Kay v. Hartford Life & Accident Ins. Co., No. 21-55463, __ F. App’x __, 2022 WL 4363444 (9th Cir. Sept. 21, 2022) (Before Circuit Judges Paez and Watford, and District Judge Richard D. Bennett (D. Md.))

One key feature of long-term disability benefit plans that employees often don’t know is that plans typically don’t insure you from being unable to perform the duties of your specific job – they insure you from being unable to perform the duties of your occupation as it generally performed. Usually, this distinction between a “job” and an “occupation” is inconsequential, but LTD plan administrators can sometimes use it to their advantage to deny claims. In this case, the Ninth Circuit tackled this distinction and ruled that the plan insurer, Hartford Life & Accident Insurance Company, went too far in choosing an appropriate “occupation.”

Plaintiff Anne Kay was a clinical specialist for Candela Corporation, a cosmetic dermatology company. Her job was physically demanding; she “was required to travel up to 80% of the time, to work over 40 hours per week, and to move equipment that weighed upwards of 270 pounds.” Unfortunately, she was forced to stop working in August 2015 due to escalating back pain.

She submitted a claim for benefits under Candela’s LTD employee benefit plan, which was insured by Hartford. Hartford initially approved Kay’s claim, but it terminated her benefits in July 2016, claiming that she was no longer disabled from performing the duties of her job. Kay appealed that decision, and Hartford upheld it. However, Hartford did so under a new rationale – it concluded that “the travel and lift requirements imposed by Candela were not essential to her occupation in the ‘general workplace,’ functionally redefining her occupation for the first time.”

In doing so, Hartford relied on two new pieces of evidence that it had not previously shared with Kay: “(1) a new occupational report defining the essential duties of Kay’s role as a hybrid of two definitions from the Department of Labor’s Dictionary of Occupational Titles (‘DOT’); and (2) a medical report from an independent physician concluding that Kay was not disabled from performing these duties.” In other words, Hartford did not decide whether Kay could perform the duties of her job with Candela, it decided whether she could perform the duties of a hybrid occupation it devised by consulting the DOT, and then asked a doctor whether Kay could perform those duties.

Having exhausted her appeals with Hartford, Kay filed suit under ERISA. She attempted to augment the record by moving to introduce evidence refuting Hartford’s recharacterization of her job, but the district court denied Kay’s motion. The district court then conducted a bench trial, after which it granted judgment to Hartford, concluding that Kay had not met her burden of proving disability.

Kay appealed to the Ninth Circuit, which reversed in this memorandum disposition. First, the Ninth Circuit concluded that “the district court abused its discretion by denying Kay’s motion to augment the record.” Although evidence from outside the record is typically only allowed “when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision,” the court ruled that Kay met this standard. The court noted that ERISA guarantees claimants “a full and fair review” on appeal, and that guarantee is violated “[w]hen an administrator tacks on a new reason for denying benefits in a final decision, thereby precluding the plan participant from responding to that rationale for denial at the administrative level.”

The Ninth Circuit found that Hartford had offered a “new rationale” for denying Kay’s claim in its appeal denial because it “concluded that the travel and lift requirements imposed by Candela were not essential to her occupation in the ‘general workplace,’ functionally redefining her occupation for the first time.” The evidence Hartford used to arrive at this new decision “was not available to Kay prior to the denial of her appeal” and thus Kay should have been allowed to rebut it. The Ninth Circuit criticized the district court’s order to the contrary because, by denying Kay’s motion to augment the record, “the district court effectively insulated the insurer’s decision from ‘full and fair review.’”

The Ninth Circuit was not done, however. The court further found that “both the insurer and the district court erred by defining Kay’s position to omit the 80% travel and 270-pound lifting requirements that formed the gravamen of her disability claim.” The court conceded that the DOT is “an appropriate source for an employee’s occupational duties.” However, while a claim administrator may be allowed to “extrapolate definitions from the DOT,” it cannot choose whatever definitions it likes.

Instead, “a proper administrative review requires [the insurer] to analyze, in a reasoned and deliberative fashion, what the claimant actually does before it determines what the [essential duties] of a claimant’s occupation are.” The court found that Hartford had failed in this respect because it did not “select DOT titles that approximated her actual responsibilities with Candela, including her position’s extensive travel and lifting requirements.” The district court compounded this error by adopting Hartford’s redefinition of Kay’s job, and as a result the Ninth Circuit reversed and remanded for further review.

This decision, while brief and unpublished, should make LTD claim administrators more cautious in interpreting plans that insure an employee’s inability to perform the duties of his or her “occupation.” While administrators do have some leeway in interpreting such provisions, the Ninth Circuit has made it clear here that they cannot stray too far from the employee’s actual job duties in determining what an “occupation” is for the purposes of determining disability.

Ms. Kay was represented by Kantor & Kantor attorneys Glenn Kantor, Sally Mermelstein, and Anna Martin.

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

Arbitration

Sixth Circuit

Best v. James, No. 3:20-cv-299-RGJ, 2022 WL 4389707 (W.D. Ky. Sep. 22, 2022) (Judge Rebecca Grady Jennings). Participants of the ISCO Employee Stock Ownership Plan (ESOP) commenced this putative class action alleging defendants breached their fiduciary duties and engaged in a prohibited transaction. Defendant ISCO Industries, Inc., along with its president and CEO, moved to dismiss the class action in favor of arbitration. Their motion was granted in this order. Defendants argued that plaintiffs’ claims are subject to mandatory arbitration agreements that they each signed. Plaintiffs argued that these agreements are not applicable because their claims “do not arise out of or relate to their employment.” To begin, the court found there to be no dispute that the employment arbitration agreements were valid, and the parties were the signatories. What was contested though was the validity of the ESOP’s arbitration amendment containing an arbitration clause and class action waiver. The plaintiffs argued that they never consented to this agreement and therefore should not be bound by it. The court concluded, “while Plaintiffs argue the ESOP Agreement is unsupported by consideration, ‘Kentucky precedent holds that continued employment is sufficient consideration to support an arbitration agreement.’” However, the court noted that defendants failed to submit proof that plaintiffs were on notice of the ESOP arbitration agreement or the fact that they were bound by its terms. Therefore, the court found the arbitration agreement in the ESOP was not valid and continued its analysis with respect to the valid arbitration agreements in the plaintiffs’ employment contracts. In the end, the court concluded that plaintiffs’ claims fell within the scope of the arbitration provisions of their signed employment agreements, which applied to ERISA claims. The court held that plaintiffs must therefore engage in arbitration. Finally, the court opted to dismiss the action without prejudice rather than stay the proceedings, finding that staying the action would “serve no meaningful purpose.”

Eleventh Circuit

Nalco Co. v. Bonday, No. 2:21-cv-727-JLB-NPM, 2022 WL 4384450 (M.D. Fla. Sep. 22, 2022) (Judge John L. Badalamenti). Defendant Laurence Bonday lost his job at the Nalco Company during Nalco’s downsize. Mr. Bonday requested severance under a severance policy agreement he had with his employer, which Nalco denied. Mr. Bonday then filed a demand for arbitration. During the arbitration proceedings Mr. Bonday sought severance pay. Nalco, however, maintained that Mr. Bonday’s demand for severance payment was non-arbitrable under the parties’ arbitration agreement and declined to participate in the proceedings. The arbitrator, relying on the fact that Mr. Bonday appeared pro se during the proceedings, construed Mr. Bonday’s demand for severance pay as a Section 510 ERISA retaliation claim, and awarded Mr. Bonday $129,465.50 in equitable relief for the retaliation violation, plus costs and fees. In this lawsuit the Nalco Company sought a declaration that Mr. Bonday’s demand was not arbitrable, that the arbitrator overstepped by finding a Section 510 claim implicitly present in Mr. Bonday’s arbitration demand, and moved for the court to accordingly vacate the arbitration award. The court here agreed with Nalco. Because the arbitration agreement between the parties expressly carved out claims relating to employee benefits, the court held the arbitrator had “exceeded her authority by deciding a nonarbitrable issue.” Therefore, the court stated that the issue of severance was for the court to decide and not the arbitrator and accordingly granted Nalco’s motion, vacating the arbitration award.

Attorneys’ Fees

Second Circuit

Curiale v. Hartford Life & Accident Ins. Co., No. 2:21-cv-54, 2022 WL 4364072 (D. Vt. Sep. 21, 2022) (Judge William K. Sessions, III). On June 8, 2022, plaintiff Anthony Curiale won his long-term disability benefit suit against Hartford Life & Accident Insurance Company. Following that win, Mr. Curiale moved for entry of judgment and an award of attorney’s fees, costs, and interest. In this order, the court granted in part and denied in part Mr. Curiale’s motion. Mr. Curiale “requested judgment in the amount of $66,312 for past benefits, $16,667.50 for attorney’s fees, and $1,052 in costs,” to which Hartford had no objection. Accordingly, the court granted this part of Mr. Curiale’s motion without hesitation. Hartford did however contest Mr. Curiale’s arguments for enhanced attorney’s fees, the terms for terminating future benefits – i.e., that benefits could only be terminated going forward upon a showing by Hartford that Mr. Curiale’s condition has changed – and the rate of prejudgment interest. Additionally, Mr. Curiale himself challenged the fee agreement with his counsel under which his attorney was to be provided with a fee equal to one-third of all recovered benefits, both past and future. The order focused on these disputed issues. To begin, the court stated that it was “reluctant to rule on the enforceability of a private contingency fee agreement,” without argument or evidence submitted by Mr. Curiale on this issue, but the court did express that, in its view, the contingency fee agreement seemed reasonable and standard. Accordingly, the court did not formally decide this issue. Next, the court agreed with Hartford that there was no basis for an enhanced award of attorney’s fees as Hartford has already agreed to pay Mr. Curiale’s counsel’s fees based upon his normal hourly rate and his time spent on litigation. Regarding the terms for awarding future benefits, the court “agreed with Hartford that the policy must dictate the entitlement to any future benefits.” Finally, the court addressed the appropriate interest rate to be applied. Mr. Curiale asked the court to apply the federal prime rate of 5.5%. Hartford requested the court apply the federal prejudgment interest rate of 2.14%. Emphasizing that “prejudgment interest is meant to compensate for the loss of use of funds,” the court awarded the prime rate of 5.5%.

Sixth Circuit

Fitch v. Am. Elec. Power Sys. Comprehensive Med. Plan, No. 21-cv-576, 2022 WL 4376230 (S.D. Ohio Sep. 22, 2022) (Judge Edmund A. Sargus, Jr.). John and Glori Fitch are the parents of Jack Fitch, who died tragically from a car crash in 2019. Following Jack’s death, the Fitches were awarded wrongful death proceeds in probate court. Anthem Blue Cross Blue Shield and the American Electric Power Service Corporation Medical Plan attempted to receive reimbursement of medical expenses it paid immediately after the car accident, before Jack died, from the settlement proceeds the Fitches received from the responsible third party. The parties were engaged in two cases over this dispute: Fitch v. Am. Elec. Power Sys. Comprehensive Med. Plan No. 21-cv-576 (“Fitch I”), and Am. Elec. Power Serv. Corp. v. Fitch No. 21-cv-682 (“Fitch II”). In the end, because the settlement proceeds had been awarded as wrongful death funds to the Fitches in probate court, the federal district court concluded that the probate exception to federal jurisdiction deprived it of subject-matter jurisdiction over both Fitch cases. That decision was upheld by the Sixth Circuit. The Fitches then moved for an award of attorney’s fees. In this order, the court denied their motion. To begin, the court declined awarding fees under Section 1447(c) pertaining to defendant’s removal of Fitch I to federal court, because the court felt American Electric Power’s basis for removal was not objectively unreasonable or meritless. Next, the court addressed plaintiffs’ fee motion brought under Section 1132(g) for their success on the ERISA suit, Fitch II. On balance, the court felt a fee award was not appropriate under the King factors because the case was limited in scope, presented unique circumstances, was not brought in bad faith, and the ultimate dismissal only constituted a small degree of success on the merits. The Fitches thus were not awarded any attorneys’ fees and their motion was denied.

