This week’s notable decision is a recent Kantor & Kantor victory in the matter of Myers v. Aetna Life Insurance Company, No. CV 19-9555 DSF (KSx), 2020 WL 7423109 (C.D. Cal. Dec. 17, 2020); a case involving a denial of long-term disability benefits. The action was heard by the Honorable Dale S. Fischer on October 27, 2020. In its ruling, the court reaffirmed that objective evidence was not required to prove a disability. Judge Fischer also found that the evidence of Plaintiff’s treaters to be more compelling than that of Aetna’s record reviewers. Notably, the court also found that Dr. Gary Nudell’s opinion (Aetna’s reviewer), which denied the notion of disabling fibromyalgia, to be contrary to established authority which recognized the disabling potential of the disease.

The facts of the case showed that Ms. Myers’ entire career was devoted to working at Jet Propulsion Laboratories (JPL). She started work in 1979 and eventually was promoted to the position of Software Management Engineer, earning an annual salary of $130,000. In this position she was required to develop software to track, build, and deploy flight projects. 

In 2017, she began to experience fatigue, pain and cognitive dysfunction consistent with her previously diagnosed condition of fibromyalgia. She consulted numerous specialists to find a treatment to alleviate her symptoms. After no improvement, Plaintiff submitted her claim, which was supported by her treating internist, therapist, and rheumatologist. Her internist had referred her to cognitive therapy where, after extensive treatment, the therapist stated that she was unable to return to her previous level of functioning. Aetna denied the claim based on nurse reviews which relied on labs being not indicative of “a quantifiable diagnosis.” 

Prior to the actual denial, Plaintiff had undergone neuropsych testing which revealed a “mild cognitive impairment.” The examiner stated that Plaintiff had experienced a “moderate decline” and that her “cognitive difficulties interfered with her capacity for independence in her daily life.” On appeal, Plaintiff submitted the neuropsych test, vocational evidence and statements from family and co-workers who personally observed the difficulties Plaintiff experienced during the end of her employment. Plaintiff also submitted supportive letters and assessments from her treating physicians. Aetna had Plaintiff’s claim reviewed by three physicians: Dr. Elizabeth Gay (neuropsychology), Dr. Gary Nudell (internal medicine) and Dr. Eric Kerstman (aerospace medicine). 

In evaluating the evidence, the court rejected Aetna’s argument that objective evidence was necessary to prove disability. It quoted from the decision of Salomaa v Honda LTD Plan, 642 F.3d 666 (9th Cir. 2011), noting that claimants are not the only parties who have an incentive to cheat. Administrators who fail to pay money owed on a claim, based on false statements are also cheating.  

The court also discounted the opinions of Aetna’s reviewing physicians. Judge Fischer acknowledged that she was not required to give deference to treating physicians, but found Plaintiff’s treaters more credible. Dr. Gay’s dismissal of below average scores based on alleged “inconsistencies” was an incomplete assessment. Notably, Dr. Nudell “unfairly discounted” the effect of fibromyalgia on individuals by stating that the condition (as opposed to Plaintiff’s symptoms) was not impairing. In doing so, the court stated: 

Dr. Nudell seems to state fibromyalgia cannot render one disabled, which does not make sense – at least not in a legal context. As explained above, the Ninth Circuit has repeatedly found that fibromyalgia is an impairment that can render one disabled. 

The court ordered the parties to meet and confer regarding Plaintiff’s claim for attorneys’ fees and if the claim was not resolved, Plaintiff is permitted to file a motion for attorneys’ fees.

This week’s notable decision summary was written by Corinne Chandler, a Senior Partner at Kantor & Kantor. Corinne was one of the Kantor & Kantor attorneys who handled the Myers’ case in litigation and during the pre-litigation appeal. She has practiced law for over 40 years, specializing in insurance disability claims.  

