This week, no single case jumped out at us as an obvious candidate for case of the week. But keep reading for many interesting decisions, including one awarding costs to Hartford Life Insurance Company in a disability benefit case, Davis v. Hartford Life & Accident Ins. Co., and a fascinating family drama just in time for the holidays, Ben Hill Griffin, Inc. v. Adam “AJ” Anderson.
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Davis v. Hartford Life & Accident Ins. Co., No. 3:14-CV-507-CHB, 2022 WL 17083403 (W.D. Ky. Nov. 18, 2022) (Judge Claria Horn Boom). As Your ERISA Watch has been reporting lately, successful defendants in ERISA benefit suits have been moving for awards of attorney’s fees and costs with increasing frequency over the past couple of years. With few exceptions these motions pursuant to ERISA’s fee and cost provision, Section 502(g)(1), have been denied by courts. In this motion defendant Hartford Life & Accident Insurance Company took a less direct and more incremental approach, moving for reimbursement of costs only under Federal Rule of Civil Procedure 54(d) and/or ERISA Section 502(g)(1). Hartford sought reimbursement of $1,644.25 for deposition transcripts, but more subtlety and perhaps more significantly, Hartford sought a district court decision granting such a motion. In this decision Hartford got just that. Overruling the objections of plaintiff Richard Davis, the court granted Hartford’s motion and awarded the requested costs. To begin, the court stated that it need not reach a conclusion on whether Section 502(g)(1) supplants Rule 54(d) “because under either…an award of costs would be appropriate.” As Hartford ultimately succeeded on its summary judgment claims in this disability benefit action, the court stated that it had the discretionary authority to award costs to Hartford. The court decided to side-step the Sixth Circuit’s King multi-factor test to determine whether to award costs under Section 502(g)(1), finding application of the factors “add[s] little to the Court’s analysis.” Instead, the court decided the deposition transcript costs, at a price of about $3 per page, were necessary, reasonable, and sufficiently detailed. Thus, the court granted the motion and ordered an ERISA plaintiff who was unsuccessful in his legal challenge of the termination of his disability benefits to cover Hartford’s bill of costs.
Breach of Fiduciary Duty
Plutzer v. Bankers Tr. Co. of S. Dakota, No. 22-561-cv, __ F. App’x __, 2022 WL 17086483 (2d Cir. Nov. 21, 2022) (Before Circuit Judges Newman, Nardini, and Robinson). Plaintiff/appellant Edward Plutzer appealed a judgment from the Southern District of New York dismissing his breach of fiduciary duty and prohibited transaction complaint for lack of Article III standing. Mr. Plutzer is a former employee of Tharanco Group, Inc., and a participant in its Employee Stock Ownership Plan (“ESOP”). In his complaint, Mr. Plutzer alleged that the plan’s trustee, Bankers Trust Company of South Dakota, LLC, as well as the senior officials at Tharanco, caused the plan to overpay for the purchase of 100% of Tharanco’s stock during a transaction that occurred in 2015. The district court dismissed the complaint on March 1, 2022, concluding that the complaint lacked sufficient allegations of an injury in fact traceable to defendants’ actions surrounding the transaction. Upon de novo of the district court’s judgment, the Second Circuit concluded that it could not infer that the plan overpaid for the stock based on the allegations in the complaint. First, the appeals court disagreed with Mr. Plutzer that the steep decline in the valuation of the Tharanco stock following the transaction, as published in the company’s Form 5500s, was factual support for his theory of injury. Rather than focus on the downward turn of the price of the stocks from the $133,430,000 paid by the plan at the sale in 2015 to the $9,800,000 value in 2019, the Second Circuit focussed on the fact that the 2017 and 2018 valuations of the stock were actually higher than the 2015 valuation. The various ups and downs of the valuations following the stock transaction, the Second Circuit held, could not lead a factfinder to draw a reasonable inference in Mr. Plutzer’s favor, and therefore could not bolster his claim of a concrete and particularized injury. Furthermore, the court of appeals found Mr. Plutzer’s claims that defendants utilized unreasonable financial projections to be “speculative and conclusory.” Finally, the court felt that Mr. Plutzer’s complaint did not allege any facts suggesting the Plan paid a control premium, instead “all he actually alleges is that the Plan did not obtain control over Tharanco.” For these reasons, the Second Circuit agreed with the conclusions of the district court and as such affirmed its dismissal.
