Laidig v. GreatBanc Trust Co., No. 22-cv-1296, 2023 WL 1319624 (N.D. Ill. Jan. 31, 2023) (Judge Mary M. Rowland)

At first blush, employee stock ownership plans (“ESOPs”) sound like a great deal for employees. ESOPs can make companies more democratic, by giving employees equity, and they often have financial advantages, such as deferred compensation and favorable tax treatment.

However, these plans often are not what they seem. Equity can be a mirage, because employees rarely get voting rights with their shares, and they have no realistic influence over how the company is managed. Furthermore, a significant part of employees’ compensation is wrapped up in one asset – company stock – which leaves them vulnerable to ill-timed market swings.

Perhaps most importantly, ESOPs are vulnerable to abuse. ERISA requires employers and administrators to fulfill fiduciary obligations when conducting ESOP transactions, including the duty to ensure that “adequate consideration” is paid/received for the company stock. However, many employers – especially in privately held companies where it is easier to conceal the details of transactions – try to skirt ERISA’s rules in order to take financial advantage. A classic example is a company that is performing poorly, so its owners try to cut their losses by selling the company stock to the ESOP at an inflated price. In doing so, the owners are able to cash out at a substantial markup and saddle the employees with the losses.

Because of these problems, lawsuits under ERISA challenging ESOP administration have been on the rise. This week’s notable decision is yet another example. The plaintiffs are employees of Vi-Jon, LLC, a health and beauty care company, who are participants in an ESOP established by Vi-Jon. They initiated this putative class action on behalf of the plan against (1) Berkshire Fund, a private equity investment firm which owned the majority of Vi-Jon stock prior to the ESOP transaction, (2) GreatBanc Trust Company, the plan trustee responsible for authorizing and negotiating the ESOP transaction, and (3) John Brunner, the previous controlling shareholder of Vi-Jon.

Plaintiffs contended that these defendants caused and participated in a prohibited transaction under ERISA by selling 100% of the Vi-Jon stock to the plan at an inflated stock valuation. Plaintiffs allege that Berkshire acquired a majority stake in Vi-Jon in 2006, but by 2020 was anxious to sell Vi-Jon. At the time Vi-Jon was one of Berkshire’s top-five longest-held investments without an impending deal. Berkshire had been attempting to sell the company for its desired price of $400 million, but could not do so because of Vi-Jon’s high debt load and a lack of pricing flexibility.

Things changed in 2020, however. One of Vi-Jon’s products is hand sanitizer, which provided the company a surge in profits as demand skyrocketed at the beginning of the COVID-19 pandemic when there were few competitors. Plaintiffs alleged that this profit surge was temporary, and that defendants knew this surge would be temporary as more competitors entered the space.

Plaintiffs alleged that defendants took this opportunity to dump Vi-Jon’s stock at the price they wanted by a new method – selling it to the ESOP. In doing so, defendants could “create the buyer (the Plan) on their own terms and choose the agent that would sit on the other side of the table (GreatBanc).” Plaintiffs alleged that defendants colluded in artificially and knowingly inflating the price of the stock, which saddled the new employee participants of the plan with unsustainable debt. Plaintiffs further alleged that the ESOP’s financial condition and debt load is so dire that “Plan participants will not fully own the company until well after its youngest employees pass retirement age.”

After plaintiffs filed suit, defendants filed a motion to dismiss, which was the subject of this decision. Defendants first argued that plaintiffs lacked standing to bring their action. The court rejected this argument, holding that plaintiffs, who expressly pled concrete pecuniary harm to their shares in the ESOP resulting from the overvaluation of the sale price, adequately stated an injury conferring them with Article III standing.

The court then turned to the merits of the action, which were also challenged by defendants. The court concluded that plaintiffs had adequately stated a claim that GreatBanc engaged in a prohibited transaction under ERISA Section 409. In doing so, the court rejected GreatBanc’s “single argument – that Plaintiffs speculate that the company was overvalued but do not state a cognizable loss redressable under Section 409.” The court deemed this argument to be “essentially a repackaging of its standing arguments and has no merit.” Plaintiffs’ allegations “raise an inference that the company was overvalued and that GreatBanc, as the Plan fiduciary, is liable for any losses as a result.”

As for Berkshire and Brunner, plaintiffs alleged that they violated ERISA Section 502(a)(3) through their knowing participation in the prohibited transaction. The court denied defendants’ motion to dismiss this claim as well. The court noted that Berkshire “had three members on Vi-Jon’s board, and thus, had direct control of the ESOP valuation process,” and that Brunner “also sat on the Vi-Jon board and had similar control and knowledge of the valuation process.” As a result, Plaintiffs had properly stated breach of fiduciary duty claims against them.

As for remedies, the court also rejected defendants’ argument that plaintiffs could not obtain equitable relief, holding that plaintiffs had properly demanded rescission and disgorgement of ill-gotten gains as allowed under ERISA. The court also found that plaintiffs had adequately “traced” those gains under the Federal Rules of Civil Procedure’s lenient pleading standards.

The court did grant defendants’ motion to dismiss a portion of the Section 502(a)(3) claim. The court noted that plaintiffs sought a declaration that defendants had engaged in a prohibited transaction. However, declaratory relief is only appropriate if “threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Plaintiffs’ allegations, on the other hand, “are requests for the Court to declare violations of a transaction that already occurred, which is not appropriate.” Plaintiffs’ “vague and non-specific” request for “other equitable relief” beyond disgorgement and recission was also dismissed. These were minor successes for defendants, however, as plaintiffs notched a significant victory to open their litigation.

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

Attorneys’ Fees

Ninth Circuit

Lundstrom v. Young, No. 18-cv-2856-GPC, 2023 WL 1120867 (S.D. Cal. Jan. 27, 2023) (Judge Gonzalo P. Curiel). In this action, plaintiff Brian Lundstrom sued his ex-wife, defendant Carla Young, along with his former employer and his 401(k) Plan, challenging the validity of a court-issued qualified domestic relations order (“QDRO”) which granted 100% of the 401(k) assets to Ms. Young and a court-issued stock domestic relations order (“DRO”) which transferred stock options under Mr. Lundstrom’s stock incentive plan to Ms. Young. Although Mr. Lundstrom maintained that he was not notified about the QDRO or the stock DRO, this would prove to be untrue. Ultimately, the court would rule that the claims against Ms. Young were little more than an attempt by Mr. Lundstrom “to revisit rulings made by the Texas courts.” On October 27, 2022, the court issued an order dismissing Carla Young from this action. (Your ERISA Watch covered that decision in the November 2, 2022 issue.) In that order the court held that Mr. Lundstrom’s ERISA and state law claims against his ex-wife were barred by collateral estoppel as they “necessarily relied on arguments that were considered and rejected by Texas state courts.” Ms. Young has since moved for an award of attorneys’ fees under ERISA’s fee and costs-shifting provision, Section 1132(g). First, the court held that Ms. Young’s motion for fees and costs was timely because interim awards of attorneys’ fees under ERISA are allowed in the Ninth Circuit. Next, the court concluded that Ms. Young’s success in this lawsuit was not “trivial” or “purely procedural,” and she accordingly achieved success on the merits to make her eligible for attorneys’ fees under Section 502(g)(1). Thus, the court moved to evaluating whether a fee award was justified under the Ninth Circuit’s Hummell factors. The court concluded it was. First, the court stated that Mr. Lundstrom’s action was carried out in bad faith, as he was rehashing a dispute already brought and rejected in Texas state court. The court also found that Mr. Lundstrom can satisfy a fee award and thus the second factor too weighed in favor of awarding fees. Regarding deterrence, the court wrote that “[a]n attorneys’ fee award in this action would deter an ex-spouse from challenging the validity of a state court order in federal court on superficial ERISA grounds. Although Plaintiff’s action is not the typical ERISA action brought against a plan administrator, the Court finds this type of action is worth deterring…The Court rejects the use of ERISA as a means for ex-spouses to drag each other through endless litigation in federal court at great expense to all involved.” This favor thus also weighed in favor of granting Ms. Young fees. The only factor the court decided weighed against a fee award was the fourth Hummell factor pertaining to whether an award of fees would benefit other plan participants or whether the action involves a significant legal question. Neither scenario, the court concluded, was applicable here. Finally, because the court did not rule in Mr. Lundstrom’s favor on any issue relating to Ms. Young, the court found that Ms. Young had the greater relative success on the merits. Considering all these factors, the court found that a fee award was warranted. However, Ms. Young’s requested fee award of $135,234.20 for a total of 263.32 hours of work performed was reduced by the court “by 50% to reflect the degree of success Defendant Young has achieved throughout the course of this litigation.” Despite the fact that the court dismissed all of the claims against Ms. Young, it highlighted the fact that many of her arguments raised throughout the course of litigation were not successful or relevant to her ultimate victory on the grounds of collateral estoppel. Consequently, the court concluded that a fee award of $67,617.10 was appropriate. Finally, the court granted Ms. Young’s request for recovery of $1,246.58 in costs.

Breach of Fiduciary Duty

Third Circuit

Wright v. Elton Corp., No. C. A. 17-286, 2023 WL 1112022 (D. Del. Jan. 25, 2023) (Judge Joseph F. Batallion). This case involves a pension plan that was established as a trust in 1947 by Mary Chichester duPont to provide pensions to her employees and to the employees of her children and grandchildren. The suit, like the trust itself, has a long and complicated history. But, by the time it was tried in a four-day bench trial before Judge Batallion in April of 2022, plaintiff T. Kimberly Williams, a former employee of one of the grandchildren and a plan participant, was the one remaining plaintiff in the case. Among other things, the court held that the pension plan is covered by ERISA, and that the current and former trustees and the duPont grandchildren breached their fiduciary duties by failing to operate the plan in compliance with ERISA, which caused the plan to become severely underfunded. The court wrote that the trustees and the duPont employers “breached their fiduciary duties by “failing to comply with funding, vesting, notice and other requirements of ERISA.” The court found the trustees and duPont employers liable both for the plan underfunding and for failing to provide proper notices to potential beneficiaries. The court fully credited the testimony of the plaintiff’s expert, noting that he was well qualified to determine the funding liability of a defined benefit pension plan, his conclusions were based on actuarial sciences and reliable, and his testimony was uncontroverted because the defendants chose not to put on their own expert. The court credited the expert’s testimony that the plan’s estimated current funding needs were $38 million and the plan, at the time of the trial, only had $2.7 million in assets. The court found that the defendants’ criticism of the expert’s opinion as being based on incomplete evidence was a problem of their own making in failing to keep complete employment records and failing to bring the plan into compliance with ERISA. The court held that his “report and conclusions can be used as a starting point,” and the “database [he] built can be used as a base for future plan administration by an appointed independent fiduciary to finally administer the plan in accordance with ERISA.” With that in mind, the court ordered the appointment of a special master, to be paid by the current trustee, First Republic, who is tasked, among other things, with retaining a qualified trustee to replace First Republic, identifying and notifying all potential plan participants about the plan, and calculating an adequate funding figure. Ms. Williams is represented in this matter by Your ERISA Watch editor, Elizabeth Hopkins and Susan Meter of Kantor & Kantor.

