Your ERISA Watch is short-staffed this week as we take much-needed end of summer vacations. But ERISA never sleeps, so rather than leave our loyal readers in the lurch, we are still publishing, albeit with no highlighted case of the week. We hope you had a restful Labor Day!
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Arbitration
Ninth Circuit
Scentsy, Inc. v. Blue Cross of Idaho Health Serv., Inc., No. 1:23-CV-00552-AKB, 2024 WL 3966555 (D. Idaho Aug. 28, 2024) (Judge Amanda K. Brailsford). Plaintiff Scentsy sponsors a self-funded employee health care benefit plan, which defendant Blue Cross of Idaho administers pursuant to a services agreement. Blue Cross also insures Scentsy’s plan for losses in excess of $200,000. One of Scentsy’s employees became ill and incurred “millions of dollars’ worth of medical bills,” but according to Scentsy, Blue Cross declined to process the benefit claims for this treatment in a timely fashion and then improperly denied them. Scentsy filed this action, and Blue Cross responded by filing a motion to compel arbitration, or, in the alternative, to partially dismiss and stay the case. The parties’ arguments regarding arbitration revolved around which contracts applied, as there were several between them on a yearly basis. The court ruled that the 2020 administrative services agreement and the 2021 excess loss contract were the controlling documents, and neither contained an arbitration provision, and thus the court denied Blue Cross’ motion to compel. As for Blue Cross’ motion to dismiss, the court refused to dismiss Scentsy’s equitable claim under ERISA § 1132(a)(3) because doing so was premature, although it indicated that ultimately Scentsy would not be allowed to obtain such relief if other relief under ERISA was adequate. The court also denied Blue Cross’ motion to dismiss most of Scentsy’s state and common law claims, ruling that Scentsy was allowed to plead such claims in the alternative, even though ERISA likely preempted them. The court did, however, dismiss Scentsy’s claim for unjust enrichment because both parties agreed that an enforceable contract existed, which precluded such a claim. As a result, the vast majority of Scentsy’s claims against Blue Cross will proceed.
Attorneys’ Fees
Sixth Circuit
Messing v. Provident Life & Accident Ins. Co., No. 23-1824, __ F. App’x __, 2024 WL 3950239 (6th Cir. Aug. 27, 2024) (Before Circuit Judges Clay, Rogers, and Kethledge). Your ERISA Watch’s case of the week in our September 14, 2022 edition was the Sixth Circuit’s published opinion in this matter in which it ruled that defendant Provident improperly terminated the ERISA-governed long-term disability benefits of plaintiff Mark Messing, a Michigan attorney. Despite his success, on remand the district court denied Messing’s motion for attorney’s fees, which as we commented in our August 30, 2023 edition was “very unusual for plaintiff-side victories in ERISA benefit actions.” So, it was no surprise that Messing appealed once again to the Sixth Circuit, which addressed the fee issue in this memorandum decision. The Sixth Circuit found that the district court properly held that Messing “achieved some success on the merits,” but ruled that the court improperly applied the controlling five-factor King test. The Sixth Circuit observed that the district court “largely pinned its analysis on the view that Provident did not engage in any culpable conduct or bad faith behavior,” but ruled that this was incorrect: “we view Provident’s repeated attempts to rid itself of its obligations to Messing as evidence of a highly culpable course of conduct.” Unfortunately for Messing, this was not the end of the opinion. Even though Messing was entitled to fees, the Sixth Circuit “cannot say that the district court abused its discretion in alternatively holding that Messing failed to carry his burden of showing that his requested fees and costs were reasonable.” The court ruled that Messing had carried “half of his burden” by showing that his requested hourly rates were reasonable. However, “Messing declined to submit any evidence tending to prove that the hours worked by his attorneys were reasonable.” Specifically, he did not submit itemized billing records, and instead submitted affidavits, without support, that summarily set forth the hours worked. Even after the district court provided Messing with an opportunity to submit a further reply brief, he still did not augment his evidence. Instead, “Messing claimed that he was in possession of ‘extensive time records,’ but would only provide them if Provident provided evidence of its own,” which was unacceptable because Provident was under no obligation to do so. The Sixth Circuit further ruled that Messing’s voluntary reduction of his requested fees did not cure the problem because the absence of information still prevented Provident and the district court from evaluating the reasonableness of his request. As a result, even though the district court erred in ruling that Messing was ineligible for fees, the Sixth Circuit nevertheless upheld the district court’s decision not to award them. Judge Rogers penned a short concurrence in which he explained that he agreed with the second part of the decision that Messing had not carried his burden of proving his fees, but did not join the first part of the decision regarding the King test for two reasons. One, “it is rarely advisable for us to rule on issues that do not affect whether to affirm or reverse,” and two, “it does not appear that the district court abused its discretion with respect to the weighing of the relevant five factors.” Judge Rogers felt that “the district court applied the correct legal test, and its opinion does not appear to have made any clearly erroneous factual determinations.” Thus, “it is very hard to conclude that the district court abused its discretion in weighing those factors, in light of the district court’s thoughtful and extensive analysis.”
Eighth Circuit
Williams v. Equitable Fin. Life Ins. Co. of Am., No. 23-CV-1044 (PJS/ECW), 2024 WL 3949332 (D. Minn. Aug. 26, 2024) (Judge Patrick J. Schiltz). Plaintiff Ray Williams filed this action contending that defendant Equitable wrongfully denied his claim for ERISA-governed long-term disability benefits. The district court agreed with him in part, and remanded the case to Equitable “with instructions to reopen the administrative record and reconsider Williams’s claim… The primary purpose of the remand was to afford Williams an opportunity to respond to two peer reviews of his medical records that he claims not to have received during the administrative proceedings.” Williams then moved for attorney’s fees, but the court denied his motion in this order. The court emphasized that it had “made no ruling (or even comment) on the merits of Williams’s disability claim,” and “was not confident that Williams’s contention was true, but decided to give Williams the benefit of the doubt on a ‘close’ issue.” Thus, the court stated, “It is difficult to imagine a more ‘purely procedural victory,’” which under Supreme Court guidance was insufficient to award fees. The court further ruled that even if the remand did constitute “some success on the merits,” it would still exercise its discretion to deny fees because the decision benefited Williams alone, did not resolve an important legal question, and it appeared that the procedural hiccup in the case was “a clerical error,” which meant “there is no reason to believe that the administrator behaved badly in this case.” Furthermore, plaintiff’s evidence of his incurred fees was inadequate and the court doubted that plaintiff had “incurred over $24,000 in attorney’s fees in arguing that he should have been given a chance to respond to two peer reviews.” Thus, the court denied Williams’ fee motion in its entirety.
