Hughes v. Northwestern University, No. 19-1401, __ S. Ct. __, 2022 WL 199351 (U.S. Jan. 24, 2022)
The plaintiffs in this investment fee class action against Northwestern University scored a major victory on Monday in the Supreme Court. The Seventh Circuit had affirmed the district court’s dismissal of the case on the pleadings, holding that fiduciaries acted prudently with respect Northwestern’s 403(b) retirement plan because they offered the participants in the plan some prudent investment options with reasonable fees alongside allegedly imprudent investments. As regular readers may remember, in our coverage of the oral argument in this case in December, we predicted that the Justices were inclined to reverse the Seventh Circuit. And that, and no more, is what the Court did.
In a unanimous and unusually brief decision authored by Justice Sotomayor, the Court held that the Seventh Circuit’s “reasoning was flawed.” The “categorical rule” the Seventh Circuit applied – that imprudent investment options in a plan line-up are neutralized by prudent, lower cost options – could not be squared with the Supreme Court’s recognition in Tibble v. Edison Int’l, 575 U.S. 523, 530 (2015), that ERISA’s fiduciary duties are context-specific and require plan fiduciaries to monitor plan investments and remove imprudent ones.
As in Tibble, the plan participants in Hughes alleged that the fiduciaries failed to monitor and remove allegedly imprudent investment options, including by failing to provide otherwise identical mutual fund investments at a lower cost. The Supreme Court reasoned that the Seventh Circuit “erred in relying on the participants’ ultimate choice over their investments to excuse allegedly imprudent decisions by respondents,” given the recognition in Tibble that “even in a defined-contribution plan where participants choose their investments, plan fiduciaries are required to conduct their own independent evaluation to determine which investments may be prudently included in the plan’s menu of options.”
The Court therefore vacated the Seventh Circuit’s judgment and remanded with instructions that the circuit court should engage in a “context-specific” inquiry into the allegations of the complaint as a whole to determine whether the plaintiffs plausibly alleged a violation of ERISA’s “duty of prudence as articulated in Tibble.” In a decision otherwise entirely favorable to the plan participants, the decision ended on a fiduciary-friendly note, pointing out that, in view of the “difficult trade-offs” fiduciaries sometimes face, “courts must give due regard to the range of reasonable judgments a fiduciary may make based on her experience and expertise.”
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Holmes v. Baptist Health S. Fla., Inc., No. 21-22986-Civ-Scola, 2022 WL 180638 (S.D. Fla. Jan. 20, 2022) (Judge Robert N. Scola, Jr.). Plan participants in the Baptist Health South Florida, Inc. 403(b) plan sought to bring a class action on behalf of the plan and plan participants alleging fiduciaries breached their duties by investing in high-cost funds and failing to negotiate or select better-performing lower cost investment options. Defendants moved to compel arbitration, relying on a 2020 plan amendment which included an arbitration clause. In addition to mandating that plan concerns be resolved exclusively by binding arbitration, the amendment also precluded individuals from bringing arbitration claims for class-wide benefits or monetary relief. Plaintiffs opposed the arbitration motion, arguing it is not enforceable because of its waiver of plan-wide remedies, and because it was added to the plan by unilateral amendment. The court did not agree with plaintiffs that the “effective vindication doctrine” should void the arbitration clause, particularly as the Eleventh Circuit has “expressed hesitancy” in applying the doctrine. In fact, the Eleventh Circuit held that a waiver of the right to bring a class action in arbitration is permissible. Here, the court extended that logic, and held that a waiver of remedies associated with class actions in the arbitration agreement is also permissible. As for the unilateral amendment argument, the court was satisfied that because the plan agreed to arbitrate and allowed for unilateral amendment by the plan sponsor, it is irrelevant whether individual participants also agreed to the arbitration clause. Unpersuaded by plaintiffs’ arguments against implementing the mandatory arbitrations, the court granted defendants’ motion and stayed the case pending arbitration.