Eighth Circuit

Schave v. CentraCare Health Sys., No. 22-cv-1555 (WMW/LIB), 2023 WL 1071606 (D. Minn. Jan. 27, 2023) (Judge Wilhelmina M. Wright). Plaintiff Angi Schave commenced this putative class action against her employer CentraCare Health System, the CentraCare board of directors, and the other fiduciaries of two defined contribution plans offered by the company, CentraCare’s 403(b) and 401(k) plans, for breaches of fiduciary duties. Ms. Schave alleged that defendants’ administrative and monitoring processes were in violation of ERISA in several ways. Specifically, Ms. Schave alleged that defendants failed to invest in an available cheaper institutional share class instead of an otherwise identical but costlier retail share class, that defendants invested in funds that charged excessively high management fees, that defendants failed to replace high-cost underperforming funds with similar lower cost funds with better performance histories, and that defendants engaged in improper revenue sharing practices. “As a result of these alleged breaches of fiduciary duties, Schave maintains, Defendants are liable under ERISA,  29 U.S.C. §§ 1105(a), 1109(a) and 1132(a)(2).” Defendants moved to dismiss for lack of Article III standing and for failure to state a claim. As a preliminary matter, the court denied the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of constitutional standing. The court held that under Eighth Circuit precedent participants of ERISA defined contribution plans have “standing to challenge an entire retirement plan, even if the plaintiff did not enroll in all of the challenged investment options.” The court then addressed defendants’ motion to dismiss for failure to state a claim. The motion was granted in part and denied in part. First, the court denied the motion to dismiss Ms. Schave’s breach of fiduciary duty claims predicated on defendants’ failure to select a lower cost share class. The court stated that it could plausibly infer from Ms. Schave’s complaint that a lower cost institutional share class was available to defendants and their failure to invest in that class, to the detriment of the plan participants, could potentially be a breach of a fiduciary duty. However, the remainder of the breach of fiduciary duty claims based on fees, investment performance, and improper revenue sharing were dismissed by the court. It held that Ms. Schave did not offer appropriate comparisons adequately comprised of actively managed funds with similar investment strategies and risk profiles. Without these like-for-like comparisons, the court could not infer that the plans’ fees were excessively high, that the challenged funds performed poorly, or that the revenue sharing was in and of itself inappropriate. Accordingly, defendants were largely successful in their motion to dismiss. Lastly, the court denied Ms. Schave’s informal request for leave to amend.

Disability Benefit Claims

Third Circuit

Hocheiser v. Liberty Mut. Ins. Co., No. 21-1533, __ F. App’x __, 2023 WL 1267070 (3d Cir. Jan. 31, 2023) (Before Circuit Judges Ambro, Restrepo, and Fuentes). Plaintiff-appellant David Hocheiser appealed a district court order granting summary judgment in favor of defendant Liberty Mutual Insurance Company in this ERISA long-term disability benefits action. On appeal, the Third Circuit affirmed the holdings of the lower court, agreeing with the district court that Liberty Mutual’s denial was supported by substantial evidence in the administrative record. Given the discretionary clause granting Liberty Mutual authority to determine benefits eligibility, the court of appeals also upheld the district court’s application of the arbitrary and capricious review standard. Ultimately, the appeals court concluded that Mr. Hocheiser did not meet his burden of proving that he was disabled from performing sedentary work. Even without an independent medical examination, the Third Circuit held, “there was ample evidence in the record to deny benefits.” Finally, because multiple physicians found Mr. Hocheiser capable of performing sedentary work, the Third Circuit agreed with the district court that under the applicable deferential review “Liberty Mutual appropriately exercised its discretion and that Liberty Mutual’s denial of LTD benefits was supported by the evidence.” As a result, the Third Circuit affirmed the district court’s order.

Fourth Circuit

Zahariev v. Hartford Life & Accident Ins. Co., No. 22-1209, __ F. App’x __, 2023 WL 1519520 (4th Cir. Feb. 3, 2023) (Before Circuit Judges Wynn, Rushing, and Keenan). Plaintiff-appellant Kiril Zahariev sued Hartford Life & Accident Insurance Company seeking reinstatement of long-term disability benefits. Shortly after the complaint was filed, a meditator was appointed to assist the parties to reach a settlement. A settlement was reached, Mr. Zahariev cashed his settlement check, and the parties jointly filed a stipulation of dismissal with prejudice. Several months later, in early 2021, Mr. Zahariev moved to reopen the case and set aside the previous judgment pursuant to Federal Rule of Civil Procedure 60(b). He argued that the case should be reopened because the mediator pressured him into settling by heavily insinuating that not settling would lead to further intrusive surveillance conducted by Hartford. Additionally, Mr. Zahariev argued that Hartford submitted fraudulent responses during discovery which infected the mediation process. “Specifically, he asserted that Hartford’s supplemental discovery responses included items ‘inadvertently’ left out of its initial responses and falsely stated that ‘there are no written performance evaluations of the vendors.’” The court recommended denying Mr. Zahariev’s Rule 60(b) motion both on the merits and as untimely. Mr. Zahariev appealed that decision, and the Fourth Circuit vacated and remanded, concluding that the district court failed to consider the discovery fraud issue. On remand, the district court addressed and rejected the discovery fraud issue. Mr. Zahariev again appealed. This time, the Fourth Circuit affirmed. In this order, the appeals court concluded that because Mr. Zahariev had knowledge of both the mediator’s alleged improper conduct and Hartford’s alleged discovery fraud, but chose to cash his settlement and dismiss the case, “he has failed to show extortionary or exceptional circumstances meriting Rule 60(b) relief. Moreover, even if we believed that extortionary or exceptional circumstances exist, the district court did not abuse its discretion in finding to the contrary.” As a result, Mr. Zahariev was unable to overcome the high bar to reopen a settled case. Finally, Mr. Zahariev’s assertion of judicial bias based on an adverse judicial ruling was swiftly concluded by the Fourth Circuit to be without merit. Accordingly, the district court’s order was affirmed.

ERISA Preemption

Tenth Circuit

Huff v. BP Corp. N. Am., No. 22-CV-00044-GKF-SH, 2023 WL 1433908 (N.D. Okla. Feb. 1, 2023) (Judge Gregory K. Frizzell). In 2021, plaintiff Roland Huff filed a lawsuit against Metropolitan Life Insurance Company alleging two state law claims, breach of contract and bad faith, challenging the sharp increase in the premiums of his group life insurance policy administered by MetLife and sponsored by BP Corporation. That case was dismissed on October 25, 2021. The court held that the plan is an employee benefit plan governed by ERISA, that the state law claims related to the plan and were thus preempted by ERISA, and that Mr. Huff could not state an ERISA claim against MetLife. A summary of that decision is available in Your ERISA Watch’s November 3, 2021 newsletter. Rather than file an amended complaint, Mr. Huff filed a new lawsuit, this time against his former employer, BP, again alleging state law claims. BP moved to dismiss. Its motion was granted by the court, which reaffirmed its earlier holdings in the first lawsuit that the plan is governed by ERISA and the state law claims are preempted. Mr. Huff subsequently moved for reconsideration. He argued the plan is not governed by ERISA because it falls under ERISA’s safe harbor provision and because the life insurance policy is a conversion policy no longer subject to ERISA. Despite Mr. Huff’s untimeliness in moving for reconsideration, the court courteously addressed each of his arguments. Ultimately, the result was unchanged. The court disagreed with Mr. Huff’s position that the policy fell under the safe harbor provision. To the contrary, the court noted that Mr. Huff’s life insurance policy was part of broad company-provided basic life and accidental death and dismemberment coverage to which BP contributed premiums, and that BP took other actions including determining eligibility for coverage, directing the start and end dates of converge, and selecting the insurer. The court also reaffirmed its stance that because the plan is established by an employer for the purpose of providing benefits to participants and beneficiaries it is an EIRSA plan. The court also addressed Mr. Huff’s conversion argument. While the court acknowledged that there is a Circuit split over the issue of whether ERISA applies to a conversion policy after the conversion, the court explained that resolution of that issue was irrelevant here because the plan expressly provides, “you cannot convert your GUL coverage to individual coverage.” Thus, pursuant to plan language, conversion could not and did not occur. Finally, the court found no clear error in its prior analysis that the state law claims were preempted by ERISA as they could not be resolved without reliance on the plan and therefore naturally relate to the ERISA plan. For these reasons, the court denied Mr. Huff’s motion for reconsideration.

Life Insurance & AD&D Benefit Claims

Fifth Circuit

Metropolitan Life Ins. Co. v. Robles, No. C. A. 4:21-CV-00714, 2023 WL 1437710 (S.D. Tex. Feb. 1, 2023) (Judge George C. Hanks, Jr.). Metropolitan Life Insurance Company commenced this interpleader action to determine the proper beneficiary of decedent John Robles’s life insurance policy. The two defendants were Mr. Robles’s ex-wife, Carolyn Bell, and his wife at the time of his death, Anna Lisa Robles. Following a bench trial in the case, the court issued this order comprised of its findings of fact and conclusions of law. The court concluded that Mr. Robles’s change of beneficiary form designating his wife Anna as the beneficiary of his life insurance benefits was invalid and void as it directly conflicted with the express language of a Qualified Domestic Relations Order between Mr. Robles and Ms. Bell. Accordingly, the court held that “Ms. Bell is the sole beneficiary designated in the Policy and is entitled to receive the life insurance benefits at issue in this interpleader action for the benefit of the children that she shared with Mr. Robles.”

Medical Benefit Claims

Eighth Circuit

BCBSM, Inc. v. GS Labs., No. 22-cv-513 (ECT/DJF), 2023 WL 1110453 (D. Minn. Jan. 30, 2023) (Judge Eric C. Tostrud). Faced with mounting costs of covering COVID-19 diagnostic testing, Blue Cross took to the courts in cases like this one where it alleges that defendant GS Labs is a “pandemic profiteer” charging excessively high prices for faulty and superfluous tests. In this lawsuit and in others like it, Blue Cross and other insurance companies have ceased making payments to labs which the insurance companies feel charge too much for COVID tests and have sued those providers for alleged misconduct seeking millions of dollars in damages and recoupment of payments. In response, GS Labs avers that its tests were important, medically necessary, high-quality, and mandated by the government’s COVID-19 policies. GS Labs argues that it provided diagnostic COVID tests to over 300,000 Minnesotans and that it did not require payment from those individuals directly. GS Labs answered Blue Cross’s complaint by asserting 21 counterclaims against the insurance company under the CARES Act, ERISA, the Lanham Act, the Sherman Act, and Minnesota state law. Blue Cross moved to dismiss, testing the sufficiency of the claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Its motion was largely granted. To begin, the court dismissed GS Labs’ CARES Act claim, holding, as many other district courts have held, that the CARES Act does not provide for an express private right of action for healthcare providers. “Binding precedent today counsels caution in implying causes of action and directs that the focus be on statutory intent. The determination that § 3202 creates no private right of action is more faithful to the modern, controlling approach.” The court further held that Section 6001 of the FFCRA and Sections 3201 and 3202 of the CARES Act “do not say their COVID-testing-coverage requirements ‘amend’ or are incorporated by reference in non-ERISA health insurance policies or plans.” However, this was not the conclusion the court reached regarding ERISA plans. With respect to ERISA plans, the court ruled that FFCRA’s coverage requirement is included in ERISA and that the coverage-without-cost-sharing requirement of the CARES Act is therefore subject to ERISA Section 502(a)(1)(B) claims. Additionally, the court stated that the CARES Act requires, absent a negotiated rate between the insurance company and the provider, that an insurance company “shall reimburse the provider the in an amount that equals the cash price for such service as listed by the provider on a public internet website.” GS Labs’ ERISA claim for benefits was thus allowed to proceed. However, its equitable relief ERISA claim under Section 502(a)(3) was dismissed, as Eighth Circuit precedent does not convey to providers the right to sue for equitable relief. GS Labs was also allowed to proceed with its promissory estoppel claim as it met the pleading requirements by including an email dated March 31, 2021, from Blue Cross promising to pay GS Labs at the prices posted on its website as required by the CARES Act. The remainder of GS Labs’ counterclaims were dismissed for various reasons, including all of its antitrust claims which the court noted were economically implausible. Your ERISA Watch will continue to cover these disputes between insurance companies and healthcare providers over reimbursement of COVID-19 healthcare as they play out in the courts. Curious readers should stay tuned for further developments.

