Last week was a slow one for the federal courts, as the steady drip of turkey-produced tryptophan prevented them from providing us with a full complement of the ERISA-related decisions we all know and love. As a result, there was no notable decision for us to recap. Nonetheless, a handful of brave judges and clerks heroically waded through the gravy-laden mashed potatoes and stuffing to issue a few orders, and in their honor we are reporting on those rulings below.

Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.

Arbitration

Second Circuit

Duke v. Luxottica U.S. Holdings Corp., No. 2:21-cv-6072 (NJC) (AYS), 2024 WL 4904509 (E.D.N.Y. Nov. 27, 2024) (Judge Nusrat J. Choudhury). Just over a year ago, Your ERISA Watch summarized this court’s decision dismissing in part and otherwise compelling arbitration of a putative class action alleging that fiduciaries of the Luxottica Group Pension Plan violated ERISA’s actuarial equivalence, anti-forfeiture, and joint and survivor annuity requirements. In that order, the court dismissed plaintiff Janet Duke’s Section 409 and 502(a)(2) claims on behalf of the plan for lack of Article III standing, and compelled arbitration of Ms. Duke’s Section 502(a)(3) claims. Because the court dismissed the Section 409 and 502(a)(2) claims, it did not address plaintiff’s argument that the arbitration agreement’s class action waiver was unenforceable under the “effective vindication” doctrine because it takes away certain statutory rights (a topic Your ERISA Watch has covered regularly). Finally, the court’s order last year stayed the case pending arbitration. Two things have happened since then. First, after the case was assigned to a new judge, plaintiff moved for reconsideration of the prior ruling. The new judge granted her motion in part. To begin, the court granted reconsideration of last year’s order dismissing plaintiff’s Section 502(a)(2) and 409 claims on behalf of the plan for plan-wide remedies. The court held that the complaint plausibly alleges that Ms. Duke suffers from a concrete and particularized injury in the form of lower joint and survivor annuity payments stemming from the alleged use of outdated actuarial assumptions and calculations. Moreover, the court found that these same allegations concerning defendants’ actuarial conduct applied to the wider class, causing losses to the plan as a whole. Judicial recourse, the court found, would also remedy and redress these alleged injuries to both the plan and Ms. Duke. The court identified three errors in the previous ruling: (1) the previous order incorrectly reasoned that the complaint failed to allege how defendants’ conduct caused any losses to the plan or how to remedy them; (2) the order overlooked the complaint’s request for specific forms of plan-wide equitable relief to remedy the alleged harms; and (3) the order incorrectly interpreted the Supreme Court’s decision in Thole v. U.S. Bank and misunderstood the distinctions between this case and Thole, equating them for no other reason than they both involve defined benefit pension plans. However, the decision did not grant plaintiff’s motion in its entirety. The court denied reconsideration of last year’s decision’s grant of defendants’ motion to compel arbitration of the Section 502(a)(3) claims. It rejected Ms. Duke’s assertion that the previous order erroneously required her to administratively exhaust her Section 502(a)(3) claims before bringing them in federal court. The court found no clear error or manifest injustice in the previous ruling compelling Ms. Duke to arbitrate her individual Section 502(a)(3) claims, and therefore upheld that portion of the order. Next, the court addressed an issue not taken up in the previous decision, whether the arbitration provision could be enforced with respect to the representative plan-wide claims asserted under ERISA Section 502(a)(2). Here, the court was persuaded that it could not, as Ms. Duke’s arbitration agreement with Luxottica bars class and representative actions and therefore requires her to forego her statutory rights under Sections 409 and 502(a)(2) to bring representative claims on behalf of the plan and to seek plan-wide remedies for these alleged harms. The court held that the class action waiver was “squarely contrary to Second Circuit precedent prohibiting arbitration provisions that fail to permit individuals to pursue statutory rights, including the right to bring representative claims and secure Plan-wide relief under Sections 409 and 502(a)(2).” The court therefore agreed with plaintiff that the arbitration provision was unenforceable as to the plan-wide causes of action. Notably, the court did not reach Ms. Duke’s arguments as to the enforceability of the class action waiver with respect to her Section 502(a)(3) claims “because she did not timely raise them in the Motion for Reconsideration.” Finally, the court denied defendants’ request to stay adjudication of the plan-wide claims pending the arbitration of the Section 502(a)(3) claims “because Defendants fail to argue, much less demonstrate, that they have met their heavy burden to secure such a stay.” Thus, while Ms. Duke pursues her Section 502(a)(3) claims in arbitration on an individual basis, the plan-wide claims will proceed concurrently in federal court.

Attorneys’ Fees

Ninth Circuit

Downes v. Unum Life Ins. Co. of Am., No. 23-cv-01643-RS, 2024 WL 4876940 (N.D. Cal. Nov. 20, 2024) (Judge Richard Seeborg). After securing a judgment in her favor of her ERISA claim against defendant Unum Life Insurance Company of America in this long-term disability benefit action, plaintiff Maureen Downes moved for an award of $97,965 in attorneys’ fees and $625.07 in costs. The court granted Ms. Downes’ motion in this decision. Ms. Downes sought attorneys’ fees based on the lodestar approach with an hourly rate of $900 for her counsel reflecting 108.85 hours of work over the course of this litigation. The court was confident that the hourly rate sought was fair and reasonable in the Northern District of California and rejected defendant’s “bald” and “unfounded” assertion that ERISA clients are not actually paying a $900 per hour rate. Moreover, the court exercised its discretion to compensate counsel at current rates for all hours billed during the course of the litigation, particularly as the majority of the time spent on the case occurred this year. Finally, the court was satisfied with plaintiff’s submitted evidence and documentation supporting the number of hours worked. Accordingly, Ms. Downes was awarded unreduced attorneys’ fees. Although Unum did not contest the costs, the court independently reviewed them and determined that the $625.07 in costs were recoverable and appropriate here. Ms. Downes was therefore awarded her full requested costs as well.

Breach of Fiduciary Duty

Second Circuit

Sacerdote v. Cammack Larhette Advisors, LLC, No. 17 Civ. 8834 (AT), 2024 WL 4882173 (S.D.N.Y. Nov. 22, 2024) (Judge Analisa Torres). Back in 2016, faculty at New York University (“NYU”) who participate in two retirement plans offered by the school filed an ERISA action against NYU alleging that it breached its fiduciary duties to ensure that the investments and expenses in the plan were reasonable and prudent. That action, Sacerdote I, did not end favorably for the plaintiffs. Many of their causes of action were dismissed when NYU challenged the pleadings, and in 2018, the court found in favor of NYU on all remaining claims following a bench trial. This backdrop is pertinent here in Sacerdote II because defendant Cammack Larhette Advisors, LLC filed a motion for judgment on the pleadings, arguing that plaintiffs are collaterally estopped from relitigating issues previously decided in Sacerdote I. After giving the matter some thought, the court agreed in part. Although both causes of action – a claim for breach of fiduciary duty and a claim for breach of co-fiduciary duty – survived in some form, the court narrowed the scope of both, finding many issues were indeed precluded from litigation in this case because of the prior proceedings. First, the court addressed plaintiffs’ allegations that Cammack violated its duty of prudence by using inappropriate benchmarks to evaluate plan fees, improperly selecting and retaining expensive investment options with poor performance histories, failing to engage in a prudent monitoring process, including poorly performing proprietary TIAA and CREF stock and real estate accounts in the plan, and accepting an imprudent locked in arrangement whereby the plans were obligated to keep these proprietary investment products, whatever their performance. The court found that allegations regarding inappropriate benchmarks and the investment monitoring process “never arose in Sacerdote I,” and as a result were neither addressed nor precluded. Although they may be closely related to topics which were litigated, the court stated that “daylight exists between the” issues, and Cammack and NYU had distinct duties with respect to the plan as co-fiduciaries. Therefore, the court declined to deprive the participants of their opportunity to litigate these claims against Cammack. Nevertheless, the court found that the “lock-up” allegations regarding NYU’s agreement with TIAA-CREF was precluded given the court’s definitive holdings about these agreements in Sacerdote I. The court next addressed plaintiffs’ claim that defendant acted disloyally when it failed to consider recommending investment options that were not the proprietary funds of the plans’ two recordkeepers, concluding that these claims were likewise precluded by Sacerdote I. Turning to the co-fiduciary duty claim, the court dismissed the portions of this cause of action that were tied to cross-selling and share class claims that “were either dismissed or disposed of at trial” in Sacerdote I. The court was less receptive to Cammack’s argument that many of the alleged breaches were outside of its scope of fiduciary duties. Drawing inferences in favor of plaintiffs, the court could not definitively define the scope of Cammack’s duties and stated it was plausible that they extended to providing advice concerning the recordkeepers’ use of participants’ data. The court was therefore unwilling to dismiss this aspect of plaintiffs’ second cause of action. Based on the foregoing, Cammack’s motion for judgment on the pleadings was granted in part and denied in part, and at least some of the case will move forward.

