In our two cases of the week, 401(k) plan fiduciaries defeated claims by participants that they breached their duties under ERISA with respect to investment fees.
In the first case, Albert v. Oshkosh Corp., No. 21-2789, __ F.4th __, 2022 WL 3714638 (7th Cir. Aug. 29, 2022) (Before Circuit Judges Easterbrook, St. Eve, and Jackson-Akiwumi), a participant in a 401(k) plan brought a putative class action lawsuit against fiduciaries of the plan for allegedly allowing the plan to pay unreasonably high recordkeeping and administration fees, failing to adequately review the plan’s investment portfolio to ensure that each investment option was prudent, and maintaining investment advisors and consultants who charged unreasonably high fees and/or had poor performance histories. The district court granted the defendants’ motion to dismiss and the Seventh Circuit on appeal reviewed the dismissal in light of the Supreme Court’s decision in Hughes v. Northwestern University, 142 S. Ct. 737 (2022), which was issued during the pendency of the appeal.
Before getting to the merits of the dismissal, however, the court addressed and quickly dispatched defendants’ argument that Mr. Albert lacked Article III standing to sue because he never held some of the challenged investments in his own investment account. The court concluded that Mr. Albert’s allegations that he was invested in at least some actively managed funds was sufficient to confer standing at the pleading stage for his investment-management fee claims.
The court then turned to the imprudence claims. First, the complaint challenged the plan’s payment of $87 per participant in recordkeeping fees when, according to the complaint, plans of similar size in terms of participants and dollars invested paid between $32 and $45 per plan participant. The Seventh Circuit affirmed the dismissal of this claim, holding that nothing in Hughes requires plan fiduciaries to regularly solicit bids for services and the Seventh Circuit has previously rejected such a requirement. In this regard, the court noted that claims based on imprudent recordkeeping fees could survive a motion to dismiss in other circumstances but did not describe what those circumstances might be.
The court held that the complaint likewise contained insufficient detail to state claims that the plan overpaid for actively managed funds and for investment advisor fees. The court also rejected what it viewed as a novel claim that the plan fiduciaries should have selected some higher-cost share classes of certain mutual funds because these funds would have netted more for the plan overall due to revenue sharing. In the court’s view, ERISA could not be read to require the fiduciaries to engage in such an analysis when selecting funds.
The court more quickly dispatched the remaining claims. With respect to Mr. Albert’s breach of loyalty claim, the court saw nothing untoward about the selection of SIA, a subsidiary of the plan’s investment manager, Fidelity, as an investment advisor for the plan, particularly when Mr. Albert did not identify any comparator investment advisors. The duty to monitor claims, the court concluded, were derivative of the fiduciary breach claims and the dismissal of the claims for fiduciary breach doomed the monitoring claims.
Finally, the court concluded that Mr. Albert failed to state a prohibited transaction claim under ERISA Section 406 by merely alleging that the plan contracted with Fidelity and SIA, both of whom were statutory “parties in interest” with respect to the plan. The court appeared to recognize that Mr. Albert’s contention that such allegations state a prohibited transaction claim is consistent with the literal terms of Section 406, and with case law from the Seventh Circuit and elsewhere recognizing that such transactions are prohibited, and that the burden of proving, as an affirmative defense, that they are reasonable and thus permissible lies with the defendant. Nevertheless, the court concluded that holding that payments for routine services are prohibited would lead to “absurd” results.
The court thus affirmed the dismissal of the case in its entirely.
The plaintiffs in the second case, Rozo v. Principal Life Ins. Co., No. 21-2026, __ F.4th __, 2022 WL 4005339 (8th Cir. Sep. 2, 2022) (Before Circuit Judges Smith, Colloton, and Shepherd), fared no better, even after a bench trial. In this case, a plan participant brought suit against Principal Life Insurance Co. for a class of participants who invested in a Principal investment product called the Principal Fixed Income Option (PFIO), claiming that Principal breached its duty of loyalty and engaged in prohibited transactions with regard to the compensation it received under the PFIO.
The PFIO operated in a rather complex manner. Principal created a new sub-fund, called a Guaranteed Investment Fund (GIF), every six months and set the Guaranteed Interest Rate (GIR) for each by setting “deducts” or predictions about the risks and costs it would bear by guaranteeing the future rate over the 10-year life of the GIF until maturity. Under this complicated system, the higher the deduct that Principal set, the greater the amount of its compensation and the less the plan and its participants would earn at the end of the day.
In an earlier phase of the case, the district court dismissed on the basis that Principal was not a fiduciary, but the Eighth Circuit reversed. The case then proceeded to a bench trial, at the conclusion of which the court concluded that Mr. Rozo failed to prove that Principal acted disloyally, and that Principal met its burden of establishing its fees were reasonable, thereby defeating the prohibited transaction claim.