Pension Benefit Claims

Second Circuit

Fitzsimons v. N.Y.C. Dist. Council of Carpenters & Joiners of Am., No. 21 Civ. 11151 (AT), 2023 WL 1069808 (S.D.N.Y. Jan. 27, 2023) (Judge Analisa Torres). A retired union member, Peter Fitzsimons, along with his wife and adult children, sued the New York City District Council of Carpenters and Joiners of America union along with its pension and welfare funds under ERISA and the Labor Management Reporting and Disclosure Act (“LMDRA”) after the family’s pension payments and healthcare benefits were stripped following a union trial which found Mr. Fitzsimons had been improperly performing managerial and inspector work for a contributing employer, disqualifying him from benefits. In this action the Fitzsimons family asserted claims under Sections 502(a)(3) and 502(a)(1)(B) of ERISA and Sections 411(a), 412, and 529 of LMRDA. The union and fund defendants moved to dismiss for failure to state a claim. Their motion was granted in this order. To begin, the court speedily dismissed the ERISA breach of fiduciary duty claim, writing, “[t]he complaint does not contain sufficient factual allegations to state a claim for breach of fiduciary duty under ERISA…Plaintiffs’ conclusory allegations are insufficient to state a claim.” Plaintiffs’ claim for pension benefits under Section 502(a)(1)(B) was dismissed as untimely. The court upheld the pension plan’s one-year statute of limitation within which to sue and held that plaintiffs failed to sue within the allotted window. Although plaintiffs’ claim for healthcare benefits was not dismissed as untimely, the court nevertheless found the claim failed on the merits. Under arbitrary and capricious review, the court found defendants’ interpretation of plan language about disqualifying employment to be on its face reasonable and not erroneous as a matter of law. Finally, plaintiffs’ LMRDA violations were dismissed as the court concluded that Mr. Fitzsimons was afforded a full and fair union trial and that he therefore did not state a valid claim. Accordingly, the entire complaint was dismissed.

Statutory Penalties

Sixth Circuit

Higgins v. The Lincoln Elec. Co., No. 5:22-cv-88-BJB, 2023 WL 1072016 (W.D. Ky. Jan. 27, 2023) (Judge Benjamin Beaton). In July 2017, plaintiff Jerry Higgins was given a benefit statement from his employer, defendant The Lincoln Electric Company, informing him that he was eligible for $92,260.80 in total long-term disability benefits under the company’s ERISA-governed policy issued by defendant MetLife. Mr. Higgins became disabled the following month. While his claim for benefits was approved, he was informed that he would only receive $60,000. Several years later, in January 2022, Mr. Higgins, then represented by legal counsel, requested the administrative record from MetLife and demanded payment of the greater benefit amount listed in the July 2017 benefit statement. MetLife informed Mr. Higgins that he should submit his requests to his employer. Mr. Higgins did so, and his employer promptly sent him back to MetLife. This lawsuit followed. Defendant MetLife moved for dismissal. Mr. Higgins asserted two claims against MetLife, both pursuant to ERISA § 502(c), for failing to provide Mr. Higgins requested plan information and for failing to respond to his claim for increased benefits. In its motion, MetLife argued that it cannot be held liable for penalties under § 1132(c) because The Lincoln Electric Company is the named plan administrator and under Sixth Circuit precedent only the plan administrator, and not the claims administrator, is covered under the statute. The court agreed, writing, “claim administration is not the same thing as plan administration. The statute and precedent make this plain…And the statutory section under which Higgins sued covers the latter rather than the former.” Accordingly, even accepting all Mr. Higgins’s allegations as true and drawing reasonable inferences in his favor, the court held that Mr. Higgins could not assert § 502(c) claims against MetLife. Thus, MetLife’s motion to dismiss was granted.

Venue

Eleventh Circuit

Worldwide Aircraft Servs. v. Anthem Ins. Cos., No. 8:21-cv-456-CEH-AAS, 2023 WL 1069811 (M.D. Fla. Jan. 27, 2023) (Judge Charlene Edwards Honeywell). In this action, a plan participant, represented by an attorney-in-fact, is suing Anthem Insurance Companies, Inc. under ERISA Section 502(a)(1)(B) for under-reimbursement of medically necessary air ambulance services arising from a medical emergency that occurred while the participant was on vacation in Florida. Defendant moved to dismiss for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). Anthem was able to persuade the court that venue in Florida was improper under ERISA’s venue provision, § 1132(e)(2), because it cannot be “found” in Florida and the plan participant is a resident of Indiana. Anthem submitted evidence to the court that it is an Indiana corporation, not authorized to do business in Florida, without any offices or building in Florida, not paying Florida taxes, not advertising in Florida, and without a Florida telephone number or mailing address. Although plaintiff was able to point to a Florida building showing the name “Anthem” on it, the court agreed with Anthem that this building beloved to a corporate subsidiary of Anthem and was therefore a separate business which had nothing to do with the named defendant here. Nevertheless, while the court determined venue to be improper in the Middle District of Florida, the court determined that the interests of justice favored transferring the case to the district where it should have been brought, the Southern District of Indiana. Accordingly, the case was transferred, and it will proceed going forward in the Southern District of Indiana.

Wit v. United Behavioral Health, No. 20-17363, __ F.4th __, 2023 WL 411441 (9th Cir. Jan. 26, 2023) (Before Circuit Judges Christen and Forrest, and District Judge Michael M. Anello)

In the March 30, 2022 edition of Your ERISA Watch, we examined the Ninth Circuit’s prior decision in this case, issued on March 22, 2022. We found it notable that despite the case’s long history – which includes numerous extensive orders by the district court on a variety of issues, including class certification, a ten-day bench trial, a finding that defendant United engaged in “pervasive and long-standing violations of ERISA,” and attorneys’ fees of more than $20 million – the Ninth Circuit cursorily reversed in a breezy eight-page non-precedential memorandum disposition.

Plaintiffs, a class of benefit plan participants who had alleged that United violated ERISA by denying their mental health and substance use disorder claims under medical necessity guidelines that were inconsistent with plan requirements, were understandably miffed. They filed a petition for rehearing and rehearing en banc, and numerous amici curiae weighed in as well.

In this decision the Ninth Circuit responded by withdrawing its 2022 memorandum disposition, replacing it with a new published opinion, and denying as moot the petition for rehearing and the amicus motions. The new opinion addresses the issues on appeal more thoroughly, but the result is not what the plaintiffs had hoped.

As in its prior decision, the Ninth Circuit first tackled standing. United argued that the plaintiffs “did not suffer concrete injuries” and “did not show proof of benefits denied,” and thus were not harmed by United’s guidelines. The court disagreed, holding that the plaintiffs had suffered a concrete injury because United’s alleged misadministration of their claims “presents a material risk to their interest in fair adjudication of their entitlement to their contractual benefits. Plaintiffs need not have demonstrated that they were, or will be, entitled to benefits to allege a concrete injury.”

The court also found that the plaintiffs’ injuries were “particularized because the Guidelines are applied to the contractual benefits afforded to each individual class member” and “fairly traceable” to United because plaintiffs’ interest in the proper interpretation of their benefits was connected to United’s improper conduct.

That was the end of the good news for the plaintiffs, however, as the Ninth Circuit moved on to the district court’s class certification order. In last year’s decision, the Ninth Circuit affirmed the district court’s ruling on this issue, holding that the plaintiffs’ breach of fiduciary claim “is capable of being resolved on a class-wide basis.” The court also found that the plaintiffs’ denial of benefits claim “avoided the individualized nature of the benefits remedy available under § 1132(a)(1)(B) by seeking ‘reprocessing.’” The court dodged the issue of whether the reprocessing remedy sought by the plaintiffs “overextended Rule 23 in violation of the Rules Enabling Act.”

Judge Forrest objected to this evasion in her concurrence last year, and in the new opinion the rest of the court agreed with her and squarely addressed this issue. The court observed that the plaintiffs had attempted to avoid the problem of “numerous individualized questions” for each benefit claim by seeking a uniform remedy, i.e., the “reprocessing” of their benefit claims by United. However, the court found that this strategy violated the Rules Enabling Act, which provides that procedural rules “shall not abridge, enlarge or modify any substantive right.”

Specifically, the Ninth Circuit stated that ERISA’s benefit claim provision (29 U.S.C. § 1132(a)(1)(B)) only provides a right to “recover benefits or to enforce or clarify rights under the plan.” Thus, reprocessing, which entails “a remand to the administrator for reevaluation” is not a proper remedy under this provision, and is only “a means to the ultimate remedy,” i.e., the payment of benefits. As a result, the court ruled that the district court violated the Rules Enabling Act by creating a substantive right not authorized in ERISA: “The district court abused its discretion in accepting the erroneous legal view that reprocessing is itself a remedy…independent from the express statutory remedies that Congress created, justifying class treatment.”

The court further ruled that reprocessing was not an available remedy under ERISA’s equitable relief provision (29 U.S.C. § 1132(a)(3)) for two reasons. First, the court stated that plaintiffs are not allowed to repackage their benefit claims as equitable claims, and second, the district court “did not explain or refer to precedent showing how a ‘reprocessing’ remedy constitutes relief that was typically available in equity.”

Next, the court addressed the merits of plaintiffs’ argument, and the result was the same as in last year’s ruling. Because the parties agreed that the standard of review was abuse of discretion, United’s decisions could only be overturned if they were “unreasonable.” The court emphasized that the benefit plans at issue “exclude coverage for treatment inconsistent with GASC [generally accepted standards of care] or otherwise condition treatment on consistency with GASC.” However, while this provision “mandates that a treatment be consistent with GASC as a starting point, it does not compel [United] to cover all treatment that is consistent with GASC. Nor does the exclusion – or any other provision in the Plans – require United to develop Guidelines that mirror GASC.” As a result, United’s interpretation of the plans was not unreasonable. The Ninth Circuit further ruled that the district court’s findings regarding United’s conflict of interest did not change this result.

Finally, the Ninth Circuit examined United’s exhaustion argument, another issue it ducked in last year’s decision. The court ruled in United’s favor on this as well. United contended that the district court erred by excusing unnamed class members from showing that they had complied with the plan’s contractual requirement that they exhaust all appeals before filing suit. The Ninth Circuit agreed, ruling that “application of judicially created exhaustion exceptions would conflict with the written terms of the plan.” Furthermore, the district court’s ruling once again violated the Rules Enabling Act because, “by excusing all absent class members’ failure to exhaust, the district court abridged [United’s] affirmative defense of failure to exhaust and expanded many absent class members’ right to seek judicial remedies.”

After all this, what remains of the plaintiffs’ lawsuit? The Ninth Circuit concluded that the plaintiffs “have Article III standing to bring their breach of fiduciary duty and improper denial of benefits claims,” and that the district court “did not err in certifying three classes to pursue the fiduciary duty claim.” However, the court also ruled that the plaintiffs’ class-wide reprocessing remedy was improper because it violated the Rules Enabling Act. It also ruled that United’s guidelines do not violate the requirements of the benefit plans. Plus, the court’s exhaustion ruling will require a reformulation of the classes in the action. As a result, while the case is not dead, the path forward back in the district court will be tricky.

Or, the plaintiffs could petition the Ninth Circuit for rehearing once again, which seems likely. Stay tuned to Your ERISA Watch to find out.

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

Arbitration

Third Circuit

Burnett v. Prudent Fiduciary Servs., No. C. A. 22-270-RGA-JLH, 2023 WL 387586 (D. Del. Jan. 25, 2023) (Magistrate Judge Jennifer L. Hall). In this putative class action, participants of the Western Global Airlines, Inc. Employee Stock Ownership Plan (“ESOP”) allege breaches of fiduciary duties in connection with a transaction selling stock to the ESOP at what plaintiffs allege was an inflated stock valuation. Plaintiffs’ complaint seeks plan-wide relief seeking to hold defendants liable for the losses resulting from the ESOP transaction and to disgorge any profits made through the plan assets. Additionally, plaintiffs seek removal of the plan trustee and other changes among the plan’s fiduciaries, “as well as certain other equitable and declaratory relief.” Defendants moved to compel arbitration and to either stay proceedings or dismiss the case pursuant to the Federal Arbitration Act. Plaintiffs opposed. They argued that the arbitration provision at issue contains a clause which bans them from seeking plan-wide relief, and because that portion of the arbitration provision is both invalid and not severable, defendants’ motion should be denied. Magistrate Judge Hall agreed. “The ERISA statute gives plan beneficiaries the right to sue on behalf of plan and recover plan-wide damages for a breach of fiduciary duty… But what the statue provides, the arbitration provision takes away… The arbitration provision thus eliminates a right to pursue a remedy provided by a federal statute.” Finally, the magistrate agreed with plaintiffs that the provision’s express language saying that the invalid provision cannot be severed meant that the court could not enforce the arbitration provision at all. Accordingly, Magistrate Judge Hall recommended that defendants’ motion be denied.