Ninth Circuit
W.H. v. Allegiance Ben. Plan Mgmt. Inc., No. CV 22-166-M-DWM, 2024 WL 3965931 (D. Mont. Aug. 27, 2024) (Judge Donald W. Malloy). In June we reported that the court in this matter granted summary judgment to defendants on plaintiffs’ claims under ERISA and the Mental Health Parity and Addiction Equity Act arising from defendants’ denial of benefits relating to plaintiff Z.H.’s treatment at three inpatient mental health facilities. The court did, however, rule in plaintiffs’ favor on their statutory penalties claim, finding that defendants failed to produce a complete copy of the medical necessity criteria and documents used to identify nonquantitative treatment limitations under the Parity Act, even though plaintiffs requested them in writing. Plaintiffs subsequently filed a motion for attorney’s fees, requesting $56,274 in fees and $664 in costs. Defendants did not challenge the costs, which were awarded in full. As for the fees, the court ruled that plaintiffs had achieved “some success on the merits” and satisfied the Ninth Circuit’s five-factor Hummell test. However, the court did not award the full fees requested. Although plaintiffs supported their request with sufficient evidence supporting the number of hours expended and appropriate rates, they only obtained partial success, and thus “a reduction is warranted.” Defendants suggested that plaintiffs’ fees be capped at $6,710.73, using a “proportional mathematical equation” which counted the number of pages in the briefing addressed to each issue. The court ruled that this was “inappropriate” because defendants’ “methodology and resultant fee reduction of 84.5 percent does not accurately reflect the briefing process and may create perverse incentives.” Instead, the court ruled that because plaintiffs prevailed on one of their three claims, “reducing the lodestar figure by two-thirds is reasonable.” The court thus awarded $18,758 in fees.
Breach of Fiduciary Duty
First Circuit
Somers v. Cape Cod Healthcare, Inc., No. 1:23-cv-12946-MJJ, 2024 WL 4008527 (D. Mass. Aug. 30, 2024) (Judge Myong J. Joun). Plaintiffs Cassie Somers and Jolia Georges filed this putative class action contending that their former employer, defendant Cape Cod Healthcare, breached its fiduciary duty in administering the company’s 403(b) employee retirement plan. Defendants filed a motion to dismiss, arguing that plaintiffs lacked standing and their claims lacked merit. On standing, defendants contended that plaintiffs did not allege that they invested in any of the challenged funds, but the court ruled that “[i]t is well-established that for the purpose of constitutional standing, a plaintiff need not have invested in each fund at issue, but must merely plead an injury implicating defendants’ fund management practices.” Plaintiffs had done so by alleging that defendants’ breaches led to “millions of dollars of losses.” On the merits, defendants argued that plaintiffs “fail to allege the Plan’s actual recordkeeping fees, fail to compare the Plan’s fees to any meaningful benchmark, and merely state conclusory allegations that Defendants failed to conduct RFPs at reasonable periods.” However, the court stated that these arguments “miss the mark” because ruling in defendants’ favor would require favoring their calculation formulas, which was not allowed on a motion to dismiss. Furthermore, the court found that plaintiffs’ allegations regarding comparison plans were sufficient to survive dismissal. As for the challenged funds, the court again ruled that it “will not delve into disputes regarding the appropriateness of benchmarks at this stage.” Plaintiffs alleged that defendants “do not appear to have substituted any of the most significant options in the Plan during the Class Period, and cite several allegedly superior alternative options that were available on the market,” which was good enough to get past the pleadings. The court allowed plaintiffs’ failure to monitor claim to proceed for the same reasons. As a result, the court denied defendants’ motion to dismiss in its entirety.
Waldner v. Natixis Investment Managers, L.P., No. 21-CV-10273-LTS, 2024 WL 4002674 (D. Mass. Aug. 21, 2024) (Magistrate Judge Paul G. Levenson). Plaintiff Brian Waldner brought this putative class action contending that his former employer, defendant Natixis, and its retirement committee breached their fiduciary duties under ERISA to Natixis’ 401(k) plan by improperly favoring “mutual funds and other investment products that were offered by Natixis, or by money managers with current or historical ties to Natixis, over more suitable products from Natixis’ competitors.” Defendants filed two motions in limine to exclude plaintiff’s experts and a motion for summary judgment. Defendants contended that summary judgment was appropriate because the plan maintained an investment policy statement, held regular meetings to discuss investments, sought independent advice, engaged external counsel, and offered both proprietary and non-proprietary funds which were all monitored and sometimes removed. However, the magistrate judge found there were genuine factual disputes regarding whether defendants breached their duties. Specifically, plaintiffs pointed to evidence showing an “inverted” process whereby defendants evaluated whether Natixis funds were suitable for the plan, rather than starting with the plan’s goals and seeing if Natixis funds qualified for inclusion. Plaintiff’s expert also opined that some of the products “should not have been on the menu because there were better, competing products that would have filled the same niche,” and other products “should not have been on the menu because there was no good reason to include any product of that type.” In short, plaintiffs produced evidence suggesting that “the Committee was biased toward proprietary products and thus failed to adopt and implement an appropriate strategy to build and maintain a well-balanced Plan menu.” As a result, the magistrate judge largely recommended that the court deny defendants’ summary judgment motion, with the exception of two funds which the magistrate found passed plaintiff’s challenges because there was no evidence that they were “imprudently or disloyally included in the Plan menu.” The magistrate also recommended that defendants’ motion to strike plaintiff’s experts be denied because such arguments were premature.
