This week, we just have a handful of ERISA decisions to report on, and no case of the week. It seems all the excitement is at the polls.

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

 Attorneys’ Fees

Second Circuit

Caccavo v. Reliance Standard Life Ins. Co., No. 19-CV-6025 (KMW), 2022 WL 16631101 (S.D.N.Y. Nov. 2, 2022) (Judge Kimba M. Wood). After prevailing in a lawsuit brought against it challenging its decision to reduce an insured’s disability benefits, defendant Reliance Standard Life Insurance Company concurrently moved in the Second Circuit and in the district court for an award of attorney’s fees and costs. The Second Circuit affirmed the summary judgment order in Reliance’s favor but denied its motion for fees pursuant to ERISA Section 502(g)(1). Given the court of appeals’ denial, plaintiff not only opposed an award of fees in the district court, but also argued that res judicata precludes Reliance from bringing its fee motion. The court disagreed with plaintiff’s preclusion argument, finding that the two motions did not arise from the same cause of action because the work performed during the two stages of litigation were distinct. The court thus evaluated the motion on its merits. To begin, the court was satisfied that Reliance’s summary judgment win, upheld in the Second Circuit, constituted some degree of success on the merits for Reliance to be eligible for an award of fees. Nevertheless, the court was adamant that the Chambless factors, which “very frequently suggest that attorney’s fees should not be charged against ERISA plaintiffs,” weighed against an award in this case. The court did not agree with Reliance that plaintiff acted in bad faith by bringing his action, concluding, to the contrary, that plaintiff had a colorable claim despite not ultimately prevailing. Furthermore, the court was unwilling to deter or discourage valid claims brought by plan participants by granting the motion. Finally, the court declined to comment on the reasonableness of the requested fees, having already concluded that Reliance’s motion for attorney’s fees and costs should be denied.

Ninth Circuit

San Jose Healthcare Sys. v. Stationary Eng’rs Local 39 Pension Tr. Fund, No. 21-cv-09974-SVK, 2022 WL 16637995 (N.D. Cal. Nov. 2, 2022) (Magistrate Judge Susan Van Keulen). San Jose Healthcare System is an acute care hospital in California that commenced this action in 2021, moving to vacate an arbitration award assessed against it for unpaid contributions for its employees in an ERISA-governed multiemployer pension plan. On June 15, 2022, the court issued an order granting San Jose Healthcare’s motion to vacate and denying the pension fund’s motion to confirm the arbitration award. Before the court was a motion filed by San Jose Healthcare for attorney’s fees and costs brought under ERISA Section 502(g)(1) and LMRA. As the court stated, the “only issue in this litigation was whether the arbitration award should be vacated or confirmed, and [San Jose Healthcare] won on that issue.” Accordingly, the court concluded that the employer met the threshold requirement of success on the merits to be eligible for an award of fees under ERISA. Regardless, the court reminded itself of “ERISA’s purposes that should be liberally construed in favor of protecting participants in employee benefits plans,” and accordingly assessed the Hummell factors as weighing against an award. Because the court found the pension fund did not act in bad faith, the court declined to award San Jose Healthcare fees under both ERISA and LMRA and so denied the motion.

ERISA Preemption

Seventh Circuit

State of Illinois ex rel. Miller v. Am. Nat’l Ins. Co., No. 3:22-cv-00501-GCS, 2022 WL 16553189 (S.D. Ill. Oct. 31, 2022) (Judge Gilbert C. Sison). Plaintiff Zeb Miller sued American National Insurance Company, Standard Life & Accident Insurance Co., American National Life Insurance Company of Texas, and Garden State Life Insurance Company on behalf of the State of Illinois under the Illinois False Claims Act alleging that defendants defrauded the state of millions of dollars of premium tax revenue by failing to pay annual state privilege taxes on the premiums collected from employers sponsoring ERISA-governed employee benefit plans, and by failing to report stop-loss insurance premiums. Defendants removed the complaint, which was brought in state court, to the federal district court of the Southern District of Illinois alleging the action against them was completely preempted by ERISA. Plaintiff moved to remand. Plaintiff argued the court lacks subject matter jurisdiction and ERISA does not preempt the action because the Illinois False Claims Act is a state law that regulates insurance, meaning the claim falls under ERISA’s savings clause. In response, the insurance companies argued that the claim relates to and is connected with the administration of self-funded ERISA plans and that the privilege tax does not fall under the savings clause. The court decided that it didn’t need to reach a conclusion on the applicability of the savings clause because defendants were “operating under the conflict preemption provisions,” which the court stated, “may serve as a defense to Plaintiff’s [Illinois False Claims Act] claim, [but] does not serve as the basis for federal jurisdiction.” Concluding that it also lacked diversity jurisdiction, the court granted the motion to remand. Nevertheless, the court held that defendants had an objectively reasonable basis for removal and so declined to award plaintiff attorneys’ fees and costs.

Ninth Circuit

California Surgery Ctr. v. UnitedHealthcare, Inc., No. CV 19-02309 DDP (AFMx), 2022 WL 16700377 (C.D. Cal. Nov. 3, 2022) (Judge Dean D. Pregerson). Healthcare providers commenced this lawsuit against UnitedHealthcare, Inc. and UnitedHealthcare Insurance Co., asserting state law causes of action to seek payment of medical bills for treatments and surgeries they provided to an insured patient. Defendants moved to dismiss plaintiffs’ fifth amended complaint, arguing the claims are preempted by ERISA. Central to the providers’ claim was the fact that United terminated the coverage of the patient, which plaintiffs argued they did to avoid paying the claims at issue. Because of this detail, plaintiffs argued that there are factual questions that need to be answered, including whether the termination of the patient’s coverage was proper, whether United had the ability to terminate the coverage, and whether the patient was insured during the relevant period. The court, however, concluded that the answers to the questions could not be reached without interpreting the ERISA plan, and the state law claims therefore have significant connections to the plan itself. Accordingly, the court agreed with the United defendants that the claims were preempted. Thus, the court granted the motion to dismiss the fifth amended complaint and did so with prejudice.

