This week brings both a celebration of freedom from bondage and the beginning of summer.  The word solstice literally means to stand still, reminding all of us to pause to consider hard-won freedoms and our obligations to promote justice. To all our readers, we wish you a happy Juneteenth and a happy summer. 

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

Arbitration

First Circuit

Gonzalez v. UBS Fin. Servs., No. 19-01086-WGY, 2023 WL 3952983 (D.P.R. Jun. 12, 2023) (Judge William G. Young). The question before the court here was whether an ERISA plan participant can be compelled to arbitrate an ERISA claim for breach of fiduciary duty brought on behalf of the plan when the plan, but not the participant, signed an arbitration agreement. Echoing First Circuit and Supreme Court language, the court here held that arbitration is not a matter of coercion and concluded that plaintiff Francisco Gonzalez was not bound to arbitration in this instance. Adopting the stance of defendant UBS Financial Services would have the absurd effect, the court held, of “dragging along beneficiaries, participants…perhaps even the Secretary, into arbitration agreements of which they were unaware.” Because Mr. Gonzalez, and the other plan participants and beneficiaries of the Fund, did not enter into an arbitration agreement themselves, the court concluded that Mr. Gonzalez, who is independently statutorily entitled to sue, is not bound to arbitrate his claims, even though the relief if any would inure to the fund. Nor was Mr. Gonzalez bound to arbitrate under an estoppel theory. Overall, the court emphasized that “[a]rbitration is a voluntary process, and often an unfair process to relatively unsophisticated consumers.” If UBS wished to arbitrate with ERISA beneficiaries, the court wrote that “it needed to do so by contractual agreement, it did not do so here.” For these reasons, the court denied UBS’s motion to compel arbitration as well as its motion for summary judgment.

Breach of Fiduciary Duty

Second Circuit

Ravarino v. Voya Fin., No. 3:21-CV-1658 (OAW), 2023 WL 3981280 (D. Conn. Jun. 13, 2023) (Judge Omar A. Williams). Participants of the Voya 401(k) Saving Plan claim in this action that Voya Financial, Inc. and its wholly owned corporate companies have improperly managed the plan by including proprietary investment options to the benefit of the Voya defendants and the detriment of the investing employees. The participants argued that defendants failed to implement a prudent and loyal process for controlling plan costs and that they failed to select appropriate and well-performing investment options. Instead, plaintiffs maintain that defendants engaged in prohibited transactions and violated Section 1106(b) by dealing with plan assets in a way that personally benefited the Voya companies. Defendants moved to dismiss the entirety of plaintiffs’ action. Their motion was mostly granted in this decision. With regard to all but one of the challenged investment options, the court concluded that plaintiffs could not state a valid breach of fiduciary duty claim because they lacked adequate long-term comparisons to demonstrate imprudent costs and underperformance. However, the court allowed plaintiffs to proceed with their fiduciary breach claims relating to the Voya Small Cap Growth Trust Fund because it was added to the plan after it already had a significant history of underperformance and because the fund retained the investment option even after a “mass exodus of investors from the fund in 2019.” The court therefore found that plaintiffs stated their breach of fiduciary duty claim with regard to this one challenged option, as well as derivative claims of failure to monitor and co-fiduciary liability as they pertained to this fund. In addition, the court found that plaintiffs stated a claim for prohibited transactions with other parties-in-interest for their own benefit against all defendants. Nevertheless, the remainder of plaintiffs’ causes of action, the majority of their complaint, was dismissed. In general, the court agreed with defendants that plaintiffs’ complaint could not be read to infer most of the wrongdoing alleged.

Anderson v. Advance Publications, Inc., No. 22 Civ. 6826 (AT), 2023 WL 3976411 (S.D.N.Y. Jun. 13, 2023) (Judge Analisa Torres). Former plan participant Jermaine Anderson, individually and on behalf of the Advance 401(k) Plan and a putative class of similarly situated individuals, brought this action against Advance Publications, Inc. alleging that it breached its fiduciary duties under ERISA by selecting and maintaining a suite of ten BlackRock LifePath Target Date Funds despite their significant underperformance when compared to mutual fund alternatives and the broader target date fund marketplace. Advance Publications moved to dismiss the complaint for failure to state a claim. The court granted the motion, and dismissed the entire action, although it did so without prejudice. Plaintiff’s allegations of an imprudent monitoring process, and the comparators he selected to demonstrate the underperformance, were found by the court to be insufficient, conclusory, and speculative. Applying Twombly, the court stated that it could not infer any of the mismanagement alleged, even reading the complaint in the light most favorably to Mr. Anderson. However, because the court found that the deficiencies it identified could potentially be cured through amendment, the court permitted Mr. Anderson to amend his complaint should he wish to do so.

Class Actions

Fourth Circuit

Sweet v. Advance Stores Co., No. 7:21-cv-549, 2023 WL 3959779 (W.D. Va. Jun. 9, 2023) (Judge Michael F. Urbanski). Five named plaintiffs, on behalf of themselves, the Advance Auto Parts, Inc. 401(k) Plan, and a class of similarly situated plan participants and beneficiaries, brought this suit against the plan’s fiduciaries pursuant to Sections 409 and 502 of ERISA for breaches of fiduciary duties of prudence and loyalty for failure to control plan costs and to ensure investment options performed adequately. Plaintiffs moved to certify the class. The court granted their motion and certified the class in this order. The court was satisfied that all the prerequisites of Rule 23(a) were met, as the class has over 22,000 participants, there are common questions of fact as to the defendants’ conduct overseeing and managing the plan, the named plaintiffs are typical of the other class members, and the named plaintiffs and their counsel are adequate and qualified representatives to represent the class. Furthermore, the court held that certification under Rule 23(b)(1) was appropriate, as is typically the case for similar breach of fiduciary duty class actions brought under Section 502(a) of ERISA.

Disability Benefit Claims

Third Circuit

Mucciacciaro v. Hartford Life & Accident Ins. Co., No. 22-01503, 2023 WL 4014278 (D.N.J. Jun. 15, 2023) (Judge Christine P. O’Hearn). Plaintiff Sandra Mucciacciaro’s claim for long-term disability benefits was denied by Hartford Life and Accident Insurance Company based solely on the fact that up until the point when she submitted her claim she was working full-time and therefore was performing the essential functions of her job as a dental hygienist. Ms. Mucciacciaro attempted to convince Hartford that she had been working full-time despite the significant challenges caused by her disabling back problems and that she had requested an accommodation from her employer which was ultimately denied. After Hartford upheld its denial during the internal appeals process, Ms. Mucciacciaro commenced this disability benefit action seeking a court order finding the denial of her claim arbitrary and capricious. In this decision ruling on the parties’ cross-motions for summary judgment, Ms. Mucciacciaro got just that. The court pointed out the flaws in Hartford’s logic underpinning its denial. “If Defendant could lawfully deny an employee’s disability claim simply because they are working full-time and thus per se not disabled then the employee would necessarily be forced to reduce their hours or leave employment to establish disability. Reducing hours or leaving could, however, have the effect of terminating the employee’s coverage…This is not a hypothetical or speculative result it is the exact circumstances in which Plaintiff’s [sic] found herself. If Defendant’s interpretation was correct, Plaintiff was presented with a catch-22: continue working full-time and never be able to prove herself disabled under the Policy or stop working and lose coverage. Under this theory, no employee could qualify for disability and that simply cannot be how the Policy is interpreted.” Accordingly, the court held that the denial on this basis was arbitrary and capricious, and therefore denied Hartford’s motion for judgment and granted judgment for Ms. Mucciacciaro. However, because Hartford never made a determination on Ms. Mucciacciaro’s claim based on a substantive analysis of her medical records, the court concluded that the proper course of action here was to remand for Hartford to perform that analysis.

Sixth Circuit

Bulas v. Unum Life Ins. Co. of Am., No. 2:22-cv-112, 2023 WL 3951214 (S.D. Ohio Jun. 12, 2023) (Judge Sarah D. Morrison). Interventional and diagnostic radiologist Dr. Robert Bulas applied for and began receiving total disability benefits in 2017 after he experienced a sudden loss of vision in his right eye. For four years defendant Provident Life and Accident Insurance Company paid Dr. Bulas benefits. In fact, during a 2019 review of Dr. Bulas’ file, Provident determined that the likelihood Dr. Bulas could return to work in his occupation “seems poor even with surgery.” Dr. Bulas did undergo several eye surgeries, the last of which, in 2021, improved his condition somewhat. Based on this modest improvement, Provident terminated Dr. Bulas’ benefits, concluding he could return to his work performing diagnostic radiology. Dr. Bulas appealed. He argued that “there is a world of difference between being able to read an eye chart and being able to perform diagnostic radiology.” Dr. Bulas’ internal appeal of Provident’s decision was ultimately unsuccessful, prompting this ERISA civil action. The parties filed cross-motions for summary judgment under abuse of discretion review. In this decision the court concluded that the denial was arbitrary and capricious and granted summary judgment in favor of Dr. Bulas, reinstating his benefits. The court agreed with Dr. Bulas that Provident’s review was not “a deliberate and principled reasoning process,” and that it was operating under a conflict of interest which may have affected its decision-making. Also, the court stated that, “in addition to none of the four [medical reviewers] being independent, none of the four physicians examined Dr. Bulas in-person.” The totality of these factors led the court to agree with Dr. Bulas that the denial was improper.

