Plaintiffs prevailed in this week’s two notable decisions, but not entirely. In the first decision, the Sixth Circuit allowed a portion of a pension case alleging excessive investment fees to proceed. In the second case, the Fourth Circuit addressed welfare plan vesting and found, under the highly unusual circumstances of the case, some retirees could proceed with their claim for life insurance benefits.
In Forman v. TriHealth, Inc., No. 21-3977, __ F. 4th __, 2022 WL 2708993 (6th Cir. Jul. 13, 2022) (Before Circuit Judges Sutton, Kethledge, and Readler), the Sixth Circuit took a fresh look at a breach of fiduciary duty class action challenging the management of defined contribution plans which was dismissed at the pleading stages. Given recent mixed precedent, the result on appeal was also mixed. The Sixth Circuit affirmed in part and reversed in part the district court’s dismissal of the complaint
Plaintiffs began with an uphill battle. Recent Sixth Circuit precedent in Smith v. Commonspirit Health, No. 21-5964, __ F. 4th __, 2022 WL 2207557 (6th Cir. Jun. 21, 2022), foreclosed many of plaintiffs’ claims: “that their employer TriHealth should have offered its employees the option of investing their retirement money in actively managed funds, that the performance of several funds was deficient at certain points, and that the overall fees charged for the investment options were too high.”
However, other recent precedents, this time from the highest court in the land, would also lend plaintiffs a helping hand. In Hughes v. Northwestern Univ., No. 19-1401, __ S. Ct. __, 2022 WL 199351 (U.S. Jan. 24, 2022), the Supreme Court rejected the idea that a large enough menu of available funds within a defined contribution plan could shield fiduciaries from imprudence claims challenging any specific fund within the plan which performed poorly or had unreasonably high fees. Taking this premise from the Hughes decision, the Sixth Circuit concluded that plaintiffs adequately stated an imprudence claim with regard to TriHealth’s offering of retail versus institutional share classes, writing that “even if a prudent investor might make available a wide range of valid investment decisions in a given year, only an imprudent financier would offer a more expensive share when he could offer a functionally identical share for less.”
Important to the Sixth Circuit’s decision-making was the fact that less expensive share classes have a meaningful benchmark built into the claim itself. Unlike most comparators, institutional versus retail share classes make for an easy apple-to-apple comparison. Plaintiffs are able to plead that the two investment options have identical investment strategies and portfolios, and are offered by the same managers offering the same services. The only difference between the two classes is the cost and the volume discount given to large institutional classes.
While allowing plaintiffs to continue to litigate any aspect of their complaint is always good plaintiff-side news, it does naturally beg the question of whether this idea of a direct comparator many circuits have adopted sets the bar too high for pleading imprudence. And the question that logically follows is this: If the only claims for imprudence plaintiffs can assert at the pleading stage are ones with identical (or nearly identical) comparisons, doesn’t that set most plaintiffs, who are naturally at a disadvantage early on in litigation given their lack of discovery, up for failure? Does it by its nature convert a motion to dismiss into a motion for summary judgment, and doesn’t it then subvert the idea that plaintiffs must simply state a complaint that is plausible on its face?
But a silver lining is a pretty thing, and good news is good news. The optimists here at Your ERISA Watch are happy to take and to celebrate victories, be they big or small.
And in that spirit, Bellon v. The PPG Emp. Life & Other Benefits Plan, No. 21-1812, __ F. 4th __, 2022 WL 2760764 (4th Cir. Jul. 15, 2022) (Before Circuit Judges King, Wynn, and Rushing), is another small plaintiff-side victory. In this class action, the issue was whether terminated retiree life insurance coverage had vested for eligible employees working for PPG Industries, Inc, during a 15-year period from 1969 to 1984. As astute readers will note, ERISA was enacted smack dab in the middle of this period.
The case begins in 2018, when retiree and surviving spouse plaintiffs commenced their putative class action against PPG, the Benefits Plan, and the PPG Plan administrator. Just over a year ago, in June 2021, the district court, without ruling on the class certification issue, awarded summary judgment to defendants on all claims. Plaintiffs appealed the summary judgment decision with respect to three of their claims, two of which pertained to surviving spouse benefits, and the third claim, the topic of this decision, pertained to the aforementioned vested retiree life insurance coverage.