Tenth Circuit

IHC Health Servs. v. Meritain Health Inc., No. 2:19-cv-861, 2022 WL 16701908 (D. Utah Nov. 3, 2022) (Judge Howard C. Nielson, Jr.). A healthcare provider, IHC Health Services, Inc. d/b/a Primary Children’s Medical Center, sued Meritain Health, Inc., a subsidiary of Aetna, asserting claims for unjust enrichment and breach of contract in connection with unpaid medical bills for an insured patient treated at the hospital in 2013. The parties filed cross-motions for summary judgment. Meritain argued first that the state law claims were preempted by ERISA. The court disagreed. Because this action does not affect the relations among the primary ERISA entities and because IHC Health is asserting a claim for damages for a breach of the contract between it and Anthem, the court held the case did not fall under the ERISA preemption umbrella. Having decided this initial matter, the court proceeded to the merits of IHC’s breach of contract claim and concluded that it satisfied all the elements of the claim under Utah law. Accordingly, the court granted summary judgment in favor of IHC on its breach of contract claim and awarded damages and interest. Finally, the court awarded summary judgment in favor of Meritain on the unjust enrichment claim, which requires the absence of an enforceable contract and thus was pled in the alternative to IHC’s breach of contract claim.

Disability Benefit Claims

Ninth Circuit

Cameron v. Sun Life Assurance Co. of Can., No. 2:21-cv-02092 JLS (AFM), 2022 WL 16635235 (C.D. Cal. Nov. 2, 2022) (Judge Josephine L. Staton). Plaintiff Duane Cameron worked as a radiology administrator for USC Verdugo Hills Hospital until a series of cardiological conditions left him unable to continue working and he applied for disability benefits. In this action Mr. Cameron challenged defendant Sun Life Assurance Company of Canada’s decision to terminate his long-term disability benefits. Upon de novo review of the administrative record the court concluded that Mr. Cameron was disabled as defined by his policy from the date of termination until January 29, 2020. The court reasoned that the medical evidence and the conclusions of Mr. Cameron’s treating physicians supported this conclusion, especially considering the high-stress environment of his hospital workplace and its effect on his heart. However, the court went on to find that Mr. Cameron, who would suffer a heart attack and undergo a coronary angioplasty in early March 2020, did not qualify for disability benefits beyond January 29, 2020, because Mr. Cameron’s physician, who examined Mr. Cameron on that date, “gave no indication he believed Plaintiff continued to be disabled” in his visit notes. Therefore, despite his heart attack a month later, the court concluded that in “February 2020, there is no evidence that Plaintiff…continued to suffer cardiac-related issues.” Having drawn these conclusions, the court awarded Mr. Cameron benefits through January 29, 2020, as well as prejudgment interest, but held off awarding costs or attorney’s fees until briefing has been submitted.

Life Insurance & AD&D Benefit Claims

Fifth Circuit

Rushing v. Sun Life Assurance Co. of Can., No. 22-cv-1454, 2022 WL 16579789 (W.D. La. Nov. 1, 2022) (Magistrate Judge Mark L. Hornsby). Plaintiff Katie Rushing brought suit against Sun Life Assurance Company of Canada after her claim for benefits under her late husband’s accidental death and dismemberment policy was denied. Sun Life denied the claim on the grounds that his death, the result of a car crash, did not meet the policy’s definition of an accident. After this lawsuit challenging the denial was brought, Sun Life switched its grounds for denial, arguing that the results of Mr. Rushing’s toxicology report provided additional grounds for denial. Sun Life moved to stay and to remand for administrative review on this new basis for denying the claim. Ms. Rushing opposed the motion. She argued that Sun Life had the toxicology report when it conducted the administrative review process and that it should not be allowed to get a second chance at denying the claim on new grounds. The court agreed with Ms. Rushing, stating that it did not wish to give Sun Life an opportunity to improve its situation after the fact. “Remand may be appropriate to provide a remedy to a claimant who has been denied a full and fair opportunity to address an issue during the administrative process, but it is not appropriate for the plan or insurer to wait until a case is in federal court and then seek remand to build a new basis for denial that it reasonably could have developed during the administrative process.” Defendant’s motion was thus denied.

Pleading Issues & Procedure

Ninth Circuit

Johnson v. Carpenters of W. Wash. Bd. of Trs., No. C22-1079-JCC, 2022 WL 16699170 (W.D. Wash. Nov. 3, 2022) (Judge John C. Coughenour). Union carpenters in Washington, Idaho, Montana, and Wyoming who were participants in two collectively bargained multiemployer plans, the Carpenters Individual Account Pension Plan of Western Washington, and the Carpenters Retirement Plan of Western Washington, filed this putative ERISA class action challenging the management of plans by defendants, the Carpenters of Western Washington Board of Trustees, Callan LLC, and individual board members. Specifically, plaintiffs allege that these fiduciaries invested “in highly speculative indexes, which incurred over $250 million in losses.” The individual board member defendants moved for declaratory judgment and indemnification, seeking to establish that the board is responsible for indemnifying them in this action. The board for its part sought to stay this judgment or to limit the scope of indemnification. Plaintiffs opposed the indemnification request and additionally moved to strike the indemnification claims in individual board member defendants’ answers. In this decision the court found the matter could be decided without staying the action and issued this order granting the motion for declaratory judgment and indemnification and denying plaintiffs’ motion to strike. The court held that the indemnification provisions within the trust agreements require the trust to indemnify the individual trustees and this action falls within the indemnification clauses’ scope. The court was also satisfied that the indemnification provisions and their terms were consistent with ERISA, and clarified a limitation within the provisions, holding that should the court issue a final decree finding the individual trustees personally liable for breaching their fiduciary duties, the trustees would be required to repay any indemnification payment made to them by the board. Finally, the court stated that plaintiffs’ opposition and motion to strike failed for lack of standing. The court concluded that under Thole plaintiffs did not have a “personal stake in the outcome” of the motion for indemnification or an injury in fact to satisfy the standard for standing.

Vellali v. Yale Univ., No. 3:16-cv-1345 (AWT), 2022 WL 13684612 (D. Conn. Oct. 21, 2022) (Judge Alvin W. Thompson)

A district court in Hartford, Connecticut has held that a longstanding suit by participants in the Yale University 403(b) Retirement Account Plan can proceed to trial on their imprudence claims against Yale and related plan fiduciaries. Given last year’s decision by the Supreme Court in Hughes v. Northwestern University, 142 S. Ct. 737 (2022), vacating judgment in the university’s favor, it should come as no surprise that courts such as this one are giving serious scrutiny to ERISA cases challenging the prudence of investment options in defined contribution plans offered by universities.