Doe v. Intermountain Healthcare, Inc., No. 2:18-cv-00807-RJS-JCB, 2022 WL 180646 (D. Utah Jan. 20, 2022) (Judge Robert J. Shelby). Plaintiff Jane Doe suffered from severe mental health disorders, including post-traumatic stress disorder and major depressive disorder. Ms. Doe worked as a physician for defendant Intermountain Healthcare, Inc. Throughout 2016 to 2018, Ms. Doe’s illnesses worsened, and she required inpatient treatment and was hospitalized several times. During this time, she was insured under the Intermountain Life and Health Benefit Plan and opted for a select plan which offered out-of-network mental health benefits. Defendants SelectHealth, Inc., the claim’s administrator, and Intermountain Healthcare, Inc. denied coverage and underpaid for the mental health treatment Ms. Doe received. In order to cover her own healthcare costs, Ms. Doe sold her home to fund the hundreds of thousands of dollars of bills in residential treatment that was not reimbursed by her insurance. This suit followed. Ms. Doe brought individual claims for relief under ERISA sections 502(a)(1)(B), 502(a)(3)(A), 502(a)(3)(B), and 502(c). Tragically, in 2019, while the case was ongoing, Ms. Doe died by suicide. She is now represented in this litigation by her mother, Linda Smith. Ms. Smith’s complaint includes the same four claims previously asserted and adds three class action claims pertaining to the systemic underpayment of mental health services for out-of-network inpatient, residential, partial hospitalization, and intensive outpatient care facilities. Defendants moved to dismiss both Smith’s individual claims and the arguments concerning a putative class action. The court denied the motion to dismiss in its entirety. First, the court held Ms. Smith’s Section 502(a)(3) claims were not duplicative of the Section 502(a)(1)(B) claims and should not be dismissed as they are permissible alterative pleadings appropriate at this stage of litigation. Next, the court deemed the equitable relief sought to be for violation of the Mental Health Parity Act, and thus it was sufficiently pled. Moreover, this relief was found not to be prospective equitable relief as defendants argued. As for the putative class action claims, the court concluded they were adequately pleaded, and each putative class member need not have exhausted administrative remedies since the named plaintiff had exhausted. Also, Ms. Smith was found to have pleaded a class-wide action that was plausible. Ms. Smith’s argument that defendants systematically underpaid claims for out-of-network mental health treatment on its face met the requirements of Federal Rule of Civil Procedure 23. For these reasons the motion to dismiss was denied, making this order bittersweet.
Phillips v. Boilermaker-Blacksmith Nat’l Pension Tr., No. 2:19-cv-02402-TC-KGG, 2022 WL 168224 (D. Kan. Jan. 19, 2022) (Magistrate Judge Kenneth G. Gale). Plaintiffs are union members and participants of the Boilermaker-Blacksmith National Pension Trust who were granted early retirement. Their benefits were terminated, and defendants sought recoupment of alleged overpayments because plaintiffs allegedly were not truly retired. Plaintiffs brought suit challenging the denials and terminations of their benefits. Under the plan, retirees may not work for an “employer” and continue to receive benefits. According to plaintiffs, defendants improperly applied the term “employer” to employers who were not defined by the plan and not contributing to the plan. Previously, the court issued a ruling allowing limited discovery from the years 2000 to present about the term “employer.” Through that discovery, it became clear that the definition of “employer” hasn’t changed since 2000. The parties disputed the scope of the previous discovery order. Plaintiffs moved to compel further documents about the definition of the term as well as its historic application. The court denied the motion, holding the discovery sought was not proportional to the needs of the case nor necessary for the court’s future decision-making.