Attorneys’ Fees

Ninth Circuit

Robinson v. American Int’l Grp., No. 2:21-cv-00749-MEMF-MRWx, 2023 WL 375939 (C.D. Cal. Jan. 24, 2023) (Judge Maame Ewusi-Mensah Frimpong). Last September, the court issued an order granting summary judgment in favor of plaintiff Ian Robinson in this action challenging a denial of a claim for death benefits under an Accidental Death and Dismemberment Policy. Mr. Robinson subsequently filed a motion for an award of attorneys’ fees, costs, final judgment, and interest. To begin, the parties agreed that attorneys’ fees in the amount of $133,125 and costs in the amount of $2,735.25 were appropriate. Without any objection on the part of the defendant, the court granted the motion to award fees and costs in those amounts. Next, it was undisputed that the benefit claim amounted to $236,000, and defendant was found liable by the court for that amount. Most of the decision’s focus was directed on the primary dispute between the parties – the amount of prejudgment interest. Mr. Robinson argued that historically high inflation deprived him of a period of high growth and favorable returns had he been able to invest the benefit at the time when he filed the claim. Accordingly, Mr. Robinson sought the interest rate prescribed by California’s Civil Code in the amount of 10% per annum from the date of the breach of fiduciary duty. In contrast, defendants argued in favor of the 4.5% interest rate set under 28 U.S.C. § 1961. The court held that Mr. Robinson failed to demonstrate that he would have invested the benefit the manner outlined in his motion. Thus, the court concluded that the equities did not demonstrate the need in this case to award the greater interest rate. The court awarded prejudgment interest calculated at the rate of 4.66% per annum. Finally, the court declined to award compound interest. It stated that prejudgment interest is a form of compensation, not a penalty, and the court’s discretion is whether to award prejudgment interest, not whether the court “elects compound or simple interest.” Awarding compound interest, the court concluded, would be tantamount to imposing a penalty, “a request that the Court cannot accommodate.” Therefore, the court awarded simple interest. Using the established interest rate, the court awarded prejudgment interest of $29,738.72. For these reasons, Mr. Robinson’s motion was granted, as modified by the judge, and judgment was ordered in the amounts described above.

Breach of Fiduciary Duty

First Circuit

Erban v. Tufts Med. Ctr. Physicians Org., No. 22-11193-PBS, 2023 WL 363588 (D. Mass. Jan. 23, 2023) (Judge Patti B. Saris). In 2019, Dr. John Erban, an oncologist at Tufts Medical Center, was given a terminal diagnosis when test results revealed a malignant tumor. In the year between the date of his diagnosis and his death in September 2020, Dr. Erban suffered from cognitive impairments. After her husband’s death, widow Lisa Erban applied for life insurance benefits as the named beneficiary. Her claims for both basic and supplemental life insurance benefits were denied because the policies had lapsed when they were not converted to individual policies. Ms. Erban then brought this action under ERISA Section 502(a)(3) alleging that Tufts Medical Center Physicians Organization and its director of human resources, Nicolas Martin, breached their fiduciary duties by failing to instruct Ms. Erban to continue paying premiums, and failing to inform her about the deadline to convert her husband’s life insurance plans. Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). In this order the court denied the motion “on the grounds Plaintiff Lisa Erban has stated a plausible claim that Defendants breached their fiduciary duty in light of their knowledge of Dr. Erban’s impaired cognitive ability and that Nicolas Martin, an employee and Human Resources Director, acted as a fiduciary.” The court went on to stress that because defendants were aware of Dr. Erban’s illness, they had an affirmative obligation to inform the Erbans and provide them with accurate and complete material information on their benefit status and options to continue coverage. As the court wrote, “the HR staff knew that the Erbans’ main focus was to ‘assure continuance of active status’ of his life insurance policy,” accordingly, they had a fiduciary duty “to do more than simply not misinform.”

Turner v. Schneider Elec. Holdings, No. 20-11006-NMG, 2023 WL 387592 (D. Mass. Jan. 24, 2023) (Judge Nathaniel M. Gorton). Participants of the Schneider Electric 401(k) Plan initiated a putative class action against the plan, Schneider Electric, the plan’s benefits and investments committees, and the plan’s investment manager, Aon Hewitt Investment Consulting, Inc., for breaches of fiduciary duties of prudence, loyalty, and to monitor after Aon Hewitt replaced existing plan investment options with its own set of proprietary investment trusts. According to plaintiffs, the plan’s decision to invest in these Aon Hewitt trusts resulted in major losses to participants’ retirement savings through underperformance and unreasonably high associated management and recordkeeping fees. Defendants moved for summary judgment. The court first addressed plaintiffs’ breach of fiduciary duty claim arising from the selection of the Aon Trusts. Defendants argued that plaintiffs failed to prove that the plan suffered any losses from the selection and retention of the Aon Trusts. They stated that, to the contrary, thanks to profit earned on separate investments, the plan actually accrued a gain of $27 million during the relevant time period. Plaintiffs pushed back on the concept that a fiduciary is able “to reduce its liability by profit earned on separate investments.” The court held that “combining gains and losses is permissible in the negligence context,” and accordingly found that plaintiffs failed to prove as a matter of law that the selection of the Aon Trusts was imprudent or disloyal. As this was the only claim asserted against defendant Aon Hewitt, the court granted summary judgment in favor of Aon Hewitt and dismissed it from the action. The remaining defendants were granted summary judgment on this claim alone and were not dismissed. Plaintiffs’ breach of fiduciary duty claims of imprudence and monitoring related to the fees were found to have genuine issues of material fact precluding summary judgment.

Eighth Circuit

Riley v. Olin Corp., No. 4:21-cv-01328-SRC, 2023 WL 371872 (E.D. Mo. Jan. 24, 2023) (Judge Stephen R. Clark). Federal Rule of Civil Procedure 8 requires that, in order to state a claim for relief, a pleading must contain “a short and plain statement of the claim showing the pleader is entitled to relief.” However, in the context of ERISA breach of fiduciary duty putative class actions, short and plain statements no longer suffice under precedents set by many of the circuit courts. Rather, specificity, detail, and sufficiently similar comparators have become the keys to unlocking the courthouse door past pleading. And unless complaints are sufficiently festooned with these extras, courts are becoming more and more unwilling to find their allegations of wrongdoing plausible. Such was the case here. Last summer, the court granted defendants’ motion to dismiss plaintiffs’ complaint, which alleged that the fiduciaries of their ERISA retirement plan failed to adequately monitor the plan’s fees, improperly maintained underperforming funds, and failed to prudently select investment options. At the time, the court held that plaintiffs’ complaint did not plausibly state an inferential case that defendants’ actions as fiduciaries of the Olin Corporation retirement plan were imprudent or that their process was flawed. Following the court’s dismissal, plaintiffs moved for leave to amend their complaint. The court denied their motion on futility grounds in this decision. Specifically, the court expressed that plaintiffs’ updated comparisons of the challenged fees and funds were inapposite and thus not meaningful benchmarks with which to compare and contrast. Funds costing more or performing worse than other available options the court stated, “does not, in and of itself, an ERISA violation make.” The court concluded that while courts may not resolve factual questions on the pleadings, they may, and under Eight Circuit precedent must, “analyze whether a meaningful benchmark exists at the motion-to-dismiss phase.” Here, the court found meaningful benchmarks were not provided. Accordingly, the court held the amended complaint failed to address or rectify the deficiencies it previously identified and for this reason denied plaintiffs’ motion to amend.

Class Actions

Second Circuit

Garthwait v. Eversource Energy Serv. Co., No. 3:20-CV-00902 (JCH), 2023 WL 371036 (D. Conn. Jan. 24, 2023) (Judge Janet C. Hall). On December 7, 2022, the court issued an order in this breach of fiduciary duty class action allowing plaintiffs to proceed with some of their ERISA claims before a jury. Your ERISA Watch summarized that decision in its December 14,2022 issue. Following that order, defendants moved for a certificate of appealability and to stay the proceedings. In their motion, defendants argued that neither ERISA nor the Seventh Amendment provide a jury trial right and orders about the availability of jury trials “are often certified for interlocutory appeal.” The court disagreed, writing, “[c]ontrary to defendants’ argument, however, courts in this Circuit have denied motions for certificates of appealability regarding the jury trial right in ERISA cases.” And, although the court recognized that whether ERISA cases are tried in front of a jury is an important issue without consensus, the court stated that it is not a “controlling” issue. Furthermore, the court pointed out that selecting a jury would require minimum time and impact for what will surely be a “multi-week trial (whether before a jury, the court, or both.)” Meanwhile, allowing appeal of this interlocutory order would be a substantial time drain protracting the litigation. On balance, the court found there was significant downside to granting defendants’ request. Accordingly, it denied the motion to issue a certificate of appealability.

Disability Benefit Claims

Eighth Circuit

Elias v. Unum Life Ins. Co. of Am., No. 21-cv-1813 (WMW/TNL), 2023 WL 375649 (D. Minn. Jan. 24, 2023) (Judge Wilhelmina M. Wright). Plaintiff Bijan Elias brought this action under ERISA against Unum Life Insurance Company of America after Unum terminated his long-term disability benefits. The parties cross-moved for summary judgment and agreed that the plan’s discretionary clause triggered deferential review. Mr. Elias offered several reasons why he believed Unum’s termination of benefits constituted an abuse of discretion. First, Mr. Elias maintained that Unum selectively picked from the medical record to support its desired result and ignored evidence of Elias’s disability. The court disagreed. As this was primarily an instance of differing conclusions between medical professionals, the court concluded it was not an abuse of discretion for Unum to disagree with Mr. Elias’s treating doctors so long as it offered reasonable explanations for drawing different conclusions. As the court felt Unum had done so here, it held that a reasonable person could have reached Unum’s conclusions and therefore concluded that Unum did not abuse its discretion by ignoring favorable evidence of disability. Next, Mr. Elias argued that Unum failed to demonstrate substantial evidence of an improvement in his condition from the date of its approval of disability benefits in 2008 to the date when it terminated the benefits in 2021. The court again disagreed, pointing to evidence of improvement in Mr. Elias’s conditions between 2016 and 2021 that affected the benefits determination. Mr. Elias also argued that Unum failed to consider the combined effects of his multiple physical and mental health conditions. Again, the court disagreed, as it viewed Unum’s review as holistic. Regarding Mr. Elias’s argument that Unum unreasonably relied on a paper review, the court expressed that an in-person review may have been stronger or more desirable but was not strictly necessary. Mr. Elias also contended that Unum acted arbitrarily and capriciously by failing to review his appeal fully and fairly by not proving him with the opportunity to review and respond to the reviewing doctor’s reports in violation of the 2018 Department of Labor regulation. The court stated that the 2018 regulation’s rights did not apply to claims filed before 2018. However, this aspect of the court’s ruling was at odds with last week’s notable decision from the Seventh Circuit, Zall v. Standard Ins. Co., which found that the 2018 regulation should be applied if the benefit termination occurred after 2018. Finally, Mr. Elias argued that Unum had a history of biased claims administration that the court should consider in its decision-making. However, the court stated that it would not consider Unum’s history of bias because “Unum’s period of biased claims administration ended before 2003.” Accordingly, the court affirmed Unum’s decision and granted its motion for summary judgment. Mr. Elias’s cross-motion for summary judgment was denied. 