A class of 20,000 Yale workers and plan participants brought suit in 2016, asserting claims against Yale and other fiduciaries for breaching their duty of prudence in various ways with respect to plan investments, engaging in prohibited transactions, failing to monitor the plan’s investments, and failing to monitor the other plan fiduciaries. On the defendants’ motion for summary judgment, the court ruled that, with respect to most of plaintiffs’ claims, there were genuine issues of material fact that must be resolved at trial.

In their complaint plaintiffs outlined several ways in which they believed defendants’ actions were deficient under ERISA. First, they challenged Yale’s “bundled” services arrangement with The Teachers Insurance Annuity Association of America (“TIAA”), under which Yale agreed to a contract with TIAA that prohibited it from opting out of TIAA’s investment options or selecting any other recordkeeper for TIAA’s annuities. According to plaintiffs, entering such a contract “committed the Plan to an imprudent arrangement.” The court concluded that genuine issues of material facts with respect to the prudence of the bundling arrangements necessitated a trial on this count.

Plaintiffs additionally alleged defendants breached their duties by causing the plan to pay unreasonable administrative and recordkeeping fees to both of the plan’s service providers, TIAA and Vanguard. Although defendants countered that they reduced these fees in 2015 by dropping Vanguard as a recordkeeper and retaining only TIAA, the court agreed with the plaintiffs that there were genuine issues as to whether this took too long, since the plan fiduciaries began considering consolidation of recordkeepers in 2010.

Plaintiffs also argued that defendants improperly allowed TIAA to use plan data to cross-sell and aggressively market products outside the plan to participants. Claims based on similar allegations directly against TIAA were dismissed in Carfora v. Teachers Ins. Annuity Ass’n of Am., No. 21 CIVIL 8384 (KPF), 2022 WL 4538213 (S.D.N.Y. Sep. 28, 2022), summarized as Your ERISA Watch’s notable decision in our October 5th newsletter. In this case, however, the court concluded that plaintiffs raised issues appropriate for resolution at trial about whether Yale acted imprudently by not obtaining information about TIAA’s cross-selling activities or prohibiting TIAA from engaging in these activities.

Likewise, the court allowed claims based on defendants’ lack of process for monitoring the performance of the plan’s funds, and their failure to select available institutional share classes over costlier retail share classes, to go forward.

The court, however, granted the motion with regard to claims asserting prohibited transactions and failure to monitor co-fiduciaries. The court held that there was ultimately no evidence of concealment or self-dealing to show that prohibited transactions occurred. Finally, the court agreed with defendants that plaintiffs failed to create a genuine dispute supporting their assertion that defendants lacked a sufficient process in place to monitor the delegated plan administrators.

The long and the short of this decision is that most of the claims against Yale will proceed to trial.

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

Breach of Fiduciary Duty

Sixth Circuit

Parker v. GKN N. Am. Servs., No. 21-12468, 2022 WL 15142598 (E.D. Mich. Oct. 26, 2022) (Judge Sean F. Cox). Defendants, GKN North America Services, Inc. and the other fiduciaries of GKN’s “GoalMaker” 401(k) Plan, moved for reconsideration of the court’s August 26, 2022 order denying defendants’ motion to dismiss this putative class action asserting breaches of fiduciary duties. Defendants’ failure “to demonstrate ‘a palpable defect’ in need of correction that would result in a different disposition of the case” was unwelcome to the court, which understood this motion to be a rehashing of issues previously addressed in defendants’ original motion to dismiss. The court rejected defendants’ assertion that plaintiffs’ comparator funds did not “consistently outperform” the challenged funds simply because they didn’t constantly outperform the challenged funds. The court also disagreed with defendants’ understanding of controlling authority Smith v. CommonSpirit, 37 F.4th 1160 (6th Cir. 2022), and found that their assertion that active and passive funds can never be compared missed the mark. In the court’s view, “(t)he issue here is not active versus passive, but rather failure to investigate, failure to select lower-cost options, and retaining imprudent plan investments. Therefore, funds in the same Morningstar category constitute appropriate comparator data in this case.” Accordingly, the court denied defendants’ motion for reconsideration, and things stand today in the case just as they stood on August 26.

Class Actions

Sixth Circuit

Dover v. Yanfeng U.S. Auto. Interior Sys., No. 2:20-cv-11643, 2022 WL 14789119 (E.D. Mich. Oct. 25, 2022) (Judge Terrence G. Berg). Plaintiffs moved for preliminary approval of class action settlement agreement in this breach of fiduciary duty action relating to the management of the Yanfeng Automotive Interior Systems Savings and Investment 401(k) Plan. The court began by conditionally certifying the class of plan participants and beneficiaries, finding the class of around 9,000 members satisfies the requirements of Rule 23(a) and (b) as common questions about defendants’ conduct predominate. For settlement purposes the court preliminarily appointed the named plaintiffs as class representatives and their counsel, Edelson Lechtzin LLP, and Fink Bressack LLP, as class counsel. Furthermore, the court was satisfied that the settlement agreement itself seems to be the product of fair and informed negotiations and therefore approved the settlement subject to further consideration after the final fairness hearing takes place early next year. Finally, the court approved the proposed settlement administrator, Angeion Group, and the Notice and mailing plan. For these reasons, plaintiffs’ motion for preliminary settlement approval was granted.

Eleventh Circuit

Huang v. Trinet HR III, Inc., No. 8:20-cv-2293-VMC-TGW, 2022 WL 13631836 (M.D. Fla. Oct. 21, 2022) (Judge Virginia M. Hernandez Covington). Participants of two multiemployer ERISA plans, the TriNet 401(k) Plan (“the TriNet III Plan”) and the TriNet Select 401(k) Plan (“the TriNet IV Plan”), brought a putative class action lawsuit against the plans’ sponsors and fiduciaries for fiduciary breach related to plan investments. Specially, plaintiffs allege that defendants failed to investigate or include lower-cost and better performing passively managed funds, choosing instead to invest in costly and poorly performing actively managed funds. They also argued that defendants failed to negotiate for and utilize institutional share classes. Finally, plaintiffs alleged defendants paid too much in recordkeeping expenses, and plaintiffs challenged TriNet’s use of revenue sharing to pay for the plans’ fees and expenses. Plaintiffs moved for class certification. Defendants opposed certification. They argued that the named plaintiffs did not have standing to bring claims as to the TriNet III Plan because they only participated in the TriNet IV plan. The court disagreed. Plaintiffs, the court held, are challenging defendants’ general practices, which affect both plans. Accordingly, the court found the TriNet IV Plan plaintiffs have standing to pursue their claims relating to both plans. Turning to the requirements of Rule 23, however, the court concluded that, despite having standing, plaintiffs did not satisfy Rule 23(a)’s typicality requirement for the TriNet III Plan. “None of the TriNet IV Plaintiffs invested in any of the challenged funds in the TriNet III Plan. There is no overlap between the TriNet III challenged funds and the TriNet IV challenged funds. The Plans also utilized different recordkeepers operating under different contracts.” Concluding that the claims relating to each of the two plans do not sufficiently overlap, the court altered the definition of the proposed class and limited it to the participants and beneficiaries of only the TriNet IV Plan. However, under this new limited definition, the court was convinced that plaintiffs met all the requirements of Rule 23(a) and (b) and therefore granted the motion to certify this class.

