No case of the week this week as we make it through the end of winter doldrums. But keep reading for many interesting ERISA developments.
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Monroe v. Metro. Life Ins. Co., No. 2:15-cv-02079-TLN-CKD, 2022 WL 624870 (E.D. Cal. Mar. 3, 2022) (Judge Troy L. Nunley). In May 2020, the court entered judgment in favor of plaintiff Renee Johnson Monroe in this disability benefit denial case. Ms. Monroe filed a motion for attorneys’ fees on June 1, 2020, requesting $429,568 in attorneys’ fees and $3,308.96 in costs. Nearly two years later, the court issued this decision. First, because Ms. Monroe prevailed in the case and demonstrated her entitlement to benefits under the plan, the court expressed that she is entitled to an award of fees and costs without needing to address the Hummell factors.
The court then turned to the hourly rates requested for plaintiff’s counsel. Ms. Monroe was represented by Robert J. McKennon and Joseph S. McMillen who work for the McKennon Law Group PC and are experienced ERISA practitioners with 34 and 24 years of experience respectively. Mr. McKennon requested hourly rates from $700 per hour in 2015 to $800 in 2020. Mr. McMillen requested hourly rates ranging from $495 per hour in 2015 to $700 per hour in 2020. The court agreed with defendant MetLife that there was no “meaningful evidence to suggest that the market has paid or is willing to pay” the requested hourly rates. Accordingly, the court reduced the requested rates somewhat, awarding Mr. McKennon hourly rates of $650 an hour (for 2015-16), $700 (2017-18), and $750 (2019-2020), and Mr. McMillen hourly rates of $495 per hour (2015-16), $550 (2017-18), and $625 (2019-2020). Next, the court turned to assessing the reasonableness of the 671.6 hours requested. Defendant sought to reduce the fee request by 50% arguing the requested hours were duplicative and insufficiently explained. Ms. Monroe argued that the defendant’s requested fee reduction should be rejected and cited “Ninth Circuit authority requiring specificity for reductions larger than 10%.” The court split the proverbial baby and ended up reducing the requested hours by about a quarter, and included specific reasoning behind each reduction. In the end, the court reduced by requested attorneys’ fee award by $100,589.68, which resulted in a fee award of $328,978.32. As for the costs Ms. Monroe sought, the court reduced the requested non-statutory costs for “travel, service/messenger fees, mediation and computerized legal research” by $1,660.32, finding some of the requested costs not to be items ordinarily billed separately to clients and therefore inappropriate for an ERISA costs award. Therefore, the court awarded a total of $2,060.32 for costs. Although Ms. Monroe and her counsel’s motion for attorneys’ fees and costs was ultimately granted, it was two years late and $102,250 short.
Breach of Fiduciary Duty
Plutzer v. Bankers Tr. Co. of S. Dakota, No. 1:21-cv-3632, 2022 WL 596356 (S.D.N.Y. Feb. 28, 2022) (Judge Mary Kay Vyskocil). Plaintiff Edward Plutzer filed suit alleging defendant Bankers Trust Company of South Dakota engaged in a prohibited transaction and breach its fiduciary duties as trustee of the Tharanco group Inc. ESOP plan by paying far more than fair market value for its stock purchase in 2015, causing participants to suffer major losses. In the ESOP transaction, the plan paid $133,430,000 for the shares it purchased. Immediately after the transaction the Tharanco shares were revalued at $13,250,000, or about a tenth of the purchase price. Mr. Plutzer alleged that this stark decline in value caused him to suffer a concrete financial injury. The court disagreed, and threw out Mr. Plutzer’s complaint for lack of Article III standing. In its decision, the court relied heavily on a recent out-of-circuit decision from North Carolina, Lee v. Argent Trust Co., 2019 WL 3729721 (E.D.N.C. Aug. 7, 2019). Like the Lee court, the court here concluded that because the ESOP’s equity value is the value of the asset minus the plan’s debt obligation, “the value of the ESOP will necessarily be lower until it pays off the loan,” and Mr. Plutzer thus could not plausibly allege that he suffered any particularized or concrete financial harm. Mr. Plutzer argued that he did “not allege an initial post-Transaction drop in valuation flowing from the leveraged nature of the Plan’s stock purchase (as) evidence the Plan paid more than fair market value.” Rather, Mr. Plutzer argued that the purchase price of the stocks was grossly inflated and therefore constituted a prohibited transaction. The court disagreed, finding Mr. Plutzer’s claims “entirely speculative.” Accordingly, the case was dismissed without prejudice.