Blackburn v. Reliance-Standard Life Ins. Co., No. 4:22-CV-00095-JHM, 2022 WL 17082673 (W.D. Ky. Nov. 18, 2022) (Judge Joseph H. McKinley Jr.). Plaintiff Ashley Blackburn and her late husband, Ray Blackburn, were both employees of defendant Baptist Healthcare System. The Blackburns each had life insurance policies through their employment that were provided to all Baptist employees and insured by defendant Reliance-Standard Life Insurance Company. The Blackburns also wanted to obtain supplemental life insurance for each other. Reliance-Standard had a policy against allowing Baptist employees from obtaining spousal supplemental life insurance coverage for a spouse that was also a Baptist employee. Nevertheless, Baptist “continuously represented to Mrs. Blackburn that she could maintain $100,000 of supplemental life insurance coverage on her husband,” and collected premiums for this amount of coverage from Mrs. Blackburn for over 10 years. Then in 2019, Mr. Blackburn developed cancer and Mrs. Blackburn stopped working to take care of her husband. Mrs. Blackburn sought to port her supplemental life insurance policy. Reliance-Standard and Baptist helped her to do this, and again Reliance-Standard collected premiums on the new whole life insurance policy. Mr. Blackburn died in March 2020. Mrs. Blackburn submitted a claim for the $100,000 in supplemental life insurance benefits due under the policy. The claim was denied. Reliance-Standard refunded the premiums for the new policy but not for the original supplemental life insurance policy that the Blackburns had paid for 10 years. Following an unsuccessful administrative appeals process, Mrs. Blackburn commenced this suit under Section 502(a)(3) alleging defendants breached their fiduciary duties by misleading her into believing that she was insured. Mrs. Blackburn also seeks statutory penalties under Section 1132(c) for defendants failing to timely disclose plan documents upon request. Defendant Baptist moved to dismiss. The court denied the motion, holding that Mrs. Blackburn’s action was analogous to the particulars of Varity Corp. v. Howe, 516 U.S. 489, 512 (1996), wherein the Supreme Court held that beneficiaries could sue under Section 502(a)(3) when they could not receive make whole relief through Section 502(a)(1)(B). The court also held that Mrs. Blackburn had sufficiently alleged that she had detrimentally relied on defendants’ written and oral misrepresentations in believing she was fully insured under the supplemental life insurance policy and that she would receive the benefits she “elected and paid for.” Finally, the court did not dismiss the claim for statutory penalties for failure to provide plan documents stating, “[f]acts could come to light during discovery that could convince the Court that Mrs. Blackburn is entitled to statutory penalties. In any event, Mrs. Blackburn was not required to plead prejudice or bad faith to state her claim for them, so the Court has no grounds for dismissing it.” For these reasons, none of Mrs. Blackburn’s claims against Baptist Healthcare were dismissed.
Wolff v. Aetna Life Ins. Co., No. 4:19-CV-01596, 2022 WL 17156911 (M.D. Pa. Nov. 22, 2022) (Judge Matthew W. Brann). On May 25, 2022, the court issued an order granting plaintiff Joanne Wolff’s motion for class certification in this action challenging defendant Aetna Life Insurance Company’s use of plans’ “Other Income Benefits” provisions to obtain reimbursement of settlement proceeds when no subrogation or reimbursement provision existed in a plan. A summary of that decision can be found in Your ERISA Watch’s June 1, 2022 newsletter. After the issuance of the order granting class certification, Aetna filed a motion for reconsideration asserting that new case law from the Third Circuit requires the court to decertify the class. “Aetna notes that, one month after this Court certified the class, the Third Circuit issued its opinion in Allen v. Ollie’s Bargain Outlet, wherein the court held that, when deciding issues of commonality, court’s ‘must resolve all factual or legal disputes relevant to class certification.’” Relying on this precedent, Aetna argued that the court left a major factual issue unresolved, namely, “whether the language contained in the different plans permits reimbursement of personal injury recoveries.” Additionally, Aetna claimed the court also failed to address what representations were made by Aetna to the class members, and to parse out what effect this has on Ms. Wolff’s misrepresentation-based claim. Last, Aetna argued that the class definition created an impermissible fail-safe class. Ms. Wolff responded that the court analyzed the necessary criteria and answered the critical issues in order to properly certify the class. In Ms. Wolff’s view Aetna was improperly attempting to litigate the merits of the underlying claims, and the Allen decision does not constitute a change in controlling law. The court agreed with Ms. Wolff that Allen “broke no new ground” and therefore denied the motion to the extent that it relied on Allen. Furthermore, the court reiterated that it had already addressed the issues Aetna claimed were left unresolved in its order certifying the class. However, the court stated that, to the extent it failed to use definitive language, it wished to take the opportunity to clarify and eliminate any ambiguity, writing that “nothing in the relevant plans lead the Court to conclude that variations in the plan language prevents certification.” As for Aetna’s argument around misrepresentations the court expressed, “Wolff’s essential averments are that Aetna allegedly misrepresented – by making a request for reimbursement of personal injury recoveries in the first instance – that it was permitted to recover such funds, and that Aetna allegedly failed to disclose to class members that it was not permitted to recover such funds. These facts are common for every class member.” Accordingly, Aetna’s merit’s arguments in favor of decertifying the class were rejected. Nevertheless, Aetna found success in its stance that the class definition created a fail-safe class by defining the class so that membership depended on whether the member has a valid claim. The court agreed, stating that, through its references to the validity of the claim of the potential members, it had indeed created a fail-safe class. To remedy this problem. the court amended the class definition to remove this language, a change to which Ms. Wolff agreed. Aetna’s motion for reconsideration was thus granted to this limited extent, and the class definition was slightly revised.
