ERISA Survey of Federal Circuits 9781627222778, 9781627222761

Citation preview

2014 EDITION ERISA Survey of Federal Circuits BROOKS R. MAGRATTEN, EDITOR

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Cover design by Mary Anne Kulwachik/ABA Publishing. The materials contained herein represent the opinions of the authors and editors, and should not be construed to be the views or opinions of the law firms or companies with whom such persons are in partnership with, associated with, or employed by, nor of the American Bar Association or the Tort Trial & Insurance Practice Section unless adopted pursuant to the by laws of the Association. Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book is intended for educational and informational purposes only. © 2014 American Bar Association. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. For permission, contact the ABA Copyrights and Contracts Department by e-mail at [email protected] or fax at 312-988-6030, or complete the online request form at http://www.americanbar.org/utility/reprint. Library of Congress Cataloging-in-Publication Data ERISA survey of federal court / Edited by Brooks R. Magratten.—2014 edition. 3

p. cm. Includes bibliographical references and index. e-ISBN: 978-1-62722-277-8 1. Pension trusts—Law and legislation—United States. 2. United States. Employee Retirement Income Security Act of 1974. 3. Actions and defenses—United States. I. Magratten, Brooks R., 1961-editor of compilation. KF3512.E727 2011 344.7301'252—dc23 2013044086 Discounts are available for books ordered in bulk. Special consideration is given to state bars, CLE programs, and other bar-related organizations. Inquire at Book Publishing, ABA Publishing, American Bar Association, 321 N. Clark Street, Chicago, Illinois 60654-7598. www.ShopABA.org

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Contents Foreword About the Editor About the Authors CHAPTER 1 First Circuit Kristina H. Allaire Courtney D. Cruz Byrne J. Decker Joseph M. Hamilton J. Scott Kilpatrick Kyle N. Kirby I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan B. Definition of “Employee” for ERISA Purposes C. Interpretation of Safe Harbor Regulation D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan

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E. Treatment of Multiple Employer Trusts and Welfare Agreements F. De Facto Plan Administrators II. Preemption A. Scope of ERISA Preemption 1. Express Preemption 2. Conflict or Complete Preemption B. Preemption of Managed Care Claims C. Preemption of Malpractice Claims D. ERISA’s Insurance “Savings Clause” E. Preemption of State Law Equitable Claims III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? B. Exceptions to the Exhaustion Requirement C. Consequences of Failure to Exhaust D.

Minimum Number Administrative Review

of

Levels

of

E. Can a Defendant Waive a Failure-to-Exhaust Defense? 6

F. Issue Exhaustion IV. Standard of Review A. Plan Language B. Effect of Conflict of Interest or Procedural Irregularity C. Cases Interpreting MetLife v. Glenn D. Other Factors Affecting Standard of Review V. Rules of Plan Interpretation A. Application of Federal Common Law B. Application of Contra Proferentem C. Deference Afforded to an Administrator’s Interpretation of a Plan VI. Discovery in ERISA Cases A. Limitations on Discovery B. Discovery and Conflict of Interest C. The Fiduciary Exception VII. Evidence A. Scope of Evidence under Standards of Review

7

B.

Evidentiary Value Determinations

of

Social

Security

C. Effect of an Independent Medical Exam versus a Medical Record Review D. Can an Administrator Require Objective Evidence of Disability? E. Other Evidence Issues VIII. Procedural Aspects of ERISA Practice A. Appropriate Defendant B. Methods of Adjudication C. Reported ERISA Trials D. Special Procedures for ERISA Benefit Cases IX. Remedies A. Remedies for Benefits Owed B. Remedies for Breach of Fiduciary Duty X. Fiduciary Liability Claims A. Definition of Fiduciary B. Definition of Fiduciary Duties

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C. Fiduciary Liability in the Context of Health and Disability Claims D. Contribution and Indemnity Claims among Fiduciaries E. ERISA Claims against Nonfiduciaries XI. Attorneys’ Fees A. Introduction B. Criteria for Awarding Attorneys’ Fees C. Fees Awarded to Plan Fiduciaries D. Calculation of Attorneys’ Fees XII. ERISA Regulations XIII. Cases Limitation

Interpreting

ERISA

Statutes

of

XIV. Subrogation Litigation XV. Miscellaneous A. Unique Substantive or Procedural Rules for ERISA Cases B. Unique Approach to Common Policy-Based Defenses

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C. Delegation of Discretionary Authority D. Supplementing the Administrative Record on Remand E. Other Miscellaneous Issues CHAPTER 2 Second Circuit Michael H. Bernstein Vaughan Finn Kelly Smith Hathorn Bryanne Kelleher Matthew P. Mazzola I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan B. Definition of “Employee” for ERISA Purposes C. Interpretation of Safe Harbor Regulation D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan E. Treatment of Multiple Employer Trusts and Welfare Agreements F. De Facto Plan Administrators

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II. Preemption A. Scope of ERISA Preemption B. Preemption of Managed Care Claims C. Preemption of Malpractice Claims D. Other Preemption Issues III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? B. Exceptions to the Exhaustion Requirement C. Consequences of Failure to Exhaust D.

Minimum Number Administrative Review

of

Levels

of

IV. Standard of Review A. Plan Language B. What Standard of Review Applies C. Effect of Conflict of Interest or Procedural Irregularity D. Other Factors Affecting Standard of Review V. Rules of Plan Interpretation

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A. Application of Federal Common Law B. Application of Contra Proferentem C. Deference Afforded to an Administrator’s Interpretation of a Plan D. Other Rules of Plan or Contract Interpretation VI. Discovery A. Limitations on Discovery B. Discovery and Conflict of Interest VII. Evidence A. Scope of Evidence under Standards of Review B.

Evidentiary Value Determinations

of

Social

Security

VIII. Procedural Aspects of ERISA Practice A. Proper Defendants in a Claim for Benefits under ERISA B. Methods of Adjudication C. Reported ERISA Trials IX Remedies

12

A. Remedies Available for Claimants under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B) B. Remedies for Claims under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3) X. Fiduciary Liability Claims A. Definition of Fiduciary B. Definition of Fiduciary Duties C. Fiduciary Liability in the Context of Health and Disability Claims D. Contribution and Indemnity Claims among Fiduciaries E. ERISA Claims against Nonfiduciaries XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees B. Fees Awarded to Plan Fiduciaries C. Calculation of Attorneys’ Fees D. Who May Be Reimbursed for Attorneys’ Fees? XII. ERISA Regulations

13

XIII. Cases Limitation

Interpreting

ERISA

Statutes

of

XIV. Subrogation Litigation XV. Miscellaneous A. Awarding Prejudgment Interest B. Class Actions C. Objective Proof of Subjective Complaints of Pain D. Relapsing Conditions CHAPTER 3 Third Circuit Joshua Bachrach Randi F. Knepper Valerie G. Kesedar Heather J. Austin I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan B. Definition of “Employee” for ERISA Purposes C. Interpretation of Safe Harbor Regulation

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D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan E. Treatment of Multiple Employer Trusts and Welfare Agreements F. De Facto Plan Administrators II. Preemption A. Scope of ERISA Preemption B. Preemption of Managed Care and Malpractice Claims C. Other Preemption Issues III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? B. Exceptions to the Exhaustion Requirement C. Consequences of Failure to Exhaust D. Is There a Distinction between Issue and Claim Exhaustion? E. Minimum Number of Levels of Administrative Review F. Can a Defendant Waive a Failure-to-Exhaust Defense?

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IV. Standard of Review A. Plan Language B. What Standard of Review Applies? C. Effect of Conflict of Interest or Procedural Irregularity D. Other Factors Affecting Standard of Review V. Rules of Plan Interpretation A. Application of Federal Common Law B. Application of Contra Proferentem C. Deference Afforded to an Administrator’s Interpretation of a Plan D. Other Rules of Plan or Contract Interpretation VI. Discovery A. Limitations on Discovery B. Discovery and Conflict of Interest VII. Evidence A. Scope of Evidence under Standards of Review B.

Evidentiary Value Determinations 16

of

Social

Security

C. Other Evidence Issues D. Use of an IME instead of a Paper Review E. When May a Plan Require Objective Evidence? VIII. Procedural Aspects of ERISA Practice A. Methods of Adjudication B. Reported ERISA Trials IX. What Remedies Are Available under ERISA A. Remedies Available under § 502(a)(1)(B) B. Remedies Available under § 502(a)(3) C. Remedies after Cigna v. Amara X. Fiduciary Liability Claims A. Definition of Fiduciary B. Definition of Fiduciary Duties C. Permissibility of Simultaneous Claims under ERISA § 502(a)(1)(B) and § 502(a)(3) D. Fiduciary Liability in the Context of Health and Disability Claims E. Remedies for Breach of Fiduciary Duty 17

F. Contribution and Indemnity Claims among Fiduciaries G. ERISA Claims against Nonfiduciaries XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees B. Fees Awarded to Plan Fiduciaries C. Calculation of Attorneys’ Fees XII. ERISA Regulations XIII. Cases Limitation

Interpreting

ERISA

XIV. Subrogation Litigation XV. Miscellaneous CHAPTER 4 Fourth Circuit Bryan D. Bolton George K. Evans, Jr. Marianna M. Jasiukaitis E. Ford Stephens Erna A. P. Womble I. What Constitutes an ERISA Plan?

18

Statutes

of

A. Determining the Existence of an Employee Welfare Benefit Plan B. Definition of “Employee” for ERISA Purposes C. Interpretation of Safe Harbor Regulation D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan E. Treatment of Multiple Employer Trusts and Welfare Agreements F. Treatment of Individual Business Owners G. De Facto Plan Administrators II. Preemption A. Scope of ERISA Preemption B. ERISA Savings Clause C. Conflict Preemption D. Preemption of Managed-Care Claims E. Preemption of Malpractice Claims F. Preemption of Independent Review Statutes G. Other Preemption Issues III. Exhaustion of Administrative Remedies 19

A. Is Exhaustion an Absolute Requirement? B. Exceptions to the Exhaustion Requirement C. Consequences of Failure to Exhaust D. Issue v. Claim Exhaustion E. Can a Defendant Waive a Failure-to-Exhaust Defense? IV. Standard of Review A. Plan Language B. What Standard of Review Applies? C. Effect of Conflict of Interest or Procedural Irregularity D. Standard of Review for Self-Funded Plans E. Other Factors Affecting Standard of Review V. Rules of Plan Interpretation A. Application of Federal Common Law B. Application of Contra Proferentem C. Deference Afforded to an Administrator’s Interpretation of a Plan D. Other Rules of Plan or Contract Interpretation 20

E. Plan Documents Rule VI. Discovery A. Limitations on Discovery B. Discovery and Conflict of Interest C. Limited Types of Discovery Permitted D. Fiduciary Exception to Claims of Privilege VII. Evidence A. Scope of Evidence under Standards of Review 1. Abuse of Discretion Standard 2. De Novo Standard B. Particular Types of Evidence C.

Evidentiary Value Determinations

of

Social

Security

D. An IME versus Paper Review E. Objective versus Subjective Evidence VIII. Procedural Aspects of ERISA Practice A. Correct Defendant in an Action for ERISA Benefits

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B. Methods of Adjudication C. Reported ERISA Trials D. Jury Trials E. Special Procedures for ERISA Benefit Cases IX. Remedies A. Award of Benefits and Interest B. Equitable Relief for Plan Beneficiaries X. Fiduciary Liability Claims A. Definition of Fiduciary B. Definition of Fiduciary Duties C. Fiduciary Liability in the Context of Health and Disability Claims D. Remedies for Breach of Fiduciary Duty E. Contribution and Indemnity Claims among Fiduciaries F. ERISA Claims against Nonfiduciaries XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees

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B. Fees Awarded to Plan Fiduciaries C. Calculation of Attorneys’ Fees XII. ERISA Regulations A. Cases Interpreting the Regulations XIII. Cases Limitation

Interpreting

ERISA

Statutes

of

A. Limitation Periods B. Contractual Limitation Periods C. When the Limitation Period Accrues XIV. Subrogation Litigation XV. Miscellaneous A. Unique Substantive or Procedural Rules for ERISA Cases B. Unique Approach to Common Policy-Based Defenses C. ERISA Class Actions D. Jurisdictional Removal CHAPTER 5 Fifth Circuit 23

Jennifer M. Lawrence Virginia N. Roddy Kelly D. Simpkins Hon. Stephen W. Smith I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan B. Definition of “Employee” for ERISA Purposes C. Interpretation of Safe Harbor Regulation D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan E. Treatment of Multiple Employer Trusts and Welfare Agreements F. De Facto Plan Administrators II. Preemption A. Scope of ERISA Preemption B. Complete versus Ordinary Preemption C. Preemption of Health Care Benefit Claims III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement?

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B. Exceptions to the Exhaustion Requirement C. Consequences of Failure to Exhaust D.