Morgan v. Hitachi Vantara Corp., No. 2:19-cv-2982, 2022 WL 4395675 (S.D. Ohio Sep. 23, 2022) (Magistrate Judge Chelsey M. Vascura). Plaintiff Gerald Morgan filed this lawsuit claiming that his long-term disability benefits had been incorrectly calculated. Last year, on September 24, 2021, the court granted defendant Liberty Life Assurance Company of Boston’s motion for summary judgment. Liberty then moved for an award of attorney’s fees in the amount of $11,948.18 under Section 1132(g)(1). The court denied Liberty’s motion. Liberty’s two main arguments in favor of an award of attorney’s fees were that it ultimately prevailed in the action and an award against Mr. Morgan “would deter cluttering court dockets with ERISA claims that are unmeritorious on their face.” Given ERISA’s guiding purpose to protect “the interests of participants in employee benefits plans and their beneficiaries,” the court was not willing to punish Mr. Morgan for “seeking to exercise his ERISA rights in good faith.” Thus, the court viewed an award of attorney’s fees to Liberty to be inappropriate and declined to do so.

Breach of Fiduciary Duty

Third Circuit

Walsh v. Great Alt. Graphics, Inc., No. 21-3280, 2022 WL 4331205 (E.D. Pa. Sep. 19, 2022) (Judge Berle M. Schiller). Secretary of Labor, Martin J. Walsh, brought suit against Great Atlantic Graphics, Inc., the company’s owner, another individual fiduciary, and Great Atlantic Graphic’s health and 401(k) plans for breaches of fiduciary duties and prohibited transactions. The lawsuit was brought in connection with defendants’ administration of the plans after the company entered bankruptcy in 2018. At that time participants did not receive the retirement distributions they were entitled to and the contributions that were withheld from their paychecks for healthcare coverage were not forwarded to the company that had been contracted to administer their health-insurance coverage going forward. Defendants have been markedly absent throughout litigation. They waived service and have since failed to appear in the action or respond to the complaint. The court previously granted entry of default against defendants. Subsequently, Secretary Walsh moved for a default judgment against all defendants seeking imposition of over $300,000 surcharge to compensate participants for their medical expenses resulting from defendants’ actions, authority to appoint independent fiduciaries to manage the plans, and order compelling defendants cooperate with the independent fiduciaries, removal of defendants as fiduciaries, and an order barring them from serving as fiduciaries in the future. The court granted the Secretary’s motion, concluding that plaintiff would be prejudiced if default was denied, and defendants’ delay was due to culpable conduct. “Based on the uncontested allegations…. (defendants) failed to fulfill their fiduciary duties and ‘used Plan assets for their own benefit.” The court was satisfied that there was actual harm caused by defendants’ behaviors warranting imposing the requested surcharge. Finally, as the fiduciaries undoubtably breached their duties, the court removed them from their positions, and granted Secretary Walsh the authority to appoint independent fiduciaries in their places.

Fourth Circuit

Garnick v. Wake Forest Univ. Baptist Med. Ctr., No. 1:21CV454, 2022 WL 4368188 (M.D.N.C. Sep. 21, 2022) (Judge William Lindsay Osteen Jr.). Participants of the Wake Forest University Baptist Medical Center defined contribution retirement plan have brought a breach of fiduciary duty class action lawsuit against Wake Forest, the plan’s board, and the plan’s committee for causing the plan to pay excessive investment management expenses, excessively high recordkeeping fees, and exceeding the medium total plan costs for “jumbo” plans worth over one billion. Plaintiffs asserted two claims: a breach of fiduciary duty of prudence claim and a derivative failure to monitor claim. Defendants moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6). To begin, the court found defendants’ arguments in favor of dismissal for lack of subject matter jurisdiction to be “intertwined with the facts central to the merits of the dispute,” and therefore concluded dismissal under Rule 12(b)(1) would be inappropriate. Additionally, the court was satisfied that plaintiffs’ complaint plausibly alleged that defendants were paying too much in costs and fees compared to other plans of similar sizes, and that they therefore adequately stated a claim for breach of fiduciary duty of imprudence. Finally, as their failure to monitor claim naturally depends on an adequately pled underlying breach of fiduciary duty claim, because the court denied the motion to dismiss the imprudence claim it also allowed plaintiffs’ monitoring claim to proceed. Accordingly, the motion to dismiss was denied.

Disability Benefit Claims

Third Circuit

Mullins v. The Consol Energy, Inc., No. 2:20-cv-1883-NR, 2022 WL 4290835 (W.D. Pa. Sep. 16, 2022) (Judge J. Nicholas Ranjan). The court in this order ruled on competing summary judgment motions in an ERISA disability benefits dispute. Concluding that the decision by defendant The Consol Energy, Inc. to terminate plaintiff Timothy Mullins’s benefits was supported by substantial objective evidence in the medical record, the court granted judgment in its favor. Specifically, the court concluded that Lincoln’s peer reviewing physicians’ findings were “not fundamentally at odds with Mr. Mullins’s treating physicians’ assessments,” because Mr. Mullins’s doctors never opined on whether Mr. Mullins could perform any sedentary work for which he was qualified, and Lincoln’s doctors did not dispute that Mr. Mullins has certain physical limitations because of his unspecified “degenerative condition.” Furthermore, defendant’s failure to perform an independent medical examination on Mr. Mullins did not, the court concluded, render its decision arbitrary and capricious. Finally, the court was satisfied that Lincoln’s vocational determination that Mr. Mullins could perform certain sedentary work based on his skills, training, and work experience was also supported by the record. For these reasons, the court held that The Consol Energy, Inc. did not abuse its discretion and affirmed the decision to terminate Mr. Mullins’s benefits.

Fourth Circuit

Krysztofiak v. Bos. Mut. Life Ins. Co., No. DKC 19-879, 2022 WL 4290576 (D. Md. Sep. 16, 2022) (Judge Deborah K. Chasanow). In 2016, plaintiff Dana Krysztofiak submitted a claim for disability benefits under her ERISA-governed group long-term disability policy issued by defendant Boston Mutual Life Insurance Company after her fibromyalgia left her unable to continue working. Boston Mutual awarded Ms. Krysztofiak benefits and paid the benefits for one year. After that time, Boston Mutual terminated the benefits concluding that Ms. Krysztofiak could return to her regular occupation. Ms. Krysztofiak commenced this action challenging the decision, and the court determined that she was entitled to benefits under that “regular occupation” definition of disability. As to whether Ms. Krysztofiak was entitled to continued benefits under the “any occupation” definition of disability, the court remanded the case to Boston Mutual’s claim administrator, Disability Reinsurance Management Services, for a review to determine Ms. Krysztofiak’s eligibility for continued benefits. However, the administrative appeal was never decided, and Ms. Krysztofiak moved to reopen her case at the district court. The court did so. Then, in the case’s most important twist, Boston Mutual amended its policy to include a “Special Conditions Limitation Rider” which limits disability benefits for conditions including fibromyalgia to 24-months. This provision was of course not present in the policy either when Ms. Krysztofiak originally submitted her claim for benefits in 2016, nor when the court remanded the case in June 2020. Nevertheless, Boston Mutual argued that the policy was always supposed to have such a limitation for special conditions, and that it should therefore be allowed to apply it going forward on Ms. Krysztofiak’s claim. The court agreed. The court rejected Ms. Krysztofiak’s argument that the plan document rule requires the plan to be “enforced in accordance with the terms then in existence when she became disabled.” To the contrary, the court agreed with Boston Mutual that it had the power to amend the policy to change its terms even after Ms. Krysztofiak began receiving disability benefits because “disability benefits are not contingent upon a singular event, but upon the continued existence of a disability.” Accordingly, the court held as a matter of law “an interest in disability benefits does not vest upon the occurrence of a disability.” Thus, the court concluded the appropriate course of action here was to remand the case once again to defendant for a full and fair review of the application of the new rider and granted summary judgment to Boston Mutual on the parties’ dispute regarding the legality of the amendment.

Holder v. Metro Life Ins. Co., No. C. A. 6:21-CV-00490-DCC, 2022 WL 4354406 (D.S.C. Sep. 20, 2022) (Judge Donald c. Coggins, Jr.). Plaintiff Traci Holder filed a long-term disability benefits action in 2021 seeking judicial review of MetLife’s decision denying her long-term disability coverage after the insurer concluded that Ms. Holder had never enrolled in the plan because it had denied her submitted Statement of Health forms based on her past medical history. In her complaint, Ms. Holder did not dispute that she had never paid premiums for long-term disability insurance coverage, nor did she dispute that she never filed a claim for benefits under the terms of the plan. Instead, Ms. Holder argued that she was unable to file such a claim because MetLife took that position that she was not covered under the plan in the first place. Nevertheless, Ms. Holder asserted that she had received a coverage approval letter for the long-term disability plan in 2018, and therefore understood that she was enrolled in the plan. Thus, to resolve the parties’ disagreement, the court focused in on the gravamen of the dispute “whether Holder was enrolled in the Plan, and therefore, eligible to apply for and receive LTD benefits under (it).” Ms. Holder argued that MetLife should be bound by the coverage determination it made when it sent her the approval letter in 2018, and thus required by the court to process her claim for disability benefits on the merits. Met Life countered that Ms. Holder was never enrolled in the plan because it never approved her Statement of Health forms, and she never made a contribution for coverage. Under abuse of discretion review, the court agreed with MetLife finding that the evidence clearly established that Ms. Holder had failed to meet these conditions required under the plan for the policy to go into effect, regardless of validity of the contested 2018 approval of coverage letter. Consequently, the court found MetLife’s decision reasonable and principled, and therefore affirmed it.

Sixth Circuit

Avery v. Sedgwick Claims Mgmt. Servs., No. 20-11810, 2022 WL 4365707 (E.D. Mich. Sep. 21, 2022) (Judge Robert H. Cleland). Plaintiff Jacqueline Avery sued under Section 502(a)(1)(B) after her long-term disability benefits were terminated by defendant Sedgwick Claims Management Services. Parties each moved for summary judgment. The court began its decision by deciding the appropriate standard of review. Upon review of the plan, the court was satisfied that Sedgwick was delegated with discretionary authority. Satisfied that there were no procedural violations requiring de novo review, the court conducted its review of the denial under the deferential arbitrary and capricious review standard. Under this standard, the court felt that Ms. Avery failed to meet her burden of establishing her right to benefits under the plan. First, although the court agreed with Ms. Avery that Sedgwick ought to have explained in its denial letters why it disagreed with the Social Security Administration’s position finding Ms. Avery disabled, the court stated that this shortcoming alone was “not enough to tip the scale in Plaintiff’s favor.” Next, the court disagreed with Ms. Avery’s position that Sedgwick had ignored medical information submitted by her treating doctors and instead unfairly relied on its hired physician’s conclusions. To the contrary, the court stated that Sedgwick’s doctors accepted as true all of the medical evidence within the record, including Ms. Avery’s own opinions, and diverged from the position of her treating doctors only insofar as they found her capable of returning to work. Finally, the court took no issue with Sedgwick’s silence regarding Ms. Avery’s comments challenging the accuracy of the independent medical examination. Sedgwick, the court held, was under no “obligation to specifically elaborate (on) what it thought of Plaintiff’s remarks.” Based on this assessment, the court found no abuse of discretion and accordingly granted summary judgment in favor of Sedgwick.

Ninth Circuit

McGuire v. Life Ins. Co. of N. Am., No. SACV 20-01901-CJC (JDEx), 2022 WL 4368140 (C.D. Cal. Sep. 21, 2022) (Judge Cormac J. Carney). In December of 2005, Plaintiff Brenda McGuire had an accidental fall that left her with “intense chronic pain” in her neck and back. Ms. McGuire would continue working for another eleven years. However, by April 2017, Ms. McGuire could no longer keep things up as her said as her pain had only worsened throughout the years. By 2017 her pain was debilitating, and Ms. McGuire needed to stop working. Doctors at the time diagnosed her with cervical radiculopathy and other spinal issues. Her diagnostic x-rays and MRIs demonstrated significant abnormalities. Ms. McGuire went on worker’s compensation for two years, and after it ended, she submitted a claim for long-term disability benefits under her plan administered by Life Insurance Company of North America (“LINA”). LINA hired a doctor certified in occupational medicine to conduct a review on the papers of Ms. McGuire’s claim. LINA’s physician concluded that Ms. McGuire was not disabled. Ms. McGuire appealed the denial, and LINA hired a second occupational medicine doctor to review the appeal. The second doctor disagreed with some of the conclusions of the first but ultimately reached the same result, finding Ms. McGuire not disabled. Accordingly, Ms. McGuire commenced this lawsuit. Parties each moved for summary judgment under abuse of discretion review. In this decision the court explained why it found LINA’s denial unreasonable and an abuse of discretion. To begin, the court found LINA’s hired doctors were not specialists in the appropriate field or fields of medicine to review Ms. McGuire’s condition. Rather than doctors certified in occupational medicine, the court found that LINA should have hired neurologists, orthopedists, and pain specialists, like Ms. McGuire’s own treating physicians. Furthermore, the court stressed that LINA’s review conducted purely on the records rather than by in-person examinations additionally undermined the reliability of its doctors’ conclusions. “Also telling is that LINA’s ‘reasons for denial were shifting and inconsistent,” said the court. Ultimately, in the eyes of the court, LINA’s justifications for denial were found to be “replete with half-truths” and even “borderline illogical.” Thus, the court entered judgment in favor of Ms. McGuire and awarded long-term disability benefits under the “regular occupation” period of her policy. However, the court chose to remand to LINA to decide Ms. McGuire’s eligibility for continued benefits under the “any occupation” period.