Smith v. Shoe Show, Inc., No. 1:20-cv-813, 2022 WL 583569 (M.D.N.C. Feb. 25, 2022) (Judge William Lindsay Osteen Jr.). Plaintiffs in this putative class action are participants in the Shoe Show, Inc. Retirement Savings 401(k) Plan. The defined contribution plan is on the large size, with over 1,500 participants and assets of over $40 million. Plaintiffs asserted counts of breach of fiduciary duties of prudence, monitoring, loyalty, and the obligation to act in accordance with plan documents, breach of the fiduciary duty of diversification, and prohibited transactions with a party in interest. Plaintiffs claim that defendants failed to limit record keeping fees, failed to offer institution rather than retail class shares, failed to offer passive funds, and failed to diversify the equity funds of the plan. Defendants moved to dismiss pursuant to the Federal Rule of Civil Procedure 12(b)(6). “Defendants argue that Plaintiffs have failed to plausibly allege any fiduciary breach occurred, (and that the) fee arrangement is statutorily exempted from ERISA’s prohibited transaction provision.” The court granted in part and denied in part defendants’ motion to dismiss. The court was satisfied that plaintiffs plausibly alleged the recordkeeping fees were excessive compared to the services provided. The court also held plaintiffs stated a claim based on a failure to offer funds utilizing the most affordable share classes. The derivative duty to monitor claim was also allowed to proceed. In the last bit of good news for plaintiffs, the court determined that their prohibited transaction claim was sufficiently pled, and thus refused to dismiss this claim. However, the court dismissed plaintiffs’ fiduciary duty of loyalty claim, their imprudence claim based on failure to offer passively managed funds, and their failure to act in accordance with plan documents claim, as well as their failure to diversify claim. According to the court, plaintiffs did not allege sufficient evidence to support their assertion that defendants acted in a disloyal or self-interested manner. With regard to the failure to offer passively managed funds, the court stated that plaintiffs needed to include meaningful benchmarks to assert such a claim but failed to do so. The court also held that plaintiffs could not point to any specific plan provisions that defendants violated by including expensive, underperforming, or insufficiently diversified funds. Finally, because the plan offered over twenty investment options of a wide variety of fund types, the court was satisfied that the plan was sufficiently diversified as required by ERISA. As large swaths of plaintiffs’ complaint were not dismissed, the court ordered that briefing on the motion for class certification and appointment of class counsel proceed.
Disability Benefit Claims
Chicco v. First Unum Life Ins. Co., No. 20cv10593 (DLC), 2022 WL 621985 (S.D.N.Y. Mar. 3, 2022) (Judge Denise Cote). Plaintiff Michelle Chicco sued First Unum Life Insurance Co. under Section 502(a)(1)(B) for wrongful denial of benefits under a long-term disability insurance plan. Ms. Chicco worked as a tax accountant for D.E. Shaw & Co., L. P. Beginning in 2013, Ms. Chicco began experiencing fatigue, weakness, and body pains. Doctors diagnosed her with fibromyalgia and radiculopathy. Despite attempts at different treatments and attempts to resume full-time work, by 2019 Ms. Chicco stopped working completely and applied for long-term disability benefits. Unum denied the application and upheld its denial on appeal, concluding Ms. Chicco’s reported pain was out of proportion to the evidence of radiculopathy in exams, and that these conditions should not prevent her from working. Parties agreed to try the case on the record, and agreed that the insurance plan did not contain discretionary language. Accordingly, the court reviewed the medical record and the benefits determination under de novo standard. The court concluded that Ms. Chicco proved by a preponderance of evidence that she is unable to perform the material duties of her job, and thus is disabled within the meaning of the plan. According to the court, “these findings are supported by both subjective and objective medical evidence.” Additionally, Ms. Chicco’s treating physicians all determined her condition to be disabling, while Unum’s reviewing doctors did not see Ms. Chicco in person and discounted relevant medical records. Therefore, the court granted judgment in favor of Ms. Chicco and found Unum “liable on the claims presented in this action.”