Minimum Number Administrative Review

of

Levels

of

E. Can a Defendant Waive a Failure-to-Exhaust Defense? IV. Standard of Review A. Plan Language B. What Standard of Review Applies? C. Effect of Conflict of Interest or Procedural Irregularity D. Other Factors Affecting Standard of Review V. Rules of Plan Interpretation A. Application of Federal Common Law B. Application of Contra Proferentem C. Other Rules of Plan or Contract Interpretation D. Effect of Plan Amendments on Pending Claims VI. Discovery

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A. Limitations on Discovery B. Discovery and Conflict of Interest VII. Evidence A. Scope of Evidence under Standards of Review B.

Evidentiary Value Determinations

of

Social

Security

C. Other Evidence Issues VIII. Procedural Aspects of ERISA Practice A. Methods of Adjudication B. Reported ERISA Trials IX. Fiduciary Liability Claims A. Definition of Fiduciary B. Definition of Fiduciary Duties C. Fiduciary Liability in the Context of Health and Disability Claims D. Remedies for Breach of Fiduciary Duty E. Contribution and Indemnity Claims among Fiduciaries F. ERISA Claims against Nonfiduciaries 26

X. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees B. Fees Awarded to Plan Fiduciaries C. Calculation of Attorneys’ Fees XI. ERISA Regulations XII. Cases Interpreting Limitation

ERISA

XIII. Subrogation Litigation VIV. Miscellaneous A. Procedural Rules B. Common Policy-Based Defenses C. ERISA Class Actions D. Risk of Relapse Cases E. Jurisdiction and Removal CHAPTER 6 Sixth Circuit Robert D. Anderle Jessica Handlos S. Russell Headrick 27

Statutes

of

Eric Setterlund V. Austin Shaver I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan B. Definition of “Employee” for ERISA Purposes C. Interpretation of Safe Harbor Regulation D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan E. Treatment of Multiple Employer Trusts and Welfare Agreements F. Treatment of a Merger Agreement between Employers G. Recognition of De Facto Plan Administrators II. Preemption A. Scope of ERISA Preemption B. Preemption of Malpractice and Managed Care Claims C. State Rules Prohibiting Discretionary Clauses Not Preempted

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D. Other Preemption Issues III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? B. Exceptions to the Exhaustion Requirement C. Consequences of Failure to Exhaust D. Issue Exhaustion versus Claim Exhaustion E. Minimum Number of Levels of Administrative Review F. Can a Defendant Waive a Failure-to-Exhaust Defense? G. Failure to Utilize and Exhaust Administrative Remedies Cannot Be Used to Revive a TimeBarred Claim IV. Standard of Review A. Plan Language B. What Standard of Review Applies? C. Effect of Conflict of Interest or Procedural Irregularity D. Other Factors Affecting Standard of Review

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V. Rules of Plan Interpretation A. Application of Federal Common Law B. Application of Contra Proferentem C. Deference Afforded to an Administrator’s Interpretation of a Plan D. Other Rules of Plan or Contract Interpretation VI. Discovery A. Limitations on Discovery B. Discovery and Conflict of Interest C. Must a Plaintiff Make a Prima Facie Showing in Order to Get Discovery? D. What Types of Discovery Are Permitted? E. Does the Sixth Circuit Recognize the Fiduciary Exception to Claims of AttorneyClient Privilege? VII. Evidence A. Scope of Evidence under Standards of Review B. Evidentiary Value and Burden of Production of Social Security Determinations

30

C. Effect of an IME versus Paper Review D.

Under What Circumstances May an Administrator Require Objective Evidence?

VIII. Procedural Aspects of ERISA Practice A. Who Is the Correct Defendant in an Action for ERISA Benefits? B. Methods of Adjudication C. Reported ERISA Trials/Jury Trials D. Special Procedures for ERISA Benefit Cases IX. Remedies A.

Under § 502(a)(1)(B) 1132(a)(1)(B)]

[29

U.S.C.

B. Under § 502(a)(3) [29 U.S.C. § 1132(a)(3)] C. Cases Addressing Cigna Corp. v. Amara X. Fiduciary Liability Claims A. Definition of Fiduciary B. Definition of Fiduciary Duties

31

§

C. Fiduciary Liability in the Context of Health and Disability Claims and Prosecution of § 1132(a)(1)(B) and § 1132(a)(3) Claims D. Remedies for Breach of Fiduciary Duty E. Contribution and Indemnity Claims among Fiduciaries F. ERISA Claims against Nonfiduciaries XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees B. Fees Awarded to Plan Fiduciaries C. Fees Awarded When Plaintiffs Lack Standing D. Calculation of Attorneys’ Fees XII. ERISA Regulations XIII. Cases Limitation

Interpreting

XIV. Subrogation Litigation XV. Miscellaneous CHAPTER 7 Seventh Circuit

32

ERISA

Statutes

of

Kristen Carroll Mark D. Debofsky Mark E. Schmidtke I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan B. Definition of “Employee” for ERISA Purposes C. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan D. Treatment of Multiple Employer Trusts and Welfare Agreements II. Preemption A. Scope of ERISA Preemption B. Preemption of Managed Care Claims C. Preemption of Malpractice Claims D. Other Preemption Issues III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? B. Exceptions to the Exhaustion Requirement

33

C. Consequences of Failure to Exhaust D.

Minimum Number Administrative Review

of

Levels

of

E. Can a Defendant Waive a Failure-to-Exhaust Defense? F. Issue Exhaustion versus Claim Exhaustion G. Is Exhaustion Required before Asserting a Counterclaim? IV. Standard of Review A. Plan Language B. What Standard of Review Applies? C. Effect of Conflict of Interest or Procedural Irregularity D. Other Factors Affecting Standard of Review E. Delegation of Discretionary Authority F. Effect of State Bans on Discretionary Clauses V. Rules of Plan Interpretation A. Application of Federal Common Law B. Application of Contra Proferentem

34

C. Deference Afforded to an Administrator’s Interpretation of a Plan D. Other Rules of Plan or Contract Interpretation VI. Discovery A. Limitations on Discovery B. Discovery and Conflict of Interest VII. Evidence A. Scope of Evidence under Standards of Review B.

Evidentiary Value Determinations

of

Social

C. IME versus Paper Review D. Objective Evidence Requirement VIII. Procedural Aspects of ERISA Practice A. Proper Defendants B. Methods of Adjudication C. Reported ERISA Trials D. Jury Trials IX. Remedies

35

Security

X. Fiduciary Liability Claims A. Definition of Fiduciary B. Definition of Fiduciary Duties C. Fiduciary Liability in the Context of Health and Disability Claims D. Remedies for Breach of Fiduciary Duty E. Contribution and Indemnity Claims among Fiduciaries F. ERISA Claims against Nonfiduciaries XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees B. Fees Awarded to Plan Fiduciaries C. Calculation of Attorneys’ Fees XII. ERISA Regulations XIII. Cases Limitation

Interpreting

XIV. Subrogation Litigation XV. Miscellaneous

36

ERISA

Statutes

of

A. Unique Approach to Common Policy-Based Defenses B. Other Miscellaneous Issues CHAPTER 8 Eighth Circuit Matthew Shorey Terrance J. Wagener I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan B. Definition of “Employee” for ERISA Purposes C. Interpretation of Safe Harbor Regulation D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan E. Treatment of Multiple Employer Trusts and Welfare Agreements F. Treatment of Individual Business Owners G. De Facto Plan Administrators II. Preemption

37

A. Scope of ERISA Preemption 1. State Law Claims 2. Savings Clause B. Conflict Preemption C. Preemption of Managed Care Claims D. Preemption of Malpractice Claims E. State Independent Review Statutes F. Preemption of Equitable Claims and Defenses, Such as Waiver and Estoppel III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? B. Exceptions to the Exhaustion Requirement 1. Futility Exception 2. Denial of Meaningful Access to Procedures 3. Rapid and Life-Threatening Illness C. Consequences of Failure to Make a Timely Request for Administrative Review D.

Minimum Number Administrative Review 38

of

Levels

of

E. Can a Defendant Waive a Failure-to-Exhaust Defense? IV. Standard of Review A. Plan Language B. What Standard of Review Applies? 1. Abuse of Discretion 2. De Novo 3. Sliding Scale C. Effect of Conflict of Interest or Procedural Irregularity 1. Conflict of Interest 2. Procedural Irregularity D. Other Factors Affecting Standard of Review V. Rules of Plan Interpretation A. Application of Federal Common Law B. Application of Contra Proferentem C. Deference Afforded to an Administrator’s Interpretation of a Plan D. Other Rules of Plan or Contract Interpretation 39

1. Ordinary Meaning 2. Vesting of Benefits 3. Proper Beneficiary Designation VI. Discovery A. Limitations on Discovery 1. Abuse of Discretion Standard of Review 2. De Novo Standard of Review 3. Fiduciary Exception B. Discovery and Conflict of Interest VII. Evidence A. Scope of Evidence under Standards of Review B. Objective Evidence C.

Evidentiary Value Determinations

of

Social

D. Other Evidence Issues VIII. Procedural Aspects of ERISA Practice A. Proper Defendants in an ERISA Case B. Methods of Adjudication 40

Security

C. Reported ERISA Trials D. Special Procedures for ERISA Benefit Cases IX. Remedies X. Fiduciary Liability Claims A. Definition of Fiduciary B. Definition of Fiduciary Duties C. Fiduciary Liability in the Context of Health and Disability Claims D. Contribution and Indemnity Claims among Fiduciaries E. ERISA Claims against Nonfiduciaries XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees B. Fees Awarded to Plan Fiduciaries C. Calculation of Attorneys’ Fees XII. ERISA Regulations XIII. Cases Limitation

Interpreting

41

ERISA

Statutes

of

XIV. Subrogation Litigation after Great-West Life v. Knudson XV. Miscellaneous A. Unique Substantive or Procedural Rules for ERISA Benefit Cases B. Unique Approach to Common Policy-Based Defenses 1. Mental/Nervous Limitation 2. Total Disability versus Residual Disability 3. Preexisting-Condition Exclusion 4. Burden of Proof 5. Prejudgment Interest C. Other Miscellaneous Issues CHAPTER 9 Ninth Circuit Horace W. Green Jason A. James Linda M. Lawson Katherine Somervell Allison Vana

42

I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan B. Definition of “Employee” for ERISA Purposes C. Interpretation of Safe Harbor Regulation D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan E. Does the Ninth Circuit Recognize a “List Bill” Exception for Individual Policies? F. Treatment of Multiple Employer Trusts and Welfare Agreements II. Preemption A. Scope of ERISA Preemption 1. Express Preemption 2. Interpretation of “Savings Clause” Pursuant to Miller B. Conflict or Complete Preemption C. Preemption of Managed Care Claims D. Preemption of Malpractice Claims

43

E. State Independent Review Statutes F. Equitable Claims and Defenses III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? B. Exceptions to the Exhaustion Requirement C. Consequences of Failure to Make Timely Request for an Administrative Review D. Does the Ninth Circuit Distinguish between Issue and Claim Exhaustion? E. How Many Levels of Review Are Required? F. Can a Defendant Waive a Failure-to-Exhaust Defense? IV. Standard of Review A. Plan Language B. What Standard of Review Applies? C. Effect of Conflict of Interest or Procedural Irregularity D. Does MetLife v. Glenn Apply to Self-Funded Plans or TPAs?

44

E. What Evidence Is Required to Establish a Conflict of Interest? Can a Conflict Be Implied? F. Other Factors Affecting Standard of Review 1. Timeliness 2. Discretionary Clauses V. Rules of Plan Interpretation A. Application of Federal Common Law B. Application of Contra Proferentem C. Deference Afforded to an Administrator’s Interpretation of a Plan D. Other Rules of Plan or Contract Interpretation E. Effect of Plan Amendment on Pending Claims, Both Substantive and Procedural VI. Discovery A. Limitations on Discovery Based on the Standard of Review B. Discovery and Conflict of Interest C. Must Plaintiff Make a Prima Facie Showing in Order to Get Discovery?

45

D. What Types of Discovery Are Permitted (E.g., Medical Review Vendors, Employee Compensation, Claim Statistics, etc.)? E. Has the Ninth Circuit Recognized the Fiduciary Exception to Claims of Privilege? VII. Evidence A. Is the Scope of Evidence under the Deferential Standard of Review Limited to the Administrative Record? B.

Evidence Permitted under De Novo Review—In What Circumstances Will the Court Look beyond the Administrative Record?

C. What if There Is a Dispute over the Composition of the Administrative Record? D.

Evidentiary Value Determinations

of

Social

Security

E. Who Bears the Burden of Obtaining Social Security Information? F. Effect of an IME versus Paper Review G. In What Circumstances May an Administrator Require Objective Evidence? VIII. Procedural Aspects of ERISA Practice

46

A. Who Is the Correct Defendant in an ERISA Benefits Case? B. Methods of Adjudication 1. Are ERISA Cases Typically Resolved on Summary Judgment? 2. Does the Circuit Recognize Motions for Judgment on a Stipulated Record? C. Are ERISA Trials Appropriate? Under What Circumstances? D. Are Jury Trials Permitted under any Circumstances? E. Has the Ninth Circuit Developed Any Special Procedures for ERISA Benefits Cases? IX. Remedies A. Remedies under ERISA § 502(a)(1)(B) [29 U.S.C. § 1132(a)(1)(B)] B. Remedies under ERISA § 502(a)(3) [29 U.S.C. § 1132(a)(3)] C. Cases Addressing Cigna Corp. v. Amara X. Fiduciary Liability Claims A. Definition of Fiduciary

47

B. Definition of Fiduciary Duties C. Fiduciary Liability in the Context of Health and Disability Claims D.

Can a Claimant Prosecute Both 1132(a)(1)(B) and § 1132(a)(3) Claims?