C.P. v. Blue Cross Blue Shield of Ill., No. 3:20-cv-06145-RJB, 2022 WL 17092846 (W.D. Wash. Nov. 21, 2022) (Judge Robert J. Bryan). In this class action, plaintiffs are challenging defendant Blue Cross Blue Shield of Illinois’s practice of administering exclusions for gender-affirming medical care for transgender individuals in self-funded ERISA healthcare plans. Plaintiffs argue these policy exclusions violate the anti-discrimination provision, Section 1557, of the Affordable Care Act. Pending before the court were motions from both parties to exclude each other’s expert testimony pursuant to Federal Rule of Civil Procedure 702 as well as Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Plaintiffs offered testimony of several medical professionals, Doctors Ettner, Karasic, and Schechter, who each opined that gender-affirming care is important and medically necessary for individuals diagnosed with gender dysphoria. Additionally, plaintiffs’ expert, Dr. Fox, provided information to the court estimating the size of the class. In contrast to plaintiffs’ experts, Blue Cross relied on experts holding the opposite view, that gender-affirming care is not medically necessary, and that medical consensus on its effectiveness as treatment is split. Furthermore, Blue Cross’s experts offered testimony outlining how requiring plans to pay for this type of care would be a costly burden for employers. Finally, Blue Cross’s expert, Dr. Carr, put forth evidence that contested the number of class members estimated by Dr. Fox. The court denied Blue Cross’s Daubert motion without prejudice and denied without prejudice in part and granted in part plaintiffs’ motion. Specifically, the court was unwilling to exclude the testimony of either party’s expert witnesses to the extent they spoke to the medical necessity of the healthcare at issue. The court found all of the doctors to be sufficiently qualified and appropriately providing testimony on their areas of expertise based on sufficient facts and data as to make their contributions to case relevant and reliable. The court also stated that the opinions of each party’s experts on this topic was central to answering the question of whether there is medical consensus regarding the value of these treatments for people with gender dysphoria and gender variance, the answer to which goes to the heart of the dispute at the center of this action – whether Blue Cross and the plans it administered were discriminating on the basis of sex. Blue Cross’s motion to exclude Dr. Fox’s opinions about the number of class members was also denied, as the court felt Blue Cross’s arguments about the reliability of Dr. Fox’s testimony did not go to admissibility. The court also allowed Blue Cross’s expert testimony pertaining to the economic impact of gender-affirming treatment to proceed because their expert is a qualified professor of healthcare management and his testimony is relevant. Lastly, the court excluded as untimely the response of Dr. Carr, Blue Cross’s expert, to Dr. Fox’s estimate of the number of class members. In all other respects, the expert testimony will proceed, but as the motions were denied without prejudice the court’s rulings may be revisited at trial.