Westover v. Provident Life & Accident Ins. Co., No. C20-5931 BHS, 2022 WL 168661 (W.D. Wash. Jan. 19, 2022) (Judge Benjamin H. Settle). Plaintiff Randolff Scott Ruffell Westover was a mortgage underwriter at D.R. Horton and a participant in D.R. Horton’s Long Term Disability Plan, issued by LINA, and offered to all employees of D.R. Horton. This plan is an ERISA plan, administered by IPS Advisors. However, this plan is not the plan at issue in the case. Instead, the case centers around the Individual Disability Income Protection Policy that D.R. Horton offered to certain top employees as a voluntary supplemental policy, which was issued by defendant Provident Life & Accident Insurance Company. Mr. Westover purchased the individual disability income protection plan in 2018. Sadly, in 2019, Mr. Westover fell off a ladder and suffered a traumatic brain injury which left him disabled. A few months after the fall, Mr. Westover sought benefits under his individual disability income policy. According to Mr. Westover’s complaint, Provident never decided his claim, violating its duties under state law. He then sued, alleging breach of contract, breach of good faith, negligent claims handling, and violations of Washington’s consumer protection act and insurance fair conduct act. Provident moved to dismiss the state law claims, arguing that the policy is either an ERISA plan or part of an ERISA plan and thus preempted. Mr. Westover asked the court to convert Provident’s motion to dismiss into a motion for summary judgment on the ERISA issue because the motion was supported by declarations and documentary evidence outside the pleadings. The court agreed with Mr. Westover and converted the motion to one for summary judgment. The court also granted Mr. Westover’s motion for sanctions under Federal Rule of Civil Procedure 37(c) because some of the evidence offered by Provident was not properly disclosed. Because Provident failed to produce documents requested previously that it then added to support its motion, the court ordered Provident to pay Mr. Westover’s attorney $1,500. Turning to the policy and ERISA preemption, the court first decided that the policy itself is not an ERISA plan. Provident had a stronger case to make with its argument that the policy was a component of D.R. Horton’s larger ERISA plan. However, when applying the test for whether the plan was administered as a unit with D.R. Horton’s Long Term Disability Plan, the court found it was not. The plan and the policy had different insurers, and while D.R. Horton administered the ERISA plan, the individual disability income protection policy had no plan administrator. Further strengthening the argument that the policy is not an ERISA plan was the fact that it was not sold or marketed to D.R. Horton as such. Because there was no evidence in the record that the policy was administered as a unit with the larger group long-term disability plan, the court concluded that, “the IDI policy is not an ERISA plan as a matter of law.” Thus, Provident’s motion for summary judgment on Mr. Westover’s state law claims based on ERISA preemption was denied, and Mr. Westover’s motion for summary judgment on Provident’s ERISA preemption defense was granted.
Yang v. TravelSky Technology USA, No. CV 21-05611-MWF, 2022 WL 169692 (C.D. Cal. Jan. 14, 2022) (Judge Michael W. Fitzgerald). Plaintiff Xiaowen Yang was fired after she blew the whistle on her employer, TravelSky Technology USA, to the Department of Labor for failing to sign up eligible employees for healthcare and pension benefit plans and for other issues related to financial wrongdoing. Following the termination, Ms. Yang filed a complaint in Los Angeles County Superior Court in which she alleged six state-law retaliation claims against TravelSky. TravelSky removed the case to the district court on the grounds of ERISA preemption. Before the court were two motions; (1) TravelSky’s motion to dismiss, and (2) Ms. Yang’s motion to remand. TravelSky’s brief focused entirely on conflict preemption. However, the court noted that only complete preemption warrants removal. The court concluded Ms. Yang’s retaliation claims do not fall within the scope of ERISA’s civil enforcement provisions and were therefore not completely preempted. Accordingly, the motion to remand was granted and the motion to dismiss was denied as moot.