Ninth Circuit

Connor v. Unum Life Ins. Co. of Am., No. 21-15034, __ F. App’x __, 2023 WL 417903 (9th Cir. Jan. 26, 2023) (Before Circuit Judges Bybee, Callahan, and Collins). In a straightforward and brief unpublished decision, the Ninth Circuit affirmed a district court judgment awarding plaintiff Caroline Connor long-term disability benefits and attorney’s fees. Defendant Unum Life Insurance Company of America was unable to persuade the appeals court that the district court abused its discretion in concluding that Ms. Connor is disabled and was a full-time active employee eligible for benefits under the plan. Relying on the unambiguous plan language, the court of appeals agreed with the lower court that active employment was defined as “working at least 30 hours per week,” and although the term “full-time” was not expressly defined, it was a reasonable interpretation of the plan to read the 30-hour minimum required for active employment as setting the hourly minimum for full-time work. In fact, the Ninth Circuit wrote, “it would be odd to read the eligibility provision as expressly specifying a particular numerical standard for weekly work, only to then implicitly override that numerical standard by the additional use of a general and undefined term.” The court also stated that it found no clear error in the district court’s determination that Ms. Connor worked at least 30 hours per week. Finally, because the Ninth Circuit affirmed the judgment on the merits in favor of Ms. Connor, it also upheld the award of attorney’s fees pursuant to Section 502(g)(1). Here, no “special circumstances would render such an award unjust.”

ERISA Preemption

Third Circuit

Johnson & Johnson Health Care Sys. v. Save on SP, LLC, No. 22-2632, 2023 WL 415092 (D.N.J. Jan. 25, 2023) (Judge John Michael Vazquez). Plaintiff Johnson & Johnson Health Care Systems Inc. administers a financial assistance program to help patients afford out-of-pocket costs for some of Johnson & Johnson pharmaceutical’s most costly medications, including its biologics. As part of the program’s eligibility criteria, prospective patients wishing to enroll must agree to the program’s terms and conditions which include, among other things, an agreement not to utilize any other coupon or engage in any other savings program. In this lawsuit, plaintiff alleges that defendant Save on SP, LLC and its cost-savings program have artificially reclassified some of Johnson & Johnson’s medications as non-essential in order to raise the co-pay costs for participants of healthcare plans taking these drugs. This was allegedly part of a scheme to pressure patients, including those enrolled in Johnson & Johnson’s payment assistance program, to enroll in Save on SP’s savings program to avoid the exorbitant out-of-pocket costs. Thus, Johnson & Johnson Health alleges that defendant Save on SP knowingly operates its program in violation of the terms and conditions of Johnson & Johnson’s program and is financially depleting the Johnson & Johnson payment assistance program, to the economic benefit of defendant and its partners. Save on SP moved to dismiss for failure to state a claim. It argued that plaintiff’s tortious interference and deceptive trade practice claims are preempted by ERISA. The court disagreed. “Granting relief to Plaintiff on either claim would not require plan administrators to make any plan changes,” as the claims here “do not mandate certain payments or impose any new rules on plan administrators.” Given this, the court stated that the claims do not undermine ERISA’s objective of facilitating uniform plan administration and procedures and were therefore not connected to any ERISA plan for the purposes of preemption. Furthermore, the court emphasized that the claims do not reference or rely on the terms of any ERISA plan because the Save on SP program applies to both ERISA and non-ERISA plans and the court will not need to interpret the meaning of any plan provision to rule on the claims. In addition to finding that ERISA did not preempt the claims, the court also found that Johnson & Johnson adequately stated its claims and had constitutional standing to assert them. Accordingly, the motion to dismiss was denied.

Exhaustion of Administrative Remedies

Second Circuit

Israel v. Unum Life Ins. Co. of Am., No. 21-CV-4335 (GHW) (JLC), 2023 WL 491039 (S.D.N.Y. Jan. 27, 2023) (Magistrate Judge James L. Cott). Plaintiff Jessica Israel brought suit under ERISA against Unum Life Insurance Company after Unum denied her claims for long-term disability benefits and a waiver of her life insurance premium. The parties filed cross-motions for summary judgment. At issue was whether Ms. Israel exhausted her administrative remedies before taking legal action. Ms. Israel argued that the written letter she submitted challenging the long-term disability benefit determination constituted an appeal under the guidelines provided by Unum. Conversely, Unum stated that Ms. Israel never formally appealed either benefit determination and she therefore lacks a legal basis to challenge the terminations. The court found for each party in part. Pertaining to the long-term disability appeal, the court agreed with Ms. Israel that she had properly taken the steps to appeal. Furthermore, any lack of clarity on the issue, the court stated, should be weighed in favor of Ms. Israel, as the onus is on Unum to comply with ERISA’s regulations. Additionally, the court found Unum’s review to be “ad hoc” and wrote that “Israel’s claim could alternatively be deemed exhausted on the grounds that Unum’s extra-regulatory review of her submissions following the initial May 15 Determination triggered exhaustion of Israel’s claim.” Thus, Ms. Israel’s long-term disability claim was deemed exhausted, and she was granted summary judgment on this issue. The court remanded to Unum for a full and fair review of the long-term disability benefit claim. This remedy was determined appropriate in this case because “the crux of this matter is not substantive but procedural.” Finally, the court held that Ms. Israel failed to exhaust her claim pertaining to her waiver of premium benefit, as “[n]othing in the record suggests that Israel…attempted to appeal the May 21 decision with respect to WOP benefits.” Accordingly, summary judgment was granted in favor of Unum with respect to this claim.

Life Insurance & AD&D Benefit Claims

Sixth Circuit

Igo v. Sun Life Assurance Co. of Can., No. 1:22-cv-91, 2023 WL 406195 (S.D. Ohio Jan. 25, 2023) (Judge Timothy S. Black). Plaintiff Patrick Igo brought an ERISA lawsuit seeking the full amount of life insurance benefits his late husband, Dr. Marcos Estrada Gomez, elected and paid premiums on. Mr. Igo’s claim for benefits was paid at a lower rate because the plan’s administrator and insurance company, Sun Life Assurance Company of Canada, found that Dr. Estrada Gomez had not included an evidence of insurability form with his option to increase his coverage. In his complaint, Mr. Igo argued that an evidence of insurability form was not required as part of the election form and Dr. Estrada Gomez therefore met all the necessary conditions for receipt of his full elected benefits. Defendants Sun Life and Benefit Advisors Services Group, LLC moved to dismiss. Their motion was denied, as it was not only untimely, but also because the court disagreed with their assertion that Mr. Igo’s complaint impermissibly engaged in group pleading of the defendants. The court stated that the complaint adequately alleges that the defendants all had a hand in administering the plan and in making benefit determinations, and that the complaint sufficiently puts the defendants on notice of the allegations against them. Thus, the motion to dismiss was denied. Finally, the court granted Mr. Igo’s motion to voluntarily dismiss defendant Bon Secours Mercy Health, Dr. Estrada Gomez’s former employer, as Mercy Health reached a settlement with Mr. Igo.

Ninth Circuit

Wilcox v. Dearborn Ins. Co., No. 2:21-cv-04605-JLS (JCx), 2023 WL 424256 (C.D. Cal. Jan. 26, 2023) (Judge Josephine L. Staton). Plaintiff Kevin Wilcox brought this action against Dearborn Insurance Company challenging its denial of waiver of premium due to disability on his life insurance policy. Mr. Wilcox, who has a diagnosis of HIV, argued that his physical, psychological, and neurological symptoms have rendered him totally disabled from any occupation and that he should therefore qualify for the waiver of premium. The parties moved for judgment pursuant to Federal Rule of Civil Procedure 52. The court reviewed the medical record de novo, emphasizing that the burden of proof of disability lay with Mr. Wilcox. Mr. Wilcox issued a statement expressing “that he’s not been able to drive since 2013, that his spouse quit his job to take care of him full time in 2014 due to his cognitive decline…that he has lost control of his bowels and bladder, that he has frequent falls from peripheral neuropathy and has ‘pain at a level 6 of 10 on most days,’ and that he also has severe outbreaks of psoriasis.” Notwithstanding Mr. Wilcox’s complaints within his personal statement and throughout litigation and his submission of a voluminous medical record that both pre- and post-dated the date that Dearborn discontinued plaintiff’s life insurance premium waiver, the court held that Mr. Wilcox did not adequately support his position with contemporaneous office notes and treatment records. Accordingly, the court held that Mr. Wilcox failed to meet the definition of totally disabled and upheld Dearborn’s decision to discontinue his life insurance premium waiver. Thus, judgment was entered in favor of Dearborn.

Medical Benefit Claims

Third Circuit

Tamburrino v. United HealthCare Ins. Co., No. 21-12766 (SDW)(ESK), 2023 WL 416157 (D.N.J. Jan. 26, 2023) (Judge Susan D. Wigenton). A surgeon and a covered patient have brought a putative class action challenging United Healthcare Insurance Company’s uniform claim practice of denying coverage for the cost of assistant or co-surgeons for women undergoing post-mastectomy reconstructive breast surgery. Plaintiffs asserted causes of action under ERISA Sections 502(a)(1)(B) and 502(a)(3), seeking payment of benefits along with other equitable relief including reprocessing and an injunctive order changing United’s practice. United moved to dismiss plaintiffs’ breach of fiduciary duty claims pursuant to Section 502(a)(3). It argued that plaintiffs’ claims for breaches of fiduciary duties were duplicative of their claims for benefits. Plaintiffs, on the other hand, argued that their fiduciary breach claims are distinct from their claim for benefits. Specifically, plaintiffs asserted that United breached its duty of loyalty and violated the Women’s Health and Cancer Rights Act, a law specifically designed to ensure breast cancer patients have access to reconstructive plastic surgery. In this order the court sided with United. The court viewed plaintiffs’ breach of duty of loyalty claims to be conclusory and to fall short of alleging facts which could support a conclusion that United acted to benefit itself. Regarding plaintiffs’ claims that United violated the Women’s Health and Cancer Rights Act, the court held that the Act does not specify the level of coverage that must be provided, and so interpreted the law to allow for United’s actions alleged here. Thus, the court concluded plaintiffs did not sufficiently allege a violation of the Act to warrant equitable relief under Section 502(a)(3). Accordingly, United’s motion to dismiss the breach of fiduciary duty claims asserted against it was granted. Dismissal of these claims was with prejudice.

Fourth Circuit

L.L. v. MedCost Benefits Servs., No. 1:21-cv-00265-MR, 2023 WL 362391 (W.D.N.C. Jan. 23, 2023) (Judge Martin Reidmger). A mother and her minor child sued MedCost Benefit Services and the Mountain Area Health Education Center Medical and Dental Care Plan in a two-count ERISA complaint. Plaintiffs sought both recovery of medical benefits for the cost of a stay at a residential treatment facility under Section 502(a)(1)(B) and equitable relief under Section 502(a)(3) for violating the Mental Health Parity and Addiction Equity Act. Defendants moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). To begin, the court denied MedCost’s motion to dismiss plaintiffs’ claim for recovery of benefits. “L.L. alleges the existence of an ERISA-governed plan, and alleges that E.R. was a beneficiary of the plan. She goes on to identify the provision of the Plan that she contends entitles E.R. to coverage; she specifically alleges that the Plan covers medically necessary treatment at residential facilities…L.L. alleged that the treatment at (the facility at issue) was medically necessary, and that (it) was not an excluded facility.” A plaintiff, the court held, need not plead more to plausibly allege an ERISA medical benefits claim. However, the court held that the injury of plaintiffs’ Section 502(a)(3) claim was not distinct from the injury of their claim for benefits. Thus, the court found “equitable relief pursuant to § 1132(a)(3) is not appropriate.” Plaintiffs’ second claim was accordingly dismissed. Defendants’ motion was thus granted in part and denied in part. Finally, plaintiffs were ordered to show cause as to why they should be allowed to proceed under pseudonyms.