Vigdor v. UnitedHealthcare Ins. Co., No. 3:21-CV-517-MOC-DCK, 2022 WL 17095211 (W.D.N.C. Nov. 21, 2022) (Magistrate Judge David C. Keesler). A group of patient plaintiffs alongside a provider plaintiff, Providence Anesthesiology Associates, P.A., filed a putative class action in North Carolina state court against UnitedHealthcare Insurance Company and related entities alleging that through targeted network terminations with providers, the insurers have violated the North Carolina Patient Protection Act, a state law that prohibits insurers from “subjecting an insured to the out-of-network benefit levels offered under the insured’s approved health benefit plan when they have an insufficient network.” Plaintiffs also asserted claims for breach of contract and unfair and deceptive trade practices. UnitedHealthcare removed the action to the district court based on federal question jurisdiction, arguing plaintiffs’ claims arise under and are preempted by ERISA. Plaintiffs moved to remand. Their motion was referred to Magistrate Judge David C. Keeler, who in this report and recommendation recommended the motion for remand be granted. Magistrate Judge Keeler agreed with plaintiffs that the court lacks subject matter jurisdiction and ERISA preemption is not implicated by the complaint, which pertains to a state law that regulates insurance providers by dictating the rate of payments rather than the right to payment.
Alders v. Yum! Brands, Inc., No. CV 22-1303 PSG (DFMx), 2022 WL 17184561 (C.D. Cal. Nov. 23, 2022) (Judge Phillip S. Gutierrez). Plaintiff Tim Alders worked for defendant Yum! Brands Inc. and Taco Bell Corp. for 25 years from 1995 to 2020. Throughout that time, Mr. Alders alleges, his employer misclassified him as an independent contractor rather than an employee in order to make him ineligible to participate in the companies’ benefit plans. Mr. Alders originally filed a lawsuit against defendants in federal court on July 9, 2021, alleging both ERISA and state law claims. Defendants moved to dismiss the complaint. The court issued an order dismissing Mr. Alders’ ERISA claims for lack of standing as he was not a plan participant and thus “did not have a colorable claim to vested benefits.” When the court dismissed the ERISA claims, it elected not to exercise supplemental jurisdiction over the remaining state law claims. After the dismissal, Mr. Alders filed this present second action (“Alders II”) in state court alleging only claims for violations California state labor laws. Defendants then removed Alders II to federal court on the basis of ERISA preemption. Mr. Alders subsequently moved to remand the action back to state court and moved for attorney’s fees incurred as a result of the removal. Defendants moved for dismissal or alternatively to transfer venue. The court granted Mr. Alders’ motion for remand, denied his motion for attorney’s fees, and denied defendants’ motions. The court stated that removal was not proper, stressing that “[t]he Court’s analysis remains unchanged – Plaintiff still lacks statutory standing to bring his claims under ERISA as he was not a plan participant.” Because Mr. Alders was never a plan participant, the court held once again that he could not have brought a claim under ERISA and therefore the first prong of the Davila test was unsatisfied. However, although the court agreed with Mr. Alders that defendants lacked a reasonable basis for removal, it declined to award fees because Mr. Alders failed to comply with Local Rule 7-3’s meet-and-confer mandate.
Medical Benefit Claims
Zucca v. First Energy Serv. Co., No. 5:21-CV-01345-CEH, 2022 WL 17092803 (N.D. Ohio Nov. 21, 2022) (Magistrate Judge Carmen E. Henderson). Plaintiff Mark Zucca, a participant in the First Energy Healthcare Plan, sued First Energy Service Company and Anthem Blue Cross and Blue Shield after his claim to obtain authorization for his son’s specialized targeted narrative language autism treatment provided by an out-of-network speech/language pathologist was denied by defendants. In the denial letters defendants stated that “in-network doctors…can provide this service.” The parties filed cross-motions for judgment on the administrative record under abuse of discretion review. Although the court agreed with defendants that they had a principled and deliberate review process in place, the court stated that “[a]t no point in the appeals process did Anthem identify any in-network providers that could provide the services that Mr. Zucca requested and that the determination to deny the claim was therefore not supported by substantial evidence.” The court held that Mr. Zucca’s son requires specialized advanced therapies and defendants failed to prove that any in-network provider offered these necessary treatments. Thus, the court found that defendants’ determination was abuse of discretion and Mr. Zucca was awarded summary judgment. In addition, the court held that Mr. Zucca is clearly entitled to an award of benefits. The court concluded that remanding to Anthem, providing it with a second chance to deny benefits, when it failed repeatedly to locate an in-network provider who could provide the services the Zucca family requires would not be in the interest of justice. As for an award of interest, costs and attorney’s fees, the court provided Mr. Zucca sixty days from the date of the order to file briefing on the matter.