Smith v. Midwest Operating Eng’rs Pension Fund, No. 20-cv-04571, 2022 WL 595706 (N.D. Ill. Feb. 28, 2022) (Judge Andrea R. Wood). Plaintiff James P. Smith Jr. worked as an operating engineer and participated in a multiemployer benefit plan for members of the Midwest Operating Engineers Union. In 2000, Mr. Smith suffered an on-the-job injury that left him disabled. The plan’s board of trustees deemed Mr. Smith eligible to receive disability benefits because he suffered from a “Total and Permanent Disability” as defined by the plan. Mr. Smith received monthly disability benefits for the next 19 years, until the plan administrator terminated Mr. Smith’s benefits in September 2019 because he was no longer receiving disability benefits from the Social Security Administration. After an unsuccessful internal appeals process, Mr. Smith brought this wrongful termination of benefits suit under ERISA Section 502(a)(1)(B) seeking to recover his disability benefits. The parties filed cross-motions for summary judgment. As the plan granted the administrator discretionary decision making authority, the court reviewed the challenged decision under the arbitrary and capricious review standard. Reviewing the language of the plan, the court concluded that the requirement of a Social Security Disability Award pertained only to the participant’s initial eligibility for disability benefits. The plan clearly draws a distinction between requirements for initial eligibility and entitlement to continued receipt of benefits. The court wrote that any mention of Social Security Disability Award was “notably absent as a condition to a participant’s continued receipt of benefits.” Accordingly, the administrator was “not at liberty to nonetheless impose such a requirement” and terminate benefits on this ground. Doing so, the court held, was unreasonable. As such, the court found the decision to be arbitrary and capricious, and granted Mr. Smith’s motion for summary judgment, and denied the Pension Fund’s motion for summary judgment. However, the court concluded that, for other reasons, namely a brief attempt at resuming work, the Fund may have a valid reason for terminating benefits. Thus, the court remanded to the Fund’s review panel to either reinstate Mr. Smith’s benefits or explain why Mr. Smith’s disability has ceased pursuant to the language and requirements of the plan.
Gamino v. KPC Healthcare Holdings, Inc., No. 5:21-cv-01466-SB-SHKx, 2022 WL 601047 (C.D. Cal. Feb. 28, 2022) (Magistrate Judge Shashi H. Kewalramani). Plaintiff Danielle Gamino initiated this class action on behalf of herself and all participants and beneficiaries of the KPC Healthcare, Inc. Employee Stock Ownership Plan against nine defendants involved in a debt-leveraged purchase of stock by the ESOP in violation of ERISA. The court had previously granted class certification and parties engaged in extensive document discovery. This decision pertains to depositions, none of which had been taken by the time of this order. Plaintiffs request to take six additional depositions beyond the ten that are presumptively allowed under Federal Rule of Civil Procedure Rule 30(a). On February 11, 2022, the court held a discovery conference regarding the matter, after which the parties submitting briefing on their positions. Plaintiffs argued that this complicated class action involving nine defendants about complicated financial matters involving banks and financial advisors necessarily warrants more depositions than many other cases. Plaintiffs argued they would be prejudiced if they had to pick only ten individuals to depose, because each of the sixteen individuals they seek to depose may have unique and relevant information that goes to, “numerous topics, including the design of the transaction, the financial condition of KPC at the time of the Transaction,… the operations of KPC before the Transaction, negotiations between the Trustee and sellers, the value of KPC, … and Defendants’ fiduciary processes.” The court found plaintiffs’ arguments strong, and agreed that depositions of the all of the parties requested was warranted and non-duplicative. Additionally, the court was satisfied that granting plaintiffs’ request now would be the “most efficient and equitable manner to handle the discovery dispute.” Accordingly, the motion was granted.