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

Attorneys’ Fees

Third Circuit

Newton v. S. Jersey Paper Prods. Co., No. 1:19-cv-17289, 2020 WL 7396258 (D.N.J. Dec. 17, 2020) (Judge Hillman). Plaintiff sought attorneys’ fees for having to file a motion to remand. She had sued because her employer terminated its disability benefits plan but continued to deduct premiums for it from her pay. The employer removed it to federal court and argued that the case was governed by ERISA. The judge had remanded the case, noting that it could not be governed by a plan that no longer existed. The court held that it had jurisdiction to hear the fees motion.  While it admitted it had stated in its order that the employer’s position was “nonsensical,” the court declined to award attorneys’ fees for the remand motion given the complexity of ERISA laws and the requirement that the motion be “objectively unreasonable” to award attorneys’ fees for opposing it.

Class Actions

Fifth Circuit

Riley v. Houston NW. Operating Co., LLC d/b/a HCA Houston Healthcare NW. d/b/a Houston NW. Med. Ctr., et al., No. CV H-20-2767, 2020 WL 7263234 (S.D. Tex. Dec. 10, 2020) (Judge Lee H. Rosenthal). Plaintiff challenges the emergency room fees she was billed for emergency room visits and filed a class action complaint. Defendants removed the matter to federal court, alleging subject matter jurisdiction under ERISA. Plaintiff moved to remand. The court granted the remand, finding that Plaintiff was not challenging a coverage decision made by her ERISA health plan. Her allegations and claims focus on Defendants’ policy of adding an allegedly undisclosed fee to emergency patients’ hospital bills. The court found Plaintiff’s claim does not require a patient-insurance company relationship and her claim would be the same without health insurance. The court found that Plaintiff’s claims turn on whether Texas law requires Defendants to disclose the fees to emergency room patients which does not require the court to interpret an ERISA plan. The court granted remand.

Disability Benefit Claims

Second Circuit

Milano v. Provident Life & Casualty Insurance Company and Paul Revere Life Insurance Company, Case No. 19-CV-3357, 2020 WL 7388689 (S.D.N.Y. Dec. 16, 2020) (Judge Valerie Caproni). This case involves cross motions for summary judgment as to whether Plaintiff was disabled from his occupation as a Bonds Salesman. Plaintiff claimed that he suffered from PTSD, anxiety and depression as a result of witnessing the terrorist attacks on September 11, 2001 in New York.  He also lost his brother, friends and colleagues in the attacks. Plaintiff began working in the financial industry in 1983 and worked until March 2013 when he left his job. After that time, he began volunteering at Fox Chase Capital Partners, but received no compensation. In December 2013, Plaintiff began treating with mental health care providers related to his PTSD symptoms. On April 21, 2016, Plaintiff submitted a claim for long term disability benefits to Defendant claiming a March 26, 2013 date of disability. Plaintiff claimed he was unable to perform his occupation due to his mental illness and that specifically he was unable to fly, take public transportation and be in and around tall buildings, crowded streets and people of Middle Eastern descent. The court determined that Plaintiff did not meet his burden that he is totally disabled. The court reasoned that Plaintiff’s claimed inabilities were not supported, and at times, contradicted, by his treatment records. For example, Plaintiff claimed that he was unable to fly on a plane, yet his treatment records documented that he had flown on a plane since 2013. The court found that Plaintiff was unable to take public transportation but did not find traveling via public transportation a material duty. Judgment was entered in favor of Defendant. 

Ninth Circuit

Myers v. Aetna Life Insurance Company, No. CV 19-9555 DSF (KSx), 2020 WL 7423109 (C.D. Cal. Dec. 17, 2020) (Judge Dale S. Fischer). See Notable Decision summary above.

