Alford v. The NFL Player Disability & Survivor Benefit Plan, No. 1:23-cv-00358-JRR, 2024 WL 1214000 (D. Md. Mar. 20, 2024) (Judge Julie R. Rubin)

For faithful readers of Your ERISA Watch, the basic contours and scathing judicial critiques of the operation of the NFL Player Disability and Survivor Benefit Plan, previously known by the catchier title “The Bert Bell/Pete Rozelle NFL Retirement Plan,” are well known. Just last week, we reported on the last gasp of the Cloud case, in which Judge James E. Graves, Jr. dissented from the denial of rehearing en banc of a Fifth Circuit decision in favor of the plan. In that decision, the Fifth Circuit overturned a district court’s judgment in favor of a disabled NFL player after a week-long bench trial, but acknowledged at the same time that the NFL plan was “a lopsided system aggressively stacked against disabled players.” 

NFL players have not given up. Ten former players, including All-American running back Willis McGahee, filed this putative class action asserting claims for wrongful denial of benefits under ERISA Section 502(a)(1)(B), violations of ERISA’s claim processing provision, Section 503, and breaches of fiduciary and co-fiduciary duty. The players asserted these claims on behalf of the putative class and separately on behalf of the plan. Defendants, which included the plan, the board overseeing the plan, and various individuals, including NFL Commissioner Roger Goodell, moved to dismiss the complaint in its entirety on various bases, each of which the court addressed in this order.

First, the court refused to dismiss the players’ benefit claims for failure to exhaust administrative remedies. The court concluded that plaintiffs’ argument that it would be futile to do so could not be resolved at this stage given the “robust backdrop of alleged malfeasance and nonfeasance” spelled out in the complaint. This backdrop included an alleged “systematic pattern that the more the Defendants compensate their hired physicians, the higher the likelihood that those physicians will render flawed, inadequate, result-oriented opinions adverse to benefits applicants,” as well as a practice of providing “inaccurate,  misleading, and deceptive information about the Plan to Plaintiffs and absent Class members.”  

On the other hand, the court granted defendants’ motion to dismiss all benefit claims outside Maryland’s three-year statute of limitations applicable to such claims, finding that plaintiffs had failed to allege facts supporting equitable tolling. In this regard, the court found that nothing in the complaint “suggests the existence of Defendants’ trickery or efforts to induce Plaintiffs not to file action following a benefits denial, or any other extraordinary circumstance that might warrant tolling of the statutes of limitations.” 

For benefit claims within the statutory period, however, the court rejected defendants’ argument that plaintiffs had failed to state a claim. Instead, the court viewed defendants’ arguments as essentially merits-based and inappropriate for resolution on the pleadings. “Construed in the light most favorable to Plaintiffs (and taken as true), Plaintiffs plausibly allege that the Board acted inconsistently with the Plan’s purpose and goal, did not consider the entire record, inappropriately relied on Neutral Physicians’ conclusions, provided interpretations inconsistent with Plan provisions and ERISA requirements, failed to provide reasoned decisions, and that bad faith motives and bias influenced their decisions.”

As for the claims for fiduciary and co-fiduciary breaches on behalf of the class members asserted under ERISA Section 502(a)(3), the court agreed with the defendants that these claims were impermissibly repackaged benefit claims. The court stated that in the Fourth Circuit such claims were required to be dismissed as duplicative, even at the pleading stage, to the extent that the wrong they seek to remedy can be adequately redressed under Section 502(a)(1)(B), which the court found to be the case. The court thus dismissed plaintiffs’ Section 502(a)(3) claim.

The court reached the opposite result with regard to the Board of Trustees’ argument that the fiduciary claim against it brought under Section 502(a)(2) should be dismissed. To the contrary, the court held that “Plaintiffs adequately allege breaches of fiduciary duties by (and against) the Board: failure to act in accordance with the Plan and failure to act in sole/best interest of the Plan participants,” and further held that their allegations even met the heightened requirements for pleading fraud under Federal Rule of Civil Procedure 9(b).

The court also allowed the plaintiffs’ counts alleging violations of Section 503 to go forward, even though it acknowledged that not all courts have recognized that participants have a right of action under this provision. Moreover, the court also found that a remedy with respect to these claims would be duplicative of the claim for benefits, but only if plaintiffs were to prevail on that claim. However, the court found that if plaintiffs did not succeed on their benefit claims, the court could still mandate a remand for full and fair review as a remedy for any Section 503 violations. In short, because the court saw some daylight between the count alleging wrongful denial of benefits and the counts alleging violation of ERISA’s claim processing provision, the court refused to dismiss the Section 503 claims.

Finally, with respect to the claims against the Board members and Commissioner Goodell as individuals, the court found that “Plaintiffs here do not set forth allegations to support a conclusion that the Trustees or the Commissioner, as opposed to the Board, had adequate control over the Board.” Accordingly, the court granted the motions to dismiss these individual defendants.

After several relatively slow weeks, the winds of change are stirring as the end of the reporting period draws near. Just as parents are hesitant to choose a favorite child (out loud), it was difficult this week to choose the case of the week among the many interesting decisions. But just because we chose one does not mean that you, our readers, have to agree. So, keep reading to discover your own favorite, which might be the case in which the employer promised an employee a Ford F-150 (Johnson v. Dodds Bodyworks, Inc.), or the case involving “a fantastical tale of depravity and abject cruelty that might find a place in Hollywood, were it actually true” (Williams v. Noble Home Health Care, LLC).

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

Arbitration

Eleventh Circuit

Williams v. Shapiro, No. 1:23-cv-03236-VMC, 2024 WL 1208297 (N.D. Ga. Mar. 20, 2024) (Judge Victoria Marie Calvert). This decision is the latest in a recent line of ERISA decisions declining to compel arbitration based on the “effective vindication” doctrine, which allows a court to invalidate arbitration agreements on public policy grounds if they effectively waive a party’s right to seek statutory remedies. The plaintiff, a plan participant, asserts fiduciary breaches and prohibited transactions relating to the creation in 2017 and dissolution in 2019 of an employee stock ownership plan (ESOP). According to the complaint, the 2019 transactions resulted in the former owners of the company obtaining 100% of the company stock for at least $35.4 million less than they should have paid. Although the original ESOP plan document did not contain an arbitration clause, the directors of the company amended the plan in connection with the 2019 transactions to add an arbitration clause, as well as a very broad class action waiver provision that purported to prohibit participants from obtaining any relief “on behalf of any individual or entity” other than themselves, a non-severability provision, and a provision requiring the participant to pay the defendant’s costs, expenses, and attorneys’ fees if the arbitration was unsuccessful. Then, a month after plaintiffs filed suit in 2022, and three years after the ESOP had been terminated and its stock assets liquidated through the sale back to the former owners, the directors again purported to amend the arbitration clause to permit injunctive relief so long as that relief “does not include or result in the provision of additional benefits or monetary relief to any individual or entity other than” the individual plan participant. Based on these amendments, defendants moved to compel arbitration. The district court began its analysis by noting that the Eleventh Circuit has not yet ruled on the arbitrability of ERISA claims. Although the court further noted that numerous other circuit courts have concluded that ERISA claims are generally arbitrable because ERISA does not contain a “contrary congressional command,” this was, in the court’s view, “only the beginning of the ERISA arbitration analysis,” given ERISA’s comprehensive and “enormously complex” nature and the fact that “[a]rbitration is a matter of contract and of consent.” Instead, the court saw the arbitration analysis as turning on four things: (1) whether the particular claim or claims being brought by a participant are properly characterized as belonging to the participant or to the plan; (2) whether the proper party has assented to the arbitration clause; (3) whether the claims are within the scope of the clause; and (4) whether application of the clause would prevent the effective vindication of the participant’s rights under ERISA. With respect to the first issue, the court concluded that the complaint contained both claims under ERISA Section 502(a)(2), which belonged to the plan, and claims for reformation and rescission under ERISA Section 502(a)(3), which the court concluded “are held by the participants generally,” and not the plan. With respect to the second issue, the court concluded that while the participants themselves did not assent to the amendments containing the arbitration clause, the ESOP assented even though it had long since been terminated, because it still held one asset – its claims against the defendants – and thus still maintained a legal existence. With respect to the third issue, the court had no trouble concluding that the broad arbitration clause encompassed all the claims asserted. This brought the court “to the final question, whether the clause at issue prevents the effective vindication of an ERISA right.” This presented a more difficult question given conflicting decisions from other circuits concerning whether the effective vindication doctrine prevents compelled arbitration in the context of a defined contribution plan that contains a class action waiver and a recent Supreme Court decision, Viking River Cruises, Inc. v. Moriana, 596 U.S. 639 (2022), which rejected applicability of the effective vindication doctrine in a case involving California’s Private Attorney General Act. Ultimately, the court determined that the ERISA claims at issue were more like a representative action on behalf of a single principal, the plan, than the joinder of numerous individual claims as in Viking River, and agreed with the courts that have held that materially identical arbitration provisions were invalid because they prevented plaintiffs from obtaining some of the relief that they sought. The court thus held that the arbitration clause was invalid and non-severable.

Attorneys’ Fees

Second Circuit

Graziano v. First Unum Life Ins. Co., No. 21-CV-2708 (PAC), 2024 WL 1175143 (S.D.N.Y. Mar. 19, 2024) (Judge Loretta A. Preska). After prevailing in his action alleging that defendant First Unum Life Insurance Company violated ERISA by improperly terminating his long-term disability benefits, plaintiff Michael Graziano filed a motion for attorney’s fees. The court agreed that he was eligible for fees due to his success on the merits. The court acknowledged that Graziano’s attorneys, Riemer Hess, “specialize in high-stakes ERISA litigation and the Firm is highly regarded in the relevant legal community and by their clients.” The court also noted that Riemer Hess clients were willing to pay the hourly rates requested by the firm, which supported their reasonableness. However, Unum “cites a few cases that give the Court pause in finding the proposed rates reasonable.” Thus, the court imposed a 10% cut, awarding rates for Graziano’s attorneys ranging from $432 to $788 per hour based on their experience, which was “still above the rates found to be reasonable in other recent ERISA cases.” Unum also objected to the time Graziano’s attorneys spent on the case, but “[h]aving closely reviewed the Billing Records and Unum’s objections, the Court finds that most of the time expended is reasonable.” The court did identify some examples of duplicative work, “vague entries,” and administrative work that could have been performed at a lower rate, and determined that a “modest 5% reduction” was appropriate given that these deficiencies were “the exception among the Firm’s hours.” As a result, the court awarded Graziano $187,080.65 in fees, reduced from his request of $221,039.25, and $402 in undisputed costs.

Breach of Fiduciary Duty

Seventh Circuit

Placht v. Argent Tr. Co., No. 21 C 5783, 2024 WL 1254196 (N.D. Ill. Mar. 25, 2024) (Judge Sara L. Ellis). Plaintiff Carolyn Placht is a participant in Symbria Inc.’s Employee Stock Ownership Plan who successfully obtained class certification in this action against the plan’s trustee, Argent Trust Company. She contends Argent violated its fiduciary duties under ERISA when it oversaw the 2015 purchase by the plan of all of Symbria’s stock shares. Placht filed a motion for summary judgment, asking the court to rule that Argent’s actions constituted a prohibited transaction under ERISA Section 406, while Argent moved for summary judgment as to the entire case. Addressing Placht’s motion first, the court considered Argent’s objection that Placht was attempting “piecemeal adjudication” of one of the issues in the case, but the court ruled that Placht’s motion was acceptable under Federal Rule of Civil Procedure 56. Next, Argent admitted that under Section 406 it was a fiduciary, the selling shareholders were parties in interest, and the sale to the plan constituted “a direct or indirect sale or exchange, or leasing, of any property between the plan and a party in interest.” However, Argent argued that Placht’s motion failed because she did not show that Argent “subjectively intended to benefit a party in interest through the transfer.” The court rejected this argument, ruling that Section 406 should be read “broadly” and “subjective intent” was not an element of proof. Thus, the court granted Placht’s motion and ruled that the ESOP sale met Section 406’s definition of a prohibited transaction. The court then turned to Argent’s motion, which argued that even if the sale was a prohibited transaction, it fell within one of Section 408’s exemptions because the plan received “adequate consideration.” Both Placht and Argent presented expert witness reports with voluminous exhibits explaining why the transaction was or was not fair, and whether Argent conducted due diligence in overseeing it. The court ruled that it could not sort this issue out on summary judgment. “[F]actual questions exist as to whether Argent acted prudently…Placht’s claims and Argent’s defenses with respect to the ESOP Transaction must proceed to trial.” Argent had more success on its duty of loyalty argument. The court ruled that Placht had not provided “any evidence that would suggest that Argent acted to further its own interest or had any other type of conflict of interest that would support” such a claim. Finally, the court addressed Placht’s request that the court declare Argent’s indemnification agreement with Symbria void under ERISA Section 410, which prohibits agreements that relieve fiduciaries from their responsibilities under ERISA. The court ruled in Argent’s favor on this issue as well, finding that the agreement’s carve-out did not allow for indemnification for the alleged violations, and thus it did not violate ERISA. Thus, Placht’s Section 406 claim will go trial, subject to any Section 408 exemptions provable by Argent.

Eighth Circuit

Dionicio v. U.S. Bancorp, No. 23-CV-0026 (PJS/DLM), 2024 WL 1216519 (D. Minn. Mar. 21, 2024) (Judge Patrick J. Schiltz). This is a putative class action alleging that U.S. Bank and related defendants breached their fiduciary duties in the administration of U.S. Bank’s 401(k) employee benefit plan. Plaintiffs made three claims: (1) defendants breached their duty of prudence by incurring excessive recordkeeping and administrative fees; (2) defendants breached their duty of prudence by incurring excessive fees for managed-account services; and (3) U.S. Bank and its board failed to monitor the committees responsible for overseeing these fees. Defendants filed a motion to dismiss all three claims, which the court addressed in turn in its order. The court denied U.S. Bank’s motion on the first claim, ruling that the seven comparator plans cited by plaintiffs in their complaint were sufficiently similar to the U.S Bank plan. The court noted that U.S. Bank’s plan was “huge,” with “more assets than 99.99% of other defined-contribution plans.” Thus, plaintiffs could not be faulted for not finding exact matches: “Under defendants’ approach, plaintiffs suing exceptionally large or exceptionally small plans would face a nearly insurmountable pleading hurdle.” The other plans cited by plaintiffs were also “mega plans,” and thus were “viable comparators.” Defendants also complained that plaintiffs’ comparisons were not “apples to apples” because they did not “identify the particular services used by each plan.” However, the court noted that plaintiffs had alleged that basic recordkeeping services were “fungible” and “materially indistinguishable” from plan to plan, which was supported by case law finding such allegations plausible. As for plaintiffs’ second claim regarding managed-account service fees, plaintiffs identified six comparator plans, but the complaint was “devoid of even basic information” about those comparators, “such as the number of participants or total assets.” The complaint also did not address the fee schedules of the comparator plans, or explain what specific services they offered or how they differed from the services available in U.S. Bank’s plan. Thus, the court granted defendants’ motion on this claim. Plaintiffs’ third claim, for failure to monitor, was derivative of their other claims, and thus, consistently with its above rulings, the court denied defendants’ motion to dismiss this claim as to the recordkeeping fees but granted it as to the managed-account service fees.