Discovery

Second Circuit

Cleary v. Kaleida Health, No. 1:22-cv-00026(LJV)(JJM), 2024 WL 4901952 (W.D.N.Y. Nov. 27, 2024) (Magistrate Judge Jeremiah J. McCarthy). Pension plans are a little like stars in that what we see today is really a story of the past. We experience here and now the effects of what happened long ago. This particular story of Kaleida Health’s pension plan takes us back a few decades to the 1990s, when several hospitals were consolidated, their retirement plans were combined, and their traditional defined benefit pension plans were transformed into cash balance plans. Plaintiffs in this class action are seeking discovery into the past, to unveil what took place at that time. The fiduciaries of the plan cross-moved to compel production of a privilege log, and also moved to preclude plaintiffs’ requested discovery. The court exercised its wide discretion to manage discovery in this decision granting in part and denying in part each parties’ respective motion. To begin, the court granted defendants’ motion seeking a privilege log from plaintiffs in compliance with local requirements. The court then addressed plaintiffs’ meatier discovery issues, denying many of plaintiffs’ requests for information and documents that the court deemed unnecessary to plaintiffs’ pending class certification motion. This included data necessary to calculate losses and contact information for each putative class member, as well as a number of requests by plaintiffs for documents relating to plan administration, plan operation, oversight, and management. The court also denied plaintiffs’ motion seeking production of Form 5500s and pension benefit statements. However, the court found that information and documents relating to actuarial evaluations and assumptions from 1998 through present were relevant to class certification because this information relates to whether class members reasonably believed that their cash balance benefit growth equaled the growth in their pension benefits based on defendants’ communications. The court thus ordered the defendants to produce this information. Plaintiffs were also permitted to re-serve two subpoenas, and defendants were ordered to produce withheld documents that were not subject to work-product privilege, and to serve unredacted copies of documents defendants marked “non-responsive.” Accordingly, the discovery decision was a mixed bag for both parties.

ERISA Preemption

Second Circuit

Fairmount Ins. Brokers, Ltd. v. HR Serv. Grp., No. 23-CV-8654 (NGG) (LB), 2024 WL 4871421 (E.D.N.Y. Nov. 22, 2024) (Judge Nicholas G. Garaufis). Plaintiff Fairmount Insurance Brokers Ltd. and defendant HR Service Group d/b/a Infiniti HR entered into a client service agreement in 2021 in which Infiniti agreed to provide professional employment services and entered into a shared employment relationship with Fairmount. As part of this agreement, Infiniti was responsible for managing and administering health insurance benefits for Fairmont’s employees. In accordance with this responsibility, Infiniti arranged with NuAxess 2, Inc. to create and provide a health insurance plan for Fairmont’s employees. Things went south eventually. Fairmont’s employees began complaining of non-payments, declined treatments, and baseless denials of claims for healthcare benefits. Employees were suddenly on the hook for large medical bills, which went unpaid and began accruing interest. Fairmount took legal action to address and rectify these issues. It sued Infiniti in state court alleging breach of contract, breach of fiduciary duties, and negligence, and sought declaratory relief and a court order mandating Infiniti to provide compensation to the employees for all financial harm stemming from the health care coverage fiasco. Infiniti removed the lawsuit to federal court on the basis of federal question jurisdiction, asserting that the action arises under ERISA and the state law causes of action are preempted by ERISA. It then moved to dismiss the complaint in its entirety on ERISA preemption grounds. In this decision the court discussed ERISA preemption and ultimately concluded that ERISA does not completely preempt this action and by extension that it lacks jurisdiction over the matter. Accordingly, the court remanded the action to state court. Though broad, ERISA preemption is not absolute, and as the court noted, there is a critical “though sometimes overlooked” difference between express and complete preemption. Here, the court found the parties’ discussion of complete preemption and the application of the Supreme Court’s Davila test wanting. Nevertheless, the court independently took the reins and investigated whether Fairmount could have brought its action under ERISA Section 502(a). It found it could not, reasoning that employers like Fairmount are neither functional nor named fiduciaries and therefore may only pursue claims under three subsections of the statute: Section 502(a)(8), Section 502(a)(10), and Section 502(a)(11). The court found that Fairmount was not a fiduciary because the healthcare plan only names NuAxess 2 as a fiduciary, and because Fairmount did not act with any discretion with respect to the plan. As for the three subsections of ERISA under which non-fiduciary employers may sue, the court concluded “that Fairmount’s claims for breach of contract, breach of fiduciary duties, negligence, and a declaratory judgment cannot be construed as a colorable claim for relief under any of these subsections,” as they related to funding, contributions, and withdrawals. Thus, the court concluded that Fairmount could not have brought its action under ERISA and that its state law claims accordingly were not completely preempted. Without jurisdiction over the matter, the court stated it was required to remand the action back to state court, where issues over express preemption can be addressed. The court therefore denied Infiniti’s motion to dismiss, and the case will proceed in state court.

Pleading Issues & Procedure

Third Circuit

Akopian v. Inserra Supermarkets, Inc., No. 2:23-cv-00519, 2024 WL 4894620 (D.N.J. Nov. 26, 2024) (Judge Claire C. Cecchi). Plaintiff Andrei Akopian was terminated from his position as a clerk in a New Jersey grocery store after he made threatening comments to the assistant store manager in early 2022. Mr. Akopian suffers from a mental disability, and he believes that his rights were violated under the Americans with Disabilities Act (“ADA”). Accordingly, Mr. Akopian filed a charge with the EEOC and then brought this lawsuit after receiving a right to sue letter. In his action Mr. Akopian asserts causes of action under the ADA, ERISA, the National Labor Relations Act (“NLRA”), and the Labor Management Reporting and Disclosure Act (“LMRDA”) against his former employer, Inserra Supermarkets, Inc., and his union, United Food and Commercial Workers Local 1262. Defendants moved for dismissal. Their motion was granted without prejudice in this decision. The court agreed with defendants that Mr. Akopian’s ADA claims must be dismissed for failure to exhaust administrative remedies, that his NLRA claims are not only time-barred but also are based on conclusory allegations that lack plausibility, that his LMRDA claims were “mere recitations of legal provisions,” insufficient to establish plausible causes of action, and that the allegations of his ERISA claims relating his health care coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) were mere labels and recitations of the elements of COBRA claims. The court also found problematic the fact that the ERISA claims were evidently not brought against the entities with any control over his insurance benefits, as the exhibits submitted with the complaint demonstrate that health and welfare benefits were not provided by either defendant.