The Eighth Circuit affirmed. Mr. Rozo claimed that Principal acted in its own self-interest, and thus disloyally, by setting the deducts so as to increase its profits. The court rejected the notion that it was disloyal for Principal, as a fiduciary, to act in part to further its own pecuniary interests, holding that this tension between Principal’s interests and the plan’s established a conflict of interest that required the court to scrutinize Principal’s actions more closely to determine its state of mind in setting the deducts. According to the Eighth Circuit, the “district court determined that Principal set the CCR according to a shared interest with participants ‘to establish a CCR that will appropriately account for Principal’s risks and costs in offering the PFIO.’” The court of appeals agreed with this analysis. Moreover, after describing at length the expert and other testimony presented, the Eighth Circuit concluded that the district court “did not clearly err by finding that the deducts were reasonable and set by Principal in the participants’ interest of paying a reasonable amount for the PFIO’s administration.”
The court likewise affirmed the district court’s judgment in Principal’s favor on the prohibited transaction claim. In this regard, the court noted that ERISA Section 408 sets a reasonable expense exemption to ERISA’s Section 406 prohibition on self-dealing. Reiterating that the district court did not err in concluding that the rates set by Principal were reasonable, the Eighth Circuit affirmed the district court’s conclusion that Principal had met its burden of establishing the exemption.
There is much to ponder in these two decisions. At a minimum, they are vivid illustrations of the difficulties of bringing successful suits challenging the fees and investment returns for ERISA pension plans.
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Averbeck v. The Lincoln Nat’l Life Ins. Co., No. 20-cv-420-jdp, 2022 WL 3754735 (W.D. Wis. Aug. 30, 2022) (Judge James D. Peterson). After plaintiff Tamara Averbeck filed a suit under Section 502(a) of ERISA seeking reinstatement of terminated long-term disability benefits, The Lincoln National Life Insurance Company swiftly and voluntarily reinstated her claim and paid past-due benefits. Ms. Averbeck subsequently submitted briefing demonstrating that this move by Lincoln was a testament to the strength of her case and constituted some degree of success on the merits entitling her to an award of attorney’s fees under Section 1132(g)(1). Having examined Ms. Averbeck’s briefing on the issue, the court was satisfied that the merits of her case were indeed strong given the medical evidence provided, the award of benefits from the Social Security Administration, and the errors that Lincoln National made during its benefit determination process. The court also accounted for the fact that Lincoln National’s voluntary decision to overturn its original denial was done under a more stringent standard than it had originally applied, which indicated even the insurer recognized the strength of the case against it. For these reasons, the court found Ms. Averbeck entitled to a reasonable award of attorney’s fees, expenses, and costs, and encouraged the parties to reach an agreement on the proper amount.
Cherry v. Prudential Ins. Co. of Am., No. 21-27 MJP, 2022 WL 3925304 (W.D. Wash. Aug. 30, 2022) (Judge Marsha J. Pechman). On May 2, 2022, the court granted summary judgment in favor of plaintiff Andrew Cherry on his Section 502(a)(1)(B) claim for reinstatement of long-term disability benefits against the Prudential Insurance Company of America. The court concluded that Mr. Cherry was disabled as defined by the plan, and that his lumbar radiculopathy was his disabling condition. The court rejected Prudential’s assertion that Mr. Cherry was disabled from a mental illness, namely somatic symptom disorder. Mr. Cherry also brought a fiduciary breach claim against Prudential, which has not yet been resolved. Prior to the court’s order granting summary judgment in favor of Mr. Cherry on his claim for benefits, Mr. Cherry’s attorneys at the time, Chris Roy and Jesse Cowell, moved to withdraw as counsel. As the motion for withdrawal was proper under the Washington Rules of Professional Conduct, the motion was granted. Mr. Cherry’s former counsel have moved for an award of attorneys’ fees for their work. The court began its discussion by assessing Mr. Cherry’s entitlement to a fee award under the Ninth Circuit’s five Hummell factors and concluded that all five favored an award of fess. First, the court expressed that Prudential’s actions demonstrated “both culpability and bad faith,” by relying “on its consulting physicians who misrepresented statements from Cherry’s physician to justify termination” and by claiming “that Cherry’s condition was somatic and therefore terminated Cherry’s benefits on that ground.” The court also acknowledged that Prudential, which has over $1.7 trillion in assets, is able to satisfy a fee award. Furthermore, the court stressed how an award of fees may deter Prudential from acting in the same manner in the future, and that this deterrence will be to the benefit of other plan participants. Finally, Mr. Cherry, who was awarded summary judgment, prevailed on the merits. Having determined that Mr. Cherry’s counsel are entitled to an award of fees, the court considered the reasonableness of the fees requested. Attorney Chris Roy requested an hourly rate of $600. Because a court in 2017 awarded Mr. Roy, who has been practicing since 1999, a rate of $500 an