§

E. Contribution and Indemnity Claims among Fiduciaries F. ERISA Claims against Nonfiduciaries XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees B. Fees Awarded to Plan Fiduciaries C. Calculation of Attorneys’ Fees XII. ERISA Regulations XIII. Cases Limitation

Interpreting

ERISA

Statutes

A. Contractual Limitations Provisions B. Accrual of Statute of Limitations XIV. Subrogation Litigation XV. Miscellaneous

48

of

Notes CHAPTER 10 Tenth Circuit David N. Kelley Cristin J. Mack Scott Petersen Gillian Dale I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan B. Definition of “Employee” for ERISA Purposes C. Interpretation of Safe Harbor Regulation D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan E. Does the Tenth Circuit Recognize a “List Bill” Exception for Individual Policies? F. Treatment of Multiple Employer Trusts and Welfare Agreements G. Treatment of Individual Business Owners H. Recognition of De Facto Plan Administrators

49

II. Preemption A. Scope of ERISA Preemption B. Preemption of Managed Care Claims C. Preemption of Malpractice Claims D. Other Preemption Issues 1. Bad-Faith Breach of Insurance Contract 2. State Claims Handling Statutes 3. State Laws Construing Insurance Contracts 4. Other State Law Claims by Participants 5. Claims by Health Care Providers Based upon Precertification 6. Claims by Employers against Insurers and Service Providers III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? B. Exceptions to the Exhaustion Requirement C. What Are the Consequences of a Plaintiff’s Failure to Make a Timely Request for an Administrative Review?

50

D. Issue and Claim Exhaustion E. Minimum Number of Levels of Administrative Review F. Can a Defendant Waive a Failure-to-Exhaust Defense? IV. Standard of Review A. Plan Language B. What Standard of Review Applies? 1. “Abuse of Discretion” or “Arbitrary and Capricious” Standard 2. De Novo Standard C. Effect of Conflict of Interest or Procedural Irregularity D. Other Factors Affecting the Standard of Review V. Rules of Plan Interpretation A. Application of Federal Common Law B. Application of Contra Proferentem C. Deference Afforded to an Administrator’s Interpretation of a Plan

51

D. Other Rules of Plan or Contract Interpretation 1. Summary Plan Descriptions 2. Impact of Plan Amendments VI. Discovery A. Limitations on Discovery B. Discovery and Conflict of Interest VII. Evidence A. Scope of Evidence under Standards of Review 1. Arbitrary and Capricious Review 2. De Novo Review and Evidence beyond the Administrative Record B.

Evidentiary Value Determinations

of

Social

C. Third-Party Review D. Requirement of Objective Evidence VIII. Procedural Aspects of ERISA Practice A. Methods of Adjudication B. Reported ERISA Trials

52

Security

C. Special Procedures for ERISA Benefit Cases IX Remedies A. Remedies under § 502(a)(1)(B) [29 U.S.C. § 1132(a)(1)(B)] B Remedies under § 502(a)(3) [29 U.S.C. § 1132(a)(3)] C Tenth Circuit Decisions Addressing CIGNA Corp. v. Amara X. Fiduciary Liability Claims A. Definitions of Fiduciary B. Definition of Fiduciary Duties C. Fiduciary Liability in the Context of Health and Disability Claims D. Contribution and Indemnity Claims among Fiduciaries E. ERISA Claims against Nonfiduciaries XI. Attorney Fees A. Criteria for Awarding Attorney Fees B. Fees Awarded to Plan Fiduciaries

53

C. Calculation of Attorneys’ Fees XII. ERISA Regulations A. Interpretation of ERISA Regulations on Claims Procedure B.

Impact of Procedural Substantive Determinations

Violations

on

XIII. Cases Interpreting Statute of Limitations in ERISA Cases XIV Subrogation Litigation XV. Miscellaneous A. Burden of Proof on Insurer for Exclusionary Clauses B. Ambiguities Construed against Drafter C. No Right to Jury Trials D. Availability of Prejudgment Interest E. Risk of Relapse as Basis for Disability Claim Notes CHAPTER 11 Eleventh Circuit

54

Russell Buhite Kenton J. Coppage Anthony H. Pelle Aaron E. Pohlmann I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan B. Definition of “Employee” for ERISA Purposes C. Interpretation of Safe Harbor Regulation D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan E. Treatment of Multiple Employer Trusts and Welfare Agreements F. De Facto Plan Administrators II. Preemption A. Scope of ERISA Preemption B. Preemption of Managed Care Claims C. Preemption of Malpractice Claims D. Preemption of Equitable Claims and Defenses 1. Promissory Estoppel Claims

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2. Equitable Estoppel Claims 3. Waiver Claims E. Other Preemption Issues III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? B. Exceptions to the Exhaustion Requirement C. Consequences of Failure to Timely Seek an Administrative Review D. Application to Claims for Breach of Fiduciary Duty E. Issue versus Claim Exhaustion F. Levels of Administrative Review Required G. Waiver IV. Standard of Review V. Rules of Plan Interpretation A. Application of Federal Common Law B. Application of Contra Proferentem C. Other Rules of Plan or Contract Interpretation

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VI. Discovery A. Limitations on Discovery B. Discovery and Conflict of Interest C. Discovery Regarding Other Issues D. Fiduciary Exception to Privilege VII. Evidence A. Scope of Evidence under Standards of Review 1. De Novo Standard of Review 2. Arbitrary and Capricious Standard of Review B. Other Evidence beyond the Administrative Record C.

Evidentiary Value Determinations

of

D. Treating Physician Rule VIII. ERISA Procedural Issues A. Methods of Adjudication B. No Right to Jury Trial C. Admissibility of Evidence 57

Social

Security

D. Ambiguous Plan Language and Extrinsic Evidence E. Social Security Determinations F. Reported Trials G. ERISA Class Actions H. Proper Party Defendant IX. Remedies X. Fiduciary Liability Claims A. Definition of Fiduciary 1. Employers 2. Corporate Officers 3. Insurers 4. Third-Party Plan Administrators 5. Banks 6. Legal Counsel 7. Investment Advisors 8. Plan Participants B. Fiduciary Duties Defined 58

C. Fiduciary Liability in the Health and Disability Context D. Claims under § 1132(a)(1)(B) and § 1132(a)(3) E. Contribution and Indemnity F. Liability of Nonfiduciaries XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees B. Fees Awarded to Plan Fiduciaries C. Settling Parties and Fees D. Prelitigation Fees E. Calculation of Attorneys’ Fees F. Class-Action Fees XII. ERISA Regulations XIII. Cases Limitation

Interpreting

ERISA

Statutes

XIV. Subrogation and Reimbursement Litigation XV. Miscellaneous

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of

A. How Does the Eleventh Circuit Award and Calculate Prejudgment Interest? B. ERISA Class Actions C. Removal of ERISA Cases Notes CHAPTER 12 D.C. Circuit Meredith Gage Glenn Merten Will E. Wilder I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan B. Definition of “Employee” for ERISA Purposes C. Interpretation of Safe Harbor Regulation D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan E. Treatment of Multiple Employer Trusts and Welfare Agreements F. Treatment of Individual Business Owners

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G. De Facto Plan Administrators II. Preemption A. Scope of ERISA Preemption B. Preemption of Managed Care and Malpractice Claims C. Other Preemption Issues III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? B. Exceptions to the Exhaustion Requirement C. Consequences of Failure to Make a Timely Request for an Administrative Review D. Issue versus Claim Exhaustion E. Minimum Number of Levels of Administrative Review F. Can a Defendant Waive a Failure-to-Exhaust Defense? IV. Standard of Review A. Plan Language B. What Standard of Review Applies?

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C. Effect of Conflict of Interest or Procedural Irregularity D. Other Factors Affecting Standard of Review V. Rules of Plan Interpretation A. Application of Federal Common Law B. Application of Contra Proferentem C. Deference Afforded to an Administrator’s Interpretation of a Plan D. Other Rules of Plan or Contract Interpretation VI. Discovery A. Limitations on Discovery B. Discovery and Conflict of Interest VII. Evidence A. Scope of Evidence under Standards of Review B.

Evidentiary Value Determinations

of

Social

C. Other Evidentiary Issues 1. Denial Notices 2. Federal Common Law: Remedies 62

Security

3. Objective Medical Evidence 4. IME v. Paper Review VIII. Procedural Aspects of ERISA Practice A. Methods of Adjudication B. Reported ERISA Trials C. Special Procedures for ERISA Benefit Cases IX. Remedies A. Claims for Benefits B. Breach of Fiduciary Duty X. Fiduciary Liability Claims A. Definition of Fiduciary B. Definition of Fiduciary Duties C. Fiduciary Liability in the Context of Health and Disability Claims D. Contribution and Indemnity Claims among Fiduciaries E. ERISA Claims against Nonfiduciaries XI. Attorneys’ Fees

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A. Criteria for Awarding Attorneys’ Fees B. Fees Awarded to Plan Fiduciaries C. Calculation of Attorneys’ Fees XII. ERISA Regulations XIII. Cases Limitation

Interpreting

ERISA

XIV. ERISA Subrogation Litigation XV. Miscellaneous Table of Cases Index

64

Statutes

of

Foreword This book is a project of the Health and Disability Insurance Law Committee of the Tort, Trial and Insurance Practice Section of the American Bar Association. The Committee consists of practitioners representing plaintiffs and defendants nationwide in health and disability insurance cases. This book is intended to address a wide variety of substantive and procedural issues that arise in litigation under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq. (ERISA). For the original volume published in 2005, Committee volunteers from each of the federal circuits agreed to write on several substantive and procedural ERISA issues. These volunteers were organized into teams and asked to write on the law of their respective circuits. ERISA law can change suddenly and dramatically. For this reason the Committee has published updates every two to three years. For this fifth edition Committee members discussed the law of their respective circuits according to the following outline: I. What Constitutes an ERISA Plan? What rules or tests does your circuit apply to determine whether an employee benefit plan exists?

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How does your circuit define “employees” for ERISA purposes? How has your circuit interpreted the “safe harbor” regulation? How much employer involvement is required to sustain an employee welfare benefit plan? Treatment of multiple employer trusts or welfare agreements Treatment of individual business owners Does your circuit recognize de facto plan administrators? Under what circumstances? II. Preemption What is the scope of ERISA preemption as defined by your circuit? Please comment on: • express preemption under NY State Blue Cross Plans v. Travelers; • interpretation of the insurance savings clause pursuant to Kentucky Health Plans v. Miller; and • the scope of conflict preemption under Davilla. Preemption of managed care claims Preemption of malpractice claims State independent review statutes

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Preemption of equitable claims and defenses, such as waiver and estoppel III. Exhaustion of Administrative Remedies Is exhaustion an absolute requirement? Does your circuit recognize a futility exception? Other exceptions? What are the consequences of a plaintiff’s failure to make a timely request for an administrative review? Does your circuit distinguish between issue and claim exhaustion? How many levels of administrative review are required? Can a defendant waive a failure-to-exhaust defense? IV. Standard of Review What kind of plan language satisfies Firestone criteria? What standards of review does your circuit apply in ERISA cases? Did Glenn alter the test(s) adopted in your circuit?

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How do conflicts of interest or procedural irregularities affect the standard of review? Cases interpreting MetLife v. Glenn. Does it apply to self-funded plans or TPAs? What evidence is required to establish a conflict of interest? Can a conflict be implied? What factors, other than plan language or a conflict, can affect the standard of review? Effect of state insurance laws on standard of review • Are state bans on discretionary clauses preempted? Possible impact of ERISA regulations on standard of review V. Rules of Plan Interpretation Is it subject to federal common law? Does your circuit apply contra proferentem? Under what circumstances? Is an administrator’s interpretation of a plan entitled to deference? Other rules of plan or contract interpretation Effect of plan amendments on pending claims, both substantive and procedural 68

VI. Discovery Does your circuit recognize limitations on discovery in ERISA cases? Does it depend on the standard of review? Is discovery permitted to prove conflict of interest or degree of conflict of interest? Must a plaintiff make a prima facie showing in order to get discovery? What types of discovery are permitted (i.e., medical review vendors, employee compensation, claim statistics, etc.)? Has your circuit recognized the Fiduciary Exception to claims of privilege? VII. Evidence Is the scope of evidence under a deferential standard of review limited to the administrative record? Evidence permitted under de novo review Under what circumstances will a court look beyond the administrative record? What if there is a dispute over the composition of the administrative record?