Standard of Review

Second Circuit

Rappaport v. Guardian Life Ins. Co. of Am., No. 1:22-cv-08100 (JLR), 2024 WL 4872736 (S.D.N.Y. Nov. 22, 2024) (Judge Jennifer L. Rochon). Plaintiff Jason Rappaport formed Industrial Credit of Canada along with his business partner in 1994 and served as its secretary and treasurer. A decade later, his company, through its insurance broker, applied for group disability insurance coverage from Guardian Life Insurance Company of America. For its owners and business managers, including Mr. Rappaport, the company specified that it wished to purchase coverage which included bonuses and commissions in its earnings definition. Guardian hand-wrote on the application election form to change the earnings definition, correcting the word “excluding” to the word “including.” Notwithstanding these communications, Guardian ultimately issued the long-term disability policy with an earnings definition that excluded bonuses and commissions. Many years later, Mr. Rappaport got sick with leukemia. Following his diagnosis, Mr. Rappaport sought long-term disability benefits under the plan. Guardian approved the claim in 2016, and began paying monthly benefits calculated at $18,333.33. Then, in August 2020, Guardian terminated Mr. Rappaport’s benefits, concluding that Mr. Rappaport no longer qualified for benefits because he was capable of earning more than the maximum allowed while disabled. Mr. Rappaport appealed the adverse determination. Guardian ultimately upheld its denial, though it did so outside of the Department of Labor’s 45-day window for deciding benefit appeals. On September 22, 2022, Mr. Rappaport filed this ERISA action to challenge the termination of benefits, as well as seeking to reform the plan so that “insured earnings” includes bonuses and commissions, as his company intended all along. Guardian responded to the complaint by filing counterclaims related to alleged overpayments. Following discovery, the parties cross-moved for partial summary judgment. Specifically, Guardian moved for summary judgment on Mr. Rappaport’s claim for reformation of the plan under Section 502(a)(3), while Mr. Rappaport sought summary judgment on the standard of review and on Guardian’s two counterclaims. The court began with Guardian’s motion, which raised three arguments in support of summary judgment on Mr. Rappaport’s reformation claim: (1) the claim for reformation is time barred because the claim accrued as of the date the policy was issued in 2005, meaning the six-year statute of limitations had passed before the lawsuit was filed; (2) Mr. Rappaport failed to meet the Rule 9(b) pleading standard by failing to allege with particularity facts constituting mistake or fraud underlying his reformation claim; and (3) Mr. Rappaport failed to present clear and convincing evidence that the parties agreed to anything other than what was reflected in the policy. The court addressed the arguments in turn, and ultimately disagreed with each. First, the court held that the six-year statute of limitations began running not when the policy was issued, but when there was clear repudiation of the benefits that Mr. Rappaport either knew or should have known about. Even if that date was September 21, 2016, when Mr. Rappaport was first approved for long-term disability benefits and informed of his monthly benefit amount, the court stated that the lawsuit was timely. Therefore, the court denied the motion for partial summary judgment on this basis. The court next held that Mr. Rappaport sufficiently pleaded his claim for reformation under the heightened standard of Rule 9(b). Finally, the court concluded that there remain genuine issues of material fact over whether a mutual mistake occurred when Guardian neglected to issue the policy to cover insured earnings with a definition including bonuses and commissions. Accordingly, the court denied Guardian’s partial motion for summary judgment. The court then considered Mr. Rappaport’s motion for summary judgment on the standard of review, and explained why it agreed with Mr. Rappaport that the default de novo standard of review applies, despite the policy’s grant of discretionary authority, because Guardian’s appeal decision was untimely. As a preliminary matter, the court noted that the Second Circuit had already decided in Halo v. Yale Health Plan, 819 F.3d 42 (2d Cir. 2016), that courts must generally review benefit denials de novo when the plan decisionmaker does not comply with the Department of Labor’s claims regulation. Guardian argued that the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo calls Halo into question because the claims regulation exceeded the Secretary of Labor’s grant of delegated authority and impermissibly dictates judicial review standards. We’ve seen this argument raised and rejected before in Cogdell v. Reliance Standard Life Ins. Co., No. 1:23-CV-01343 (AJT/JFA), __ F. Supp. 3d __, 2024 WL 4182589 (E.D. Va. Sept. 11, 2024) (Judge Anthony J. Trenga), which we featured as our case of the week in our September 18, 2024 edition. Contrary to Guardian’s ambitious reading of Loper Bright, the court here likewise held that “Loper Bright does not call into question, or address, deference to agency interpretations of their regulations, instead focusing on Congress’s command that reviewing courts ‘interpret…statutory provisions.’” The court then found that no special circumstances justified Guardian’s extension beyond the 45-day window to render its decision on appeal. Nor did Guardian demonstrate that its lack of compliance with the regulation was both inadvertent and harmless. The decision wrapped up with a determination that there was no equitable relief available under ERISA for Guardian’s counterclaims. Guardian’s first counterclaim seeks repayment of more than $300,000 it claims it allegedly overpaid Mr. Rappaport. The court determined that Guardian failed to adequately and specifically identify funds within Mr. Rappaport’s possession that were recoverable under this claim. The court thus concluded that this did not present a claim for equitable relief under ERISA and entered summary judgment in favor of Mr. Rappaport on the first counterclaim, denying Guardian’s request for leave to amend. With respect to the second counterclaim, which sought a set-off of the allegedly overpaid amounts to “the extent this Court determines that Mr. Rappaport is owed any additional LTD benefits under the Plan,” the court found that there was insufficient briefing on this claim. For these reasons, the court denied Guardian’s partial summary judgment motion and granted in part and denied in part Mr. Rappaport’s motion for partial summary judgment.

Johnson v. Parker-Hannifin Corp., No. 24-3014, __ F.4th __, 2024 WL 4834717 (6th Cir. Nov. 20, 2024) (Before Circuit Judges Moore, Murphy, and Bloomekatz)

We’re bringing you an abbreviated Your ERISA Watch this week because of the holiday. In that spirit, we are covering only one case, but it is far from a turkey and more of a Thanksgiving treat, at least for plaintiffs.

This suit was brought as a putative class action by five former employees of the Parker-Hannifin Corporation who are participants in the Parker Retirement Savings Plan. The Plan is one of the largest 401(k) retirement plans in the country, with approximately $4.3 billion in assets.

The suit challenges one of the investment options chosen for the Plan by Parker-Hannifin, the Northern Trust Focus Funds, a suite of target date funds which were mostly passively managed to mimic the returns of a relevant benchmark. It also challenges the decision of the fiduciaries to choose funds with higher-cost share classes when institutional investors like Parker-Hannifin had the option to invest in the same funds with lower-cost share classes.

The district court granted Parker-Hannifin’s motion to dismiss in its entirety. With respect to claims challenging the prudence of the Plan’s Focus Fund investments, the court held that plaintiffs did not state a viable claim of fiduciary breach because they failed to identify a meaningful benchmark and because the other evidence to which plaintiffs pointed was insufficient to support a claim of imprudence. With respect to the allegation that the fiduciaries had unnecessarily caused the Plan to pay for higher-priced shares, the court held that the plaintiffs’ allegation that any threshold for lower cost shares would have been waived was “speculative and conclusory.” Finally, with respect to a third count alleging a failure to monitor the other fiduciaries, the court held that it was contingent on the success of the other two counts and thus likewise dismissed it. (Your ERISA Watch covered this decision in our December 13, 2023 edition.) 