Ninth Circuit

Lucas v. MGM Resorts Int’l, No. 2:20-cv-01750-JAD-NJK, 2024 WL 1199514 (D. Nev. Mar. 19, 2024) (Judge Jennifer A. Dorsey). Eboni Lucas, a former employee of MGM Resorts and a participant in MGM’s 401(k) benefit plan, brought this class action lawsuit challenging the prudence of both the investment fees associated with the chosen share-classes of mutual funds for the plan, as well as the recordkeeping fees paid by the plan. Following certification of a class of plan participants, MGM moved for summary judgment with respect to the share-class imprudence claim and to exclude as unreliable the opinion of plaintiff’s expert. By way of factual background, the court explained that in 2018 the plan began using “a separate, fixed-percentage fee that was charged to all participants’ individual accounts for recordkeeping and other administrative expenses,” and at the same time ceased using any portion of the mutual share-class fees as “revenue sharing” to pay for the recordkeeping, and instead began to credit back the revenue sharing dollars to participants’ individual accounts on a pro rata basis. The court found that plaintiffs’ expert employed a flawed methodology by not fully accounting for the revenue sharing and thus excluded this evidence as unreliable. Because defendants’ expert opined that, once the revenue sharing was accounted for, the share-classes chosen for the plan provided it “with net benefits, not net losses,” the court concluded that plaintiff had failed to meet her burden of showing losses associated with the investments and thus MGM was entitled to summary judgment on the claims based on share-class selection and retention. The court, however, denied MGM’s motion to seal the summary judgment and Daubert motion briefing and exhibits, finding that MGM’s filing of these documents under seal was “improper and certainly overkill,” and resulted “in a docketing mess.” Thus, only the claims relating to recordkeeping fees will proceed to trial.

Miguel v. Salesforce.com, Inc., No. 20-CV-01753-MMC, 2024 WL 1222092 (N.D. Cal. Mar. 20, 2024); Miguel v. Salesforce.com, Inc., 2024 WL 1221934 (N.D. Cal. Mar. 20, 2024) (Judge Maxine M. Chesney). Plaintiffs, former Salesforce employees, allege that Salesforce and related defendants breached their fiduciary duties in the administration of Salesforce’s 401(k) employee benefit plan. Plaintiffs made four claims: (1) defendants only offered an institutional share class of JPMorgan target date retirement funds instead of lower cost share classes; (2) defendants retained nine actively managed JPMorgan funds instead of transitioning to passively managed collective investment trusts (CITs); (3) defendants failed to substitute certain Fidelity mutual funds with CITs; and (4) defendants failed to monitor the committee overseeing the plan. Defendants filed a motion for summary judgment. On the institutional share class claim, defendants argued that the institutional shares had revenue sharing, which actually made it cheaper on a net cost basis than the lower cost share classes advanced by plaintiffs. However, the court noted that plaintiffs’ expert had disputed this, arguing that the revenue sharing did not directly offset the expense ratio because “revenue sharing ‘reduces the investment returns plan participants receive’ and ‘makes recordkeeping and administrative costs interdependent with plan participant returns.’” (In the companion order linked above, the court denied defendants’ motion to exclude plaintiffs’ expert, ruling that defendants’ criticism of his experience “goes to the weight of any opinions he may offer, not their admissibility.” Furthermore, defendants’ challenges to the expert’s methodology were “primarily directed at ‘the merits of’ plaintiffs’ claims,” and not the admissibility of his testimony.) Thus, the court ruled that there were disputed facts which precluded summary judgment on plaintiffs’ first claim. As for plaintiffs’ CIT claims, the court noted that it was undisputed that the mutual funds had higher average expense ratios than the CITs. Defendants argued that Salesforce’s delay in transitioning to CITs was “within the range of reasonable judgments” because of a lack of third-party evaluations of the CITs, different regulatory regimes, and a shorter available track record for the CITs. Defendants also cited the available revenue sharing in the mutual funds. Plaintiffs responded that “a prudent fiduciary would not consider either the lack of publicly available information regarding CITs or the differing regulatory regimes sufficient reason to exclude CITs from consideration,” and quoted defendants’ investment consultant, who had agreed that the trusts and mutual funds had “similar investment profiles and strategies.” Again, the court concluded that it could not resolve these factual disputes on summary judgment and denied defendants’ motion on these claims. The court also addressed damages. Defendants contended that plaintiffs’ damages calculations did not include a number for its claim regarding the failure to transition to CITs, but the court stated that on summary judgment the burden was on defendants to show that plaintiffs suffered no damage, which it had not done. Finally, the court ruled that because there were triable issues of fact as to plaintiffs’ duty of prudence claims, their derivative claims for failure to monitor survived as well. The court thus denied defendants’ summary judgment motion in its entirety.

Class Actions

Second Circuit

Collins v. Anthem, Inc., No. 20-CV-01969 (SIL), 2024 WL 1172697 (E.D.N.Y. Mar. 19, 2024) (Magistrate Judge Steven I. Locke). This is a putative class action alleging that defendants Anthem, Inc. and Anthem UM Services, Inc. (1) breached their fiduciary duties under ERISA, (2) unreasonably denied requests for residential behavioral mental health treatment, and (3) violated the Mental Health Parity and Addiction Equity Act of 2008. Plaintiffs filed a motion for class certification, and refined the definition of their proposed class during briefing. The court first ruled that plaintiffs had standing. Anthem agreed that plaintiffs had standing to seek declaratory relief, but argued that they could not seek injunctive relief because they did not show that they would be wronged again in the future in a similar way. The court agreed, but ruled that plaintiffs still had standing to pursue retrospective injunctive relief in the form of a reprocessing remedy. Anthem argued that a reprocessing remedy would not redress plaintiffs’ injuries, which were monetary, but the court ruled that “ultimate monetary recovery is unnecessary to show redressability.” Next, the court addressed the Federal Rules of Civil Procedure’s class action requirements. The putative class contained “at least” 358 people, satisfying the numerosity requirement, and there was commonality because “each Plaintiff and putative class member was injured because Anthem denied coverage for residential behavioral health treatment based on ‘Guidelines that were in direct conflict with [putative class members’] plans and flouted the Parity Act.’” The court ruled that plaintiffs did not have to “demonstrate that the relevant Guideline was applied to his or her claim in an identical way to establish commonality, because each denial resulted from ‘a unitary course of conduct,’” i.e., application of the guidelines. The court acknowledged that Anthem’s peer reviewers applied clinical judgment in evaluating claims, but this did not defeat commonality because Anthem’s claims manual was “emphatic that the Guidelines and Medical Policies must be applied during the medical necessity analysis.” The court further found that plaintiffs’ claims were typical of the class because even if Anthem’s guidelines did not affect every class member in the same way, they were applied in a uniform manner. The court also ruled that the named plaintiffs were adequate representatives and the class was ascertainable because it was defined based on objective criteria. The court then ruled that the class met Rule 23(b)’s requirements because Anthem acted on grounds generally applicable to the entire class and plaintiffs’ alleged injuries could be redressed through a single retrospective reprocessing order. Finally, the court appointed plaintiffs’ attorneys as class counsel, noting their “significant experience litigating ERISA class actions involving health insurance companies.” The court thus granted plaintiffs’ class certification motion, but “only as to the Plaintiffs’ claims for a retrospective injunction in the form of reprocessing, and for declaratory relief.”

Disability Benefit Claims

Third Circuit

Randall v. Plasterer’s Union Local 8 Benefit Fund, No. 3:22-CV-00243-PGS-RLS, 2024 WL 1197861 (D.N.J. Mar. 20, 2024) (Judge Peter G. Sheridan). Plaintiff Donald Randall Jr. was a member of the Plasterers’ and Cement Masons Union Local 8 and a participant in its pension plan. He became injured in 2016 and applied for Social Security disability benefits. The Social Security Administration (SSA) approved his claim, but used a benefit start date in 2018 based on his request. Randall submitted a disability claim to the pension plan as well, the terms of which explained that a “Disability Retirement Benefit shall begin effective as of the first day that he is eligible to commence receiving a disability benefit under the Social Security Act.” The plan acknowledged the SSA award and agreed Randall was disabled. However, the plan denied his claim for benefits because he “last worked in Covered Employment in February 2016, and was found to be disabled by the SSA as of October 8, 2018,” i.e., after his coverage ended. Randall sued and the parties filed cross-motions for summary judgment. At the hearing, the court asked why, if Randall alleged he was disabled in 2016, did he request that his SSA benefits begin in 2018. Randall explained in a subsequent letter brief that the SSA had told him he could not receive any benefits from 2016-18 because he received workers’ compensation benefits during that time period. Thus, he had amended his application to reflect a 2018 start date. With this information, the court ruled that there were genuine issues of material fact regarding the start date of Randall’s disability and denied both parties’ motions. In doing so, the court ruled that the plan “acted arbitrarily and capriciously by failing to investigate the reason for the change in Randall’s disability onset date when evaluating Randall’s application.” The court stated that the plan had based its decision on that change and “should have inquired why Randall’s onset date was changed and taken that information into consideration in its deliberations.” Because the plan had not conducted an adequate examination of Randall’s claim, the court ordered that “this matter be remanded to the Pension Plan for further review.”

Fourth Circuit

Learn v. The Lincoln Nat’l Life Ins. Co., No. 6:20-CV-00060, 2024 WL 1183676 (W.D. Va. Mar. 19, 2024) (Judge Norman K. Moon). Plaintiff Robert Learn was the Regional Director of Outpatient Rehabilitation at Centra Health, Inc. in Lynchburg, Virginia when he stopped working in 2017 due to symptoms of thyroid disease. He applied for benefits through Centra Health’s long-term disability employee benefit plan, which was insured by defendant The Lincoln National Life Insurance Company. Lincoln approved Learn’s claim, but terminated his benefits in 2019, asserting that he no longer met the plan’s definition of disability. Learn unsuccessfully appealed to Lincoln and then filed this action. The parties filed cross-motions for summary judgment which were decided in this order. The parties agreed that the appropriate standard of review was abuse of discretion because the plan conferred discretionary authority on Lincoln to determine benefit eligibility. Under this standard, the court ruled that Lincoln did not adequately consider the evidence presented by Learn. Learn presented evidence from several doctors demonstrating objective decline in his cognitive abilities due to his “wildly fluctuating” thyroid levels, but none of these doctors’ names appeared in the denial, nor did Lincoln describe any of their assessments of Learn’s diagnoses, impairments, and ability to work. Lincoln also did not address multiple affidavits submitted by Learn from his friends and family attesting to his decline, which it had failed to provide to its reviewing physicians. The court further dismissed Lincoln’s argument that it focused on objective evidence, noting that Lincoln itself had told Learn that objective evidence was not required. In any event, Learn had provided “ample objective evidence” in the form of neurocognitive test results showing “impaired sustained attention and mnestic dysfunction.” Lincoln criticized that testing for lacking validity measures, but the court found “there is no evidence of symptom exaggeration or suboptimal effort by Mr. Learn.” As for whether Lincoln’s decision-making process was “reasoned and principled,” the court ruled that Lincoln “arbitrarily walled off” consideration of Learn’s appeal from the prior time period when Lincoln had approved benefits. Lincoln’s physicians only reviewed records from after the denial date even though Learn’s thyroid fluctuations prior to that date “contributed to lasting and sustained objective cognitive decline” afterward. In short, “Lincoln did not engage with Mr. Learn’s evidence and medical opinions that his wildly fluctuating thyroid levels over years caused permanent cognitive decline.” Lincoln’s decision was thus not the result of a “fair and searching process.” The court granted Learn’s summary judgment motion, denied Lincoln’s, ordered Lincoln to pay Learn back benefits, and permitted Learn to file an application for costs and reasonable attorney’s fees.

Sixth Circuit

Akans v. Unum Life Ins. Co. of Am., No. 3:23-cv-79, 2024 WL 1200301 (E.D. Tenn. Mar. 20, 2024) (Judge Travis R. McDonough). Jeffrey Akans formerly worked as an equipment manager for Harrison Construction and participated in a long-term disability (LTD) plan sponsored by Harrison and insured by Unum Life Insurance Company of America. Akans ceased working in 2018 and submitted a claim for LTD benefits based on his relapsing-remitting multiple sclerosis. Unum approved his benefits beginning in September 2018 under the plan’s “own occupation” provision, notifying Akans that he would be subject to continuing review. In April 2019, Akans’ claim for Social Security disability benefits was approved. In November 2021, following its second review of Akans’ disability status. Unum informed him that it had determined that he was not disabled from performing his own occupation and it was terminating his benefits. Akans appealed, submitting letters of support from two of his treating physicians and additional testing. Unum upheld its decision to terminate benefits and Akans filed suit and moved for judgment on the administrative record. Applying a de novo standard of review of Unum’s decision, the court found that the record demonstrated that Akans could not perform his light-work occupation due to his multiple sclerosis and associated symptoms of “extreme fatigue and dominant spasticity,” which prevented him from functioning safely cognitively or physically. The court found that Akans’ treating neurologist had issued opinions to this effect both before and after Unum terminated his benefits, and that testing supported that his cognitive abilities had declined. The court quite rightly pointed out that opinions from a urologist and a retinal specialist that Akans was not disabled from a urological or optical standpoint were irrelevant to his “fatigue, muscle spasticity, cognitive issues and gait disturbances, which are the reasons he went on disability.” And the court quite logically gave greater weight to the opinion of Akans’ treating neurologist than to the opinions of the doctors whose specialties were so mismatched to the issue at hand. The court was also unpersuaded by the opinions of Unum’s reviewing doctors and disagreed that the record evidence supported their conclusions that Akans’ “symptoms on a good day demonstrate that Akans can work on any day.” The court also faulted Unum for questioning “the validity of the opinions of Akans’s testing as well as his self-reported symptoms,” noting that although “Unum was not required to examine Akans, this lack of examination renders Unum’s claim reviewers’ criticism of his symptoms and testing less persuasive.” Accordingly, the court granted judgment in favor of Akans, concluding that he had met his burden of proving that he was disabled, and that Unum had incorrectly terminated his benefits.

Parks v. Lincoln Nat’l Life Ins. Co., No. 22-12814, 2024 WL 1228968 (E.D. Mich. Mar. 21, 2024) (Judge Shalina D. Kumar). Plaintiff Angie Parks worked as a sales representative in a call center and had a history of anxiety and depression. She stopped working in July of 2020 and submitted a claim for benefits to defendant Lincoln National Life Insurance Company, the insurer of her employer’s long-term disability benefit plan. Lincoln paid benefits for a short period but then terminated them, contending that Parks no longer met the definition of disability. Parks unsuccessfully appealed and then brought this action. The parties filed cross-motions for judgment, which the court decided under the default de novo standard of review. The court first determined “the scope of this dispute.” Lincoln denied Parks’ claim because “the medical evidence did not support restrictions and limitations rendering Parks unable to perform the main duties of her occupation,” but in its briefing Lincoln raised “new reasons” for why Parks’ claim was properly denied. It contended that Parks did not personally visit her doctor – she had telehealth appointments – and thus she did not have the “regular care of a physician” under the plan. Lincoln also argued that the Social Security Administration’s denial of Parks’ application for disability benefits showed that she was “not totally disabled,” and that Parks “never identified ‘specific functional limitations’ from her mental health condition or ‘delineated each of [her occupation’s] Main Duties’ that her mental health condition precluded her from performing.” The court rejected all of these arguments because Lincoln did not assert them in its denial letter. The court then turned to the evidence in the record and found by a preponderance of the evidence that Parks had met her burden of proving disability. The symptoms from which she suffered while Lincoln was paying her claim continued after Lincoln stopped. She continued having “intense depression, anxiety, and mood swings, and even developed new symptoms such as panic attacks and loss of appetite.” Lincoln argued that Parks reduced her psychiatric appointments to once per month, which showed she improved. However, the court stated there was “no basis for the Court to conclude factually that one cannot both have a work-precluding psychiatric condition and rather infrequent treatment changes. Nor does Lincoln provide any basis for the idea that the severity of a psychiatric condition positively correlates with the frequency and intensity of psychiatric treatment.” The court also cited Parks’ low GAF score, mental status findings, and persistence of symptoms despite medication as support for her claim. The court further rejected Lincoln’s argument that Parks submitted insufficient objective evidence, noting that the plan did not require it and Parks’ condition was not susceptible to it. Thus, the court granted Parks’ motion, denied Lincoln’s, and ordered Lincoln to pay back benefits. It also allowed Parks to file a motion for attorney’s fees.