ERISA Preemption

Sixth Circuit

Emergency Dept. Phy. v. United Healthcare, et al., No. 2:19-CV-12052, 2020 WL 7396315 (E.D. Mich. Dec. 17, 2020) (Judge Stephen Murphy). Plaintiffs are an out-of-network physician group suing United Healthcare for underpaying claims for medical services. Plaintiffs had disclaimed any assignment of benefits from the patients. Plaintiffs alleged United Healthcare breached an implied-in-fact or implied-in-law contract and had violated the Michigan Prompt Pay Act. Defendant United Healthcare argued that since the patients were covered by ERISA healthcare plans, Plaintiffs’ claims were preempted by ERISA. The court disagreed, finding the claims were not preempted because they arose from the amount of payment, not the terms of the ERISA plans. Plaintiffs’ claims were not preempted and were allowed to proceed under state law. 

Zahuranec v. CIGNA Healthcare, Inc., et al., Case No. 19-cv-2781, 2020 WL 7335286 (N.D. Ohio Dec. 14, 2020) (Judge Pamela A. Barker). In an ERISA matter involving denied coverage for bariatric surgery pursuant to CIGNA’s Coverage Policy Number 0051 for Bariatric Surgery, CIGNA brought a motion to dismiss this lawsuit on the grounds that Plaintiff’s state law claims for breach of contract, breach of fiduciary duty, equitable estoppel, and declaratory judgment should be dismissed as a matter of law because they are both expressly and completely preempted. The court held that Plaintiff’s (1) breach of contract claim was preempted and (2) claims for equitable estoppel and declaratory judgment were completely preempted and (3) that Plaintiff had brought an ERISA breach of fiduciary duty claim and not a state-based claim therefore saving it from preemption. 

Exhaustion of Administrative Remedies

Tenth Circuit

Cruz v. Reliance Standard Life Insurance Company, No. CIV 18-0974 RB/SCY, 2020 WL 7248102 (D.N.M. Dec. 9, 2020) (Judge Robert C. Brack). Reliance denied Cruz long-term disability benefits and Cruz did not file a timely appeal of the denial. Consequently, Reliance argued that Cruz failed to exhaust his administrative remedies and that his lawsuit should be dismissed. However, the court held that Reliance failed to substantially comply with ERISA’s procedural requirements, and Cruz was prejudiced thereby. Thus, Cruz’s failure to exhaust is deemed excused. Courts may excuse a claimant’s failure to exhaust in three circumstances: (1) “when resort to administrative remedies would be futile”; (2) “when the remedy provided is inadequate”; and (3) when the claimant is “deemed to have exhausted” his “administrative remedies if a plan has failed to establish or follow claims procedures consistent with the requirements of ERISA”. Cruz claims that exhaustion is warranted under the third exception because Reliance failed to follow ERISA regulations in two ways: first, by failing to render a timely decision under 29 C.F.R. §. 2560.503-1(f)(3);4 and second, by failing to provide notice of extensions that satisfied § 2560.503-1(f)(3). The court agreed, and Reliance did not dispute, that its decision was untimely. Paragraph (f)(3) provides that the plan administrator should decide a claim “not later than 45 days after receipt of the claim” with the possibility of up to two 30-day extensions. 29 C.F.R. § 2560.503-1(f)(3). It was undisputed that Reliance mailed the unfavorable decision more than 200 days after Cruz filed his claim, well past the time allotted. Further, because Reliance violated ERISA’s procedural requirements, the court found that a de novo standard of review governs Cruz’s claim. 

Medical Benefit Claims

Sixth Circuit

Niese v. United Healthcare Services, Inc., et al., Case No. 20-cv-823, __F.Supp.3d__, (N.D. Ohio Dec. 14, 2020) (Judge James G. Carr). In this action seeking denied benefits for the denial of proton beam radiation therapy (PBRT) for the treatment of brain cancer, the court granted United’s motion to dismiss this lawsuit holding that Plaintiff’s Complaint failed to allege that his claim for PBRT was outside of the Plan’s exclusion for experimental or investigational services. The court specifically held that Plaintiff’s detailed Complaint did not address two of the three prongs of the definition for this Plan exclusion—prongs of the definition that United never relied on in the administrative appeals process—and did not appear to provide or deny Plaintiff the ability to cure defects in the Complaint with amendments. 