In a two-to-one decision, the Sixth Circuit disagreed with the district court and reversed the dismissal of the case. The court noted at the outset that prudence “is a process-driven obligation,” meaning that, in the context of “an imprudent-retention claim,” the “ultimate question is whether the fiduciary engaged in a reasoned decision-making process when it decided to retain the investment.”

Given ERISA’s six-year statute of repose, the court agreed with defendants that evidence that the Plan’s original selection of the Focus Funds in 2013 was imprudent because it was untested at that time by live performance data could not support plaintiffs’ allegations that it was imprudent to retain those funds within the statutory period that began in late January 2015. 

Nevertheless, the court agreed with plaintiffs that the other evidence they cited – that the Focus Funds had turnover rates as high as 90%, causing “significant upheaval” and concomitant high transaction costs, and that the Focus Funds significantly underperformed benchmarks – together supported a conclusion that plaintiffs had stated a claim for imprudence in retaining the funds as investment options. The court was not overly troubled by the fact that the high turnover rate predated the statutory period because plaintiffs had alleged that this turnover rate combined with the underperformance made the investment imprudent and because a prudent fiduciary considering retention of a fund would not necessarily be limited to the statutory period in assessing the turnover rate and the performance of the fund.

The court therefore turned to “whether Johnson’s allegations of high turnover rate and underperformance, taken together, sufficiently state a claim for imprudence under ERISA.” The court reasoned that a plaintiff was permitted but not required “to point to a higher-performing fund – in conjunction with additional context-specific evidence – to demonstrate imprudence.” The critical question was whether the plaintiff had pled “facts sufficient to give rise to an inference of insufficient process.”

In this case, the court noted that plaintiffs did identify a meaningful benchmark by pleading that the Focus Funds were “expressly structured to meet an industry benchmark…the S&P target date fund benchmark,” which the Funds underperformed until at least 2014. Based on this allegation, plaintiffs alleged that a prudent fiduciary would have removed the funds by the end of 2015.

The court rejected defendants’ contention that the S&P benchmark was not meaningful, noting that the goal of a passively managed fund is to track an “industry-recognized index,” making “a relevant market index…inherently a meaningful benchmark.” In other words, the court concluded that plaintiffs had alleged that “the Focus Funds did not meet their own disclosed investment objectives.” In the court’s view, this was true whether or not “the Focus Funds were designed to match the S&P target date fund benchmark in particular,” because the complaint alleged that the S&P benchmark was an “industry-recognized standard.”

The court also found that the allegations in the complaint “support reasonable inferences about the imprudence of Parker-Hannifin’s administrative process” by objecting “to Parker-Hannifin’s retention of a fund despite high historical turnover rates and persistent underperformance relative to the Funds’ stated objectives.”  This meant that a “jury could plausibly find that a prudent decision-making process would have considered the Funds’ turnover and underperformance and would have arrived at the conclusion that retaining the funds would not be in the Plan’s best interests.” On these bases, the Sixth Circuit thus reversed the district court’s dismissal of the first claim.

With respect to the higher-cost share classes, the court concluded that the complaint “plausibly alleges that plan fiduciaries breached their duty of prudence by selecting a share class with a higher fee when reasonable effort would have unlocked a class with a lower fee.” Given the allegations that the Plan ranked as one of the largest defined contribution plans in the country, the court found plausible the allegation that the Plan had the “bargaining power to obtain share classes at far lower rates,” even if it did not meet the threshold investment levels for each such share class.

The court ruled that, at the pleading stage, the complaint “plausibly alleges that plan fiduciaries breached their duty of prudence by selecting a share class with a higher fee when reasonable effort would have unlocked a class with a lower fee.” In the court’s view, the dissent, on the other hand, “would apply an inappropriately exacting standard, requiring that Johnson ‘plausibly establish’ that Parker-Hannifin imprudently failed to obtain lower fees” when the complaint “need only plausibly allege facts supporting such an inference and need not establish anything at this stage.” The court thus reversed the district court’s dismissal of this claim as well.

Finally, because the failure to monitor claim was contingent on the other two claims, as all parties agreed, the court reversed the dismissal of the third claim.

Judge Murphy wrote a dissent vigorously disagreeing with the court’s decision as to all three claims. The dissent reasoned that plaintiffs failed to state a claim with respect to the first count because “relative rates of return by themselves tell us nothing useful about an administrator’s prudence either in buying a security or in keeping it.” Even when combined with other allegations, the dissent saw “the complaint’s performance allegations [as] irrelevant…when deciding whether the complaint plausibly suggests that Parker-Hannifin violated its duty of prudence by retaining the Focus Funds in the portfolio between 2015 and 2019.” Likewise, the dissent argued that the high turnover rate in 2013 “does not state a plausible claim that Parker-Hannifin imprudently retained the Focus Funds years later.”

With respect to the allegation that the fiduciaries acted imprudently by causing the Plan to pay for higher-cost share classes, the dissent insisted that the plaintiffs improperly “sought to obtain a ‘universal golden ticket’ to discovery merely by alleging that a large plan’s administrators did not obtain all potential ‘volume-based discounts’ for the plan that a fund provider offered.” Because Judge Murphy saw as conclusory the allegations supporting that lower-cost fee shares were available, he disagreed with his colleagues that the complaint plausibly stated a claim for imprudence.

Whichever point of view you think is right, we at ERISA Watch wish all of you a happy Thanksgiving with your friends and family.

McEachin v. Reliance Standard Life Ins. Co., No. 24-1071, __ F.4th __, 2024 WL 4759527 (6th Cir. Nov. 13, 2024) (Before Circuit Judges Sutton, Larsen, and Murphy)

Most ERISA-governed long-term disability benefit plans have limitations for various types of conditions, and one of the most common limitations is for disabilities caused by mental illness, which are typically restricted to 24 months. But what happens if you are disabled from a combination of physical and mental illnesses, or if you are disabled sequentially by physical and mental illnesses? Is coverage concurrent or consecutive? If benefits are payable, for how long? The Sixth Circuit addressed some of these questions in this week’s notable decision.

The plaintiff in the case is Annette McEachin, who was a human resources manager at Perceptron, Inc. in Michigan. In February of 2017 she was in an automobile accident that seriously injured her. To make matters worse, she had another car accident at the end of 2017.

As a result, McEachin underwent three major spinal surgeries over the next three years, attended physical therapy, and took injections and prescription medication for her pain and migraines. She also suffered from mental health issues, such as depression, anxiety, and disturbed sleep. In 2019, her situation worsened even further when her son committed suicide, resulting in post-traumatic stress disorder.

During this time, McEachin submitted a claim for benefits under Perceptron’s long-term disability employee benefit plan to defendant Reliance Standard Life Insurance Company, which insured the plan. Reliance approved her claim in June of 2017 and paid it for more than three years.

However, in October of 2020, Reliance terminated McEachin’s benefits, contending that she was no longer disabled. McEachin appealed, and Reliance reinstated her benefits. At that time Reliance contended that there were no mental health barriers preventing her from returning to work. However, based on the updated medical records, it agreed that “from a physical perspective” McEachin was still disabled.

Reliance terminated McEachin’s benefits again in April of 2021. McEachin appealed again. This time Reliance did not back down. It contended that McEachin could return to work “from a physical standpoint,” citing improvement in her medical records.