Disability Benefit Claims

Sixth Circuit

Card v. Principal Life Ins. Co., No. 5:15-139-KKC, 2022 WL 15512209 (E.D. Ky. Oct. 27, 2022) (Judge Karen K. Caldwell). In 2015, plaintiff Susan Card filed her initial complaint against defendant Principal Life Insurance Company challenging Principal’s denial of her disability benefit claim. The court granted summary judgment in favor of Principal, affirming the denial under arbitrary and capricious review. Plaintiff appealed and the Sixth Circuit reversed, concluding that Principal had abused its discretion and that the claim should be sent back to Principal for further consideration. After Principal failed to issue a timely decision, Card filed a motion with the district court to recover attorneys’ fees and costs for her success achieving remand to the plan administrator. She also moved to reopen her case in the district court. The district court denied both motions. Ms. Card once again appealed, and once again found success in the court of appeals, which vacated the district court’s order. The court in this order reconsidered Ms. Card’s attorneys’ fees motion and her motion to reopen her case for judicial review of her long-term disability benefit claim. This time both motions were granted. To begin, the court addressed the motion for fees and costs. Ms. Card sought a total of $66,142.50 in attorneys’ fees and $4,761.45 in costs. The court concluded that Ms. Card’s successes in the Sixth Circuit constituted a degree of success on the merits warranting an award of attorneys’ fees, especially when weighing the other King factors which also favored an award of fees. The court nevertheless reduced the requested amounts and ultimately awarded $47,635.00 in fees and $857.92 in costs. This reduction reflected a downward adjustment of the number of hours expended. The court did not award fees for hours spent on unsuccessful arguments, including the time counsel spent arguing in favor of de novo review. The court also reduced hours for time spent litigating a motion to compel a third-party subpoena. However, the court did not reduce the hourly rates of the attorneys, Michael and Andrew Grabhorn, or their staff, and accepted their rates ranging from between $125 – $525 per hour as acceptable based on the prevailing market rate in Eastern Kentucky. Moving on to the motion to reopen, the court reopened the case, deeming Ms. Card’s claims exhausted because Principal failed to issue a determination on her long-term disability claim by the required 90-day deadline under ERISA. “Without a deadline for determining disability claims on court-ordered remand, the claims could be pending in perpetuity, leaving claimants without recourse and foreclosing their avenue to judicial relief.” And so, this case now stands not far from where it stood in 2015, with the district court once again in a place where it will be tasked with reviewing a disability claim.

Bulas v. Unum Life Ins. Co. of Am., No. 2:22-cv-112, 2022 WL 14813537 (S.D. Ohio Oct. 26, 2022) (Judge Sarah D. Morrison). Plaintiff Robert Bulas, M.D. practiced as a neuroradiologist until 2017, when an eye condition left him unable to continue working and he went on long-term disability. Four years later, in August 2021, Dr. Bulas’s benefits were terminated when the plan’s insurer concluded that although Dr. Bulas would be unable to perform interventional procedures, his ocular condition would not prevent him from performing the duties associated with diagnostic radiology and that he was thus not totally disabled from performing the material duties of his occupation. In this action Dr. Bulas sued Unum Life Insurance Company of America, alleging that he was denied a full and fair review, seeking a declaration that he is totally disabled within the meaning of the policy, and asking the court to reinstate his benefits under the plan. To begin, the parties disputed whether Unum or rather its related subsidiary, Provident Life and Accident Insurance Company, is the proper defendant to the suit. Splitting the baby, the court substituted Provident as the defendant for the claim for benefits and for Dr. Bulas’s claim seeking a declaration of disability, but denied the motion to substitute Provident for the full and fair review claim. This decision was ultimately immaterial though, as the court granted Unum’s motion to dismiss the full and fair review claim. Agreeing with the majority of circuit courts, the court ruled that the 2002 claims regulation did not require administrators to provide claimants with the materials generated during an administrative appeal, and therefore held that Dr. Bulas failed to state a claim based on Unum’s failure to do so. Finally, the court denied Dr. Bulas’s motion for judgment on the pleadings requesting a declaration that he is totally disabled under the policy. The court held that there are genuine disputes among the parties that preclude judgment on the pleadings.

ERISA Preemption

Ninth Circuit

Healthcare Ally Mgmt. of Cal. v. Aetna Life Ins. Co., No. CV 22-4826 DSF (KSx), 2022 WL 14518731 (C.D. Cal. Oct. 25, 2022) (Judge Dale S. Fischer). Plaintiff Healthcare Ally Management of California, LLC sued Aetna Life Insurance Company in Los Angeles County Superior Court alleging two state law causes of action, promissory estoppel and negligent misrepresentation, in connection with underpayment of medical benefits for services it provided to two insured patients. Aetna removed the matter to the Central District of California pursuant to federal question jurisdiction. Plaintiff moved to remand the action. It argued that its claims are based on representations made by Aetna about how much it would be paid. Accordingly, plaintiff argued that its claims concern the rate of payment rather than the right to payment and are thus not preempted by ERISA. The court ultimately agreed with Healthcare Ally Management and granted its motion to remand.