Vandivier v. Corning Inc. Benefits Comm., No. 5:23-CV-71-KKC, 2024 WL 1197868 (E.D. Ky. Mar. 20, 2024) (Judge Karen K. Caldwell). Plaintiff Lee Vandivier worked for Corning Inc. for about 25 years before stopping in 2019 due to deep vein thrombosis. He eventually went through three amputation procedures on his left leg, and suffered from other medical conditions as well. He submitted claims under Corning’s employee short-term and long-term disability benefit plans, which were both approved by the insurer of the plans, Metropolitan Life Insurance Company. However, MetLife denied Vandivier’s claim for “total and permanent disability benefits” under Corning’s pension plan, which required him to be “unable to engage in any substantial gainful activity.” Vandivier sued and filed a motion for judgment, as well as a motion to strike defendants’ supplement to the administrative record. The court addressed the motion to strike first. Vandivier argued that defendants supplemented the record hours after he filed his motion for judgment, and thus he was prejudiced in the preparation of his motion. The court disagreed and denied the motion, ruling that there was no prejudice because Vandivier had the documents at issue (the short-term and long-term disability claims files) before he even filed his complaint. Furthermore, Vandivier himself could have moved to supplement the record with the claim files, but chose not to. The court then addressed the merits of Vandivier’s total and permanent disability claim under the “arbitrary and capricious” standard, which the parties agreed was the appropriate standard. Vandivier argued that even if the court accepted the findings of MetLife’s reviewing physician, it should still rule in his favor because that physician’s restrictions and limitations were not even compatible with the Social Security Administration’s definition of sedentary work capacity. However, the court stated that the SSA “itself recognizes that ‘a finding that an individual has the ability to do less than a full range of sedentary work does not necessarily equate with a decision of ‘disabled.’’” Thus, lack of sedentary work capacity “does not necessarily render him totally and permanently disabled under this ERISA plan.” This left the issue of what work Vandivier could perform. Vandivier contended that MetLife’s analysis of this issue was flawed because it did not hire a vocational expert. The court ruled that MetLife was not required to do so, and noted that Vandivier did not offer a vocational report in support of his claim either. Furthermore, the court stated, “The objective medical evidence indicates that Vandivier can sit a whole day and stand and walk for up to one hour per day. He can climb stairs, and he can lift, carry, push, and pull up to five pounds.” This was consistent with a determination that “Vandivier’s physical limitations do not create ‘such a broad impairment as to preclude [him] from engaging in other suitable occupations.’” Vandivier cited to medical records from his treating physicians opining that he “could not stand or walk at all during an eight-hour workday and could not lift or carry anything,” but the court rejected them because MetLife’s review was more recent and considered additional evidence. Furthermore, none of Vandivier’s doctors responded to MetLife when it provided its report to them for comment. As a result, “the Court finds that MetLife’s decision resulted from a deliberate, principled reasoning process and was supported by substantial evidence,” and thus denied Vandivier’s motion.

Eighth Circuit

Conti v. Lincoln Nat’l Life Ins. Co., No. Civ. 22-1579 (JWB/JFD), 2024 WL 1216386 (D. Minn. Mar. 21, 2024) (Judge Jerry W. Blackwell). Plaintiff Christina Conti filed suit against Lincoln National Life Insurance Co., the insurer and administrator of the disability benefit plan in which she was a participant, after Lincoln terminated her long-term disability (LTD) benefits. Applying a de novo standard of review, the court concluded that “it is more likely than not that Conti remained unable to perform her job in the months after her benefits were terminated” and that Lincoln therefore improperly terminated her benefits. As an initial matter, the court rejected Lincoln’s argument that Conti was required to supply continuous proof of her inability to work, finding no such requirement in the plan. This mattered because “Lincoln never told Conti what proof of her physical limitations she failed to supply,” nor did Lincoln “require Conti to undergo a functional capacity or similar examination of her physical abilities, even though the Plan authorizes such a demand and Conti’s refusal would be grounds to terminate her claim.” The court found that “Lincoln impermissibly converted Conti’s disability process into a ‘guessing game,’” which was “not reasonable under the circumstances and weighs against denying benefits.” Weighing the totality of evidence, the court found that “Conti’s fibromyalgia, multiple arthralgias, and small fiber neuropathy, her repeated reports of symptoms and limitations consistent with those conditions, and Dr. Palguta’s years-long acceptance of Conti’s reports as precluding her ability to work make it more likely than not that Conti remained unable to perform her job” as of the date that Lincoln terminated her benefits. Moreover, the court noted that none of Conti’s providers found her not credible and none opined that her mental condition was the reason she could not work. Nor did her failure to follow every recommended treatment undermine her credibility. Moreover, the court found that the fact that she went camping or traveled to see medical providers in other states did not mean she could sustain that level of activity continuously. The court also found credible Conti’s treating physician, who had diagnosed her with severe fibromyalgia in 2019 after she reported extensive pain and showed tenderness in all eighteen trigger points used to diagnose the condition. Indeed, the court pointed out that the reviewing doctors failed to appreciate that “Conti’s history of normal and unremarkable examination results reinforced fibromyalgia as the likely culprit.” The court additionally found Conti’s disability supported by her award of Social Security disability benefit award and by Lincoln’s previous award of benefits based on information related to her fibromyalgia that did not significantly change between Lincoln’s award and termination of her benefits. Despite the court’s nuanced analysis of Conti’s condition and its many criticisms of Lincoln’s own analysis, the court remanded to Lincoln to determine whether Conti also qualified for benefits under the “any occupation” plan standard applicable after 24 months of benefits. The court noted that it would assess attorney’s fees and the exact amount of interest to be awarded for the months in which Conti was wrongfully denied benefits after the parties submitted briefs or reached an agreement on these matters.

Whitehouse v. Unum Life Ins. Co. of Am., No. CV 22-1736 (JWB/ECW), 2024 WL 1209230 (D. Minn. Mar. 21, 2024) (Judge Jerry W. Blackwell). This second disability benefit ruling by Judge Blackwell this week involves Sara Whitehouse, who is a licensed physician and a full-time addiction medicine specialist at a hospital in St. Paul, Minnesota. The hospital was a COVID-19 patient deployment center, and in March of 2020 Whitehouse contracted COVID. She returned to work shortly thereafter but continued having difficulty with breathing and extreme fatigue. She left work again and kept treating with her physicians. During this time she was diagnosed by the Mayo Clinic as meeting criteria for chronic fatigue syndrome and central sensitization disorder. Eventually she progressed through a part-time return to work program and was able to return to work full-time in 2022. Whitehouse submitted claims for short-term and long-term disability benefits under her employer’s disability benefit plan, which was insured by defendant Unum Life Insurance Company of America. Unum approved her short-term claim but only approved partial benefits for her long-term claim. Whitehouse unsuccessfully appealed and then brought this action, where the parties filed cross-motions for judgment. Under de novo review, the court criticized the report by Unum’s doctor, Scott Norris. The court stated that his credibility was questionable because he accepted subjective symptom reports when they favored Unum but rejected them when they favored disability. Dr. Norris also failed to analyze Whitehouse’s symptoms collectively, focused too strictly on a lack of specific work restrictions, and “dismissed certain materials as ‘not time-relevant,’” which was “hardly a full and credible evaluation of Whitehouse’s claim.” Furthermore, Dr. Norris inappropriately faulted Whitehouse for “failing to provide objective evidence to verify symptoms that Unum defines as unverifiable, and relies on her history of normal test results despite Whitehouse being diagnosed with a condition that accounts for individuals with a normal test history.” The court then examined the medical records and determined that they supported Whitehouse’s claim that she suffered from chronic pain and severe fatigue throughout the disability period. Her symptoms were consistently documented, her physicians agreed that she had restrictions and limitations, and she complied with all prescribed treatment, including the pain management treatment program that allowed her to finally return to work. The court thus determined that Whitehouse was disabled and entitled to benefits, and granted her motion. Finally, the court addressed ancillary matters, ruling that (1) Whitehouse’s Time Off Time Away earnings functioned as accumulated sick leave under the policy, not as disability earnings, and thus they could be deducted from the benefits owed; (2) Whitehouse was entitled to prejudgment interest; and (3) Whitehouse could file a motion for attorney’s fees, which would likely be successful because “a prevailing ERISA plaintiff rarely fails to receive fees.”

Eleventh Circuit

Cottingim v. ReliaStar Life Ins. Co., No. 8:22-CV-1235-CEH-CPT, 2024 WL 1156483 (M.D. Fla. Mar. 18, 2024) (Judge Charlene Edwards Honeywell). Plaintiff Kevin Cottingim was Vice President of Human Resources for EmployBridge, LLC. He stopped working in 2020 based on a primary diagnosis of vascular dementia with behavioral disturbance and submitted a claim for short-term and long-term disability benefits under EmployBridge’s benefit plans, which were insured by defendant ReliaStar. ReliaStar denied Cottingim’s claims and this action ensued, in which the parties filed cross-motions for summary judgment. ReliaStar denied Cottingim’s claim because neuropsychological testing showed that although he had some deficits he performed “within normal limits,” and he did not pursue treatment recommended by his providers. Cottingim responded that ReliaStar’s decision did not account for the demands of his occupation, which required higher than average cognitive functioning, and did not acknowledge his cognitive decline after 2019. The court applied the Eleventh Circuit’s six-step Blankenship test. Cottingim argued that ReliaStar did not have discretionary authority in interpreting the plan, and thus the court should give its decisions no deference. However, the court determined that Cottingim did not get past the first step of the test, which required him to prove that ReliaStar’s decision was “de novo wrong,” and thus declined to address his standard of review argument. The court ruled that ReliaStar appropriately used the “e-DOT” vocational resource to determine Cottingim’s occupation, and that he had not demonstrated he was unable to perform that occupation. The court found that Cottingim’s brain scans were “essentially unchanged,” his neuropsychological testing was largely normal, and “medical records regarding his memory loss and inability to focus appear primarily related to his making a disability claim, as opposed to any ongoing regular treatment and care.” As a result, “the medical evidence submitted shows that his condition stayed the same or improved…and failed to reflect disabling restrictions or limitations.” The court dismissed statements from Cottingim’s co-workers, noting that they were not still employed by EmployBridge, and emphasized that Cottingim had not submitted any documents from EmployBridge showing a decline in performance. The court also suggested that any difficulties Cottingim might have had at work were due to alcoholism, which he had refused to treat, thus separately justifying the denial of his claims. As a result, the court granted ReliaStar’s motion for summary judgment and denied Cottingim’s.

Life Insurance & AD&D Benefit Claims

Seventh Circuit

Wojcik v. Metropolitan Life Ins. Co., No. 22-CV-06518, 2024 WL 1214570 (N.D. Ill. Mar. 21, 2024) (Judge Sharon Johnson Coleman). Jerold Wojcik had accidental death insurance through an ERISA-governed employee benefit plan when he died in August of 2019. He was found in his car, which had caught on fire. He was “in a pugilistic stance” with a vaping device in his hand; next to him was an open gasoline can and an empty bottle of Prozac. The medical examiner ruled that Mr. Wojcik died of “thermal and inhalation injuries due to a car fire,” and had “a higher than therapeutic level of Prozac in his blood,” but the “manner of death” was “undetermined” because it was unclear if the fire had been set intentionally. Mr. Wojcik’s wife, plaintiff Sharon Wojcik, submitted a claim for benefits to the insurer of the plan, MetLife, but MetLife denied it, contending that there was no proof that Mr. Wojcik’s death was an “accident” as defined by the plan. Ms. Wojcik filed this action and the parties filed cross-motions for summary judgment. The court applied the “arbitrary and capricious” standard of review because the plan granted MetLife discretionary authority to determine benefit eligibility. MetLife contended that Ms. Wojcik had the burden of submitting written proof that Mr. Wojcik’s death happened by accident, and she did not meet that burden because she did not submit anything in support of her claim, even after she was given multiple extensions to appeal. Thus, MetLife stated that it was reasonable to rely on the medical examiner’s report, which stated that the manner of death was “undetermined.” The court agreed: “Plaintiff never submitted evidence, even though the Plan required her to do so, which showed the death happened by accident.” Ms. Wojcik argued that MetLife had a duty to collect additional evidence showing that the death was an accident, but she cited no authority for this proposition, and the court stated it was “well settled in this circuit that an insurance company may reasonably rely on its administrative records in the absence of additional evidence when determining coverage.” The court also ruled that MetLife’s conflict of interest was insufficient to tip the balance in Ms. Wojcik’s favor. Thus, the court granted MetLife’s summary judgment motion and denied Ms. Wojcik’s.

Pension Benefit Claims

Ninth Circuit

Mills v. Molina Healthcare, Inc., No. 2:22-cv-01813-SB-GJS, 2024 WL 1216711 (C.D. Cal. Mar. 20, 2024) (Judge Stanley Blumenfeld, Jr.). In this case, participants in a defined contribution pension plan sponsored by their employer and the plan’s administrator, Molina Healthcare, challenged certain indexed target date funds (TDFs), claiming that Molina and other Molina-related fiduciaries, as well as the plan’s investment advisor, flexPath Strategies LLP, breached their duties in selecting and retaining these TDFs. Ultimately, after the court granted in part and denied in part motions to dismiss and certified a class of all participants invested in any of these indexed TDFs sponsored by flexPath, the case proceeded to a bench trial. In this decision, the court issued a final judgment in defendants’ favor because plaintiffs failed to prove that the plan suffered a loss and therefore failed to prove damages. The court was persuaded that the flexPath TDFs did not cause plan losses because they outperformed all three comparator benchmark TDFs selected by defendants’ expert, Dr. John Chalmers, as well as most other to-retirement TDFs. The court found unreliable the opinion of plaintiffs’ expert, Dr. Gerald Buetow, who concluded that the plan had suffered significant losses based on his selection of four other indices that, as it turned out, were the top four TDF performers during the period. Among other reasons for rejecting Dr. Buetow’s opinion, the court found his analysis unreliable because, although Dr. Buetow performed quantitative analysis to determine the likely top performers during the relevant period using data points available at the beginning of the period, he did not then select the indices that received top scores using his own calculations. Nor could he explain to the court’s satisfaction why he rejected the top scorers. Therefore, relying on Dr. Chalmers’ opinion, the court found that the plan suffered no losses. On this basis, the court saw no need “to determine whether any Defendant breached its fiduciary duties of prudence, loyalty, or compliance with plan documents or engaged in a prohibited transaction, whether any such breach or prohibited transaction occurred within the repose period, or whether any defendant may be vicariously liable for a co-defendant’s breach.” The court did briefly address the other remedy, disgorgement, that the plaintiffs sought in addition to damages. The court found that plaintiffs failed to explain or quantify what exactly they were seeking in this respect other than the fees that flexPath received in connection with the challenged investments, and failed to show that the investment management fees were linked specifically to the challenged investments or obtained through the use of plan assets.   