hour, the court felt an increase of $100 to be appropriate after five years and awarded the requested hourly rate. Attorney Jesse Cowell requested an hourly rate of $500. The court concluded that Mr. Cowell did not provide enough evidence to support this rate and reduced the hourly rate to $475 per hour. Mr. Roy sought fees for 90.2 hours, and Mr. Cowell sought fees for his 97.5 hours. The court reduced Mr. Roy’s requested number of hours by 11.5 for the time he spent familiarizing himself with the case. However, the court also increased Mr. Roy’s hours by 2.2 for the time he spent writing the reply. The court applied no further changes to the billed hours and rejected Prudential’s argument that the block billing submitted was improper. The court was also unpersuaded by Prudential’s argument that counsel should not be entitled to fees as they withdrew prior to the court issuing its judgment. The withdrawal was proper, ethical, and done in good faith according to the court, and counsel were thus entitled to fees for their work performed. Applying the lodestar, the court awarded Mr. Roy $48,540.00 in fees and Mr. Cowell $46,312.50 in fees, for a total of $94,852.50. Finally, the court granted Prudential’s request to stay the fee award, as required by Ninth Circuit precedent, so long as Prudential posts a supersedeas bond consisting of 125% of the award.
Breach of Fiduciary Duty
Soft Drink, Brewery Workers & Delivery Employees, Indus. Emps., Warehousemen, Helpers & Miscellaneous Workers, Great N.Y. v. Ulrich, No. 17-CV-137 (KMK), 17-CV-7023 (KMK), 2022 WL 3904106 (S.D.N.Y. Aug. 30, 2022) (Judge Kenneth M. Karas). The Soft Drink, Brewery Workers and Delivery Employees, Industrial Employees, Warehousemen, Helpers, & Miscellaneous Workers, Greater New York and Vicinity, Local Union No. 812, its Health Fund, and the Health Fund’s trustees brought related actions against the Union’s former Vice President and former trustee of the Health Fund, defendant John Ulrich. The Union moved for summary judgment on its LMRA and New York Labor Law claims based on Mr. Ulrich’s failure to return Union Property cellphone, tablet, and laptop. The Health Fund plaintiffs moved for summary judgment on their ERISA claims for breach of fiduciary duty based on extortion related to bribes Mr. Ulrich took to keep on the plan’s third-party administrator, Crossroads Healthcare Management. The court granted both motions, finding no genuine dispute of material fact regarding the allegations and relief available for the claims. As for the ERISA claims, there was no dispute that Mr. Ulrich violated Section 406(b) by soliciting thousands of dollars in kickbacks from Crossroads, as he pled guilty to the conspiracy and was sentenced to jail time for it. Furthermore, the court agreed with plaintiffs that Section 409(a) of ERISA provides for disgorgement. Plaintiffs offered information to the court that the retention of Crossroads as the third-party administrator cost the plan $1,007,228.78 in unnecessary fees. The court therefore awarded judgment in the same amount for the ERISA violations.
Cajoeco, LLC v. Benefit Plans Admin. Servs., No. 17-cv-07551 (KSH) (JSA), 2022 WL 3913395 (D.N.J. Aug. 31, 2022) (Judge Katharine S. Hayden). Plaintiffs are a small business, Cajoeco LLC, and its owners, husband and wife Norman and Carmen Mais. Plaintiffs instituted a retirement plan in 2007, and hired defendants, Benefit Plans Administration Services, Inc., Harbridge Consulting Group, and Consulting Actuaries International, Inc. to provide administration and actuarial services to the plan. Over many years, Mr. Mais electively made a series of investments in his own account to a friend’s restaurant group. Although only briefly alluded to in the decision, it seems these investments were disastrous and resulted in great losses. Plaintiffs have sued defendants arguing that they were ERISA fiduciaries and breached their duties in connection with the plan. Defendants moved for summary judgment, arguing that they were merely third-party plan administrators who provided only ministerial services to the plan and thus shielded from functional fiduciary status under ERISA as outlined by the Department of Labor’s guidelines. Defendants also asserted a counterclaim in which they argued that plaintiffs were plan fiduciaries and that it was their negligent investments of plan assets that was the cause of harm. The court agreed with defendants that their roles performing actuarial and professional consulting services, preparing reports, advising participants of their options and rights under the plan, and making professional recommendations regarding plan administration all fell squarely within the “purely ministerial functions” defined by the Department of Labor. The court found that the record made clear that defendants did not have discretionary authority or control over the plan and instead acted at the direction and instruction of plaintiffs. “That Mais learned of the (restaurant) investment opportunity on his own and continued to invest without meaningful consultations with defendants are circumstances that easily demonstrate defendants’ input was not the ‘primary basis’ for making the investments.” Based on its examination of the record, the court concluded that defendants could not be considered ERISA fiduciaries and accordingly granted defendant’s motion for summary judgment. As for defendant’s counterclaim, the court found that the relief it seemed to seek was dismissal of the action against them. Thus, the court dismissed for mootness and failure to state claim defendant’s counterclaim.