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What is the evidentiary value, if any, of Social Security determinations? • Who bears the burden of obtaining Social Security information? Effect of an IME versus paper review Under what circumstances may an administrator require objective evidence? VIII. Procedural Aspects of ERISA Practice Who is the correct defendant in an action for ERISA benefits? Are ERISA cases typically resolved on summary judgment? • Does the circuit recognize motions for judgment on a stipulated record? Are ERISA trials appropriate? Under what circumstances? Are jury circumstances?

trials

permitted

Has your circuit developed procedures for ERISA benefit cases? IX. Remedies

70

under any

any

special

Under § 1132(a)(1)(B)]

502(a)(1)(B)

[29

U.S.C.

§

Under § 502(a)(3) [29 U.S.C. § 1132(a)(3)] Cases addressing Cigna Corp. v. Amara. X. Fiduciary Liability Claims Who is a fiduciary? How does your circuit define fiduciary duties? Does fiduciary liability arise in the context of health and disability claims? • Can a claimant prosecute both § 1132(a)(1)(B) and § 1132(a)(3) claims? Does your circuit allow claims for contribution and indemnity among fiduciaries? Does your circuit recognize ERISA claims against nonfiduciaries? XI. Attorneys’ Fees What are your circuit’s stated criteria for awarding attorneys’ fees under 29 U.S.C. § 1132(g)? Have fees been awarded to plan fiduciaries? How are fees calculated? 71

XII. ERISA Regulations Cases interpreting current regulations Cases interpreting old regulations that may form a basis for interpreting current regulations What is the impact of procedural violations on the court’s review of substantive determinations? XIII. Cases Interpreting ERISA Statutes of Limitation Does the circuit enforce contractual limitations provisions? When does the limitations period accrue? XIV. Subrogation Litigation How has your circuit handled subrogation claims after Knudson and Sereboff? XV. Miscellaneous Has your circuit developed any unique substantive or procedural rules for ERISA benefit cases? Has your circuit developed a unique approach to common policy-based defenses such as mental/ nervous conditions, residual versus total disability, and so forth?

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Does your circuit favor or disfavor ERISA class actions? Have class actions been certified in ERISA cases? Any unusual or unique rulings concerning jurisdiction or removal? The resulting compendium provides a convenient reference of the law of various circuits to the ERISA practitioner. This volume is an update, current to October 2013. The outline addresses issues that frequently arise in the prosecution and defense of claims for ERISAregulated benefits. As you will see, circuits can vary significantly in their approach to substantive and procedural ERISA issues. Many thanks to the contributing authors, who are identified at the beginning of their respective chapters. These individuals devoted significant time and effort to making this compendium a valuable publication. The Committee may produce additional updates as ERISA law continues to evolve. We welcome comments from readers on the content and format of this Survey. Brooks R. Magratten Pierce Atwood, LLP 72 Pine Street, 5th Floor Providence, RI 02903 (401) 490-3422 [email protected]

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About the Editor Brooks R. Magratten is a partner in Pierce Atwood, LLP’s Providence, Rhode Island, and Boston, Massachusetts, offices. He represents insurers and fiduciaries in ERISA litigation in the northeastern United States. He is the former Chair of the Health and Disability Insurance Law Committee of the Tort, Trial and Insurance Practice Section (TIPS) of the ABA and the former chair of DRI’s Life, Health & Disability Committee. Mr. Magratten is a frequent author and lecturer on life, health, and disability insurance and ERISA topics. He is an adjunct professor of Federal Practice at the Roger Williams Law School.

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About the Authors FIRST CIRCUIT Courtney D. Cruz Joseph M. Hamilton Mirick O’Connell 100 Front Street Worcester, MA 01603 (508) 791-8500 Byrne J. Decker Kyle N. Kirby Pierce Atwood LLP 254 Commercial Street Merrill’s Wharf Portland, ME 04101 (207) 791-1100 J. Scott Kilpatrick

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Chisholm Chisholm & Kilpatrick, Ltd. 1100 Turks Head Place Providence, RI 02903 (401) 331-6300 Kristina H. Allaire Unum Group 1 Mercantile Street (5A-03) Worcester, MA 01608 (774) 437-5418 SECOND CIRCUIT Michael H. Bernstein Matthew P. Mazzola Sedgwick, LLP 225 Liberty Street, 28th Floor New York, NY 10281-1008 (212) 422-0202 Vaughan Finn

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Kelly Smith Hathorn Bryanne Kelleher Shipman & Goodwin, LLP One Constitution Plaza Hartford, CT 06103 (860) 251-5505 THIRD CIRCUIT Randi F. Knepper Valerie G. Kesedar McElroy Deutsch Mulvaney & Carpenter, LLP 3 Gateway Center 100 Mulberry Street Newark, NJ 07102 (973) 565-2033 Heather Austin Joshua Bachrach Wilson Elser Moskowitz Edelman & Dicker, LLP

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Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106-3308 (215) 606-3906 FOURTH CIRCUIT Bryan D. Bolton Marianna Jasiukaitis Funk and Bolton, PA 36 S. Charles Street, 12th Floor Baltimore, MD 21201 (410) 659-7754 E. Ford Stephens Christian & Barton, LLP 909 E. Main Street, Suite 1200 Richmond, VA 23219 (804) 697-4124 George K. Evans, Jr.

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Erna A. P. Womble Womble Carlyle Sandridge & Rice, LLP One W. Fourth Street Winston-Salem, NC 27101 (336) 721-3723 FIFTH CIRCUIT Jennifer M. Lawrence Virginia N. Roddy Elkins, PLC 201 St. Charles Avenue, Suite 4400 New Orleans, LA 70170 (504) 529-3600 Hon. Stephen W. Smith United States Magistrate Judge Southern District of Texas Houston, TX 77002 Kelly D. Simpkins

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Wells Marble & Hurst, PLLC P.O. Box 131 Jackson, MS 39205 (601) 605-6900 SIXTH CIRCUIT Robert D. Anderle Jessica Handlos Seeley Savidge Ebert & Gourash, LPA 26600 Detroit Road Cleveland, OH 44145 (216) 566-8200 S. Russell Headrick Eric Setterlund Baker Donelson Bearman Caldwell & Berkowitz, PC 265 Brookview Centre Way, Suite 600 Knoxville, TN 37919 (865) 549-7000

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V. Austin Shaver Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 211 Commerce Street, Suite 800 Nashville, TN 37201 (615) 726-5600 SEVENTH CIRCUIT Mark E. Schmidtke Ogletree Deakins Nash Smoak & Stewart, PC 56 S. Washington Street, Suite 302 Valparaiso, IN 46383 (219) 242-8668 Kristen M. Carroll Kightlinger & Gray, LLP One Indiana Square, Suite 300 211 North Pennsylvania Street Indianapolis, IN 46204 (317) 638-4521

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Mark D. DeBofsky DeBofsky & Associates, P.C. 200 W. Madison St., Suite 2670 Chicago, Illinois 60606 (312) 561-4040 EIGHTH CIRCUIT Terrance J. Wagener Messerli & Kramer, PA 1400 Fifth Street Towers 100 S. Fifth Street Minneapolis, MN 55402-1217 (612) 672-3674 Matthew Shorey Armstrong Teasdale LLP 7700 Forsyth Blvd., Suite 1800 St. Louis, MO 63105 (314) 621-5010

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NINTH CIRCUIT Jason James Linda M. Lawson Allison Vana Meserve, Mumper & Hughes LLP 800 Wilshire Boulevard, Suite 500 Los Angeles, CA 90071-2611 (213) 620-0300 Horace W. Green Buchman Provine Brothers Smith LLP 1333 N. California Blvd., Suite 350 Walnut Creek, CA 94596 (925) 944-9700 Katherine Somervell Bullivant Houser Bailey, PC 888 SW Fifth Avenue, Suite 300 Portland, OR 97204

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(503) 499-4454 TENTH CIRCUIT David N. Kelley Scott M. Petersen Fabian & Clendenin, PC 215 S. State Street, Suite 1200 Salt Lake City, UT 84111-2323 (801) 531-8900 Gillian Dale Cristin J. Mack Hall & Evans, L.L.C. 1001 Seventeenth Street, Suite 300 Denver, Colorado 80202 (303) 628-3300 ELEVENTH CIRCUIT Russell S. Buhite Marshall Dennehey Warner Coleman & Goggin

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201 E. Kennedy Boulevard, Suite 1100 Tampa, FL 33602 (813) 898-1800. Kenton J. Coppage Aaron E. Pohlmann Smith Moore Leatherwood, LLP 1180 W. Peachtree Street NW, Suite 2300 Atlanta, GA 30309-3482 (404) 962-1000 Anthony H. Pelle Carlton Fields, PA 100 SE Second Street, Suite 4000 Miami, FL 33131 (305) 530-0050 D.C. CIRCUIT W. Glenn Merten Jorden Burt LLP

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1025 Thomas Jefferson Street, NW Suite 400 East Washington, DC 20007 (202) 965-8100 Will E. Wilder Meredith Gage Groom Law Group 1701 Pennsylvania Avenue, NW Washington, DC 20006-5811 (202) 857-0620

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CHAPTER 1 First Circuit KRISTINA H. ALLAIRE COURTNEY D. CRUZ BYRNE J. DECKER JOSEPH M. HAMILTON J. SCOTT KILPATRICK KYLE N. KIRBY I. What Constitutes an ERISA Plan? The First Circuit has adopted the Eleventh Circuit’s formulation with respect to what constitutes a plan under ERISA and it has broken down the statutory definition into the following five elements: (1) a plan, fund, or program (2) established or maintained (3) by an employer (4) for the purpose of providing medical, surgical, or hospital care, sickness, accident, disability, death, or unemployment or vacation benefits (5) to participants or their beneficiaries. Wickman v. Nw. Nat’l Ins. Co., 908 F.2d 1077, 1082 (1st Cir. 1990) (quoting Donovan v. Dillingham, 688 F.2d 1367, 1371 (11th Cir. 1982) (en banc)). A. Determining the Existence of an Employee Welfare Benefit Plan

87

A “plan, fund, or program” exists if “from the surrounding circumstances a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and the procedures for receiving benefits.” Wickman, 908 F.2d at 1082 (citing Donovan, 688 F.2d at 1373). The First Circuit has held that a “plan” can be established or maintained through purchase of insurance; however, the purchase of insurance, standing alone, is not sufficient to establish a plan. Wickman, 908 F.2d at 1082. Where an employer purchases insurance for employees, “the crucial factor in determining if a ‘plan’ has been established is whether the purchase of the insurance policy constituted an expressed intention by the employer to provide benefits on a regular and long term basis.” Id. at 1083. “Similarly, whether a reasonable employee would perceive an ongoing commitment by the employer to provide employee benefits is an important consideration.” New England Mut. Life Ins. Co. v. Baig, 166 F.3d 1, 4 (1st Cir. 1999). In Baig, the court rejected an argument to the effect that an employer’s reimbursement of premiums paid directly by the employee to the insurer was sufficient to establish a plan. The court went on to hold, however, that “when an employer deals directly with the insurer and actually purchases an insurance policy for an employee [as opposed to merely paying an employee enough to purchase his or her own insurance policy], there may be sufficient participation to meet the ‘established or maintained’ requirement under ERISA.” Id.