ERISA Preemption

Fifth Circuit

ERLC, LLC v. Blue Cross Blue Shield of Tex., No. 3:22-cv-6, 2022 WL 4348471 (S.D. Tex. Sep. 19, 2022) (Judge Jeffrey Vincent Brown). Plaintiff ERLC, LLC is an emergency medical service provided. In 2020, ERLC provided emergency care to a patient, Mr. Guzman, insured by Blue Cross Blue Shield of Texas. ERLC billed Blue Cross over $90,000 for this care. Blue Cross however only paid $466.50. Following an unsuccessful meditation process to recover the remaining amount owed, ERLC sued both Blue Cross and Mr. Guzman in state court for breach of contract, breach of implied contract, and violations of the Texas Insurance Code. Blue Cross removed the case to the federal court alleging ERISA preemption, and in the alternative, diversity jurisdiction. ERLC moved to remand, which the court granted. The court concluded that joinder of Mr. Guzman as an individual was not improper and therefore held complete diversity among the parties did not exist. Additionally, the court decided that it was without subject-matter jurisdiction. The court stated that both prongs of the Davila ERISA preemption test were unsatisfied as ERLC did not have standing to sue under Section 502(a)(1)(B), and an independent legal duty was implicated by Blue Cross’s underpayment. Thus, the court held this “rate of payment” action did not implicate ERISA and remanded the matter back to state court.

Eleventh Circuit

Posey v. Sedgwick Claims Mgmt. Servs., No. 1:22-cv-01496-SDG, 2022 WL 4361742 (N.D. Ga. Sep. 19, 2022) (Judge Steven D. Grimberg). Plaintiff Jordan Michael Posey is a former police officer who sought legal defense costs from The Fraternal Order of Police Legal Plan, Inc., an employee benefit plan that provides legal defense costs for police officers charged with crimes while on duty. Mr. Posey requested these benefits to cover his legal costs related to a criminal “incident that occurred while he was employed as a law enforcement officer.” Further details regarding the criminal case against Mr. Posey were not provided in the order. Instead, the brief decision granted defendant Sedgwick Claims Management Services’ motion to dismiss Mr. Posey’s breach of contract lawsuit as preempted by ERISA. Concluding the Legal Plan, which was established by the Fraternal Order of Police, did not “meet any of the criteria for exemption under Section 1003(b)” as a governmental plan, the court held that the plan was governed by ERISA. Furthermore, the court expressed that “well-settled law” in the Eleventh Circuit holds that breach of contract claims aiming to recover benefits under ERISA-governed plans are preempted. As Mr. Posey did not pursue claims under ERISA, the court granted the motion to dismiss, but did so without prejudice.

Medical Benefit Claims

Eleventh Circuit

Howard v. Ivy Creek of Tallapoosa, LLC, No. 3:20-cv-00213-RAH-SMD, 2022 WL 4390431 (M.D. Ala. Sep. 22, 2022) (Judge R. Austin Huffaker, Jr.). Plaintiff Pamela Howard was terminated by her employer Ivy Creek of Tallapoosa, LLC after she suffered a brain aneurysm and had exhausted her medical leave. Ms. Howard needed continued healthcare, but her employer failed provide to the third-party plan administrator responsible for issuing Ms. Howard’s COBRA notice with her current address. Accordingly, the COBRA notice was sent to an old address, and Ms. Howard was left without health insurance coverage. Thus, seeking payment of her outstanding medical bills, and equitable relief including the payment of her health insurance premiums, interest, and attorneys’ fees, Ms. Howard commenced this action against Ivy Creek and UMR under Sections 502(a)(1)(B), (a)(3), (3) and 1161 of ERISA, as well as a claim against Ivy Creek for failing to provide her with plan documents upon request. Ms. Howard and Ivy Creek filed cross motions for summary judgment. UMR moved for judgment on the pleadings. The court granted UMR’s motion because UMR had issued the proper notice to the last known address it was provided. The court stated that it was Ivy Creek’s actions, not UMR’s, that lead to the harm at issue and that “UMR does not have a dog in the fight, and therefore cannot be held liable for statutory penalties associated with a failing in issuing that notice to the correct address.” However, the court felt there were genuine issues of material fact precluding awarding summary judgment to either Ms. Howard or Ivy Creek on the claims against Ivy Creek, and that it was therefore appropriate to leave resolution of those claims to the factfinder post trial. Accordingly, their motions were each denied.

Pension Benefit Claims

Second Circuit

Aracich v. The Bd. of Trs. of the Emp. Benefit Funds of Heat & Frost Insulators Local 12, No. 21 CIVIL 9622 (VB), 2022 WL 4357966 (S.D.N.Y. Sep. 20, 2022) (Judge Vincent L. Briccetti). On February 26, 2021, plaintiff Matthew Aracich announced his retirement from the Heat & Frost Insulators Local 12 Union. At that time, Mr. Aracich had over 30 years of service credit under the Union’s pension and welfare plans. When Mr. Aracich attempted to receive his retirement benefits under the plans however, his request was denied by the plan administrators who determined that he had not in fact “retired” at all because he remained the president of the Building and Construction Trades Council of Nassau and Suffolk Counties. Although, the Construction Trades Council had ended its participation in the plan the month before, the plan administrators concluded that Mr. Aracich had remained “continuously employed” and thus denied his claims for benefits. Mr. Aracich appealed this interpretation of the plan language, arguing that because he was no longer working for an employer contributing to the plan, which was how the plan defined “covered employment,” he was therefore eligible to receive retirement benefits. Mr. Aracich pointed to Section 6.8 of the plans’ governing documents which stated, “to be considered retired, a Participant must have separated from Covered Employment.” After the denial was upheld on administrative appeal, Mr. Aracich commenced this lawsuit against the plans and their fiduciaries alleging they were in violation of ERISA and state law. Mr. Aracich asserted five causes of action: (1) a claim for benefits under Section 502(a)(1)(B); (2) a Section 510 retaliation claim; (3) an anti-cut back claim under Section 204(g); (4) an ERISA breach of fiduciary duty claim; and (5) a state law breach of contract claim. Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Despite a perfunctory line in the beginning of the order stating that the court would draw all reasonable inferences in the plaintiff’s favor, the court seemingly did the reverse and granted the motion, dismissing the lawsuit. This was perhaps most striking with regard to Mr. Aracich’s claim for benefits. The court held that Mr. Aracich could only state a claim upon which relief may be granted under Section 502(a)(1)(B) if defendant’s interpretation of “retire” was arbitrary and capricious, and therefore “erroneous as a matter of law.” The court concluded that defendants’ interpretation and subsequent denial were rooted in “reasoned bases” and therefore were not arbitrary and capricious. Accordingly, the claim for benefits was dismissed. Regarding the retaliation claim, the court wrote “because the only potentially adverse action plaintiff identifies is the denial of benefits, which…he fails to plead…plaintiff does not adequately allege he suffered adverse action.” The ERISA fiduciary breach claim was similarly premised on defendants’ misinterpretation of the plan language regarding the denial of benefits and therefore dismissed for the same reasons. Mr. Aracich’s anti-cutback claim was dismissed because defendants did not “amend” the plan. Finally, the breach of contract claim was dismissed as preempted by ERISA.

Third Circuit

Hitchens v. Bd. of Trs., Plumbers & Pipefitters Local Union No. 74 Pension Fund, No. 20-1206-CJB, 2022 WL 4448195 (D. Del. Sep. 23, 2022) (Magistrate Judge Christopher J. Burke). Plaintiff Willis Franklin Hitchens commenced legal action after his application for early pension benefits from the Plumbers and Pipefitters Local Union No. 74 Pension Fund was denied. The Board of Trustees had concluded that Mr. Hitchens was engaging in “Disqualifying Employment” under the plan in working as a maintenance supervisor in the plumbing and pipefitting industry. Defendants moved for summary judgment. They argued that their interpretation of the plan language was reasonable and therefore not an abuse of discretion. Additionally, defendants stated that it was uncontested that Mr. Hitchens had performed supervisory work in the industry, and that their denial should thus be upheld. The court agreed and granted their motion in this order. While the court conceded that the section of the plan outlining the definition of “Disqualifying Employment” was “not artfully drafted,” the court also found that under deferential review any ambiguity should be construed in favor of defendants, and their interpretation was certainly logical and reasonable. The court went on to agree that Mr. Hitchens had engaged in the supervisory employment alleged by defendants. Finally, although the court agreed with Mr. Hitchens that defendants technically did not comply with Section 503 of ERISA during appeals process, the court did not feel that this noncompliance “impacted (Mr. Hitchens’s ability to have effective review of his benefits claim (nor would it change the ultimate outcome here).” The court therefore did not award relief to Mr. Hitchens regarding defendants’ procedural violations.

Plan Status

Ninth Circuit

Adams v. Symetra Life Ins. Co., No. CV-18-00378-TUC-JGZ, 2022 WL 4305622 (D. Ariz. Sep. 19, 2022) (Judge Jennifer G. Zipps). For two-and-a-half years, the court in this case has gone back and forth trying to answer the question of whether plaintiff Robert Adams’s disability policy is governed by ERISA. In a previous order the court granted defendant Symetra Life Insurance Company’s motion for summary judgment on its position that the Mr. Adams established or maintained an ERISA plan. After that order was issued however, the Ninth Circuit decided a case with nearly identical circumstances to Mr. Adams’s, Steigleman v. Symetra Life Ins. Co., No. 21-15612, 2022 WL 912255 (9th Cir. Mar. 29, 2022), concluding that the plan at issue was not governed by ERISA. Accordingly, Mr. Adams filed a motion requesting the court vacate its previous ruling on his plan’s status. Having taken the Steigleman decision into consideration, the court agreed to vacate its previous finding that ERISA governed the policy. Important to the court’s decision-making was the fact that Mr. Adams’s involvement was “limited to him paying for his employee’s insurance premiums,” which on its own was insufficient to show that Mr. Adams established or maintained a plan. Because Mr. Adams did not manage enrollment, collect premiums, establish terms for eligibility, develop benefit packages, or process claims forms, and because there was no evidence that the plan was advertised as an ERISA plan, the court found the evidence insufficient to show that the plan was governed by ERISA. The court therefore vacated its previous order holding otherwise.