Carrol v. Flexsteel Indus., No. 21-CV-1005-CJW-MAR, 2022 WL 4002313 (N.D. Iowa Sep. 1, 2022) (Judge C.J. Williams). In this order the court granted plaintiffs’ unopposed motions for final approval of settlement, service fees, attorneys’ fees, costs, and class administrator fees in this class action brought under ERISA, the Worker Adjustment and Retraining Notification Act of 1988, and Iowa labor laws. The court began its discussion by affirming its position that the $1,275,00.00 settlement is fair, reasonable, and adequate under the Eighth Circuit’s Marshall factors given the strength of each parties’ merits and the complex nature of this termination and severance class action. The court also stated that notice was proper and satisfied the requirements of the Class Action Fairness Act and those of the Federal Rule of Civil Procedure 23. Additionally, no complaints have been filed, and a fairness hearing was held this August. For these reasons, the court approved the settlement and dismissed the claims of the suit with prejudice. The court also granted the proposed service fees for the named class representatives and awarded $7,500 each to two of the class reps and $2,500 each to the remaining four class representatives. Counsel’s request for $1,275,000 in attorneys’ fees (representing one-third of the settlement fund) was also granted. The court found the amount fair given counsel’s 500 hours of work on the case, the contingency nature of their fee arrangement, and their experience and professionalism litigating the case, praising them for the “high quality” of their legal work. Finally, the court granted the request for $3,770.55 in litigation costs, and the $12,409.00 in fees to the class administrator, Simpluris, for its work calculating and distributing settlement proceeds.
Disability Benefit Claims
Cutway v. Hartford Life & Accident Co., No. 2:22-cv-00113-LEW, 2022 WL 3716210 (D. Me. Aug. 29, 2022) (Judge Lance E. Walker). Plaintiff Kevin Cutway commenced this action against Hartford Life & Accident Company after the insurer discovered it had failed to offset Mr. Cutway’s monthly payments by the amount he was receiving for disability benefits from the Social Security Administration for over two years and notified Mr. Cutway that it would cease making future payments to him until it had recouped the $52,000 of overpayments made by its error. Mr. Cutway argues in his suit that Hartford should be estopped in equity from exercising its contractual right to recoupment of overpayments because the overpayments were the result of Hartford’s own lack of care in administering the plan. The case will likely not be resolved until the end of the year. In the interim, Mr. Cutway has moved for a temporary restraining order or preliminary injunction, requesting the court order Hartford to resume monthly long-term disability payments to Mr. Cutway. In his affidavit Mr. Cutway attests that without his payments from Hartford he currently lacks sufficient income to pay his bills and is suffering financial hardship. On top of that, his disability prevents him from pursuing gainful employment. While the court at present stated it is not certain that Mr. Cutway “will succeed in whole or in part…he appears to have a colorable claim with sufficient justification in the record.” It was clear to the court that Mr. Cutway will suffer harm if his motion is not granted, while the money matters far less to Hartford. Recognizing the difference in situations between a disabled individual and a multibillion-dollar insurance company, the court stated that “the mere existence of the overpayment strongly suggests that the sums involved are not of special concern to Hartford or the Plan.” On balance, the court was moved by Mr. Cutway’s need for preliminary injunctive relief, and therefore granted the motion, ordering Hartford to recommence payments so long as the order remains in effect or until resolution of the case.
Santorelli v. Hartford Life & Accident Ins. Co., No. 3:20-cv-1671 (JAM), 2022 WL 3996959 (D. Conn. Sep. 1, 2022) (Judge Jeffrey Alker Meyer). In May 2019, plaintiff Rebecca Santorelli was hospitalized for extreme foot pain and numbness. During her 12-day hospital stay, Ms. Santorelli was diagnosed with a vascular disorder called granulomatosis. Her illness was stabilized, and she was discharged from the hospital, but the illness left her immunocompromised with lingering pains that were treated by pain-suppressing steroids. Unable to work her desk job at the office, Ms. Santorelli applied for disability benefits. Her claim for short-term disability benefits was granted and paid; however, Hartford Life & Accident Insurance Company denied her claim for long-term disability benefits, concluding that the illness did not prevent her from performing any of the essential duties of her sedentary work. In resolving the parties cross-motions for judgment under de novo review, the court concluded that Hartford failed to address whether working in an office was an essential duty of Ms. Santorelli’s occupation. If Ms. Santorelli was unable to work from home, the court stated that she may be entitled to disability benefits due to her compromised immune system and potential need to rest her feet and legs. However, the court felt the record pertaining to whether Ms. Santorelli’s job would let her work from home was sparse and therefore concluded the best course of action was remanding the case to Hartford for reconsideration.