Plan Status

Third Circuit

Verdone v. Rice & Rice, PC, No. 23-CV-04224-RMB-AMD, 2024 WL 1191981 (D.N.J. Mar. 20, 2024) (Judge Renée Marie Bumb). This decision begins, “Sibling squabbles can get downright nasty.” Plaintiff Catherine Verdone and defendant Nancy Rice are sisters and lawyers. Rice established the law firm Rice & Rice with the assistance of Verdone, who was employed by the firm. Rice also established a real estate holding company called CTARP, which Verdone alleged was created “to provide tuition assistance and retirement income” to the firm’s employees, including Verdone. Verdone alleged that she invested in CTARP and had an oral agreement with Rice that she would receive 35% of its net profits when she retired. When Verdone informed Rice she was planning on retiring earlier than planned, a dispute arose between the sisters regarding their rights and obligations relating to CTARP. Their relationship at work deteriorated as well, with Verdone accusing the firm of questionable billing and accounting practices. Eventually the firm terminated Verdone, and she filed this action in New Jersey state court “raising claims ranging from whistle-blower retaliation under CEPA to anticipatory repudiation of the Retirement Agreement to unjust enrichment.” Defendants, which included Rice, the law firm, Rice’s law partner, and CTARP, removed the case to federal court asserting federal question jurisdiction under ERISA and diversity jurisdiction. Verdone filed a motion to remand and defendants filed a motion to dismiss, both of which were decided in this order. The court first addressed whether Verdone’s claims were preempted by ERISA. The court determined that the retirement agreement involving CTARP was not an ERISA benefit plan. The court agreed with defendants that ERISA benefit plans could be created through oral representations, and there were “some facts suggesting Rice created an ERISA retirement plan for Verdone’s benefit.” However, this was not enough because “no reasonable person could ascertain the procedures for receiving the benefits under the Retirement Agreement.” There were “no allegations on how the retirement income would be paid to Verdone,” and no explanation for how Verdone could challenge a benefit denial decision. Furthermore, the alleged retirement plan had no ongoing administrative scheme, the assets were not held in trust, and there was no evidence that the plan had named fiduciaries or procedures for amendment, all of which were required by ERISA. In short, “Defendants’ request for removal based on ERISA’s complete preemption has a lot of blanks that they have not filled in.” The court further ruled that it did not have diversity jurisdiction because of the forum defendant rule; Verdone had named Rice’s law partner as one of the defendants and she was a New Jersey citizen. The court rejected defendants’ argument that the partner had been fraudulently joined, finding her to be a reasonable defendant under Verdone’s state law claims. Thus, the court determined that it had no jurisdiction over the matter. It granted Verdone’s motion to remand and denied defendants’ motion to dismiss as moot, but declined to award Verdone fees relating to the removal.

Sixth Circuit

Johnson v. Dodds Bodyworks, Inc., No. 2:23-CV-741, 2024 WL 1254125 (S.D. Ohio Mar. 25, 2024) (Judge Edmund A. Sargus, Jr.). Plaintiff Harold Jeffery Johnson worked for defendant Dodds Bodyworks for more than 30 years. He alleged he was injured in an auto accident in 2021, after which he informed Dodds that he needed a six-week medical leave of absence to recover. Dodds then terminated him. Johnson contended that upon termination he was entitled to an incentive bonus, retirement benefits, and a Ford F-150 truck, and that Dodds failed to pay up. The claim for retirement benefits was based on an oral conversation between Johnson and one of Dodds’ owners, who assured Johnson that “a written agreement was unnecessary” because “her word was golden.” Johnson filed this action in Ohio state court alleging nine state law causes of action. Dodds removed the case to federal court, citing ERISA preemption, and moved to dismiss Johnson’s breach of contract claim. The court determined that it did not have jurisdiction over the action because ERISA did not apply. “Here, the only benefit Johnson seeks which could even be remotely characterized as a ‘benefit plan’ would be the alleged oral agreement for the Retirement Payment, where he would receive 25% of Dodds’ business value upon retirement or termination. This is not a ‘benefit plan’ under ERISA.” The court explained that Johnson’s “one-time” retirement payment “does not require any administrative procedures, is not ongoing, and requires Dodds ‘[t]o do little more than write a check,’” which was insufficient to qualify as a benefit plan under ERISA. The court thus did not reach the merits of Dodds’ motion and denied it as moot. It declared the removal improper and remanded the case to state court for further proceedings.

Pleading Issues & Procedure

Sixth Circuit

McKee Foods Corp. v. BFP, Inc., No. 23-5170, __ F. App’x __, 2024 WL 1213808 (6th Cir. Mar. 21, 2024) (Before Circuit Judges McKeague, Readler, and Davis). The Sixth Circuit pithily introduced this action as follows: “McKee Foods Corporation (‘McKee’) maintains that appellee BFP, Inc. d/b/a Thrifty Med Plus Pharmacy (‘Thrifty Med’) has engaged in a three-year campaign to get reinstated into McKee’s Prescription Drug Program (‘PDP’) pharmacy network – a campaign that has included Thrifty Med filing multiple administrative complaints against McKee and actively lobbying to change Tennessee pharmacy laws in its favor.” McKee filed this action, contending that it was entitled to injunctive and declaratory relief under ERISA because ERISA preempts Tennessee’s “any willing pharmacy” laws, which arguably required McKee to include Thrifty Med in its approved network of pharmacies, which it did not want to do. However, in February of 2023 the district court dismissed McKee’s action as moot because Tennessee had amended its laws to “effectively nullify the actual controversy that supported the origination of this case.” (Your ERISA Watch reported on this decision in our February 15, 2023 edition.) McKee appealed. The Sixth Circuit agreed with McKee that the new amendments “did not render its claims moot because the new law did not substantially and materially amend the pertinent statutory language[.]” The court ruled that “both provisions state that [pharmacy benefit managers] or covered entities shall not interfere with a patient’s right ‘to choose a contracted pharmacy or contracted provider of choice[.]’” The amendments were more specific as to how covered entities were prohibited from interfering, but these changes were only “relatively minor adjustments” which “do not move the needle as it relates to harm.” McKee also challenged the district court’s ruling that its claims were moot under the “voluntary cessation” doctrine. Again, the Sixth Circuit agreed. Thrifty Med argued that Tennessee had dismissed its administrative complaints and it had stipulated that it had no “current plans” to seek reinstatement in McKee’s plan. However, the court noted that “the burden to demonstrate mootness through voluntary cessation is substantial,” and “Thrifty Med’s argument falls short. Read liberally, its stipulations suggest a suspension of conduct, not the termination of conduct.” The Sixth Circuit examined Thrifty Med’s actions in pursuing relief and concluded that Thrifty Med was simply not credible: “Thrifty Med’s timing in ceasing its efforts to obtain reinstatement raises suspicion that it may not be genuine.” Most notably, Thrifty Med only contended it was not planning on seeking reinstatement after Tennessee passed amendments “explicitly applicable to ERISA plans,” which “would seemingly benefit its cause” and thus “renders the timing suspect.” Thus, the Sixth Circuit reversed the district court’s mootness ruling and remanded for further proceedings in which the district court will presumably address McKee’s preemption argument.

Seventh Circuit

Williams v. Noble Home Health Care, LLC, No. 2:23-CV439-PPS/JEM, 2024 WL 1193630 (N.D. Ind. Mar. 20, 2024) (Judge Philip P. Simon). Plaintiff Lynette Williams worked for defendant Noble Home Health Care, which terminated her in 2019. She alleges that when she was fired Noble failed to offer her continuation of her health insurance coverage in violation of ERISA’s COBRA provisions. Noble filed a motion to dismiss in which it did not challenge the substantive adequacy of Williams’ claims, but instead argued that Williams’ complaint violated Federal Rule of Civil Procedure 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” In a brief order, the court denied the motion, ruling that Williams’ complaint “passes the ‘two easy-to-clear hurdles’ imposed by Rule 8(a)(2) in that the pleading provides sufficient detail to give Noble fair notice of her claims and the basis for them, and plausibly suggests that Williams has a right to relief.” Noble complained that Williams used “conclusory, inflammatory, and accusatory” language in her complaint, but the court considered this to be a “startling irony” because Noble was “throwing stones from a glass house.” For example, Noble contended that Williams “presents a fantastical tale of depravity and abject cruelty that might find a place in Hollywood, were it actually true.” Indeed, the court considered Noble to be “the worse offender, using expressions such as ‘wildly offensive,’ ‘wild-eyed allegations,’ and ‘utter nonsense of the highest order.’” The court cautioned that “a party’s argument is never enhanced by unnecessary vehemence.”

Provider Claims

Fourth Circuit

Innovations Surgery Ctr., P.C. v. UnitedHealthcare Ins. Co., No. 8:21-CV-2680-PX, 2024 WL 1214003 (D. Md. Mar. 21, 2024) (Judge Paula Xinis). Plaintiffs Innovations Surgery Center and Center for Gyn Surgery challenge defendant UnitedHealthcare’s denials and partial payment of benefit claims arising from nearly 600 gynecological and surgical procedures that plaintiffs performed on an out-of-network basis on 277 patients insured by United. Plaintiffs asserted a host of state law and ERISA-based claims. Among these were claims for failure to pay benefits in violation of ERISA and a claim for statutory penalties under ERISA. Previously, United filed a motion to dismiss, which the court partially granted. In its order the court directed the parties to exchange informal discovery “to ascertain which of the 590 disputed claim lines were covered by ERISA versus non-ERISA Plans, and whether the Insureds had assigned recovery rights to Plaintiffs.” United ultimately agreed to produce “60 representative Plans which covered some, but not all, of the 590 claim lines that are the subject of this case.” Defendants then filed a new motion to dismiss which was decided in this order. The court granted United’s motion as to plaintiffs’ direct claims under state law because United had not been unjustly enriched and there was no implied-in-fact agreement between plaintiffs and United. As for the claims assigned to plaintiffs by their patients, the court ruled that plaintiffs had not alleged any “specific representations, inducements, or statements on which the Insureds relied” which might form a basis for fraudulent conduct in violation of the Maryland Consumer Protection Act. On the ERISA claims, United argued that plaintiffs had not exhausted their administrative remedies, but the court ruled that it was premature to rule on this defense. The court noted that plaintiffs had alleged their efforts in pursuing their claims, “which included pursuing Defendants’ ‘internal appeals mechanism’ and informal channels such as letters, emails, phone calls, and proposed meetings.” Furthermore, not all plan documents had been produced, which made it difficult to determine if their procedures had been followed. Next, United argued that it could not be held liable for statutory penalties under ERISA. The court agreed, ruling that such claims could only be made against plan administrators, not claim administrators like United. Furthermore, the court ruled that plaintiffs could not pursue statutory penalties because the patient assignments did not include a right to pursue such penalties; it only authorized plaintiffs to seek payment of benefits. In the end, only plaintiffs’ claims for breach of contract under non-ERISA plans and unlawful denial of benefits under ERISA plans survived. The remaining claims were dismissed, although the court left open the possibility that plaintiffs could amend their complaint on a subset of their claims if discovery warranted it.

Seventh Circuit

Affiliated Dialysis of Joliet, LLC v. Health Care Serv. Corp., No. 23 CV 15086, 2024 WL 1195607 (N.D. Ill. Mar. 20, 2024) (Judge Lindsay C. Jenkins). Plaintiff Affiliated Dialysis of Joliet, LLC provides dialysis treatment to patients, some of whom are insured by defendant HCSC. Affiliated had a contract with HCSC, which it terminated in 2020, although it continued to provide treatment to HCSC insureds. According to Affiliated, after 2020, instead of reimbursing Affiliated at out-of-network rates, HCSC continued reimbursing Affiliated at the lower rates in the terminated contract, even though Affiliated sought and received authorization for all of the services it provided. Affiliated brought this action in Illinois state court alleging violation of implied contract, or, in the alternative, quantum meruit. HCSC removed the case to federal court based on ERISA preemption and Affiliated moved to remand. The court noted that HCSC had paid Affiliated for its services, and thus “[t]he dispute here is whether HCSC paid Affiliated enough for those services… Courts have consistently held that an insurer’s alleged failure to adequately pay a medical provider constitutes a separate, independent legal duty that is incompatible with ERISA preemption[.]” HCSC contended that its contract with Affiliated controlled the correct rate. However, “the Agreement, which is focused on payment rates for specific services, has nothing to do with the ERISA plan. HCSC’s legal duty to adequately pay Affiliated is separate from its legal duty to cover the treatment as required under the ERISA plan.” In short, “Because this is a dispute over the rate of payment as opposed to the right of payment,” the court granted Affiliated’s motion and remanded the case. However, the court determined that even if HCSC’s removal was incorrect, it was reasonable, and thus refused to award Affiliated fees, noting that “the distinction between the right to payment and rate of payment has not been thoroughly explained in this district, nor explicitly adopted by the Seventh Circuit.”

It’ s been another slow-ish week here in ERISA Watch territory, with no case of the week. But keep reading for contrasting approaches (and outcomes) in pension investment fee cases, the latest in the Cloud case challenging the NFL’s disability benefit plan, and a case involving the NBA’s COVID-19 vaccination policy.

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

Breach of Fiduciary Duty

Third Circuit

Binder v. PPL Corp., No. 5:22-CV-00133-MRP, 2024 WL 1096819 (E.D. Pa. Mar. 12, 2024) (Judge Mia R. Perez). Plaintiffs are current and former employees of defendant PPL Corporation who allege that PPL and other defendants breached their fiduciary duties under ERISA by failing to prudently monitor the investments in PPL’s retirement plan. Specifically, plaintiffs allege that defendants should have terminated the plan’s arrangement with the Northern Trust Focus Funds, which caused the plan to unnecessarily invest in higher-cost shares with “unusual transaction costs and a high turnover rate.” Defendants filed a motion to dismiss. At the outset, the court noted that ERISA has a six-year statute of repose, and thus plaintiffs were time-barred from arguing that defendants’ selection of the Focus Funds in 2013 itself was a breach of fiduciary duty. The court also denied defendants’ request for judicial notice of 24 exhibits because they were outside the pleadings. On the merits, defendants argued that the complaint’s first count for imprudent monitoring and retention of the Focus Funds did not provide “meaningful benchmarks” for comparison. The court noted that the Third Circuit had not yet adopted a meaningful benchmark pleading requirement, and thus relied on the Third Circuit’s decision in Sweda v. University of Pennsylvania for guidance. The court ruled that plaintiffs’ allegations in this case were similar to those in Sweda because they had “provided substantial circumstantial evidence” that the Focus Funds were underperforming. The court again relied on Sweda in rejecting defendants’ argument regarding the second count of the complaint, which alleged that defendants imprudently retained higher-cost shares when lower-cost shares were available. The court ruled that plaintiffs had sufficiently alleged that a large plan like PPL’s, with over $1 billion in assets, could easily obtain lower-cost shares due to its bargaining power, but did not do so, thus resulting in the plan paying “150% to 350% more in fees.” Finally, the court ruled that because plaintiffs’ first two counts survived, its third derivative claim that defendants failed to monitor plan fiduciaries survived as well. The court thus denied defendants’ motion to dismiss in its entirety.