Tenth Circuit

Bank Midwest v. R.F. Fisher Elec. Co., No. 19-CV-2560-JAR-GEB, 2022 WL 14807787 (D. Kan. Oct. 26, 2022) (Judge Julie A. Robinson). In 2019 an electrical contractor, R.F. Fisher Electric Co., LLC, ceased its operations. Immediately after, Bank Midwest filed suit against R.F. Fisher for defaulting on loan agreements. R.F. Fisher was indebted to the bank for approximately $11 million. Bank Midwest moved for a receiver, and one was appointed over R.F. Fisher’s collateral. The bank wasn’t the only party interested in collecting payment from R.F. Fisher. So too were a group of multi-employer ERISA plans who were owned unpaid contributions by R.F. Fisher and its various other related corporate entities. During the receivership, the Funds obtained hundreds of thousands of dollars in payments from R.F. Fisher’s customers in the amounts owed to the Funds for the unpaid contributions. The receiver subsequently brought claims of conversion and tortious interference with contract against the Funds for obtaining these payments which the receiver considers to be “diverted Fisher receivables.” The Funds moved to dismiss, arguing the claims are preempted by ERISA. The court held that the receiver only has the right to obtain Fisher’s property “if R.F. Fisher would have a right to it, and (not) what R.F. Fisher would not have rightful ownership of.” The court concluded that the state law claims are based on the Fund’s alleged misconduct in collecting the fringe benefits and that the claims therefore relate to the ERISA plans are thus fall under ERISA preemption. Additionally, the court found that the receiver’s remedy would involve removal of plan assets, further implicating ERISA preemption and its purposes. Having so concluded, the court granted the Funds’ motion to dismiss.

Exhaustion of Administrative Remedies

Tenth Circuit

Fischer v. Rocky Mountain Hosp. & Med. Serv., No. 21-cv-01489-CMA-MEH, 2022 WL 13682928 (D. Colo. Oct. 21, 2022) (Judge Christine M. Arguello). Since 2008, plaintiff Erik G. Fischer has been taking a daily antibiotic medication called Azithromycin to treat a microbial infection in his spine and abdomen that he developed from a surgical procedure. Mr. Fischer is a participant in an ERISA-governed health plan, and he regularly submits claims to Anthem for coverage of his prescription medication. This ERISA lawsuit is the fourth filed by Mr. Fischer against his plan and Anthem. In 2014, 2016, and 2020 he brought nearly identical actions under Section 502(a)(1)(B) to recover denied claims for his medical benefits. After the plan and Anthem denied reimbursement for his antibiotics this time, in the Spring of 2021, Mr. Fischer skipped the administrative appeals process, reasoning exhaustion would be futile given this pattern of routine denials. The parties jointly moved for determination. Mr. Fischer argued the denial was arbitrary and capricious. Anthem argued that Mr. Fischer’s action should be barred for failure to exhaust administrative remedies. The court ruled in Anthem’s favor, agreeing that Mr. Fischer’s failure to exhaust the internal appeals process was not excusable by his futility arguments, especially given the “important purposes (the exhaustion requirement) serves.” The court was not persuaded that Anthem’s prior denials nor Mr. Fischer’s prior lawsuits were proof that his claim would have certainly been denied on appeal. Thus, the court awarded judgment against Mr. Fischer and in favor of Anthem.  The court did not, however, award Anthem attorney’s fees and costs, though it did caution Mr. Fischer against bringing a future claim for benefits without first exhausting administrative remedies. Failure to do so, the court warned, could warrant awarding Anthem attorney’s fees.

Life Insurance & AD&D Benefit Claims

Fifth Circuit

Clements v. Southern Nat’l Life Ins. Co., No. 6:20-CV-01205, 2022 WL 13981831 (W.D. La. Oct. 21, 2022) (Judge Robert R. Summerhays). In 2019 decedent Anthony Clements was fatally electrocuted while at work in a salt mine in Louisiana. Mr. Clements was insured under both a group term life insurance policy and an accidental death and dismemberment (“AD&D”) policy. His son, TC, was the beneficiary of both policies. Defendant Southern National Life Insurance Company paid the benefits from the group term life insurance policy but denied the claim under the AD&D policy. In the denial letter, Southern National informed the family that the claim fell under the policy’s drug exclusion because the toxicology report found that Mr. Clements had narcotic drugs in his system and the death certificate stated that the drugs were a contributing cause of death. Confident in its interpretation of the plan language, Southern National moved for judgment. In this order the court granted the motion, agreeing that the death fell within the exclusion and the denial on this basis was reasonable under arbitrary and capricious review.

Pension Benefit Claims

Ninth Circuit

Lundstrom v. Young, No. 18-cv-2856-GPC, 2022 WL 15524624 (S.D. Cal. Oct. 27, 2022) (Judge Gonzalo P. Curiel). Plaintiff Brian Lundstrom is a divorcé who commenced this legal action against his ex-wife, Carla Young, his former employer, Ligand Pharmaceuticals Inc., and his ERISA 401(k) Plan, asserting state law and ERISA claims challenging the validity of  a court issued qualified domestic relations order (“QDRO”) which granted 100% of his 401(k) Plan account assets to Ms. Young, and the validity of a court-issued domestic relations order (“DRO”) that transferred stock options under Mr. Lundstrom’s Stock Incentive Plan to Ms. Young. Ms. Young and the Ligand Pharmaceutical defendants moved to dismiss. The court granted Ms. Young’s motion and granted in part Ligand Pharmaceuticals and the plan’s motion. The court held that Mr. Lundstrom’s claims against his ex-wife were subject to collateral estoppel because Mr. Lundstrom had already challenged what he considered defects in the 401(k) QDRO and the Stock DRO in Texas state court and in an appeal to the Supreme Court of Texas. Thus, the court considered these issues to have been fully and fairly litigated in the state court actions. However, the court did not agree with the Ligand defendants that all of Mr. Lundstrom’s claims against the company and the plan rely on the validity of the QDRO and DRO. “Plaintiff’s first cause of action alleges that Ligand distributed the benefits in Plaintiff’s 401(k) account in violation of the Plan’s terms. The fourth cause of action relates to the procedures Ligand must have in place for determining the status of a QDRO and whether and how those procedures are communicated to employees. The twelfth cause of action alleges that Plaintiff’s employment was terminated in retaliation for exercising his rights under the 401(k) Plan and ERISA. These allegations are separate and distinct from the question of the validity or invalidity of the 401(k) QDRO and Stock DRO.” Accordingly, these claims against the Ligand defendants were not dismissed. However, Mr. Lundstrom’s breach of fiduciary duty ERISA claims were dismissed as they were premised on Ligand’s failure to investigate the merits of the QDRO, which ERISA does not permit.