The Fourth Circuit’s reversal of the vested life insurance claim centered around information that plaintiffs only learned after discovery had ended and two months after the parties had filed and briefed their summary judgment motion. “The newly discovered evidence consisted of approximately 24 pages of a 1984 meeting minutes and related official documents of the PPG Employee Benefits Committee.” These documents revealed that in 1969 PPG had adopted a reservation of rights clause allowing PPG to modify and amend the plan. Later that same year, 1969, PPG removed its reservation of rights clause, and would not include another such clause until 1984, the year of this committee meeting. As discussed at the committee meeting, the 1969 clause was removed because it “caused doubt in the minds of retirees and the sense of security that retirees look for was absent.”
In the district court and on appeal, plaintiffs argued that these documents reveal that in 1969 PPG “took the extraordinary step of removing the then-existing reservation of rights clause…to allay employee concern about the security of promised benefits.” Thus, according to plaintiffs, PPG relinquished its “previously-asserted right to amend the Plan to take away retiree benefits, thereby manifesting its intent to provide retirees with vested life insurance.”
The Fourth Circuit was persuaded by plaintiff’s argument that this action had indeed provided workers who retired in this 15-year period, between the removal of the reservation of rights clause in 1969 and the establishment of the new clause in 1984, with vested life insurance benefits. “Certainly, the purposeful deletion of the pre-1969 reservation of rights clause from the Plan may be seen as a manifestation of PPG’s intent to relinquish its right to modify or terminate Plan benefits and voluntarily undertake an obligation to provide vested retiree life insurance coverage.” According to Fourth Circuit, this debate constituted a genuine issue of material fact precluding summary judgement, and the appeals court accordingly vacated the award of judgment to defendants on this claim.
There was a split among the Circuit Judges on this issue. Judge Rushing wrote a dissent expressing the view that silence is not ambiguity. In Judge Rushing’s eyes, plaintiffs had not met their burden of proving that the plan contained a promise to provide vested retiree life insurance benefits. “The absence of a reservation of rights clause in plan documents,” she wrote “does not, by itself, create an inference of vesting; rather, the intent to vest must be explicit.” According to Judge Rushing, the plan’s silence on the issue of vesting was not ambiguous and therefore the majority’s reliance on extrinsic evidence was in error.
Much like the Forman decision, the retirees’ partial success in Bellon also reveals underlying problems with their legal theories. When plaintiffs can only (barely) eke out a victory in extraordinary circumstances like this one, in which a reservation of rights clause was expressly removed to reassure employees that they could count on their benefits, the implication is that it is the rare case indeed when life insurance or other welfare plan benefits will be deemed to have vested.
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Breach of Fiduciary Duty
Hausknecht v. John Hancock Life Ins. Co. of N.Y., No. 17-3911, 2022 WL 2755354 (E.D. Pa. Jul. 14, 2022) (Judge Wendy Beetlestone). Few names in the ERISA world are as notorious as John Koresko. Mr. Koresko stole tens of millions of dollars from hundreds of ERISA-governed welfare benefit plans. Plaintiffs here are some of Mr. Koresko’s victims, who have sued one of the insurers involved, John Hancock, and “its predecessor by merger” Manufacturer’s Life Insurance Company of New York, which provided the life insurance policy at issue. Plaintiffs allege that the insurance company then changed the owner of said life insurance policy, actively participating in Mr. Koresko’s scheme and thereby allegedly violating ERISA and RICO. Defendant then countersued one of the plaintiffs for breach of an indemnification contract. Plaintiffs moved for summary judgment on their ERISA claims. Defendant moved for summary judgment on plaintiffs’ RICO and ERISA claims, as well as on its own counterclaim for breach of contract. The court began its decision by declining plaintiffs’ invitation to take judicial notice of certain findings of fact within opinions in the Department of Labor’s case against Mr. Koresko. The court determined that plaintiffs’ argument in support of judicial notice was conclusory and thus ignored the request. The court then went on to weigh plaintiffs’ ERISA claims. For the most part, the court concluded that there were genuine issues of material fact precluding summary judgment for either party with regard to plaintiffs’ claim to recover plan losses under Section 502(a)(2). However, the court granted defendant summary judgment on Section 502(a)(2) claim only in so far as it was premised on the first change in ownership because defendant was able to provide evidence that it never effectuated this change, although the same could not be said for the second change of ownership. Plaintiffs’ second ERISA claim, Section 502(a)(3) claim was premised on defendant’s constructive knowledge of the prohibited transaction (in this case a loan for hundreds of thousands of dollars) and the circumstances “which made the loan unlawful.” Once again, the court concluded that there were genuine issues of material fact as to whether defendant had constructive knowledge of these circumstances, and therefore denied both parties’ cross-motions for summary judgement on this ERISA claim as well. As for plaintiffs’ RICO claims, defendant was granted summary judgment on all three claims because the court concluded there was “nothing which suggests Defendant engaged in or know of the ‘pattern of racketeering activity” which is a necessary element for liability under the RICO claims asserted. Finally, the court denied defendant’s motion for summary judgment on its counterclaim for breach of contract.