Eighth Circuit

Rodriguez v. Hy-Vee, Inc., No. 4:22-CV-00072-SHL-WPK, 2024 WL 1070982 (S.D. Iowa Mar. 7, 2024) (Judge Stephen H. Locher). Plaintiff Theresa Rodriguez and other employees of the Midwest grocery store chain Hy-Vee brought this class action alleging that Hy-Vee and other defendants breached their fiduciary duties to plaintiffs by overcharging recordkeeping fees in Hy-Vee’s 401(k) plan. Defendants filed a motion to exclude the testimony of plaintiffs’ expert and a motion for summary judgment. The court granted defendants’ summary judgment motion. The court stated that the record showed defendants “had adequate processes in place to monitor and evaluate the reasonableness of recordkeeping fees throughout the class period.” This included retaining an outside consultant, obtaining benchmarking reports six times over a four-to-five-year period, and initiating an “extensive RFI [request for information] process” in 2020. Defendants also reduced fees during the relevant time period, “which points toward prudence.” The court also ruled that plaintiffs “have not identified meaningful benchmarks against which to compare the Plan’s recordkeeping fees.” Plaintiffs’ expert identified four allegedly similar plans, but the court ruled that these were not an “apples-to-apples comparison” because the administrators of those plans, Vanguard and Fidelity, declined to respond to Hy-Vee’s RFI, thereby demonstrating that “Hy-Vee literally could not have gotten the same services for the same price from those providers.” The court also criticized plaintiffs’ expert for only measuring fees for one year and calculating those fees using a different methodology. Even if plaintiffs’ comparators did provide a meaningful benchmark, the court ruled that they were insufficient to prove that the fees were “excessive relative to the market as a whole.” The court stressed plaintiffs’ higher burden at the summary judgment stage: “[T]he court views the existence of comparator plans as a necessary but not independently sufficient condition for a plaintiff to survive summary judgment. The plaintiff also must produce evidence showing, among other things, where the defendant’s plan falls in the market as a whole for similar plans…. Plaintiffs here have not done so.” The court also dismissed plaintiffs’ concerns regarding the operation of the plan, ruling that defendants’ actions were the result of deliberate choices that properly evaluated costs and benefits. In short, the court concluded that “no reasonable factfinder could conclude that Defendants breached their fiduciary duties in their handling of recordkeeping fees.” Because the court granted defendants’ summary judgment motion, it denied as moot their motion to exclude plaintiffs’ expert.

Snyder v. UnitedHealth Grp., No. Civil 21-1049 (JRT/DJF), 2024 WL 1076515 (D. Minn. Mar. 12, 2024) (Judge John R. Tunheim). This case begins with a rather blunt conclusion: “Because a reasonable trier of fact could reasonably conclude that Plaintiff Kim Snyder caught Defendant UnitedHealth Group Inc. with its hand in the cookie jar, the Court will substantially deny United’s motion for summary judgment.” The court found “genuine disputes of material fact as to whether United breached its duties of prudence and loyalty…by investing its employees’ 401(k) savings in underperforming Wells Fargo (‘Wells’) funds for more than a decade and allowing United’s business relationship with Wells to influence that allegedly imprudent retention.” The court also found genuine issues of material fact “as to whether Wells’s fees were reasonable, and thus whether United engaged in a prohibited transaction.” The court rightly referred to the factual background as a “tangled” web involving the 401(k) plan’s target date fund default investment, which changed during the relevant period from a conservative, lower risk, lower reward approach (the “equal weighted TDF”) to what United refers to as an “enhanced TDF,” both of which were Wells Fargo products. The basic problem, as the plaintiff saw it, was that the equal weighted TDF had chronically underperformed and, although United apparently recognized the need to select a different default investment, it took too long to switch to the enhanced TDF, which was another Wells Fargo fund that plaintiff alleged was inappropriately selected. Indeed, despite not ranking in the top three recommendations from the Committee tasked with selecting a new fund, the Wells Fargo enhanced TDF was awarded the lucrative plan contract. The plaintiff alleged that this selection was improperly influenced by the fact that United had lucrative contracts with Wells Fargo as its health insurance provider, relationships that plaintiff alleges were expressly considered during the TDF selection process. United, unsurprisingly, disputed most of this, but disputes of this sort do not summary judgment make. Thus, after a somewhat lengthy and detailed analysis of the claims and the evidence pointed to by both sides, the court concluded that plaintiff could “proceed on her fact-bound claims that United acted imprudently and disloyally when it retained and re-selected Wells as the Plan’s default TDF provider,” as well as her claim that these funds were not reasonable investments for the plan. The court also concluded that plaintiff had adduced sufficient evidence to show that United had engaged in a prohibited transaction in selecting the Wells Fargo replacement fund, and that there were material disputes between the parties as to the reasonableness of the fees paid with respect to the fund, an issue on which defendants bore the burden of proof. The court, however, agreed with United that plaintiff had not shown that United “violated any enforceable provision of a governing plan document,” concluding that plaintiff had failed to show that defendants acted inconsistently with the plan’s investment policy statement. The court also concluded that the individual members of the board of directors were not fiduciaries because they had no discretionary authority or control over the plan and no duty to monitor the other plan fiduciaries. Thus, the court dropped the board as a defendant in the action. Although it was not quite a complete victory for plaintiff, it was a significant one and the bulk of the case will proceed.

Disability Benefit Claims

Second Circuit

Johnson v. The Hartford, No. 22-CV-06394 (PMH), 2024 WL 1076685 (S.D.N.Y. Mar. 12, 2024) (Judge Philip M. Halpern). Melinda Johnson, a nurse at a residential treatment facility, applied for long-term disability benefits due to the side effects of medication prescribed for the effects of smoke inhalation following a fire at the facility. Hartford approved the benefits for the 24-month “own occupation” period, and also initially approved benefits thereafter under the “any occupation” provision of the plan. However, after Hartford retained both a private investigator to conduct surveillance of Ms. Johnson and a doctor to conduct a medical examination, as well as a second medical doctor to conduct a “peer review” by speaking to Ms. Johnson’s psychiatrist, United terminated her benefits, and affirmed this decision on administrative appeal. Plaintiff filed suit for benefits and the parties cross-moved for summary judgment. Although plaintiff argued that Hartford’s decision was arbitrary and capricious because its five reviewing doctors’ determinations were contradicted by plaintiff’s treating physician, the court concluded that this line of reasoning had been rejected by the Supreme Court in Black & Decker Disability Plan v. Nord. Instead, the court concluded that “[s]ubstantial evidence in the form of an independent medical examination report and multiple independent peer review reports support Defendant’s determination.” On this basis, the court granted Hartford’s motion for summary judgment.

Fifth Circuit

Cloud v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, No. 22-10710, __ F.4th __, 2024 WL 1143287 (5th Cir. Mar. 15, 2024) (per curiam, dissent by Circuit Judge James E. Graves, Jr.). In June of 2022, after a week-long bench trial, the district court in this case issued a lengthy, scathing decision in which it excoriated the National Football League’s retirement benefit plan for its shoddy claim handling. The court issued judgment in favor of plaintiff Michael Cloud on his claim that he was entitled to reclassification for the highest level of disability benefits available under the plan due to his neurological impairments. (Your ERISA Watch named that decision one of the five best of 2022.) The court also awarded Cloud $1.2 million in attorney’s fees. However, last year the Fifth Circuit overturned Cloud’s win, as we chronicled in our October 11, 2023 edition. Although the Fifth Circuit commended the district court for “expos[ing] the disturbing lack of safeguards to ensure fair and meaningful review of disability claims brought by former players,” and for “chronicling a lopsided system aggressively stacked against disabled players,” these compliments did not translate into success for Cloud. The court ruled that the plan did not abuse its discretion in denying Cloud’s reclassification request because Cloud did not make an appropriate showing of “changed circumstances” as required by the plan. Cloud petitioned for rehearing, but the Fifth Circuit denied his request in this order. Ordinarily we would not report on such a purely procedural decision, but this one contained a dissent by Judge James E. Graves, Jr., who voted in favor of rehearing, stating that “the record does not support the panel’s conclusion.” Judge Graves, like the courts before him, again emphasized that the record paints a “bleak picture” of how the plan handles appeals: “The record indicates that nobody really reads any individual applications or administrative records, there’s really no oversight, and a paralegal for outside counsel drafts the denial letters and adds language, often incorrect, that the board never considered or said, as acknowledged by the panel.” Judge Graves argued that Cloud had overcome these obstacles and proven that he had in fact established a “change in circumstances.” Judge Graves contended that the record showed that (a) Cloud’s reclassification application included new disabilities and conditions, (b) his prior award was solely based on his favorable Social Security decision and not his additional supporting information, which he was free to resubmit, and (c) the plan should have considered his worsening symptoms. Judge Graves also stated that the panel erred in ruling that Cloud had forfeited his claim for changed circumstances because the letter on which it relied only showed that Cloud wanted to make an argument in the alternative in support of his claim, and did not intend to waive anything. Furthermore, the plan itself made no such finding of forfeiture. As a result, Judge Graves “disagree[d] with the panel that Cloud ‘did not’ and ‘cannot’ demonstrate changed circumstances. Accordingly, I dissent from the denial of rehearing en banc.”

Sixth Circuit

Harmon v. Unum Life Ins. Co. of Am., No. 23-5619, __ F. App’x __, 2024 WL 1075068 (6th Cir. Mar. 12, 2024) (Before Circuit Judges Griffin, Thapar, and Nalbandian). Plaintiff Joey Harmon injured his back lifting a treadmill while working as a facilities technician for 24 Hour Fitness. He submitted a claim for benefits under 24 Hour Fitness’ long-term disability benefit plan, which Unum paid for two years but then terminated, determining that Harmon could perform sedentary work. Harmon filed this lawsuit, the district court granted Unum’s motion for judgment on the record, and Harmon appealed. On appeal, the Sixth Circuit noted that the standard of review was “arbitrary and capricious” because the benefit plan gave Unum discretionary authority to determine benefit eligibility. Harmon contended that Unum’s decision was unreasonable because Unum should not have relied on its in-house file-reviewing physician, Unum misinterpreted his doctor’s opinions, and Unum’s vocational analysis was faulty. The court rejected these arguments. The court ruled that the in-house physician’s review was proper because Harmon denied back pain, had a full range of motion in his spine, and had not been prescribed pain medication since 2016. The Social Security Administration had also found that Harmon could perform light work. The court also agreed with the district court that Unum reached out to Harmon’s doctor to resolve any issues with his opinion, and that Unum’s vocational report properly considered that Harris had moved from Memphis to Miami. Finally, the court dismissed Harmon’s concerns regarding Unum’s conflict of interest, ruling that Unum’s weekly reports tracking the opening and closing of claims were insufficient to show that Unum was biased. The Sixth Circuit thus affirmed the district court’s judgment in favor of Unum.

Life Insurance & AD&D Benefit Claims

Sixth Circuit

Bowles v. Estes Express Lines Corp., No. 2:22-CV-2660-SHL-ATC, 2024 WL 1142073 (W.D. Tenn. Mar. 15, 2024) (Judge Sheryl H. Lipman). Zrano Bowles worked for defendant Estes Express Lines and was enrolled in its ERISA-governed optional life insurance employee benefit plan. He married plaintiff Lisa Bowles in 2015 and designated her as his beneficiary under the plan. However, in 2017, premiums stopped being paid for the insurance, although the record was unclear as to why. After Mr. Bowles died in 2021, Ms. Bowles submitted a claim for benefits under the plan, which was denied by the plan’s insurer, Guardian Life Insurance Company of America, on the ground that Mr. Bowles’ coverage had lapsed due to non-payment of premiums. Ms. Bowles brought this action and filed a summary judgment motion against Estes, asserting that Estes breached its fiduciary duty under 29 U.S.C. § 1132(a)(3). Estes filed a motion to strike Ms. Bowles’ motion and a cross-motion for summary judgment asserting that it had done nothing wrong. The court denied Estes’ motion to strike, observing that because Ms. Bowles could not make a claim for benefits against Guardian under § 1132(a)(1)(B), her motion was properly filed against Estes under § 1132(a)(3) as it was her “exclusive remedy” under ERISA. On the merits, the court ruled that Estes was a fiduciary under ERISA because it was the plan administrator. The court then addressed Ms. Bowles’ two arguments for why Estes breached its duties. First, the court ruled that Estes did not breach its fiduciary duty by failing to deduct premiums and remit them to Guardian because these actions were “ministerial” tasks and not “discretionary” ones. If there was a failure by Estes, it was “remedied when Estes notified Mr. Bowles of the lapse in coverage” through his wage statements, which showed “$0.00” for premiums paid, and on Estes’ benefits portal, which informed Mr. Bowles that he had “waive[d] coverage” for his optional life insurance. Second, the court ruled that Estes did not breach a fiduciary duty by failing to notify Mr. Bowles that his coverage would terminate because it had no such duty and made no misrepresentations. Furthermore, as explained above, Estes informed Mr. Bowles that his coverage had lapsed. As a result, the court granted Estes’ motion for summary judgment and denied Ms. Bowles’ motion.

Medical Benefit Claims

Ninth Circuit

Scott D. v. Anthem Blue Cross Life & Health Ins. Co., No. 23-CV-05664-RS, 2024 WL 1123210 (N.D. Cal. Mar. 14, 2024) (Judge Richard Seeborg). Plaintiff Scott D. challenges defendant Anthem’s denial of his claim for mental health benefits related to treatment his son received at an outdoor behavioral health program and a residential treatment center. He brought two claims under ERISA, one for unlawful denial of benefits and one for breach of fiduciary duty. Defendant Anthem moved to dismiss, arguing that plaintiff’s breach of fiduciary duty claim was duplicative of his claim for benefits, and that plaintiff should not be permitted to bring a claim under the Mental Health Parity and Addiction Equity Act. The court noted the “difficulty in establishing whether claims are duplicative at the pleading stage” and ruled that it would be premature to dismiss plaintiff’s breach of fiduciary duty claim. The court stated that plaintiff was seeking relief under this claim that might not be available in his claim for benefits, such as reformation of the plan and equitable surcharge, and thus the claims were not duplicative. As for Anthem’s Parity Act argument, plaintiff responded that he was not asserting a separate Parity Act claim. Instead, he was asserting a Parity Act violation “as an element of his breach of fiduciary duty claim.” Plaintiff alleged that Anthem had violated the Parity Act because it applied less stringent coverage requirements for equivalent intermediate care medical facilities, such as skilled nursing facilities, than it did for mental health residential treatment facilities. The court ruled that these allegations “go beyond the merely conclusory or formulaic” and were “enough to plead an as-applied Parity Act violation.” The court thus denied Anthem’s motion to dismiss.

Lou v. Accenture United States Grp. Health Plan, No. 22-cv-03091-HSG, 2024 WL 1122427 (N.D. Cal. Mar. 14, 2024) (Judge Haywood S. Gilliam, Jr.). Joe Lou, a participant in a healthcare plan sponsored and administered by his employer, Accenture, filed suit after Accenture denied some of his claims for benefits for in-home skilled nursing care for his minor daughter, A.L., who suffered from a rare genetic disorder. Before the court were cross-motions for summary adjudication. At issue was the impact of a separation agreement and waiver that Mr. Lou had signed after filing suit on his claims for coverage. Although Mr. Lou communicated with Accenture in an effort to carve out his claims from the release, Accenture refused to change the language in the way suggested by Mr. Lou, who ultimately signed the agreement with the original language. Ultimately, the court concluded that Mr. Lou had released his claims. The court relied most heavily on the very broad language of the release, which stated that it released “any and all claims of any nature whatsoever,” as well as plaintiffs’ conduct, which the court saw as clearly reflecting plaintiffs’ understanding that the release bore on his claims. The court therefore granted Accenture’s motion for judgment and denied plaintiff’s motion.