Eighth Circuit

Johnson v. Wellmark of S. Dakota, Inc., No. CIV. 19-4017-LLP, 2020 WL 7230959 (D.S.D. Dec. 8, 2020) (Judge Lawrence L. Piersol). Defendant filed a motion for summary judgment regarding Plaintiff’s claim for medical benefits for a FES Cycle for his rehabilitation following an accident where Plaintiff became a tetraplegic and did not regain use of his legs. Plaintiff submitted a claim with letter of medical necessity for the FES Cycle. Defendant denied the claim for the FES Cycle, characterizing it as “Home Medical Equipment,” and the court was unclear the reason for denial. Defendant denied two appeals, claiming “experimental exercise equipment” not medically necessary citing Wellmark medical policies. Under de novo review, the court found that the language of the Coverage Manual did not provide that medical necessity determinations are made in accordance with Wellmark medical policies and therefore denied Defendant’s motion for summary judgment on that basis. Under the terms of the Plan definition of medical necessity, the court found that the FES Cycle is a medical device and prescribed for treating an injury and denied Defendant’s motion on that basis as well.  

T.G. v. United Healthcare Servs., Inc., et al., No. CV 20-564 (PAM/KMM), 2020 WL 7353065 (D. Minn. Dec. 15, 2020) (Judge Paul A. Magnuson). Plaintiff sought residential treatment benefits for his son. The parties filed cross-motions for summary judgment. The court did not apply the Minnesota statute regarding discretionary language because the plan was self-funded. The court found United focused on lack of suicidal intent despite clear language of the plan that lack of suicidal intent is a prerequisite for admission to residential treatment. But the court upheld United’s decision because United ultimately focused on other reasons as well such as Plaintiff being polite, engage, arrived on time, made good effort. The court found that United did not have to accept Plaintiff’s psychologist’s conclusions regarding medical necessity of treatment. The court granted United’s motion for summary judgment. 

Ninth Circuit

Fortier v. Anthem, et al., Case No. 20-cv-4952 (C.D. Cal. Dec. 11, 2020) (Judge Mark C. Scarsi). This is a putative class action alleging that Anthem systematically denied claims for the FDA-approved” Peripheral Nerve Stimulation (“PNS”) device for knee pain. The court granted CIGNA’s motion to dismiss as to the (a)(1)(B) claim analyzing that the Anthem Medical Policy used to deny claims for PNS devices was part of the operative Anthem Plan and not an extrinsic document that was artificially limiting coverage under the Plan. As such, the court concluded that it could not change its determination that the Plan did not cover Plaintiff’s claim for the PNS device. The court also dismissed Plaintiff’s (a)(3) claim for equitable relief holding that “Plaintiff’s singular liability theory (that the Plan should have covered PNT device therapy because such therapy is FDA-approved) is not actionable and thus did not state a claim under sections 1132(a)(1)(B) or 1132(a)(3).” This matter and the court’s reasoning is a blow to the very positive California federal cases—Escalante and others—that have helped consumers challenge insurers’ abusive and improper use of purposefully narrowly restrictive clinical guidelines to categorically deny certain types of treatment. 

Tenth Circuit

Harvey T., et al. v. Aetna Life Ins. Co., et al., No. 218CV00351DBBDAO, 2020 WL 7352754 (D. Utah Dec. 15, 2020) (Judge David Barlow). Plaintiff seeks reimbursement of residential treatment healthcare benefits for minors under an ERISA plan. The parties filed motions for summary judgment. The claims were administratively denied as not covered per exclusions regarding educational services and precertification and no medical necessity review was conducted. The court found that procedural irregularities did not alter the abuse of discretion standard of review to be applied. The court found that while Plaintiff received certain educational services, he also participated in several forms of therapies and saw a physician. Aetna categorically denied coverage based on its view of the facility as a boarding school without consideration of the mental health services. The court found that because there are certain services that may be covered under the Plan, a categorical denial was not supported by substantial evidence and was arbitrary and capricious. Regarding the precertification denial, a categorical denial based on failure to precertify, as opposed to a reduction of benefits, would be arbitrary and capricious. The court ordered remand for a fair and full evaluation of the claims, including medical necessity. The court declined to award attorney’s fees because the merits of the parties’ positions are unclear at this point in litigation. 