Tenth Circuit

Easter v. Hartford Life & Accident Ins. Co., No. 21-4106, __ F. App’x __, 2023 WL 3994383 (10th Cir. Jun. 14, 2023) (Before Circuit Judges Holmes, Phillips, and Carson). Plaintiff-appellant Audrey Easter stopped working as a social worker and applied for long-term disability benefits identifying chronic fatigue syndrome, obstructive sleep apnea, and hypersomnia as her disabling conditions. Hartford Life & Accident Insurance Company denied Ms. Easter’s claim for benefits. Upon review of her medical records, and interviews with her treating physicians, Hartford concluded that there was not enough evidence to support the existence of functional impairments due to her sleep disorders which were severe enough to prevent her from working in her sedentary occupation. In particular, Hartford latched onto a statement from one of Ms. Easter’s own treating physicians who stated that she believed Ms. Easter was able to perform a sedentary occupation. Ms. Easter appealed the denial. Hartford affirmed its conclusions on appeal, prompting Ms. Easter to bring her suit under ERISA. On cross-motions for summary judgment, the district court concluded that the appropriate standard of review was abuse of discretion given the plan’s language granting Hartford discretionary authority. The district court rejected Ms. Easter’s position that Hartford’s denial was procedurally flawed and that the court should therefore apply the procedural irregularities exception and trigger de novo review. Under deferential review, the district court found that Hartford’s denial of Ms. Easter’s claim was supported by substantial evidence and thus granted summary judgment in favor of Hartford. Ms. Easter appealed to the Tenth Circuit. In this decision, the Tenth Circuit affirmed the entirety of the district court’s conclusions. To begin, the court of appeals agreed with the lower court that there were not significant procedural irregularities to warrant changing the standard of review. Specifically, the appeals court found that Hartford consistently addressed Ms. Easter’s disabling conditions, that it did not need to inform her of what additional information would be needed to perfect her claim because no such information was required, and that Hartford properly addressed all of the evidence provided by Ms. Easter and adequately explained why it disagreed with the information in the record favorable to her. Having concluded that deferential review should not be disturbed due to any procedural claim-handling problems, the court of appeals turned to addressing Hartford’s decision. There it found that Hartford based its denial on a thorough and fair investigation of Ms. Easter’s claim and that its decision to deny the claim was reasonable given the medical records which substantially supported its position. For these reasons, the Tenth Circuit declined to disturb the district court’s ruling.

Discovery

First Circuit

Bonomo v. Factory Mut. Ins. Co., No. 1:21-cv-11750-IT, 2023 WL 3934696 (D. Mass. Jun. 9, 2023) (Judge Indira Talwani). In this decision the court ruled on motions brought by both parties related to discovery matters in a lawsuit stemming from denials of ERISA severance benefits following a corporate merger. The discovery process had been underway for quite some time before this ruling. Originally, all discovery was scheduled to be completed by July 1, 2022. However, the court approved two joint motions to amend scheduling, eventually pushing back the discovery completion date to October 12, 2022. That date has now come and gone, with neither side satisfied by the other’s productions. In particular, the court found that three plaintiffs seriously disregarded their obligations to participate in discovery and timely produce requested documents. One of the plaintiffs responded very belatedly, and the other two failed to participate in discovery entirely, despite repeated promises from their counsel that their responses were forthcoming shortly. Plaintiffs appeared to provide no excuse or justification for their failure to comply. In response to the plaintiffs’ failure to engage in timely discovery under Federal Rules of Civil Procedure, defendant moved for court sanctions and sought to foreclose further discovery or modification to the scheduling order. The plaintiffs for their part moved to compel and moved to reopen discovery. The court began by addressing and granting defendant’s motion. First, the court deemed defendant’s requests for admission as to plaintiffs admitted per Rule 26(a)(3). The court also ruled that any objections made by plaintiffs in response to defendant’s production request were waived given their failure to timely respond. Turning to the request for sanctions, the court ordered plaintiffs to pay defendant nominal fees of $500, and ordered the two plaintiffs who never participated in discovery to produce affidavits showing cause why they should not be dismissed from this action. As for plaintiffs’ discovery motions, the court found that plaintiffs did not point to anything in the administrative record which establishes a good reason, like an obvious pattern of bias, to warrant supplementing discovery. Moreover, the court stated that plaintiffs “failed to offer any persuasive explanation for their failure to complete discovery within the previously established time frame.” Accordingly, both of plaintiffs’ discovery motions were denied.

ERISA Preemption

Third Circuit

Robinson v. Allstate, No. 22-6527 (MAS) (TJB), 2023 WL 3932852 (D.N.J. Jun. 9, 2023) (Judge Michael A. Shipp). Plaintiffs Linda Robinson, Michael Williams, and Zachary Williams sued Allstate, Allstate Retirement Plan, and Allstate 401(k) Savings Plan alleging four state law causes of action: breach of contract, breach of fiduciary duty, bad faith, and injunctive relief. The plaintiffs believe that defendants wrongfully paid or wrongfully intended to pay plan benefits to decedent Laverne Griffin’s ex-husband, contrary to a New Jersey state divorce decree in which the ex-husband waived all rights to Laverne’s accounts. Defendants moved to dismiss the action, arguing that the state law claims are preempted by ERISA. Plaintiffs missed the deadline to file a timely opposition to defendants’ motion to dismiss. Nevertheless, the court stated that it was required to evaluate the motion on the merits. It did so, and agreed with defendants that the state law causes of action are within the purview of ERISA preemption as they relate to ERISA-governed pension plans and the plans are a critical factor in establishing liability for each of the claims. Accordingly, the court agreed with defendants that plaintiffs’ claims are preempted by ERISA, and therefore granted the motion to dismiss.

Medical Benefit Claims

Ninth Circuit

K.K. v. Premera Blue Cross, No. C21-1611-JCC, 2023 WL 3948236 (W.D. Wash. Jun. 12, 2023) (Judge John C. Coughenour). Mother and daughter K.K. and I.B. sued their self-funded ERISA welfare plan’s third-party administrator, Premera Blue Cross, for benefits under Section 502(a)(1)(B) and for equitable relief for an alleged violation for the Mental Health Parity and Addiction Equity Act, after Premera denied the family’s claim for I.B.’s one-year stay at a residential treatment center. The parties cross-moved for summary judgment, and Premera also moved to seal the administrative record. The court granted Premera’s motions and denied plaintiffs’ motion. To begin, the court concluded that the plan’s discretionary language requires abuse of discretion review of the denial. Meanwhile, the court expressed that it would apply de novo review of the Parity Act claim, as the Plan’s compliance with the Parity Act is a question of law. Plaintiffs argued that Premera wrongly denied I.B.’s claim for benefits for her residential treatment, and that it failed to engage in a meaningful dialogue with them. Premera responded that I.B.’s treatment was not medically necessary under the plan’s InterQual criteria because she lacked the required symptoms under the guidelines. Moreover, the InterQual criteria also require that extended stays at residential treatment facilities are only medically necessary if the provider performs weekly psychiatric evaluations, which did not happen here. Under deferential review, the court concluded that Premera had the stronger arguments. “[T]he Court cannot find that Premera’s decision…was illogical, implausible, or without support in inferences drawn from the record…Nor can the Court find that Premera’s communications with Plaintiffs failed to demonstrate the required meaningful dialogue. There was no shifting rationale. At each stage, Premera communicated a consistent basis for its decision.” Accordingly, the court granted summary judgment to Premera on plaintiffs’ benefit claim. It did so on plaintiffs’ Parity Act claim as well. The court focused in on the fact that the Parity Act requires only that plans apply the same processes and standards for both medical and behavioral health/mental health coverage, not that the “resulting treatment criteria be the same.” Based on this, the court held that plaintiffs could not meet their burden of proving unequal access to mental healthcare treatments, despite the fact the plan only applied the InterQual criteria to mental and behavioral healthcare claims and not to hospice care. Finally, although the request came from Premera and not I.B. herself, the court agreed to seal the administrative record because of the personal medical information contained within it.

Pleading Issues & Procedure

Seventh Circuit

Huber v. IKORCC Pension Plan, No. 2:23-CV-71-JPK, 2023 WL 4015938 (N.D. Ind. Jun. 15, 2023) (Magistrate Judge Joshua P. Kolar). Pro se plaintiff Jeramie S. Huber filed this ERISA action against his pension plan, the Indiana Kentucky Ohio Regional Council of Carpenters Pension Plan, seeking a court order requiring the Plan to return his contributions. Mr. Huber alleged in his complaint that his contributions were “illegally invested” and that he requested certain documents from the Plan which the Plan failed to provide. The Plan moved to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The court granted the Plan’s motion to dismiss and dismissed the case without prejudice. Even viewing the complaint liberally and in the light most favorable to Mr. Huber, the court ultimately concluded that it did not satisfy notice pleading as the allegations were simply too vague and conclusory. For instance, the court found that Mr. Huber did not plead adequate facts to reasonably infer that he was denied some specific information or documents from the plan to which he was entitled. With regard to the allegedly illegal plan investments, the court wrote that the “complaint does not explain what investments he is referring to, or why they conflicted with the plan rules or the participants’ interests.” Without these types of necessary details, the court held that Mr. Huber had not stated any claim for which the court could provide relief.

Ninth Circuit

Kristiansen v. Aldaoud, No. CV-22-01976-PHX-DJH, 2023 WL 4031964 (D. Ariz. Jun. 15, 2023) (Judge Diane J. Humetewa). Plaintiff Kjell Kristiansen initiated this ERISA action against his former employer, Dr. Feras Aldaoud, alleging that he and his wife mismanaged the company’s 401(k) plan and the funds Mr. Kristiansen invested in it. Mr. Kristiansen brings two causes of action in his complaint, a claim for breach of fiduciary duty and a claim for prohibited transactions. He argued that defendants invested his funds in a manner which contravened his directions, and that they used those funds for their own self-interest by directly accessing and using the plan assets. Defendants moved to strike certain allegations made by Mr. Kristiansen in his amended complaint. The court assessed the motion to strike under Federal Rule of Civil Procedure 12(f) and concluded that the challenged allegations in the amended complaint are not immaterial or impertinent and that “Defendants cannot use their Motion to Strike to advance evidentiary objections at this stage of litigation because the complaint sets forth allegations and is not yet weighed in terms of admissible evidence.” In addition, the court was unpersuaded that defendants would be prejudiced if their motion was not granted. Because the court concluded that defendants did not meet their burden to show that the allegations should be stricken under the circumstances provided by Rule 12(f), it denied the motion.

Retaliation Claims

Fourth Circuit

Adkins v. CSX Transp., No. 21-2051, __ F. 4th __, 2023 WL 4035811 (4th Cir. Jun. 16, 2023) (Before Circuit Judges Niemeyer, Agee, and Rushing). In this action, a group of 58 former employees of CSX Transportation, Inc., sued their former employer under ERISA, the Family Medical Leave Act, the Rehabilitation Act, and the West Virginia Human Rights Act, alleging that CSX discriminated and retaliated against them for seeking medical leave. The district court granted summary judgment to CSX on all claims. It concluded that CSX provided a legitimate nondiscriminatory reason for the terminations – suspected fraud based on the uncanny similarities in the particulars of all of the employees’ leave. In support of their belief that the employees were acting dishonestly, CSX pointed out a clear pattern discernable in the forms that the employees submitted. All of the employees were taking medical leave based on the exact same soft-tissue injury and all of their forms were signed by the same two chiropractors. This evidence proved persuasive to the district court. On appeal to the Fourth Circuit, the terminated employees fared no better. The court of appeals affirmed, agreeing that CSX was within its rights to terminate the plaintiffs “and that the plaintiffs failed to present evidence to create a genuine issue of material fact as to whether the reason was pretextual.” Additionally, the court of appeals held that plaintiffs did not present evidence that CSX interfered with their FMLA rights because the employer “honestly believed that the plaintiffs were seeking leave for an improper purpose.” Based on the foregoing, the court of appeals agreed with the district court that there was “ample evidence to raise legitimate suspicions of benefits abuse,” and therefore affirmed the holdings of the lower court.