Pleading Issues & Procedure

Fourth Circuit

Balkin v. Unum Life Ins. Co., No. GLS 21-1623, 2022 WL 4316270 (D. Md. Sep. 19, 2022) (Magistrate Judge Gina L. Simms). Plaintiff Kelly Balkin brought an ERISA disability benefits suit against Unum Life Insurance Company in 2021. In this order, the court resolved several pending pleading issues – namely (1) whether the plan’s choice of law provision is applicable; (2) what standard of review applies; and (3) whether discovery beyond the administrative record would be permitted and if so to what extent. First, the court addressed the plan’s choice of law provision by selecting the law of the District of Columbia to govern the plan. Currently, the Fourth Circuit has not addressed the issue of whether a choice of law provision in an ERISA plan should be enforced and if so under what circumstances. Nevertheless, the court chose to adopt the standards of the Eighth, Ninth, and Eleventh Circuits which hold that such a provision should be enforced “if not unreasonable or fundamentally unfair,” as well as that of the Sixth Circuit which allows for choice of law provisions to be enforced unless the chosen state has “no substantial relationship to the parties,” or applying the provision is somehow contrary to the “fundamental policy” of the state whose law shall be applied. The court concluded that enforcing the provision was not fundamentally unreasonable; a legitimate connection existed between the plan and D.C. because Ms. Balkin’s employer is headquartered in D.C.; and discretionary language in ERISA plans does not constitute a “fundamental state policy.”  As such, the court found the choice of law provision enforceable, and applied D.C. law with regard to the standard of review. Next, the court held that there exists no blanket ban on the enforcement of discretionary clause under D.C. law, and therefore found abuse of discretion review applicable. With these issues resolved, the court turned to the discovery dispute before it and granted in part Ms. Balkin’s discovery motion. The court allowed Ms. Balkin to pursue discovery related to bias and granted her motion to conduct discovery pertaining to defendant’s financial relationship with the doctors it hired to review Ms. Balkin’s claim, the number of claims defendant has referred to each of those doctors, the number of cases in which each doctor found claimants to be disabled, and information regarding the doctors’ experience with and expertise on fibromyalgia, Ms. Balkin’s disabling condition. However, the court denied Ms. Balkin’s request for defendant’s claims handling policies and procedures, concluding that Ms. Balkin had failed to present evidence that defendant had relied on any such procedures during its review of her claim. Finally, the court ordered parties to meet and confer to try and resolve their dispute over documents within the administrative record that defendant has redacted.

Nordman v. Tadjer-Cohen-Edelson Assocs., No. DKC 21-1818, 2022 WL 4368152 (D. Md. Sep. 21, 2022) (Judge Deborah K. Chasanow). Plaintiff Yehuda Nordman commenced legal action after his claim for pension benefits under several ERISA-governed plans sponsored by his former employer Tadjer-Cohen-Edelson Associates, Inc., including a 401(k) Plan, a Money Purchase Plan, and an Employee Stock Ownership Plan, were denied. In addition to denying the claims for benefits, the plan administrators also concluded that Mr. Nordman was not a participant of the 401(k) and Money Purchase plans, despite documentation Mr. Nordman possessed that indicated otherwise. In his suit, Mr. Nordman alleges that defendants violated ERISA, breached their fiduciary duties, and improperly administered the plans. Defendants moved to dismiss all of Mr. Nordman’s claims. Their motions were granted in part and denied in part. The court allowed both Mr. Nordman’s claim for payment of benefits under Section 502(a)(1)(B) and his claim for sanctions under Section 104(b)(4) for failure to timely provide plan documents to proceed. However, the court granted the motions to dismiss the claims brought under Section 502(a)(3), finding them duplicative of the claim for benefits.  The court likewise dismissed the breach of fiduciary duties claim, finding the complaint lacked allegations of elements necessary to state such a cause of action. Mr. Nordman’s co-fiduciary liability claim, and retaliation claims fared no better, with the court holding that Mr. Nordman failed to identify any retaliatory action that took place prior to his lawsuit.

Sixth Circuit

Merritt v. Flextronics Int’l, No. 2:20-cv-02943-TLP-cgc, 2022 WL 4397531 (W.D. Tenn. Sep. 23, 2022) (Judge Thomas L. Parker). Pro se plaintiff Kenneth Merritt brought a lawsuit in state court against his employer, Flextronics International USA, Inc., and the insurer of his short-term disability insurance plan, Hartford Financial Services Group, Inc., after Mr. Merritt received monthly disability payments that were less than he believed they should be. Defendants removed the case to the federal district court and argued that Mr. Merritt’s state law causes of action were preempted by ERISA. The court referred all pre-trial matters in the case to Magistrate Judge Charmaine G. Claxton. Judge Claxton agreed with defendants on federal subject-matter jurisdiction and ERISA preemption and advised Mr. Merritt to amend his complaint to bring his claims under ERISA, noting that, if he failed to do so, his complaint may be dismissed. Mr. Merritt did fail amend his complaint to plead ERISA claims, which prompted Judge Claxton to recommend that the court dismiss the case for lack of prosecution under Rule 41(b). In this order the court adopted Judge Claxton’s recommendation. The court emphasized Mr. Merritt’s “repeated failures to amend his complaint” despite several warnings that this behavior could lead to dismissal. According, the court found “Plaintiff’s conduct reflects a reckless disregard for the effect his conduct had on this case.” Thus, the court dismissed the complaint for failure to prosecute.

Provider Claims

Sixth Circuit

Dual Diagnosis Treatment Ctr. v. Blue Cross Blue Shield of Tenn., No. 1:22-CV-00073-DCLC-CHS, 2022 WL 4351984 (E.D. Tenn. Sep. 19, 2022) (Judge Clifton L. Corker). Plaintiffs are healthcare providers who provide care to patients suffering from mental health issues, including substance use disorder. They have sued Blue Cross Blue Shield of Tennessee for underpayment and misdirected payment of the provided healthcare services under ERISA and state law. Blue Cross moved to dismiss for failure to state a claim, arguing that plaintiffs lacked standing, that their claims are untimely, that they have failed to exhaust administrative remedies, and that their state law claims are preempted by ERISA. The court addressed each issue in turn. To begin, the court stated that all plaintiffs except for Dual Diagnosis Treatment Center have adequately alleged derivative standing as they have proved that they received valid assignments from their patients of to receive payment under the plans. As for Dual Diagnosis, the court stated that it must allege that it received valid assignments from patients to confer it with standing. Accordingly, the court reserved ruling on the issue and gave Dual Diagnosis the opportunity to respond to the issue. Next, the court rejected Blue Cross’s untimeliness argument, stating outright that Blue Cross pointed to no facts in the complaint that indicate the claims were outside any statute of limitation. Regarding preemption, the court accepted plaintiffs’ assertion that their state law claims pertained only to the non-ERISA governed plans. Thus, the court declined to dismiss the state law claims and allowed them to proceed in addition to the Section 502(a)(1)(B) ERISA claims. Finally, the court excused plaintiffs’ non-exhaustion of administrative remedies, holding that Blue Cross denied plaintiffs “meaningful access to review procedures.” Thus, for the foregoing reasons Blue Cross’s motion to dismiss was denied.

Retaliation Claims

Fourth Circuit

Chisholm v. Mountaire Farms of N.C. Corp., No. 1:21CV832, 2022 WL 4367635 (M.D.N.C. Sep. 21, 2022) (Judge Loretta C. Biggs). Plaintiff Robert Chisholm was an employee of defendant Mountaire Farms of North Carolina Corp. from November 11, 2019, to September 3, 2020. Right in the middle of that period of employment in May 2020, Mr. Chisholm injured himself. Mr. Chisholm applied for and received short-term disability benefits and was out of work from May 14, 2020, to September 3, 2020. The day he returned to work he was terminated, without a provided reason for his termination. Mr. Chisholm filed a charge of discrimination with the EEOC and received notice of right to sue. He did so, initiating this discrimination lawsuit under ERISA Section 510, the Americans with Disabilities Act (“ADA”), and under the Family and Medical Leave Act (“FMLA”). Mountaire Farms moved to dismiss for failure to state a claim. The court granted the motion. Mr. Chisholm’s FMLA claim was dismissed because he was never eligible for FMLA as he was employed at Mountaire Farms for only about six months and FMLA eligibility requirements employment for at least 12 months. Mr. Chisholm’s ADA and ERISA discrimination claims were both dismissed for essentially the same reasons – the complaint did not articulate that he was a qualified individual for his job and the complaint was devoid of facts that plausibly suggested Mountaire Farms fired him because of his disability and his attainment of ERISA disability benefits. The motion to dismiss was thus granted, and the complaint was dismissed without prejudice.

Withdrawal Liability & Unpaid Contributions

Fourth Circuit

Int’l Painters & Allied Trades Indus. Pension Fund v. I Losch Inc., No. CIVIL BPG-19-3492, 2022 WL 4386232 (D. Md. Sep. 22, 2022) (Magistrate Judge Beth P. Gesner). The International Painters and Allied Traders Industry Pension Fund sued I. Losch Inc., Cheryl Yohn, Inc., and Hy Pressure Washing & Painting, companies the under common control of a husband and wife, seeking collection of unpaid withdrawal liability payments, an injunctive order for future payments, and collection on default after Losch Inc. withdrew from the fund, and failed to either make their required payments or to demand arbitration. The parties filed cross-motions for summary judgment. Finding no genuine dispute of material fact, the court concluded that defendants waived their right to contest the timeliness of plaintiffs’ withdrawal liability demand notice by failing to initiate arbitration, and notably never contested the amounts assessed by plaintiffs either in this action or by initiating arbitration. Thus, the court held that the “amounts demanded by plaintiffs…shall be due and owing on the schedule set forth by plaintiffs,” in addition to interest, liquidated damages, attorney’s fees and costs. The court also concluded that plaintiffs proved that the companies were under common control based on the spousal attribution rule. Accordingly, the court granted plaintiffs’ motion for summary judgment, and denied defendants’ cross-motion for summary judgment. Plaintiffs were awarded their requested damages for the unpaid withdrawal liability, interest, and liquidated damages, but the court reserved the award of attorney’s fees and costs for a separate motion.

Falberg v. The Goldman Sachs Grp., No. 19 Civ. 9910 (ER), 2022 WL 4280634 (S.D.N.Y. Sep. 14, 2022) (Judge Edgardo Ramos)

Fee cases continue to dominate the world of ERISA pension litigation. In this week’s case of the week, Goldman Sachs obtains a complete and somewhat surprising win on summary judgment in a proposed class action on behalf of 17,000 participants in the company’s massive $7.5 billion 401(k) plan.

Leonid Falberg, a participant in the 401(k) plan, brought suit challenging the plan’s investments in a number of Goldman proprietary mutual funds, alleging that Goldman and its in-house fiduciaries breached their duties under ERISA by, among other things: (1) “only reluctantly and belatedly” removing underperforming Goldman investment funds as investment options in 2017 (rather than in 2014, as Mr. Falberg alleged they should have); (2) failing to consider lower-cost institutional investment vehicles; and (3) failing to claim “fee rebates” on behalf of the Plan that allegedly were available to other similarly situated retirement plans that invested in the Goldman funds.

Mr. Falberg’s complaint pointed out a number of red flags. First, three of the challenged Goldman funds were rated “not broadly recommended” by Rocaton Investment Advisors LLC, Goldman’s outside investment advisor for the Plan. Second, the majority of the mutual funds retained by the Plan were proprietary funds and were “higher-cost” than other investment options. Third, the challenged funds consistently underperformed their benchmarks, in “stark contrast” to the Plan’s nonproprietary funds. Finally, the Plan did not have an investment policy statement, a fact that experts for both sides spent much time discussing.

All of this, Mr. Falberg alleged, indicated that the defendants breached their duties of loyalty and prudence by “retaining high-cost, poorly performing mutual funds in the Plan” based on their “own self-interest” and in “disregard for participants.” Mr. Falberg also alleged that the investment committee’s failure to claim fee rebates that were available to other plans violated ERISA’s prohibited transaction restrictions, and that Goldman breached its duty to monitor the Retirement Committee.

The court, however, disagreed on all fronts. The court saw the fiduciary breach claim as turning primarily on Goldman’s lack of an investment policy statement for the plan. Although the plaintiff’s experts testified that having an IPS was a common and indeed “best practice,” and even the defendant’s expert testified that it was one indicia of a well-run plan, because it was not strictly required under ERISA the court concluded that the lack of such a policy did not establish imprudence.

Nor did the court agree that the plan fiduciaries lacked a deliberative process, despite the sparse minute reports from the investment committee’s quarterly and ad hoc meetings. The plaintiff’s expert testified that the minutes of these meetings revealed that the committee at most engaged in a cursory review of the challenged funds. But again, the court focused on the lack of any requirement in ERISA that minute meetings be more robust. Ultimately, the court concluded that Mr. Falberg’s prudence claim failed because he could not show that a prudent fiduciary in Defendants’ position would have acted differently.

With respect to the claims for self-dealing and disloyalty, the court acknowledged that the defendants operated under a conflict of interest with respect to the plan’s investments in the Goldman proprietary funds, but concluded that a conflict of interest alone is not enough to establish a violation of ERISA’s duty of loyalty. Instead, the court held that a plaintiff must show that plan fiduciaries were influenced by the conflict. Because, at most, Mr. Falberg raised the possibility that committee members may have been influenced by a desire to benefit Goldman, but could not point to any evidence demonstrating that they did act for the purpose of advancing Goldman’s interests, the Committee was entitled to summary judgment on the loyalty claim.