Moler v. Univ. of Md. Med. Sys., No. 1:21-cv-01824-JRR, 2022 WL 2716861 (D. Md. Jul. 13, 2022) (Judge Julie R. Rubin). In this putative class action, plaintiffs are participants in the University of Maryland Medical System 401(a) defined contribution plan and voluntary 403(b) plan who assert claims for breaches of fiduciary duties against the University of Maryland Medical System and its employee benefits committee challenging their process for managing the plans. Defendants have moved to dismiss. Plaintiffs moved to strike three documents attached to the motion to dismiss; (1) the offering statement of the challenged stable value fund, (2) fund change notices, and (3) fund fact sheets defendants say they made available to plan participants. In their motion, plaintiffs argued that these documents were neither expressly relied upon in their complaint, nor integral to their complaint, but instead are documents meant to bolster the substantive merits of defendants’ arguments in favor of dismissal. The court agreed, stating “at this stage, consideration of the Challenged Exhibits converts the Motion to one for summary judgment and imposes upon Plaintiff the unfair and rather impossible task of proving its case in advance of fulsome discovery.” Thus, the court granted the motion to strike the challenged exhibits, and expressed that it would not consider the stricken material in adjudicating the motion to dismiss.
Moler v. Univ. of Md. Med. Sys., No. 1:21-cv-01824-JRR, 2022 WL 2756290 (D. Md. Jul. 13, 2022) (Judge Julie R. Rubin.). Having granted plaintiffs’ motion to strike (see directly above) the court then adjudicated defendants’ motion to dismiss. The court began by taking a strong stance in favor of construing the complaint favorably to the nonmoving party. In contrast to a lot of motions to dismiss fiduciary breach class actions that have been decided of late, this decision consciously rejects the heightened pleading standards other courts have adopted. Instead, the court analyzed whether plaintiffs’ complaint stated sound claims, and addressed each challenged category: (1) share classes, (2) actively managed funds, (3) stable value funds, (4) recordkeeping fees, and (5) monitoring of co-fiduciaries. Beginning with the challenged lower-cost mutual fund share classes and plaintiffs’ allegation that defendants failed their obligation to monitor the plans and switch to funds that were otherwise identical but cheaper, the court expressed that plaintiffs are not required “to rule out every possible lawful explanation for the conduct” challenged, and was satisfied the complaint as pled sufficiently alleges an inference of imprudence with regards to the retention of more expensive funds. Next, the court addressed plaintiffs’ allegation that defendants breached their duties by failing to investigate and retaining the challenged actively managed funds offered, which allegedly underperformed for over 10 years. Defendants argued that plaintiffs’ complaint relied on hindsight and selected comparators. The court disagreed, stating that “investments’ long-term underperformance is categorically different than showing what a fiduciary should have done in hindsight.” As the court saw it, plaintiffs alleged that defendants were aware of the underperformance of the funds and imprudently chose to ignore it. Thus, the court denied the motion on these grounds as well. Addressing the inclusion of the expensive stable value fund with minimal returns, the court rejected defendants’ argument that plaintiffs’ comparisons were inapplicable. “Determination of the adequacy or sufficiency of comparable benchmarks is a fact-intensive inquiry not properly resolved on a motion to dismiss, and one that may require expert opinion.” Once again, the court held that plaintiffs stated a valid claim. Plaintiffs’ last imprudence claim, regarding recordkeeping and administrative fees, also survived the motion to dismiss with the court rejecting defendants’ contention that plaintiffs failed “to show that the fees were excessive for the services rendered.” Finally, the court examined the failure to monitor co-fiduciaries’ claim. Because the court concluded that the complaint adequately alleges breaches of fiduciary duty of imprudence as required to state a claim for failing to monitor, the court denied the motion to dismiss plaintiffs’ second and derivative fiduciary breach claim. For these reasons, the court denied defendants’ motion to dismiss in its entirety, finding plaintiffs’ complaint plausible on its face.