Fourth Circuit
Trauernicht v. Genworth Financial, Inc., No. 3:22-CV-532, 2024 WL 4000258 (E.D. Va. Aug. 29, 2024); Trauernicht v. Genworth Financial, Inc., No. 3:22-CV-532, 2024 WL 3996019 (E.D. Va. Aug. 29, 2024) (Judge Robert E. Payne). As we reported, last month the court certified a class in this case alleging breach of fiduciary duty by Genworth Financial, Inc. in its supervision of its Retirement and Savings Plan (although the court limited the class to plan participants who invested in BlackRock LifePath Index Funds). In these two orders, the court evaluated two more motions: one by plaintiffs to exclude Genworth’s two experts, and one by Genworth for summary judgment. The court ruled that both of Genworth’s experts had the requisite qualifications to assist the court and that plaintiffs’ objections were primarily directed at the weight and not the admissibility of their testimony. Thus, the court denied plaintiffs’ motion. As for Genworth’s summary judgment motion, Genworth raised arguments regarding loss causation and the statute of limitations. Genworth argued that the BlackRock funds were objectively prudent investments because leading market analysts viewed them favorably, numerous other funds invested in them, and its assets increased during the class period. Plaintiffs responded that this information was not dispositive because the court’s inquiry was context-specific regarding Genworth’s particular plan, not an assessment of the funds in general. The court declined to rule on who was correct, stating that any decision would require weighing the evidence, which was not permitted on summary judgment. The court also rejected Genworth’s statute of limitations argument, ruling that “at least part of the alleged failure to monitor occurred within the [six-year] limitations period.” The court noted that the relevant timeframe was not the initial inclusion of the fund in the plan, but the ongoing “failure to monitor a material change in circumstances in an existing fund and respond to it.” As a result, the court denied Genworth’s motion in its entirety and it looks like this case will be proceeding to trial.
Seventh Circuit
Baird v. Steel Dynamics, Inc., No. 1:23-CV-00356-CCB-SLC, 2024 WL 3983741 (N.D. Ind. Aug. 29, 2024) (Judge Cristal C. Brisco). The plaintiffs are three employees who contend that defendant Steel Dynamics, their employer, and various related defendants violated ERISA in administering Steel Dynamics’ retirement benefit plan. They alleged that “a series of target date funds and an international growth fund offered in the Plan…underperformed and that this underperformance reveals Defendants’ deficient fiduciary process in violation of their duty of care under ERISA.” Defendants filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. Defendants’ jurisdiction argument was premised on plaintiffs’ alleged lack of standing, but the court noted that plaintiffs alleged that at least one of them was personally invested in a challenged fund, and all were pursuing plan-wide relief, and thus “the complaint sufficiently alleges standing for their claims to proceed in this Court.” Next, defendants argued that the action should be dismissed because plaintiffs failed to exhaust their administrative remedies. The court found that plaintiffs plausibly alleged that such exhaustion would be futile because the plan’s administrative review process was limited to “claims for benefits,” and thus rejected defendants’ motion on this ground. However, defendants finally found luck with their final argument, regarding breach of fiduciary duty. The court ruled that plaintiffs “have not adequately pleaded persistent and material underperformance necessary for a breach of fiduciary duty claim” because the challenged funds often had rates of return within 5% of the comparison funds identified by plaintiffs, and in fact sometimes overperformed those comparators. As a result, the court granted defendants’ motion to dismiss, and gave plaintiffs leave to file an amended complaint.
Ninth Circuit
Bozzini v. Ferguson Enterprises, LLC, No. 22-cv-05667-AMO, 2024 WL 4008760 (N.D. Cal. Aug. 30, 2024) (Judge Araceli Martínez-Olguín). This is an action for breach of fiduciary duty alleging that defendants breached their fiduciary duty in the administration of defendant Ferguson Enterprises, LLC’s retirement plan. Three defendants filed motions to dismiss, which were all decided in this order. The motion of the first defendant, Ferguson, was granted in part and denied in part. The court ruled that plaintiffs’ allegations that defendants breached their duty of prudence when the plan “held on to underperforming funds, did not opt for lower cost shares, chose actively managed funds instead of passively managed index funds, and declined to invest in better-performing funds…do not, without further factual allegations, give rise to a breach of fiduciary duty claim.” Plaintiffs also alleged that defendants misrepresented material information to them, but “there are no specific factual allegations sufficient to establish a plausible claim for breach of fiduciary duty based on misrepresentation.” Similarly, plaintiffs did not sufficiently allege that there was a failure in defendants’ investment process. As for breach of the duty of loyalty, the court ruled that plaintiffs’ allegations were inadequate because there were no “different facts” to support that claim. The court further ruled that plaintiffs’ allegations regarding failure to monitor, prohibited transactions, failure to provide plan documents, concealment which operated to prevent the statute of repose, and individual fiduciaries were too thinly pleaded. The court also struck plaintiffs’ jury demand because they had no right to a jury. One silver lining for plaintiffs: the court ruled that they had standing, stating that “[e]ach plaintiff alleges to have invested in one or more of the funds at issue. These allegations are sufficient for standing purposes at this stage.” The court thus granted Ferguson’s motion in almost every respect, and gave plaintiffs leave to amend their complaint to address the issues raised by the court. The court also granted the motions of the other two defendants, Prudential and CapFinancial. The court ruled that plaintiffs did not establish that Prudential was a fiduciary, and in any event Prudential could not have breached any duty by adhering to its contract with the plan. Plaintiffs’ allegations against CapFinancial were not supported by specific allegations regarding wrongdoing, and thus its motion was granted as well. As with Ferguson, the court gave plaintiffs leave to amend their allegations against these two defendants, and ordered consolidated briefing for the next round of motions.
Class Actions
Second Circuit
Savage v. Sutherland Global Servs., Inc., No. 6:19-CV-06840 EAW, 2024 WL 3982831 (W.D.N.Y. Aug. 28, 2024) (Judge Elizabeth A. Wolford). This is a putative class action by participants and beneficiaries of the Sutherland Global Services, Inc. 401(k) Plan alleging that Sutherland and related defendants breached their fiduciary duties by failing to minimize the plan’s fees and expenses. Plaintiffs filed an unopposed motion to seal various documents, and a motion for class certification. The court acknowledged that the documents at issue were covered by a protective order, but they were also “judicial documents because they are exhibits related to Plaintiffs’ motion for class certification,” and thus presumptively should be publicly available. As a result, the court denied the motion to seal because the parties did not provide any independent justification for sealing, and allowed them fourteen days to cure their motion. As for the class certification motion, defendants argued that plaintiffs did not have Article III standing to assert their “Excessive Recordkeeper Total Compensation Claim.” The court agreed that plaintiffs did not articulate this claim very well in their complaint, but found that their argument based on incurring an “unreasonable and unnecessary $50 transactional fee” was a sufficient concrete injury-in-fact to support standing. However, such standing did not support prospective relief because none of the plaintiffs were still enrolled in the plan. Defendants next argued that plaintiffs did not have class standing, and the court agreed because “[t]here is nothing in the record before the Court to support the conclusion that the other members of the proposed class also paid the $50 fee that forms the relevant injury.” The court thus denied plaintiffs’ class certification motion on this ground. Finally, defendants argued that plaintiffs did not have class standing because they were no longer participants in the plan. Plaintiffs did not respond to this argument, but the court rejected it anyway, citing case law holding that plaintiffs who have “cashed out” their retirement benefits still have standing to allege that a breach of fiduciary duty reduced the amount of those benefits. However, this was a pyrrhic victory for plaintiffs, who had both of their motions denied by the court.