88

The purchase of “a group policy or multiple policies covering a class of employees offers substantial evidence that a plan … has been established.” Wickman, 908 F.2d at 1083. However, a plan is unlikely to be established where the purchase of insurance is an “isolated and aberrational incident.” Id. An employer’s distribution of a handbook or summary plan description detailing ERISA rights is “strong evidence that the employer has adopted an ERISA regulated plan.” Id. However, “the absence of such documentation should not necessarily lead to a finding that there was no plan under ERISA.” Baig, 166 F.3d at 5 n.6. Any part of a benefits plan that addresses ERISA welfare benefits is governed by ERISA. See Balestracci v. NSTAR Elec. & Gas Corp., 449 F.3d 224, 229 (1st Cir. 2006). In Balestracci, certain aspects of an early retirement plan were not governed by ERISA. Id. However, the court recognized that in a multifaceted early retirement plan, ERISA may govern only certain facets. Id. Disputes over those facets must be resolved under ERISA. Id. In determining whether a plan has been established or maintained, the First Circuit will also consider Congress’s dual purpose of reducing the threat of abuse or mismanagement and eliminating the threat of conflicting and inconsistent state and local regulation. Demars v. Cigna Corp., 173 F.3d 443, 446 (1st Cir. 1999). In Demars, the court held that “conversion policies” do not implicate Congress’s core concerns sufficiently to come 89

within ERISA’s purview. However, disputes concerning “conversion rights” under group policies are governed by ERISA, id. at 448, as are disputes arising from injuries maintained prior to the “conversion” when the original plan was still in place. See Paul Revere Life Ins. Co. v. Bromberg, 382 F.3d 33, 35 (1st Cir. 2004). In Gross v. Sun Life, __ F.3d __, 2013 WL 4305006 (1st Cit. Aug. 16, 2013), the plaintiff argued that employer’s long-term disability policy, which was voluntary and employee funded, was not an ERISA plan. Plaintiff sought to isolate the long-term disability policy from the remaining insurance benefits available to separately evaluate whether ERISA applied to it. Id. at *5. The First Circuit refused to isolate the long-term disability policy from the employer’s entire insurance package for purposes of determining whether there was an employee welfare benefits plan. Id. at *6. The court reasoned that a “‘plan’ under ERISA may embrace one or more policies, … and it strikes us as both impractical and illogical to segment insurance benefits that are treated as a single group and managed together, potentially placing some under ERISA and some outside the statute’s scope.” Id. Focusing on the facts demonstrating that the employer treated the life, accidental death, and disabilities policies as a unit, the court held that the long-term disability policy at issue was governed by ERISA. Id. at *7. B. Definition of “Employee” for ERISA Purposes In Kwatcher v. Mass. Service Employees Pension Fund, 879 F.2d 957, 959–60 (1st Cir. 1989), the court held that a sole shareholder of a closely held corporation was an 90

“employer” and therefore could not be an “employee” and thereby a “participant” in an ERISA plan. The Supreme Court, however, overruled Kwatcher. See Yates v. Hendon, 541 U.S. 1 (2004). In Yates, the Court expressly rejected the Kwatcher court’s holding that a “working owner” is not a “participant” in the company’s ERISA benefits plan. Id. at 16. As the Court noted, affording “participant” status to working owners promotes ERISA’s purpose of establishing uniformity, by avoiding the anomaly of the same plan being governed by separate regimes. Id. at 17. Yates held that a working owner is a “participant” to the extent that the owner participates in a plan with other employees, but it leaves open the question of whether a plan that covers only the working owner is governed by ERISA. Mere classification as a “common law” employee does not mandate coverage as a participant under an ERISA plan. Edes v. Verizon Commc’ns, Inc., 417 F.3d 133, 137 (1st Cir. 2005). Instead, courts should look to the explicit plan language to determine which employees qualify as “participants” under an ERISA plan. See id. (citing Kolling v. Am. Power Conversion Corp., 347 F.3d 11, 14 (1st Cir. 2003)). C. Interpretation of Safe Harbor Regulation In Johnson v. Watts Regulator Co., 63 F.3d 1129 (1st Cir. 1995), the court held that an employer must satisfy all four “safe harbor” criteria in order to avoid ERISA. Id. at 1133. That is, to be exempt from ERISA, a plan must meet the following four criteria established by the Department of Labor at 29 C.F.R. § 2510.3-1(j): (1) no 91

contributions are made by the employer or employee organization; (2) participation in the plan is completely voluntary; (3) the employer permits the insurer to publicize the program to its employees and collects premiums through payroll deduction and remits them to the insurer, but the employer does not endorse the plan; and (4) the employer receives no consideration for its administrative services other than reasonable compensation. See also Ferraro v. Unum Life Ins. Co. of Am., 765 F. Supp. 2d 53, 56 (D. Me. 2011). Although the court specifically addressed only the “endorsement” factor, it held more generally that employer “neutrality” is key to safe harbor protection, but that remaining neutral does not require an employer to “build a moat around a program or to separate itself from all aspects of program administration.” Watts Regulator, 63 F.3d at 1134. The issue of “endorsement” depends on whether “in light of all the surrounding facts and circumstances, an objectively reasonable employee would conclude on the basis of the employer’s actions that the employer had not merely facilitated the program’s availability but had exercised control over it or made it appear to be part and parcel of the company’s own benefit package.” Id. at 1135. In Gross v. Sun Life, __ F.3d __, 2013 WL 4305006 (1st Cit. Aug. 16, 2013), the First Circuit refused to examine employer’s long-term disability policy, which was voluntary and employee funded, independently from the rest of employer’s insurance benefits plan. Because employer fully funded its life and accidental death policies, the court found that the safe harbor exemption did not apply. Id. at *7. The court also reasoned that 92

employer endorsed the long-term disability plan by determining which employees had access to the benefit. Id. D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan With respect to specific actions, the Watts Regulator court held that as long as the employer “merely advises employees of the availability of group insurance, accepts payroll deductions, passes them on to the insurer, and performs other ministerial tasks that assist the insurer in publicizing the program, it will not be deemed to have endorsed the program.” Id. at 1134. The court found that an employer’s activities in terms of issuing certificates to covered employees, maintaining a list of insured persons, and assisting the insurer in securing appropriate claims documentation were merely “administrative tasks,” and that the employer had no “role in the substantive aspects of program design and operation” and therefore had not “endorsed” the accidental death plan underwritten by the insurer. See id. at 1136. In Ferraro, 765 F. Supp. 2d 53, the court found that the employer “endorsed” the plan where one of the employees was listed as the plan administrator and where the employer distributed a handbook to employees that described the long-term disability coverage in question in connection with other benefits the employer provided. Id. at 59. The court rejected plaintiff’s contention that safe harbor status existed because annual meetings were held by an insurance brokerage and because an agent of the insurer handled enrollment. Id. 93

E. Treatment of Multiple Employer Trusts and Welfare Agreements There are no published First Circuit cases addressing the issue of multiple employer trusts and welfare agreements. But a district court has found that a group health plan through a multiple employer trust is an “employee welfare benefit plan.” Welsh v. Quabbin Timber Inc., 943 F. Supp. 98, 105 (D. Mass. 1996). F. De Facto Plan Administrators “[T]he proper party defendant in an action concerning ERISA benefits is the party that controls administration of the plan.” Terry v. Bayer Corp., 145 F.3d 28, 36 (1st Cir. 1998) (internal quotation marks and citations omitted). “There is an exception to this general rule: If an entity or person other than the named plan administrator takes on the responsibilities of the administrator, that entity may also be liable for benefits.” Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654, 665 (1st Cir. 2010) (citing Law v. Ernst & Young, 956 F.2d 364, 372–73 (1st Cir. 1992) (establishing potential liability against de facto administrators)). See also Guerra-Delgado v. Popular, Inc., 2012 WL 1069703, at *3 (D.P.R. Mar. 29, 2012) (“party not named as a fiduciary in the plan, including an employer, can become a fiduciary to the extent it undertakes fiduciary duties”). However, “the mere exercise of physical control or the performance of mechanical administrative tasks generally is insufficient to confer fiduciary status.” Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 18 (1st Cir. 1998). 94

As such, the First Circuit has determined that when the plan administrator retains discretion to decide disputes, a third-party service provider is not a fiduciary of the plan and thus is not amenable to a suit under § 1132(a)(1)(B). Terry, 145 F.3d at 35–36 (quoting a Department of Labor interpretive bulletin for the proposition that “an entity which merely processes claims ‘is not a fiduciary because such person does not have discretionary authority or discretionary control respecting management of the plan’”); Reich v. Rowe, 20 F.3d 25, 29 (1st Cir. 1994) (nonfiduciary liability limited to those “who commit violations of ERISA or who are engaged in an ‘act or practice’ proscribed by the statute”). As the court stated in Terry: As we recognized in Rowe … ERISA itself significantly limits the liability of service providers in actions under the statute. The Rowe panel refused to exercise its power to fashion a common law remedy to generally extend “the threat of liability over the heads of those who only lend professional services to a plan without exercising any control over, or transacting with, plan assets.” … Such liability was withheld in Rowe in recognition of, inter alia, the fact that it would likely “deter such [service providers] from helping fiduciaries navigate the intricate financial and legal thicket of ERISA.” 145 F.3d at 36. In Seabrooke v. Arch Communications Group, Inc., 2003 WL 21434915, at *3 (D.N.H. June 20, 2003), the 95

court dismissed ERISA claims against an insurance company that made initial decisions as to whether or not claims were payable under an employer’s short-term disability plan. Because the employer retained discretion to make the final determination as to eligibility for benefits and remained responsible for payment of those benefits, the court held that the insurance company services provider was not an ERISA fiduciary subject to suit. Id. See also Quinones Rodriguez v. Andoxx Corp., 440 F. Supp. 2d 77 (D.P.R. 2006) (granting insurer’s motion to dismiss for failure to establish that insurer was de facto plan administrator). II. Preemption A. Scope of ERISA Preemption ERISA was enacted by Congress to set forth employees’ rights under the various employee welfare benefit plans established by employers throughout the nation. In the landmark decision Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 53–55 (1987), the Supreme Court held that ERISA preempts state law and provides exclusive federal remedies for disputes over the payment of benefits under ERISA-regulated employee benefit plans. Congress designed the statute in that manner in order “to promote uniformity in the nationwide regulation of employee benefit plans.” Carrasquillo v. Pharmacia Corp., 466 F.3d 13, 20 (1st Cir. 2006). In Pilot Life, the Supreme Court noted that ERISA contains a broad, general preemption clause that expressly “supersedes any and all state laws insofar as they may now or hereafter relate to any employee benefit plan.” Pilot Life, 481 U.S. at 45 96

(quoting 29 U.S.C. § 1144(a)). As such, the Court has held that ERISA implicates two separate types of preemption: “express preemption” and “complete” or “conflict preemption.” Id. at 47. See also Carrasquillo, 466 F.3d at 20 (“The Supreme Court has identified two instances where a state cause of action relates to an employee benefit plan: where the cause of action requires ‘the court’s inquiry [to] be directed to the plan,’ or where it conflicts directly with ERISA.”). 1. Express Preemption As stated, state laws that “relate to” an employee benefits plan are preempted by ERISA. When determining whether a state law “relates to” an ERISA plan, the term “state law” is expansively defined under ERISA to include “all laws, decisions, rules, regulations, or other State action having the effect of law, of any State.” 29 U.S.C. § 1144(c)(1). Moreover, Congress used the words “relate to” in their “broad common-sense meaning” of having “a connection with or reference to … a plan.” Pilot Life, 481 U.S. at 47; Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96–97 (1983). The First Circuit has held that express preemption under ERISA “involves two central questions: (1) whether the plan at issue is an ‘employee benefit plan’ and (2) whether the cause of action ‘relates to’ this employee benefit plan.” McMahon v. Digital Equip. Corp., 162 F.3d 28, 36 (1st Cir. 1998). A state law claim “relates to” an ERISA plan if “it has a connection with or reference to such a plan,” Carlo v. Reed Rolled Thread Die Co., 49 F.3d 790, 793 (1st Cir. 1995), or if “the trier 97

of fact necessarily would be required to consult the ERISA plan to resolve the plaintiff’s claims.” Harris v. Harvard Pilgrim Health Care, 208 F.3d 274, 281 (1st Cir. 2000) (“state-law claims for unfair and deceptive trade practices are preempted by ERISA” because the court necessarily would have to refer to the plan to determine whether the defendant breached its duties). See also Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir. 1994) (state law expressly preempted if “in order to prevail, [plaintiff] must plead, and the court must find, that an ERISA plan exists”). A state law has a “connection with” an ERISA plan if it impedes ERISA’s goal of achieving “nationally uniform administration of employee benefit plans.” Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 302 (1st Cir. 2005) (quoting N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 657 (1995)). ERISA will not preempt a state law that allows plan administrators freedom to structure plans similarly from state to state. Id. at 303. However, ERISA will preempt a law that establishes an “alternative enforcement mechanism for ERISA plan benefits” as long as that alternative enforcement mechanism affects relationships between “the [ERISA] plan, administrators, fiduciaries, beneficiaries, and employer.” Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 140–41 (1st Cir. 2000). A state law “references” an ERISA plan if the existence of an ERISA plan is “essential” to the operation of the law. See Rowe, 429 F.3d at 303. If deletion of the

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reference to an ERISA plan in the statute would render that law “inoperable,” the ERISA plan is “essential” to the law. See id. at 304. Therefore, ERISA will preempt state laws that either “single[] out ERISA plans for special treatment [or] depend[] on their existence as an essential part of its operation.” Carpenters Local, 215 F.3d at 145. In both Carlo v. Reed Rolled Thread Die, 49 F.3d at 793–94, and Vartanian v. Monsanto, 14 F.3d at 700, the First Circuit held that state law misrepresentation claims against employers/plan administrators concerning claimants’ entitlement to benefits were expressly preempted because the court would necessarily be required to consult the plan in order to analyze plaintiffs’ claims and/or compute the damages claimed by the plaintiffs. See also Carrasquillo, 466 F.3d at 20 (relying on Carlo to hold that state law claims are preempted where in order to decide those claims, “the court’s inquiry would necessarily ‘be directed to the Plan’”); Altshuler v. Animal Hospitals, Ltd., 901 F. Supp. 2d 269 (D. Mass. 2012) (holding that state law claims were preempted by ERISA because they “arise from the same nucleus of related facts stemming from [plaintiff’s] disagreement with [administrator’s] loose administration of [ERISA retirement plan].”). In Golas v. Homeview, Inc., 106 F.3d 1 (1st Cir. 1997), the court refused to decide whether misrepresentation claims brought against an insurance broker/agent, prior to the plaintiff’s enrollment in a plan, were preempted. In dicta, the majority stated that the claims would be preempted under Vartanian if the defendant was an agent of the plaintiff’s employer or the insurance company that 99

issued and decided claims under the disability policy in question. Id. at 4 n.5. A concurrence would have found no preemption based on an assumption that the defendant was an independent broker and not an agent of an ERISA fiduciary. See id. at 9–10. 2. Conflict or Complete Preemption In addition to express preemption, which is subject to ERISA’s insurance savings clause, ERISA also implicates “conflict preemption” or “complete preemption,” which is not. Pursuant to the doctrine of “conflict preemption,” ERISA preempts state laws to the extent that they “conflict[] with the provisions of ERISA or operate[] to frustrate its objects,” irrespective of the savings clause. Boggs v. Boggs, 520 U.S. 833, 841 (1997); John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 99 (1993) (“‘where [that] law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress,’ federal preemption occurs.”) (alteration in original) (quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984)). In Pilot Life, the Supreme Court noted that ERISA’s civil enforcement scheme “is one of the essential tools for accomplishing the stated purposes of ERISA,” 481 U.S. at 52, and the statute’s “civil enforcement remedies were intended to be exclusive,” id. at 54. “The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA.” Id. 100