The judge also ruled in favor of the Committee on Mr. Falberg’s claim that it engaged in a prohibited transaction by failing to collect fee rebates in the form of revenue sharing on the proprietary mutual funds at issue. Although the court acknowledged that the investments in the Goldman funds were prohibited under ERISA Section 406, the court concluded that it was nevertheless exempt under the Department of Labor’s Prohibited Transaction Exemption 77-3 (“PTE 77-3”). The court concluded that because the Plan was treated the same with respect to the revenue sharing as any other retirement plan which had the same recordkeeper during the same period, this meant the plan was treated “no less favorable basis” than plans in similar circumstances and the transaction was thus exempt under the terms of PTE 77-3.

Finally, the court concluded that the claim against Goldman for failure to monitor the Committee was derivative of and dependent on the fiduciary breach claims against the Committee. Having concluded that those claims failed, the court reached the same conclusion on the monitoring claims and likewise granted summary judgment in favor of Goldman.

At the end of the day, the court appeared impressed by the expertise and credentials of the Goldman Committee members and satisfied that they evaluated the Goldman funds under a prudent, if truncated, process and were not influenced by their conflicts of interests.

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

Breach of Fiduciary Duty

Third Circuit

Leone v. Olympus Corp. of the Am’s., No. 20-cv-3158, 2022 WL 4280481 (E.D. Pa. Sep. 15, 2022) (Judge Mitchell S. Goldberg). In 2019, the Olympus Corporation of the Americas amended its defined benefit plan to give participants who had not yet started receiving pension benefits the option to elect to receive an immediate lump sum distribution of their plan benefits. Plaintiffs are the 39 individuals who opted to receive these lump sum payments during the available window. They commenced this action against Olympus Corporation, the plan’s administrative committee, and ten individual fiduciaries alleging breach of fiduciary duty under Sections 502(a)(2) and 502(a)(3), equitable estoppel, and detrimental reliance after defendants informed them that their lump sum amounts were calculated using the 2019 interest rates rather than the 2018 interest rates, resulting in estimated values that were about 33% higher than defendants would later inform them they were actually entitled to under defendants’ interpretation of the terms of the amendment. Defendants stated that they were in the midst of distributing the checks to the plaintiffs when they discovered that the actuarial firm they employed to calculate the lump sums had used the lower interest rates resulting in these greater payouts. Accordingly, only six of the 39 plaintiffs received their checks and did not return the overpayments to defendants; the remaining 33 individuals either never received their distribution checks thanks to stop-payments orders issued by defendants or voluntarily returned the overpayments. Defendants moved to dismiss. They argued that the claims failed as a matter of law and that plaintiffs lacked standing. Simply put, defendants argued, and the court agreed, a miscalculation of benefits “is not actionable under ERISA.” An honest mistake, the court opined, is not the type of bad faith action for which a fiduciary can be held liable. Thus, the court sided with defendants and their interpretation of events and concluded that the ERISA breach of fiduciary duty claims failed as a matter of law. Additionally, the court went on to hold that even if the ERISA claims didn’t fail on the merits, plaintiffs lack Article III standing to sue under the Supreme Court’s ruling in Thole v. U.S. Bank because their plan is a defined benefit plan. Plaintiffs’ argument that the fiduciary breach in this instance was not the mismanagement of plan assets that was addressed in Thole, but instead failure to comply with the terms of the plan document which resulted in greatly reduced payouts, was brushed over by the court which circled back to its original posture, stating, “plaintiffs are not entitled to keep the overpayments because no fiduciary duty was breached.” Finally, the court dismissed the Section 502(a)(3) equitable estoppel claim, once again concluding that plaintiffs failed to establish defendants acted in bad faith. However, the six plaintiffs who were paid their lump sum distributions were able to proceed with their fiduciary breach for misrepresentation claim as they sufficiently proved they had detrimentally relied on defendants’ action. For these reasons, defendants’ motion to dismiss was almost wholly granted.

Class Actions

First Circuit

Glynn v. Maine Oxy-Acetylene Supply Co., No. 2:19-cv-00176-NT, 2022 WL 4234761 (D. Me. Sep. 14, 2022) (Judge Nancy Torresen). Participants of the Maine Oxy-Acetylene Supply Company’s employee stock ownership plan (“ESOP”) and Secretary of Labor, Martin J. Walsh, the plaintiffs in this breach of fiduciary duty class action, moved unopposed for preliminary approval of the parties’ settlement agreement. As the court had already certified a class consisting of participants of the ESOP “who sold their shares back to Maine Oxy after the (owners) sold their 51% interest in the company,” the inciting incident of this action, the court understood its role here as evaluating whether the proposed settlement is fair, reasonable, and adequate, and the result of a good faith arm’s length negotiation. In its analysis, the court expressed that it was satisfied that the proposed settlement, totaling $6,330,000, was just that. Specifically, the court emphasized that the $6,330,000 figure, which was based on a $400 per share stock valuation, was exceedingly reasonable given that plaintiffs’ expert’s valuation of the stock ranged from $262 to $467.57, and the $400 per share valuation was “almost exactly what the Class Plaintiffs’ expert would have testified to at trial.” For preliminary purposes, the court also expressed that it found the proposed $7,500 in incentive awards to each of the class representatives to be fair and typical, and the requested $1,200,000 in attorneys’ fees, representing 19% of the total settlement, to also be reasonable. Additionally, the court was convinced that the proposed settlement, which will calculate payments to each class member based on the number of shares allocated under the ESOP, treated the members of the class equitably. Finally, the court was satisfied that the proposed notice was “clear, concise and states in plain language the certified class definition, the class claims, how to request exclusion from the class, and the binding effect of the class judgment.” For these reasons, the court granted preliminary approval of the settlement, approved the proposed notice, and directed the clerk to schedule a final approval fairness hearing.

Second Circuit

The Med. Soc’y of State of N.Y. v. UnitedHealth Grp., No. 16 CIVIL 5265 (JPO), 2022 WL 4234547 (S.D.N.Y. Sep. 14, 2022) (Judge J. Paul Oetken). Plaintiffs in this class action are healthcare providers in New York State who have sued UnitedHealth Group and related entities under ERISA for failing to pay billed facility fees for office-based surgeries. The court held a five-day bench trial in the case last February. The parties then filed post-trial briefing and the court in this order issued its final rulings, finding in favor of defendants on all counts. The court concluded that United’s process for denying facility fees complied with ERISA’s requirements and sufficiently explained to participants why their claims were denied, as the plans’ language did not require United to reimburse providers for billed facility fees when they were submitted by office-based surgery centers. The court reached its conclusion having reviewed a sampling of plan language provided by United. None of the plans the court reviewed required United to pay facility fees to physician offices, and some of them expressly excluded such coverage. The court was particularly persuaded by “the fact that Medicare conventions, other insurers, and New York law support United’s determination that a physician office is not a facility and therefore not entitled to separate facility fees.” The court found this background information helpful in providing context and felt it supported its conclusion that United acted reasonably. Accordingly, the court held that plaintiffs failed to successfully demonstrate that United systematically violated ERISA.

Ninth Circuit

Atzin v. Anthem, Inc., No. 2:17-cv-06816-ODW (PLAx), 2022 WL 4238053 (C.D. Cal. Sep. 14, 2022) (Judge Otis D. Wright II). Plaintiffs in this class action are amputees insured by Anthem, Inc. who have had their claims for a type of prosthetic called “microprocessor-controlled prostheses” denied, either for being investigational in the case of the microprocessor-controlled foot-ankle prostheses (one of the sub-classes), or for being medically unnecessary as defined by the plans for microprocessor-controlled knee prostheses (the other sub-class.) The parties have reached a settlement wherein Anthem has agreed to significant changes to its medical necessity criteria for these prosthetics. The agreed-upon modified criteria are now much less restrictive and are in line with the criteria used by Medicare and other insurers. Furthermore, microprocessor foot/ankle prostheses will no longer be considered investigational under the terms of the settlement, representing “a major shift.” Finally, Anthem has agreed to reprocess the claims of each of the class members under these new criteria and has agreed not to object to paying plaintiffs’ requested $850,000 in attorneys’ fees, $36,833.99 in costs, and $30,000 in incentive awards pending the court’s approval of these amounts. In this order, the court conditionally granted final approval of the settlement pending the distribution of post-approval notice to the class members. The court found the settlement to be not only fair and reasonable but “a very good result for the class.” The court then addressed the motion for attorneys’ fees, costs, and incentive awards. As previously stated, plaintiffs moved for an award of $850,000, which was slightly less than their $882,740.00 lodestar in the case based on 1,098.5 hours of work billed at rates of $900/hour for counsel Robert S. Gianelli, $700/hour for counsel Joshua S. Davis, and $675/hour for counsel Adrian J. Barrio. Because this is a reprocessing class action, no conflict exists between attorneys and class members. The court thus considered its oversight role to be greatly reduced, and accordingly granted the agreed-upon fee award of $850,000, finding it to be reasonable. The same was true of the requested $36,833.99 in costs. However, the court felt that $15,000 incentive awards to each of the two named plaintiffs was excessively high in the Ninth Circuit and reduced the awards to $10,000 each instead.

Disability Benefit Claims

Second Circuit

Provident Life & Accident Ins. Co. v. McKinney, No. 3:19-CV-1325 (SVN), 2022 WL 4120768 (D. Conn. Sep. 9, 2022) (Judge Sarala v. Nagala). Provident Life & Accident Insurance Company brought an ERISA Section 502(a)(3) suit, seeking the equitable relief of recission of an ERISA disability policy, against an insured, defendant Bradley McKinney, after he applied for disability benefits and Provident discovered certain misrepresentations Mr. McKinney had made on his policy application. The policy at issue included a clause providing that “omissions and misstatements in the application could cause an otherwise valid claim to be denied or to be rescinded.” Specifically, Provident Life asserted that Mr. McKinney had falsely represented that he had not received treatment for memory loss, confusion, or speech disruption in the preceding five years, and had also falsely stated that he had not missed one or more days of work due to sickness or injury in the 180 days preceding his application. After Provident filed its lawsuit, Mr. McKinney filed a counterclaim under Section 502(a)(1)(B), asserting that Provident wrongfully denied him benefits, and seeking an order from the court requiring Provident to pay him benefits due under the policy. The parties filed cross-motions for summary judgment. The court stated that its role in ruling on the summary judgment motions revolved around answering the question of whether Mr. McKinney had knowingly made material misrepresentations in his application for the insurance policy, and, if he had, whether those misrepresentations were material to Provident in its decision to issue the policy. Upon examination of the record, the court concluded that there was no genuine dispute of material fact that Mr. McKinney had knowingly made material misrepresentations on his application, as he had been treated for cognitive issues including confusion and speech disruption while he was hospitalized in 2016, and because he had missed a day of work to undergo surgery due to a medical condition. As a result, the court granted Provident’s motion for summary judgment, and denied Mr. McKinney’s summary judgment motion.

Seventh Circuit

McCurry v. Kenco Logistic Servs., No. 22-1273, __ F. App’x __, 2022 WL 4284222 (7th Cir. Sep. 16, 2022) (Before Circuit Judges Easterbrook, Kirsch, and Jackson-Akiwumi). Plaintiff Edith McCurry brought an ERISA Section 502(a)(1)(B) suit after she began experiencing interruptions in her disability benefit payments. Originally, Ms. McCurry named both her former employer, Kenco Logistic Services, as well as the plan’s administrator, Hartford Life and Accident Insurance Company, as defendants in the case. However, Hartford’s motion to dismiss for improper venue was granted by the court, which left Kenco as the sole defendant. Concluding that the evidence in the record clearly demonstrated that Hartford and not Kenco was responsible for all discretionary decisions related to the payment of benefits, the district court held that Kenco couldn’t be liable for the interruptions that Ms. McCurry had experienced. Thus, the district court entered summary judgment for Kenco. Ms. McCurry appealed this decision to the Seventh Circuit, arguing that the district court had failed to view the evidence in the light most favorable to her, the non-moving party, and attempted to demonstrate to the court of appeals that certain evidence sowed doubt as to whether Kenco had in fact made certain decisions that caused her payments to be delayed. The Seventh Circuit felt that Ms. McCurry had failed to “explain the significance of this evidence.” Additionally, the Seventh Circuit pointed out that it was Ms. McCurry’s own failure to adhere to local procedural rules for summary judgment in the district court that had “rendered unrebutted the evidence in the record that Kenco did not influence Hartford’s administration of her benefits.” Given the district court’s broad discretion to enforce local procedural rules of civil litigation, coupled with the Seventh Circuit’s own experience with Ms. McCurry in which she “had flouted the local rules” in previous appeals, the Seventh Circuit not only affirmed the summary judgment ruling but also warned Ms. McCurry “that further frivolous appeals may incur monetary sanctions.”