Sixth Circuit
Hawkins v. Cintas Corp., No. 1:19-CV-1062, 2024 WL 3982210 (S.D. Ohio Aug. 27, 2024) (Judge Jeffery P. Hopkins). This class action alleging breaches in fiduciary duty by the administrators of the Cintas Partners’ Plan has been pending for five years, during which it has been up to the Sixth Circuit and back. Now the parties have reached a proposed global class settlement that creates a $4 million fund. Plaintiffs moved to have the court approve the settlement. The court agreed that class certification was appropriate because the class was numerous (52,027 members), there were common questions of law and fact, the plaintiffs’ theory of the case was “virtually identical to that of every other class member,” and the plaintiffs “fairly and adequately protect[ed] the interests of the class.” The court further found that the prosecution of separate actions would create a risk of inconsistent adjudications and that the class had received adequate notice. As for fairness, the court found that the settlement resulted from arm’s-length negotiations after complex and vigorous litigation, and that “the benefits of settlement outweigh the risks associated with further litigation and the uncertainty that unnamed class plaintiffs might obtain, under a best-case scenario, the full value of their claims if the lawsuit continued and came to a successful resolution on the merits.” Thus, “the Court finds a settlement of 30% to 34% of Plaintiffs’ own calculations is fair and adequate.” The court further found that counsel on both sides were experienced, that there were only three objections to the settlement from class members, which were not meritorious, and that the public interest would be served by a settlement. The court thus certified plaintiffs’ class, appointed their attorneys as class counsel, granted the motion for final approval of class settlement, and denied defendants’ pending motion to dismiss as moot. Plaintiffs’ attorneys’ fees and case contribution awards will be determined in a separate order.
Disability Benefit Claims
Second Circuit
DeCarlo v. Lincoln Life Assur. Co. of Boston, No. 21 CIV. 2627 (PGG) (GWG), __ F. Supp. 3d __, 2024 WL 3977688 (S.D.N.Y. Aug. 29, 2024) (Magistrate Judge Gabriel W. Gorenstein). Michael DeCarlo was an information technology director who stopped working in 2015 due to chronic fatigue syndrome. Defendant Lincoln Life approved DeCarlo’s claims for short-term and long-term disability benefits. DeCarlo returned to part-time work as a project manager in 2019, and in 2020 Lincoln determined that he was no longer disabled and terminated his benefits. This action ensued and the parties filed cross-motions for summary judgment. The court ruled that the abuse of discretion standard should apply because the Lincoln policy insuring the long-term disability plan granted Lincoln discretionary authority to determine benefit eligibility. DeCarlo argued that the de novo standard should apply because Lincoln misinterpreted his vocational evidence, but the court ruled that Lincoln properly considered the report regardless of its conclusions about it, which was insufficient to change the standard of review. Under abuse of discretion review, the court found that DeCarlo did not meet his burden of proving disability. Lincoln had five doctors review DeCarlo’s records, who all agreed that he “did not have any limitations or restrictions that would prevent him from returning to work on a full-time basis,” largely because he “had returned to work as a project manager on a part-time basis, thus providing powerful evidence that he had the cognitive ability to perform work.” Lincoln properly rejected DeCarlo’s evidence because it “provided little or no ‘clinical’ or ‘objective’ medical evidence and relied heavily on DeCarlo’s own subjective reports.” Furthermore, DeCarlo’s supportive records were largely older and thus “stale.” The court also disagreed that Lincoln had “cherry-picked” evidence, and found that Lincoln’s reliance on surveillance was not significant and did not “detract from the fact that it had five recent medical opinions in the record that supported its conclusion and minimal, non-conclusory evidence to the contrary.” Finally, the court denied as moot DeCarlo’s motion to strike a declaration from Lincoln and a “summary of pertinent medical records,” ruling that it did not consider either in making its decision. Thus, the court recommended that Lincoln’s motion for summary judgment be granted, and that DeCarlo’s be denied.
Fourth Circuit
Sanders v. Hartford Life & Accident Ins. Co., No. CV 22-1945-BAH, 2024 WL 3936942 (D. Md. Aug. 26, 2024) (Judge Brendan A. Hurson). Plaintiff Kenneth Sanders contends in this action that defendant Hartford wrongfully terminated his claim for ERISA-governed long-term disability benefits. Hartford approved his claim in 2008 based on a shoulder injury, and the Social Security Administration and Veterans Administration later agreed that Sanders was disabled under their rules as well. However, in 2021 Hartford determined that Sanders was able to return to work and terminated his benefits. Sanders initiated this action and the parties filed cross-motions for summary judgment. Sanders argued that the proper standard of review was de novo because the policy language purporting to grant Hartford discretionary authority to determine claims was illegal under Maryland law, which bans such language in insurance policies “sold, delivered, issued for delivery, or renewed in the State on or after October 1, 2011.” However, the court noted that Hartford’s policy was issued in 2008, before the law went into effect, and there was no evidence that the policy had been renewed. Thus, deferential review was appropriate, although the court applied a “modified” abuse of discretion review because Hartford had a conflict of interest as both payer and decisionmaker. Under this deferential standard, the court upheld Hartford’s decision because it was not unreasonable. The court found that Hartford reasonably relied on its independent physician experts, who had discounted Sanders’ self-reports of pain based on their review of the medical records and surveillance which showed Sanders frequently exercising at the gym and showing a level of functionality “that is almost in direct contradiction to functions suggested in medical reports.” The court acknowledged that surveillance videos can sometimes be misleading, but it found that the video in this case was particularly probative because it contradicted Sanders’ comments to Hartford about his functionality, and “Hartford considered the surveillance video as one piece of evidence in a holistic assessment of Plaintiff’s case.” The court also noted that the Social Security Administration did not have access to the surveillance video, and thus its contrary disability determination was not entitled to significant weight. As a result, the court granted Hartford’s summary judgment motion and denied Sanders’.