Pleading Issues & Procedure

Eleventh Circuit

Fontainebleau Fla. Hotel, LLC v. The S. Fla. Hotel & Culinary Employees Welfare Fund & Unite Here, Local 355, No. 20-22667-CIV, 2020 WL 7386048 (S.D. Fla. Dec. 16, 2020) (Judge Robert N. Scola, Jr.). Plaintiff Fontainebleau Florida Hotel, LLC (“Fontainebleau”) seeks a declaration that certain employees who were laid-off because of the COVID-19 pandemic are not eligible employees under Fontainebleau and Local 355’s collective bargaining agreement such that Fontainebleau has no obligation to make health care contributions to the Welfare Fund for the laid-off employees. “The Court sees no reason to relax Sections 515 and 502(a)(3)’s standing requirements as requested by Fontainebleau. In order to bring suit under these provisions, a plaintiff such as Fontainebleau must allege it is one of the entities as set forth in Section 502(a)(3). Fontainebleau has not asserted, nor can it, that it is a participant, beneficiary, or fiduciary and therefore Fontainebleau does not have standing pursuant to Section 515 or Section 502(a)(3) under the coercive action doctrine. As such, these subsections of ERISA do not confer subject matter jurisdiction on the Court.”

Provider Claims

Ninth Circuit

Beverly Oaks Physicians Surgical Ctr., LLC v. Blue Cross & Blue Shield of Ill., No. 19-55820, 2020 WL 7393554, __ F.3d __ (9th Cir. Dec. 17, 2020) (Before Circuit Judges Wardlaw and Clifton, and Judge of the U.S. Court of International Trade Jennifer Choe-Groves). Plaintiff is a surgical center that provided out-of-network services to patients insured under ERISA-governed employee benefit plans administered by Defendant Blue Cross. The patients assigned their right to recover benefits under the plans to Plaintiff, who subsequently contended that Blue Cross had underpaid those claims and sued Blue Cross. Blue Cross moved to dismiss, arguing that the plans at issue had anti-assignment provisions that prohibited Plaintiff from recovering on behalf of the patients. Plaintiff responded that Blue Cross had either waived its anti-assignment defense or was estopped from using it because it had raised it for the first time during litigation. The district court held that Blue Cross’ defense was not defeated by waiver or estoppel and dismissed the action; Plaintiff appealed. On appeal, the Ninth Circuit reversed, agreeing with Plaintiff that it had adequately pled both waiver and estoppel. The court acknowledged that anti-assignment provisions in general are valid and enforceable. However, Plaintiff had alleged that it informed Blue Cross that it was acting as an assignee, that Blue Cross in response never mentioned any anti-assignment provisions, and in fact Blue Cross had repeatedly promised Plaintiff that it was eligible to receive payments as an out-of-network provider. Plaintiff had also alleged that it did not know about the anti-assignment provisions and that if it had known it would not have provided treatment to the patients. The court found that these allegations were sufficient to establish both waiver and estoppel.