Hussey v. E. Coast Slurry Co., No. 20-11511-MPK, 2022 WL 617568 (D. Mass. Mar. 1, 2022) (Magistrate Judge M. Page Kelley). Plaintiff Virginia Hussey filed suit alleging sex-based discrimination and retaliation in violation of Title VII and state law claims in connection with her time as a student of the Hoisting and Portable Engineers Apprentice and Training Program run by the International Union of Operating Engineers, Local 4. She sued the Union, the School and local contractors for whom she apprenticed, alleging that she faced serious and prolonged sexual harassment, assault, and discrimination, and also alleged that she was expelled from the School, terminated from the Union, and fired from East Coast Slurry in retaliation for complaining about the abusive behavior she experienced including by a member of school board and president of the Union. Defendants moved separately for summary judgment. As relevant here, the school argued that, as an apprenticeship program, it was an ERISA benefit plan, and that Ms. Hussey’s state law claims against it were therefore preempted by ERISA. The court disagreed, finding that the state law claims were exempt from ERISA preemption because they were a necessary part of a federal enforcement scheme under Title VII.
Smith v. Fid. Workplace Servs., No. 21-cv-03941-JD, 2022 WL 612665 (N.D. Cal. Mar. 1, 2022) (Judge James Donato). Plaintiff Timothy Smith filed a lawsuit in Alameda County Superior Court alleging state law claims for breach of contract and common law counts of money had and received against defendants AT&T Services, Inc. and Fidelity Workplace Service LLC. Defendants removed the case to the federal court on the basis of complete ERISA preemption. Defendants then moved to dismiss the complaint for failure to state a claim because, they argued, the state law claims were preempted by ERISA, and barred by the statute of limitations. The court agreed with defendants that ERISA preempts the claims, concluding that these claims could have been brought under Sections 502(a)(1)(B) and 502(a)(3) of ERISA and directly relate to an ERISA plan. Accordingly, the court granted defendants’ motion to dismiss the state law claims pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds of ERISA preemption, but granted Mr. Smith leave to amend his complaint to restate his claims as ERISA claims. The court denied defendants’ motion to dismiss on statute of limitations grounds, noting that limitations arguments “are rarely appropriate for resolution at the motion to dismiss stage.”
Life Insurance & AD&D Benefit Claims
Campbell v. Hartford Life & Accident Ins. Co., No. 21-5651, __ F. App’x __, 2022 WL 620151 (6th Cir. Mar. 3, 2022) (Before Circuit Judges McKeague, Bush, and Readler). Plaintiff/appellee Dana Campbell brought suit against defendant/appellant Hartford Life & Accident Insurance Company after Hartford Life denied Ms. Campbell’s life insurance benefit claim and rescinded the life insurance coverage of her late husband based on a “material misrepresentation” in the insurance application. In the application for the supplemental life insurance coverage decedent Mr. Campbell was required to fill out a personal health questionnaire. Question 4 on the application asked if “you have been diagnosed or treated for drug or alcohol abuse?” Mr. Campbell answered “no.” It would come to light following Mr. Campbell’s death from cancer that in the year prior to applying for life insurance benefits he had been treated for alcohol dependance. Thus, when Mr. Campbell died, which was within two years of applying for supplemental life insurance coverage and so within the timeframe allowed by the policy for contestability, Hartford Life rescinded coverage based on Mr. Campbell’s false answer to Question 4. In the district court, Ms. Campbell was granted summary judgment under de novo review and the court reversed Hartford’s decision. Hartford appealed both the standard of review and the district court’s interpretation of the plan. First, the Sixth Circuit agreed with Hartford that the district court had erred in applying de novo review standard. Although the certificate of insurance that Hartford issued to the Campbells which contains the provision giving Hartford discretionary authority was a summary document and summary documents are not ordinarily the terms of the plan, because the certificate was incorporated into the policy through a plan amendment, the court was satisfied that it was part of the plan and sufficient to confer deferential review standard. Accordingly, the court of appeals re-examined Hartford’s decision to rescind Mr. Campbell’s supplemental life insurance coverage under arbitrary and capricious review. Under this standard, the Sixth Circuit concluded that Hartford’s decision to rescind on the grounds that Mr. Campbell made a material misrepresentation was reasonable as the record contained ample evidence that Mr. Campbell was treated for alcohol addiction in the year prior to applying for life insurance. For these reasons, the court of appeals reversed the district court’s award of benefits and remanded with instructions to enter judgment in favor of Hartford.