Peters v. Aetna Inc., No. CIVIL 1:15-cv-00109-MR, 2023 WL 3829407 (W.D.N.C. Jun. 5, 2023) (Judge Martin Reidinger)

Fee cases have long been a dominant part of pension litigation. With the increased scrutiny on healthcare plan practices and the uptick in ERISA healthcare litigation in recent years, plan participants and fiduciaries are increasingly challenging fees and costs associated with their healthcare plans. Today’s notable decision is a good example of this trend.

Plaintiff Sandra M. Peters brought a putative class action to challenge a billing scheme between insurance company Aetna and its subcontractor Optum. Ms. Peters alleges that the Aetna and Optum defendants circumvented the terms of the 1,954 self-funded ERISA healthcare plans encompassed in the putative class, all of which specify that Aetna is responsible for covering all subcontractor costs. Ms. Peters alleges Aetna buried the natures of these costs and billed the plans, participants, and beneficiaries for reimbursement of these administrative fees by using a dummy code to treat Optum as a medical provider rather than a subcontractor.

The case has a long procedural history. In her original complaint, Ms. Peters brought claims under ERISA Sections 502(a)(1)(B), (a)(2), and (a)(3) for restitution of the overcharged amounts, disgorgement and surcharge of improper gains, and several forms of declaratory and injunctive relief, including prospective relief. Ms. Peters seeks to bring her case as a class action on behalf of two classes, a plan class and a participant class.

After the discovery period ended, Ms. Peters moved for class certification and the defendants moved for summary judgment. The court granted summary judgment in favor of the defendants and dismissed all of Ms. Peters’ claims. She appealed to the Fourth Circuit, which ruled largely in her favor, reversing, vacating, and remanding much of the court’s summary judgment order. The Fourth Circuit’s decision in the case was Your ERISA Watch’s case of the week in our June 30, 2021 edition.

On remand from the court of appeals, Ms. Peters and the defendants renewed their arguments for and against her standing to assert her claims, Optum reasserted its arguments that it should be dismissed, and Ms. Peters renewed her arguments for class certification. The district court addressed each of these arguments in turn.

First, the court addressed the effect of the Fourth Circuit’s decision on Ms. Peters’ restitution claims. The Fourth Circuit held that Ms. Peters could not show a financial loss to establish standing on her restitution claim under the criteria set forth in Donovan v. Bierwirth, 754 F.2d 1049 (2d Cir. 1985), because Ms. Peters and her plan actually paid less than or equal to what they would have paid for her healthcare claims if Optum’s administrative fee were not included in the billed charge. In light of this ruling from the Fourth Circuit, the district court unsurprisingly dismissed Ms. Peters’ restitution claims under Section 502(a)(2).

Second, the court addressed defendants’ arguments regarding Ms. Peters’ standing to bring the rest of her claims. Again relying on the Fourth Circuit’s decision, the court was satisfied that Ms. Peters and the proposed classes have standing to bring the claims for equitable relief. The district court agreed with the Fourth Circuit that financial injury is not a prerequisite to pursue claims of surcharge, disgorgement, declaratory, and injunctive relief. The court also stated that it disagreed with defendants’ position that the Fourth Circuit’s holding with respect to standing was in conflict with standing decisions from the Supreme Court. Nevertheless, the district court held that Ms. Peters, who is no longer a plan participant insured by Aetna, lacked standing to assert claims for prospective declaratory and injunctive relief because she lacks a concrete risk of future harm. Therefore, her claim for prospective injunctive relief was dismissed.

In the third section of the decision, the court tackled Optum’s renewed request for dismissal from the class action. The district court concluded that “Optum’s arguments are foreclosed by the Fourth Circuit’s opinion.” The district court pointed out that the court of appeals had already concluded that Ms. Peters “presented sufficient evidence from which a reasonable factfinder could conclude that ‘Optum could be held as a party in interest involved in the prohibited transactions based on its apparent participation in and knowledge of Aetna’s administrative fee billing model.’” On this basis, the court denied Optum’s request to be dismissed.

In the final and longest section of the decision, the court assessed Ms. Peters’ class certification motion. As a preliminary matter, the court agreed with Ms. Peters that the proposed class members were ascertainable based on the defendants’ own data identifying the members, the plans, and the fees charged for each particular claim. The court then evaluated the two putative classes under Rule 23(a) and concluded that they met Rule 23(a)’s requirements. Regarding numerosity, there was no dispute that the class was sufficiently numerous given the 87,754 plan participants and 1,954 plans that were billed the administrative fees. As for commonality, the court identified several issues of law and fact that were common to all putative members related to both Aetna and Optum’s conduct. The court applied this same logic to its typicality assessment, concluding that Ms. Peters’ claims and the claims of the putative classes are based on the same facts and legal theories and therefore are typical of those of the classes. Finally, the court found that Ms. Peters and her experienced class counsel from the Van Winkle Law Firm and Zuckerman Spaeder LLP had proven that they could adequately represent the classes.

With the requirements of Rule 23(a) cleared, the court turned to the requirements of Rule 23(b). It found that there is a risk of inconsistent judgments resulting in conflicting standards of conduct for the defendants if the case cannot proceed as a class action. Furthermore, the court concluded that common issues predominate over insignificant individual differences, and that “judicial economy weighs heavily in favor of proceeding as a class action,” as “there is little incentive for individual plaintiffs to bring their cases independently because the cost of doing so far exceeds the value of their individual claims.” Having determined that Ms. Peters met the criteria for certification under both Rule 23(a) and (b), the court granted her motion to certify the two classes.

Clearly, this decision represents a significant victory for Ms. Peters and the participants and plans she now represents. But considering the many years it has taken to get to this point, this case demonstrates the challenges for both plaintiffs and defendants in ERISA healthcare litigation.

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

Breach of Fiduciary Duty

Sixth Circuit

Davis v. Magna Int’l of Am., No. 20-11060, 2023 WL 3821807 (E.D. Mich. Jun. 5, 2023) (Judge Nancy G. Edmunds). Participants in the Magna Group of Companies Retirement Savings 401(k) Plan sued Magna International of America, Inc., its board of directors, and two committees of the plan, an investment committee, and a retirement savings committee, for breaches of fiduciary duties of loyalty, prudence, and monitoring. The plaintiffs claim that defendants breached their duties to the plan and its participants by failing to review the plan’s investment portfolio to ensure that the investment options were prudent in terms of costs and performance. Defendants moved for summary judgment. The court granted in part and denied in part their motion. It began with an assessment of plaintiffs’ claims for breaches of fiduciary duties of prudence and loyalty. With regard to the investment option claims, the court held that defendants’ arguments defending their actions in selecting and retaining the challenged share classes, mutual funds, and collective trusts could not be resolved without the court weighing or interpreting the evidence. “Viewing the evidence in the light most favorable to Plaintiffs, the Plaintiffs have raised genuine issues of material fact related to whether the Defendants prudently monitored the Plan’s challenged investments.” As a result, the court denied defendants’ motion for summary judgment on the investment option claims. The court also denied defendants summary judgment on the recordkeeping costs claims. It concluded that the plaintiffs have presented compelling evidence that challenged whether the monitoring of recordkeeping fees was prudent. Specifically, the court agreed with plaintiffs that defendants had a duty to monitor costs on an ongoing basis, and that they likely did not do so here as they failed to regularly solicit bids from competitors and “predominately relied only on information provided by Principal (the plan’s recordkeeper) to monitor the Plan’s fees, including through documents produced by Principal.” Thus, the court agreed with plaintiffs that there were genuine issues of material fact as to whether defendants adequately monitored fees. Also, the court concluded that plaintiffs had enough evidence to allow them to continue with their breach of loyalty claim, because Principal had interests in both the recordkeeping fees and its proprietary target date funds that it selected and retained as plan investments. The court did, however, grant defendants’ motion for judgment on plaintiffs’ monitoring claim against the board, concluding that the board did not have the power to appoint or remove committee members, and therefore had no obligation under ERISA to oversee them.

Class Actions

Third Circuit

Packer v. Glenn O. Hawbaker, Inc., No. 4:21-CV-01747, 2023 WL 3851993 (M.D. Pa. Jun. 6, 2023) (Judge Matthew W. Brann). In the spring of 2021, the Office of the Attorney General of Pennsylvania filed a criminal complaint against Glenn O. Hawbaker, Inc. alleging that the company stole “its prevailing wage workers’ pension and health and welfare money” and that it used those fringe benefits for its own ends. In the criminal case, the AG calculated that Hawbaker’s theft totaled more than $20 million. In August of that same year, Hawbaker pleaded nolo contendere to all claims and committed to pay restitution in the amount of $20,696,453 to the 1,262 prevailing wage worker victims. Two months later, three of those victims filed this ERISA putative class action. Tethering their complaint to the criminal case, the plaintiffs allege that Hawbaker, its board of directors, and the administrator of the benefits plan breached their fiduciary duties to the plan participants. In this decision the court ruled on plaintiffs’ class certification motion wherein they sought to certify their class of all current and former hourly wage employees who worked at Hawbaker during the relevant period. The court began by assessing the putative class under the requirements of Rule 23(a). First, the court agreed with plaintiffs that the class will include at least the 1,262 individuals encompassed in the plea deal of the four felony charges. As this number greatly exceeds the 40 individuals sufficient to establish numerosity, the court concluded that this requirement was easily met. Next, the court concurred with plaintiffs that common questions of law and fact are applicable to all class members including “whether the Defendants breached fiduciary duties owed to the Plan and its participants by failing to pay properly and timely the correct amount of wages and benefits.” Additionally, the court decided that the injuries to the putative class members stem from the same conduct by the defendants, and that the named plaintiffs’ claims are therefore typical of those of the rest of the class. Finally, the court found that the plaintiffs and their experienced class action attorneys are adequate representatives who can appropriately represent the class members to obtain relief from the defendants. Accordingly, the court was satisfied that all of the requirements of Rule 23(a) are met. It therefore moved on to evaluating the class under Rule 23(b). Following the clear direction of the Third Circuit, the court agreed that ERISA breach of fiduciary duty actions like this one are “paradigmatic examples of claims appropriate for certification as a Rule 23(b)(1) class.” This is because allowing separate actions to proceed would likely result in contrary and incompatible rulings, meaning “one district court should determine whether Defendants’ uniform conduct with respect to the Hawbaker Benefits Plan constitutes a breach of fiduciary duties.” For these reasons, the court determined that plaintiffs presented evidence to establish the proposed class meets the obligations of Rule 23, and therefore granted the motion and certified the class.