Subsequent to Pilot Life, the Court held that state law claims that serve to “supplement or supplant” ERISA’s exclusive remedial scheme are necessarily preempted. Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 379–80 (2002). And most recently, the Court held that where the plaintiff’s claims are brought by an ERISA entity against an ERISA entity, where plaintiff, at some point in time, could have brought his claim under ERISA § 502(a)(1)(B), and where there is no other independent legal duty that is implicated by the defendant’s actions, then the plaintiff’s cause of action is completely preempted. Aetna Health Inc. v. Davila, 542 U.S. 200, 221 (2004). In Negron-Fuentes v. UPS Supply, 532 F.3d 1, 6–7 (1st Cir. 2008), the First Circuit stated that § 502(a)(1)(B) of ERISA “does displace related state law causes of action, triggering complete preemption and allowing for removal…. Removability thus turns on whether any of [plaintiff’s] claims … are in substance duplicated or supplanted by the ERISA cause of action (in which case removal based on complete preemption is proper) or instead whether all are directed at violation of a ‘legal duty … independent of ERISA or the plan terms,’….” In Rowe, 429 F.3d at 305, the First Circuit held that a state law imposing regulations on pharmacy benefits managers was not preempted under Davila. The court distinguished Davila on the grounds that the plaintiffs in that case brought suit only to rectify a wrongful benefits denial and that “all the parties in that case were part of the ‘intricate web of relationships among the principal players in the ERISA scenario [i.e., participants, beneficiaries, 101

and fiduciaries].’” Id. (quoting Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 141 (1st Cir. 2000)) B. Preemption of Managed Care Claims In Danca v. Private Health Care Systems, Inc., 185 F.3d 1, 5 (1st Cir. 1999), the court stated that state laws that constitute “alternative enforcement mechanisms” to ERISA or to ERISA plans are preempted. Id. “It therefore follows that state law tort suits that allege the improper processing of a claim for benefits under an ERISA covered plan … fall within the scope of [ERISA] § 502(a)” and are preempted, regardless of whether such claims otherwise might be “saved” under ERISA’s insurance savings clause. Id. See also Zipperer v. Raytheon Co., 493 F.3d 50, 54 (1st Cir. 2007) (“As we see it, [plaintiff] is asking that Massachusetts state law obligations be engrafted onto ERISA. Such claims, if allowed, would lead to the ‘different administrative procedures in different jurisdictions’ that ERISA is designed to avoid.”). In Danca, the court held that plaintiff’s state law claims based on the defendant HMO’s decision to deny plaintiff’s physician’s recommendation for in-patient treatment were preempted pursuant to the principles articulated in Pilot Life. Id. at 6. The court held that although the allegedly negligent decision making could be characterized as medical in nature, “[w]hat matters, in our view, is that the conduct was indisputably part of the process used to assess a participant’s claim for a benefit payment under the plan. As such, any state-law based 102

attack on this conduct would amount to an ‘alternative enforcement mechanism’ to ERISA’s civil enforcement provisions contained in ERISA § 502(a)….” Id. Similarly, in Hotz v. Blue Cross & Blue Shield, 292 F.3d 57, 61 (1st Cir. 2002), the court relied on Pilot Life to hold that plaintiff’s “bad faith” claims under Massachusetts General Laws chapters 93A and 176D were preempted. The court held that these state statutes offered remedies “at odds” with those available under ERISA. Id. The court rejected the argument that Unum Life Ins. Co. of Am. v. Ward, 526 U.S. 358 (1999), alters Pilot Life’s holdings. Id. at 60–61. See also Brenner v. Metro. Life Ins. Co., 2013 WL 1337367, at *7 n.1 (D. Mass. Mar. 29, 2013) (state law claims based on unfair/deceptive trade practices preempted by ERISA). These cases must be viewed in light of subsequent Supreme Court opinions regarding preemption of managed care claims in Moran, 536 U.S. at 373–74, and Davila, 542 U.S. at 209. In Moran, the Court held that an Illinois law requiring HMOs to provide services if a reviewing physician found such services medically necessary was not preempted under Pilot Life. 536 U.S. at 373–74. The Court held that the law did not provide a “new cause of action” or “new form of ultimate relief” and did not “enlarge the claim beyond the benefits available” in an action under ERISA. Id. at 379–80. In Davila, the Court rejected plaintiffs’ attempts to use state law to remedy damages they claimed to have suffered as a result of the defendants’ denial of plaintiffs’ health care claims. 542 U.S. at 209. The Court held that the claims were preempted because plaintiffs could have brought 103

claims for benefits under ERISA and plaintiffs’ claims implicated no legal duties independent of ERISA. Id. at 213–14. C. Preemption of Malpractice Claims In McMahon v. Digital Equip. Corp., 162 F.3d 28 (1st Cir. 1998), plaintiff brought state law claims for negligence against the administrator of her employer’s short-term disability plan. Plaintiff tried to avoid preemption by characterizing her claims as malpractice claims. Id. at 38. Without discussing the underlying substantive issue, the First Circuit rejected plaintiff’s analogy, stating as follows: “But [the administrator of the disability plan] was not a managed care provider; it was not responsible for providing McMahon with medical care, but rather for determining whether McMahon was eligible for short-term disability leave. Whether [the administrator] performed this responsibility properly clearly ‘relates to’ the terms of Plan 502.” Id. But see W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 661 F. Supp. 2d 37, 46 (D. Mass. 2009) (noting that state law malpractice claims brought by the plan against third-party administrator are generally not preempted). D. ERISA’s Insurance “Savings Clause” The Hotz case constitutes the only recent First Circuit insurance savings clause jurisprudence. In Hotz, the court applied a two-pronged analysis, holding first that the state statutes in question did not come within the savings clause, and second that they were nonetheless preempted by conflict preemption principles as discussed above. 292 104

F.3d at 60–61. With respect to the savings clause analysis, the Hotz court found the clause inapplicable because the remedies provided by Chapter 93A of the Massachusetts General Laws were not “unique” to the insurance industry but rather applied more generally to unfair commercial practices in any industry. Id. In so doing, the Hotz court applied the McCarran-Ferguson factors that have since been abandoned by the Supreme Court. See Ky. Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 339–40 (2003). Although the Hotz court’s savings clause analysis is subject to reexamination after Miller, the savings clause aspect of the case was rendered moot by the Supreme Court’s confirmation in Moran, 536 U.S. at 373–74, and Davila, 542 U.S. at 209, that ERISA preempts state law remedies that “supplement or supplant” ERISA’s exclusive enforcement regime, regardless of the savings clause. Since the Hotz court held that the state statutes in question offered remedies “at odds” with ERISA, its belt-and-suspenders savings clause discussion is dicta. In Maine Ed. Ass’n Benefits Trust v. Cioppa, 842 F. Supp. 2d 373, 380 (D. Me. 2012), the district court held that ERISA’s savings clause saved from preemption Maine statutes allowing school districts to obtain their own aggregate loss information from health insurers and requiring school districts to use this information to obtain competitive bids for employee health insurance every five years. The court reasoned that the Maine statutes at issue regulated insurance because they “alter[] the scope of permissible bargains that an insurer can offer any entity that insures multiple school districts.” Id.

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E. Preemption of State Law Equitable Claims In Zipperer, 493 F.3d at 53, the plaintiff claimed that under state law principles of estoppel, he was entitled to a higher benefit than provided by the plan terms, due to incorrect benefit estimates distributed by the administrator. The First Circuit rejected that argument and held that the state law estoppel claim was preempted by ERISA. The court stated: [E]ven a narrow reading of section 514(a)’s “related to” provision yields a conclusion that [plaintiff’s] claims are preempted, and that is because the claims can only be evaluated with respect to Raytheon’s recordkeeping responsibilities for the plan. Such responsibilities were part and parcel of Raytheon’s plan administration. Subjecting Raytheon’s plan administration to the state law scrutiny [plaintiff] seeks would conflict with ERISA’s proscription against state law “mandating plan administration” and would also impermissibly create “an alternative enforcement scheme” to ERISA’s own recordkeeping and reporting requirements. Id. at 54. III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? Ordinarily, a claimant seeking benefits under an ERISA plan must exhaust administrative remedies prior to suing in federal court. See Terry v. Bayer Corp., 145 F.3d 28, 106

36 (1st Cir. 1998); Drinkwater v. Metro. Life Ins. Co., 846 F.2d 821, 825–26 (1st Cir. 1988); see also Morais v. Cent. Beverage Corp. Union Emps. Supp. Ret. Plan, 167 F.3d 709, 712 n.4 (1st Cir. 1999) (First Circuit adheres to wellestablished federal policy favoring exhaustion of administrative remedies in contract-based ERISA claims). In Medina v. Metro. Life Ins. Co., 588 F.3d 41, 47 (1st Cir. 2009), the First Circuit stated that: “A plaintiff who wishes to raise an ERISA claim in federal court must first exhaust all administrative remedies that the fiduciary provides.” See also Cruz v. Bristol-Myers Squibb Co., 699 F.3d 563, 572 (1st Cir. 2012) (ERISA claim barred for failure to exhaust administrative remedies prior to filing suit). In Terry, the First Circuit held that the plaintiff had failed to exhaust administrative remedies where plaintiff submitted an appeal after the deadline set forth in the plan documents. 145 F.3d at 36. In Medina, the court reviewed defendant’s determination with respect to plaintiff’s claim for short-term disability benefits but dismissed the complaint as to plaintiff’s request for long-term disability benefits. The court found that plaintiff had not actually filed a claim for long-term benefits and therefore could not proceed in federal court without first exhausting administrative remedies. 588 F.3d at 47. Several district courts in the First Circuit have held that exhaustion of administrative remedies is unnecessary when the claims brought are based exclusively on statutory violations of ERISA itself. Alexander v. Fujitsu Bus. Commc’n Sys., Inc., 818 F. Supp. 462, 471 (D.N.H. 1993) (“exhaustion of administrative remedies is 107

unnecessary when plaintiffs’ claim is based on a statutory violation of ERISA”); United Paperworkers Int’l Union v. Int’l Paper Co., 777 F. Supp. 1010, 1017 (D. Me. 1991); Treadwell v. John Hancock Mut. Life Ins. Co., 666 F. Supp. 278, 283–84 (D. Mass. 1987). See also Laurenzano v. Blue Cross & Blue Shield of Mass., Inc. Ret. Income Trust, 134 F. Supp. 2d 189, 211 (D. Mass. 2001) (noting in dicta that “participants should be encouraged, although not required, to seek internal remedies for their statutorybased claims brought under ERISA….”); Agosto v. Academia Sagrado Corazon, 739 F. Supp. 2d 90, 93 (D.P.R. 2010) (“majority position … holds that where a plaintiff brings an action under ERISA for a statute-based claim, the plaintiff is not first obligated to pursue administrative remedies before seeking relief in the federal courts”). B. Exceptions to the Exhaustion Requirement Traditional exhaustion principles include an exception for instances “when resort to the administrative route is futile or the remedy inadequate.” Drinkwater, 846 F.2d at 826; accord Turner v. Fallon Cmty. Health Plan, Inc., 127 F.3d 196, 200 (1st Cir. 1997). However, a “blanket assertion, unsupported by any facts, is insufficient to call this exception into play.” Drinkwater, 846 F.2d at 826; Madera v. Marsh, USA, Inc., 426 F.3d 56, 62 (1st Cir. 2005); Nieves Ayala v. Johnson & Johnson, Inc., 208 F. Supp. 2d 195, 199 (D.P.R. 2002); Tarr v. State Mut. Life Assur. Co. of Am., 913 F. Supp. 40, 44 (D. Mass. 1996). “It is the defendant’s burden to show failure to exhaust and, if necessary, the plaintiff’s burden to show that the futility exception applies.” Exeter Hosp. v. New England 108