Disability Benefit Claims
Schmill v. Metro. Life Ins. Co., No. 21-1470, 2022 WL 2664349 (E.D. La. Jul. 11, 2022) (Judge Barry W. Ashe). Plaintiff Howard Schmill submitted a claim for long-term disability benefits after injuring his shoulder and undergoing surgery. Plan administrator, defendant Metropolitan Life Insurance Company (“MetLife”), paid Mr. Schmill’s long-term disability benefits for one year, the maximum time allowed under the plan for neuromuscular disorders. Following the 12-month limitation period, MetLife informed Mr. Schmill that it would no longer pay him disability benefits unless he could prove that he was disabled by conditions other than those limited under the policy’s maximum time limitation. Mr. Schmill submitted medical documentation to MetLife asserting that he was disabled from gainful employment because of radiculopathy as well as bipolar disorder. MetLife reviewed the medical information Mr. Schmill provided in support of these additional diagnoses and concluded that the medical records and objective evidence within them did not support awarding additional disability benefits. Parties agreed to judicial review on the administrative record under abuse of discretion review. The court concluded that the administrative record supports MetLife’s decision to limit Mr. Schmill’s benefits to 12 months. The court upheld MetLife’s determination that Mr. Schmill did not meet the plan’s definition of radiculopathy because there was a lack of objective evidence such as MRIs and x-rays within the administrative record, and the plan required such evidence for diagnoses of radiculopathy. As for bipolar disorder, the court, again consulting the plan requirements, agreed with MetLife that the documented symptoms within the medical records did not meet the Diagnostic and Statistical Manual of Mental Disorders definition of bipolar disorder. For these reasons, the court upheld MetLife’s benefit denial, concluding it was supported by substantial evidence and granted judgment in favor of MetLife.
Dening v. Aetna Life Ins. Co., No. 5:21-221-DCR, 2022 WL 2706149 (E.D. Ky. Jul. 12, 2022) (Judge Danny C. Reeves). Plaintiff Pamela Dening, an Amazon employee, sued Aetna Life Insurance Company after her long-term disability benefits were terminated. Parties filed cross-motions for judgment. The court applied de novo review of Aetna’s decision. After reviewing the administrative records, the court concluded that Ms. Dening was unable to prove by a preponderance of evidence that she meets the plan’s definition of disabled from any career and therefore does not qualify for additional long-term disability benefits. The court weighed the opinions of Ms. Dening’s treating physicians, the reports of two vocational specialists, and the Social Security Administration’s denial of Ms. Dening’s disability plan, as evidence that Ms. Dening is not disabled per the terms of the plan. While the court recognized that Ms. Dening suffers from “ongoing health issues,” and that “these issues limit the types of gainful employment she can pursue,” the court was not convinced that “they prevent her from working entirely.” Rather, the totality of the medical records led the court to conclude that Ms. Dening did not meet the plan’s test of disability and affirmed Aetna’s termination decision. According, the court entered judgment in favor of Aetna and denied Ms. Dening’s cross-motion for judgment.