In its denial, Reliance acknowledged that McEachin still suffered from mental health issues as well, and even conceded that those issues were independently disabling. However, Reliance stated that the benefit plan had a 24-month limitation on benefits for mental disorders that “cause[d]…or contribute[d] to” her disability. Because McEachin had suffered from mental health issues since 2017, Reliance argued that the 24-month time period had expired and thus she was not entitled to any further benefits.

McEachin filed this action and the parties cross-moved for summary judgment. The district court agreed with Reliance that McEachin was no longer eligible for benefits due to a physical disability. However, the court also ruled that because McEachin remained disabled due to her mental health issues, she was entitled to an additional 24 months of benefits beginning in April of 2021. (Your ERISA Watch covered this decision in our March 29, 2023 edition.) Reliance tried to get the court to reconsider this ruling, but, as we reported in our February 7, 2024 edition, it was rebuffed. Neither party was very happy with the district court’s decision, so Reliance appealed and McEachin cross-appealed.

The Sixth Circuit began with Reliance’s appeal regarding the 24-month mental health disability extension. As usual, the court began with the text of the plan, which provided that “Monthly Benefits for Total Disability caused by or contributed to by mental or nervous disorders will not be payable beyond an aggregate lifetime maximum duration of twenty-four (24) months[.]”

The court noted that it had evaluated similar language in a previous case involving Reliance – Okuno v. Reliance Standard Life Ins. Co., 836 F.3d 600 (6th Cir. 2016) – and that this language required it to decide “whether McEachin’s total disability exists without regard to her mental-health conditions… If it does, if in other words her physical disabilities alone justify disability benefits, the mental-health 24-month clock does not start.” In doing so, the court noted that it was aligned with the Third, Fifth, Eighth, and Ninth Circuits.

Using this approach, the court agreed with the district court that the 24-month limitation period for mental health disability did not begin until April of 2021, when Reliance terminated McEachin’s benefits. In so ruling, the court emphasized that prior to that date Reliance had taken the position that McEachin was not disabled due to her mental health issues. Thus, it was not allowed to start the 24-month mental health clock any earlier than the date it terminated her benefits.

Reliance raised three arguments in response. First, Reliance argued that the plan’s “caused or contributed to” language meant that the clock should have started earlier because McEachin’s mental health issues “contributed to” her disability prior to April of 2021. The Sixth Circuit rejected this, noting that this argument had already been answered by Okuno. Furthermore, the court noted that the key question was “whether [McEachin’s] mental-health conditions ‘contributed’ to her ‘Total Disability’ during the relevant period. Until April 2021, it’s fair to say, they did not. Before then, her physical limitations alone sufficed to establish her ‘Total Disability,’ making the mental-health 24-month limitation irrelevant until then.”

Second, Reliance attempted to distinguish Okuno, but the Sixth Circuit stated that Reliance’s “approach requires squinting at Okuno so narrowly that it creates a mirage.” The court emphasized the broader applicable message of Okuno, which was that “the mere presence of mental-health symptoms does not trigger the start of a mental-health limitations period.” The court stated, “We must respect our decision in Okuno. Under that decision, a mental-health disability does not ‘cause or contribute to’ a ‘total disability’ if existing physical disabilities suffice by themselves to cause it.”

Third, Reliance relied on the decision of the Social Security Administration to approve McEachin’s claim for disability benefits. An administrative law judge ruled that depression and anxiety were components of McEachin’s disability, thus showing, according to Reliance, that McEachin’s disability from mental health issues had started earlier than April of 2021. However, the Sixth Circuit was not impressed. The court stated that the SSA’s decision “does not answer the question whether physical limitations alone created the ‘total’ disability,” and in any event “Social Security benefits operate differently[.]” The court noted that Social Security benefits do not have “similar on-off switches if the individual’s physical limitations improve but her mental-health limitations do not.” Instead, the SSA simply considers “the combined effect of all of the individual’s impairments…without regard to whether any such impairment, if considered separately, would be of such severity.”

The Sixth Circuit thus rejected Reliance’s appeal and moved on to discussing McEachin’s appeal. McEachin made two arguments. First, she challenged the district court’s finding that she was no longer disabled due to physical issues in April of 2021. Second, she argued that even if she was no longer physically disabled at that time, she was allowed to toll the 24-month mental health limitation.

The court flatly rejected McEachin’s first argument, agreeing with the district court that “[t]he record indicates that her physical conditions significantly improved… The frequency and severity of her migraines declined, physical therapy helped McEachin regain ‘full strength’ to her extremities, and MRI and x-ray scans displayed positive results.” McEachin herself had told her doctors that she felt better and could walk without a limp. Indeed, she “had returned to many physical activities, including a rafting trip a few months earlier.”

McEachin had more success with her second argument. She contended that the district court should have allowed her to use medical evidence after the date of her benefit termination to “toll the 24-month mental-disability clock after April 1, 2021.” Thus, even if she could not establish that she was disabled due to physical illness as of that date, the evidence “could be used to show that the mental-disability clock should not have run for certain months during the two-year period.”

The Sixth Circuit noted that McEachin had not made this argument below, but Reliance had not objected to it on appeal and thus it was not forfeited. Regardless, the court was not inclined to rule on it: “The district court should look at this point in the first instance.” However, the court observed that “nothing in the policy prohibits applicants from showing physical disabilities create a total disability at any point that the total disability exists. That suggests that McEachin may use her post-April 2021 evidence for a distinct reason – to show that the 24-month clock should have been tolled at certain points between April 2021 and April 2023, and that her eligibility for benefits thus may go beyond April 2023.” The Sixth Circuit concluded that “the district court should consider this argument and the application of it to the existing medical evidence in the record.”

As a result, it appears that Reliance’s appeal backfired. It got no relief while McEachin was able to obtain a remand, with favorable instructions, on her appeal. We now wait to see what the district court will do. As always, Your ERISA Watch will keep you posted on the results.

Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.

Attorneys’ Fees

Sixth Circuit

Davita Inc. v. Marietta Mem’l Hosp. Emp. Health Benefit Plan, No. 2:18-cv-1739, 2024 WL 4783910 (S.D. Ohio Nov. 14, 2024) (Magistrate Judge Kimberly A. Jolson). This action was brought by dialysis providers who allege that the terms of the Marietta Memorial Hospital Employee Benefit Plan set discriminatory and depressed rates of reimbursement for dialysis services. The parties were engaged in a protracted discovery dispute that ultimately found its way to the Sixth Circuit Court of Appeals. Plaintiffs won the day, as both the district court and the appeals court determined they were entitled to further discovery into defendants’ motive for instituting the unique reimbursement terms specific to dialysis treatment. Even after the Sixth Circuit’s decision, defendants resisted providing discovery, forcing plaintiffs to file a further motion to compel. Plaintiffs were again victorious. On May 8, 2024 the parties reported that their discovery disputes were resolved at long last, and on June 28, 2024 the court granted plaintiffs’ motion for attorneys’ fees and costs for defendants’ failure to engage in discovery and for their efforts to frustrate normal discovery proceedings. In this decision the court awarded plaintiffs $59,629.38 in fees and costs incurred between March 6 and May 8, 2024, which was less than the $114,065.16 plaintiffs requested. First, the court adjusted the hourly rates of plaintiffs’ five attorneys and one paralegal. Plaintiffs requested hourly rates of $1,372.80 per hour for partner James Boswell of King & Spalding, LLP, $1,328.80 per hour for partner Darren Shuler of King & Spalding, $968 per hour for associate Edward Benoit of King & Spalding, and $420.75 per hour for paralegal Jason Seufert of King & Spalding, as well as hourly rates of $570 and $880 per hour for the two local counsel, Kristine Wolliver and Traci Martinez of Squire Patton Boggs, LLP. The court cut these rates to $725 per hour each for attorneys Boswell, Shuler, and Martinez, $570 per hour for attorney Wolliver, $480 an hour for attorney Benoit, and $210 per hour for paralegal Seufert. The court relied on its own knowledge and experience, as well as other fee awards in the district, to set these hourly rates, which it felt were appropriate for partners at top law firms with decades of experience. Aside from the hourly rate reductions, the court also reduced the award of fees by 25 percent for the fees they incurred in moving for fees. The court rejected defendants’ argument that plaintiffs could not recover fees and expenses for the preparation of motions for fees at all, and otherwise declined to reduce the 71.6 hours they spent on the matter from March 6 until May 8, which it found reasonable and sufficiently recorded. With these reductions the court reached its total award of $59,629.38, which it ordered defendants to pay within 30 days.