Pleading Issues & Procedure
Cannady v. Bd. of Trs. of Boilermaker-Blacksmith Nat’l Pension Tr., No. 20-3141-cv, __ F. App’x __, 2022 WL 151298 (2d Cir. Jan. 18, 2022) (Before Circuit Judges Sack and Bianco, and District Judge Stefan R. Underhill). Plaintiff Steven Cannady appealed the Northern District of New York’s decision granting summary judgment in favor of defendants-appellees. Mr. Cannady brought the case after the Boilermaker-Blacksmith National Pension Trust reduced the monthly amount of his disability pension benefits via an amendment. Mr. Cannady submitted an application for his disability pension benefit on August 8, 2017. The relevant amendment had an effective date of October 1, 2017. The trust determined that because Mr. Cannady’s Annuity Starting Date under the plan was November 1, 2017, the amendment applied to his disability pension benefits. Mr. Cannady sued the Trust and its trustees alleging wrongful denial of benefits and breach of fiduciary duty, along with a catch-all Section 502(a)(3) claim. In his appeal, Mr. Cannady challenged the district court’s decision, claiming it erred by concluding the benefits were properly calculated using Mr. Cannady’s annuity starting date rather than using the date on which he submitted his documentation. Mr. Cannady also challenged the district court’s finding that his alternative claim based on defendants’ violation of ERISA’s anti-cutback rule was raised only on the motion for summary judgment and thus not properly raised in the complaint. First, the Second Circuit held that as both the pre- and post-amendment plan contained plain language requiring benefits to be calculated based on a participant’s annuity starting date, and because Mr. Cannady’s annuity starting date was after the effective date of the amendment, the district court properly granted summary judgment in defendants’ favor on the wrongful denial of benefits Section 502(a)(1)(B) claim. Second, the court agreed with the lower court that because Mr. Cannady’s complaint didn’t specifically reference Section 1054(g)(1), the provision applicable to a claim for a violation of ERISA’s anti-cutback rule, the district court did not abuse its discretion in declining to address the claim. For these reasons, the Second Circuit affirmed the order and judgment of the district court.
Davis v. Sedgwick Claims Mgmt. Servs., No. 21-CV-7090 (LTS), 2022 WL 153251 (S.D.N.Y. Jan. 18, 2022) (Judge Laura Taylor Swain). In September of 2021, Your ERISA Watch reported on an earlier decision in this case in which the court found pro se plaintiff Laura Davis failed to state a claim upon which relief could be granted and allowed her leave to amend her complaint. The court may now be regretting its earlier leniency, as Ms. Davis’s amended complaint ballooned from seven pages to 330. Ms. Davis’s suit alleged that defendant Sedgwick Claims Management Services violated ERISA and state laws by denying her disability and retirement benefits under her Delta Airlines ERISA plan, and also violated laws prohibiting discrimination and defamation. Although Ms. Davis’s complaint was longer the second time, it was no more persuasive or less cursory. According to the court, “the amended complaint…is a lengthy discourse that does not cure the deficiencies of the original complaint.” The court once again held Ms. Davis failed to state a claim, and surprisingly once again granted Ms. Davis leave to amend to file another complaint.
Wehner v. Genentech, Inc., No. 20-cv-06894-RS, 2022 WL 179683 (N.D. Cal. Jan. 20, 2022) (Judge Richard Seeborg). Plaintiff Matthew Wehner sued Genentech, Inc. under ERISA for breach of fiduciary duty and failure to monitor co-fiduciaries’ breaches, alleging the managers of the defined-contribution retirement plan charged excessive fees and made improper investment decisions. Earlier in the case, the court dismissed portions of each claim relating to the investment decisions, leaving only the excessive fee portion of the case intact. Mr. Wehner moved for final entry of judgment under Federal Rule of Civil Procedure 54(b) on the dismissed claims, which would allow him to appeal the dismissals to the Ninth Circuit while the remainder of the case progressed. The court denied the motion. Although it was unclear what constitutes a claim for the purposes of final judgment, and whether or not Mr. Wehner has received final judgment on any claim, it was clear to the court that judicial economy here does not compel certification of an appeal and Mr. Wehner will not suffer undue prejudice from filing an appeal in the normal course. The court held, “certification would not streamline the case. Instead, it would break it in two.” Furthermore, the court did not agree with Mr. Wehner’s contention that the excessive fees, totaling $10 million, were only a small part of the case. For these reasons, the motion for entry of final judgment was denied.