Provider Claims

Fifth Circuit

Bailey v. Avis Budget Grp., No. 11-22-1647, 2023 WL 375371 (S.D. Tex. Jan. 23, 2023) (Judge Lynn N. Hughes). A healthcare provider, Jason Bailey, and a covered plan participant, Michelle Fairley, sued Avis Budget Group, Inc., and Aetna Life Insurance Co. under ERISA Section 502(a)(1)(B) challenging the amount the healthcare plan paid for medically necessary breast reconstruction surgery following a mastectomy. Defendants moved to dismiss plaintiff Jason Bailey for lack of standing. Defendants provided the court with a copy of the plan which includes a valid and unambiguous anti-assignment provision. Given the evidence provided by defendants and the fact that plaintiffs did not file a response, the court granted the motion and dismissed Jason Bailey’s claims in the case. Accordingly, the action will remain with Ms. Fairley as the plaintiff.

Seventh Circuit

Advanced Physical Med. of Yorkville v. Cigna Healthcare of Ill. Inc., No. 22-cv-1581, 2023 WL 358575 (N.D. Ill. Jan. 23, 2023) (Judge Jorge L. Alonso). Healthcare provider Advanced Physical Medicine of Yorkville sued Cigna Health Management Inc. after one of its patients, Zachary Jump, was denied reimbursement for therapeutic services it provided to him. In this action, Advanced Physical sought recovery of plan benefits as well as statutory penalties for failure to provide plan documents upon request. Cigna moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Cigna attached a copy of the plan to its motion and argued that in light of the plan’s unambiguous anti-assignment provision the provider could not proceed on its ERISA claims. The court agreed and held the benefits are not assignable. “Similarly, Plaintiff’s contention that it is a beneficiary because it was Jump’s authorized representative lacks a basis in law. An ERISA beneficiary is someone ‘entitled to a benefit’ under a plan…not someone authorized to vindicate another’s right to benefits.” Mr. Jump, the court stated, is the proper beneficiary under the plan and is thus “the real party-in-interest.” Furthermore, the court held that a claim for failure to provide plan documents needs to be asserted against the plan administrator, which the plan states is Starbucks not Cigna. As a result, the court dismissed both causes of action for failure to state a claim, and did so with prejudice, concluding, “repleading would be futile.”

Eleventh Circuit

Surgery Ctr. of Viera v. Cigna Health & Life Ins. Co., No. 6:22-cv-393-JA-LHP, 2023 WL 375556 (M.D. Fla. Jan. 24, 2023) (Judge John Antoon II). Plaintiff Surgery Center of Viera, LLC, sued Cigna Health & Life Insurance Company after a claim it submitted for reimbursement of a pre-approved surgery performed on an insured patient was paid at an amount well below the billed charge, allegedly in violation of a repricing agreement between the parties. In its complaint, Surgery Center of Viera asserted three causes of action: breach of contract, unjust enrichment, and quantum meruit. Cigna moved to dismiss the complaint. Cigna argued that the complaint “constitutes an impermissible ‘shotgun pleading,’” and that the state law claims are preempted by ERISA. The court agreed with Cigna on both points. The court reprimanded plaintiff for interweaving necessary facts among legal conclusions and premature arguments. “The result is not a ‘short and plain statement of the claim’…but a frustrating thicket of roughhewn prose in which Cigna – and the Court – are forced to forage for morsels of relevant information.” Along with taking issue with the pleading’s prose and generally finding that the complaint did not satisfy Federal Rule of Civil Procedure 8, the court also found ERISA preempts the state law claims as those claims have “a connection with or reference to an ERISA plan,” and there is no way to determine what amount the provider should be paid without consulting that plan. For these reasons, the court granted the motion and dismissed the complaint.

Retaliation Claims

Sixth Circuit

Schramm v. Neenah Paper Mich., Inc., No. 2:22-cv-00047, 2023 WL 415592 (W.D. Mich. Jan. 25, 2023) (Magistrate Judge Maarten Vermaat). Magistrate Judge Vermaat issued this report and recommendation recommending the court grant in part and deny in part defendant Neenah Paper Michigan, Inc.’s motion to dismiss this wrongful termination and retaliation action under ERISA’s whistleblower provision. Plaintiff Thomas Schramm alleged that his employer took retaliatory actions against him after he reported a chemical spill of 2,000 gallons of bleach at the plant where he worked to the Michigan Department of Environment, Great Lakes, and Energy. As pertains to ERISA, Mr. Schramm brought a Section 510 claim alleging he was fired in retaliation for attempting to exercise his rights under the company’s health insurance plan. Defendant argued that Mr. Schramm argued only that he was “working through his Union to clarify and secure his rights under Neenah’s health insurance plan,” that this allegation is not sufficient to demonstrate that he was exercising a right under the plan, and therefore it is not an activity protected under ERISA. The Magistrate Judge agreed, concluding that Mr. Schramm did not sufficiently state a claim alleging he was terminated due to his use of an employee benefit and thus recommended Mr. Schramm’s ERISA claim be dismissed.

Severance Benefit Claims

Fifth Circuit

Dunn v. Southwest Airlines Co., No. 3:21-CV-1393-X, 2023 WL 360246 (N.D. Tex. Jan. 23, 2023) (Judge Brantley Starr). In May 2020, plaintiff Lafe Dunn, a pilot employed by Southwest Airlines, went on sick leave to enter a substance abuse treatment program to address mental health problems. Just days after he took his sick leave, on June 1, 2020, Southwest created a voluntary separation program in response to the COVID pandemic which would provide severance payments to those interested in voluntarily resigning. Mr. Dunn was interested in taking this deal and applied to participate. The plan stated that Southwest offered this program to “Pilots on active status at Southwest as of June 1, 2020.” Mr. Dunn’s claim for benefits was denied by the board of trustees who interpreted the undefined term “active status” as excluding pilots who were on leave of absence from work as of June 1, 2020. Accordingly, Mr. Dunn’s benefit application was denied, despite oral promises and assurances from Mr. Dunn’s superiors that he would certainly qualify. After an unsuccessful internal appeal, Mr. Dunn brought this lawsuit in which he alleged two causes of action: wrongful denial of benefits under Section 502(a)(1)(B) and breach of fiduciary duty under Section 502(a)(3). The parties cross-moved for summary judgment on both counts. First, the court granted summary judgment to Southwest on Mr. Dunn’s benefit claim. The court determined the plain meaning of the word “inactive,” defined as “’being out of use’ or ‘not performing or available for duties,’” supported the board’s decision to deny benefits. Mr. Dunn argued that considering an employee on sick leave as being inactive is problematic for several reasons, not least because the employee could “fall in and out of insurance coverage as that employee fell in and out of ‘active employment.’” The court stated that because the board reasonably believed Mr. Dunn’s absence from work for medical reasons would last at least six months, Mr. Dunn’s arguments and concerns were irrelevant to the present situation. Thus, under abuse of discretion review, the decision was upheld. Next, the court denied both parties’ motions for summary judgment on the breach of fiduciary duty claim. The court disagreed with Southwest that Mr. Dunn’s claim for breach of fiduciary duty was duplicative of his claim for benefits. Not only were the facts distinct for each claim, but the court also stated that its decision to grant summary judgment to Southwest on the claim for benefits meant that there was “no predicate claim of which his § 1132(a)(3) claim could be duplicative.” However, Mr. Dunn was also unable to convince the court that he was entitled to summary judgment on the breach of fiduciary duty claim. Thus, Mr. Dunn’s summary judgment motion was denied, and Southwest’s cross-motion for summary judgment was granted in part and denied in part.

Zall v. Standard Ins. Co., No. 22-1096, __ F. 4th __, 2023 WL 312368 (7th Cir. Jan. 19, 2023) (Before Circuit Judges Hamilton, St. Eve, and Kirsch)

ERISA Section 503 requires that plan fiduciaries decide benefit claims under a “full and fair” claims review procedure. 29 U.S.C. § 1133. The Department of Labor has fleshed out what this means in regulations that it periodically updates, generally to impose additional and more stringent claims processing requirements. Which version of these regulations applies to a given case is a question that frequently arises in the disability context, where benefits are often terminated years after a plan participant first applied for and was awarded benefits. Here, the Seventh Circuit answers that question in the participant’s favor, holding that the regulations in effect at the time of the termination govern. 

Eric Zall worked as a dentist for more than two decades until chronic pain in his neck and right arm made it impossible to continue doing so. In 2013, he filed a claim for long-term disability benefits with Standard Insurance Company, which insured and administered an ERISA-governed disability plan in which Mr. Zall was a participant. At that time, the governing regulations, which were promulgated in 2000 with an effective date of January 1, 2002, required the claims administrator to give copies of all document and records which it considered, generated, or relied upon in denying benefits to the claimant “upon request.” Standard approved Mr. Zall’s claim and paid benefits for six years.

Then, in 2019, Standard terminated Mr. Zall’s benefits based on a determination that his claim was subject to a 24-month benefit limit for disabilities “caused or contributed to by…carpal tunnel or repetitive motion syndrome.” By that time new regulations were in effect, which now require that administrators provide claimants with pertinent information whether they ask for it or not. Despite this requirement, Standard issued a final decision upholding the initial termination of benefits that relied substantially on the report of a physician Standard consulted during the administrative review process, Dr. Michelle Albert, which it did not provide to Mr. Zall.

Mr. Zall sued, arguing, among other things, that Standard denied him “full and fair review” of his benefit claim by failing to give him Dr. Albert’s report, and that Standard’s decision to terminate his benefits was not rationally supported by the evidence. The district court disagreed on both counts. It held that the new regulations were inapplicable because they applied only to claims that were “filed” after April 2018. The district court also concluded that Standard’s determination that Mr. Zall’s condition fell within the 24-month limitation was not “arbitrary and capricious” and was supported by substantial evidence in the form of Dr. Albert’s report.

The Seventh Circuit saw things differently on the “full and fair review” issue, which turned on whether the 2002 or the 2018 regulations applied. The court found the answer in the plain language of the 2018 regulations, which state that, subject to a few inapplicable exceptions, they apply to claims filed after January 1, 2002. The court then rejected each of Standard’s arguments seeking to avoid “this straightforward reading of the controlling text.”

First, the court considered Standard’s argument that a summary of the regulations prepared by the Department of Labor stated that the applicability date of the regulations was April 1, 2018, and this should control. As an initial matter, the court noted that where the text of a regulation is clear, there is no need to consult extratextual evidence on its meaning. Moreover, the court saw no conflict between the summary statement and the effective date of January 1, 2018 set forth in the regulations, reasoning that this simply meant that once the regulations became operative in 2018, they applied to all active claims so long as they were filed after January 1, 2002.

Second, the court rejected Standard’s argument that Mr. Zall waived his “full and fair review” argument by not raising it during the administrative review. The problem with Standard’s waiver argument, the court reasoned, is that “Standard committed the procedural error at the very last stage of Zall’s administrative appeal.”

Standard also argued that Mr. Zall waived the argument about the 2018 regulations “by failing to allege it in his complaint.” According to the court, “[t]his argument reflects a deep and all-too-common misunderstanding of federal pleading requirements.” In fact, the federal rules do not require plaintiffs to plead legal theories, and even when they do so, those theories may be altered or refined.

Finally, the court rejected Standard’s argument that applying the 2018 regulations to Mr. Zall’s claim would violate general principles disfavoring retroactivity and construing statutory grants of rulemaking authority not to authorize retroactive rulemaking unless they do so expressly. But these rules disfavoring retroactivity apply only to substantive rules, and changes in procedural rules do not raise concerns about retroactivity. The court concluded that the “Claims procedure” regulations at issue were “purely procedural” and could therefore be applied to disputes arising before their enactment. The court ended this discussion of retroactivity by noting that it “would have been easy for Standard to comply with the new procedural requirement without any prejudice to its interests” by simply providing Mr. Zall with a copy of, and a chance to respond to, Dr. Albert’s report “sufficiently in advance” of its final determination.