Disability Benefit Claims

First Circuit

Barnes v. Unum Life Ins. Co. of Am., No. 2:23-cv-00280-LEW, 2024 WL 4751710 (D. Me. Nov. 12, 2024) (Judge Lance E. Walker). Plaintiff Lori Barnes brought this long-term disability benefit action to challenge Unum Life Insurance Company’s decision to discontinue the disability benefits that it had been paying her over the preceding twenty years. Ms. Barnes formerly worked for Unum as an executive account manager. She continued in this position until degenerative spinal conditions, scoliosis and radiculopathy incapacitated her to point where she could no longer sit, stand, or travel, and by extension, could no longer perform the essential duties of her occupation. For two decades, Unum classified Ms. Barnes’s conditions as sustained, chronic, and permanently incapacitating. Despite its long-term recognition that Ms. Barnes was permanently disabled, Unum changed course in 2022 when it redefined her former occupation and its essential duties, and sent a letter to her treating physician requesting the doctor’s opinion regarding Ms. Barnes’s limitations as recently redefined by Unum. The letter offered three possible responses, and the treating physician chose the “no opinion” option. This was a critical development for Unum, which relied on the response to terminate benefits, interpreting it to mean that no medical professional currently believed Ms. Barnes was disabled from her occupation. During the appeals process, the same doctor sent a letter clarifying her opinion, stating clearly that she believed Ms. Barnes could not perform her occupation. Unum did not give any weight to this, and affirmed its termination decision. In her litigation, Ms. Barnes argued that Unum acted arbitrarily and capriciously in her case. Although her medical condition remained unchanged over decades, and Unum deemed her disabled for decades, Ms. Barnes maintained that Unum acted in a self-serving manner to redefine her occupation to its own advantage. She argued that Unum acted unreasonably by overreacting to her doctor’s short-lived “no opinion” response, disregarding evidence in her medical record that reflected a disabling condition, and then by putting pressure on its own agents to support the denial. The court agreed with Ms. Barnes in every respect in this decision ruling on the parties’ competing motions for judgment on the administrative record. In rather remarkable language, the court wrote of its own disappointment “to review such an approach to claims handling by one of the nation’s leading providers of long-term disability benefits. All that I can assume on this record is that Unum hoped that nobody would notice, for even at the final stage of its vocational work around, the vocational consultant would not go so far as to suggest that the travel duties do not entail static standing and sitting demands.” The court was not only persuaded that Ms. Barnes had “produced meaningful and probative evidence to substantiate her disability,” but was also struck by “Unum’s concerted effort first to tilt and then reject the record presented by Barnes (as well as its own, long-standing, contrary record of finding disability year after year, which is never addressed),” and stated plainly that Unum’s action were “not only unreasonable but also arbitrary and capricious.” The court not only rejected Unum’s termination decision, but also concluded that remanding to Unum for a renewed evaluation would be inappropriate given the circumstances. Accordingly, the court brought “this matter to a conclusion with a retroactive reinstatement of benefits.” This decision was therefore an unequivocal victory for Ms. Barnes, and proof that deferential reviews are sometimes not “no review at all.”

Third Circuit

Brown v. Covestro LLC Welfare Benefits Plan, No. 24-1043, __ F. App’x __, 2024 WL 4751199 (3d Cir. Nov. 12, 2024) (Before Circuit Judges Chagares, Porter, and Chung). Plaintiff-appellant Douglas Brown appealed the district court’s summary judgment order affirming Standard Insurance Company’s determination that he was not totally disabled under the Covestro LLC Welfare Benefits Plan, and thus was no longer entitled to continuing long-term disability benefits. On appeal, Mr. Brown challenged the district court’s use of a deferential review standard, as well as its determination that substantial evidence supported the administrator’s adverse benefits decision. Mr. Brown’s arguments failed to persuade the Third Circuit. The Third Circuit stated that under the most plaintiff-friendly approach adopted by other courts of appeals, deferential review is only taken away from plan administrators who commit severe procedural violations. The court of appeals ruled that even if it were to adopt this approach as its own, it simply couldn’t find severe procedural errors in the handling of Mr. Brown’s claim. First, Mr. Brown argued that plan insurer Standard Insurance Company failed to set forth the specific reasons for its termination decision in the denial letter. The appeals court disagreed. It found that the letter clearly demonstrated that Mr. Brown was no longer disabled “in light of the definition of total disability under the plan,” and that the committee denied his claim because “he did not meet the criteria for disability from Any Occupation,” quoted from the plan’s requirements, and identified the evidence that supported its decision. The Third Circuit therefore held that the letter adequately explained the reasons for the decision to terminate benefits. Next, the Third Circuit addressed defendants’ failure to disclose a supplemental report from its reviewing doctor. The court of appeals determined that the committee wasn’t required to disclose this report because it didn’t tread any new ground and simply “analyzed information already known to Brown” with “no new facts or diagnosis.” Even if the committee ought to have disclosed the report, the Third Circuit said the failure to do so was a minor misstep and in no way a severe procedural violation. Mr. Brown was similarly unable to convince the appeals court that de novo review was required after the Department of Labor’s 2018 update to ERISA’s regulations because the defendants did not strictly adhere to the applicable procedural requirements as they failed to set forth the time he had to challenge their decision. The Third Circuit was clear that the updated ERISA regulation doesn’t compel de novo review because the Department of Labor itself seemed to walk back any implication that it intended the update “to establish a general rule regarding the level of deference that a reviewing court may choose to give a fiduciary’s decision.” For these reasons, the appellate court reiterated that the abuse of discretion standard of review was the appropriate review standard in the present matter. Under deferential review, the Third Circuit could see no reason to reverse the administrator’s decision. “The record contains ample evidence supporting the administrator’s determination that Brown was not totally disabled… The plan explains that an individual is only totally disabled if he cannot ‘work at any job’ when taking into account whether reasonable accommodations are available. Notably, Brown stated that he did not believe that he was disabled and continued to work as a teacher.” Given this record, the court of appeals found that substantial evidence supported defendants’ conclusion that Mr. Brown could perform light or sedentary work, such as his current teaching position, and therefore affirmed the termination decision and by extension the district court’s summary judgment order entering judgment in favor of defendants.