Retaliation Claims

Seventh Circuit

Clapper v. United Airlines, Inc., No. 20 CV 2635, 2022 WL 14632805 (N.D. Ill. Oct. 25, 2022) (Judge Manish S. Shah). Flight attendant Gale Clapper was fired by defendant United Airlines, Inc. in 2019 after she took a passenger’s lost iPad and brought it home with her. Ms. Clapper commenced this wrongful termination suit following her termination, believing that the firing was discriminatory and violated ERISA Section 510 because she was scheduled for hip-replacement surgery and was in her 60s and struggling to walk properly. United Airlines argued that its decision to fire Ms. Clapper was because of her theft of the iPad, which it stated was a violation of its professional conduct policies. Regarding Ms. Clapper’s ERISA Section 510 claim, United stated that its decision was not motivated by an intent to interfere with her attainment of benefits and supported this position by proving that it paid for her hip-replacement surgery even after the termination. The court held that United met its burden of providing a non-discriminatory reason for the termination and stated that “nothing about the timing of United’s disciplinary process gives rise to an inference of discrimination.” Accordingly, the court granted United’s motion for summary judgment.

Withdrawal Liability & Unpaid Contributions

Ninth Circuit

Gciu-Employer Ret. Fund. v. MNG Enters., No. 21-55864, __ F. 4th __, 2022 WL 15579987 (9th Cir. Oct. 28, 2022) (Before Circuit Judges Smith, Jr. and Nelson, and District Judge Gershwin A. Drain). An ERISA multiemployer pension plan, the GCIU-Employer Retirement Fund, challenged an arbitrator’s award assessing withdrawal liability against the defendant employer, MNG Enterprises Inc. In the district court the arbitration decision was affirmed except for a typographical error in the assessed interest rate. The Fund appealed the decision, arguing that the district court erred in affirming the arbitrator’s choice of interest rate, and the arbitrator’s decision that MNG could not be assessed partial withdrawal liability following a complete withdrawal. MNG Enterprises took issue with a different aspect of the arbitrator’s and the district court’s decision: the inclusion of contribution histories of two smaller employers that it acquired a few years before the date of the withdrawal. The Ninth Circuit agreed with the lower court and the arbitrator that the interest rate used was appropriate because it took the plan’s assets and past performance into account and was therefore the “best estimate.” However, the Ninth Circuit did not choose to adopt the Fund’s requested interest rate published by the Pension Benefit Guaranty Corporation because it did not reflect the experience or expectations of the plan. Additionally, the court of appeals affirmed the district court’s conclusion that a partial withdrawal cannot occur after a complete withdrawal and “(s)pecifying two types of withdrawal would hardly make sense if a partial withdrawal always followed a complete one.” However, the circuit court vacated the inclusion of the contribution histories of the two small, acquired businesses. The Ninth Circuit felt the district court did not properly address MNG’s potential successor liability for the two businesses it acquired more than a decade earlier. Thus, the appeals court vacated this aspect of the order and remanded to the district court to determine whether MNG had successor liability and if the arbitrator was correct in applying the businesses’ contribution histories at the time of the asset sales.

Richmond v. Life Ins. Co. of N. Am., No. 21-3929, __ F.4th __, 2022 WL 10225155 (8th Cir. Oct. 18, 2022) (Before Circuit Judges Gruender, Shepherd, and Erickson)

Today’s notable decision is yet another in a long-running series of cases involving Life Insurance Company of North America and its ERISA-governed accidental death insurance policies. Many of these cases involve a semantic deep-dive into what constitutes an “accident,” an investigation that Supreme Court Justice Benjamin Cardozo likened to a “plunge in the Serbonian Bog.” Today’s ruling neatly dodges bog-plunging, however, and instead examines an exclusion in one of LINA’s policies.

The plaintiff in the case is Jay Richmond, whose wife, Marie Richmond, worked as a registered nurse. She was a participant in her employer’s voluntary accident insurance plan, which was insured and administered by LINA. She was insured in the amount of $500,000; Jay was her sole beneficiary.

Sadly, one day after work Marie was found slumped over the side of her bed, unresponsive. Emergency responders attempted to revive her, but could not, and she was pronounced dead. Investigators found various injection materials nearby and the autopsy report identified serial needle punctures in her body. The medical examiner opined that Marie had died from mixed drug toxicity involving morphine, hydromorphone, meperidine, and fentanyl. Marie did not have prescriptions for these medications, and although the dosage of each was within the reported therapeutic range, the combination of the drugs was unfortunately lethal.

Jay submitted a claim for accidental death benefits to LINA, which denied the claim on two grounds. LINA contended both that the plan’s “voluntary ingestion” exclusion barred the claim, and that Marie’s death was not a “covered accident” because her death was “a reasonably foreseeable result of self-injecting a mixture of controlled substances.”

After exhausting his appeals with LINA, Jay brought this action seeking payment of benefits under ERISA, 29 U.S.C. § 1132(a)(1)(b). The district court granted judgment to LINA, specifically affirming both of LINA’s rationales for denying Jay’s benefit claim. Jay appealed.

At the outset, the Eighth Circuit noted that the benefit plan granted LINA discretionary authority to interpret the terms and conditions of the plan, and thus it reviewed LINA’s denial for abuse of discretion. Addressing the first basis for denial – whether the voluntary ingestion exclusion barred Jay’s claim – the court employed a two-step approach. First, it “evaluate[d] whether LINA’s interpretation of the plan language is reasonable,” and second, “analyze[d] LINA’s application of that interpretation to the facts to ensure that it is supported by substantial evidence.”

The court found that LINA’s interpretation was reasonable. The court noted that the plan excludes coverage for any accident resulting from the “voluntary ingestion of any narcotic, drug, poison, gas or fumes, unless prescribed or taken under the direction of a Physician and taken in accordance with the prescribed dosage.” The parties did not dispute that Marie had voluntarily taken the drugs in her system, and that she did not have a prescription for them, and thus the sole point of dispute was the word “ingestion.” LINA contended that the term includes self-injections, while Jay argued that the term only means “oral intake for the purposes of digestion.”

To resolve this dispute, the Eighth Circuit employed the five-factor test set forth in Finley v. Special Agents Mut. Ben. Ass’n, Inc., which asks whether an interpretation (1) is consistent with the goals of the plan, (2) renders any plan language meaningless or inconsistent, (3) conflicts with substantive or procedural requirements of ERISA, (4) is consistent over time, or (5) is contrary to the clear language of the plan.

The court found that the first factor was neutral, because while the plan is designed to pay benefits, it is also designed only to pay covered claims. The second factor weighed in LINA’s favor, because Jay’s argument that “ingestion” only meant digestion rendered the part of the exclusion about gas or fumes “nonsensical.” The third factor supported LINA because “the average plan participant would read the voluntary ingestion exclusion to cover any death caused by willingly using unprescribed narcotics,” and thus LINA’s interpretation did not run afoul of ERISA’s requirements. The fourth factor did not weigh in either party’s favor because there was no history in the record of LINA’s interpretation of “ingestion.”