Severance Benefit Claims

Eleventh Circuit

Hawthorn v. Georgia Pacific Brewton, LLC, No. CV 17-488-JB-MU, 2020 WL 7409601 (S.D. Ala. Dec. 17, 2020) (Judge Jeffrey U. Beaverstock). Plaintiff claimed that Defendants terminated him with the intent to interfere with his ERISA rights. Specifically, Plaintiff alleged his termination was a pretense fabricated by Defendants to preclude him from obtaining severance benefits under the Georgia Pacific Severance Plan for Salaried Employees. To meet his prima facie burden, Plaintiff was not required to show that interference was Defendants’ sole reason for terminating him, but he must show more than the incidental loss of benefits because of termination. Defendants argued Plaintiff was terminated because his position class were phased out—a legitimate, nondiscriminatory reason for Plaintiff’s termination. Plaintiff did not present evidence to overcome Defendants’ proffered reasons for his termination and thus summary judgment was granted to Defendants’ on his ERISA Section 510 claim.

Statute of Limitations

Second Circuit

Tarquino v. Muse Enterprises, Inc., No. 19CIV3434ATSN, 2020 WL 7342719 (S.D.N.Y. Dec. 14, 2020) (Judge Analisa Torres). Plaintiffs asked the court to reconsider its holding that their claims for benefits and for breach of fiduciary duty under ERISA were time-barred. First, the court held that Plaintiffs’ claims began to accrue when they received a 1099 IRS tax form from Defendants. Plaintiffs reiterate an argument they made in opposition to Defendants’ motion to dismiss: they contend that their claims did not begin to accrue until they “knew or should have known that there was an employee benefit or an employee plan benefit they would be denied because of receiving the 1099 form.” The court considered this argument and rejected it because courts in this circuit have found that receiving a 1099 IRS tax form from an employer triggers the statute of limitations, regardless of the employee’s knowledge of the impact of his classification on his pension status. Second, Plaintiffs argue that reconsideration was warranted because the court applied the incorrect statute of limitations to its breach of fiduciary duty claims and should have applied the provision outlined in 29 U.S.C. § 1113. Even under this provision, Plaintiffs’ claims are time-barred. Section 1113 limits claims brought “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation … except … in the case of fraud or concealment” 29 U.S.C. § 1113(b). Because Plaintiffs received a 1099 IRS tax form reporting their income each year they worked for Defendant, each Plaintiff had actual knowledge that Defendants classified him or her as an independent contractor as of the first date on which he or she received the form. 

Eleventh Circuit

Chiappa v. Cumulus Media, Inc., No. 1:20-CV-847-TWT, 2020 WL 7401745 (N.D. Ga. Dec. 17, 2020) (Judge Thomas W. Thrash, Jr.). Plaintiff participated in Cumulus’ 401(k) Plan. She alleged Cumulus breached its fiduciary duties to the participants in the Plan by offering an investment menu composed of unduly expensive mutual funds and paying excessive compensation to the Plan’s recordkeeper. Cumulus filed a Rule 12(b)(6) motion based on the Plan’s statute of limitations. Under the Plan’s limitation provision, a Plan participant who exhausts a claim through the Plan’s internal review process has a right to file a lawsuit within one year after the conclusion of the internal review. If the Plan participant does not exhaust the Plan’s internal review process, his/her lawsuit is limited to conduct that occurred within the year prior to the date on which the lawsuit was filed. Plaintiff did not exhaust the internal review process and filed the claim at least four years after the alleged wrongdoing. Thus, the court agreed with Cumulus that the Plaintiffs’ claims are barred by the terms of the Plan to the extent that they are based on conduct that occurred prior to one year before the case was filed. The Plan contained a 12-month limitations period for participants who fail or refuse to exhaust the Plan’s administrative process for any reason. Because the Plaintiff chose not to exhaust their claims before filing this suit, the terms of the Plan documents barred the Plaintiff’s claim based on conduct more than one year prior to the filing of the complaint.