Neumiller v. Hartford Life & Accident Ins. Co., No. C22-0610 TSZ, 2022 WL 3716838 (W.D. Wash. Aug. 29, 2022) (Judge Thomas S. Zilly). In 2019, plaintiff Julie Neumiller began medical leave after she was diagnosed with a painful disorder called trigeminal neuralgia. She then applied for disability benefits. The following year, Ms. Neumiller returned to work part-time. Her insurer, defendant Hartford Life & Accident Insurance Company, continued paying her monthly benefits under the plan’s “Return to Work Incentive.” When her employer paid her a trimester bonus that increased her monthly salary to above 60% of her pre-disability income for that period, Hartford ended the monthly payments. Additionally, Hartford applied Ms. Neumiller’s elective pre-tax contributions to her 401(k) plan to her current monthly earnings. Ms. Neumiller appealed Hartford’s inclusion of both her bonuses and her retirement contributions to its calculations of her current monthly earnings. Hartford upheld its decision during the internal appeals process. Ms. Neumiller subsequently brought this action, seeking to recover her benefits under the policy. The parties moved for judgment under Federal Rule of Civil Procedure 52 and agreed to the de novo review standard. The court in its decision held that “Current Monthly Earnings” is a broad, comprehensive, and unambiguous term that includes all earnings an employee receives from his or her employer, including bonuses and elective savings contributions. Accordingly, the court found Hartford had properly calculated Ms. Neumiller’s earnings and appropriately terminated benefits. Hartford was therefore awarded judgment under Rule 52.
Sanchez v. Hartford Life & Accident Ins. Co., No. 2:20-cv-03732-JWH-JEM, 2022 WL 4009176 (C.D. Cal. Sep. 2, 2022) (Judge John W. Holcomb). Plaintiff Bernardo Sanchez is a veteran who suffers from PTSD, anxiety, and depression. Although he was originally diagnosed with PTSD decades ago stemming from his service in the Marine Corps, his mental illnesses worsened in 2019 due to a hostile work environment. Mr. Sanchez applied for short-term disability benefits. His claim was denied by Aetna Life Insurance Company on the ground that the medical documentation in support of the diagnoses lacked required details outlining restrictions and limitations, diagnostic test results, and information on the medications prescribed. During his administrative appeal, Mr. Sanchez did not provide the additional information Aetna stated it required for him to perfect his claim. Additionally, the short-term disability policy does not provide coverage for mental or physical “occupational” illnesses, which is defined broadly in the plan. After exhausting the administrative appeal for his short-term disability claim and choosing not to submit a claim for long-term disability benefits on futility grounds, Mr. Sanchez commenced this suit. The parties each moved for summary judgment. Applying arbitrary and capricious review, the court concluded that Aetna’s denial was not an abuse of discretion, and “Aetna officials reasonably determined that Sanchez presented insufficient medical evidence to establish functional impairment.” As neither Mr. Sanchez nor his providers provided evidence to Aetna “beyond mere diagnoses and certification” to prove that he met the plan’s definition of disability, the court concluded Mr. Sanchez failed to meet his burden establishing his entitlement to benefits under the plan. Furthermore, even if the medical evidence had supported a conclusion that Mr. Sanchez is disabled, the court stressed that Mr. Sanchez’s claim would still not be covered under the plan because it is encompassed by the plan’s broad definition of an “occupational illness.” Finally, the court rejected Mr. Sanchez’s futility argument in support of his decision not to submit a claim for long-term disability benefits because the two plans are distinct from one another and a denial under the short-term policy therefore does not necessarily “render pursuit of a LTD claim futile.” Accordingly, Mr. Sanchez’s claim for benefits under the long-term disability plan was denied without prejudice, and the court entered judgment in favor of Hartford on the short-term disability claim.