Eighth Circuit
Hitz v. Symetra Life Ins. Co., No. 4:22 CV 1374 RWS, 2024 WL 4006048 (E.D. Mo. Aug. 30, 2024) (Judge Rodney W. Sippel). Plaintiff Laura Crowder Hitz alleges in this action that defendant Symetra wrongfully denied her claim for long-term disability benefits. Hitz is a truck driver who began employment on January 31, 2019, qualified for long-term disability coverage 60 days later on April 1, 2019, and contended that her neck and back problems caused a disability beginning on May 8, 2019. Symetra filed a motion for judgment on the record, arguing that Hitz’s claim was barred by the benefit plan’s pre-existing condition limitation. The plan had a “look-back” period of twelve months prior to coverage, and the court agreed with Symetra that the record showed that during that period Hitz was treated for cervical and lumbar spondylosis and chronic neck and back pain. Hitz argued that Symetra “improperly relied on an MRI dated April 2019 in denying her claim and that the MRI was actually taken in June 2019,” which “falsely made it appear that her neck and back issues pre-existed her work injury in May 2019.” However, the court found that “[n]othing in the record supports Hitz’s assertion that Symetra relied on this MRI in its decision to deny her claim.” Thus, under de novo review, the court ruled in Symetra’s favor and granted its motion for judgment.
Howes v. Charter Communications, Inc., No. 4:23 CV 472 JMB, 2024 WL 3949940 (E.D. Mo. Aug. 27, 2024) (Magistrate Judge John M. Bodenhausen). The parties filed cross-motions for summary judgment in this dispute over short-term disability benefits. The court used the deferential arbitrary and capricious standard of review as it was undisputed that the benefit plan gave the claim administrator, Sedgwick Claims Management, discretionary authority to make benefit decisions. Plaintiff Duane Howes suffers from irritable bowel syndrome, and he argued that Sedgwick “failed to consider his frequent, urgent, and unpredictable need to use the bathroom in denying benefits,” which “prevents him from fulfilling the key requirements of his job[.]” However, the court noted that the plan contained a “self-reported symptoms” provision which required Howes to provide “objective evidence” of his disability. The court found that Howes did not satisfy this requirement because “none of Plaintiff’s treating doctors identified any ‘tests, imaging, clinical studies, medical procedures and other physical evidence’ that would support the symptoms Plaintiff indicates he experienced to the degree that he alleges in his declaration or otherwise.” Thus, the court ruled that Sedgwick’s decision was “supported by substantial evidence (or the lack thereof in this case) and that there is no overwhelming contrary evidence that would undermine the reasonableness of the decision.” The court further determined that Howes received a full and fair review because Sedgwick relied on physician reports that considered Howes’ medical records. As a result, the court ruled that defendants’ decision was not “arbitrary or capricious, unreasonable, or unsupported by substantial evidence,” and thus it granted defendants’ summary judgment motion and denied Howes’.
ERISA Preemption
Eighth Circuit
Kellum v. Gilster-Mary Lee Corp. Grp. Health Benefit Plan, No. 23-2765, __ F.4th __, 2024 WL 3930833 (8th Cir. Aug. 26, 2024) (Before Circuit Judges Colloton, Melloy, and Gruender). After a man died from injuries suffered in an automobile accident with an unknown driver, his family sued his automobile insurer seeking to collect the proceeds of his uninsured motorist coverage. Garden variety state law case? Not so fast. The man’s health insurance benefit plan intervened, contending that it should be reimbursed pursuant to the plan’s equitable lien provisions, and removed the case to federal court on the basis of ERISA preemption. The plan successfully moved for summary judgment on its equitable lien, and plaintiffs appealed. The Eighth Circuit reversed in this published decision, determining that the district court did not have jurisdiction over the matter because there was no ERISA preemption. Relying on the first prong of the Supreme Court’s preemption test in Aetna Health Inc. v. Davila (is the plaintiff “the type of party who can bring a claim under § 502(a)(1)(B)”?), the court ruled that plaintiffs’ claims could not have been brought under ERISA because none of the plaintiffs were plan participants or beneficiaries, and thus their claims did not “fall within the scope of ERISA’s civil-enforcement provisions.” The Eighth Circuit thus vacated the judgment and remanded the case “with instructions to return the case to Missouri state court.”
Medical Benefit Claims
Tenth Circuit
K.H. v. Blue Cross & Blue Shield of Ill., No. 2:21-CV-403-HCN-DAO, 2024 WL 3925915 (D. Utah Aug. 23, 2024) (Judge Howard C. Nielson, Jr.). Plaintiff K.H. is a participant in an ERISA-governed medical benefit plan, and S.H. is his child. S.H. received care at two residential treatment facilities in Utah but defendant Blue Cross refused to pay benefits, contending that neither facility met the plan’s criteria for “residential treatment center.” Plaintiffs brought this action and both sides moved for summary judgment. The court ruled that it “can say neither that Blue Cross’s denial of benefits was correct nor that the Plaintiffs are clearly entitled to benefits under the Plan. It thus concludes that a remand is warranted.” Plaintiffs convinced the court that it was irrelevant whether the two facilities met the plan definition of “residential treatment center” because “Blue Cross has not identified any Plan provision that limits coverage for such treatment to care provided by a residential treatment center.” In short, “whether Outback and Monuments meet the Plan’s definition of a ‘Residential Treatment Center’ is immaterial to whether S.H.’s treatment is a covered benefit under the Plan.” However, the court also ruled that plaintiffs had not adequately shown that the treatment S.H. received was covered, because they “have not argued or presented evidence that any of the individuals who treated S.H. were licensed physicians, clinical social workers, or psychologists,” which was required under the plan. As a result, the court denied Blue Cross’ summary judgment motion, granted plaintiffs’ summary judgment motion in part, and remanded to Blue Cross for further consideration.