Pension Benefit Claims
Ben Hill Griffin, Inc. v. Adam “AJ” Anderson, No. 8:21-cv-2311-VMC-TGW, 2022 WL 17177038 (M.D. Fla. Nov. 23, 2022) (Judge Virginia M. Hernandez Covington). In the strangest and most factually complicated case this week, plaintiff/employer Ben Hill Griffin, Inc. sought a declaratory judgment as to the distribution of decedent Adam Anderson’s pension plans: the Ben Hill Griffin, Inc. Employees’ Profit-Sharing Plan and Trust Agreement and the Ben Hill Griffin Inc. Management Security Plan. This single case involved a murder, a suicide, two ERISA plans, ten claimants comprised of an ex-wife with a Qualified Domestic Relation’s Order (“QDRO”) and a blended family of nine children, both biological and adopted, the applicability of Florida’s slayer statute, DNA testing, and one would presume, a partridge in a pear tree. At its simplest, the case revolved around the deaths of husband and wife Adam and Eva Anderson on July 19, 2021. Based on the evidence found at the couple’s home alongside the conclusions of the autopsy reports, it was determined that Eva was shot to death by Adam, who then committed suicide. As Adam died after his wife, his death certificate indicated his marital status at the time of death as “widowed.” The court broke the defendants up into two camps. The first group of defendants were labeled the “Anderson Defendants.” This group was comprised of Adam’s ex-wife, Michelle Anderson, and all of Adam’s biological and adopted children. The second group of defendants were called the “Wilkerson Defendants.” This group was made up of Eva’s children from a previous marriage, whose claims to the pension benefits were predicated on their mother’s claim as the named beneficiary and Adam’s spouse. The Anderson Defendants moved for summary judgment. Their motion was granted by the court. Tuning out all the noise, the court found its answer to how to distribute the benefits in the language of plans themselves. First, the court addressed the profit-sharing plan. The court held that the designation listing Eva as the sole beneficiary did not control, as the language of the plan required a named beneficiary to be alive at the time of the participant’s death, and Eva predeceased her husband. Thus, the court said, at the time of Adam’s death “he neither had a named beneficiary nor a ‘surviving spouse.’” The court also held that Florida’s slayer statute was inapplicable, because Adam, the murderer, did not stand to benefit in anyway. Because of this, Eva’s children were determined to not be entitled to a portion of the benefits. However, Michelle Anderson’s QDRO was found to be valid and applicable, and the court therefore incorporated its terms into the division of benefits. Finally, the court accepted the results of a DNA test which proved that one of the claimants, defendant Candice Luke, was Adam’s biological child and therefore qualified as a beneficiary. Working through these details, the court ultimately decreed, “$35,578.81…is to be set aside for Michelle Anderson pursuant to the family Court’s Qualified Domestic Relations Order. The remainder of the death benefit payable under the Profit-Sharing Plan is to be distributed to Adam Anderson’s children, including Candice Luke, per stripes.” Turning to the Management Security Plan, the court once again read the language of the plan and of the beneficiary designation form closely and ruled that Michelle Anderson and defendant A.W.A., the minor child of Adam and Eva, were each entitled to a portion of the benefits. Thus, having worked out the details and cleaned up the mess, the court granted the Anderson Defendants’ motion for summary judgment, figured out who got what from each plan, and closed the case.
Pleading Issues & Procedure
Applebaum v. Fabian, No. 22-1049, __ F. App’x __, 2022 WL 17090172 (3d Cir. Nov. 21, 2022) (Before Circuit Judges Ambro, Krause, and Bibas). Plaintiff/appellant Edita Applebaum brought suit in the district of New Jersey challenging things that occurred during probate court proceedings of her late husband’s estate. Ms. Applebaum asserted claims under ERISA, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and state common law. Ms. Applebaum’s complaint was dismissed in the district court. The district court held the RICO claims were untimely, the ERISA claim was barred by the probate exception, and the state law claims were not properly pled. On appeal, the Third Circuit affirmed. Regarding the ERISA claim, the decision stated, “while Applebaum argues that she was the valid beneficiary of her husband’s 401(k) plan and that its proceeds should have bypassed the probate system, Applebaum’s beneficiary designation, and thus her right to estate property, is precisely what is disputed here. As a result, this claim falls squarely within the ‘probate exception’ to our jurisdiction.” Thus, dismissal of the ERISA claim, along with the rest of the district court’s ruling, was affirmed by the court of appeals.