Homes, Inc., 2011 WL 3862146, at *3 (D.N.H. Sept. 1, 2011) (citing Drinkwater, 846 F.2d at 825). The inadequacy exception has been properly invoked where the relief sought is of an urgent nature, such as a threat to the claimant’s health or life. Watts v. Organogenesis, Inc., 30 F. Supp. 2d 101, 104 (D. Mass. 1998) (“A failure to exhaust ‘is easily forgiven for good reason, and no reason is better than an imminent threat to life or health.’”) (quoting Ezratty v. Puerto Rico, 648 F.2d 770, 774 (1st Cir. 1981)). C. Consequences of Failure to Exhaust The failure to exhaust administrative remedies is not a jurisdictional bar. Sidou v. UnumProvident, 245 F. Supp. 2d 207, 216 (D. Me. 2003). Rather, because ERISA itself does not specifically mandate exhaustion, courts apply the requirement as a matter of judicial discretion. Tarr, 913 F. Supp. at 44. The exhaustion doctrine has been held to serve important policy considerations, including (1) the reduction of frivolous litigation, (2) the promotion of consistent treatment of claims, (3) the provision of a nonadversarial method of claims settlement, (4) the minimization of costs of claims settlement, (5) a proper reliance on administrative expertise, and (6) the development of a complete record for review by the courts. Terry, 145 F.3d at 40; Tarr, 913 F. Supp. at 44. In noting these considerations, the First Circuit found that “[i]t would be anomalous if the same reasons which led Congress to require plans to provide remedies for ERISA claimants

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did not lead courts to see that those remedies are regularly utilized.” Terry, 145 F.3d at 40 (internal citation omitted). When a complaint is dismissed solely on exhaustion grounds, it should be dismissed without prejudice as premature. Rivera-Diaz v. Am. Airlines, Inc., 229 F.3d 1133 (1st Cir. 2000). Plaintiffs remain free to pursue their administrative remedies under the plan, and to return to court to assert any claims they may have once they have exhausted that process. Id.; see also Belanger v. Healthsource of Me., 66 F. Supp. 2d 70, 73 (D. Me. 1999); Snow v. Borden, Inc., 802 F. Supp. 550, 558 (D. Me. 1992). Where the failure to exhaust constituted the filing of an appeal after the plan’s internal appeal deadline had run, however, the court dismissed the case with prejudice. See Terry, 145 F.3d at 36. D. Minimum Number of Levels of Administrative Review No First Circuit case has expressly decided how many levels of administrative review a claimant may be required to exhaust. The First Circuit has held, however, that a participant must attend all of the internal appeals opportunities provided by the plan prior to bringing suit. Medina, 588 F.3d at 47; Terry, 145 F.3d at 36; Drinkwater, 846 F.2d at 826. E. Can a Defendant Waive a Failure-to-Exhaust Defense? A defendant waived a failure-to-exhaust defense because “when [plaintiff] had first filed this lawsuit, the Plan had 110

not yet resolved his benefits claim despite a significant passage of time.” Bard v. Boston Shipping Ass’n, 471 F.3d 229, 235 (1st Cir. 2006). “Faced with no decision from the Board, [plaintiff] brought suit on a ‘deemed exhausted’ basis” and the First Circuit found that defendant “ha[d] expressly waived any claim that [plaintiff] failed to exhaust his administrative remedies prior to filing suit.” Id. at 235 n.6. F. Issue Exhaustion The First Circuit has not specifically addressed whether an ERISA claimant must exhaust individual issues as well as claims. However, in Liston v. Unum Corp. Officer Severance Plan, 330 F.3d 19, 26 (1st Cir. 2003), the court stated in dicta that in order to pursue discovery requests during litigation, “the issue should be raised in the first instance during the claims process.” IV. Standard of Review A. Plan Language The First Circuit has interpreted Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), to require that the plan convey “a clear grant of discretionary authority” in order for the court to invoke the deferential “arbitrary and capricious” standard of review. See Recupero v. New England Tel. & Tel. Co., 118 F.3d 820, 828 (1st Cir. 1997) (requiring “some discretion” be given to out-ofcourt decision maker); Diaz v. Seafarers Int’l Union, 13 F.3d 454, 457 (1st Cir. 1994) (requiring “evidence” of discretionary authority). The “arbitrary and capricious” 111

standard of review will still apply where the plan contains language conferring a grant of discretionary authority but the summary plan description does not contain such language. See Fenton v. John Hancock Mut. Life Ins. Co., 400 F.3d 83, 90 (1st Cir. 2005). There are no “magic words” necessary to confer discretionary authority. See Brigham v. Sun Life of Can., 317 F.3d 72, 81 (1st Cir. 2003). In Cooke v. Lynn Sand & Stone Co., 70 F.3d 201 (1st Cir. 1995), the court found plan language insufficient where it “stated only that the administrator had exclusive control and authority over the Plan.” Id. at 204. By contrast, in Terry v. Bayer Corp., 145 F.3d 28, 37 (1st Cir. 1998), the court held that language that “specifically allocates to the Company the right to find necessary facts, determine eligibility for benefits, and interpret the terms of the Plan” is sufficient to compel an arbitrary and capricious standard of review. In Gannon v. Metro. Life Ins. Co., 360 F.3d 211, 213–14 n.1 (1st Cir. 2004), the plan specifically granted the plan administrator “discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits.” This language was sufficient for the court to apply the arbitrary and capricious standard of review. See id. In Gross v. Sun Life, __ F.3d __, 2013 WL 4305006 (1st Cit. Aug. 16, 2013), the First Circuit considered whether plan language stating that the claimant must provide “satisfactory proof of claim” and that “[p]roof must be satisfactory to Sun Life” was sufficient to trigger deferential arbitrary and capricious review. After 112

reviewing the precedential landscape, the court held that plan language stating that the claimant must provide “satisfactory proof of claim” is insufficient to trigger deferential review. Id. at *10. The court further held that plan language stating that “[p]roof must be satisfactory to Sun Life” was also insufficient to trigger deferential review. Id. at *12. The court reasoned that such a statement “will ordinarily fail to meet the ‘requisite if minimum clarity’ necessary to shift from de novo to deferential review.” Id. at *11 (quoting Herzberger v. Standard Ins. Co., 205 F.3d 327, 331 (7th Cir. 2000)). The court “reiterate[d] that no precise words are required. Yet, to secure discretionary review, a plan administrator must offer more than subtle inferences drawn from such unrevealing language.” Id. The Gross court effectively overruled its prior decision in Brigham v. Sun Life of Canada, 317 F.3d 72, 82 (1st Cir. 2003), in which the court found that plan language requiring proof “satisfactory to us” was sufficient to confer discretionary authority. The Gross court did not expressly overrule Brigham, however. Rather, the Gross court attempted to distinguish Brigham on its facts because, in that case, the plaintiff effectively waived his argument that de novo review applied because he did not raise such an argument until his appeal to the First Circuit. See Gross, __ F.3d __, 2013 WL 4305006, at * 8. The Gross court also explained that the legal landscape on this issue has changed significantly since it decided Brigham, as now at least four circuits hold that “satisfactory to us” language is insufficient to trigger deferential review. Id. at *8–9.

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Finally, although the First Circuit has not specifically addressed this issue, district courts within the Circuit have held that a grant of discretion appearing in the Certificate of Insurance or SPD, but not in the policy, is sufficient to warrant deferential review. See Bonanno v. Blue Cross & Blue Shield of Mass., 2011 WL 4899902, at *7 n.4 (D. Mass. Oct. 14, 2011) (noting that insurer could rely on language in SPD to show it had discretionary authority); Tetreault v. Reliance Standard Life Ins. Co., 2011 WL 7099961, at *6 (D. Mass. Nov. 28, 2011) (holding same with respect to procedural rules found only in SPD); see also Maher v. Mass. Gen. Hosp. Long Term Dis. Plan, 665 F.3d 289, 292 (1st Cir. 2011) (reviewing the “plan instruments” including the SPD to determine if the plan delegated fiduciary responsibility). However, in two decisions, district courts have held that an administrative appeal procedure appearing in the SPD, but not in the policy, was not enforceable against the claimant because the provision found only in the SPD was not part of the plan. Kaufmann v. Prudential Ins. Co. of Am., 840 F. Supp. 2d 495, 498 (D.N.H. 2012); Merigan v. Liberty Life Assur. Co. of Boston, 826 F. Supp. 2d 388, 395 (D. Mass. 2011). Both of these decisions rely on the Supreme Court’s decision in CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011). In that pension benefit case, the Court held that where the parties agreed that there was a governing written plan document, a separate SPD that was not the governing plan document and was in fact inconsistent with the plan document, did not entitle participants to benefits. The Court stated that “summary documents, important as they are, provide communication with beneficiaries about the plan, but that their statements 114

do not themselves constitute the terms of the plan….” Id. at 1878. B. Effect of Conflict of Interest or Procedural Irregularity Prior to the Supreme Court’s ruling in Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), the First Circuit had addressed the issue of “conflict of interest” on several occasions and had held that a so-called “inherent conflict,” without more, cannot change or heighten that standard. See Wright v. R.R. Donnelley & Sons Co., 402 F.3d 67 (1st Cir. 2005); Leahy v. Raytheon Co., 315 F.3d 11, 16 (1st Cir. 2002); Pari-Fasano v. ITT Hartford Life & Acc. Ins. Co., 230 F.3d 415 (1st Cir. 2000); Doe v. Travelers Ins. Co., 167 F.3d 53 (1st Cir. 1999); Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181 (1st Cir. 1998); see also Fenton v. John Hancock Mut. Life Ins. Co., 400 F.3d 83, 90 (1st Cir. 2005) (recognizing that a stricter standard of review applies only when the plan participant can show that the administrator was improperly motivated to make the adverse determination); Glista v. Unum Life Ins. Co. of Am., 378 F.3d 113, 125–26 (1st Cir. 2004) (“The fact that Unum, the plan administrator, will have to pay Glista’s claim out of its own assets does not change [the] standard of review.”). In Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181 (1st Cir. 1998), the claims administrator was not only the decision maker and the funding source, it was also a subsidiary of the employer/plan sponsor. Id. at 183. The court noted that “any award of benefits would come out of 115

Paul Revere’s own pocket,” and recognized that such an arrangement might give the appearance of a conflict of interest. Id. at 184. However, the court rejected the plaintiff’s argument that because the plan administrator was also the source of funding, the court should conduct a de novo review of the administrator’s denial of benefits. The court suggested “an important competing motive” that offset the appearance of a financial conflict: “having a benefit plan is to please employees, not to result in the employer’s bad reputation.” Id. Thus, the court explained that “an employer would not want to keep an overly tightfisted insurer,” so “the conflict is not as serious as might appear at first blush.” Id. With respect to the standard of review, the court “adher[ed] to the arbitrary and capricious principle, with special emphasis on reasonableness, but with the burden on the claimant to show that the decision was improperly motivated.” Id. And the court held that a financial conflict does not exist merely because the plan administrator “decided which claims it would pay.” Id. In Doe, the First Circuit again acknowledged that “Travelers would pay the claim out of its own assets.” Doe, 167 F.3d at 57. Travelers argued that “it is a very small claim payable out of very large assets,” but the court noted that “small claims add up.” Id. Nevertheless, the court again recognized that “Travelers can hardly sell policies if it is too severe in administering them,” and reiterated that “the mere fact that an individual claim, if paid, would cost the decision maker something [does] not show that ‘the decision was improperly motivated.’” Id. (quoting Doyle, 144 F.3d at 184). The court held that the 116

plan administrator’s “general interest in conserving its resources is [not] the kind of conflict that warrants” a heightened standard of review. Id. The court concluded that the “essential requirement of reasonableness” by which courts review benefit denials under the arbitrary and capricious standard “has substantial bite itself.” Id. And while “[a]ny reviewing court is going to be aware that in the large, payment of claims costs [the administrator] money,” where “the policy amply warns beneficiaries that [the administrator] retains reasonable discretion,” the administrator’s financial stake is not enough to invalidate the denial of a claim. Id. In Pari-Fasano, the First Circuit again recognized that “an insurer does have a conflict of sorts when a finding of eligibility means that the insurer will have to pay benefits out of its own pocket,” but reiterated that “the market presents competing incentives to the insurer that substantially minimize the apparent conflict.” PariFasano, 230 F.3d at 418. Thus, even when the decision maker is the funding source, the arbitrary and capricious standard continues to apply. The court held that in the face of an allegation of financial conflict, the district court applied the correct analysis in terms of (1) recognizing that the reasonableness of the insurer’s decision determines whether or not it constituted an abuse of the discretion vested in the insurer by the plan and (2) further recognizing that the possible existence of a conflict of interest would necessarily affect the court’s determination of what was reasonable conduct by the insurer under the circumstances. The court correctly inquired whether the circumstances indicated an improper motivation on the part of ITT Hartford and, finding no 117

such impropriety, proceeded to simply ensure that the termination decision was not objectively unreasonable in light of the available evidence. Id. at 419. In Leahy, 315 F.3d at 16, the court held that “[t]o affect the standard of review … a conflict of interest must be real. A chimerical, imagined, or conjectural conflict will not strip the fiduciary’s determination of the deference that would otherwise be due.” The court went on to state: If MetLife denies claims that Plan participants as a group view as valid, those employees will be inclined to withdraw from the Plan, thus reducing MetLife’s role (and, presumably, its compensation). By the same token, if MetLife awards benefits that are viewed as undeserved, Plan participants will experience an increase in their premiums and thus be inclined to withdraw from the Plan (again reducing MetLife’s role and remuneration). Either way, the structure of the Plan furnishes an incentive for MetLife to be unbiased in its handling of claims. This is telling, for courts should not lightly presume that a plan administrator is willing to cut off its nose to spite its face. Id. In Wright, the plaintiff acknowledged the precedent of Pari-Fasano, Doe, and Doyle related to inherent conflict of interest but argued that those cases “overstate[] the ability of market forces to minimize the apparent conflict.” 402 F.3d at 75. The court noted that some other circuits have “rejected the market forces rationale” and have recognized a conflict of interest where an insurer also acts as the ERISA plan administrator. Id. n.5. 118