ABC Servs. Grp. v. Aetna Health & Life Ins. Co., No. 20-55821, __ F. App’x __, 2022 WL 187849 (9th Cir. Jan. 20, 2022) (Before Circuit Judges Kleinfeld, Nelson, and Vandyke). Plaintiff ABC Services Group, Inc. appealed the district court’s dismissal of its breach of contract, quantum meruit, and ERISA claims against Aetna Health & Life Insurance Co. On appeal, the Ninth Circuit affirmed in part and reversed and remanded in part. The district court’s dismissal of the contract and quantum meruit claims were affirmed. ABC argued that its contract claims should proceed because it does not currently have all the contracts needed to provide specifics, many of which are in the sole possession of defendants. However, ABC possesses some contracts, and the court found that even for those ABC did not sufficiently plead the specifics necessary to state a claim. For ABC’s quantum meruit claim, ABC was unable to prove that defendants requested its services. Without this crucial element, the district court’s dismissal of this claim was found appropriate. However, with regard to ERISA, the Ninth Circuit reversed the district court’s dismissal for lack of standing. The district court had relied on Simon v. Value Behavioral Health, Inc., 208 F.3d 1073 (9th Cir. 2000), to conclude that standing does not extend to assignees of healthcare providers. After the district court issued its decision, however, the Ninth Circuit published Bristol SL Holdings, Inc. v. Cigna Health & Life Ins. Co., No. 20-56122, __ F.4th __ (9th Cir. Jan. 14, 2022), which clarified the holding in Simon and the ability of an assignee to bring an ERISA cause of action. Because of this new clarification, the Ninth Circuit remanded to the district court to review the ERISA case with fresh eyes in light of the updated case law.
Atlantic Neurosurgical Specialists, PA v. Multiplan, Inc., No. 20 Civ. 10685 (LLS), 2022 WL 158658 (S.D.N.Y. Jan. 18, 2022) (Judge Louis L. Stanton). Plaintiff Atlantic Neurosurgical Specialists brought suit seeking to recover the cost of allegedly underpaid medical services it provided to three patients insured by Cigna and United with preferred provider organization (“PPO”) plans administered by Multiplan Inc. Although Atlantic Neuro did not enter into an express contract with Cigna or United, it had contracted with Multiplan to be a participating provider in 2011. Under that contract, Multiplan represented that its clients, which included Cigna and United, “would pay Contract Rates to Atlantic Neuro for surgical and other related medical services rendered to Atlantic Neuro’s patients enrolled in Benefit Programs underwritten and/or administered by Cigna or United when any such patient accesses the Multiplan network.” According to the complaint, Cigna and United failed to pay the contract rate for services Atlantic Neuro provided to three of their insureds and underpaid $431,208.69. Against all defendants, Atlantic Neuro brought claims of breach of contract, breach of implied warranty of good faith, promissory estoppel, and quantum meruit. Defendants moved to dismiss for failure to state a claim, arguing the state law claims are preempted by ERISA. The court disagreed that ERISA preempts the claims because the implied-in-fact contract rather than the terms of any ERISA plan is at the center of the claims. Because of this, the state law claims do not require interpreting the terms of ERISA plans. Also, as the claims would result in a one-time payment of damages, the court held it would “not interfere with the uniformity of plan administration.” Although ERISA was found not preemptive, Cigna and United’s motion to dismiss the claims against them was granted for all counts. The crux of this decision was that Multiplan entered into an agreement with Atlantic Neuro, while the insurers did not. With regard to Multiplan, its motion to dismiss was only granted for the breach of implied warranty of good faith and fair dealing and the quantum merit claims. Atlantic Neuro was not able to prove to the court that Multiplan acted in bad faith. Nor did the complaint adequately plead that Multiplan received a benefit that it would be unjust for it to keep. However, the complaint was sufficient to plead claims upon which relief could be granted for breach of contract and promissory estoppel against Multiplan. Finally, the court granted Atlantic Neuro leave to amend its complaint.