Eighth Circuit

Radle v. Unum Life Ins. Co. of Am., No. 4:21CV1039 HEA, 2024 WL 4751307 (E.D. Mo. Nov. 12, 2024) (Judge Henry Edward Autrey). The American poet Robert Frost once quipped about what a wonderful organ the brain is: “[i]t starts working the moment you get up and does not stop until you get into the office.” Plaintiff Michael Radle could likely relate. Mr. Radle began experiencing problems with his brain following a jogging accident in 2016 in which he hit his head on the concrete sidewalk. Something changed after that injury. Mr. Radle began experiencing persistent neurocognitive symptoms, including difficulty concentrating, headaches, light sensitivity, and personality changes. But neurology is a limited field of medicine, and the doctors couldn’t give Mr. Radle a satisfying diagnosis beyond “conversion/functional neurologic disorder” and “post-concussive syndrome,” both elimination disorders. As a result, Mr. Radle was only paid long-term disability benefits under his ERISA-governed policy for 24 months, at which time Unum Life Insurance Company of America determined that he had exhausted maximum lifetime benefits for mental illness coverage. In this lawsuit, Mr. Radle alleges Unum wrongfully terminated his benefits and seeks reinstatement of them. Unum conversely moved for judicial affirmance of its adverse decision. Unum won the day in this summary judgment decision. The court laid out its view that Unum’s determination was not de novo wrong because conversion disorder is a mental illness, and it was the conversion disorder which caused his disabling symptoms. The court disagreed with Mr. Radle that his physical conditions, post-concussion syndrome, and post-traumatic vision syndrome were responsible for an inability to work, citing normal neurological examinations. Therefore, the court found that Mr. Radle failed to establish by a preponderance of the evidence that Unum’s determination that his disability arose from a mental illness was in error. Accordingly, the court affirmed the length and amount of benefits Unum paid under the policy and entered judgment in favor of Unum.

ERISA Preemption

Fifth Circuit

Abira Med. Labs v. Wellmed Med. Mgmt., No. SA-24-CV-00578-XR, 2024 WL 4756909 (W.D. Tex. Nov. 12, 2024) (Judge Xavier Rodriguez). Plaintiff Abira Medical Laboratories, LLC alleges in this action that defendant WellMed Medical Management, Inc. failed to pay or underpaid for hundreds of lab tests it provided to insured patients between 2017 and 2021 which has resulted in damages valued at $443,790.43. Plaintiff originally filed suit in Texas state court, and asserted state law causes of action for breach of contract, quantum meruit, and account stated. WellMed subsequently removed the case to federal court pursuant to complete ERISA preemption and later moved for dismissal arguing that ERISA completely preempted the state law claims and that these claims also failed on the merits. The court only partially agreed and granted the motion to dismiss in this decision, with leave for Abira to replead. To begin, the court disagreed with WellMed that the state law causes of action are completely preempted by ERISA based on the current allegations. It wrote that Abira “alleges that the patients’ rights stem from WellMed’s insurance offering, not insurance provided by the patients’ employers.” WellMed argued that because the case involves several hundred patients it insures, it is all but certain that some of the plans must be employer-sponsored health insurance plans. The court found this argument too speculative. “Absent evidence of the plans themselves – which WellMed did not introduce – the Court cannot conclude that complete ERISA preemption applies.” Nevertheless, the court independently concluded that each of the state law causes of action fails on the merits. It determined that Abira could not sustain its breach of contract claim because it fails to allege a contractual relationship between itself and WellMed, that its quantum meruit claim is not viable under Texas state law, and that the account stated claim falls short of alleging a plausible agreement, either express or implied, by WellMed to pay these amounts. Accordingly, although the court did not adopt WellMed’s ERISA preemption arguments, it still agreed that Abira’s current complaint fails to state claims and therefore granted the motion to dismiss the claims against WellMed, with 30 days leave to amend.

Pleading Issues & Procedure

Eleventh Circuit

Lopez v. Embry-Riddle Aeronautical Univ., No. 6:22-cv-1580-PGB-LHP, 2024 WL 4769632 (M.D. Fla. Nov. 13, 2024) (Judge Paul G. Byron). Plaintiff Guillermina Lopez is a former employee of Embry-Riddle Aeronautical University, Inc. and a participant in its defined contribution retirement plan. In this putative class action, Ms. Lopez alleges that the university mismanaged its plan by selecting costly, and predominantly actively-managed, investment options when cheaper alternative investments were available, and by failing to monitor and control the plan’s recordkeeping fees. Defendant Embry-Riddle Aeronautical University moved for summary judgment. It argued that Ms. Lopez could not sustain her action because she lacks Article III standing. Specifically, defendant contends that Ms. Lopez cannot demonstrate two elements of Constitutional standing – injury in fact and redressability. The court agreed with the university that Ms. Lopez failed to demonstrate both elements. First, the court determined that Ms. Lopez failed to demonstrate she suffered a concrete and particularized injury in fact. In fact, the court agreed with defendant that not only did Ms. Lopez not personally invest in any of the challenged funds, but the evidence in the record firmly demonstrates that she paid what her own expert attests to be a reasonable amount in annual recordkeeping fees. Consequently, the court held that “there is no genuine issue of material fact as to Plaintiff’s lack of Article III standing.” The court further rejected Ms. Lopez’s arguments regarding class-wide damages, which in this case have been calculated to exceed $7 million. The court stated clearly that there is no ERISA exception to Article III nor any class action workaround to excuse a named plaintiff’s individual standing problems. Although the court could have ended its analysis with its finding that the university is entitled to summary judgment due to Ms. Lopez’s failure to demonstrate an injury in fact, it went on with its standing analysis of redressability. Here too the court agreed with defendant and its argument that a judicial remedy in this action might not make her better off, and to the contrary it is conceivable that Ms. Lopez is benefitting from the very practices she alleges are imprudent. Accordingly, the court determined that the university is entitled to summary judgment based on Ms. Lopez’s lack of Article III standing. However, the case was dismissed without prejudice.