Disability Benefit Claims

Second Circuit

Glickman v. First Unum Life Ins. Co., No. 19-CV-5908 (VSB), 2023 WL 3868519 (S.D.N.Y. Jun. 7, 2023) (Judge Vernon S. Broderick). In early 2016, Dr. Laurence T. Glickman was diagnosed with prostate cancer. That fall he underwent prostatectomy surgery. Unfortunately, the surgery did not go well. It resulted in an injury which left Dr. Glickman with pain, weakness, and fatigue. Dr. Glickman kept working for the next year. However, by December 2017, Dr. Glickman felt he could no longer continue practicing due to his limitations and he filed a claim for disability benefits under his ERISA plan. The plan’s insurance provider, defendant First Unum Life Insurance Company, approved Dr. Glickman’s claim for benefits, and determined that his disability date was November 1, 2017. Unum later rescinded that determination. It recalculated and determined that the proper start date of the elimination period was the date of the prostate surgery on September 1, 2016. The difference in the two dates amounted to a significant decrease in Dr. Glickman’s benefit, and thus he challenges that determination and Unum’s reading of the policy’s elimination period in this lawsuit. The parties cross-moved for summary judgment. The court entered judgment in favor of Dr. Glickman under de novo review. It concluded that his reading of the plan language was more straightforward than Unum’s. “Plaintiff’s reading gives effect to more of the Plan as written, making it the preferable reading…to meet the Requirements that define disability under the Plan, a person must be ‘limited from performing the material and substantial duties of his regulation occupation due to his sickness or injury; and’ must ‘have a 20% or more loss in his indexed monthly earning due to the same sickness or injury.’ Plaintiff’s reading focuses on those last seven words. As Plaintiff explains the Plan, a covered physician is disabled where a single ‘sickness or injury’ is the cause of both the Limitation Requirement and the Income Requirement.” This reading, the court found, did not require elimination of words or terms out of the plan. Moreover, even if the court found the plan language ambiguous, it stated that such ambiguity should be construed against Unum and in favor of Dr. Glickman. Accordingly, the court granted summary judgment in favor of Dr. Glickman.

Eleventh Circuit

Evans v. Life Ins. Co. of N. Am., No. 2:22-cv-00075-ACA, 2023 WL 3868384 (N.D. Ala. Jun. 7, 2023) (Judge Annemarie Carney Axon). In 2013, plaintiff Heath Evans suffered an injury to his back while working as a wireline operator. The injury left Mr. Evans with lingering pain and limitations and required him to undergo two spinal surgeries. From the time of the injury until 2018, Mr. Evans received disability benefits under his ERISA-governed disability benefit plan. Circumstances changed when the plan’s insurance company switched from MetLife to defendant Life Insurance Company of North America (“LINA”). As soon as LINA took over as the plan’s claims administrator, it opened up an investigation into Mr. Evans’ entitlement to disability benefits. As part of this review, LINA had one of its doctors conduct an in-person examination of Mr. Evans. LINA’s doctor concluded that Mr. Evans was greatly exaggerating his pain, exhibiting, in his words, “highly dramatic and over the top pain behavior.” The doctor determined that Mr. Evans did not have strict restrictions in his ability to perform many types of work. Relying on this in-person review, as well as the opinions of two other LINA-employed medical professionals, LINA determined that Mr. Evans no longer satisfied his plan’s definition of disabled from any occupation and therefore terminated his benefits. Mr. Evans exhausted LINA’s internal appeals procedures and then initiated this ERISA lawsuit. The parties filed cross-motions for judgment on the administrative record. Mr. Evans argued that LINA’s decision ignored his self-reported pain, the conclusions of his treating physicians, and his entirely favorable decision from the Social Security Administration. The court did not agree and concluded that LINA’s denial was not de novo wrong. The court favored the opinions of the non-treating physicians over those of the treating physicians, as it found their conclusions based on objective medical evidence rather than subjective self-reports of pain. The court wrote, “the more recent medical opinions all establish that Mr. Evans can perform sedentary work.” In addition, the court stressed that this more recent evidence was not before the administrative law judge who ruled in favor of Mr. Evans on his claim for Social Security Disability Benefits, which helped to explain why the Social Security Administration reached a different conclusion than LINA. Finally, the court was satisfied that LINA engaged in an appropriate vocational assessment of Mr. Evans and accurately determined that jobs existed in the economy that Mr. Evans could perform. Thus, under de novo review the court held that LINA’s decision was not wrong and entered judgment in its favor.

ERISA Preemption

Second Circuit

Facey v. Intrinsic Tech. Grp., No. 23-cv-3392(DLI)(RER), 2023 WL 3794136 (E.D.N.Y. Jun. 2, 2023) (Judge Dora L. Irizarry). Plaintiff Sasha Deandra Facey sued her former employer and former boss, defendants Intrinsic Technology Group, Inc. and Rajajneesh Dhingra, in New York state court alleging that they discriminated against her under state and local disability discrimination laws throughout her employment and when she was terminated from her employment. Defendants removed the action to federal court based on federal question jurisdiction. Ms. Facey subsequently moved for remand. To date, the defendants have not responded to Ms. Facey’s motion. She argued that ERISA does not preempt her state law causes of action. The court agreed and granted her motion in this order. First, the court found that although it is possible that Ms. Facey could have brought a claim under Section 510 of ERISA, her state law discrimination claims nevertheless implicate independent legal duties. From the complaint, it is clear that Ms. Facey alleges that she was discriminated and retaliated against because of her diagnosis of Lupus. The court found that while the complaint does mention that Ms. Facey was terminated after inquiring about health insurance relating to her medical needs, it also provides numerous other supporting factual allegations and examples of discrimination that are completely unrelated to any ERISA benefit plan, including patterns of hostile conditions and discriminatory attitudes. The court was therefore convinced that this is an example of a case where the claims can clearly survive in the absence of the ERISA benefit plan. “In sum, ‘[this] is not a lawsuit claiming wrongful withholding of ERISA covered plan benefits; it is a lawsuit claiming discrimination resulting in damages, one component of which [may be] a sum owed under the provision of [a] plan.’” Thus, the court concluded that defendants failed to establish that ERISA preempts Ms. Facey’s claims and therefore remanded the action to state court.

Life Insurance & AD&D Benefit Claims

Fifth Circuit

Krishna v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA., No. H-22-3423, 2023 WL 3887814 (S.D. Tex. Jun. 8, 2023) (Judge Sim Lake). Plaintiff Deepa Krishna is the widow of Karthik Balakrishnan. Mr. Balakrishnan was employed as a Senior Marketing Manager at Honeywell International, Inc. As part of his employment with Honeywell, Mr. Balakrishnan was a member of its employee welfare benefit plan, which included Business Travel Accident Insurance provided by defendant National Union Fire Insurance Company of Pittsburgh, PA. Sadly, Mr. Balakrishnan died on October 25, 2020, in a crash of a small private airplane flying to Texas. Ms. Krishna submitted a claim for benefits under the Business Travel Accident Insurance policy. She believed that her husband’s death fell under the terms of the policy as he was traveling to Texas for work. She argued that his work assignment included travel to Texas as needed, and that he had decided to fly to Texas for work reasons. Honeywell and National Union Fire did not agree. They took the position that the term “while on assignment by or at the direction of the Policyholder for the purpose of furthering the business of the Policyholder,” means that the employer had to have knowledge of and approved the business travel. Because Mr. Balakrishnan had decided on his own to travel, they felt that his trip did not qualify as an approved business trip and the decedent’s widow and their four-year old daughter were therefore not entitled to benefits under the plan. Ms. Krishna filed this lawsuit to challenge the denial under Section 502(a)(1)(B), seeking benefits, interest, attorneys’ fees, and costs. The parties filed cross-motions for judgment on the administrative record. As an initial matter, they disputed the relevant standard of review. National Union Fire argued that the plan included unambiguous discretionary language triggering deferential review. Ms. Krishna argued that the applicable standard of review should be de novo because National Union Fire had an unauthorized third-party law firm decide her administrative appeal, and because that appeal was untimely under ERISA’s governing regulations. The court excused this “technical noncompliance,” finding they did not rise to “wholesale or flagrant violations” worthy of converting the standard of review from abuse of discretion to de novo. The court then continued its decision with more unfavorable rulings for Ms. Krishna. It concluded that “as needed” travel was not sufficient to qualify for benefits under the clear policy language. Thus, absent evidence that Mr. Balakrishnan was traveling at the direction of Honeywell on his trip to Texas, the court held that Ms. Krishna’s claim failed as a matter of law. Under abuse of discretion review, it held that the denial was a legally correct interpretation of the plan language and that it was supported by substantial evidence provided by Honeywell. Finally, the court stated that under Fifth Circuit precedent National Union Fire was under no duty to investigate or challenge the validity of the information Honeywell provided. Based on the foregoing, the court granted defendant’s motion for judgment and denied Ms. Krishna’s cross-motion for judgment.