Medical Benefit Claims
Turner v. Liberty Mut. Ret. Benefit Plan, No. 20-11530-FDS, 2022 WL 3841119 (D. Mass. Aug. 30, 2022) (Judge F. Dennis Saylor IV). On behalf of himself and a class of similarly situated individuals, plaintiff Thomas Turner brought an ERISA suit against the Liberty Mutual Retirement Benefit Plan, the Liberty Mutual Medical Plan, the Liberty Mutual Retirement Benefit Plan Retirement Board, Liberty Mutual Group Inc., and Liberty Mutual Insurance Company. In his complaint, Mr. Turner asserts that defendants incorrectly calculated cost-share obligations for post-retirement medical benefits by failing to account for employees’ years of service with an insurance company acquired by Liberty Mutual, Safeco Insurance Co. Mr. Turner worked for Safeco from 1980 until the year of the acquisition in 2008. He maintains that he was not rehired at the time of the transition because he did not reinterview for his job, his compensation did not change, and Liberty Mutual always considered the date he began work with Safeco in 1980 as his hire date at Liberty Mutual, which was reflected in pay slips and compensation statements. Furthermore, he claims that he and fellow Safeco employees were repeatedly told that they would continue working for Safeco, under the Liberty Mutual Group umbrella. Mr. Turner asserts that he was informed multiple times that he would receive cost-sharing credit for post-retirement health benefits based on both his pre-merger years with Safeco and his time post-merger with Liberty Mutual. However, when Mr. Turner began formally inquiring about retirement benefits and actively attempting to retire in 2017, Liberty took a new position. Liberty asserted that Mr. Turner’s grandfathered benefits from Safeco were only for 12 years instead of 28 years because of a freeze that Safeco had enacted, and he was not entitled to any years of service for his time with Liberty. Mr. Turner pushed back and expressed that his interpretation of plan documents meant he should be entitled to 37 years of service for his combined years he worked at Safeco and Liberty Mutual. Based on more conversations Mr. Turner had with benefit administrators, Mr. Turner postponed his retirement believing that action would lead to attainment of benefits from his years of service at both companies. Liberty Mutual acknowledged that Mr. Turner was a serious problem for them. One of the employees in charge of informing Mr. Turner of his benefits eligibility put into an email, “He’s constantly asking where all of this is in writing and the SPD is not that explicit. I’m sure he will sue once he retires.” Recognizing its own vulnerability and the plan’s ambiguity, Liberty Mutual changed the plan language in February 2019, expressly removing the grandfathered Safeco benefits. On May 1, 2019, Mr. Turner retired. After appealing unsuccessfully to Liberty Mutual for the benefits he believed he was entitled to, Mr. Turner commenced this suit. Mr. Turner asserted four claims: (1) a claim under Section 502(a)(1)(B) seeking a determination of the plan terms, clarifying rights to benefits under the plan, and seeking benefits; (2) a claim for equitable relief under Section 502(a)(3); and (3+4) claims alleging violations of Section 502(c)(1) for failure to supply requested information. Liberty Mutual moved for summary judgment on claim 1. Mr. Turner argued that summary judgment should be denied. He argued that the plan documents guaranteed him vested benefits for years of service to both companies, that the 2019 summary plan description was an amendment to the plan that did not properly follow the procedures for an amendment, and that the plan documents included in both the January and February 2019 summary plan descriptions were ambiguous and any ambiguities create a genuine issue of material fact precluding summary judgment. Liberty Mutual argued that the February SPD controls and that it was not a plan amendment but a plan clarification not subject to the same procedures. Additionally, Liberty argued that Mr. Turner was never entitled to additional benefits and is therefore not entitled to relief under the terms of the plans. Ultimately, the court held that the January SPD and not the February SPD controls. However, the court went on to conclude that under the January SPD’s unambiguous language, Mr. Turner’s post-retirement medical benefit was not a vested benefit, especially as “plaintiff fails to identify language in any SPD or Plan document that a reasonable factfinder could interpret as granting the vested benefit he claims.” Therefore, the court granted Liberty Mutual’s motion for summary judgment as to the Section 502(a)(1)(B) claim.
Pension Benefit Claims
Campbell v. Royal Bank Supp. Exec. Ret. Plan, No. 19-798, 2022 WL 4009512 (E.D. Pa. Sep. 2, 2022) (Judge Joel H. Slomsky). During his tenure, plaintiff Joseph Campbell was the President and Chief Executive Officer of Royal Bank America and Royal Bancshares of Pennsylvania Inc. and a participant in the Royal Bank Supplemental Executive Retirement (top-hat) Plan governed by ERISA, the defendant in this suit. In 2017, the Bryn Mawr Trust Company acquired Royal Bank and terminated the Plan. When the plan was terminated, Mr. Campbell received a lump sum payment of $3,924,910. The payment was calculated using the Citi Rate as its discount rate. Mr. Campbell filed a claim with Bryn Mawr Trust Company stating that his lump sum payment was too low per the plan terms which required the use of the 5-Year United States Treasury Note discount rate, “as set forth in Section 6.2” of the Plan. The Plan denied Mr. Campbell’s claim for benefits, and Mr. Campbell filed his suit under Section 502(a)(1)(B) to recover the difference in the amount he was paid and the higher lump sum payment he believed he was entitled to under the plan. The Plan argued that it applied an appropriate actuarial equivalent discount rate and Mr. Campbell is therefore not entitled to a higher payment. A trial was held last October. The court came to its final decisions in this order, and ultimately concluded that Mr. Campbell was correct that the plan required the use of the 5-Year United States Treasury Note discount rate and finding otherwise would render Section 6.2 of the plan, the only section of the plan that “provides any methodology for calculating the lump sum payments after a Change of Control,” meaningless. Thus, the Plan is “not suspectable to two different interpretations” and Mr. Campbell was found by the court to be entitled to a payout worth $432,026 more than he initially received, plus interest, attorney’s fees, and costs.