Be Well Providers, LLC v. Anthem Health Plans of Ky., Inc., No. 3:20-cv-241-BJB, 2022 WL 138595 (W.D. Ky. Jan. 14, 2022) (Judge Benjamin Beaton). Plaintiff Be Well Providers, an outpatient treatment center for people with eating disorders, sued Anthem Health Plans of Kentucky, Inc. in state court for failure to reimburse for the services it provided to patients insured by Anthem. Anthem removed the case to federal court. The parties filed cross-motions for summary judgment. At the summary judgment stage, Anthem, which had previously represented that all of the plans at issue were governed by ERISA, clarified that two of the plans were not ERISA-governed. Because Be Well’s motion for summary judgement did not address the non-ERISA plans and discovery has been limited to the administrative record under ERISA, the court was “loath to issue a ruling that could have significant disruptive effects in the healthcare and insurance sectors based on this fleeting presentation.” Therefore, neither party was granted summary judgment on the non-ERISA beneficiaries, and the parties were ordered to confer to propose a schedule that will allow them to appropriately present any motions and requests regarding the non-ERISA plans. As for the ERISA-plan beneficiaries, the court held that Be Well’s claims for reimbursement under ERISA fail because it lacks standing to assert the claims due to plan anti-assignment provisions. The court further concluded that Be Well failed to plead a claim for promissory estoppel under Kentucky law. Be Well primarily relied on preauthorization letters Anthem sent stating that it “should” cover the eating disorder services. The letters, as written, did not contain the necessary promise of payment and whatever promises they included were definitely conditional. The court concluded that the plan and not the preauthorization letter was, “the source of Anthem’s obligation (if any) to pay.” Thus, the court expressly stated that it was not ready to allow a state law cause of action to circumvent ERISA. Anthem’s motion for summary judgment was consequently granted in part and the court entered judgment against Be well regarding the ERISA claims.
Sibley v. Citizens Bank & Tr. Co. of Marks, No. 3:20-CV-00282-GHD-JMV, 2022 WL 163734 (N.D. Miss. Jan. 18, 2022); Sibley v. Citizens Bank & Tr. Co. of Marks, No. 3:20-CV-00282-GHD-JMV, 2022 WL 163733 (N.D. Miss. Jan. 18, 2022) (Judge Glen H. Davidson). Six months after plaintiff Franklin L. Sibley’s full retirement was accepted and reported by Citizens Bank’s Board of Directors, and during a period of “significant financial losses due to a customer’s fraudulent loan activity (requiring) an immediate capital infusion to offset these losses,” Mr. Sibley was sent a letter from the Board of Directors informing him that they were immediately terminating his benefits, claiming he had been “verbally terminated for cause.” A day after this letter was sent, the Board of Directors sent a Consent Order Status Report to the Federal Deposit Insurance Corporation informing it that the termination of Mr. Sibley’s benefits had “provided another $1,049,633 of capital to the Bank.” Mr. Sibley commenced this action, alleging defendants Citizens Bank and Peyton MB Self III (the CEO and chairman of the board of directors) were liable for breach of contract, tortious breach of contract, intentional interference with contractual relations, and violations of ERISA Sections 502(a), 503, and 510. In two orders, the court separated defendants’ joint motion to dismiss and their motion to strike Mr. Sibley’s jury demand. In both motions, defendants argued the state law claims were preempted by ERISA. Mr. Sibley conceded this point, and the state law claims were accordingly dismissed. Mr. Sibley additionally conceded the fact that his jury demand should be stricken as inapplicable to ERISA claims. Defendant Citizens Bank did not seek dismissal of Mr. Sibley’s Section 502(a) and Section 503 claims, but sought dismissal of the Section 510 claim. In the first order, addressing defendant Citizens Bank, the court ruled that Mr. Sibley’s complaint sufficiently alleged facts satisfying the elements required under Section 510. Citizens Bank’s motion to dismiss this claim was thus denied, and all three ERISA claims against it will proceed. In the second order pertaining to defendant Mr. Self, Mr. Sibley conceded that Mr. Self was not a proper party to his Sections 502 and 503 claims, and the court therefore granted Mr. Self’s motion to dismiss those claims. However, the court denied the motion to dismiss the Section 510 retaliation claim with regard to Mr. Self.