Pension Benefit Claims
Metzgar v. U.A. Plumbers & Steamfitters Local No. 22 Pension Fund, No. 20-3791, __ F. App’x __, 2022 WL 610340 (2d Cir. Mar. 2, 2022) (Before Circuit Judges Park and Robinson, and District Judge Rakoff). Plaintiffs/appellants are retirees and participants of a defined benefit multi-employer pension plan. Plaintiffs brought suit after the Trustees of the Pension Fund reinterpreted their understanding of the term “retire.” Before the fall of 2011, the Trustees administered the plan with the understanding that participants did not have to stop working completely for covered employers in order to receive pension payments, but could instead continue working while receiving payments “as long as they switched from disqualifying employment to non-disqualifying employment.” The Trustees then changed their interpretation to require participants to sever employment completely with all employers who contribute to the plan in order to receive pension benefits. The district court granted summary judgement in favor of defendants, finding their interpretation of the plan language was not arbitrary and capricious. Plaintiffs appealed. The Second Circuit agreed with the district court that, although in practice the Trustees had previously permitted retirees to work for covered employers so long as they engaged in non-disqualifying employment, the language of the plan did not specifically require this practice. Accordingly, the Trustees reinterpretation of the requirements of qualified retirement was a reasonable one according to both the district court and the court of appeals. The lower court’s summary judgment decision was therefore affirmed.
Pleading Issues & Procedure
Collins v. Anthem, Inc., No. 1:20-cv-001969, 2022 WL 580988 (E.D.N.Y. Feb. 24, 2022) (Judge Frederic Block). Plaintiffs are participants and beneficiaries of ERISA-governed healthcare plans issued by defendants Anthem, Inc and its subsidiaries. The plans at issue determine benefit eligibility by “medical necessity” defined as being in accordance with generally accepted standards of medical practice. Plaintiffs were denied coverage for residential treatment for psychiatric conditions and for addiction treatment based on Anthem’s Psychiatric Disorder Treatment guidelines. Plaintiffs allege these guidelines are impermissibly restrictive and at odds with “medical necessity” as its defined in the plans. In their complaint, plaintiffs brought claims for breach of fiduciary duty, unreasonable benefit denials, injunctive relief and equitable relief. Defendants moved for partial dismissal. First, the court was satisfied that plaintiffs properly alleged that defendants were acting in a fiduciary capacity by interpreting the terms of plans. Next, the court addressed defendants’ argument that they are not the proper defendants for one of the plans because they did not have final authority to adjudicate claims. The court held that defendants have not demonstrated that they do not exercise total control over said plan and concluded this was not a basis to dismiss the claims. Additionally, the court would not dismiss the Section 502(a)(3) claim as duplicative of the Section 502(a)(1)(B) claim, because the Federal Rules of Civil Procedure allows for alternative pleading. Finally, the court did not dismiss plaintiffs’ allegations with respect to Anthem’s treatment of substance use disorder claims even though they did not cite Anthem’s policy specifically on substance use disorders because the court concluded that it was possible that plaintiffs did not currently have these guidelines and may require discovery to obtain them. Those allegations thus were not dismissed as they may have bearing on the subject matter of the case. For these reasons, defendants’ motion to dismiss was denied.
Mann v. Power Home Solar, LLC, No. 5:21-CV-00166-KDB-DSC, 2022 WL 602196 (W.D.N.C. Feb. 28, 2022) (Judge Kenneth D. Bell). Plaintiff Donald Mann brought suit alleging defendant Power Home Solar, LLC breach its contractual promise to pay severance benefits upon termination of his employment in violation of ERISA Section 502(a) and North Carolina Wage and Hour Laws. Defendant moved to dismiss, arguing that ERISA was inapplicable as the severance agreement was an individual employment contract. The court granted the motion to dismiss without prejudice. The court agreed with defendant that Mr. Mann failed to allege the existence of an ERISA-governed benefit plan and specifically alleged that he had “individually bargained for his severance payment.” Furthermore, the court decided because Mr. Mann failed to state a viable claim under ERISA, the court would not exercise jurisdiction over the state law claims. The court concluded by expressly allowing Mr. Mann the opportunity to resolve the merits of his complaint in the North Carolina state courts, and did not address the merits of these claims.