Solis v. T-Mobile U.S., Inc., No. 2:23-cv-04024, 2024 WL 1117897 (C.D. Cal. Mar. 14, 2024) (Judge Stephen V. Wilson). Two participants in the T-Mobile healthcare plan, Jannet Solis and Michael Ortega, challenged denials of their benefit claims by United Healthcare, the claims administrator, for out-of-network hiatal hernia repair and gastric sleeve surgery. Plaintiffs first objected to some of the evidence United included in the administrative record. The court held that transcripts of call recordings pertaining to the medical procedures, the National Correct Coding Initiative Policy Manual, and United’s own policies were properly included and therefore overruled plaintiffs’ objections with respect to these materials. The court also agreed with defendants that two expert declarations and some additional medical information that plaintiffs submitted after the bench trial should be excluded. The court found that United’s unilluminating denials did not meet the applicable standard for a “meaningful dialogue” in the Ninth Circuit, thus warranting application of a “tempered abuse of discretion” standard, but not de novo review, as the “procedural violations were not sufficiently flagrant to frustrate ERISA’s underlying purposes.” Having cleared these matters, the court moved on to the merits of the denials. The court had no problem affirming United’s denial of coverage for the gastric sleeve surgery under the plan’s exclusion for weight loss surgery except in narrow circumstances. The court likewise held that United’s conclusion that the hiatal hernia repair was sufficiently related to the weight loss surgery to be excluded was reasonably supported by the evidence. The court therefore concluded that United did not abuse its discretion in denying coverage entirely for the procedures at issue.  

Pension Benefit Claims

Second Circuit

Kowal v. Hooker & Holcombe, Inc., No. 21-CV-1299-LJV, 2024 WL 1094959 (W.D.N.Y. Mar. 13, 2024) (Judge Lawrence J. Vilardo). The two plaintiffs in this case are the daughters of Lynn Keller, who participated in a pension plan sponsored by her employer, HealthNow. Keller stopped working in 2015 when she was diagnosed with cancer, after which she successfully applied for disability benefits. She died in 2020, shortly after receiving pension benefit election forms. Keller completed those forms, but plaintiffs contended that she made a “clerical error” by selecting a life annuity as her pension benefit instead of a benefit with a fixed term or survivor benefit. Defendants, the claim administrators of the plan, refused to “rectify the clerical error,” so plaintiffs sued under ERISA. Defendants filed a motion to dismiss, contending first that plaintiffs lacked standing because they were not “beneficiaries” as defined by ERISA. The court quickly rejected this argument, ruling that this was not a jurisdictional argument, but “an argument that [plaintiffs] do not have a cause of action under ERISA.” The court then addressed defendants’ second argument, which was that plaintiffs failed to state a claim. The court agreed with defendants that plaintiffs “are not entitled to benefits for several reasons.” First, Keller clearly indicated that she had selected a life annuity benefit. Second, even if that election was invalidated, under the terms of the plan her benefits “would ‘default’ to a life annuity under section 5.3 of the Plan,” so plaintiffs still would not be entitled to benefits. Finally, the court noted that even if it ruled that Keller’s benefit election should be changed to an option urged by plaintiffs, Keller died before those benefits were scheduled to commence, which under the plan meant the selection was “void and of no effect.” The court thus granted defendants’ motion to dismiss.

Mauer v. National Basketball Ass’n, No. 23-CV-4937 (JPO), 2024 WL 1116848 (S.D.N.Y. Mar. 13, 2024) (Judge J. Paul Oetken). Plaintiff Kenneth Mauer is a former NBA referee. Before the 2021 season, the league and Mauer’s union implemented a COVID-19 policy that required referees to be vaccinated. Mauer applied for a religious exemption, which was denied on the ground that his beliefs were “not sincerely held.” Mauer was suspended and ultimately terminated in 2022. He and two other terminated referees have sued the league arguing that their terminations were unlawful. He also filed this action challenging the denial of his claim for pension benefits. The pension plan committee denied Mauer’s claim because, due to his other litigation, it was uncertain whether he might return to work as a referee, and thus the committee concluded that he had not “‘attained a distribution event,’ ‘such as retirement or termination of employment,’ within the meaning of the Plan.” Mauer filed a motion for summary judgment, and defendants filed a motion to dismiss. The court granted defendants’ motion in part, ruling that the NBA and NBA Services Corp. were not proper defendants. As for the merits, the court first determined that the appropriate standard of review was “arbitrary and capricious” because the plan “clearly vests the Committee with broad discretionary authority to interpret ambiguous language in the Plan and determine eligibility for benefits.” Under this standard of review, the court examined the key plan language, which provided that benefits are paid upon “termination of employment.” Defendants argued that this term was ambiguous given Mauer’s circumstances, because he might return to work, and thus the court should adopt its interpretation under the deferential standard of review. The court disagreed, ruling that the plan “does not require that severance of the employer-employee relationship be permanent and irrevocable.” Indeed, “The Plan explicitly contemplates that a former referee could be re-hired by the employer,” which undermined defendants’ position. Thus, the court ruled that “Mauer experienced a termination of employment and is thus entitled to his pension benefits in accordance with…the Plan.” The court granted Mauer’s summary judgment motion against the plan and ordered the parties to confer on a proper remedy.

Pleading Issues & Procedure

Seventh Circuit

Bangalore v. Froedtert Health, Inc., No. 20-CV-893-PP, 2024 WL 1051104 (E.D. Wis. Mar. 11, 2024) (Judge Pamela Pepper). This putative class action, in which plaintiff argues that defendants violated their duties of loyalty and prudence under ERISA in the administration of a retirement benefit plan, languished on the docket while the Supreme Court decided Hughes v. Northwestern University. After that decision, which vacated a key Seventh Circuit ruling relied upon by defendants, defendants refiled their motion to dismiss. After briefing on that motion was completed, plaintiff sought leave to file a second amended complaint based on a recent decision from the Seventh Circuit interpreting Hughes, Albert v. Oshkosh Corp. Then, the Seventh Circuit issued its ruling on remand in Hughes, after which plaintiff sought to file a new and different second amended complaint, arguing that the new Hughes decision “narrowed the holding” in Albert and “clarified the pleading standard in ERISA excessive fee cases like this one.” Faced with plaintiff’s motion to file a second amended complaint and defendants’ motion to dismiss his first amended complaint, the court granted plaintiff’s motion and denied defendants’ motion as moot. Defendants contended that the new Hughes decision by the Seventh Circuit did not announce a new standard, and that plaintiff’s proposed second amended complaint was futile because his amendments did not “salvage” his complaint. However, the court ruled that “defendants’ contention…is difficult to reconcile with the fact that in the Seventh Circuit’s own words, Hughes II described a ‘newly formulated pleading standard.’” The court further ruled that it was “premature” to rule that plaintiff’s amendments were futile because the new standard had just been announced. The court acknowledged that granting plaintiff’s motion would mean a new motion to dismiss from defendants, which would cause delay, and possibly some prejudice, but such prejudice “does not warrant denial of the plaintiff’s motion to amend. The plaintiff correctly points out what the defendants seem reluctant to acknowledge – that since the plaintiff filed the initial complaint in June 2020, the standard for pleading ERISA breach of fiduciary duty claims has shifted…. Given that shift, the plaintiff’s request for leave to amend the complaint is reasonable. The delay is regrettable, but it is due in great part to the time it has taken for the issue to become settled in the Seventh Circuit.”

Tenth Circuit

Pension Benefit Guar. Corp. v. Automatic Temp. Control Contractors, Inc., No. 2:22-CV-00808-CMR, 2024 WL 1093774 (D. Utah Mar. 13, 2024) (Magistrate Judge Cecilia M. Romero). In this action the Pension Benefit Guaranty Corporation (PBGC) seeks to enforce a final agency determination that defendant Automatic Temperature Control Contractors, Inc. (ATCC) failed to pay pension benefits to four plan participants. ATCC filed a motion for leave to amend its answer to add a counterclaim and three affirmative defenses, centered around an argument that the plan contained “a scrivener’s error.” ATCC alleged that it should be allowed to equitably reform its plan so that the participants at issue did not “benefit from a windfall.” PBGC opposed the motion, arguing that amending would be futile. The court started by noting that ATCC’s motion was timely filed and there was no evidence of bad faith. The court ultimately declined to engage in the futility analysis proposed by PBGC because it determined that this analysis would be better addressed on dispositive motions. In doing so, the court relied on case law from the Third and Seventh Circuits addressing the viability of equitable plan reformation which it “understands…to, at this pleading stage, allow for the Counterclaim and second affirmative defense to be asserted.” However, the court “expresse[d] no opinion on the viability of the allowed amendments,” and observed that the standard for proving equitable plan reformation was “hefty.”

Provider Claims

Second Circuit

Gordon Surgical Grp. v. Empire HealthChoice HMO, Inc., No. 1:21-CV-4796-GHW, 2024 WL 1134682 (S.D.N.Y. Mar. 14, 2024) (Judge Gregory H. Woods). The plaintiffs in this action are three affiliated general surgery providers who provided services to 126 patients who were insured by defendant Empire. In their complaint they alleged two federal and five state law causes of action seeking “over $1 million in reimbursement of their charges for 291 ‘medical claims’ governed by 72 different health insurance plans”; 209 of those claims are governed by ERISA. Empire filed a motion to dismiss, which a magistrate judge recommended granting, and plaintiffs objected. The district court judge largely upheld the recommendation in this order. The court first ruled that plaintiffs had failed to exhaust their ERISA-governed claims. Plaintiffs had alleged two examples of exhaustion, but the judge ruled that this was insufficient to establish exhaustion as to all 209 of their claims. The court acknowledged the “administrative nightmare of sorting through and complying with these various appeals processes,” but just because “exhausting one’s administrative remedies may be time-consuming or burdensome does not obviate Plaintiffs’ need to do so.” The court further agreed with the magistrate judge that plaintiffs had not established the futility of engaging in those appeals. Next, the court ruled that plaintiffs did not adequately allege that they were entitled to benefits because they again pleaded “illustrative examples” and did not “specify the terms of the plans that allegedly entitle them to a particular benefit.” The court also ruled that plaintiffs lacked statutory standing as to 84 of the claims because they did not adequately plead that the patients had assigned their benefits to plaintiffs. The court found that Empire had not waived these provisions, the direct payment provisions in the plans did not render the anti-assignment provisions ambiguous, and the plans’ requirements regarding paying for emergency services did not override the anti-assignment provisions. The court further upheld the magistrate judge’s ruling that 37 of the claims were time-barred, although it disagreed with the magistrate’s reasoning on this issue. The magistrate judge ruled that Empire’s failure to cite the relevant time limitations in its denials, which is a violation of ERISA regulations, did not stop the limit from triggering. The district court, on the other hand, concluded that it was an open question as to “whether any regulatory noncompliance suffices to toll the plan limitations period.” Nevertheless, “the Court need not reach the issue” because plaintiffs “have not adequately pleaded that the Defendants violated the DOL Regulation as to each allegedly denied medical claim,” and thus it was proper to dismiss the claims. The court then dismissed plaintiffs’ breach of fiduciary duty claims because they were based on the same rejected allegations supporting their benefit claims, and declined to exercise supplemental jurisdiction over plaintiffs’ state law claims. Finally, the court deviated from the magistrate judge’s recommendation of dismissal with prejudice, even though plaintiffs had been allowed to amend twice and had conducted discovery. The court agreed with plaintiffs that dismissal with prejudice was unwarranted because their prior amendments did not have the benefit of the court’s input. However, the court cautioned plaintiffs that “the principal defects in the complaint stem from the fact that Plaintiffs have attempted to consolidate their claims for 291 medical claims that arise under 72 separate health insurance plans in a single federal action containing only seven claims for relief. The Court has substantial concerns that these claims have been improperly joined into a single federal action.” The court also requested separate briefing regarding its “substantial concerns regarding whether the Court has supplemental jurisdiction over the claims under non-ERISA plans.”

Third Circuit

Atlantic Spine Center, LLC v. Deloitte, LLP Grp. Ins. Plan, No. 2:23-CV-00614-BRM-JBC, 2024 WL 1092526 (D.N.J. Mar. 12, 2024) (Judge Brian R. Martinotti). Plaintiff Atlantic Spine Center filed this action seeking benefits arising from lumbar surgery it performed on a patient insured by Deloitte, LLP’s medical benefit plan. The plan moved to dismiss, arguing first that Atlantic did not have standing because it did not plausibly allege that it had been assigned the right to sue on behalf of its patient. Atlantic responded that the patient’s checking of a box on a health insurance claim form constituted evidence of an assignment, and that the plan had waived its standing argument because it had already made a direct payment to Atlantic for its services. The court ruled in Atlantic’s favor on this issue, finding that its allegations regarding assignment were sufficient to assert derivative standing at this early stage of litigation. The court then turned to the plan’s argument that Atlantic failed to state a claim for relief. The plan contended that pursuant to a summary of material modifications it was authorized to “calculate reimbursement for out-of-network services using a variety of different methods,” and that it was not obligated to pay “100% of whatever an out-of-network provider deems as its usual and customary charge,” as alleged by Atlantic. Atlantic argued that the language on which the plan relied was invalid because it conflicted with the summary plan description (SPD). The court ruled in the plan’s favor on this issue, stating that “although Plaintiff has identified a specific provision of the SPD which purportedly entitles it to relief, it has failed to plead how its demand for reimbursement is covered under the terms of the provision.” Specifically, while the SPD referenced “competitive fees in the geographic area,” Atlantic “does not specify any data or data source suggesting its fees are similar to other providers in the geographic area[.]” Instead, Atlantic only provided “conclusory” allegations that its “fees are competitive based on unnamed sources.” The court thus granted the plan’s motion to dismiss but gave Atlantic leave to amend to provide further factual support for its “comparable fee” allegations.

Standard of Review

Ninth Circuit

Rampton v. Anthem Blue Cross Life & Health Ins. Co., No. 23-CV-03499-RFL, 2024 WL 1091194 (N.D. Cal. Mar. 5, 2024) (Judge Rita F. Lin). In this dispute over ERISA-governed life insurance benefits, plaintiff Cheryl Rampton filed a motion to determine the standard of review. The court agreed with Rampton that the proper standard was de novo, regardless of whether the plan granted defendant Anthem discretionary authority to determine benefit eligibility, because California’s insurance code voided any such grant. Anthem conceded the application of California law, but “expresse[d] concern that a ruling on the standard of review would constitute an advisory opinion.” The court characterized this concern as “unfounded. There is undeniably an active case or controversy concerning the denial of ERISA benefits here, on which the parties are to begin briefing the merits shortly. In similar cases, courts routinely determine the standard of review as a threshold matter prior to consideration of the merits.” Anthem further contended that Rampton’s “waiver theory of liability” obviated the need to determine the standard of review because the insurance coverage at issue “never went into effect.” The court ruled that this argument did not alter the standard of review because, regardless of Rampton’s theory of liability, she was still seeking benefits under an ERISA plan and thus “the Court must still decide whether the insurer’s denial of benefits should be reviewed de novo or for abuse of discretion.” Anthem also filed a sur-reply regarding discovery, but the court refused to rule on the issues raised in it because they were unrelated to the standard of review: “Though the Court understands Anthem’s concerns, the Court cannot entertain motions raised in the sur-reply briefing for a different motion.”

Venue

Ninth Circuit

Ennis-White v. Nationwide Mut. Ins. Co., No. 2:23-CV-01863-APG-DJA, 2024 WL 1137942 (D. Nev. Mar. 14, 2024) (Judge Andrew P. Gordon). The plaintiffs in this case are spouses proceeding pro se; one is a participant in an employee disability income benefit plan administered by defendant Nationwide. They filed a complaint in Nevada state court asserting eight claims against various defendants and alleging that “[t]his is not an ERISA suit and does not seek any remedies under ERISA with respect to the suit.” Nevertheless, Nationwide removed the suit to federal court based on ERISA preemption and filed a motion to sever the claims against it and transfer them to the Southern District of Ohio pursuant to the plan’s forum selection clause. Plaintiffs filed a motion to remand the entire case. The court agreed with Nationwide that the claims were preempted by ERISA because plaintiffs alleged “leveraging of the ERISA products” managed by Nationwide, and the complaint was “replete with additional allegations confirming that the plaintiffs’ claims against Nationwide relate to Ennis’ benefits under the Plan.” The court also agreed that the claims against Nationwide should be transferred to the Southern District of Ohio pursuant to the forum selection clause because such clauses are “prima facie valid” and plaintiffs had not alleged that the clause was “induced by fraud, overreaching, or bad faith.” Finally, the court severed the claims against Nationwide from the remaining claims against the other defendants. The court ruled there was no federal question jurisdiction over the remaining claims, because they were based on state law, there was no diversity jurisdiction because one of the defendants was a Nevada resident, and there was no supplemental jurisdiction because the claims against Nationwide were not “part of the same case or controversy” as the claims against the other defendants. Thus, the court granted Nationwide’s motion in full and denied plaintiff’s motion to remand as moot.