Pension Benefit Claims
Fourth Circuit
Gasper v. EIDP, Inc., No. 3:23-CV-00512-FDW-SCR, 2024 WL 3974246 (W.D.N.C. Aug. 28, 2024) (Judge Frank D. Whitney). Plaintiff David Gasper sued his employer, E.I. DuPont de Nemours and Company, and other related defendants under ERISA, challenging their decision to reduce the amount of his pension benefit. Gasper’s benefits were reduced because of a 2013 family court domestic relations order resulting from his divorce. The parties filed cross-motions for summary judgment, and defendants filed an additional motion to strike Gasper’s expert witness report. The court addressed the motion to strike first and granted it, ruling that the report was untimely and neither harmless nor substantially justified. The court found that the report went “beyond the permissible bounds of legal testimony” because it impermissibly offered ultimate legal conclusions, and was not in the administrative record and thus could not be considered. On the merits, the court agreed that Gasper’s claim was not time-barred because he had brought it within three years of defendants’ final denial, and ruled that the domestic relations order was in fact a qualified order under ERISA and thus enforceable. The court then reviewed defendants’ decision under deferential review because the plan gave them discretionary authority to interpret the plan. Under this standard, the court granted defendants’ motion and denied Gasper’s. The court ruled that the plan allowed defendants to reduce Gasper’s benefit to cover the costs involved in paying the ex-wife’s portion of the benefits at issue. The court further ruled that defendants were not liable for a statutory penalty for failing to provide plan documents. Gasper conceded that defendants provided him documents, but contended they were not the right ones. The court ruled that because defendants were responsive to Gasper’s requests, and any failure to provide the correct documents did not ultimately prejudice him, statutory penalties “are not warranted.” Finally, the court declined to rule on attorney’s fees and costs and asked the parties to file separate motions on that issue.
Eleventh Circuit
Roche v. TECO Energy, Inc., No. 8:23-CV-1571-CEH-CPT, 2024 WL 3966067 (M.D. Fla. Aug. 28, 2024) (Judge Charlene Edwards Honeywell). This is a putative class action filed by Alejandro Roche in which he contends that his employer, TECO Energy Inc., and its pension plan violated ERISA Sections 102 and 404 by failing to disclose material information in the plan’s summary plan description (SPD). Specifically, Roche argues that the SPD failed to adequately inform him and other TECO employees about how the plan calculated benefits, including the fact that rising interest rates would reduce his benefit. Roche contends that he would have changed his retirement date, and received larger benefits, if he had been fully informed. Defendants filed a motion to dismiss, arguing that ERISA does not impose the disclosure requirements requested by Roche because “an SPD is a mere summary of the Plan’s terms that courts have held is not required to include information on every detail that might affect benefit calculations.” The court agreed with defendants that the SPD was not deficient under Section 102. The court ruled that “neither ERISA nor its implementing regulations expressly require an SPD to disclose the plan’s method of calculation of lump sum benefits or other distributions among the other listed disclosures. The regulations require an SPD to disclose a plan’s method of calculating contributions and periods of service…but they are silent as to a plan’s method of calculating distributions.” Roche may have wanted the SPD to contain more information, which would have allowed him “to do his own calculation so that he could select the retirement month that would lead him to receive the highest lump sum.” However, “not having that information did not result in a loss or reduction of benefits he might otherwise reasonably expect to receive” and thus defendants were not required to include that information in the SPD. For similar reasons, the court agreed with defendants that they did not breach any fiduciary duty to Roche. The court noted that Roche had not alleged that defendants failed to provide information in response to a request, made any misleading statements, or knew that he misunderstood the plan or its benefits. Instead, Roche’s allegations related solely to the allegedly inadequate SPD. “The Court is unconvinced that ERISA imposes a blanket fiduciary duty to include in the SPD information that the Court has already concluded is not required by ERISA’s disclosure provisions.” As a result, the court granted defendants’ motion to dismiss. The Section 102 claim was dismissed with prejudice, but the court allowed Roche to amend his complaint regarding the fiduciary duty claim.
Plan Status
Eleventh Circuit
Taylor v. University Health Servs., Inc., No. CV 124-019, 2024 WL 3988829 (S.D. Ga. Aug. 29, 2024) (Judge J. Randal Hall). The plaintiffs in this action are former employees of defendant University Health Services who alleged they entered into a written contract with UHS providing that when they reached age 65, they would be furnished with a Medicare supplemental insurance policy at no cost. Previously, the court granted a motion to dismiss by UHS and remanded the case, agreeing that plaintiffs did not have standing because they continued to receive benefits and had not yet suffered any actual harm. On remand, plaintiffs amended their allegations, and defendants removed the case to federal court once again. Plaintiffs moved to remand, arguing that UHS’ removal was untimely and the court lacked jurisdiction over their claims. The court rejected both arguments. First, the court ruled that plaintiffs’ new allegations restarted the clock on UHS’s time to remove and thus its removal was timely. As for jurisdiction, the court ruled that ERISA provided it. Plaintiffs contended that their written agreements with UHS that UHS would provide insurance were not governed by ERISA because they did not include these promises in their Department of Labor forms, and because the benefits were to be paid out of the company’s general assets rather than from a separate fund. However, the court found that these facts were not dispositive, and that other factors, including that “a reasonable person can ascertain (1) the intended benefits, (2) the class of intended beneficiaries, (3) the source of financing, and (4) the procedures for receiving benefits,” demonstrated that the arrangement was an ERISA plan. The court also rejected plaintiffs’ argument that the plan was exempt from ERISA because it was a payroll practice, excess benefit plan, or governmental plan. The plan was not a payroll practice because the benefits did not constitute “wages” or another form of “compensation.” It was also not an excess benefit plan because it did not exist “‘solely for the purpose of’ providing benefits in excess of the limitations imposed by 26 U.S.C. § 415.” The plan was not a governmental plan because UHS was not controlled by, and was not an instrumentality of, the Richmond County Hospital Authority, even if it leased its facilities from the Authority. Finally, the court ruled that plaintiffs’ state law claims were completely preempted by ERISA. As a result, the court denied plaintiffs’ motion to remand and gave them 30 days to amend their complaint to allege claims under ERISA.