Vest. v. The Nissan Supplemental Exec. Ret. Plan II, No. 3:19-cv-01021, 2022 WL 3973910 (M.D. Tenn. Aug. 29, 2022) (Judge Eli Richardson). For nine years, plaintiff Rebecca Vest was a senior employee at Nissan North America, Inc., until 2018, when she resigned from the company. As a Vice President, Ms. Vest was a participant in the Nissan Supplemental Executive Retirement Plan II. After leaving the company, Ms. Vest applied for benefits under the plan. Her application was denied under the plan’s non-competition provision because Ms. Vest began to work for a tire manufacturer. Ms. Vest appealed this denial, arguing that it was nonsensical that a tire manufacturer from which Nissan purchases tires could be construed as a “competing company” under the plan’s non-compete provision. When the denial was upheld, Ms. Vest pursued federal legal action. She brought two claims, a claim for benefits under ERISA Section 502(a)(1)(B), and an alternative claim for breach of contract. She moved for summary judgment on her claim for benefits and moved to voluntarily dismiss her breach of contract claim as preempted by ERISA. As a preliminary matter, the court stated that its consideration of whether Ms. Vest was entitled to benefits revolved around answering (1) whether she was eligible under the plan, and if so (2) whether she was disqualified from benefits due to working for a “competing company.” First, the court held that Ms. Vest, who held a senior position at Nissan and worked for the company for over five years, was eligible for benefits under the plan “absent any circumstances justifying disqualification for benefits.” Next, the court concluded that the Administrative Committee’s decision was entitled to de novo review because it was not delegated with the authority to decide that a participant was disqualified from receiving benefits under the non-compete clause. However, the Senior Vice Presidents’ vote denying Ms. Vest’s claim, the court concluded, was subject to arbitrary and capricious review, as it was given discretionary authority to make such a determination under the plan. Having so decided, the court first weighed the denial under de novo review. Ms. Vest was able to convince the court that her new employer was not a competing company, and the Administrative Committee’s denial was therefore incorrect. The court then examined the denial under the heighted deferential review standard and concluded that the denial was “not only incorrect under de novo standard of review but is also arbitrary and capricious.” To conclude that a tire company was a competing company to Nissan, “the SVPs would have had to interpret the word ‘competing’ in a manner that is irrational (and) goes against its plain meaning.” The court accordingly found that Ms. Vest met her burden demonstrating her entitlement to judgment and granted her motion. Additionally, the court found an award of benefits to be the proper remedy and awarded benefits as well as pre- and post-judgment interest and attorneys’ fees. Finally, Ms. Vest’s breach of contract claim was dismissed with prejudice as preempted by ERISA.