Discovery

Sixth Circuit

Iannone v. AutoZone, Inc., No. 19-cv-2779-MSN-tmp, 2022 WL 4122226 (W.D. Tenn. Sep. 9, 2022) (Magistrate Judge Tu M. Pham). In this class action, participants of the AutoZone 401(k) Plan have sued the plan’s fiduciaries for breaching their duties under ERISA by failing to control fees and monitor the performance of the plan’s investments. In particular, plaintiffs are challenging the plan’s “most significant investment option”: a proprietary stable value fund called the Prudential Guaranteed Income Fund, which they allege was significantly underperforming. On December 1, 2020, plaintiffs served non-party Prudential with a subpoena seeking information relating to the administrative and service fees it was paid by the plan. The following year, plaintiffs requested additional information and documents from Prudential relating to the stable value products it furnished to other defined contribution plans. That discovery dispute was resolved by a court order in March of this year, wherein the court directed Prudential to produce documents related to the Prudential Guaranteed Interest Fund rates for “the 11 versions of the (guaranteed interest fund) referenced in Plaintiff’s Motion.” Prudential complied with that order and produced the documents. Prudential also made an electronically stored information (“ESI”) production, which included 6,4000 documents. Within its ESI production, Prudential had included a draft of an email instead of a copy of the version of the email that was actually sent, from March 18, 2019, that plaintiffs assert is “the single most important document in the case.” The email was between a managing director at Prudential and an AutoZone Human Resources employee. The version of the email that Prudential produced removed certain key details, and when plaintiffs discovered this discrepancy during their deposition of Prudential’s managing director, they stopped the deposition and filed their present motions, a motion to compel and a motion for sanctions against Prudential. In this order the court denied the motions, holding that Prudential did not engage in discovery misconduct regarding the email and its failure to produce the sent version of the email appeared to the court “to be the result of an ESI oversight rather than bad faith conduct.” This was especially true, the court held, because Prudential has since reexamined its documents and has produced more documents rectifying its mistakes. “Because Prudential has already represented that they have reviewed and corrected the production issue,” the court was unwilling to issue sanctions. Plaintiffs, the court stated, should resume their deposition of Prudential’s managing director now that they have the correct version of the email. Finally, regarding certain third-party subpoenas that plaintiffs served on other 401(k) plans, the court found that plaintiffs were attempting to use them to circumvent its prior discovery order, and therefore also denied plaintiffs’ motion to compel relating to these third-party subpoenas. Accordingly, all of plaintiffs’ motions were denied.

ERISA Preemption

Ninth Circuit

Aton Ctr. v. Northwest Adm’rs, No. 21cv1843-L-MSB, 2022 WL 4229307 (S.D. Cal. Sep. 13, 2022) (Judge M. James Lorenz). Aton Center, Inc. is a healthcare provider of residential inpatient substance use disorder treatment. Aton Center filed suit against defendants Northwest Administrators, Inc. and Innovative Care Management, the administrators of the health insurance policy of a patient, C.P., who received treatment at Aton Center. Aton Center alleged in its complaint that defendants promised to pay usual, customary, and reasonable rates for C.P.’s treatment during a verification of benefits call between the parties. After defendants failed to pay as agreed, Aton Center commenced this suit alleging claims for breach of contract, breach of implied-in-fact contract, promissory estoppel, unfair competition, and fraud. Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. First, defendants argued that the claims were preempted by Section 514(a) of ERISA. The court disagreed. Instead, it held that Aton Center’s state law causes of action were based “on equitable, tort, and contract principles and premised on Defendants’ alleged representations rather than the plan itself.” Because of this, the court concluded that the claims do not depend on interpreting plan language and are therefore not preempted. Next, the court turned to whether Aton Center’s complaint adequately stated claims, and concluded that it did, and its “allegations (were) sufficient to meet the notice pleading requirement under Rule 8(a)(2),” as well as under the heighted Rule 9(b) standard to plead a fraud claim. Accordingly, the motion to dismiss was denied.

Pleading Issues & Procedure

Eighth Circuit

G.C. v. Automated Benefits Servs., No. 4:22-CV-949 RLW, 2022 WL 4130796 (E.D. Mo. Sep. 12, 2022) (Judge Ronnie L. White). What’s in a pseudonym? That which we call a plaintiff mattered a great deal to the court in this order. Plaintiffs filed this ERISA medical benefits and Mental Health Parity Act violation suit under the initials G.C. and S.C. Plaintiff G.C. is Plaintiff S.C.’s father, and plaintiffs are residents of Michigan. S.C. received treatment for mental health disorders, as well as a substance use disorder, at a residential treatment facility in Texas. Neither of the plaintiffs have identified their full names. Citing Federal Rule of Civil Procedure Rule 10(a), the court stressed that “the title of the complaint must name all the parties,” and emphasized that anonymity is the exception to the presumption against allowing parties to use pseudonyms. Thus, the court would not allow plaintiffs to proceed under their initials absent a motion seeking the court’s permission to do so, in which they identify the factors that would justify allowing them to proceed anonymously. Plaintiffs’ barebones references to the “sensitive nature” of the lawsuit were insufficient to the court. Accordingly, the court ordered plaintiffs to file a request for leave to proceed under pseudonyms/initials by September 23, 2022, or in the alternative, to file an amended complaint under their real names by that same date. Should plaintiffs fail to do this, the court stated that it will dismiss the action for failure to comply with Rule 10(a).

Withdrawal Liability & Unpaid Contributions

Sixth Circuit

Polly’s Food Serv. v. United Food & Commercial Workers Int’l Union – Indus. Pension Fund, No. 2:21-CV-12895-TGB-KGA, 2022 WL 4277516 (E.D. Mich. Sep. 15, 2022) (Judge Terrence G. Berg). Plaintiff Polly’s Food Service, Inc. is an employer which has withdrawn from a multi-employer pension plan administered by defendant United Food & Commercial Workers International Union – Industry Pension Fund. The parties are currently in arbitration to resolve a withdrawal liability dispute. Plaintiff commenced this action seeking declaratory relief that it is not required to continue making interim withdrawal liability payments, and injunctive relief from continuing to make such payments. Plaintiff is required to make these payments under the “pay now dispute later” rule of the Multiemployer Pension Plan Amendments Act (“MPPAA”). The court in this order dismissed the case, holding that no special circumstances exist that warrant judicial intervention in the arbitration dispute. “MPPAA requires the parties to arbitrate the dispute and judicial intervention is impermissible at this juncture.” The court expressly stated that Sixth Circuit precedent makes clear that “a district court errs when it rules on MPPAA claims that are pending in arbitration.” For this reason, defendant’s 12(b)(6) motion to dismiss was granted.

Messing v. Provident Life & Accident Ins. Co., No. 21-2780, __ F.4th __, 2022 WL 4115873 (6th Cir. Sept. 9, 2022) (Before Circuit Judges Clay, Rogers, and Kethledge)

ERISA provides that a plan participant, beneficiary, or fiduciary can sue to obtain “appropriate equitable relief.” 29 U.S.C. § 1132(a)(3). One of the thorniest issues in ERISA litigation is what this provision means. Who is allowed to obtain equitable relief, and what kind of relief can they get? In this published decision, the Sixth Circuit circumscribed the ability of a plan fiduciary to use ERISA’s equitable relief provision to claw back benefits it had previously paid to a participant. At the same time, it overturned that fiduciary’s denial of benefits to the participant.

The plaintiff is Mark Messing, an attorney in Traverse City, Michigan, who unfortunately began struggling with depression in 1994. His condition worsened over the ensuing years to the point that he was eventually hospitalized in 1997. He returned to work, but never full-time, and filed a claim for long-term disability benefits under his ERISA-governed employee benefit plan, which was insured by defendant Provident.

Provident initially approved his claim, but terminated it after a few months. In 1999, Messing sued Provident, who eventually agreed to reinstate his claim. Provident continued paying benefits until 2018, at which time it reviewed updated records from Messing’s physician. After examining these records, and referring the case for further medical review, Provident concluded that Messing could return to work and terminated his claim.

Messing filed suit against Provident, and Provident counterclaimed. Provident’s counterclaim was based on evidence it had uncovered during its investigation that Messing had performed some legal services while receiving benefits. Provident contended that it should be allowed to recover overpaid benefits from Messing under ERISA’s equitable relief provision.

The district court upheld Provident’s termination of benefits, but rejected Provident’s argument that it was equitably entitled to recover overpayments. Both parties appealed.

The Sixth Circuit first tackled the issue of whether Provident was justified in terminating Messing’s benefits. Because the benefit plan did not grant Provident discretionary authority to determine benefit eligibility, the court reviewed Provident’s decision de novo. In doing so, the court addressed two categories of evidence: the physicians’ reports and attorney affidavits.

There were three physician reports, and the Sixth Circuit determined that one was equivocal, one was unhelpful to Messing (indeed, Messing had told the doctor “I’m not” in response to the question of how he was impaired), and the third favored Messing. The court noted, however, that all three doctors “acknowledged the fragile state of Messing’s mental health and that he should be mindful to avoid stressful environments to prevent a relapse into a worse state of depression.” Furthermore, only the third doctor “directly addressed the question at issue: whether Messing could return to work. He squarely stated Messing could not.”

As for the affidavits, they attested that “lawyering is a stressful occupation, that Messing lacks the ability to deal with stress, and that Messing has lost the skills to return to the practice of law after a 20-year hiatus.” The court found that these affidavits were only marginally helpful, as the court was already aware that practicing law is stressful, and testimony regarding Messing’s lost skills “is a separate problem that goes to his employability as a lawyer, not Messing’s disability.” However, the affidavits did provide “some support” for Messing’s argument that he continued to suffer from depression, which was relevant to his claim.

Taking all this evidence together, the Sixth Circuit determined that this was a sufficient showing by Messing, by a preponderance of the evidence, to demonstrate that he “remains unable to return to work as an attorney. Because the district court has held otherwise, we reverse.”

The court then turned to Provident’s claim for equitable relief. Provident asserted that it was entitled to either a lien for restitution or a lien by agreement. The Sixth Circuit agreed with the district court that Provident was not entitled to relief under its restitution theory. The district court had held that Provident “needed to prove that Messing’s statements ‘induced’ it into making payments it otherwise would not have made.” Provident argued that it did not need to show inducement, and that the restitution remedy “simply exists to ‘restore the status quo.’”

However, the Sixth Circuit consulted the Restatement of Restitution and Unjust Enrichment, which “is clear that Provident must prove that the transfer of benefits to Messing was induced by fraud.” Provident had learned that Messing had done part-time legal work, but it could not prove that it would have terminated his claim if it had known about that work. The evidence only showed that Provident would have reevaluated Messing’s claim, and “a review of Messing’s claim does not necessarily mean it would have terminated his benefits earlier.” Because Provident had not introduced satisfactory evidence of inducement, it could not prevail on its restitution theory.

Provident fared no better with its lien by agreement theory. Provident argued that the Individual Disability Status Updates Messing signed from 2010 through 2017 created such an agreement because they included a condition that Messing would repay any overpayments. However, the Sixth Circuit rejected this argument because the language Provident sought to enforce was not in the plan itself: “[A]n equitable lien by agreement for the reimbursement of overpaid benefits under § 502(a)(3)’s equitable relief clause requires that the ERISA-qualified plan contain a promise to repay overpaid benefits.” No such requirement existed in Messing’s benefit plan and thus Provident could not pursue a lien by agreement.

Finally, the court emphasized that “to allow Provident to obtain [equitable] relief…would be illogical in light of our separate holding that Messing remains disabled.”

In short, the appeal was a total victory for Messing, whose benefits will now presumably be reinstated. Attorney claimants often fare well with the courts in ERISA disability disputes, and this case was no exception.