Medical Benefit Claims

Eighth Circuit

Shafer v. Zimmerman Transfer, Inc., No. 22-2275, __ F. 4th __, 2023 WL 3857343 (8th Cir. Jun. 7, 2023) (Before Circuit Judges Colloton, Wollman, and Gruender). Plaintiff Darrin Shafer underwent bariatric surgery for medical and weight loss purposes. Shortly after the surgery, Mr. Shafer found employment at Zimmerman Transfer, Inc. and became a participant in the company’s ERISA-governed healthcare plan. A couple of years later, Mr. Shafer was admitted to an emergency room complaining of abdominal pains, nausea, and vomiting. At the hospital, it became clear that Mr. Shafer was experiencing complications from his bariatric surgery. He was transferred to another hospital and informed he needed a second surgery to fix a bowel obstruction. His plan pre-certified the treatment. However, after the surgery took place, the plan denied the claim for benefits, concluding that “the hernia surgery is considered a complication of the patient’s prior bariatric surgery and excluded from coverage.” After an unsuccessful attempt to administratively appeal the denial, Mr. Shafer brought a lawsuit against Zimmerman and the plan’s benefits administrator under ERISA Section 502(a)(1)(B). The district court ultimately granted summary judgment for the defendants under deferential review. Mr. Shafer appealed the district court’s decision to the Eighth Circuit. On appeal, the Eighth Circuit affirmed. The court of appeals first held that Mr. Shafer did not lack standing to sue the former third-party administrator, reasoning that “the fact that a plan participant might not be able to enforce a money judgment against a former third-party administrator does not mean that he lacks standing to sue that defendant.” However, addressing the denial itself, the Eighth Circuit agreed with the district court that it was not an abuse of discretion. The court of appeals stated that Iowa laws about coverage of emergency medical treatment and the emergency treatment regulation of the Affordable Care Act “do not require that a plan cover all emergency services; rather, they require plans that already cover emergency services to satisfy additional requirements like covering out-of-network treatment. Moreover, the provisions state that coverage is subject to a plan’s exclusions.” Thus, the Eighth Circuit disagreed with Mr. Shafer that the plan was obligated to pay for his emergency surgery, as the plan specifically excludes treatment for complications stemming from weight-reduction surgeries. In addition, the appeals court decided that just because the treatment was medically necessary does not automatically make it a “Medically Necessary Covered Expense.” Having come to these conclusions, the Eighth Circuit held that the denial of Mr. Shafer’s claim was not arbitrary and capricious, stating that “the interpretation of the plan was reasonable and the decision to deny benefits was supported by substantial evidence.”

Ninth Circuit

A.H. v. Anthem Blue Cross, No. 22-cv-07660-HSG, 2023 WL 3819367 (N.D. Cal. Jun. 5, 2023) (Judge Haywood S. Gilliam, Jr.). Plaintiff A.H., on behalf of her minor child, B.H., sued her healthcare insurance provider, Anthem Blue Cross, in the District of Utah after Blue Cross denied the family’s claim for reimbursement of B.H.’s stay at a wilderness therapy treatment program for adolescents with mental health, behavioral, and substance use problems. After the case was transferred to the Northern District of California, Blue Cross moved to dismiss the complaint for failure to state a claim. It argued that A.H.’s claim for benefits under Section 502(a)(1)(B) failed on the face of the complaint because the plan does not cover treatment at wilderness programs. In addition, Blue Cross averred that A.H. could not state a claim under the Mental Health Parity and Addiction Equity Act because the plan’s wilderness program exclusion does not distinguish between treatment for mental health or treatment for medical/surgical problems. In this decision the court granted the motion to dismiss the benefits claim but denied the motion to dismiss the Parity Act claim. First, the court agreed with Blue Cross that A.H. had not plausibly alleged that she is entitled to benefits under the terms of the plan, given the unambiguous exclusion for wilderness programs. Nevertheless, at the pleading stage, the court accepted as true A.H.’s assertion that the wilderness program exclusion in the plan is a violation of the Parity Act because Blue Cross applies the exclusion exclusively on claims for substance use and mental healthcare treatment. Thus, viewing the allegations in the light most favorable to A.H., the court found it plausible that the coverage limitation is a violation of the Parity Act, and therefore denied the motion to dismiss the Parity violation claim.

Breitwieser v. Vail Corp., No. 2:21-cv-00568-DJC-KJN, 2023 WL 3853483 (E.D. Cal. Jun. 5, 2023) (Judge Daniel J. Calabretta). Mr. Breitwieser suffered a head injury which landed him in his local emergency room. When he submitted his claim for reimbursement of this stay to his self-funded ERISA healthcare plan, his employer, Vail Corporation, through its third-party plan administrator, denied the claim for emergency care under the plan’s intoxication provision. The medical records from the hospital make clear that Mr. Breitwieser was intoxicated at the time when the injury occurred. His blood alcohol content was .19%, and the treating physicians attested that his injury was likely the result of his intoxication. Mr. Breitwieser brought this action seeking a court review of the denial. Vail Corporation moved for summary judgment. Defendant’s position was simple. It maintained that it did not abuse its discretion in denying the claims for coverage because the plan includes an intoxication exclusion, and the uncontroverted medical evidence established that Mr. Breitwieser was under the influence of a substantial amount of alcohol at the time of the injury. The court agreed. To start, the court concluded that a California insurance law banning alcohol exclusions in healthcare plans was inapplicable here, as this plan is self-insured and therefore exempted from ERISA’s savings clause. Next, although the court agreed with Mr. Breitwieser that Vail Corporation had a structural conflict of interest in its decision-making, and that it should therefore apply a degree of skepticism to its analysis of the benefit determination, the court nevertheless concluded that the specifics of this case did not involve complex or subjective judgment calls making “the determination in the present case highly distinct from other situations that raise the specter of a conflict influencing a final benefits decision.” Overall, the court rejected Mr. Breitwieser’s argument that he was denied a full and fair review. The court held that the medical evidence clearly established that the intoxication exclusion was properly applied, and the denial was therefore reasonable. As a result, the court granted Vail Corporation’s motion for summary judgment.

Pleading Issues & Procedure

Sixth Circuit

Montgomery v. Smith, No. 3:23-cv-00275, 2023 WL 3853947 (M.D. Tenn. Jun. 6, 2023) (Judge Aleta A. Trauger). In this decision, the court screened the complaint of an inmate in Tennessee, pro se plaintiff Gary Montgomery, pursuant to the Prison Litigation Reform Act. Mr. Montgomery filed his complaint against his former wife, her lover, the estate of the judge who presided over his divorce proceedings and gave his ex-wife permission to access his 401(k) account, and nine other defendants, asserting claims under ERISA and Tennessee state law. Mr. Montgomery’s complaint tells a rambling story about a series of misdeeds and thefts involving the assets of his 401(k) Plan. Mr. Montgomery brought ERISA claims for breach of fiduciary duty and prohibited transactions. The court found that the complaint included plausible allegations of fiduciary breaches to state colorable non-frivolous claims under ERISA for the purposes of the required Prison Litigation Reform Act screening. The court therefore allowed the complaint to proceed for further development of these claims. In addition, the court stated that it could not sufficiently determine the scope of the judge’s judicial immunity at this state of litigation, and therefore allowed Mr. Montgomery’s Section 1983 claims against the judge’s estate to proceed. However, to the extent Mr. Montgomery requested that the court open an investigation into alleged criminal activity that he believes the defendants engaged in, the court took the opportunity to inform Mr. Montgomery that it lacks the jurisdiction to do so. Finally, because the court will allow Mr. Montgomery’s ERISA claims to proceed, it decided to exercise supplemental jurisdiction over his state law tort claims.

Remedies

Ninth Circuit

Dick v. Deseret Mut. Benefit Adm’rs, No. 2:21-cv-01194-HL, 2023 WL 3884550 (D. Or. Jun. 8, 2023) (Magistrate Judge Andrew Hallman). The estate of healthcare plan participant Susan K. Dick brought this ERISA lawsuit against Deseret Mutual Benefit Administrators to recover benefits due under her healthcare plan for three radiation treatments she received in 2020. In a previous decision the court ruled in plaintiff’s favor. The parties now dispute the proper judgment amount. The estate argued that it is entitled to the originally billed amounts of the medical procedures, totaling $229,173.27, “despite some of these amounts being written off by the provider and some amounts being paid by Deseret Mutual.” At first, Deseret Mutual sought recoupment of the payments from the provider, although it never received any reimbursement as the provider refused to return the payments. Defendant now stipulates that it has stopped efforts to recoup these payments. Because of this, Deseret Mutual maintains that plaintiff is only entitled to judgment totaling $43,185.62, for the expenses Ms. Dick incurred for the treatments, and that she is not entitled to the greater amount under the terms of the plan. The court agreed with Deseret Mutual and concluded that plaintiff was only entitled to recovery for the much lower amount. It read the plan to mean that the estate is only entitled to expenses that Ms. Dick incurred that remain due to her. “Ms. Dick did not incur the expenses that were written off by the provider or paid by Deseret Mutual.” Thus, the court entered judgment of $43,185.62 for the outstanding medical expenses plus prejudgment and post-judgment interest and statutory penalties.

Morris v. Aetna Life Ins. Co., No. 21-56169, __ F. App’x __, 2023 WL 3773656 (9th Cir. Jun. 2, 2023) (Before Circuit Judges Wardlaw and W. Fletcher, and District Judge Edward R. Korman)

Because ERISA allows benefit plan participants and beneficiaries (among others) to sue for breach of fiduciary duty, one of the thorniest questions in ERISA litigation is “who is a fiduciary?” This week’s notable decision from the Ninth Circuit tackles that issue, but first we must set the stage.

As Your ERISA Watch explained in its April 21, 2021 issue, the Ninth Circuit addressed this topic two years ago in Bafford v. Northrop Grumman Corp., 994 F.3d 1020 (9th Cir. 2021). In Bafford, the court considered Northrop Grumman’s pension plan, whose benefit statements were prepared by third party Hewitt (now Alight Solutions).

The plaintiffs brought a suit for breach of fiduciary duty against Northrop and Hewitt, alleging that Northrop and Hewitt had provided them with inaccurate pension benefit statements, on which they relied to their detriment when they retired. The defendants filed a motion to dismiss, arguing that calculation of pension benefits pursuant to a formula is not a fiduciary function, and thus Hewitt’s mistakes could not be a breach of fiduciary duty.

The district court agreed, and the Ninth Circuit affirmed, holding, “Northrop and the Committee did not breach a fiduciary duty by failing to ensure that Hewitt correctly calculated Plaintiffs’ benefits.” (However, the court did allow the plaintiffs to proceed with their state law claims, holding that they were not preempted by ERISA, and with a federal claim against the Committee, the plan administrator, for failure to provide accurate pension benefit statements.)

The defendant in this week’s notable decision, Aetna Life Insurance Company, seized on Bafford and attempted to expand its reach in the disability insurance context. The plaintiff was Irina Morris, a software consultant who had long-term disability insurance coverage with Aetna as an employee benefit. Unfortunately, she was stricken by cancer and became disabled in 2009. Aetna approved her claim for benefits and paid her a monthly benefit of $4,113.17. Over the years, Ms. Morris relied on this calculation in negotiating her divorce, paying her taxes, and refinancing her home. Aetna reassured her on numerous occasions that her benefit was accurate and would continue.

