement benefits since the district court found that ERISA did not necessarily preempt his claims. Plaintiff moved the Court of Appeals for leave to proceed in IFP in this appeal from the district court’s denial of his motion for costs and expenses under 28 U.S.C. § 1447(c). The Court denied the motion for leave to proceed IFP since he did not address the district court’s conclusion that he was ineligible to claim attorneys’ fees as a pro se plaintiff.

Eighth Circuit

Esco Employee Sav. Inv. Plan v. Walsh, No. 4:19CV77 HEA, 2020 WL 1862673 (E.D. Mo. Apr. 14, 2020) (Judge Henry Edward Autrey). Daughters and Spouse both claim right to the decedent’s retirement benefits. An interpleader was filed, and both parties cross-claimed against each other for fraud and intentional interference. Daughters claim Spouse purposefully did not submit a beneficiary form that would have given Spouse and Daughters all equal shares, instead allowing the old beneficiary designations to remain in effect which gave Spouse 52% of the retirement funds. Because the case revolved around retirement funds, ERISA framework was used to determine what supplemental and cross claims made by the Spouse and Daughters the court had jurisdiction over. The court allowed the Spouse’s crossclaims to stay because the facts needed to adjudicate the claims involved the retirement fund. The court dismissed the Daughters’ crossclaims because the facts involved there would be about relationships and communications, which is too far removed from ERISA and the claims were dismissed.

Ninth Circuit

Herzfeld v. Teva Pharm. USA, Inc. Omnibus Welfare Plan, No. 218CV09784ODWSSX, 2020 WL 1864851 (C.D. Cal. Apr. 14, 2020) (Judge Otis D. Wright). Plaintiff has Duchenne Muscular Dystrophy which causes degeneration and weakness in his muscles such that he requires a wheelchair for mobility. Plaintiff brought the action to recover benefits for a myo-electric elbow-wrist orthoses called the MyoPro. The Plan denied benefits, finding the MyoPro to be “Experimental and/or Investigational.” The court granted Aetna’s motion to dismiss the benefits claim because Plaintiff did not oppose the dismissal and did not allege that Aetna was responsible for paying claims. The court granted Meritain’s motion to dismiss the benefit claim because, although “a close call,” the court found insufficient facts to plausibly establish that Mertain played a role in the denial of benefits. The court denied dismissal of Plaintiff’s breach of fiduciary duty of care claim against Meritain because Plaintiff sufficiently alleged that Meritain owed a fiduciary duty of care to oversee the conduct of Quantum and MCMC and Quantum failed to comply with required procedures under the Plan and ERISA. The court granted dismissal of Plaintiff’s breach of fiduciary duty of loyalty claim against Meritain because Plaintiff did not offer allegations specific to Meritain regarding how Meritain participated in the benefit denial or otherwise acted with an interest other than for the beneficiaries. The court granted dismissal of Plaintiff’s breach of fiduciary duty claim against Aetna, finding that Plaintiff did not sufficiently allege that Aetna is a functional fiduciary with discretionary authority over management of the Plan or its assets. The court granted the dismissal of the denial of full and fair review cause of action against Meritain and Aetna because Plaintiff did not oppose the dismissal. The court denied the Plan’s motion to dismiss the benefits and breach of fiduciary duty claims. The court found Plaintiff adequately pleaded alternative claims with distinct remedies. 

Herzfeld v. Teva Pharm. USA, Inc. Omnibus Welfare Plan, No. 218CV09784ODWSSX, 2020 WL 1864852 (C.D. Cal. Apr. 14, 2020) (Judge Otis D. Wright). Plaintiff has Duchenne Muscular Dystrophy which causes degeneration and weakness in his muscles such that he requires a wheelchair for mobility. Plaintiff brought the action to recover benefits for a myo-electric elbow-wrist orthoses called the MyoPro. The Plan denied benefits, finding the MyoPro to be “Experimental and/or Investigational.” Plaintiff brought action against the Plan and several defendants including MCMC, an independent review organization which conducted an external review. The court previously granted MCMC’s motion to dismiss without leave to amend. Plaintiff moved the court for reconsideration. The court agreed to consider MCMC’s opposition to the motion albeit filed one day late, because the delay did not impact proceedings, was not brought in bad faith, and did not prejudice plaintiff. Plaintiff’s motion raised a new case, Josef. K v. California Physicians’ Service, No. 18-cv-06385-YGR, 2019 WL 2342245 (N.D. Cal. June 3, 2019), which the court held could have been discovered earlier and  regardless, Josef K. relied on a case specifically considered and rejected by the court in its decision. The court found the plaintiff “may not ask the Court to ‘rethink what the Court has already thought through merely because [he] disagrees with the Court’s decision.’” (citation omitted). The court found Plaintiff merely rehashes the same arguments previously made and rejected and cannot raise new arguments “now in hopes of a do-over.” For example, the court found that plaintiff did not previously seek leave to amend a claim against MCMC for nonfiduciary liability. The court denied plaintiff’s motion, finding plaintiff does not present a material change in law or make a manifest showing that the court failed to consider material facts and the court is not left with a “definite and firm conviction that a mistake has been committed.”