Syed v. Metro Life Ins. Co., No. 3:21-cv-1098-BEN-JLB, 2022 WL 2759070 (S.D. Cal. Jul. 14, 2022) (Judge Roger T. Benitez). In the world of ERISA, words matter; even, sometimes, a single word. Disabled plaintiff Baseem Syed sued MetLife after the insurer sought overpayment offset and reduction of monthly benefits following Mr. Syed’s trustee-to-trustee transfer of his own money from an employer retirement plan to an individual retirement account. To the court, resolution of the parties’ cross-motions for summary judgment turned on whether Mr. Syed “received” the money from the transfer. As luck would have it, the exact issue of the ambiguity of the word “received” in a very similar context of a participant rolling over retirement benefits into an IRA has already been decided in the Ninth Circuit. In that case, Blankenship v. Liberty Life Assurance Company of Boston 486 F.3d 620 (9th Cir. 2007), the Ninth Circuit ultimately concluded that the meaning of the word “receives” was ambiguous, and therefore applied the rule of contra proferentem, and adopted the interpretation of the word (in this instance “to take possession of or control”) that was most favorable to the insured. This court found the facts of this case similar to those of Blankenship “and, based on the Ninth Circuit’s guidance, conclude(d) judgment is warranted for the Plaintiff.” Accordingly, the court granted Mr. Syed’s motion for summary judgment and denied MetLife’s summary judgment motion. The court also awarded Mr. Syed prejudgment interest at a rate of 3.016% and ordered MetLife to repay Mr. Syed the money it claimed for overpayment and the money it withheld due to the claimed monthly offset. Finally, the court ordered Mr. Syed to submit briefing on the total amount of benefits owed, the total amount of interest owed, and on attorneys’ fees and costs.
Life Insurance & AD&D Benefit Claims
Principal Life Ins. Co. v. Hill, No. C21-1716 MJP, 2022 WL 2718087 (W.D. Wash. Jul. 13, 2022) (Judge Marsha J. Pechman). Principal Life Insurance Company commenced this lawsuit against defendant Megan Malia Hill seeking recission of her late husband’s life insurance policy. Principal Life asserted that after the death of Ms. Hill’s husband, and within the policy’s contestability period, it learned that decedent had made certain misrepresentations and omissions pertaining to his health records on his application for the life insurance policy. Principal Life already paid the guaranteed issue amount on the policy and represented that it did not seek repayment of that amount, but instead requested the court order that the policy be rescinded for the additional amounts exceeding the guaranteed issue amount because of the alleged discrepancies between the medical records and the insurance application. Ms. Hill was personally served, but has made no appearance in the case. The court previously entered default. Principal Life subsequently moved for entry of default judgment. In this order the court granted the motion and entered default judgment against Ms. Hill, holding that Principal Life would be prejudiced by not being able to obtain relief and that it “has demonstrated the merit of its claims and the sufficiency of the allegations against Defendant.” Finally, the court granted Principal Life’s motion for attorneys’ fees and costs, concluding that Principal Life had success on the merits and the Hummel factors weigh in favor of a fee award. The court awarded Principal Life a total of $9,649.32 in attorneys’ fees and costs. Payment of the awarded attorneys’ fees and costs will as the court noted likely come from the $20,000 guaranteed issue amount that Principal Life paid to Ms. Hill, someone negating Principal Life’s earlier position that it did not seek repayment of that award.