Statutory Penalties

Eleventh Circuit

Carter v. Sw. Airlines Co., No. 8:20-CV-1381-T-02JSS, 2020 WL 7334504 (M.D. Fla. Dec. 14, 2020) (Judge William F. Jung). Plaintiff brought a putative class action under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), alleging that Defendant failed to provide timely and proper notice of the right to continue health insurance coverage after a qualifying event. The court granted Defendant’s motion to dismiss for lack of standing and failure to state a claim. Given the circumstances of Plaintiff’s situation, the court did not see how she met the injury-in-fact requirement of Article III standing due to the lack of timely information about COBRA when she had no need to elect COBRA coverage due to her continued medical. Plaintiff also claimed later notice she received was informationally deficient in four ways: (1) it did not include the date the qualifying event occurred; (2) it failed to include “the name of the plan”; (3) it failed to include “the name, address and telephone number of the party responsible under the plan for administration of continuation coverage benefits, including the Plan Administrator”; and (4) it was not “written in a manner calculated to be understood by the average plan participant.” The court dismissed the first and third claims under Rule 12(b)(6) for failure to state a claim, and the second and fourth claims under Rule 12(b)(1) for lack of standing. The court determined that: (1) § 2590.606-4(b)(4) does not require plan administers/employers to include the specific date on which the qualifying event occurred; (2) the Notice’s inclusion of “Southwest Airlines (c/o Businessolver, Inc.)” rather than “Southwest Airlines Co. Health and Welfare Benefit Plan” is a procedural deficiency divorced of any concrete harm; (3) § 2590.606-4(b)(4)(i) only requires notice of the “party responsible for administration of the plan’s continuation coverage benefits,” not the “plan administrator;” and (4) Plaintiff failed to allege facts demonstrating how the notice she did receive confused her.

Withdrawal Liability & Unpaid Contributions

Third Circuit

Trustees of The National Elevator Industry Pension Fund, et al., v. Maple Management LLC d/b/a Rae Lifts, et al., No. CV 19-4305, 2020 WL 7353093 (E.D. Pa. Dec. 15, 2020) (Judge Juan R. Sanchez). “Because there is no genuine dispute of material fact as to the amounts owed to the Plaintiff Funds, and because the ‘written waiver’ is not enforceable against the Plaintiff Funds, the Court will grant the Plaintiff Funds’ motion for summary judgment on their claims for unpaid contributions and breach of fiduciary duty against Mecha. The Court will, however, deny the Plaintiff Funds’ motion and grant Defendants’ motion on the claim for a permanent injunction because the Plaintiff Funds have failed to show irreparable harm or the absence of an adequate remedy at law.”

Seventh Circuit

Illinois State Painters Welfare Fund, et al. v. AB Drywall, Inc., No. 19-CV-280-SMY, 2020 WL 7405402 (S.D. Ill. Dec. 17, 2020) (Judge Staci M. Yandle). The court granted Plaintiffs’ Motion for Summary Judgment. “Judgment is granted as to Defendant’s liability for unpaid contributions on behalf on Jared Shires; Plaintiffs shall submit proof of the amount due and owing as to this claim within 30 days of the entry of this Order.”

Eighth Circuit

Trustees for The IBEW, Local No. 1, Health & Welfare Fund et al. v. Resource Electrical Systems, Inc., et al., No. 4:20-CV-00218 JCH, 2020 WL 7353709 (E.D. Mo. Dec. 15, 2020) (Judge Jean C. Hamilton). The court granted Plaintiffs’ Motion for Default Judgment, construed as one for Partial Default Judgment. The court ordered Defendants to pay Plaintiffs $262,072.56 in contributions, plus interest on such contributions in the amount of $82,408.24 and liquidated damages in the amount of $15,200.50, $188,271.62 for the outstanding balance on the Payment Agreement, plus interest of $5,630.32 and liquidated damages in the amount of $1,316.53, and $6,126.40 in attorney’s fees, plus costs of $571.00.

Your ERISA Watch is made possible by the collaboration of the following Kantor & Kantor attorneys:  Brent Dorian Brehm, Sarah Demers, Elizabeth Green, Andrew Kantor, Anna Martin, Michelle Roberts, Tim Rozelle, Peter Sessions, Stacy Tucker, and Zoya Yarnykh.