Melanson v. Walgreen Co., No. 2:21-cv-00155-JAW, 2022 WL 597301 (D. Me. Feb. 28, 2022) (Magistrate Judge John C. Nivison). Plaintiff Jay Melanson brought suit against defendants Walgreen Co., Walgreen Eastern Co., Inc., and Walgreens Boots Alliance, Inc. for age discrimination in violation of the Maine Human Rights Act and the federal Age Discrimination in Employment Act after his employment was terminated at the age of 62. Mr. Melanson alleged that defendants failed to offer him a “comparable job” as a pharmacy manager after Walgreens closed the Rite Aid pharmacy it had bought where Mr. Melanson worked. According to the complaint, defendants offered younger and less experienced employees pharmacy manger positions but chose to fire Mr. Melanson. In addition, when he was terminated, Mr. Melanson was not offered the severance package that other similarly situated employees were given. Mr. Melanson moved for leave to amend to add a cause of action under ERISA Section 510 to his complaint. Defendants moved to dismiss and to strike Mr. Melanson’s jury demand. The court granted Mr. Melanson’s motion to amend, disagreeing with defendants that amendment would be futile because the non-ERISA claims are preempted by ERISA and Mr. Melanson has not exhausted the administrative process to bring an ERISA claim. The court held that ERISA does not preempt the age discrimination claims. As for the exhaustion argument, the court determined it was appropriate only for a later stage of litigation and the ERISA claim in the proposed amended complaint could not be deemed futile based on an alleged failure to exhaust. Turning to defendants’ motions, the court granted in part the motion to strike the jury demand in so far as it applies to the ERISA claim, but allowed Mr. Melanson a trial by jury on his age discrimination claim. Defendants’ motion to dismiss, which was based largely on the same issues of exhaustion and ERISA preemption, was denied.
Withdrawal Liability & Unpaid Contributions
Trs. of Iam Nat’l Pension Fund v. M & K Emp. Sols., No. 1:20-cv-433 (RCL), 2022 WL 594539 (D.D.C. Feb. 28, 2022) (Judge Royce C. Lamberth). After M & K Employee Solutions, LLC-Alsip ceased covered operations under a collectively bargained agreement, it effectuated a complete withdrawal from the multiemployer IAM National Pension Fund. The Trustees of the Fund notified M & K that it had calculated its withdrawal liability at over $6 million and set a payment schedule for the company to pay said amount. Rather than initiate payments, M & K went to arbitration to contest the calculated amount. This action ran afoul of the “pay now, dispute later” rule laid out in the MPPAA, which requires employers, even those challenging the trustees’ withdrawal liability determination, to pay according to the trustee’s schedule in the interim. After a half a year of missed payments, the Trustees of the Fund filed this lawsuit to recover the assessed withdrawal liability. This suit has a long procedural history, including two preliminary injunctions ordering defendants to pay the withdrawal liability. Both times, defendants declined to comply with the order. The case was interrupted when the arbitration that M & K initiated two years previously arrived at its conclusion. The arbitrator determined that the Fund had erred in its assessment and recalculated the liability owed by M & K to be $1,797,781. At this point, defendants finally paid the adjusted amount assessed by the arbitrator. Defendants then appealed the previous injunctions ordered by the court. On appeal, the D.C. Circuit remanded to the district court to vacate the preliminary injunctions. Now before the district court are seven motions, four motions filed by the Trustees of the Fund, and three filed by defendants. All the motions center around one question, “whether, as defendants repeatedly allege, the arbitrator’s determination has ‘mooted’ this case.” The court’s answer: no. “Liability for liquidated damages is separate from the underlying withdrawal liability itself.” Defendants’ actions were a flagrant violation of the “pay now, dispute later” rule and the underlying issues of the case are not mooted by defendants paying the withdrawal liability many years later after arbitration was completed. The Trustees, the court articulated, are entitled by statue to liquidated damages, and attorneys’ fees and costs. Accordingly, the court denied defendants’ three motions to (1) dismiss, (2) for summary judgment, and (3) motion for protective order. The Trustees’ two contempt motions (for failure to attend a scheduled depositions) were also denied, as the court held defendants’ explanation that they were waiting for the outcome of the arbitration to be a reasonable justification to oppose awarding sanctions. However, the Trustees’ two other motions, one to compel, and one for leave to amend to include another defendant, were granted by the court. Meaning there’s still more ahead in this case on the long road to resolution.