Eighth Circuit

Boilermaker-Blacksmith National Pension Trust, et al. v. Elite Mechanical & Welding, LLC, No. 5:20-CV-06021-SRB, 2020 WL 1856456 (W.D. Mo. Apr. 13, 2020) (Judge Stephen R. Bough). In this dispute over allegedly delinquent contributions, the court denied Defendant’s motion to change venue to the Northern District of West Virginia, where Defendant is based. Plaintiffs and the employee benefit plans are administered out of Missouri, so venue is proper in this district. Defendant argued that three of the § 1404(a) factors support transfer, including convenience of witnesses, location of the conduct, and applicability of the forum state’s substantive law. The court found that at this stage it is impossible to determine whether the convenience of witnesses tilts either way because there are witnesses in both locations. The location of the conduct is also a draw given the allegations of the claims and counterclaim. Even though Virginia substantive law will apply to Defendant’s state law claims, which tilts towards transfer, this court is often called upon to apply the law of states outside of Missouri. “Given the balancing of the five factors ‘special weight to a plaintiff’s choice of forum in ERISA cases,’ and the ‘considerable deference to a plaintiff’s choice of forum,’ this Court declines to transfer venue to the Northern District of West Virginia.”

Withdrawal Liability & Unpaid Contributions

Second Circuit

Trustees Of The New York City District Council Of Carpenters Pension Fund, Welfare Fund, Annuity Fund, And Apprenticeship, Journeyman Retraining, Educational, And Industry Fund, et al v. Hilt Construction, Inc., No. 19 CIV. 7597 (ER), 2020 WL 1888838 (S.D.N.Y. Apr. 16, 2020) (Judge Edgardo Ramos). The court granted Petitioners’ motion to confirm the arbitration award.  “[T]he Clerk of the Court is directed to enter judgment in favor of the petitioners in the amount of $33,028.32 against Hilt Construction, Inc. plus interest at a rate of 7.5% per annum accruing from June 12, 2019 until the date of entry of judgment.” 

Trustees For The Mason Tenders District Council Welfare Fund, Pension Fund, Annuity Fund, And Training Program Fund v. High Tech Masons Of Long Island, Inc., No. 14 CIV. 8535 (ER), 2020 WL 1888860 (S.D.N.Y. Apr. 16, 2020) (Judge Edgardo Ramos). The court granted Petitioners’ motion to confirm the arbitration award and entered judgment in favor of Petitioners in the amount of $7,216.68 against High Tech Masons of Long Island.

Fourth Circuit

International Painters and Allied Trades Industry Pension Fund, et al. v. Architectural Metal & Glass Solutions Limited Liability Company, No. CV DKC 18-3656, 2020 WL 1849708 (D. Md. Apr. 13, 2020) (Judge Judith Ann Sznyter). The court granted Plaintiffs’ motion for default judgment in part. The court ordered Plaintiffs to recalculate and substantiate any attorneys’ fees requested in line with Judge Coulson’s opinion in Int’l Painters & Allied Trades Indus. Pension Fund v. Finch Indus. Coatings LLC, No. 18-CV-02333-ELH, 2019 WL 6044197 (D. Md. Nov. 15, 2019).

Eighth Circuit

Construction Industry Laborers Pension Fund, et al. v. St. Charles County Piping, Inc., No. 4:19CV451 RLW, 2020 WL 1853333 (E.D. Mo. Apr. 13, 2020) (Judge Ronnie L. White).  The court granted Plaintiff’s motion for default judgment in the amount of $5,461.48.

Ninth Circuit

Bd. of Trustees as Trustees of Nat’l Roofing Indus. Pension Fund v. Dean Indus. LLC, No. 219CV01504KJDBNW, 2020 WL 1853606 (D. Nev. Apr. 13, 2020) (Judge Kent J. Dawson).  The court granted Plaintiffs’ motion for default judgment and awarded “Plaintiff $356,700.05 in unpaid contributions, $73,045.45 in liquidated damages and interest, attorney’s fees in the amount of $11,343.75 and costs of $1,985.95 based upon work performed between August 1, 2015 and March 31, 2018. Further, Defendants are ordered to submit to an audit of its books and records covering the period beginning April 2018 to the present date as required by the agreements and to pay any contributions plus interest found to be due and owing as a result of the audit. Defendant is ordered and required to submit all required monthly contributions reports and contributions due and owing from Defendant to Plaintiffs This Court retains jurisdiction to amend the judgment to include moneys found due and owing as result of this Judgment.”

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