Although the court agreed with Mr. Zall that he was prejudiced by Standard’s failure to provide him with Dr. Albert’s report while Mr. Zall’s claim was still undergoing administrative review, the court concluded that it “could not reliably say whether Standard acted arbitrarily and capriciously in terminating” his benefits. The court therefore declined to review Standard’s substantive decision to terminate benefits and instead remanded the case to Standard to allow Mr. Zall the opportunity to make additional arguments and submit additional evidence during a full and fair review of his claim.     

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

Attorneys’ Fees

Ninth Circuit

Gary v. Unum Life Ins. Co. of Am., No. 3:17-cv-01414-HZ, 2023 WL 196172 (D. Or. Jan. 17, 2023) (Judge Marco A. Hernandez). Plaintiff Alison Gary found success in the Ninth Circuit when it determined that Unum Life Insurance Company of America abused its discretion by failing to provide her long-term disability benefits. Subsequently, more than five years after commencing legal action, Ms. Gary has moved for an award of attorneys’ fees and costs pursuant to ERISA Section 502(g)(1). Ms. Gary was represented in this matter by six attorneys and one paralegal. For their years of work in the case, counsel sought a total fee award of $683,644.20, including a requested 1.2 multiplier. As an initial matter, the court stated that Ms. Gary was entitled to an award of fees and costs under the Ninth Circuit’s Hummell test because she succeeded on the merits, Unum can satisfy a fee award, and as a fee award will serve a deterrent purpose discouraging Unum from engaging in the same conduct in the future. Satisfied that Ms. Gary was entitled to an award of fees and costs, the court assessed the lodestar. Counsel sought the following hourly rates: for lead counsel Arden J. Olson, an experienced ERISA attorney practicing for over 4 decades – $540; for appellate counsel Sharon A. Rudnick, an experienced ERISA practitioner with 49 years of experience – $550; for appellate counsel Susan Marmaduke, an experienced appellate lawyer practicing for 35 years – $540; for attorney Aaron Landau, a civil rights and ERISA practitioner with 12 years of experience – $410; for attorney Aaron Crockett – $290; for attorney Julian Marrs, a former clerk of the Alaska Supreme Court and a litigator with years of experience – $305; and for paralegal Ginger Fullerton – $150. The court adjusted the hourly rate only of attorney Landau, whose rate was lowered to $362 per hour, which the court felt was an appropriate rate for an attorney of his skill and experience in Oregon during the relevant period. The remainder of the requested hourly rates were awarded unadjusted. Then the court addressed the reasonableness of the hours billed. Counsel sought compensation for a total of 1,288 hours of work performed by all the attorneys and the paralegal. The court reduced these down to about 900 hours. Of note was the court’s reduction of counsel’s 24.7 hours drafting the complaint down to a mere 8 hours. Also notable was the fact that the court awarded no hours whatsoever to counsel Susan Marmaduke, and only a half-hour to counsel Julian Marrs. These hundreds of billed hours were cut for being excessive, duplicative, clerical, and because the fee claim exceeded the damages that were awarded. The court also declined to apply the requested 1.2 multiplier, concluding “an enhanced award is neither appropriate nor justified in the case.” Accordingly, the court awarded fees comprised of its crafted lodestar: $416,749.05. Finally, as mandated by the court of appeals, Ms. Gary was awarded $171 in costs.

Breach of Fiduciary Duty

Second Circuit

Singh v. Deloitte LLP, No. 21-CV-8458 (JGK), 2023 WL 186679 (S.D.N.Y. Jan. 13, 2023) (Judge John G. Koeltl). Former employees of a financial services firm, Deloitte LLP, commenced a putative class action alleging breaches of fiduciary duties in connection with Deloitte’s two defined-contribution retirement plans, a profit-sharing plan and a 401(k) plan. In their complaint, these participants allege the plan’s fiduciaries fell short of their obligations under ERISA by not ensuring the investments within the plans were “appropriate, had no more expense than reasonable and performed well as compared to their peers.” Defendants moved to dismiss for lack of Article III standing pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). To begin, the court addressed whether plaintiffs had constitutional standing to assert their class-wide claims. Defendants argued that because none of the named plaintiffs were participants in the Profit Sharing Plan, they lack standing with respect to the claims involving that plan. The court agreed. In addition, the court dismissed plaintiffs’ claims pertaining to four of the six challenged funds in the 401(k) Plan, because none of the plaintiffs invested in those four funds and so were not personally financially harmed by their performance, expense ratios, or fees. The court then analyzed whether plaintiffs stated their remaining claims. The court concluded they had not. The court viewed plaintiffs’ allegations that the fees and expense ratios were astronomically high as being inappropriately focused on the outcome. Instead, the court emphasized that its role in analyzing a breach of fiduciary duty allegation is to determine whether a fiduciary’s process and decision-making was flawed, which is a context-specific endeavor. In the context provided by plaintiffs, the court could not determine that the fiduciaries had breached any duty. This was especially true, the court stated, because plaintiffs’ comparisons and benchmarks were “disingenuous” amalgamations of direct and indirect costs, which the court felt lacked sufficient detail on the services provided for the fees. “Because the plaintiffs’ comparison does not compare apples to apples, the comparison fails to indicate plausibly imprudence on the part of the defendants.” For these reasons, the court granted the motion to dismiss without prejudice.

Fifth Circuit

Locascio v. Fluor Corp., No. 3:22-CV-0154-X, 2023 WL 320000 (N.D. Tex. Jan. 18, 2023) (Judge Brantley Starr). Two participants of the Fluor Corporation Employees’ Savings Investment Plan, plaintiffs Deborah Locascio and David Summers, commenced a putative class action lawsuit against the Fluor Corporation, the plan’s administrative and investment committees, and the plan’s consulting firm, Mercer Investments, LLC, for breaches of fiduciary duties of prudence, loyalty, and monitoring. Defendants moved to dismiss for lack of Article III standing under Rule 12(b)(1), and for failure to state a claim under Rule 12(b)(6). Their motion was granted by the court in this order. To begin, the court granted the motion to dismiss Ms. Locascio’s claims for lack of standing because she did not personally invest in any of the challenged funds and thus suffered no personal injury in fact traceable to defendants’ actions. Mr. Summers, the court held, also lacked Article III standing to bring all claims involving nine out of twelve plan options in which he did not invest. Accordingly, the court dismissed all claims involving those nine investment funds. The court next turned to evaluating the claims under Rule 12(b)(6). At bottom, the court found the complaint conclusory, thanks to its focus on the underperformance of the highlighted portfolio options, and its lack of plausible allegations about a flawed process used to reach those undesirable results. The court came close to stating outright that performance results are immaterial to pleading breaches of fiduciary duties. “Summers must demonstrate ‘conduct, not results,’” the court wrote. By focusing on the results, the court stated the complaint failed to provide details which could lead it to infer an imprudent or disloyal process. “Put bluntly, a flawed fiduciary process can result in great returns while a diligent and complete fiduciary process can result in underperformance.” As to whether the fiduciaries were disloyal, the court held that more was needed in the complaint to infer a disloyalty beyond the existence of the corporate relationship between Mercer and BlackRock. Finally, the court stated that the complaint’s allegations around Fluor’s failure to question Mercer’s actions and investment choices was “so threadbare that the Court cannot infer Fluor’s failure to monitor.” For the foregoing reasons, the court dismissed the putative class action. However, dismissal was without prejudice, allowing plaintiffs the opportunity to revise and shore up their claims to address the identified deficiencies. Perhaps this summary should end where the court’s decision began: “sometimes stocks underperform.”

Discovery

Seventh Circuit

Central States v. Wingra Redi-Mix, Inc., No. 21 C 3684, 2023 WL 199360 (N.D. Ill. Jan. 17, 2023) (Judge Virginia M. Kendall). After the financial downturn of the 2008 great recession, an employer, defendant Wingra Redi-Mix, Inc., and a multi-employer plan, the Central, States, Southeast, and Southwest Areas Pension Fund, found themselves at odds. A disagreement arose between the two as to whether the employer, whose was experiencing decreased revenue and in turn paying fewer dues to union members, was in violation of an adverse selection rule contained in the governing Trust Agreement. That dispute was eventually resolved, in 2017, by a settlement agreement. One of the provisions of the 2017 settlement agreement imposed a $58 million withdrawal liability on the company if it withdrew from the plan before January 1, 2021. On November 1, 2020, two months before the hefty withdrawal liability provision was set to expire, Central States expelled the company from the plan. Sure enough, two weeks later, Central States requested the $58 million withdrawal liability from Wingra. The Fund then sued Wingra, in this action, seeking a court order imposing the withdrawal liability because Wingra was now no longer part of the fund. Wingra then counterclaimed for breach of settlement agreement. Now the parties are engaged in a discovery dispute. The employer has moved to compel discovery from the Fund. Specifically, Wingra seeks to compel Central States to produce internal emails and text messages from 2017 to 2020 about Wingra, to interview witnesses about what Wingra refers to as Central States’ “scheme,” to audit files Central States kept on Wingra during the relevant period, and other related relevant communications and documents. Central States opposed production, arguing that Wingra waived its right to defenses and counterclaims by not initiating arbitration, and the discovery requests extend beyond the administrative record. On the topic of mandatory arbitration, the court concluded that the relevant statute within MPPAA mandating arbitration “applies only when an employer decides to leave a pension plan, and therefore, an employer’s expulsion falls outside the statute. Therefore, Wingra did not need to initiate arbitration within the prescribed statutory period.” Regarding Central States’ argument about the administrative record, the court stated that “the question is not whether the information sought is part of the administrative record but whether it could conceivably be.” The information Wingra sought, the court held, could conceivably be part of the administrative record, and is therefore discoverable. Furthermore, the particulars of this lawsuit potentially indicate “bad faith by Central States.” Although Wingra may not be able to ultimately prove its narrative of Central States’ “scheme” to enrich itself, the court concluded the allegations themselves “warrant limited discovery into the fund’s decision-making.” Accordingly, Wingra’s discovery request was granted.

Tenth Circuit

Anne A. v. United HealthCare Ins. Co., No. 2:20-cv-00814, 2023 WL 197301 (D. Utah Jan. 17, 2023) (Magistrate Judge Daphne A. Oberg). “The risk of economic injury to defendants outweighs plaintiff’s interest in disclosure,” concludes Magistrate Judge Oberg in this order maintaining the confidentiality designation of documents falling under the disclosure provisions of ERISA and the Mental Health Parity Act, including United Behavioral Health’s MCG healthcare guidelines. The tension at the center of the dispute over the party’s opposing views about the confidentiality of these documents was whether plan information should be available to the public. To the court, the answer was no. Magistrate Oberg interpreted the disclosure provisions in the Parity Act and ERISA, which lack confidentiality language, as unambiguously intending plan documents to be “available only to an exclusive and definable group of people – potential and current plan participants and beneficiaries.” Put another way, the court stated that plan information, which is discoverable, can nevertheless be designated as confidential. Plaintiffs did not sway the court away from this position with their argument that the underlying goal of the Parity Act, raising awareness of mental health and substance use treatment, was proof of congressional intent to promote public disclosure. With that threshold determination made, the court transitioned to conducting a more straightforward evaluation of (1) whether the documents at issue contained confidential business/commercial information; (2) whether the insurance company, United, and healthcare network guidelines and technology company, MCG, would suffer potential financial harm from the disclosure; and (3) whether plaintiffs’ interest in disclosure outweighs any potential business harm. First, the court agreed with defendants that the guidelines and other briefly alluded-to disputed documents contain proprietary secrets. Next, the court held that defendants may be financially harmed by public disclosure of the information. Finally, the court concluded that plaintiffs have no interest in disclosure because designating the documents as confidential will not “impair Plaintiffs’ prosecution of claims.” As for the public’s interest in the information, the court wrote only that Plaintiffs “have shown no other need for public disclosure of the documents.” Accordingly, defendants’ motion was granted.