Finally, in evaluating the fifth factor, the court discussed the competing interpretations of the word “ingestion” provided by the parties, including dictionary definitions, and agreed that neither party’s interpretation was unreasonable. However, the court ruled that “the context controls here.” Because the exclusion referred to the ingestion of “gas or fumes,” which are not introduced to the body by digestion, “LINA’s interpretation is more in line with the Plan’s clear language, as Richmond’s would render part of the exclusion meaningless. Thus, the fifth factor weighs in LINA’s favor.”

In sum, the Eighth Circuit found that the Finley factors “tilt slightly in LINA’s favor.” Furthermore, because of the standard of review, LINA’s interpretation only needed to be “reasonable” to survive review. Because LINA “offered a ‘reasonable interpretation’…LINA’s interpretation stands.”

Having decided that LINA’s interpretation was reasonable, the Eighth Circuit then quickly dispensed with the question of whether LINA’s decision was “supported by substantial evidence.” Because the record showed that “Marie undisputedly died because she willingly injected herself with a combination of unprescribed narcotics,” the court found “sufficient evidence to support LINA’s application of the voluntary ingestion exclusion[.]” Because a reasonable person could have reached the same conclusion as LINA, the court was obliged to uphold it, “even if we might have found differently in the first instance.”

As for the question of whether Marie’s death was a covered accident in the first place, the Eighth Circuit declined to address it. Because the court found that Jay’s claim was barred by the voluntary ingestion exclusion, the court stated, “we need not address LINA’s assertion that Marie’s death was not accidental.” As a result, the Eighth Circuit affirmed the judgment for LINA in its entirety.

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

Breach of Fiduciary Duty

Eighth Circuit

Adams v. U.S. Bancorp, No. 22-CV-509 (NEB/LIB), 2022 WL 10046049 (D. Minn. Oct. 17, 2022) (Judge Nancy E. Brasel). In this putative class action lawsuit, former employees of U.S. Bancorp who took early retirement allege that defendants violated ERISA by using unreasonable mortality tables and discount rates, which resulted in the employees receiving pension benefits that were not actuarially equivalent to those they would have received had they retired at the normal age of 65. Defendants moved to dismiss and moved to strike plaintiffs’ class allegations. Defendants argued that their downward adjustments for the longer withdrawal periods were not in violation of Section 1054(c)(3) or 1053(a). At the pleading stage the court accepted plaintiffs’ allegations that defendants were using outdated assumptions to calculate early retirement pension benefits and their basic assertion that because of this they are receiving less in monthly benefits than they are rightly entitled to. The court stated that, contrary to defendants’ position, Section 1054(c)(3) requires pension plans to calculate early retirement benefits with reasonable assumptions. To find otherwise, the court determined, would render the function of the actuarial equivalent provision meaningless or even nonsensical. If fiduciaries could input whatever assumptions they desired to calculate actuarial equivalence, the court reasoned those fiduciaries could engage in self-serving conduct antithetical to ERISA’s guiding principles. Defendants’ position that ERISA’s anti-forfeiture provision does not apply to early retirees proved no more successful. Because Congress did not include language limiting the anti-forfeiture provision’s applicability only to employees who reach “normal retirement age,” the court was convinced that the provision applies to plaintiffs and that they therefore stated their claim. Finally, the court declined to strike plaintiffs’ class allegations and rejected defendants’ position that “the putative class definition is an impermissible fail-safe class.” To the court, striking plaintiffs’ class allegations prior to a motion to certify was an extreme action that defendants failed to demonstrate was warranted or appropriate. For these reasons, the court denied defendants’ motions.

Class Actions

Seventh Circuit

Lysengen v. Argent Tr. Co., No. 20-1177, 2022 WL 11915656 (C.D. Ill. Oct. 20, 2022) (Judge Michael M. Mihm). Plaintiff Jackie Lysengen moved for reconsideration of the court’s order denying class certification in this action challenging the actions of fiduciaries during an Employee Stock Ownership Plan (“ESOP”) transaction and accompanying stock valuation. In this order the court not only affirmed its prior position but expanded upon its reasoning in support of denying certification as the court anticipates the decision will be appealed to the Seventh Circuit. To begin, the court upheld its view that a conflict exists in the proposed class. Prior to the creation of the ESOP, many of the proposed class members were participants in The Morton Buildings, Inc. 401(k) and ESOP (“KSOP”), including Ms. Lysengen. In the court’s view, the KSOP participants who received cash payments compensating them for alleged “undervaluation” of the stock, as well as those who were under a price-protected status immediately following the ESOP transaction, were financially different from, and potentially even in conflict with, other members of the proposed class. This “irreconcilable conflict” precluded Ms. Lysengen from satisfying the requirements of commonality and typicality under Rule 23(a). In addition, the court concluded that Ms. Lysengen did not satisfy the adequacy requirement because she was “in an unusual position in that she left the company while the KSOP stock value was depressed, but she was ineligible to receive the price protected status,” and her situation is therefore not clearly aligned with those of the other class members. These same complicating factors also prevented Ms. Lysengen from satisfying the requirements of Rule 23(b)(1). In the end, the decision to deny certification can be summed up simply: the conduct at issue hurt some of the class members and benefitted others and for this reason the claim was not common among them.

ERISA Preemption

Second Circuit

Murphy Med. Assocs. v. Cigna Health & Life Ins. Co., No. 3:20cv1675 (JBA), 2022 WL 10560321 (D. Conn. Oct. 18, 2022) (Judge Janet Bond Arterton). In this action plaintiffs are healthcare providers seeking reimbursement of COVID-19 testing and care they provided to insureds which went unpaid by defendant Cigna Health & Life Insurance Company. On March 11, 2022, the court issued an order dismissing in part plaintiffs’ complaint. As relevant here, the court dismissed two state law counts, a claim under Connecticut’s Unfair Insurance Act and a claim for unjust enrichment, as being preempted by ERISA. Plaintiffs have since moved for reconsideration of that decision. They argued that the court’s dismissal was improper because their state law claims were brought against both ERISA-governed and non-ERISA plans, and the court therefore should have allowed the state law claims to proceed for the non-ERISA plans. Plaintiffs wished to amend their complaint to specify that these two claims pertain to the non-ERISA plans. In this decision the court granted the motion for reconsideration and permitted plaintiffs to amend their complaint. The court agreed that ERISA preemption does not apply to non-ERISA plans, and because plaintiffs have now made clear to the court that they are bringing claims for non-ERISA plans, the court modified its judgment allowing the two state law claims to proceed for those plans not governed by ERISA.