However, in 2018, almost a decade later, Aetna discovered that it had miscalculated Ms. Morris’ benefit and had been overpaying her for the duration of her claim. Aetna began reducing her benefit to recoup the overpayment. Ms. Morris appealed this decision, but Aetna upheld it, so Ms. Morris filed suit against Aetna, alleging that it had breached its fiduciary duty to her under ERISA § 502(a)(3).

Aetna filed a motion to dismiss, which the district court granted. The district court ruled that the alleged breach was “inextricably entwined with the ‘calculation of…benefits,’ which is ‘a ministerial function that does not have a fiduciary duty attached to it.’” As a result, “Bafford defeats Morris’ § 502(a)(3) claim.”

Ms. Morris appealed to the Ninth Circuit, arguing that the district court had misinterpreted Bafford. The Ninth Circuit agreed and reversed. The court ruled that Aetna’s actions “lie well within the category of ‘well-established fiduciary functions.’” The court noted that Aetna provided Ms. Morris with “individualized consultations with benefits counselors,” “consulted with Ms. Morris by phone about her benefit amount numerous times,” “sent letters Aetna knew Morris would share with lenders as proof of her benefits,” and “communicated with Morris’s financial institutions to verify her benefit amount.”

The court further noted that Aetna “exercised discretion when it gathered her earnings information, and interpreted the Plan’s terms to determine which benefits and deductions applied.” Furthermore, it exercised discretion when it decided to “immediately and aggressively collect the overpayment amount after nine years had passed, going as far as to entirely suspend Morris’s benefits.” The court clearly was not pleased with Aetna’s conduct, finding that “Aetna was not required to recoup the overpayment at all, much less in the manner it did that put Morris in dire financial straits.”

Aetna argued that the only “action subject to complaint” was its miscalculation of benefits, and thus Bafford applied. The court rejected this argument, noting that the behavior Ms. Morris complained about was not the miscalculation of benefits, but Aetna’s conduct over the years that “could have avoided any overpayment, much less the catastrophic amount that resulted.”

In conclusion, the court held that Aetna was not simply “a clerical employee typ[ing] an erroneous code onto a computer screen.” Instead, “the extent of Aetna’s involvement in Morris’s financial life distinguishes her case” from the supposedly “ministerial calculation error addressed in Bafford.” As a result, the court held that Bafford was inapposite, ruled that Aetna was indeed a fiduciary, and remanded to the district court to determine whether Aetna breached its duty to Ms. Morris.

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

Breach of Fiduciary Duty

Second Circuit

Powell v. Ocwen Fin. Corp., No. 18-CV-1951 (VSB), 2023 WL 3756847 (S.D.N.Y. June 1, 2023) (Judge Vernon S. Broderick). The six named plaintiffs in this putative class action lawsuit are trustees of The United Food & Commercial Workers Union & Employers Midwest Pension Fund. They sued nineteen defendants, including the moving defendants, Ocwen Financial Corporation, Ocwen Loan Servicing LLC, Ocwen Mortgage Servicing, Inc., and Wells Fargo Bank, N.A., for breaches of fiduciary duties and prohibited transactions in connection with the management of residential mortgages in six trusts in which the Fund invested. The moving defendants sought summary judgment on the grounds that the mortgages were not plan assets within the meaning of ERISA. Plaintiffs, for their part, sought summary judgment to establish that the securities they purchased were in fact plan assets within the meaning of ERISA. Under a governing regulation issued by the Department of Labor, the court concluded that the mortgage-backed securities are not plan assets within the meaning of ERISA. Accordingly, the court denied plaintiffs’ partial summary judgment motion, and granted the moving defendants’ summary judgment motion. Specifically, the court concluded that the securities at issue are “treated as indebtedness under applicable local law(s),” not plan assets, because they had fixed interest rates and final maturity dates. The court also found that the securities “have no substantial equity features,” under the relevant guidance of the Second Circuit’s “reasonable expectations of repayment” test. Thus, the court found that the at-issue securities cannot constitute equity interests under the relevant criteria. Because of this, the court held that “the Funds’ owning the At-Issue Securities (do) not cause the mortgages underlying the Trusts to be ‘plan assets’ within the meaning of ERISA § 2510.3-101(a)(2), and all of plaintiffs’ claims…fail.” Having so decided, the court not only granted the moving defendants’ motion for summary judgment, but it also directed the clerk of the court to terminate all open motions, enter judgment in favor of all nineteen defendants, and to close the case.

Disability Benefit Claims

Seventh Circuit

Artz v. Hartford Life & Accident Ins. Co., No. 21-cv-0391-bhl, 2023 WL 3752006 (E.D. Wis. Jun. 1, 2023) (Judge Brett H. Ludwig). Plaintiff Donald Artz stopped working in 2019 due to symptoms he was experiencing from multiple sclerosis (“MS”), after a career of more than 20 years working as a senior electric distribution controller for an energy company. After leaving his position, Mr. Artz applied for long-term disability benefits. The plan administrator, Hartford Life & Accident Insurance Company, denied his claim, concluding that Mr. Artz could work in the same position at other companies and that he therefore did not meet the plan’s eligibility requirements for benefits. Following an unsuccessful administrative appeal, Mr. Artz sued Hartford in this action. Under deferential review, however, the court concluded in this decision that Hartford’s decision was not arbitrary and capricious and therefore entered judgment in its favor. The court was particularly struck by the fact that Mr. Artz requested his employer change his 12-hour work shifts to 8-hour work shifts, and that this request was denied. The court agreed with Hartford’s conclusion that Mr. Artz would have been capable of performing the essential duties of his own occupation despite his MS symptoms because other employers would have allowed Mr. Artz to work a standard 8-hour day, and the position is mostly a sedentary occupation. Mr. Artz disagreed and emphasized that no employer in the industry only requires 8-hour workdays and that “any electric distribution controller ‘would be expected to work at any hour and however long is required’ to fix a [utility] issue.” In response, the court wrote, “Artz’s many iterations of this argument fail to address the terms of Hartford’s plan or the factual basis for Hartford’s decision. Hartford’s plan defines Artz’s Occupation by reference to the national economy, not his actual position at WEC.” Additionally, the court was satisfied that the medical evidence in the record could be read to support Hartford’s position, and that Hartford sufficiently explained its assessment of Mr. Artz’s medical situation. Finally, the court held that Mr. Artz’s award of disability benefits from the Social Security Administration, and Hartford’s conflict of interest, did not shift the weight of things in Mr. Artz’s favor or mean that the benefits determination was wrong. For these reasons, the court was persuaded that the evidence supported Hartford’s conclusion that Mr. Artz was not disabled within the meaning of the plan. 

Discovery

Eighth Circuit

Hanley v. Unum Life Ins. Co. of Am., No. 4:22-cv-01094-SRC, 2023 WL 3736478 (E.D. Mo. May. 31, 2023) (Judge Stephen R. Clark). Decedent Suzanna Hanley died from a subdural hemorrhage while in a hospital a few days after she accidentally fell in a parking lot in October of 2021. Her widower, plaintiff Riley Hanley, filed a claim for accidental death and dismemberment benefits with Unum Life Insurance Company of America. Unum denied the claim. It held that Ms. Hanley’s death was contributed to by other non-accidental causes and therefore was excluded from the policy. Specifically, it found that Ms. Hanley’s “death was contributed to by a medical condition for which she was treating with aspirin and Plavix for peripheral vascular disease,” and that it therefore did not consider the death to be solely the result of an accident. Mr. Hanley appealed. He averred that the death certificate and medical records from the hospital did not list any underlying medical condition or prescription medication as contributing causes of death, and that her death was the result of an accident entitling him to benefits under the plan. After Unum affirmed its denial on appeal, Mr. Hanley commenced this lawsuit for benefits. Now, Mr. Hanley has moved for discovery beyond the administrative record. In his motion he seeks documents relating to Unum’s claims handling practices and seeks to depose an Unum representative. Mr. Hanley argued that discovery outside the administrative record is warranted in this case because of procedural irregularities. In particular, Mr. Hanley argued that Unum did not conduct an investigation of his claim after he filed his appeal, and that Unum did not employ a physician to review the claim or make a determination as to whether Ms. Hanley’s death was an accident under the terms of the policy. Unum opposed the discovery motion. It stressed that the 2,300 page administrative record contradicts Mr. Hanley’s assertion that it failed to investigate the claim. Furthermore, Unum argued that it employed a nurse to review and summarize the claims file, and that her summary is compliant with ERISA’s requirements. The court wrote that “Unum has the better argument,” and denied the discovery motion. The court did not agree with Mr. Hanley that serious procedural irregularities existed to the point where the record requires supplementation of further evidence.

ERISA Preemption

Third Circuit

Premier Orthopaedic Assocs. of S. N.J. v. Anthem Blue Cross Blue Shield, No. 22-02407 (RMB/EAP), 2023 WL 3727889 (D.N.J. May. 30, 2023) (Judge Renee Marie Bumb). An out-of-network healthcare provider, Premier Orthopaedic Associates of Southern NJ, LLC, sued Anthem Blue Cross Blue Shield in state court seeking payment for costs of medically necessary emergency spinal surgery it performed on an insured patient which it alleges Anthem approved but failed to pay for. Anthem removed the complaint to federal court and moved to dismiss the lawsuit. Anthem’s arguments for dismissal were twofold. First, it argued that the claims were preempted by ERISA. Second, Anthem maintained that the complaint failed to state plausible claims to survive dismissal under Federal Rule of Civil Procedure 12(b)(6). The court disagreed with the former argument, at least at this stage, but agreed with the latter. As a result, the court dismissed the complaint, but did so without prejudice. Regarding preemption, the court found that it could not address Anthem’s preemption argument without relying on a document outside of the complaint, a preauthorization letter,  the validity of which was challenged by Premier. The court also noted that Premier itself maintained that its state law claims were not based on this letter but instead were based on a “prior course of conduct” between it and Anthem. Thus, because the document was not necessarily relied upon in the complaint and not undisputedly authentic, the court declined to look at the letter. The court therefore stated that it would not conclude as a matter of law that the state law claims were preempted, especially because plaintiff maintains that there was an independent obligation to pay the claims for the surgery apart from the ERISA healthcare plan. However, the court wrote that “even when viewed in the light most favorably to Premier, the Complaint lacks enough facts to support Premier’s breach of contract, promissory estoppel, and account stated claims.” Nevertheless, the court allowed Premier the opportunity to replead its claims to address the deficiencies it identified in order to meet the elements necessary to plausibly state each of these claims.