Staffing Servs. Ass’n of Ill. v. Flanagan, No. 23 C 16208, 2024 WL 1050160 (N.D. Ill. Mar. 11, 2024) (Judge Thomas M. Durkin)

Temporary employees have it tough. They often do the same work as their colleagues, but because they are not official full-time employees at their workplace they are often not entitled to the same pay or benefits their peers receive.

The State of Illinois recently attempted to ameliorate this situation by amending its Day and Temporary Labor Services Act. Among the amendments was Section 42, which requires temporary staffing agencies to “pay temporary employees who work at a particular site for more than ninety days within a year at least the same wages and ‘equivalent benefits’ as the lowest paid, comparable, directly-hired employee employed by the third-party client.” Section 42 further allows agencies to pay “the hourly cash equivalent of the actual cost benefits” as an alternative to providing “equivalent benefits.”

This action followed. The plaintiffs, which include two temporary staffing trade associations and three staffing agencies, sued Jane R. Flanagan, the Director of the Illinois Department of Labor. The plaintiffs filed a motion for a preliminary injunction, raising several issues, but because this is Your ERISA Watch, we will focus on plaintiffs’ ERISA-related argument.

In short, plaintiffs contend that Section 42’s “equivalent benefits” provision is preempted by ERISA because it “relates to” their employee benefit plans by having a “connection with or reference to” those plans. The court agreed with plaintiffs: “Plaintiffs have made a sufficiently strong showing that Section 42 fits the bill. The provision ‘dictates the choices facing ERISA plans’… Agencies must determine the value of many different benefit plans and then determine whether to provide the value in cash or the benefits themselves by modifying their plans or adopting new ones. Such a direct and inevitable link to ERISA plans warrants preemption.”

The Department of Labor objected, arguing that Section 42’s cash alternative allowed the law to escape preemption because it enabled the plaintiffs to comply without involving their benefit plans. The court rejected this argument, however, citing the Supreme Court’s decision in Egelhoff v. Egelhoff. In Egelhoff, the Supreme Court ruled that a Wisconsin law requiring payment of non-probate benefits to certain beneficiaries was preempted, even though the law had an opt-out provision, because it required administrators to tailor their plans to individual jurisdictions rather than apply them uniformly as intended by ERISA.

The court ruled, “The same applies here. Even with the choice between providing benefits or cash, Section 42 denies agencies the ability to administer its ERISA plans uniformly.” The court noted that the law placed a burden on plaintiffs that other states did not. For their Illinois employees, plaintiffs would have to “collect and analyze benefit plan information from their client for a comparable employee, compare those plans to their existing plans, and determine whether to modify or supplement their plans, calculate and pay the cost of any benefits they do not presently provide, or both.”

The court further ruled that the cash alternative was insufficient to evade ERISA preemption because Section 42 “requires agencies to make judgment calls about employees’ eligibility and level of benefits on an individualized and ongoing basis.” Under the law, agencies have to “engage in qualitative assessments” involving “complex and particularized” and “inherently discretionary” determinations regarding seniority, working conditions, similarity of work, and other factors. These determinations required “an ongoing administrative scheme to meet the employer’s obligation,” which “raises the very concern ERISA preemption seeks to address.”

In support of its position, the Department of Labor cited cases involving other laws that had survived preemption challenges, but the court found them inapposite. The court distinguished prevailing wage cases, observing that “such statutes are afforded particular deference because public works projects are an area of traditional state regulation.” Furthermore, such laws often used a schedule of wages which made compliance straightforward, unlike “the discretionary and individualized determinations that Section 42 requires.”

The court also distinguished other minimum compensation laws cited by the Department because they “did not involve the discretionary decision-making required by Section 42.” San Francisco’s minimum healthcare benefit requirement imposed a minimal burden of “mechanical record-keeping,” while New York’s home health aide compensation law, while “somewhat closer,” allowed compliance through “any mix of wages and benefits that equaled or exceeded the specified minimum rate.” Thus, it paled in comparison to Section 42’s “ongoing, particularized, discretionary analysis.”

As a result, the court ruled that Section 42 had an impermissible “connection with” ERISA plans, rendering it preempted. As for a remedy, because plaintiffs (a) had made a strong showing of likelihood of success on the merits, (b) were “poised to incur significant costs of compliance and face the possibility of penalties,” and (c) “point[ed] to the potential departure of agencies from Illinois if Section 42 goes into effect,” the court ruled that the balance of equities weighed in their favor. Thus, the court granted plaintiffs’ motion for a preliminary injunction based on their ERISA preemption argument.

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

Arbitration

Fourth Circuit

Franklin v. Duke Univ., No. 1:23-CV-833, 2024 WL 1048123 (M.D.N.C. Feb. 29, 2024) (Judge Catherine C. Eagles). Plaintiff Joy Franklin, a former employee of Duke University and a participant in its pension benefit plan, sued Duke and its retirement board contending that they have been incorrectly calculating benefits under the plan. Specifically, Franklin alleges that Duke used “outdated and unreasonable actuarial equivalency formulas in violation of ERISA’s actuarial equivalence requirement.” She alleged a claim under ERISA § 1132(a)(2), on behalf of the plan, and under § 1132(a)(3) individually and on behalf of a putative class. Duke filed a motion to (1) dismiss both claims for lack of subject matter jurisdiction, (2) compel arbitration on Franklin’s (a)(3) claim, and (3) dismiss the complaint for failure to state a claim. On the first issue, Duke argued that Franklin had no standing to bring her claims because the plan was a defined benefit pension plan, and thus her claim was barred by the Supreme Court’s decision in Thole v. U.S. Bank, N.A. However, the court distinguished Thole, finding that Franklin had standing because she alleged that she had been injured by a reduction in her benefit, which was more concrete than the claims by the plaintiffs in Thole. On the second issue, Duke argued that while Franklin was not required to arbitrate her (a)(2) claim, the plan obligated her to arbitrate her (a)(3) claim pursuant to a 2021 amendment to the plan. The court disagreed. Although ERISA claims are “generally arbitrable,” the court found “there is no evidence that Ms. Franklin agreed to arbitrate her 29 U.S.C. § 1132(a)(3) claims.” Duke’s plan amendment was thus “unilateral” and “a far cry from mutual agreement.” Indeed, the court stated that “since the Plan gives Duke an unlimited right to amend the Plan to add an arbitration provision, the faux agreement is illusory and unenforceable. It could hardly be clearer that this is not an enforceable agreement to arbitrate under the [Federal Arbitration Act] and under North Carolina law.” Duke argued that ERISA gave it the power to enforce the arbitration provision, but the court ruled that this power did not override the FAA’s requirement that parties agree to arbitration provisions. The court further stated that allowing otherwise would be contrary to ERISA’s statutory policy goal of providing “ready access to the Federal courts.” The court also distinguished Duke’s cited cases, noting that they involved (a)(2) claims on behalf of the plan, not (a)(3) claims brought by individuals such as Franklin. Thus, the court denied the first two of Duke’s three motions. As for Duke’s third motion, for failure to state a claim, the court stated that it “remains under advisement.” It appears that it will remain under advisement for some time because Duke has already appealed this decision. We will of course keep you advised of any rulings by the Fourth Circuit in the matter.

Breach of Fiduciary Duty

Second Circuit

Wong v. I.A.T.S.E., No. 23 CIV. 7629 (PAE), 2024 WL 898866 (S.D.N.Y. Mar. 1, 2024) (Judge Paul A. Engelmayer). Plaintiff Ka-Lai Wong was engaged to Sean McClintock, who unexpectedly passed away in July of 2022. McClintock was a participant in defendant IATSE’s employee benefit plan. Three weeks before his death, McClintock signed, but did not submit, a form designating Wong as his sole beneficiary under the plan. IATSE refused to pay plan benefits to Wong and instead paid them to McClintock’s allegedly estranged parents, who were the default beneficiaries under the plan in the event no designated beneficiary existed. Wong sued, bringing a single claim for breach of fiduciary duty under ERISA. IATSE filed a motion to dismiss. The court addressed each of the three fiduciary duties of loyalty, care, and acting in accordance with plan documents. The court found no breach of the duty of loyalty because Wong did not plead that IATSE acted self-interestedly. Instead, she argued that IATSE’s beneficiary designation process was faulty because it did not “deploy electronic beneficiary designation processes” and did not sufficiently “educat[e] its participants,” which the court deemed insufficient. The court likewise found no breach of the duty of care because Wong did not plead that IATSE misrepresented or materially omitted any relevant facts. Wong argued that IATSE should have told McClintock that he could submit the beneficiary designation form online, but the court ruled that failing to do so did not amount to misconduct or misrepresentation. Finally, the court ruled that IATSE acted in accordance with plan documents. The plan provided, “The Fund will only recognize beneficiary forms that it actually receives before your death,” and Wong was forced to concede that IATSE adhered to this rule. Thus, ERISA required IATSE to pay the benefits to McClintock’s parents, “notwithstanding the possibility of ‘harsh results.’” As a result, the court granted IATSE’s motion to dismiss, with prejudice.

Sixth Circuit

International Union of Painters & Allied Trades Dist. Council No. 6 v. Smith, No. 1:23-cv-502, 2024 WL 1012967 (S.D. Ohio Mar. 8, 2024) (Judge Douglas R. Cole). In this case, a trade union and a number of ERISA fiduciaries who are union officials brought suit challenging the way in which a health and welfare plan for union members is being operated. The cast of characters and allegations are complicated but, in a nutshell, the plaintiffs have sued both the union-side trustees and the employer-side trustees who operate the plan, asserting that they breached their fiduciary duties to the plan by refusing to vote to remove the two union-side trustees even after the union tried to do so and amending the plan to make it quite a bit more difficult to do so. They alleged that the defendants have acted impudently by entrenching the two union-side trustees and that they have acted in a self-dealing manner by having the plan itself pay for the attorney’s fees associated with defending their actions. In this decision, the court addressed a motion for preliminary injunction filed by the plaintiffs, as well as a motion to dismiss filed by the two employer-side trustees and a motion to intervene filed by the plan. With respect to the preliminary injunction, the court was unconvinced following a hearing that plaintiffs had articulated and offered proof of irreparable harm. The court was unpersuaded that plaintiffs had articulated how they might suffer from having defendants continue to vote their own self-interest or from having plaintiffs’ votes diluted, nor had they articulated to the court’s satisfaction how any such harm would not be compensable through money damages. The court was likewise unconvinced by plaintiffs’ arguments that entrenchment was a harm in and of itself, noting that cases cited by plaintiffs dealt with situations where it was harder for both the union and the employers to replace trustees, as distinguished from this case where only the union-side trustees were allegedly entrenched. Moreover, the court found that plaintiffs had not sufficiently shown illegal entrenchment for preliminary injunction purposes, primarily because the court was not convinced that the union’s constitution ought to govern, or that “at-will” removal powers were mandated by or even consistent with ERISA’s principle that loyalty to the plan should be paramount. The court thus denied the motion for preliminary injunction. However, the court granted the motion to dismiss filed by the union trustees, concluding that the trustees were acting as settlors, not as plan fiduciaries, in amending the plan to make it harder to remove the union-side trustees. The court also concluded in a somewhat ipse dixit fashion that the trustees were not acting as fiduciaries when declining to recognize the removal and appointment notice from the union because once they had amended the pan documents, they were no longer required to do so. As far as the allegations that the trustees violated their duties by voting to reimburse the legal expenses of the union trustees in defending the case, the court concluded that this was consistent with ERISA because the legal expenses were not related to a fiduciary breach but were incurred in the management and preservation of the trust and its assets. This ruling clearly does not bode well for plaintiffs on the remainder of their case against the union-side trustees. Finally, the court granted the plan’s motion to intervene, both as of right and as a permissive matter, concluding that the plan was not already a party, its motion was timely, it had an interest in the case that would be impaired absent intervention, and none of the existing parties were advocating for the plan’s interests.    

Discovery

Sixth Circuit

DaVita Inc. v. Marietta Mem. Hosp. Emp. Ben. Plan, No. 2:18-CV-1739, 2024 WL 957734 (S.D. Ohio Mar. 6, 2024) (Magistrate Judge Kimberly A. Jolson). Kidney dialysis provider DaVita brought this ERISA benefits action against an employee medical benefit plan alleging that the plan and its benefit manager MedBen “reimburse[] dialysis services at a depressed rate.” In this order the court addressed three discovery disputes. First, DaVita requested documents from MedBen relating to plan dialysis claims dating back to 2012, but MedBen refused to produce documents prior to 2014. The court agreed with DaVita, ruling that the requested documents were relevant to DaVita’s effort to show how defendants administered dialysis claims over time. MedBen contended that production of these documents would be an undue burden because it was expensive and difficult due to HIPAA protections. However, the court ruled that MedBen did not provide sufficient evidence to support these assertions, especially since MedBen was producing similar documents for later time periods. Next, the court found that DaVita’s request for documents related to MedBen’s other clients was relevant. However, the court was more convinced by MedBen’s burden argument on these documents, because MedBen represented that it had 180 other clients, many of which had multiple plans. The court thus ordered the parties to meet and confer regarding this issue and report back to the court. Second, the court addressed DaVita’s demand for emails and electronically stored information. DaVita contended that defendants had produced very few documents, and sought more information about how they conducted their searches. The court agreed that DaVita’s concerns were “not unfounded,” but again ruled that “the parties must do more to resolve their dispute” and ordered them to meet and confer and file a report. Finally, DaVita complained that defendants had “provided little information on their litigation holds.” The court noted that litigation holds by themselves are not protected by privilege, but “litigation hold letters generally are privileged and not discoverable.” Thus, the court denied DaVita’s motion on this issue, but without prejudice in the event spoliation issues arose at a later time.

Life Insurance & AD&D Benefit Claims

Fifth Circuit

Krishna v. National Union Fire Ins. Co. of Pittsburgh, No. 23-20289, __ F. App’x __, 2024 WL 1049474 (5th Cir. Mar. 11, 2024) (Before Circuit Judges Stewart, Clement, and Ho). As we reported in our June 14, 2023 edition, the district court in this case upheld defendant National Union Fire Insurance Company’s (NUFIC) denial of plaintiff Deepa Krishna’s claim for business travel accident insurance benefits after Krishna’s husband died in a plane crash. The court ruled that Krishna did not meet her burden of proving that her husband’s plane trip was “at the direction of” his employer, which was required under the plan in order to be “business travel” and thus qualify for benefits. Krishna appealed. First, she argued that the district court erred in using the deferential abuse of discretion standard of review because (a) the entities that denied her claim were not authorized to do so, and (b) NUFIC violated ERISA procedural regulations in denying her claim. The Fifth Circuit disagreed, ruling that the employer had delegated discretionary authority to NUFIC, NUFIC was permitted to delegate ministerial tasks to other entities, and NUFIC had made the final decision as required even if the other entities appeared on the denial letterhead. As for Krishna’s procedural argument, the Fifth Circuit applied its “substantial compliance” test and ruled that any delay by NUFIC in denying Krishna’s claim did not harm her, and that she had received a full and fair review of her claim. On the merits of Krishna’s claim, the Fifth Circuit upheld the district court’s ruling that the plan language was not ambiguous and that the husband’s plane trip did not qualify as business travel. Even if the language was ambiguous, the Fifth Circuit held that because NUFIC had discretionary authority, its “interpretation was a reasonable exercise of its ‘interpretive discretion.’” The judgment below was thus affirmed.