Gelschus v. Hogen, No. 21-3453, __ F. 4th __, 2022 WL 3712312 (8th Cir. Aug. 29, 2022) (Before Circuit Judges Gruender, Benton, and Grasz). During her employment at Honeywell International, Inc., Sally A. Hogen contributed to a 401(k) plan. In 2002, Ms. Hogen divorced her husband Clifford C. Hogen. As part of their divorce, the Hogens signed a marital termination agreement, within which they agreed Ms. Hogen “will be awarded, free and clear of any claim on the part of (Mr. Hogen) all of the parties’ right, title, and interest in and to the Honeywell 401(k) Savings and Ownership Plan.” The Hogens did not remain close following the divorce, and hardly to spoke to one another in the nearly two decades that followed. After signing the marital termination agreement, Ms. Hogen submitted a change-of-beneficiary form to Honeywell attempting to allocate a third of her 401(k) benefits (33 1/3%) to each of her three siblings. Strangely, her plan included designation instructions requiring allocation to be in whole percentages. Because Ms. Hogen didn’t use whole percentages, Honeywell never changed her designation, and Mr. Hogen remained the beneficiary. Honeywell claimed that it attempted to contact Ms. Hogen about this. The record is clear that she took no further steps to change her beneficiary. In 2019, Ms. Hogen died after years of long-term health issues. Her 401(k) plan had nearly $600,000 in it at the time of her death. Honeywell paid that money to Mr. Hogen. Ms. Hogen’s brother, and the representative of her estate, Robert F. Gelschus, sued Honeywell for breach of fiduciary duty, and sued Mr. Hogen for breach of contract, unjust enrichment, conversion, and civil theft. The district court granted summary judgment to both Mr. Hogen and Honeywell and against Mr. Gelschus. It concluded that Honeywell complied with ERISA’s requirements to read the plan documents as written and thus did not breach its fiduciary duty. The district court stated that regarding Mr. Hogen, Mr. Gelschus did not have standing, and that in addition his claims failed on the merits because there was no genuine dispute of fact that Mr. Hogen had not breached the divorce agreement. Mr. Gelschus appealed. The Eighth Circuit affirmed in part and reversed in part. Specifically, the Circuit Court agreed with the lower court that Honeywell had not breached its duties under ERISA and had acted in accordance with the plan documents and the plan’s instructions requiring allocation in whole percentages. However, the court of appeals found clear error in the district court’s ruling with regard to defendant Hogen. The Eighth Circuit found that Mr. Gelschus had third-party beneficiary standing as both the personal representative of the estate and as one of his sister’s three intended designees to the benefits. Additionally, the Eighth Circuit held that there was indeed a genuine dispute pertaining to whether the Hogens had intended for the marital termination agreement to waive Mr. Hogen’s beneficiary interest in the 401(k) plan, as a jury could and likely would interpret the language of the agreement and the relationship between the parties after their divorce as meaning Mr. Hogen had no right to the hundreds of thousands of dollars in the plan. “Much evidence shows that Sally would not have wanted to preserve 401(k) funds for Clifford” especially given the fact that Ms. Hogen attempted to change the beneficiaries to her siblings. The court stated that “it is a reasonable inference that Sally, aware of her declining health, would not have preserved plan funds unless she believed that the MTA precluded them from passing to her ex-husband, whom she had avoided for nearly two decades.” Accordingly, the Eighth Circuit reversed the lower court’s summary judgment for Mr. Hogen on the breach of contract and unjust enrichment claims and remanded for further proceedings. Summary judgment for Mr. Hogen on the conversion and civil theft claims was affirmed, as the Eighth Circuit expressed these claims are primarily intended to provide recovery for stolen merchandise or property from a retail store and not for the circumstances presented here.
Pleading Issues & Procedure
Am. Elec. Power Serv. Corp. v. Fitch, No. 22-3005, __ F. App’x __, 2022 WL 3794841 (6th Cir. Aug. 30, 2022) (Before Circuit Judges Guy, Moore, and Clay). American Electric Power Service Corporation, on behalf of its ERISA plan, brought a Section 502(a)(3) suit against the parents of a child who died tragically in a car crash seeking to impose an equitable lien over funds the parents received from two third-party “at-fault” settlements for reimbursement of medical bills the plan paid in connection with the accident. The federal district court concluded that the probate exception deprived it of subject-matter jurisdiction because the Probate Court of Franklin County, Ohio had already approved the settlement and distribution and had allocated the money to the family. Accordingly, without weighing in on the merits of the case, the district court dismissed the complaint. American Electric appealed. Relying on the Supreme Court’s clarification of the probate exception in Marshall v. Marshall, 547 U.S. 293 (2006), the Sixth Circuit understood its role as answering the question “whether this actions seeks to reach the same res over which the probate court has custody?” The district court in its dismissal had concluded that granting American Electric’s requested relief would have imposed upon the jurisdiction of the Probate Court over the distribution of the estate and would have required the district court to dispose of the money “in a manner inconsistent with the Probate Court’s judgment.” American Electric’s appeal, the Sixth Circuit stressed, simply failed to address “why this conclusion (by the district court) was flawed.” American Electric, the court went on, simply failed to engage in a discussion of why the lower court’s reasoning was incorrect which “given the nuances entailed in the probate exception” was an incurable shortcoming for its appeal. The Sixth Circuit thus agreed with the parents that American Electric “forfeited any challenge to the district court’s conclusion that the federal court lacks jurisdiction to hear its claims.” As such, the court of appeals upheld the lower court’s holding that the probate exception applies and affirmed the dismissal. Circuit Judge Guy dissented from his colleagues and stated that he disagreed with the conclusion American Electric forfeited review of whether the probate exception applies. To the contrary, Judge Guy found American Electric’s briefing clearly argued that the lower court had erred by not accepting its claim that the proceeds from the settlements were not in the custody of the probate court and therefore expressly addressed the issue of whether its action seeks to reach the same res as the res within the custody of the probate court. As such, Judge Guy expressed that were he in the majority he would have reversed and remanded for further proceedings.