Fourth Circuit

Zhang v. Cigna Healthcare Inc., No. 1:22-cv-1221 (MSN/IDD), 2023 WL 3727936 (E.D. Va. May. 30, 2023) (Judge Michael S. Nachmanoff). Dr. Jianyi Zhang sued Cigna Healthcare, Inc. in state court in Virginia asserting several state law claims in connection with what Dr. Zhang believed were unfair claim settling practices by Cigna with regard to the prices it paid him for reimbursement of claims for urine tests he submitted. Cigna removed the action to federal court. It argued that Dr. Zhang’s claims were preempted by ERISA. Cigna then moved to dismiss the complaint, and Dr. Zhang moved to remand his complaint back to state court. The court granted Dr. Zhang’s motion to remand, agreeing with him that ERISA did not preempt his causes of action and that it therefore lacked jurisdiction over the matter. Specifically, the court found that Dr. Zhang did not possess either direct or derivative standing to assert claims under Section 502 of ERISA, and that as a result complete preemption does not exist. Because the court found that Dr. Zhang did not meet the standing element for complete preemption, it did not even address the other prongs of the complete preemption test. Therefore, the court concluded that it lacked subject matter jurisdiction and remanded the action to the Circuit Court of Arlington County, Virginia. Cigna’s motion to dismiss was thus denied as moot.

Eighth Circuit

Bey v. Bd. of Trs. of the Carpenters & Joiners Defined Contribution Plan, No. 23-335 (JRT/ECW), 2023 WL 3752190 (D. Minn. Jun. 1, 2023) (Judge John R. Tunheim). Plaintiff Zar El Thomas Bey, as an authorized agent for a plan participant, Javon Martize Thomas, initiated this suit when he served the administrator of the Carpenters and Joinders Defined Contribution Plan with a notice of bill in equity to be reviewed by the U.S. Federal Supreme Court of Chancery. The Board of Trustees removed the action and has subsequently moved to dismiss it. The Board argued that Mr. Bey’s state law claims of fraud, theft, breach of contract, and for benefits are all preempted by ERISA, and that Mr. Bey also failed to state a claim upon which relief could be granted. The court agreed. To begin, it became clear that Mr. Bey’s allegations were likely premised on a misreading of the Plan’s Summary Annual Report from 2022. His filings appeared to suggest that he misunderstood the Summary Annual Report as describing the assets in Mr. Thomas’s individual retirement account, rather than explaining the total plan assets and the amount paid in plan expenses for the prior calendar year. Upon review of the Summary Annual Report, the court confirmed that the amounts Mr. Bey attributed to Mr. Thomas’s “private account” exactly corresponded with the amounts relating to the entire plan. Nonetheless, the court stated that the claims are all preempted by ERISA as they pertain to the administration of plan benefits, relate to the plan and its assets, and because Mr. Thomas could bring a claim for benefits only under Section 502 of ERISA. Moreover, the court agreed with the Board that the claims are unripe, as Mr. Thomas has not brought a claim or exhausted his administrative remedies. Finally, the court interpreted Mr. Bey’s failure to respond to the motion to dismiss as a waiver and voluntary dismissal of his claims. For these reasons, the court granted the motion to dismiss under Rule 12(b)(6) and dismissed the claims with prejudice. 

Eleventh Circuit

Am. Prods Prod. Co. of Pinellas Cnty. v. Armstrong, No. 8:23-cv-747-KKM-SPF, 2023 WL 3728407 (M.D. Fla. May. 30, 2023) (Judge Kathryn Kimball Mizelle). Plaintiffs are a group of Florida corporations owned by two individuals, Joseph Muraco and Kevin Mullan. They brought suit in state court in Florida against a former employee, the International Painters & Allied Trades Industry Pension Fund, and several other parties associated with an ERISA plan alleging defamation and abuse of process after the pension fund brought a withdrawal liability action against the companies in the federal District Court of Maryland under ERISA and the Multiemployer Pension Plan Amendments Act. Defendants removed the Florida state law case to federal court. They argued that the complaint is preempted by ERISA and moved for dismissal. The companies, meanwhile, moved to remand their action back to state court. The court resolved the motions in this decision, concluding that defendants had not met their burden of establishing complete preemption under ERISA. Defendants argued that the abuse of process claim premised on the withdrawal liability action between the parties necessarily “relates to the substantive merits of the withdrawal liability claim” and the actions that defendants took in that lawsuit. Additionally, Defendants expressed that plaintiffs’ lawsuit here significantly overlaps with counterclaims plaintiffs asserted in the Maryland action. The court, however, did not agree. “Even if the state court must address some aspects of the ERISA dispute, the state court’s decision ‘will not stand as binding precedent’ for any current or future withdrawal liability claim because resolution of Defendants’ pending ERISA suit is not an essential element of Plaintiffs’ abuse of process claim.” To the court, the distinction between the two actions is that resolution of the Maryland suit will determine whether plaintiffs improperly withdrew from the fund, while the analysis for the state law abuse of process claim will instead “evaluate the Defendants’ motive for bringing the Maryland suit, not the merits of the Defendants’ claim. Thus, no state court will adjudicate the merits of any ERISA claim, so this dispute is not significant enough to warrant federal jurisdiction.” Accordingly, the court granted plaintiffs’ motion to remand, and denied as moot defendants’ motion to dismiss.

Life Insurance & AD&D Benefit Claims

Seventh Circuit

McCombs v. Reliance Standard Life Ins. Co., No. 20CV3746, 2023 WL 3763526 (N.D. Ill. Jun. 1, 2023) (Judge Lindsay C. Jenkins). Father of two, Jeffrey McCombs, died on July 29, 2016. At the time of his death, his two children were both minors, and Mr. McCombs was insured under an ERISA-governed group life insurance policy which named his children as co-equal beneficiaries of the policy. Shortly after Mr. McCombs’ death, a benefits analyst for his employer, Transunion, reached out to Reliance on behalf of the minor children and their mother. Reliance Standard, through two employees, a client manager and a manager of life insurance claims, responded to the Transunion employee’s emails, and informed her that “the proceeds for the minor will be held with Reliance Standard until the minor attains the legal age of majority and requests the proceeds.” Mindful of this information provided by Reliance, the children waited until the older one reached adulthood, and then submitted a claim for benefits. Reliance Standard denied the children’s claim as untimely, and for failure to provide written notice of claim and information about the death within the time period outlined in the plan. The family appealed the denial. They argued that Transunion’s emails constituted written notice of claim, and that they could not have submitted a claim for benefits any earlier because the children were both minors and therefore legally incapable of submitting a claim any earlier. After Reliance Standard upheld its denial, the family commenced this lawsuit, arguing that Reliance’s decision was an abuse of discretion. In their action, the family seeks benefits, attorney’s fees, and prejudgment interest. The parties filed cross-motions for summary judgment. In this decision, the court entered judgment in favor of the children and ordered Reliance to pay them the life insurance benefits, plus attorney’s fees, costs, and interest. Regarding the notice of claim, the court held that “nothing in the record [suggests] that Reliance ever informed Plaintiffs (who were minors at the time) that the notice of loss had to come directly from them or their right to benefits would be forfeited.” The court also stated that the notice of claim met all of the plan’s requirements, as it was timely, and because it informed Reliance of Mr. McCombs’ death, his policy number, and included information about his beneficiaries. Thus, the court found that Reliance’s reasoning to deny the claim for failure to comply with the policy’s notice of loss provision was arbitrary and capricious, especially when factoring in its structural conflict of interest. Next, the court found that plaintiffs’ claim for benefits was timely, not only because the children relied on Reliance’s direction in the email correspondence, but also because they were minors legally incapable of claiming benefits any sooner. Finally, the court ruled that even if the children could have brought a claim earlier, which it doubted, Illinois insurance law provides no time limit for filing death claims, meaning the plan’s statute of limitations provision is unenforceable. Accordingly, the court agreed with plaintiffs that Reliance Standard’s denial was an abuse of discretion.

Medical Benefit Claims

Ninth Circuit

S.L. v. Premera Blue Cross, No. C18-1308RSL, 2023 WL 3738991 (W.D. Wash. May. 31, 2023) (Judge Robert S. Lasnik). Plaintiff S.L. and his parents sued Premera Blue Cross, Amazon Corporate LLC, and the Amazon Corporate LLC Group Health and Welfare Program under ERISA Section 502(a)(1)(B) after Blue Cross denied coverage for S.L.’s stay at a residential treatment facility in Utah. Plaintiffs argued that defendants violated the plan’s terms for coverage of medically necessary mental healthcare and substance use treatment by denying their claims. The parties filed cross-motions for summary judgment. The court granted judgment in favor of defendants under the abuse of discretion review standard. Upon review of the record, the court held that even weighing the procedural irregularities of the review of the claims, including the reviewer’s focus on S.L.’s preadmission symptoms, the denials were supported by substantial evidence. Moreover, the court stated that the procedural irregularities did not prevent the development of a full administrative record, and therefore stated that it would not consider evidence, including discovery testimony, outside of the administrative record in its review of Blue Cross’s decision. Regarding the decision, the court found that defendants’ position that S.L.’s stay at the treatment facility was not medically necessary under the plan because the InterQual Criteria “were not met for severe functional impairment” was not arbitrary or capricious. Specifically, the court disagreed with plaintiffs that defendants’ reliance on the InterQual Criteria was itself an abuse of discretion, writing that “courts across the country have recognized the widespread adoption of InterQual Criteria and ‘district courts routinely find that InterQual’s criteria comport with generally accepted standards of care.’” Thus, although the court expressed sympathy for the family, and stated that it admired their efforts to get S.L. the care he needed, it concluded that the denial of benefits was not an abuse of discretion and therefore denied plaintiffs’ motion for judgment and granted defendants’ summary judgment motion.