Pension Benefit Claims
Streza v. S. Nev. Culinary, No. 22-cv-4019-NKL, 2022 WL 2654974 (W.D. Mo. Jul. 8, 2022) (Judge Nanette K. Laughrey). Plaintiff Elizabeth Streza is a participant of the Southern Nevada Culinary and Bartenders Pension Plan. Ms. Streza sued the plan and its board of directors after she made a claim for benefits under the plan, and for a lump sum payment representing the amount of contributions made to the plan on her behalf plus interest, which was denied. The plan in its denial informed Ms. Streza that under the plan terms benefits are determined based on the number of hours worked and not by calculating employer contributions plus interest, and that lump sum payments are only available for participants over the age of 62 and total 50% of the participant’s total benefit. Before the administrative process had fully concluded, Ms. Streza, pro se, filed suit in federal court. Defendants moved to dismiss, arguing that Ms. Streza failed to exhaust administrative remedies and that her complaint fails to state a claim. As an initial matter, the court did not dismiss the complaint for failure to exhaust. While it was clear that Ms. Streza hadn’t properly exhausted the review process before filing her complaint, the court concluded that because the plan has now made its final decision on her appeal, dismissing the complaint on exhaustion grounds would “advance none of the prudential concerns for which exhaustion was adopted in the ERISA context in the first place.” Therefore, the court turned to the complaint itself and whether it should be dismissed pursuant to Rule 12(b)(6). As the court understood it, Ms. Streza was asserting two ERISA claims; a claim for benefits and a claim for material misrepresentation. First, reading the plan documents, the court found that they contradicted Ms. Streza’s interpretation of her entitlement to benefits. The documents first make clear that the regular retirement age is and has always been age 62. The documents also make clear that Ms. Streza was never entitled to the actual amount of her employer’s contributions to the plan plus interest as she alleges in her complaint. Ms. Streza alleges that she was orally informed that this was the manner in which benefits were calculated, but the court held that oral representations can’t overcome written terms with regards to benefit claims, and “even construed liberally, Ms. Streza does not allege that the terms ever supported what she was told.” Thus, the court determined that Ms. Streza failed to state a claim pursuant to Section 502(a)(1)(B), and because the plan documents directly foreclose her claim for benefits, the court dismissed the claim with prejudice. Ms. Streza’s claim for material misrepresentation was also dismissed. The court dismissed the claim on two grounds. First, the court held Section 502(a)(2) fiduciary breach claims do not allow for the type of individual relief Ms. Streza seeks. Second, the court stated that even putting the issue of relief aside, Ms. Streza could not plausibly allege that she reasonably relied on oral misrepresentations when the terms of the plan were unambiguous and always available to her. The court also determined that these problems could not be fixed through an amendment of the complaint, and the court therefore also dismissed the Section 502(a)(2) claim with prejudice.
Pleading Issues & Procedure
Srivastava v. Kelly Servs., No. 19-cv-03193-LKG, 2022 WL 2716868 (D. Md. Jul. 13, 2022) (Judge Lydia Kay Griggsby). Pro se plaintiff Kshitij Srivastava sued his employer, Kelly Services, Inc., after his ERISA-governed health plan denied coverage for medical expenses for treatment of his minor son. The court understood Mr. Srivastava’s amended complaint as asserting a violation of ERISA and a state law breach of contract claim. Kelly Services moved to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(4), for failure to properly serve it with either the complaint or the amended complaint. In addition, Kelly Services moved to dismiss pursuant to Rule 12(b)(6), claiming that it isn’t a proper party to the case, that the breach of contract claim is preempted by ERISA, and that Mr. Srivastava cannot recover monetary damages in this suit. As there was no genuine dispute that Mr. Srivastava failed to properly serve Kelly Services, the court concluded that it did not possess personal jurisdiction over Kelly Services, and therefore granted the motion and dismissed the case. The court went on to agree with Kelly Services that the state law breach of contract claim is preempted by ERISA, and found that dismissal was also warranted for failure to state a claim.
Paulson v. Guardian Life Ins. Co. of Am., No. 22-CV-2172 (GHW) (JLC), 2022 WL 2693632 (S.D.N.Y. Jul. 12, 2022) (Magistrate Judge James L. Cott). Defendant Guardian Life Insurance Company of America moved to transfer this disability case from the Southern District of New York to the Eastern District of Virginia. The court concluded that venue in the Southern District of New York is proper under ERISA, but found that transfer, in this case, is nevertheless appropriate and therefore granted the motion to transfer. Despite plaintiff Linda Paulson’s objection to the motion to transfer and her choice of forum of New York, the court did not give a large degree of deference to Ms. Paulson’s forum choice because she lives in Virginia, and the operative facts of the case are not connected to New York. According to the court, the only connections to the Southern District of New York are Guardian’s headquarters and Ms. Paulson’s counsel’s place of business. The court also concluded that litigating the case in the Eastern District of Virginia “would be more convenient for Paulson,” given “her apparent financial and health constraints.” The court also held that Virginia would be more convenient for Guardian because its identified nonparty witnesses are located in the D.C./Virginia metro area. Also weighing in favor of transferring the case is the fact that the docket in the Southern District of New York is more congested than in the Eastern District of Virginia. All other factors were determined by the court to be either neutral or to favor transfer. Accordingly, the case will proceed in Virginia.