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

Breach of Fiduciary Duty

Third Circuit

Perrone v. Johnson & Johnson, No. 21-1885, __ F.4th __, 2022 WL 4090301 (3d Cir. Sep. 7, 2022) (Before Circuit Judges Jordan, Restrepo, and Smith). Health care industry behemoth Johnson & Johnson has made the headlines a lot recently. This February the company agreed to a $26 billion opioid settlement for its role in contributing to the drug epidemic as one of the country’s largest pharmaceutical distributors. The company is of course also responsible for making one of the country’s COVID-19 vaccines, and administering hundreds of millions of doses worldwide, although the FDA has recently limited its approved use in the U.S. due to rare but serious side effects. And, as relevant to this Employee Stock Ownership Plan (“ESOP”) ERISA class action, the company has faced a major scandal regarding one of its best-selling products, Johnson’s Baby Powder. Over the years, Johnson & Johnson has faced thousands of lawsuits in which plaintiffs alleged that its talc-based baby powder contains asbestos, a carcinogen that is linked to ovarian and other cancers. In late 2018 Reuters published an article, J&J Knew For Decades That Asbestos Lurked In Its Baby Powder, in which the news outlet described how Johnson & Johnson knew that its product likely contained asbestos but kept that information from regulators and consumers by taking actions like influencing scientific research and U.S. regulations. This article created such a splash that other news sources picked it up and Johnson & Johnson’s stock declined over 10% immediately after its publication. As a result of the revelations about Johnson’s Baby Powder and the company’s actions, two major lawsuits are currently pending in the U.S. District Court for the District of New Jersey, a “Products Liability Action” about personal injuries caused by the talc-based products, In re Johnson & Johnson Talcum Powder Prod. Mktg., Sales Pracs. & Prod. Liab. Litig., and a “Securities Fraud Action” alleging senior executives at the company failed to comply with federal securities disclosure laws, Hall v. Johnson & Johnson. In light of all of this, plaintiffs in this lawsuit, participants in the Johnson & Johnson ESOP, allege that the ESOP’s fiduciaries violated their duties by failing to take actions that could have protected the ESOP from the stock market ramifications of these scandals. Specifically, plaintiffs asserted that defendants could have taken one of two actions to ward off the steep stock price drop. First, they claim that defendants could have made corrective public disclosures that may well have prevented such significant stock price declines, and therefore protected the participants. Second, they argued that defendants could have stopped investing in J&J stock altogether and chosen instead to hold the ESOP contributions in cash. Defendants moved to dismiss the complaint in the district court, and the district court granted their motion, agreeing that plaintiffs’ proposed alternative actions failed the Supreme Court’s Fifth Third Bancorp v. Dudenhoeffer test, because a reasonable fiduciary would view the proposed disclosures or cash holdings as “being likely to do more harm than good to the ESOP.” Plaintiffs appealed the dismissal. In this order, the Third Circuit affirmed the lower court’s ruling agreeing that neither proposed course of action outlined in plaintiffs’ complaint passed the Dudenhoeffer test because both “would do more harm than good.” The Third Circuit recognized that this standard, requiring a plaintiff to propose an alternative course of action that is so clearly beneficial as to satisfy this requirement, “is a high bar to clear, even at the pleadings stage, especially when guesswork is involved.” Nevertheless, the Third Circuit held that this is the standard required, and plaintiffs failed to meet it. As the Third Circuit pointed out, only one post-Dudenhoeffer decision, a case in the Second Circuit, “has held that a plaintiff plausibly alleged that corrective disclosures were so clearly beneficial that no prudent corporate-insider fiduciary could have concluded that earlier corrective disclosures would have done more harm than good.” As ESOPs already exist within an exemption to ERISA’s typical diversification requirements, the post-Dudenhoeffer world poses a doubly difficult position for ESOP participants bringing these types of suits who are naturally concerned with the stability of their retirement investments. This decision then is typical and demonstrative of these difficulties, whether or not one agrees with its conclusions.

Disability Benefit Claims

Second Circuit

Baribeau v. Hartford Life & Accident Ins. Co., No. 3:20-CV-01290 (KAD), 2022 WL 4095778 (D. Conn. Sep. 7, 2022) (Judge Kari A. Dooley). Cardiovascular/thoracic surgeon Yvon Baribeau stopped working in 2019 due to a hand deformity called Dupuytren’s Disease, which he developed in both hands, and which affected his ability to safely perform surgery. Mr. Baribeau is a participant in his employer’s employee welfare benefit plan, the Catholic Medical Center long-term disability plan. He submitted a claim for benefits in February 2020. His claim was approved. However, the plan’s administrator, defendant Hartford Life and Accident Insurance Company, decided to offset Mr. Baribeau’s $15,000 in gross monthly benefits not only by the amount he was receiving from the Social Security Administration, but also by the gross monthly benefits of $10,000 he was receiving as a participant in another long-term disability income plan which was sponsored by the American Medical Association (“AMA”). This suit followed, after Hartford upheld its determination on appeal. The parties each moved for summary judgment on the issue of whether Hartford correctly offset the monthly benefits by the amount Mr. Baribeau was receiving from the AMA Plan. As the Catholic Medical Center’s plan includes a discretionary clause, the parties agreed that abuse of discretion review was applicable. Under this review standard the court concluded that Hartford’s interpretation of the plan language was rational and in keeping with the plain words of the plan. In fact, Mr. Baribeau’s explanation of how the AMA Plan could fall outside the plan’s definition of “Other Income Benefits” was, in the court’s view, the more convoluted reading of the plan which would require the court to read additional terms and requirements into the phrase “as a result of,” which the court disfavored doing. Accordingly, the court entered summary judgment in favor of Hartford.

Sixth Circuit

Alvesteffer v. Howmet Aerospace, No. 1:20-cv-703, 2022 WL 4077838 (W.D. Mich. Sep. 6, 2022) (Magistrate Judge Phillip J. Green). This February, Your ERISA Watch summarized Magistrate Judge Green’s summary judgment decision in this long-term disability benefit suit wherein plaintiff Thomas Alvesteffer challenged the termination of his benefits by his employer defendant Howmet Aerospace. The court granted in part and denied in part Mr. Alvesteffer’s motion for summary judgment. Specifically, the court concluded that the denial was arbitrary and capricious and vacated the termination decision. However, the court went on to state that Mr. Alvesteffer had failed to establish his entitlement to benefits and therefore decided to remand to defendant for reconsideration. The court expressed that it was beyond its expertise to weigh medical and vocational evidence pertaining to disability, and therefore relied on Sixth Circuit precedent supporting remand as an appropriate remedy when a court identifies problems with the decision-making process rather than when it draws the conclusion that a claimant is obviously entitlement to benefits. Mr. Alvesteffer moved for reconsideration pursuant to Federal Rule of Civil Procedure 59(e), asking the court to reconsider its decision that this matter should be remanded to defendant for further assessment of whether Mr. Alvesteffer is disabled under the plan terms. In his motion, Mr. Alvesteffer stressed that he was “not asking the Court to become a medical or vocational expert, but only to review the expert opinions already provided by (him), and if it deems those opinions to be competent and valid, to reconsider and alter or amend its opinion accordingly and award benefits.” As before, the court was unwilling to perform this function, again concluding that “it lacks the experience and expertise to evaluate such opinions or otherwise evaluate medical or vocational evidence.” The court rejected “Plaintiff’s assurances that he is ‘not asking the Court to become a medical or vocational expert,’” stating to the contrary, “this is precisely what Plaintiff is requesting.” As before, the court declined to survey the evidence of disability, and thus denied Mr. Alvesteffer’s motion for reconsideration.

Discovery

Eleventh Circuit

Prolow v. Aetna Life Ins. Co., No. 9:20-cv-80545, 2022 WL 4080743 (S.D. Fla. Sep. 6, 2022) (Magistrate Judge William Matthewman). This suit is a class action pertaining to wrongfully denied coverage for a cancer treatment known as Proton Beam Radiation Therapy. The court’s order granting summary judgment in favor of the two named plaintiffs on their individual claims for benefits was our notable decision in Your ERISA Watch’s February 2, 2022 issue. Following that order, this case has proceeded as a putative class action. The parties have engaged in numerous discovery disputes. In this order, the court denied Aetna Life Insurance Company’s motion to compel plaintiff’s two engagement letters with their counsel. Plaintiffs opposed producing their engagement letters and argued that under Eleventh Circuit case law “class representatives’ engagement letters with counsel are not discoverable, absent a showing by the defendant that a conflict of interest exists” between the class representatives and their counsel. They argued that contrary to Aetna’s belief, the engagement letters do not promise or in any way speak to incentive payments to Plaintiffs, nor do they contain any information about counsel’s hourly rate. Rather, plaintiffs attested, the engagement letters requested are standard contingency fee agreements. In support of this, plaintiffs produced the two letters for the court to review in camera. Having reviewed the engagement letters, the court confirmed the truth of plaintiff’s assertions. Furthermore, the court agreed with plaintiffs that defendant did not show that a conflict of interest exists between the two plaintiffs and their attorneys. Instead, Aetna had argued that a potential conflict exists between plaintiffs and the putative class, which the court stated is not grounds to require production of engagement agreements in the Southern District of Florida. Finally, the court held that it has not yet certified the class or made any determination on class damages, meaning the engagement letters between plaintiffs and their legal counsel is not yet “relevant under Rule 26(b)(1) at this stage of the litigation.” Accordingly, the court denied defendant’s motion due to lack of relevancy at this time but did so without prejudice. For readers interested in more information about Proton Beam Radiation Therapy litigation, be on the lookout for an article in the upcoming fall edition of the American Bar Association TIPS Newsletter, written by our colleagues at Kantor and Kantor, Anna Martin and Tim Rozelle.

Medical Benefit Claims

Second Circuit

Connecticut Gen. Life Ins. Co. v. Ogbebor, No. 3:21-cv-00954 (JAM), 2022 WL 4077988 (D. Conn. Sep. 6, 2022) (Judge Jeffrey Alker Meyer). In May 2020, Cigna Health and Life Insurance Company opened an investigation into a healthcare provider, Stafford Renal LLC, which offered dialysis treatments for end stage renal disorder (“ESRD”), believing the provider’s prices for these treatments were “significantly inflated.” During that investigation, Cigna learned that Stafford lacked a required ESRD license, as its old license had expired in 2016, and that the provider was therefore operating in violation of Texas medical licensing requirements. Additionally, Cigna claimed that it interviewed patients receiving treatment at Stafford and discovered that many of the claims for dialysis treatment that Stafford had billed for were not actually performed. Accordingly, Cigna commenced this lawsuit against the provider and its owner, Mike Ogbebor, under Section 502(a)(3) of ERISA, and also brought claims for fraudulent misrepresentation, negligent misrepresentation, and violations of the Connecticut Unfair Trade Practices Act, the Connecticut Health Insurance Fraud Act, and for civil theft. Cigna also sought to pierce the corporate veil and requested the court hold Mr. Ogbebor personally liable for the actions of his company. Mr. Ogbebor had answered Cigna’s complaint on behalf of both defendants. The court previously struck this answer with respect to Stafford because Mr. Ogbebor is a non-lawyer, and the court held that he could not represent his company in this suit. Cigna then moved for a default entry against Stafford. The court granted the default due to Stafford’s failure to appear. Cigna also moved for discovery seeking medical records, information regarding Mr. Ogbebor’s role in Stafford’s ownership and management, and Mr. Ogbebor’s legal and criminal record pertaining to past fraud. Mr. Ogbebor, despite repeated warnings from the court, failed to respond to Cigna’s discovery requests. In this order, the court granted Cigna’s motion for default judgment against both defendants based on their actions to date and awarded declaratory judgment stating that Cigna has no obligation to honor past or future claims submitted by Stafford for ESRD services, and treble monetary damages for the ESRD claims Cigna already paid Stafford, totaling $14,371,384.95 as Cigna adequately stated a claim for civil theft under insurance-friendly Connecticut law which requires such tripling. However, because Cigna was found to be entitled to legal relief in the form of damages, the court did not award anything under Cigna’s claim for equitable recoupment under Section 502(a)(3) of ERISA. Finally, the court agreed to pierce the corporate veil, finding that Cigna provided sufficient evidence for it to infer that Stafford was functioning as Mr. Ogbebor’s corporate alter-ego. The court therefore held Mr. Ogbebor personally liable for the entirety of the damages awarded to Cigna.