ERISA Preemption

Fourth Circuit

Bowser v. Cree, Inc., No. 5:22-CV-134-BO, 2023 WL 307453 (E.D.N.C. Jan. 17, 2023) (Judge Terrance W. Boyle). On July 12, 2019, plaintiff Robert Bowser filed a complaint in North Carolina state court alleging that his former employer, defendant Cree, Inc., violated North Carolina wage-and-hour laws and seeking unpaid wages, liquidated damages, and attorneys’ fees in connection with the terms of a severance agreement between the parties. Mr. Bowser further alleged state law breach of contract and unjust enrichment claims. Cree answered the complaint and raised complete ERISA preemption as a defense. It also brought counterclaims against Mr. Bowser. The state law case then proceeded through discovery and the parties moved for summary judgment based on ERISA preemption. The state court held that both Mr. Bowser’s state law claims and Cree’s ERISA preemption defense should proceed to trial. Then, with the court’s permission, Mr. Bowser amended his complaint to assert claims, pled in the alternative, under ERISA, which included a claim for benefits under Section 502(a)(1)(B), and a claim for failing to comply with ERISA notice, record-keeping, and reporting requirements under Section 502(c)(1)(B). Cree subsequently removed Mr. Bowser’s action to federal court based on federal question jurisdiction. Before the court here were two motions; a motion by Cree to dismiss Mr. Bowser’s Section 502(c)(1)(B) claim and a motion by Mr. Bowser to remand. First, the parties stipulated to the dismissal of the Section 502(c)(1)(B) claim. Accordingly, Cree’s motion to dismiss was denied as moot. Second, the court held that “Cree waived its right to removal by demonstrating a clear, unequivocal intent to remain in state court.” Removal, the court held, was untimely in this instance. Initial pleading in 2019 “put Cree on notice that the case was removable.” Mr. Bowser’s amendment to the complaint years later did not restart the clock and therefore “did not provide Cree with a new opportunity to remove the case.” Accordingly, the court found Cree’s removal improper and so granted Mr. Bowser’s motion to remand.

Exhaustion of Administrative Remedies

Fifth Circuit

Campbell v. Cargill, Inc., No. 1:22-CV-70-SA-DAS, 2023 WL 242388 (N.D. Miss. Jan. 17, 2023) (Judge Sharion Aycock). In 2021, Cargill, Inc. sent its former employee, plaintiff Kenneth Campbell, paperwork informing him his pension benefits had fully vested. Mr. Campbell subsequently contacted Cargill and its HR department to ask questions about his pension benefits. These communications were verbal. Mr. Campbell never submitted a written claim for benefits. However, in 2022, Mr. Campbell did receive a written denial letter, which informed him that his benefits had been fully paid in 1986 in a $3,500 lump-sum payment. Afterwards Mr. Campbell commenced this action challenging that determination. Cargill moved to dismiss, or alternatively, for summary judgment. As a preliminary matter, the court decided to convert Cargill’s motion to one for summary judgment under Rule 56, concluding that both parties relied on material outside the pleadings. Next, the court denied Mr. Campbell’s request for time to conduct discovery. The court stated that Mr. Campbell’s assertion that he was not provided a copy of the plan was irrelevant to the issue of whether he could be excused from exhausting administrative remedies, and was not a disputed fact in any event as Cargill confirmed that it did not give Mr. Campbell the plan. Thus, the court saw no reason to delay its ruling. The court ultimately held that there was not a genuine dispute around the issue of exhaustion, as it was undisputed that Mr. Campbell did not submit a claim for benefits in writing as required under the plan. Therefore, the court held Mr. Campbell did not exhaust the claims procedure before engaging in litigation. Under Fifth Circuit precedent, the court concluded that Mr. Campbell’s informal communication with the HR team could not substitute for the plan’s formal written claims procedure requirement. Allowing such circumvention, the court reasoned, would frustrate the principles of the exhaustion requirement, “including the need for creation of a clear administrative record prior to litigation.” Finally, the court highlighted another Fifth Circuit decision, Meza v. General Battery Corp.,908 F.2d at 1279, where the Fifth Circuit found that exhaustion could not be excused even when participants were never informed of the applicable procedures. Consequently, the court decided that the administrator’s failure to provide plan documents to Mr. Campbell did not excuse Mr. Campbell’s failure to comply with the requirement to exhaust. For these reasons, the court granted Cargill’s summary judgment motion.

Pension Benefit Claims

Sixth Circuit

Kanefsky v. Ford Motor Co. Gen. Ret. Plan, No. 22-cv-10548, 2023 WL 186800 (E.D. Mich. Jan. 13, 2023) (Judge Sean F. Cox). Plaintiff Peter Kanefsky worked for the Ford Motor Company for 38 years, in both England and America. After being laid off in 2019, Mr. Kanefsky contacted the Ford Motor Company General Retirement Plan and requested a retirement benefits estimate. He was given a calculation and a benefits kit. Based on the information provided Mr. Kanefsky and his wife, plaintiff Jennifer Kanefsky, elected a pension plan entitling Mr. Kanefsky to $6,225.24 per month for the remainder of his life, and $4,046.41 per month for Ms. Kanefsky’s life should he predecease her. The Plan approved the Kanefskys’ benefit application, and for two years paid Mr. Kanefsky the amount he elected. Then, in 2021, the Plan informed the Kanefskys that it had incorrectly overpaid their benefits due to an error offsetting the benefits from the time working in America with the benefits accrued from the time working in the UK. The Ford retirement plan’s newly determined monthly benefit rate was about half the amount Mr. Kanefsky had been previously receiving. The plan also informed plaintiffs that it had overpaid them more than $50,000 in the two years since they began receiving the retirement payments. The Plan then unilaterally reduced Mr. Kanefsky’s monthly benefit payment to $1,898.73 per month until it recovered the overpayment amount. Mr. Kanefsky filed a claim with the plan challenging the change, and after his claim was rejected on appeal the Kanefskys commenced this ERISA equitable estoppel action seeking a court order estopping Ford from permanently reducing the monthly payments and from recouping the alleged overpayment. Defendants moved to dismiss for failure to state a claim. Their motion was granted. The court stated that under Sixth Circuit precedent plaintiffs are required to demonstrate “an intention on the part of the party to be estopped that the representation be acted on, or conduct toward the party asserting the estoppel such that the latter has a right to believe the former’s conduct is so intended.” The court agreed with defendants that the Kanefskys could not satisfy this requirement and that their complaint accordingly was legally insufficient. This was true, the court reasoned, because plaintiffs provided no evidence that Ford intended the Kanefskys to act based on the representations it made in the benefits kit and calculations documents. Although the company made a mistake in responding to Mr. Kanefsky’s inquiry, the court wrote that Ford “stood to gain no benefit regardless of when [he] started to receive benefits.” Thus, the court ruled that the complaint did not adequately state an estoppel claim and dismissed the case.

Plan Status

Ninth Circuit

Steigleman v. Symetra Life Ins. Co., No. CV-19-08060-PCT-ROS, 2023 WL 345924 (D. Ariz. Jan. 20, 2023) (Judge Roslyn O. Silver). On March 29, 2022, the Ninth Circuit reversed the district court’s order in this case granting summary judgment in favor of defendant Symetra Life Insurance Company on plaintiff Jill Steigleman’s state law breach of contract and bad faith claims challenging the denial of her long-term disability benefits. In that order, the appeals court concluded that there was a genuine dispute of material fact about the application of ERISA preemption and that the district court erred by holding that the policy was an employee welfare plan governed by ERISA. Ms. Steigleman has since moved for summary judgment that ERISA does not preempt her state law claims for breach of contract and bad faith. Symetra, meanwhile, has cross-moved for summary judgment in favor of the opposite view. In this decision, the court denied the motions of both parties and set a bench trial on the issue of ERISA applicability. Recognizing that it is Symetra’s burden to establish the plan is governed by ERISA, the court stated that the insurance company will need to prove certain facts such as the existence of a selected package of benefits, a unique eligibility requirement set by Ms. Steigleman, that Ms. Steigleman paid the entirety of the employees’ premiums, or that employees were only offered a subset of the benefits offered. If Symetra can prove these facts, the court wrote “it will be difficult to conclude ERISA does not apply.” However, to decide the issue, the court articulated that it would need to make credibility determinations about what to believe, which cannot be done during summary judgment. Thus, “[a] bench trial is necessary.”

Pleading Issues & Procedure

Sixth Circuit

Trustees of the Painters Union Deposit Fund v. Eugenio Painting Co., No. 22-12416, 2023 WL 273996 (E.D. Mich. Jan. 18, 2023) (Judge Robert H. Cleland). In this action, a union and its Taft-Hartley plan have sued a contributing employee under ERISA for violating the terms of their collective bargaining agreement. Specifically, plaintiffs allege that the company, Eugenio Painting Co., failed to permit an audit as required under the terms of their agreement. Furthermore, the union stated that it was informed that the employer was using non-union contractors to perform labor and was taking other steps to avoid paying requisite benefit contributions. Accordingly, plaintiffs brought a two-count complaint: count one for refusal to comply with the audit and count two for unpaid contributions/breach of collective bargaining agreement. Eugenio Painting moved to dismiss. The motion was denied. Defendant first argued that plaintiffs are only entitled to an audit that is time-limited to the term of the current operative collective bargaining agreement. Therefore, defendant stated that the collective bargaining agreement does not authorize the six-year audit plaintiffs seek. The court disagreed. The court stated that plaintiffs plausibly alleged that the audit provision and its terms are an “evergreen” clause of the collective bargaining agreement that renews annually unless a signatory gives notice of its termination. Because Eugenio Painting has always been bound by the same audit provision, which expressly states that it extends the obligations of the agreement, the court stated that plaintiffs adequately alleged count one. Next, defendant sought dismissal of count two of the complaint. Defendant stated that plaintiffs’ use of the term “upon information and belief” meant that their claim for breach of contract was hypothetical. The court said this was not so. Particularly because plaintiffs do not yet have all of the documents within their possession to say with certainty what violations the employer has committed, the court stated that they have for now sufficiently stated their claim for unpaid contributions and breach of contract. Thus, the court held plaintiffs satisfied notice pleading under Federal Rule of Civil Procedure 8, and so declined to dismiss either cause of action.

Withdrawal Liability & Unpaid Contributions

Seventh Circuit

Plumbers’ Pension Fund v. Pellegrini Plumbing, LLC, No. 20-cv-5024, 2023 WL 264392 (N.D. Ill. Jan. 18, 2023) (Judge Steven C. Seeger). In 2014, a group of related multi-employer pension funds sued a contributing employer, Pellegrini Plumbing, LLC, to recover unpaid contributions. Two years later, the funds won their case and judgment was entered against Pellegrini Plumbing for over $700,000. Some of that money was paid by Pellegrini Plumbing, but hundreds of thousands of dollars of the judgment were not. “The owner of the company, Daniel Pellegrini, turned over a new leaf (or, depending on your perspective, maybe he turned over the same leaf.) In 2019, Daniel Pellegrini created a new company: Daniel Pellegrini Pluming, LLC.” In response, the funds brought this action seeking to hold both companies and their owner responsible for the unpaid contributions they owe as both alter egos and successors. Defendants moved to dismiss for lack of subject matter jurisdiction. They argued that Seventh Circuit precedent holds that federal district courts lack jurisdiction over standalone claims for successor liability to enforce a prior ERISA judgment. However, as the court pointed out, defendants did not address the remainder of plaintiffs’ claims which alleged alter ego liability for unpaid contributions, breach of collective bargaining agreement, successor-in-interest under state law, and successor liability under the collective bargaining agreement. All of these claims, the court expressed, do not have jurisdictional issues as they each sufficiently allege that defendants violated a federal statute or a state law sharing common facts. Thus, the court dismissed only one of plaintiffs’ causes of action to the extent that it alleged successor liability under ERISA to enforce the 2016 judgment “without an ongoing violation of the collective bargaining agreement by Daniel Pellegrini Plumbing, LLC.” Otherwise, the motion to dismiss was denied.