Pension Benefit Claims

Sixth Circuit

Emberton v. Board of Trustees of Plumbers & Pipefitters Local 572 Pension Fund, No. 3:21-CV-00757, 2024 WL 900209 (M.D. Tenn. Mar. 1, 2024) (Judge Aleta A. Trauger). Billy Joe Emberton’s wife, Kathy Emberton, brought this action as administrator of Mr. Emberton’s estate after his death against the defendant, an ERISA-governed pension fund. Mr. Emberton was a pipefitter who submitted a claim for early pension benefits in 2018, which the fund initially approved, but then denied, determining that Mr. Emberton was not entitled to benefits because he had not “retired” according to the plan. The plan defined “retire” as “a Participant’s complete cessation of: (i) any kind of work for an Employer, or (ii) any plumbing or pipefitting work in the construction or maintenance industries within the geographical area of the Fund.” Mr. Emberton filed this action in 2021 and the parties submitted cross-motions for judgment. The parties agreed that the “arbitrary and capricious” standard of review applied. Under this standard of review, the court agreed with Ms. Emberton that the fund abused its discretion in ruling that Mr. Emberton did not meet part (i) of the “retire” definition. The record showed that although Mr. Emberton had continued working, his employer was not an “Employer” as defined by the plan, i.e., an employer who had a collective bargaining agreement with the fund. Thus, the court moved on to the issue of whether it should address part (ii) of the “retire” definition. Ms. Emberton argued that the word “or” in between parts (i) and (ii) meant that Mr. Emberton only had to satisfy one of the two parts to be entitled to benefits, and thus there was no need to address part (ii). The fund, on the other hand, did not even address the issue of what “or” meant in its briefing. Furthermore, the court stated that “[n]either party…attempts to construe the definition of ‘Retire’ in light of the Plan as a whole.” The court thus examined other parts of the plan for assistance, as well as a Seventh Circuit decision addressing similar facts. The court noted that “the Plan contains a provision requiring the suspension of benefits for any employee who is reemployed following retirement, under certain circumstances,” which mitigated against Ms. Emberton’s position. Thus, the court ruled that while the “retire” definition’s use of the word “or,” on its own, was ambiguous, it was “rational in light of the plan as a whole” to conclude that the definition meant “that a participant is retired if he is not engaged in (has ceased) ‘(i) any kind of work for an Employer’ and is not engaged in ‘(ii) any plumbing or pipefitting work in the construction or maintenance industries within the geographical area of the Fund.’” Indeed, according to the court, “this interpretation is the only one that makes sense.” As a result, even though the fund “fail[ed] to articulate a legitimate rationale,” its decision was not arbitrary and capricious, and the court thus granted the fund’s motion and denied Ms. Emberton’s.

Pleading Issues & Procedure

Fourth Circuit

Deutsch v. IEC Grp., Inc., No. CV 3:23-0436, 2024 WL 1008534 (S.D.W. Va. Mar. 8, 2024) (Judge Robert C. Chambers). Plaintiff Daniel Deutsch, proceeding pro se, filed a form complaint in West Virginia state court alleging wrongful denial of $309.59 in medical benefits for preventative bloodwork he received. Defendant AmeriBen, the insurer of Deutsch’s benefit plan, removed the case to federal court on ERISA preemption grounds and filed a motion for a more definite statement. As we explained in our September 20, 2023 edition, a magistrate judge denied this motion but gave Deutsch an opportunity to amend his complaint to provide more factual detail in accordance with federal pleading requirements. Deutsch proceeded to file an amended complaint, AmeriBen filed another motion to dismiss, and the magistrate judge recommended that this motion also be denied. AmeriBen objected to the magistrate’s report, and thus the assigned district judge addressed those objections in this order. AmeriBen made two arguments: the magistrate judge (1) improperly “rewrote” Deutsch’s pleadings, and (2) ignored binding Fourth Circuit authority regarding Deutsch’s estoppel claim. The court rejected both arguments. On the first issue, the court ruled that AmeriBen’s arguments were “disingenuous” because Deutsch had expressly pleaded that the bloodwork he received was covered by his plan. Furthermore, by pleading that he “relied on oral and verbal representations from [] AmeriBen’s representatives that he would not bear any out-of-pocket expenses,” he had adequately pleaded estoppel. AmeriBen contended that the representations were made by a third party, not by AmeriBen, but the court agreed with the magistrate judge that the record “suggest[ed] a greater connection between the two parties.” On the second issue, the court ruled that the magistrate judge properly considered the Fourth Circuit’s controlling authority on estoppel, Coleman v. Nationwide Life Ins. Co., but neither that case nor any other Fourth Circuit case addressed “the question of whether estoppel claims are available to address ‘informal interpretations of ambiguous provisions’ of an ERISA plan.” As a result, AmeriBen’s “contention that estoppel is categorically unavailable in ERISA actions is conjectural.” Thus, the court adopted the magistrate judge’s report and recommendation, and Deutsch’s claim for $309.59 in benefits lives to fight another day.

First Reliance Bank v. AmWINS, LLC, No. CV 3:22-2674-MGL, 2024 WL 942778 (D.S.C. Mar. 5, 2024) (Judge Mary Geiger Lewis). Plaintiffs, a bank and its welfare benefit plan, sued the defendants, who were “generally involved with the implementation of the plan,” alleging five state law claims in South Carolina state court. Defendants removed the case to federal court and filed a motion to dismiss, arguing that plaintiffs’ claims were preempted by ERISA. The court chided both sides for “fail[ing] to mention,” presumably because “they are all unaware and unfamiliar with long-standing Fourth Circuit precedent,” that, “when a claim under state law is completely preempted and is removed to federal court because it falls within the scope of [ERISA], the federal court should not dismiss the claim as preempted, but should treat it as a federal claim under [ERISA].” The court thus denied defendants’ motion and ruled that it would “consider any other arguments as to the merits of Plaintiffs’ state claims at the summary judgment stage.” The court did, however, direct plaintiffs to “file a status report indicating whether they wish the Court to treat their state claims as ERISA claims going forward. If yes, they may amend their complaint, but the Court will decline to require it.”

Provider Claims

Second Circuit

Murphy Med. Assocs., LLC v. Yale Univ., No. 3:22-CV-33 (KAD), 2024 WL 988162 (D. Conn. Mar. 7, 2024) (Judge Kari A. Dooley). In March of last year the court granted the defendants’ motion to dismiss this action by plaintiff Murphy Medical Associates, LLC seeking reimbursement for COVID-19 diagnostic tests it provided to patients insured by Yale University’s medical benefit plans. However, the court gave Murphy leave to amend, cautioning Murphy that it “must provide allegations as to ‘the patients whose rights are being asserted, the alleged assignment of those rights, the specific plans under which Murphy Medical asserts claims, and whether Murphy Medical has exhausted their administrative remedies or whether such exhaustion would be futile.’” Murphy amended its complaint, prompting a new motion to dismiss from defendants. The court agreed with defendants that Murphy’s new complaint was again defective. Murphy alleged that it received assignment of benefit forms from “many” plaintiffs, that defendants’ plans did not prohibit such assignment, and attached a sample assignment of benefits form. This was not enough for the court, which deemed Murphy’s allegations “conclusory.” Murphy did not “provide enough specificity to give Defendants fair notice of whose rights Plaintiff purport to assert or the plans under which those rights derive.” The sample form was “insufficient to allow the Court to draw the inference that each beneficiary made a valid assignment.” The court also noted that Murphy’s complaint ignored an anti-assignment provision in the Yale Health Member plan document and ruled that defendants had not waived it. Furthermore, the amended complaint lacked adequate factual allegations that Murphy had exhausted its administrative remedies before filing suit, or that such exhaustion would have been futile. Murphy alternatively argued that its complaint passed muster because the Families First Coronavirus Response Act (“FCCRA”) and the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) effectively amended ERISA to allow for its claims. The court rejected this theory, ruling that FCCRA and CARES did not create a private right of action, and characterizing Murphy’s creative argument as “simply an attempted end run” around the court’s prior decision addressing these laws. In the end, the court concluded that Murphy’s amended complaint was an attempt to “sidestep” ERISA’s “well established” requirements by “seeking reimbursement for testing done on a massive scale, for individuals with a multitude of different benefit plans, who may or may not have assigned their ERISA benefits, and who may or may not have been allowed to assign their ERISA benefits. ERISA does not countenance such an effort[.]” Dismissal this time was with prejudice.

NYU Langone Hosps. v. 1199SEI Nat’l Benefit Fund for Health & Human Serv. Emps., No. 22 CIV. 10637 (NRB), 2024 WL 989700 (S.D.N.Y. Mar. 7, 2024) (Judge Naomi Reice Buchwald). Plaintiff sued two multi-employer benefit funds in New York state court, alleging that they committed breach of contract when they denied claims for the hospital stays of the newborns of three fund beneficiaries. The funds removed the action to federal court and filed a motion to dismiss. Plaintiff responded by arguing that the hospital stays were a covered maternity benefit under the Newborns’ and Mothers’ Health Protection Act of 1996 (“NMHPA”). The court was not impressed: “Whatever the merits of this contention, the Court is precluded from addressing it because plaintiff’s breach of contract claims are expressly preempted by ERISA.” The court noted that NMHPA was incorporated into ERISA, and thus any claims under it were governed by ERISA’s preemption provision. Plaintiff attempted to escape this conclusion by arguing that it was “simply seeking to enforce the terms of its own, separate contract with defendants.” However, the court ruled that plaintiff’s case law did not support this proposition. Furthermore, plaintiff’s claims “expressly challenge the scope of benefits provided to the Benefit Funds’ plan members and the Funds’ administration of their plans,” which meant that they “fall squarely within the scope of ERISA’s expansive preemption provision.” The court thus granted the funds’ motion to dismiss. The court also rejected plaintiff’s request for leave to amend its complaint for two reasons. First, plaintiff had already amended once, with knowledge of ERISA’s application, yet did not assert claims under ERISA. Second, the court ruled that amendment would be futile because the plans at issue included anti-assignment provisions precluding plaintiff from pursuing any claims under ERISA.

Redstone v. Empire HealthChoice HMO, Inc., No. 23-CV-2077 (VEC), 2024 WL 967416 (S.D.N.Y. Mar. 5, 2024) (Judge Valerie Caproni). Plaintiffs in this case are two surgeons who sued Empire HealthChoice HMO, Inc., the claims administrator of the ERISA plan of one of their patients, after Empire paid only $26,099.20 on a $671,723 claim for the first breast reconstruction surgery following the patient’s double mastectomy, and $7,2316.77 out of $131,234.22 on the second stage surgery. The doctors asserted claims for benefits under ERISA and state law claims for breach of contract, breach of implied contract, unjust enrichment, tortious interference, and third party beneficiary. Empire moved to dismiss the complaint in its entirety. The court’s analysis of the ERISA benefits claims turned on whether the plaintiffs had standing to sue based on their patient’s assignment of her claim for benefits, despite the anti-assignment provision in the plan document. The court concluded the answer was no, rejecting as “silly” the doctors’ claims that the anti-assignment clause was contradictory and unenforceable because it prohibited assignment without consent but did not define what was required to obtain consent. Although the language the court quoted did not state that any consent had to be in writing, the court concluded that the plan clearly required written consent, which the doctors had not obtained. Nor was the court convinced that Empire’s course of conduct in dealing with the doctors and partially paying the claims directly to them constituted a waiver of the anti-assignment provision. On this basis, the court dismissed all of the ERISA claims. Nevertheless, the court granted the plaintiffs an opportunity to amend their complaint despite defendants’ arguments that plaintiffs had the opportunity to do so at an earlier point in the litigation. Turning to the state law claims, the court concluded that all five depended on Empire’s payment obligations under the ERISA plan and therefore dismissed these claims with prejudice, concluding that they were preempted by ERISA’s broad preemption provision.   

AA Med. v. 1199 SEIU Benefit & Pension Fund, No. 21-CV-5239 (JS)(SIL), 2024 WL 964712 (E.D.N.Y. Mar. 5, 2024) (Judge Joanna Seybert). In this last provider case of the week (all from the Second Circuit, curiously), a surgical group sued for reimbursement of multiple claims for benefits under ERISA plans after the plans paid a fraction of one percent on billed charges for numerous surgeries and follow-up visits. Defendants moved to dismiss, arguing that the medical group failed to exhaust its administrative claims remedies under the union-sponsored healthcare plan, and that the complaint failed to allege that the fund denied benefits that were due to the patients. The court agreed with defendants that plaintiffs and their patients had failed to exhaust the required appeal steps spelled out in summary plan descriptions (SPDs) that defendants attached to their motion to dismiss, which the court concluded it could consider without converting the motion to dismiss into a motion for summary judgment. Plaintiffs, however, alleged that they had, in fact, appealed but that the fund informed them that they could not appeal and that this sufficed for exhaustion purposes. The court, however, found this conclusory and unsupported by plausible factual allegations in the complaint. The court likewise rejected plaintiffs’ contention that exhaustion was futile because they had been told by representatives of the plan that they could not appeal. Instead, the court agreed with defendants that, contrary to the allegations in the complaint, the SPDs do permit providers to appeal where authorization has been obtained from the plan and that the SPD also forbade reliance on telephone conversations. Concluding that there were no allegations in the complaint concerning such authorization, the court agreed with defendants that plaintiffs failed to make the requisite clear and positive showing of futility necessary to excuse the plan’s and ERISA’s exhaustion requirement. The court therefore dismissed the complaint but did so without prejudice.

Venue

Ninth Circuit

Plan Adm’r of the Chevron Corp. Ret. Restoration Plan v. Minvielle, No. 20-CV-07063-TSH, 2024 WL 923554 (N.D. Cal. Mar. 1, 2024) (Magistrate Judge Thomas S. Hixson). Just two weeks ago, in our February 21, 2024 edition, we reported on the court’s ruling in this interpleader action on a motion to transfer venue by two of the defendants and potential beneficiaries, Anne Minvielle and her husband. The Minvielles live in the Eastern District of Louisiana and wanted this case and a related case transferred there. The court, addressing a number of factors, denied the motion. The Minvielles promptly filed a motion for reconsideration which the court addressed in this order. The court observed that local rules required the Minvielles to obtain leave before filing such a motion, which they had not done, and thus denied on that ground. The court addressed the merits nonetheless, and again ruled against the Minvielles. The Minvielles focused their motion on potential witnesses, arguing that the court “failed to consider the witnesses they named in Louisiana,” and thus “the logical and legally correct thing to do is to transfer both cases to the Western District of Louisiana for consolidation in that district where the overwhelming number of witnesses (both doctors and lay witnesses) reside.” The court ruled that this was an inappropriate ground for moving for reconsideration because it did not represent a material difference in fact or law or an emergence of new material facts. Furthermore, the Minvielles admitted that their previous motion lacked specific detail regarding their witnesses, which could not be remedied by a reconsideration motion. In any event, the court reiterated that “there are potential witnesses in Louisiana, California, and London, and any choice of venue would be equally inconvenient to the witnesses not located in that venue.” Furthermore, “relevant evidence is likely found in at least this District, London, and Louisiana,” and “transfer to Louisiana does not serve the interests of justice because both [cases] have been pending here for some time, and this Court is likely positioned to resolve the disputes faster than a new court.” The court thus denied the Minvielles’ reconsideration motion.