Tenth Circuit

D.B. v. United Healthcare Ins. Co., No. 1:21-cv-00098-BSJ, 2023 WL 3766102 (D. Utah Jun. 1, 2023) (Judge Bruce S. Jenkins). Plaintiff D.B., on behalf of his minor son, A.B., sued two insurance companies, Blue Cross Blue Shield of Illinois and United Healthcare Insurance Company/United Behavioral Health, in connection with denied coverage for A.B.’s stay at a sub-acute residential treatment center. Plaintiff asserted claims for benefits and claims for violation of the Mental Health Parity and Addiction Equity Act against insurers of both plans that A.B. was a beneficiary of. In this order the court issued its rulings on those motions. It began by addressing Blue Cross’s denial. Blue Cross denied the claim under a plan term requiring residential treatment centers to offer 24-hour onsite nursing services. Because the facility A.B. stayed at did not offer such services, Blue Cross denied the claim. Under abuse of discretion review, the court found that the facility did not satisfy the plan’s unambiguous requirement and that the denial was therefore reasonable. Accordingly, the court granted summary judgment in favor of Blue Cross on the denial claim. Regarding the Parity Act claim asserted against Blue Cross, the court found that there was no discrepancy between the 24-hour onsite nursing services requirement for mental healthcare facilities and any skilled nursing facility because federal Medicare law and state licensing authorities impose the exact same 24-hour onsite nursing services requirement on all inpatient facilities. Thus, the court stated that D.B. did not establish that the requirement for coverage of residential treatment centers for mental healthcare was more restrictive than comparable nursing treatment centers under the terms of the plan, and without any proof of a disparity in treatment, the Parity Act claim failed. Despite plaintiff’s lack of success against Blue Cross, the court’s calculus was quite different with regard to United Behavioral Health. In the case of United, the denial was based on a lack of medical necessity under a plan that included discretionary language which triggered arbitrary and capricious review. In its analysis, the court relied on recent Tenth Circuit precedent in D.K. v. United Behavioral Health, No. 21-4088, 2023 WL 3443353 (10th Cir. May 15, 2023), which Your ERISA Watch featured as our case of the week in our May 24, 2023 newsletter. Under the guidance of D.K., the court found that United’s denial was an abuse of discretion as United failed to engage in a dialogue with A.B.’s treatment provider or address that doctor’s opinions and recommendations. “Nowhere in any of its denials did UBH address the recommendations of Dr. McCormick that A.B. continue to receive (residential treatment center) care.” Thus, applying D.K., the court concluded that United arbitrarily and capriciously refused to engage with the medical opinions of A.B.’s treating healthcare providers, and therefore entered summary judgment against United. Unfortunately for plaintiff, though, the court did differ from D.K. in one respect. Rather than awarding benefits outright, it concluded the proper course of action in this case would be to remand to United for a renewed evaluation of the claim consistent with this decision. Finally, having directed remand, the court denied as moot United and D.B.’s cross-motions for judgment on the Parity Act claim.

Pleading Issues & Procedure

Second Circuit

Vellali v. Yale Univ., No. 3:16-cv-1345(AWT), 2023 WL 3727426 (D. Conn. May. 26, 2023) (Judge Alvin W. Thompson), Vellali v. Yale Univ., No. 3:16-cv-1345(AWT), 2023 WL 3727432 (D. Conn. May. 26, 2023) (Judge Alvin W. Thompson), Vellali v. Yale Univ., No. 3:16-cv-1345(AWT), 2023 WL 3727415 (D. Conn. May. 30, 2023) (Judge Alvin W. Thompson), Vellali v. Yale Univ., No. 3:16-cv-1345(AWT), 2023 WL 3727452 (D. Conn. May. 26, 2023) (Judge Alvin W. Thompson), Vellali v. Yale Univ., No. 3:16-cv-1345 (AWT), 2023 WL 3727438 (D. Conn. May. 26, 2023) (Judge Alvin W. Thompson). A series of motions in limine were before the court this week in a class action brought by participants in the Yale University 403(b) Retirement Account Plan, where a jury trial is already underway, a first of its kind in an ERISA breach of fiduciary duty case. In the first two decisions, the court ruled on the sufficiency of plaintiffs’ claim that the Yale fiduciaries had the authority to transfer participant assets from TIAA annuities to other investments, a practice referred to as “mapping.” The participants argued that “ERISA requires plan documents and service provider contracts to be interpreted to allow Defendants to close investments and map them to other options if the investments are imprudent or charge unreasonable fees.” The court did not agree with this characterization of ERISA’s requirements. Instead, it held that the plan does not unambiguously give defendants the authority to remove any investment option or to transfer funds into a different option, and that doing so would actually have interfered with the terms of the contracts between the participants and TIAA itself. “Thus, the plaintiffs have failed to show that they have a basis for arguing or attempting to introduce evidence in support of an argument, that the defendants were imprudent by not unilaterally transferring assets invested in the legacy version of the TIAA traditional annuities to different investment options.” Accordingly, the court denied plaintiffs’ motion regarding defendants’ authority to map the TIAA annuities and granted defendants’ motion precluding plaintiffs from arguing that they were imprudent by not unilaterally doing so. The third decision of the bunch granted in part and denied in part plaintiffs’ motion to exclude evidence or argument “suggesting that Defendants’ duty of prudence under ERISA is defined solely by comparison to the conduct of other educational institutions.” Plaintiffs argued that there is no such thing as a “university specific standard” for ERISA fiduciaries. The court granted the motion to the extent that it seeks to preclude defendants from arguing that the applicable legal standard is defined solely through the context of conduct by other universities. Nevertheless, the court found plaintiffs’ motion to be overly broad, and denied it to the extent that they sought to preclude defendants from arguing that the most appropriate comparator plans to the Yale plan are those belonging to other educational institutions. In the fourth decision, the court denied plaintiffs’ motion to exclude testimony of Conrad Ciccotello, an individual that defendants intend to call as an expert witness to offer testimony about Yale’s oversight process for monitoring and reviewing third party vendors and plan investments. The court concluded that Mr. Ciccotello is qualified to testify as an expert given his academic work, his past service as an expert witness in similar cases, and his experience with two private foundations, including as a research fellow in the TIAA Institute. In addition, the court was satisfied that Mr. Ciccotello’s opinions were likely to be reliable and helpful to the triers of fact. In the final decision this week, the court almost entirely denied defendants’ omnibus motion in limine addressing nine separate issues. First, the court ruled that defendants’ remedial measures, including their decision to consolidate recordkeepers in 2015 and move to a consolidated investment lineup, are admissible before the jury. The court agreed with plaintiffs that whether Yale could have taken these actions earlier is a contested and relevant fact that the jury will have to decide. Second, the court ruled that it would not preclude plaintiffs from introducing evidence relating to their previously dismissed claims so long as that evidence is probative to the claims still pending. Third, the court stated that the statute of limitations which shaped the class period, “does not operate to bar the introduction of evidence that predates the commencement of the limitations period but that is relevant to the events during the period.” Thus, the court allowed plaintiffs to include information about pre-class period conduct for the jury to be able to consider how the fiduciaries managed the plan over an extended period of time. Fourth, the court denied defendants’ motion to exclude evidence regarding Yale’s procurement process, holding that such evidence is relevant. Fifth, the court granted, with the consent of plaintiffs, defendants’ motion for an order forbidding plaintiffs’ experts from referring to settlements in other ERISA cases. Sixth, the court restated an earlier opinion that Yale’s process for monitoring investments in its endowments was relevant, and therefore denied defendants’ motion to exclude evidence on this topic. Seventh, defendants moved to preclude plaintiffs from introducing evidence about comparative plans that did not have TIAA annuities. The court denied this motion. It stated that whether recordkeeping or investment monitoring practices undertaken by fiduciaries of ERISA plans that did not offer TIAA annuity products are comparable to the Yale plan is a determination that should be made by the finder of fact. Eighth, the court allowed plaintiffs to offer evidence about potential conflicts of interest defendants had involving TIAA. Finally, the court reiterated that the “jury trial standard” applies to Daubert motions to exclude, and that its analysis on defendants’ arguments to exclude plaintiffs’ experts’ opinions remains unchanged from its earlier decision.

Retaliation Claims

Second Circuit

Neufville v. Metro Cmty. Health Ctrs., No. 22-cv-06002 (ALC), 2023 WL 3687727 (S.D.N.Y. May. 26, 2023) (Judge Andrew L. Carter). Plaintiff Sherie Neufville was employed by a health clinic, defendant Metro Community Health Centers, Inc., as a podiatrist from December 2016 until February 2022. She was fired in February 2022 while taking paid maternity leave under an employer sponsored benefit plan. In her complaint, Ms. Neufville alleges that in the fall of 2021 she formally applied for and was approved paid family leave to give birth and take care of her newborn from late November 2021 to the end of February 2022. She maintains that her employer discharged her for retaliatory reasons to interfere with her attempt to exercise her rights under her ERISA plan. Accordingly, in this lawsuit Ms. Neufville asserted one cause of action, a violation of Section 510 of ERISA. To date, Metro Community Health has not appeared in the action. On March 28, 2023, the court issued an order to show cause why it should not issue an order pursuant to Federal Rule of Civil Procedure 55 entering default judgment. Ms. Neufville served a copy of the order to show cause on Metro Community Health. Once again, it failed to respond. As a result, Ms. Neufville moved for default judgment. The court granted her motion in this order. It was satisfied that Ms. Neufville made a prima facie case that her employer’s action to terminate her was at least partially motivated by the intent to engage in retaliatory conduct. The short time period between Ms. Neufville’s protected activity and the termination also convinced the court that “a causal connection could exit between the protected activity…and the adverse action.” Finally, because defendant defaulted, the court stated that it failed to articulate a legitimate or non-discriminatory reason for its decision to fire Ms. Neufville while she was on her paid leave. “Therefore, the presumption of retaliation is not rebutted, and Defendant is liable for violating Section 510 of ERISA.” However, the court did not award damages in this order. Instead, it ordered Ms. Neufville to file supplemental materials clarifying the amount in damages she was seeking and the basis for the requested award amount.

Statutory Penalties

Third Circuit

Goode v. Capital One Fin. Corp., No. 22-325-CFC, 2023 WL 3750679 (D. Del. Jun. 1, 2023) (Judge Colm F. Connolly). Pro se plaintiff Alexander Goode sued his former employer, Capital One Financial Corporation, for a violation of a provision in the American Rescue Plan Act of 2021 which requires employers to notify laid off workers that they were entitled to have their former employer pay for their healthcare premiums for continuing coverage under COBRA. In his complaint, Mr. Goode asserted a claim under ERISA § 1132(c) for statutory penalties of up to $110 per day for the alleged violation of the American Rescue Plan Act’s notice provisions. Capital One moved to dismiss. It argued that the complaint failed as a matter of law because Section 502(c) does not authorize statutory penalties of violations of the American Rescue Plan Act. The court disagreed and denied the motion to dismiss. It held that failure to comply with the availability of premium assistance notification requirements of the act constitutes a failure to comply with ERISA’s COBRA requirements, and that under Section 502(c), a court may exercise its discretion and award penalties per day from the date of such a failure. Thus, the court concluded that Mr. Goode’s claim for statutory penalties for Capital One’s alleged failure to comply with these provisions did not fail as a matter of law.