Third Circuit

Rider v. PPG Indus., No. 21-1819-GBW, 2022 WL 10466974 (D. Del. Oct. 18, 2022) (Judge Gregory B. Williams). Plaintiff Ronald Rider sued PPG Industries, Inc. along with PPG’s welfare and retirement plans under both ERISA and state law to obtain retiree health and pension benefits that were promised to him when he was negotiating the terms of his employment returning to the company post-retirement. Mr. Rider claimed that during those negotiations PPG’s HR representative and recruiter made promises to him in writing that his benefits would be reinstated as if his employment with PPG, which dated back to the 1980s, had never ended. However, after accepting the position and agreeing to return to work for PPG, Mr. Rider was informed that he was ineligible for these benefits, which prompted him to commence litigation. Defendants moved to dismiss Mr. Rider’s state law breach of contract, promissory estoppel, and negligent misrepresentation claims. Defendants argued these claims are preempted by ERISA because they are duplicative of Mr. Rider’s Section 502 ERISA claims and therefore do not create any independent legal duty. The court agreed in part and disagreed in part. The court held that Mr. Rider’s breach of contract and promissory estoppel claims, at least at the pleading stage, are not preempted by ERISA because they are premised on an independent agreement between him and the company meaning that the factfinder could resolve those claims without relying on the terms of the ERISA plans. The motion to dismiss these two claims was thus denied. However, the court found that the negligent misrepresentation claim rested on Mr. Rider’s benefits eligibility and therefore his right to recovery depends upon the court interpreting the terms of the ERISA plans. Accordingly, the court concluded Mr. Rider’s negligent misrepresentation claim was preempted by ERISA. Consequently, the motion to dismiss the negligent misrepresentation claim was granted.

Pension Benefit Claims

Fourth Circuit

Dove v. Johnson, No. 4:20-CV-154-BO, 2022 WL 11282218 (E.D.N.C. Oct. 18, 2022) (Judge Terrence W. Boyle). “Who is the surviving spouse of Vaughan Johnson?” The answer to that question is the gravamen of this case. Two women, Faith Dove and Shirley Johnson, each believes that she is the surviving wife of former NFL player Vaughan M. Johnson, and therefore entitled to receive benefits from The Bert Bell/Pete Rozelle NFL Player Retirement Plan. Ms. Johnson, believing that Ms. Dove was never legally married to Mr. Johnson, moved to strike Ms. Dove’s affidavit and portions of her statement of facts which reference “marriage ceremony,” “lawful marriage,” “spouse” and other phrases of the like. The court denied the motion to strike, as Ms. Johnson’s own affidavit and statement of material facts made the same or similar references to her own marriage. Ms. Johnson’s motion for summary judgment on the ERISA claims was likewise denied. The court once again stressed that the record is not clear or definite as to the validity and status of either marriage. Accordingly, the court concluded that summary judgment could not be awarded at this juncture.

Plan Status

Ninth Circuit

Adams v. Symetra Life Ins. Co., No. CV-18-00378-TUC-JGZ, 2022 WL 10550558 (D. Ariz. Oct. 17, 2022) (Judge Jennifer G. Zipps). In this disability benefit action plaintiff Luke Adams brings state law causes of action against defendant Symetra Life Insurance Company. The parties have been disagreeing over the issues of plan status and ERISA preemption for years, with Mr. Adams maintaining the plan is not governed by ERISA and Symetra holding the opposite view. In 2020 the court ruled that the plan was not governed by ERISA. Now, more than two years after that ruling and just before the case is about to proceed to trial, Symetra has moved to reopen discovery to further develop facts relevant to its position that the plan is governed by ERISA and the state law causes of action are preempted. The court in this brief order denied Symetra’s motion to reopen discovery, holding that the insurer had not shown good cause or demonstrated due diligence to warrant granting the motion. Instead, the court directed Symetra to file briefing addressing why the issue of ERISA preemption is a contested fact and why Mr. Adams should not be entitled to partial summary judgment on the issue of ERISA preemption. The decision ended with the court stressing its intention not to cause further delay and ordering trial preparation to continue.

Provider Claims

Third Circuit

Advanced Orthopedics & Sports Med. Inst. v. Anthem Blue Cross Life & Health Ins. Co., No. 20-13243 (FLW), 2022 WL 13477952 (D.N.J. Oct. 21, 2022) (Judge Freda L. Wolfson). Plaintiff Advanced Orthopedics and Sports Medicine Institute, on behalf of an insured patient, sued Anthem Blue Cross Life and Health Insurance Company, Horizon Healthcare Services Inc., and Central Garden & Pet for underpayment of benefits for spinal surgical services it provided. Plaintiff brought claims under ERISA Sections 502(a)(1)(B), (a)(3), and (a)(3)(B). Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). As a threshold matter, the insurance companies argued that they are not proper parties to the action nor fiduciaries. The court agreed, and found they did not fund or underwrite the plan and were not otherwise functioning as fiduciaries. Accordingly, Anthem and Horizon’s motions to dismiss were granted. The court also dismissed the denial of full and fair review claim as to all defendants, holding that 29 U.S.C. § 1133 does not confer a private right of action. However, the remainder of defendant Central Garden & Pet’s motion to dismiss was denied.

Retaliation Claims

Fifth Circuit

Oliver v. Roehm Am., No. 21-1831, 2022 WL 11763644 (E.D. La. Oct. 20, 2022) (Judge Nannette Jolivette Brown). Plaintiff Chelsea Oliver was terminated from her employment working at Roehm America LLC after she took two family and medical leaves to undergo knee surgeries. In her action Ms. Oliver sued Roehm America, the company’s general counsel, its human resources manager, Chubb Insurance Company of New Jersey, and Federal Insurance Company, alleging violations of FMLA, Title VII, ERISA, ADA, and Louisiana state law. Roehm moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion was granted in part and denied in part. Specifically with regard to Ms. Oliver’s ERISA Section 510 claim, the court agreed with Ms. Oliver that she had stated a viable claim. Circumstantial evidence could lead a factfinder to conclude that Ms. Oliver’s termination was motivated at least in part by Roehm’s intent to interfere with Ms. Oliver’s attempt to obtain further costly medical and disability benefits.