Pleading Issues & Procedure
Fifth Circuit
Consumer Data Partners, LP v. Agentra LLC, No. 3:23-CV-2110-B, 2024 WL 3997494 (N.D. Tex. Aug. 28, 2024) (Judge Jane J. Boyle). Plaintiff Consumer Data Partners hired defendant Agentra to provide enrollment services for its self-insured group employee health and welfare benefit plan. The relationship soured, however. CDP has now brought this action contending that Agentra and its owner failed to transmit plan participant contributions to CDP’s third-party administrator, overcharged the plan, and violated its agreement with CDP “by delegating its responsibility to collect DPG Plan contributions to…an entity owned by Agentra that regularly transferred funds to Agentra and Agentra’s owner[.]” CDP’s complaint has ten causes of action, three of which are ERISA claims and seven of which are state law claims. Agentra moved to dismiss all of the state law claims and two of the ERISA claims. CDP agreed that its state law claims were preempted by ERISA, and thus the court granted Agentra’s motion to dismiss those claims. As for the ERISA claims, the court denied Agentra’s motion. Agentra argued that CDP could not assert a claim for breach of fiduciary duty under Section 1132(a)(3) because that section only authorizes equitable relief, whereas CDP was seeking legal relief. The court noted that CDP’s complaint requested restitution and disgorgement, and ruled that both were cognizable equitable claims under ERISA. The court agreed with CDP that it was seeking the return of “specific funds” and “specific property,” i.e., plan assets, and thus CDP was not alleging general personal liability, which would be legal relief unavailable under Section 1132(a)(3). The court also rejected Agentra’s argument that CDP engaged in “improper group pleading,” ruling that the complaint contained “sufficient individualized factual allegations to justify the limited use of allegations against all Defendants.” As a result, CDP’s ERISA claims survived and the action will continue.
R.C. v. Louisiana Health Servs. & Indem. Co., No. 23-564-SDD-SDJ, 2024 WL 4009945 (M.D. La. Aug. 30, 2024) (Judge Shelly D. Dick). Plaintiffs R.C. and his stepson C.A. allege that defendant Blue Cross and Blue Shield of Louisiana wrongfully denied their claims for health care benefits arising from C.A.’s residential treatment at two facilities in Utah. Plaintiffs asserted two causes of action against Blue Cross and its agent, New Directions Behavioral Health LLC: one for plan benefits under 29 U.S.C. § 1132(a)(1)(B) and another for violation of the Mental Health Parity and Addiction Act under 29 U.S.C. § 1132(a)(3). Defendants filed a motion to dismiss the second claim, arguing that it was duplicative of the first claim and “fail[ed] to plead separate and discernable injuries.” Defendants argued that the underlying injury and remedy for both of plaintiffs’ claims were the same, i.e., the denial of their claims which led them to demand the payment of plan benefits allegedly due. However, plaintiffs argued that their Parity Act claim was based on different allegations and sought different relief, and thus was not duplicative. After reviewing relevant case law, the court concluded that the cases “read together do not support a blanket rule prohibiting a plaintiff’s ability to plead claims under both Section 502(a)(1)(B) and Section 502(a)(3) simultaneously.” The court ruled that plaintiffs’ second claim was not a “repackaging” of the first claim, was not duplicative, and “alleges an injury distinct from that of the claim for denial of benefits.” The court was also concerned that “adopting a rule that outright prohibits simultaneously pleading Section 502(a)(1)(B) claims and MHPAEA claims under Section 502(a)(3) would ‘effectively negat[e] the Parity Act in every case where the plaintiff also plausibly alleges that they were wrongfully denied benefits.’” As for whether monetary damages provided “adequate relief,” the court ruled that “it is premature at the pleading stage to determine whether the Section 502(a)(1)(B) claim provides adequate relief for Plaintiffs’ alleged injuries. In fact, this determination is not even practically possible at the pleading stage because on the merits, the Court could find that Defendants are liable to Plaintiffs under both, either, or neither of the two causes of action.” The court thus denied defendants’ motion.
Sixth Circuit
Moyer v. Government Emps. Ins. Co., No. 23-4015, __ F.4th __, 2024 WL 3934556 (6th Cir. Aug. 26, 2024) (Before Circuit Judges Boggs, Cook, and Nalbandian). This case revolves around the issue of whether plaintiffs, who are captive insurance agents for defendant GEICO, are independent contractors, or whether they are employees who are entitled to participate in GEICO’s employee benefit plans. When GEICO moved to dismiss the case, the district court sua sponte ordered the parties to file copies of the relevant benefit plans. GEICO provided the court with copies, accompanied by a declaration that the documents produced were “all of the relevant plan documents” and covered the entire time period at issue. The agents protested, contending that it was improper for the district court to review the documents on a motion to dismiss, and identifying features of the documents that raised questions as to whether they were complete and accurate. The agents asked for more time to conduct discovery on the issue. The district court refused this request and granted GEICO’s motion. (Your ERISA Watch covered this ruling in its December 13, 2023 edition.) In this published decision, the Sixth Circuit reversed. The court ruled that the case “involves both authenticity and completeness issues,” and there was “a question” as to whether GEICO had satisfied either in producing its documents. The court noted that the documents had redlines, electronic comments, amendments, handwritten notes, missing pages, and rendering errors, all of which raised “a significant factual question” as to whether they were complete and accurate. As a result, the Sixth Circuit ruled that the district court erred in relying on the documents in granting GEICO’s motion and remanded for the court to consider the other arguments made by GEICO in its motion.
Ninth Circuit
Vernon v. Metropolitan Life Ins. Co., No. 2:23-CV-01829 DJC AC PS, 2024 WL 3917187 (E.D. Cal. Aug. 23, 2024) (Magistrate Judge Allison Claire). Plaintiff Jimmy Lee Vernon is a state prisoner proceeding pro se who contends that defendant MetLife should have paid him benefits from his father’s life insurance plan. The magistrate judge previously ruled that Vernon’s claims were preempted by ERISA and gave him leave to amend his complaint to assert ERISA-related claims. Vernon did so, including both state law and ERISA claims in his new complaint. In this order the magistrate judge recommended that Vernon’s new complaint be dismissed as well. The court ruled that the state law claims were once again preempted by ERISA, for the same reasons as in its previous order. As for the ERISA claims, the court ruled that Vernon could not proceed under (1) Section 1132(a)(2) because he was seeking relief for himself and not for the plan, (2) Section 1132(a)(3) because the remedy he sought was the payout of the life insurance proceeds, which was legal, not equitable, relief, or (3) Section 1111 because that section deals with people who are prohibited from holding certain positions in a benefit plan, which was unrelated to Vernon’s allegations. The magistrate also recommended dismissal of Vernon’s claims against the individual defendants because they were not fiduciaries of the benefit plan. The magistrate concluded by recommending that the case be dismissed without leave to amend because it is “clear that further amendment is futile.”