Remedies

Eighth Circuit

Krebsbach v. The Travelers Pension Plan, No. 24-257 (DWF/TNL), 2024 WL 4792310 (D. Minn. Nov. 14, 2024) (Judge Donovan W. Frank). Plaintiff Judith M. Krebsbach began working for The Travelers Companies, Inc. almost fifty years ago, and continues to work for the company today. As a long-time employee of Travelers, Ms. Krebsbach is a participant in its defined benefit pension plan. The present action arises from the parties’ dispute over how to calculate Ms. Krebsbach’s benefits. Ms. Krebsbach’s complaint asserts two causes of action. First, Ms. Krebsbach states a claim for benefits due under Section 502(a)(1)(B) to determine which calculation is correct and by extension what benefits she is owed. Second, Ms. Krebsbach asserts a claim for breaches of fiduciary duty under Section 502(a)(3). Ms. Krebsbach seeks relief for three alleged breaches: (1) she alleges that defendants breached their duty of loyalty by choosing parts of the plan most favorable to Travelers; (2) she contends that defendants breached their fiduciary duty to provide a summary plan description (“SPD”) that complies with ERISA’s requirements; and (3) she alleges that defendants failed to provide her with prompt, complete, and accurate information. Ms. Krebsbach’s second cause of action seeks to obtain equitable relief in the form of surcharge, reformation, a remand to permit a full and fair review, and attorneys’ fees and costs. Defendants moved for partial judgment on the pleadings with respect to count two. They argued that Ms. Krebsbach is not entitled to any of the equitable remedies which she seeks for the alleged breaches of fiduciary duties. Ms. Krebsbach opposed defendants’ 12(b)(6) motion. The court did not wholly agree with either party, and in this decision granted the motion in part and denied it in part. As a basic principle, the court cited the long line of cases, including the Supreme Court’s Amara decision, establishing that plaintiffs are permitted to plead alternative claims, even when the relief the plaintiff seeks is benefits owed. Moreover, the court stated, “[e]ven if Defendants’ calculation of benefits is correct, there may still be a breach of fiduciary duty. Krebsbach may claim equitable relief in addition to lost benefits.” Not only did the court feel that Ms. Krebsbach’s claims arise under two distinct legal theories here – the improper denial of benefits under the terms of the plan and breaches of fiduciary duties – but that they also seek distinct relief – benefits due under the plan and equitable remedies arising from defendants’ failures to fulfill fiduciary duties. As a result, the court rejected defendants’ position that Ms. Krebsbach will be made whole by count one alone which would render her second cause of action improperly duplicative. Furthermore, setting aside the aspects of Ms. Krebsbach’s fiduciary breach claim that potentially intertwine with her benefit claim, the court took time to state that her claim that the SPD was insufficient has no issue of duplication as Ms. Krebsbach’s only available remedy is in equity. Similarly, the court rejected defendants’ assertion that attorneys’ fees awarded under count two would be duplicative of any attorneys’ fee award through count one. The court found that defendants were taking too myopic a view here. The court instead agreed with Ms. Krebsbach that attorneys’ fees “fall under the umbrella of equitable remedies,” and that her fee request is not duplicative of relief under count one. For these reasons the court declined to dismiss the second cause of action as duplicative. The court then moved on to the issue of surcharge. First, the court denied the motion to dismiss Ms. Krebsbach’s claim for surcharge under a theory of lost rights to remedy the alleged breaches of fiduciary duty. The court, however, concluded that defendants met their burden for a motion for judgment on the pleadings with respect to Ms. Krebsbach’s claim for surcharge under a theory of detrimental reliance. “Because Krebsbach does not identify a harm caused by detrimental reliance that would not be duplicative of lost benefits remedy, this Court cannot support detrimental reliance as a pathway to harm for purposes of awarding surcharge.” There was one more aspect of the court’s decision that was unfavorable to Ms. Krebsbach. The court agreed with defendants that reformation is not an available remedy to Ms. Krebsbach because her complaint fails to allege that the plan failed to express the agreement of the parties. Instead, the court understood the complaint as discussing competing interpretations of the same language. “Dueling interpretations of the same language is inconsistent with the necessary requirements to award reformation.” As Ms. Krebsbach alleges no fraud or mutual mistake in her complaint, the court found that she was precluded from seeking reformation. Therefore, the court granted defendants’ motion as to the claims for surcharge under a theory of detrimental reliance and for reformation, and dismissed these claims with prejudice, but otherwise denied defendants’ motion for judgment on the pleadings.

Statute of Limitations

Fifth Circuit

Reese v. Royal Audio/Video Supply Co., No. 24-1809, 2024 WL 4751493 (E.D. La. Nov. 12, 2024) (Judge Sarah S. Vance). Plaintiff Bradly Reese worked as an independent contractor for Royal Audio/Visual Supply Co. Inc. for over twenty-four years before being furloughed in 2021, and then eventually terminated in 2022 during the COVID-19 pandemic. Mr. Reese sued his former employer, alleging that Royal Audio discriminated against him on the basis of age and disability by hiring younger, less qualified people over him. In this action Mr. Reese asserts claims under the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act (“FLSA”), and ERISA. With regard to his ERISA and FLSA causes of action, Mr. Reese attests that his former employer willfully misclassified him as an independent contractor and refused to provide him basic employee benefits and overtime pay for over twenty years of employment. Royal Audio moved to dismiss the FLSA and ERISA claims as untimely. Mr. Reese did not oppose the motion to dismiss. In this order, the court granted the motion to dismiss. It agreed with defendant that Mr. Reese could not sustain these two causes of action and that each was time-barred under the applicable statute of limitation. For the ERISA claim, the court concluded that the applicable statute of limitation governing his claim was the ten-year limitations period under Louisiana state law for breach of contract. Mr. Reese alleges that Royal Audio misclassified him as an independent contract over 24 years ago. The court understood that this claim began to accrue when he was first hired as an independent contractor and was informed he would not receive benefits in 1997. Therefore, the court held that the ten-year prescriptive period expired in 2007, and that his 2024 ERISA claim was untimely. 

Subrogation/Reimbursement Claims

Ninth Circuit

Gallen v. Liberty Life Assurance Co. of Bos., No. 8:22-cv-02031-WLH-JDE, 2024 WL 4751576 (C.D. Cal. Nov. 12, 2024) (Judge Wesley L. Hsu). On July 16, 2020, plaintiff Revital Gallen and her husband were involved in a serious car accident. In the accident Ms. Gallen sustained a traumatic brain injury which left her unable to continue working as an attorney at Ernst & Young U.S. LLP. As a result, she applied for benefits through Ernst & Young’s long-term disability employee benefit plan, which was insured through a group policy issued by defendant Lincoln Financial Group. Ms. Gallen continues to receive long-term disability benefits to this day under the policy. The subject of the present dispute between the parties is the policy’s reimbursement provision. The provision requires that an insured reimburse Lincoln for sums she receives from personal injury settlements “to the extent they are losses for which compensation is paid to the Covered Person by or on behalf of the person at fault.” On May 16, 2022, Ms. Gallen’s counsel spoke with the senior claims examiner for subrogation at Lincoln to discuss Ms. Gallen’s personal injury litigation. Lincoln had already informed Ms. Gallen that it intended to assert a lien on any settlement proceeds recovered from the responsible party as a result of her brain injury. Ms. Gallen informed Lincoln that she did not believe that any benefits she would receive from her own insurer, Progressive, under her underinsured motorist coverage, were subject to reimbursement and that Lincoln was not entitled to a lien on this recovery pursuant to the policy language. Lincoln disagreed. It took the contrary position that it was entitled to a lien on the underinsured motorist benefits. Ms. Gallen thus brought the present action seeking payment of disability benefits unreduced by amounts received from Progressive as a result of her underinsured motorist benefits, and declaratory judgment stating that such sums are not subject to a lien or recovery by Lincoln. In this decision the court granted judgment in favor of Ms. Gallen, ordered Lincoln not to reduce payments by any amounts she received or will receive as a result of her underinsured motorist claims, and concluded that the underinsured motorist benefits are not paid “on behalf of” the tortfeasor, and therefore are not subject to the plan’s reimbursement provision. The court concluded that the common sense reading of the policy’s language supports Ms. Gallen’s interpretation. “Insurance companies providing [underinsured motorist coverage] to their insured are not acting ‘in the interest of’ or ‘as a representative of’ the tortfeasor, nor are insurance companies acting ‘in the place of’ the tortfeasor. Insurance companies, in these contexts, are merely acting pursuant to a contract with the insured. Indeed, [the insurers] have no defined relationship to the underinsured motorist, beyond the fact that the benefits are triggered once the motorist’s policy limit is exhausted.” Beyond finding that the plain language of the policy’s provision does not encompass reimbursement of the underinsured motorist benefits, the court stated that to the extent the phrase “on behalf of” is ambiguous, any ambiguity has to be resolved in favor of the beneficiary of the plan, rather than the drafter, leading to the same result. The decision ended by stating that if Lincoln had wished for the reimbursement provision to cover underinsured motorist benefits, it needed to do so with explicit language. Absent such language, the court concluded that the provision does not encompass underinsured motorist benefits. Thus, the court entered judgment in favor of Ms. Gallen, who was represented by Kantor & Kantor attorneys Glenn R. Kantor and Your ERISA Watch co-editor Peter S. Sessions.