UFG Holdings, LLC v. Demayo Law Offices, L., No. 3:21-CV-375-GCM-DCK, 2022 WL 17095210 (W.D.N.C. Nov. 21, 2022) (Judge Graham C. Mullen). On September 19, 2022, Magistrate Judge David C. Keesler issued a report and recommendation recommending the court deny defendant Demayo Law Offices’ motion to dismiss the Section 502(a)(3) claim against it. Defendant timely objected to the report. The court conducted a review of the Magistrate’s report and concluded that “the recommendation to deny the Defendants’ Motion to Dismiss is correct and in accordance with law.” However, because the issue of the applicability of Section 502(a)(3) to attorneys of ERISA beneficiaries is an area of “substantial difference of opinion…among district courts in this circuit,” the court granted defendant’s alterative request for certification of the order for interlocutory appeal.
Regenold v. RELX Inc., No. 22-CV-04419-RS, 2022 WL 17096162 (N.D. Cal. Nov. 21, 2022) (Judge Richard Seeborg). Plaintiff Todd Regenold was an employee of defendant RELX, Inc. for over five years. In March 2022, Mr. Regenold was informed that his position was being eliminated. Mr. Regenold was provided notification of his severance package including 26 weeks of severance pay and six months of paid membership to an executive outplacement service. However, shortly before Mr. Regenold’s final day at the company he was informed that he was under investigation for misconduct. RELX then informed Mr. Regenold that he was not an “employee in good standing” and therefore was ineligible for his previously promised severance benefits. Rather than appeal this decision, Mr. Regenold sued RELX in state court for breach of contract. RELX removed the matter to the federal district court on ERISA preemption grounds. Mr. Regenold moved to remand, arguing the plan was not ERISA governed because it did not require an ongoing administrative scheme. RELX moved to dismiss the complaint as being preempted by ERISA, and for failure to exhaust administrative remedies. Concluding that the plan in fact qualified as an ERISA severance pay plan under the Department of Labor regulations, the court denied Mr. Regenold’s motion to remand and granted without prejudice RELX’s motion to dismiss, allowing Mr. Regenold the opportunity “to bring a new action upon exhausting administrative remedies.”
Brannigan v. Anthem Ins. Co., No. 8:21-cv-2353-KKM-SPF, 2022 WL 17175845 (M.D. Fla. Nov. 23, 2022) (Judge Tom Barber). In this very brief order, the court adopted a Magistrate’s report and recommendation which recommended denying defendant Anthem Insurance Company’s motion to dismiss but granting its alternative motion to transfer. The court agreed with the Magistrate that Anthem had an insignificant connection to the middle district of Florida to warrant it as the proper venue, whereas Anthem’s headquarters in Indianapolis, which was the location where it made the relevant decision to deny coverage, factored in favor of transferring the case to the southern district of Indiana. Thus, without any fanfare, the court ordered the action to be transferred.
Withdrawal Liability & Unpaid Contributions
Bd. of Trs. of IBEW Local 100 Pension Tr. Fund v. Cole, No. 1:21-CV-0750 AWI EPG, 2022 WL 17156147 (E.D. Cal. Nov. 22, 2022) (Judge Anthony W. Ishii). Plaintiffs the Board of Trustees of IBEW Local 100 Pension Trust Fund and the Joint Electrical Industry Trailing Trust Fund sued an employer, defendant Michael Cole d/b/a Michael Cole Electric for failure to conduct audits from 2016 to 2019. Plaintiffs moved for partial summary judgment on the issue of whether Michael Cole Electric is bound by a collective bargaining agreement. Plaintiffs argued that Michael Cole Electric is the successor of Cole Electric Repair Services, the electrical company that Michael Cole ran until 2006, which had signed the collective bargaining agreement governing the ERISA plans. Plaintiffs went on to express that even if the court were to conclude that Michael Cole Electric was not the successor of Cole Electric Repair Services, Michael Cole and Michael Cole Electric manifested an intent to abide by the terms of the collective bargaining agreement. To begin, the court held that the evidence did not demonstrate that Mr. Cole’s second electrical company was the successor to his first as Mr. Cole himself was the only “the only employee common to both.” Accordingly, the court did not grant summary judgment in favor of plaintiffs on their successor theory. However, regarding the actions of Mr. Cole and Michael Cole Electric and whether those actions bound them to the collective bargaining agreement, the court acknowledged that evidence cut both ways. Because of this conflict, the court stated that in viewing the evidence in the light most favorable to Mr. Cole it could not say as a matter of law that Michael Cole Electric adopted the collective bargaining agreement or was bound by its terms. Thus, this issue remained unresolved, and plaintiffs’ partial summary judgment motion was denied.