Provider Claims
Ninth Circuit
Regents of the Univ. of California v. The Chefs’ Warehouse, Inc. Emp. Benefit Plan, No. 2:23-CV-00676-KJM-CKD, 2024 WL 3937161 (E.D. Cal. Aug. 26, 2024) (Judge Kimberly J. Mueller). The University of California Davis Medical Center brought this action alleging that defendant, an employee health plan, violated ERISA by underpaying benefits for a patient’s inpatient cancer surgery. (The patient had assigned her rights to pursue her claim to the hospital.) The hospital’s claims hinged on Public Health Service Act section 2707(b), as added by the Affordable Care Act, which sets an annual maximum out-of-pocket limit for essential health benefits. The plan filed a motion to dismiss, contending that because the hospital was a non-network provider, the cost-sharing limitations imposed by this law did not apply to the patient’s treatment and thus it paid the proper amount. The court agreed with the plan that “[t]he hospital is a non-network provider under both the plain reading of the statute and customary usage of that term” because the hospital was not in the plan’s network of providers and did not have a contract with the plan. The hospital made a “convoluted” argument that the plan did not actually have a network of providers because it did not “use a reasonable method to ensure adequate access to quality providers.” As a result, “if there is no network of providers, there can be no non-network providers.” However, the court rejected this argument, finding that the hospital had not provided sufficient legal support for it, and noting that the plan was self-funded and thus many of the Affordable Care Act’s requirements did not apply to it. Thus, the court granted the plan’s motion, although it stressed that it did not “condone[] the plan’s misleading language, which suggests rather plainly that it will cover 100 percent of the costs after the deductible for the treatments Patient A received.” The court also noted that the plan’s use of reference pricing “may undercut the purpose of the cost sharing provision and expose individual beneficiaries to significant financial liability and hardship.” However, because the plan did not run afoul of the law, the court was required to dismiss the case.
Sunrise Hosp. & Med. Ctr. LLC v. Blue Shield of Cal., No. 2:23-CV-01986-APG-EJY, 2024 WL 3938489 (D. Nev. Aug. 23, 2024) (Judge Andrew P. Gordon). Plaintiffs, a medical group, sued Blue Cross of California, Anthem Blue Cross Life and Health Insurance Company, and Keenan & Associates, Inc., contending that they failed to reimburse plaintiffs for treatment of four patients covered by defendants. Plaintiffs brought claims for ERISA violations, breach of contract, and unjust enrichment. Defendants moved to dismiss, arguing that plaintiffs lacked standing, their state law claims were preempted, two of the patients’ claims were time-barred, and plaintiffs failed to state a claim. At the outset, the court agreed with plaintiffs that it should not consider plan documents attached by defendants to their motion to dismiss because it was not clear how they related to plaintiffs’ claims. This decision was crucial to the rest of the order, as it deprived defendants of support for several of their defenses. The court went on to rule that (1) it had jurisdiction over plaintiffs’ ERISA claims because of ERISA’s nationwide service of process rules, (2) it had pendent jurisdiction over the state law claims, (3) plaintiffs had standing because they alleged that the patients had validly assigned their rights to plaintiffs and that defendants had waived any arguments regarding the plans’ anti-assignment provisions, (4) it was premature to dismiss plaintiffs’ state law claims as preempted because “further factual development is necessary to determine whether the patients’ health insurance plans are governed by ERISA,” (5) plaintiffs had plausibly alleged their claims because they had “pleaded that they provided medically necessary covered service to the patients, which the defendants did not reimburse,” (6) venue was proper in Nevada because plaintiffs were located there and the treatment at issue was provided there, and (7) it was not clear from the face of the complaint that plaintiffs’ claims under ERISA and for breach of contract were untimely. Other issues, such as whether one patient’s claims arose under the California Public Employees’ Retirement System, or whether another patient’s claims were subject to arbitration, were deferred. Defendants scored one minor victory, as the court ruled that an unjust enrichment claim for one of the patients should be dismissed under the controlling Nevada statute of limitations. Otherwise, however, defendants’ motion to dismiss was denied.
THC-Orange County, LLC v. Regence Blueshield of Idaho, Inc., No. 1:24-cv-00154-BLW, 2024 WL 4008574 (D. Idaho Aug. 30, 2024) (Judge B. Lynn Winmill). Plaintiff Kindred Hospital is a long-term acute care hospital in California that provided extended care to a participant in an employee medical benefit plan insured by defendant Blue Shield. Blue Shield paid Kindred $554,143 for the treatment it provided, which was “a significant underpayment.” Kindred brought this action alleging violations of California law, and defendants filed a motion to dismiss, arguing that Kindred’s claims were preempted by ERISA. The court took judicial notice of the benefit plan at issue and granted defendants’ motion. The court ruled that Kindred’s claims had a “connection with” and a “reference to” an ERISA plan because the existence of the plan was crucial to Kindred’s claims, defendants’ obligation to pay was based on the plan, and the conduct underlying Kindred’s claims occurred during the administration of the plan. Kindred argued that the obligation at issue arose from its provider agreement with Blue Shield, but the court rejected this argument, ruling that “each of these claims seek to recover benefits due under the patient’s ERISA plan. Accordingly, Counts One through Six are preempted by ERISA and are dismissed with prejudice.”
Retaliation Claims
Eleventh Circuit
Jones v. Alfa Mut. Ins. Co., No. 2:21-CV-659-AMM, 2024 WL 3952573 (N.D. Ala. Aug. 26, 2024) (Judge Anna M. Manasco). Plaintiffs Tina Jones and Bobbie Simmons were assistant underwriters for defendant Alfa Mutual Insurance Company who were terminated in 2019 as part of a reduction in force in which their department was eliminated. At the time, they were passed over for other positions within the company. Plaintiffs brought this action alleging claims of discrimination and retaliation under the Age Discrimination in Employment Act (ADEA), and claims for interference with their rights under Section 510 of ERISA. Alfa filed a motion for summary judgment on all claims. The court granted the motion on the ADEA claims because, although plaintiffs had created a prima facie case of age discrimination, Alfa provided a legitimate, non-discriminatory reason for their termination, i.e., the reduction in force. The burden shifted to plaintiffs to show that this reason was pretextual, but the court ruled that they did not meet this burden because the evidence showed that they were not considered for other positions in the company because their performance rank was below those of others who did receive transfers. For similar reasons, the court granted Alfa’s motion as to plaintiffs’ ERISA claims, ruling that plaintiffs had insufficient evidence to show that their pensions were a factor in their termination. The court found that plaintiffs’ arguments did not address pretext and were unsupported by evidence showing that the persons involved in their terminations had access to their pension information or used it in making decisions. As a result, the court granted Alfa’s summary judgment motion in its entirety.