Ninth Circuit

RJ v. Cigna Health & Life Ins. Co., No. 5:20-cv-02255-EJD, 2022 WL 4021890 (N.D. Cal. Sep. 2, 2022) (Judge Edward J. Davila). Participants in ERISA-governed healthcare plans have brought a putative class action suit against Cigna Behavioral Health Inc. and MultiPlan, Inc. for failure to reimburse covered out of network mental health provider claims at usual, customary, and reasonable (“UCR”) rates. Plaintiffs claim that defendants engaged in a conspiracy to artificially underprice claims, wherein the insurer played an active role in collaborating and instructing MultiPlan on its “target rate” for each claim it desired to reprice, and MultiPlan utilized these instructions when designing its Viant methodology, giving the arbitrarily low prices the appearance of legitimacy. Plaintiffs asserted claims of RICO violations and RICO conspiracy against both defendants, an ERISA claim for underpayment of benefits against Cigna, and claims for breach of fiduciary duties of loyalty and duty of care against each of the two defendants under Section 502(a)(3) seeking declaratory and injunctive relief. Defendants moved to dismiss. Cigna sought dismissal of the RICO claims, and as part of its Rule 12(b)(6) motion also argued that claims of one of the named plaintiffs (“LW”) must be brought in the Western District of Tennessee in accordance with her plan’s forum selection clause. MultiPlan also sought dismissal of the RICO claims and the ERISA Section 502(a)(3) claim asserted against it. As far as the RICO claims were concerned, the court was satisfied that plaintiffs adequately pled a “violation of RICO based on the predicate acts of mail and wire fraud, but not based on the predicate act of money laundering.” Therefore, the court granted defendants’ motions for the RICO claims to the extent they were based on money laundering. MultiPlan’s motion to dismiss the ERISA claim brought against it was denied. The court was convinced that the complaint sufficiently alleges that MultiPlan is a fiduciary under ERISA, and that the same allegations that support plaintiffs’ RICO claim also support a breach of fiduciary duty claim. The court also rejected MultiPlan’s argument that plaintiffs are not entitled to equitable relief. Plaintiffs, the court held, may seek equitable relief in the alternative and it would be premature at the pleading stage “to engage in a battle over whether or not a specific equitable remedy is appropriate.” Finally, the court held that plaintiff LW’s forum selection clause was valid, and a forum selection clause could be enforced during a Rule 12(b)(6) motion to dismiss. Accordingly, the court dismissed LW’s claims from the case, holding that she must bring her claims in the Western District of Tennessee. Thus, as explained above, the motions to dismiss were granted in part and denied in part.

Pension Benefit Claims

Eleventh Circuit

Southeastern Carpenters & Millwrights Pension Tr. Fund v. Carter, No. CV 621-046, 2022 WL 4098517 (S.D. Ga. Sep. 7, 2022) (Judge J. Randal Hall). Decedent Bruce C. Jeffers was a participant in an ERISA-governed pension plan, the Southeastern Carpenters and Millwrights Pension Trust Plan. This suit is an interpleader action brought by the plan to determine the proper beneficiary of Mr. Jeffers’ pension benefits. During his life, Mr. Jeffers had named several beneficiaries at different junctures, and the last two of his beneficiary designation forms were completed while he was married but lacked his then-wife’s signature. Because of this, Mr. Jeffers left a bit of a mess behind. The story begins in 2008, when his first designation occurred. At that time, Mr. Jeffers elected his then-fiancée, defendant Robin Handly, as his primary beneficiary. It seems Mr. Jeffers and Ms. Handly never married. Instead, two years later, in 2010, Mr. Jeffers married Grace Jeffers, and Mr. Jeffers accordingly changed his beneficiary designation card and designated Ms. Jeffers as the plan’s primary beneficiary, and his stepdaughter, defendant Victoria Thames, as the plan’s contingent beneficiary. In his 2013 designation form, Mr. Jeffers attempted to designate his sister, defendant Cynthia Gail Carter, as his primary beneficiary. At the time of the 2010 and 2013 designations, Mr. Jeffers was still married to Ms. Jeffers. This was the last designation form Mr. Jeffers completed. The Jeffers divorced in 2020. Unfortunately, the plan expressly requires a married plan participant to obtain their spouse’s signature if they wish to name a beneficiary other than their spouse, and neither the 2010 nor 2013 designation form included Ms. Jeffers’ signature. Per the plan, “if a spouse is designated as a Beneficiary, such designation shall be revoked automatically by a subsequent divorce.” Thus, the 2020 divorce revoked Ms. Jeffers’ status as a beneficiary. None of the parties disputed that the 2008 beneficiary designation form was valid at the time. The parties also agreed that the 2010 designation was valid insofar as it designated Ms. Jeffers. However, the parties disputed whether (1) the 2010 contingent beneficiary designation was invalid; (2) the 2013 beneficiary designation was invalid; (3) the 2010 beneficiary designation revoked defendant Handly’s 2008 designation as a beneficiary even after the divorce; and (4) the divorce revoked defendant Thames’ status as a contingent beneficiary. Each of the defendants moved for summary judgment. The court began its analysis with the claim for benefits of defendant Carter (the sister) and concluded that the 2013 designation form, which lacked Ms. Jeffers’ signature, was invalid. Accordingly, Ms. Carter was found not to be entitled to benefits and her motion for summary judgment was denied. Next, the court concluded that the 2010 contingent beneficiary designation, which also lacked Ms. Jeffers’ signature, was also invalid, meaning defendant Thames’s (the stepdaughter’s) motion for summary judgment was denied too. Finally, the court concluded that the 2010 beneficiary form, which was valid for its primary beneficiary designation of Ms. Jeffers, because a designation of a spouse does not require the spouse’s signature, had revoked defendant Handly’s (the ex-fiancée’s) designation as beneficiary. Therefore, her motion for summary judgment was also denied. Having found that none of the defendants had been effectively named and were therefore not entitled to the benefits, the court returned the funds to the plan, and instructed the plan to distribute the funds pursuant to Section 5.14, which provides for how to pay benefits when no beneficiary or contingent beneficiary has been effectively named.

Pleading Issues & Procedure

Sixth Circuit

Schmittou v. The Cincinnati Life Ins. Co., No. 1:21-cv-556, 2022 WL 4080143 (S.D. Ohio Sep. 6, 2022) (Judge Matthew W. McFarland). On July 22, 2021, defendant The Cincinnati Life Insurance Company filed an interpleader complaint in the Court of Common Pleas of Hamilton County, Ohio against Melissa Schmittou and Pamela Schmittou to determine the proper beneficiary of a group life insurance policy belonging to decedent Timothy Schmittou. Mr. Schmittou is plaintiff Melissa Schmittou’s ex-husband and was married at the time of his death to Pamela Schmittou. Plaintiff, both in her response in the interpleader action and in her complaint in this lawsuit, which she brought on August 27, 2021, alleges that she and not Pamela Schmittou is the beneficiary of the policy and therefore she is entitled to the policy’s benefits. It should be noted that after commencing this lawsuit in the federal district court, plaintiff voluntarily dismissed her counterclaim without prejudice in the state law interpleader case. Defendant nevertheless moved to dismiss Ms. Schmittou’s case, arguing that the court should abstain from exercising jurisdiction over the case pursuant to the Colorado River abstention guidelines outlined by the Supreme Court. In response, Ms. Schmittou claimed that the motion to dismiss is moot as she voluntarily dismissed her counterclaim in the state law case. As a preliminary matter, the court stated that despite Ms. Schmittou’s failure to address the Colorado River factors in her briefing, the court found that it should consider each in turn before reaching a decision on the appropriate course of action regarding the two parallel cases. First, the court held that because the state court has not assumed jurisdiction over res or property in the case, the first of the eight factors weighed in favor of it exercising jurisdiction. Next, the court concluded that the state and federal forums were each as convenient to the parties as the another and found the second factor therefore neutral. Third, the court weighed the avoidance of piecemeal litigation factor, concluding that this factor weighed strongly in favor of abstention as there is a potential for two outcomes that are in direct conflict with one another. The court also factored that the state law interpleader case was brought first, which again favored abstention. The governing law here is federal, but the state court action could adequately resolve the issues as it enjoys concurrent jurisdiction with federal courts in ERISA actions, so the fifth factor was found to be essentially neutral. The relative progress in the proceedings was also a neutral factor, as neither case had progressed much to date. Finally, the presence of concurrent jurisdiction, as previously mentioned, weighed in favor of abstention. Thus, the court concluded that the factors set forth in Colorado River favored the court abstaining from exercising its jurisdiction. However, the court declined to dismiss the case and instead determined that a stay of proceedings pending the conclusion of the state court case was the appropriate action. Accordingly, the court stayed the federal suit until the resolution of the state court interpleader action.

Provider Claims

Second Circuit

Superior Biologics NY, Inc. v. Aetna, Inc., No. 20 CIVIL 5291 (KMK), 2022 WL 4110784 (S.D.N.Y. Sep. 8, 2022) (Judge Kenneth M. Karas). Healthcare provider Superior Biologics NY, Inc. sued a collection of ERISA-governed healthcare plans, Aetna, Inc., and its subsidiaries under Section 502(a)(1)(B) of ERISA and for promissory estoppel under New York law for underpayment of pharmacological intravenous immunoglobulin treatments it provided to covered patients. Defendants moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). They argued that each of the plans at issue includes anti-assignment provisions that preclude plaintiff from suing. The court in its order found the provisions valid and not waived by Aetna, and therefore agreed with defendants that Superior Biologics lacked standing to sue under ERISA. Accordingly, defendants’ motion to dismiss pursuant to Rule 12(b)(1) was granted. The court therefore did not consider the motion to dismiss for failure to state a claim. As Superior Biologics was already given the opportunity to pursue discovery and had already amended its complaint, the court dismissed with prejudice.

Withdrawal Liability & Unpaid Contributions

Seventh Circuit

International Bhd. of Elec. Workers v. Great Lakes Elec. Contractors, No. 21 C 5009, 2022 WL 4109718 (N.D. Ill. Sep. 8, 2022) (Judge Elaine E. Bucklo). Defendant Great Lakes Electrical Contractors, Inc. was a participating employer in plaintiff International Brotherhood of Electrical Workers Local No. 150’s multiemployer pension plan. Pursuant to a collective bargaining agreement it was required to make contributions to the fund on behalf of covered employees. Great Lakes Electrical was owned by defendant Richard P. Anderson. On June 3, 2018, Great Lakes Electrical’s collective bargaining agreement expired, and its obligation to make new contribution to the fund ended. Under the Multiemployer Pension Plan Amendments Act (“MPPAA”) of ERISA, employers who cease contributions to a multiemployer pension fund incur withdrawal liabilities, but, as relevant here, employers in the construction and building industry are exempt from withdrawal liabilities unless the employer “continues to perform work in the jurisdiction of the collective bargaining agreement…or resumes such work within 5 years after the date on which the obligation to contribute under the plan ceases.” So, when Great Lakes Electrical resumed business operations well within 5 years of the expiration of the collective bargaining agreement, the fund assessed withdrawal liability against the employer in the amount of $263,390. The fund filed this suit after Great Lakes Electrical did not make its required payments. “On July 18, 2022, the parties stipulated that (Great Lakes Electrical) was responsible for the full withdrawal liability assessed by the Fund, plus interest, liquidated damages, and collection costs.” The question left for the court to decide in this order was the personal liability of defendant Anderson. The fund argued that Mr. Anderson, who continued operations as an unincorporated sole proprietorship in 2021, was under common control with Great Lakes Electrical, and the fund should therefore be able to recover the withdrawal liability jointly and severally against not only Great Lakes Electrical but also personally go after Mr. Anderson. The court agreed with the fund that under the plain text of the withdrawal exemption for the construction industry a withdrawal had occurred, and the fund may impose withdrawal liability against the new entity of the employer. Holding otherwise, the court expressed, “would frustrate ‘almost the entire purpose of the (MPPAA),’ which is ‘to prevent the dissipation of assets required to secure vested pension benefits.’” Thus, in accordance with MPPAA, Mr. Anderson’s sole proprietorship became jointly and severally liable thanks to its continued covered work, and the fund’s motion for summary judgment on this issue was accordingly granted.