However, the court also found that other circuits did not have a “consistent approach” for adjusting the standard of review in these situations. Id. Further, absent “an opinion by the Supreme Court, an en banc decision of the Circuit, or statutory overruling,” the court remained bound by the above precedent and refused to alter the standard of review. Id. The court went on to evaluate the plaintiff’s allegations of improper motivation on the part of the insurer/plan administrator in refusing benefits. Id. at 76–78. The court evaluated several factual situations that plaintiff claimed illustrated “improper motivation.” Id. However, the court refused to find any behavior that indicated bad faith on the part of the insurer. Id. at 78. See also Tsoulas v. Liberty Life Assur. Co. of Bos., 454 F.3d 69, 77–78 (1st Cir. 2006) (reviewing and finding no merit in several factual allegations made by the plaintiff regarding the plan administrator’s improper motivation for terminating benefits). In Janeiro v. Urological Surgery Professional Ass’n, 457 F.3d 130, 139–42 (1st Cir. 2006), the court applied de novo review to a fiduciary’s pension benefits revaluation decision, where the court found that the fiduciary harbored personal “animus” toward the plan beneficiaries and that his financial interests were in direct conflict with the interests of the beneficiaries. C. Cases Interpreting MetLife v. Glenn The First Circuit’s approach to the issue of conflict of interest was affected by the Supreme Court’s decision in 119

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). The Glenn Court held that a “structural” conflict exists when the same entity pays benefits and adjudicates claims. Id. at 124–26. While rejecting the notion, previously advanced by the First Circuit, that market forces eliminate entirely the existence of this structural conflict, the Court held that such market forces could diminish the significance of such conflicts in individual cases. See id. The Court then emphasized that in deciding how best to weigh such conflicts, its decision did not overturn, modify, or alter its decision in Firestone. As the Glenn Court stated, “We do not believe that Firestone’s statement [that an ERISA administrator’s conflict of interest should be weighed in determining whether there is an abuse of discretion] implies a change in the standard of review, say, from deferential to de novo review. Trust law continues to apply a deferential standard of review to the discretionary decision-making of a conflicted trustee, while at the same time requiring the reviewing judge to take account of the conflict when determining whether the trustee, substantively or procedurally, has abused his discretion.” Id. at 115. The Court went on to hold that “[n]or would we overturn Firestone by adopting a rule that in practice could bring about near universal review by judges de novo, i.e., without deference of the lion’s share of ERISA plan claims denials.” Id. The Court also rejected burden-shifting rules in the context of deferential review, stating: “Neither do we believe it necessary or desirable for courts to create special burden-of-proof rules, or other special procedural or evidentiary rules, focused narrowly upon the evaluator/ 120

payor conflict…. Indeed such rules would create further complexity, adding time and expense to a process that may already be too costly for many of those who seek redress.” Id. at 116–17. Instead, the Court likened the “multifactor” approach it adopted to the approach used in the administrative law context, citing as guideposts the Court’s decisions in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), and Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). The Glenn Court further held that judges should weigh a conflict “as they would weigh any other pertinent factor; that is, when the relevant considerations are in equipoise, any one factor … may act as a tiebreaker…. In this regard, the Court counseled judges to take account of both the ‘degree of closeness’ and ‘the tiebreaking factor’s inherent or case specific importance.’” Denmark v. Liberty Life Assur. Co. of Bos., 566 F.3d 1, 8 (1st Cir. 2009) (quoting Glenn, 554 U.S. at 117). As such, the Court held that a conflict “should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affect[s] the benefits decision…. It should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy….” Glenn, 554 U.S. at 117 In Denmark, the District Court of Massachusetts affirmed Liberty’s denial of plaintiff’s claim for longterm disability benefits based on a fibromyalgia diagnosis.

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A divided panel of the First Circuit affirmed the district court’s opinion. See 481 F.3d 16 (1st Cir. 2007) (Denmark I). Plaintiff moved for rehearing and the court deferred ruling on the petition pending the Supreme Court’s decision in Glenn. Following Glenn, the First Circuit panel took additional briefing and held a second oral argument (Denmark II). In Denmark II, the court reviewed its pre-Glenn standard and the key passages from Glenn, emphasizing that review remains deferential and that conflict of interest is one factor of many that the court must consider in its review. 566 F.3d 1, 5–9. The court held that its pre-Glenn approach was largely consistent with Glenn except that prior to Glenn, district courts in the First Circuit were not allowed to weigh a purely structural conflict in conducting deferential review, and would consider the conflict only if the plaintiff demonstrated that the conflict actually affected the decision. Id. at 9. The court noted that although Glenn mandates only a “modest” refinement on the First Circuit’s pre-Glenn standard, such modest refinement may be important with respect to the case at hand because the substantive issue as to whether the plaintiff is disabled is “hairs-breadth close” and therefore “even a slight adjustment in the mix of factors or in the weight of a single factor may make a decisive difference.” Id. The court also noted that after Glenn, “courts are duty-bound to inquire into what steps a plan administrator has taken to insulate the decisionmaking process against the potentially pernicious effects of structural conflicts.” Id. Accordingly, the court remanded the case to the district court to apply the Glenn 122

multifactor test in the first instance. Id. It expressed no opinion on how the case might turn out on remand but urged the parties to consider settlement. Id. Post-Denmark, the First Circuit confirmed that a structural conflict of interest “does not change the standard of review.” Cusson v. Liberty Life Assur. Co. of Bos., 592 F.3d 215, 224 (1st Cir. 2010). The Cusson court also stated that the structural conflict receives no “special weight” unless plaintiff meets his or her burden in proving that the conflict actually influenced the benefits decision. Id. at 228. The court rejected plaintiff’s argument that an ERISA defendant bears the burden to show that the conflict did not affect the decision, stating that such a requirement would constitute the type of special “burden-of-proof rule” specifically rejected in Glenn. Id. at 225. In Cusson, neither party presented evidence concerning the adequacy of the defendant’s internal procedures to insulate the review process from conflict. Plaintiff argued that the decision was influenced by conflict because it allegedly overly relied on a peer review report that contained factual errors; because it relied on a hearsay conversation between a reviewing physician and a treating physician; because the reviewing physicians were allegedly “biased against patients with fibromyalgia”; because the defendant chose to obtain paper reviews rather than an independent medical examination (IME); because the defendant allegedly failed to provide the reviewing physicians with all the medical records; and because the defendant did not credit the Social Security Administration’s award of disability benefits. The court rejected all of these arguments and 123

stated, “[w]e do not find that Liberty’s decision was improperly influenced by structural conflict. We therefore do not accord any special weight to the conflict in our analysis….” Id. at 228. See also Gernes v. Health & Welfare Plan of Metro. Cabinet, 841 F. Supp. 2d 502, 509 (D. Mass. 2012) (“administrator can take ‘active steps to reduce potential bias and to promote accuracy’ and thereby reduce the effect of a structural conflict in the decision making process ‘to the vanishing point’”). D. Other Factors Affecting Standard of Review Notwithstanding a proper grant of discretion under Firestone, the First Circuit has held that de novo review will nonetheless apply in the event of an improper delegation of that discretion. In Rodriguez-Abreu v. Chase Manhattan Bank, 986 F.2d 580, 584 (1st Cir. 1993), the only decision makers referenced in the plan documents were “named fiduciaries.” The benefits decision was made, however, by a party (Chase) that was not a “named fiduciary.” Id. And the plan documents contained no provision allowing “named fiduciaries” to delegate powers and duties, nor any provisions delegating any duties to Chase. Id. Accordingly, the court found a lack of appropriate delegation and reviewed the benefits decision de novo. Id. In Terry v. Bayer Corp., 145 F.3d 28, 37–38 (1st Cir. 1998), by contrast, the plan document gave authority to the plan administrator to “appoint one or more individuals to act on its behalf.” An entirely different document established the existence of a “Committee” to “assist[] the Corporation in fulfilling its administrative duties.” Id. at 124

38. And it was the committee that made the final determination. The court held that this was an effective delegation. Id. In Bard v. Boston Shipping Ass’n, 471 F.3d 229, 239 (1st Cir. 2006), the court declined to rule as to whether “procedural irregularities” such as violation of the Department of Labor deadlines or insufficient denial letters can serve to change the standard of review from deferential to de novo. In Hannington v. Sun Life & Health Ins. Co., 711 F.3d 226, 228 (1st Cir. 2013), to determine whether plaintiff’s veteran’s benefits were an offset as “Other Income” to benefits available under the disability policy, Sun Life had to determine whether the VA benefits were “disability or retirement benefits under: a) the United States Social Security Act …; b) the Railroad Retirement Act; c) any other similar act or law provided in any jurisdiction.” The court reviewed Sun Life’s determination de novo, even though the policy granted it discretionary authority, stating that “when the plan fiduciary is required, in the course of determining the meaning of the plan language, to interpret material outside the plan, our review of the extra-plan material is de novo.” Id. at 230. Thus, “because [Sun Life’s] decision to offset Mr. Hannington’s VA benefits was governed entirely by its interpretation of several statutes, the district court ought to have reviewed de novo Sun’s determination that Mr. Hannington’s VA benefits were ‘Other Income’ under the Plan.” Id. at 232. V. Rules of Plan Interpretation

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A. Application of Federal Common Law Federal common law governs the interpretation of provisions in an ERISA benefit plan. Filiatrault v. Comverse Tech., Inc., 275 F.3d 131, 135 (1st Cir. 2001); Morais v. Cent. Beverage Corp., 167 F.3d 709, 711 (1st Cir. 1999). A plan is construed using “common-sense canons of contract interpretation” derived from general state law principles. Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 585 (1st Cir. 1993). Plan language is interpreted according to its plain meaning taken in context, and language is ambiguous only “where an agreement’s terms are inconsistent on their face or where the phraseology can support reasonable differences of opinion as to the meaning of the words employed and obligations undertaken.” Smart v. Gillette Co. Long-Term Dis. Plan, 70 F.3d 173, 178 (1st Cir. 1995) (quoting Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989)). See also Unum Life Ins. Co. of Am. v. Cappello, 278 F. Supp. 2d 228, 233–34 (D.R.I. 2003). “[W]hether an ERISA plan term is ambiguous is generally a question of law for the judge.” Balestracci v. NSTAR Elec. & Gas Corp., 449 F.3d 224, 230 (1st Cir. 2006). In Balestracci, the First Circuit held that ambiguous plan language can support a finding of intention to vest lifetime ERISA benefits, rejecting the district court’s ruling that intention to vest retirement benefits must be stated in clear and express terms. Id. at 231. B. Application of Contra Proferentem 126

The First Circuit has applied the rule of contra proferentem to ERISA cases only where the standard of review was de novo and the interpretation of an ambiguous provision of a plan funded by an insurance policy was at issue. See Hughes v. Bos. Mut. Life Ins. Co., 26 F.3d 264, 268 (1st Cir. 1994). In Recupero v. New England Tel. & Tel. Co., 118 F.3d 820, 825 (1st Cir. 1997), the court cited authority in support of the proposition that contra proferentem would be inapplicable in cases in which the administrator was given discretionary authority to interpret plan terms, citing Pagan v. NYNEX, 52 F.3d 438, 442 (2d Cir. 1995). The First Circuit confirmed that holding in Stamp v. Metro. Life Ins. Co., 531 F.3d 84, 92–93 (1st Cir. 2008). In Stamp, the court held that “[w]hen the administrators of a plan have discretionary authority to construe the plan, they have the discretion to determine the intended meaning of the plan’s terms. In making a deferential review of such determinations, courts have no occasion to employ the rule of contra proferentem.” (quoting Morton v. Smith, 91 F.3d 867, 871 n.1 (7th Cir. 1996)). The First Circuit has also specifically held that contra proferentem does not apply to ERISA plans that are not funded by insurance policies. Allen v. Adage, Inc., 967 F.2d 695, 701 n.6 (1st Cir. 1992). See also Jorstad v. Conn. Gen. Life Ins. Co., 844 F. Supp. 46, 52 n.10 (D. Mass. 1994). C. Deference Afforded Interpretation of a Plan

to

127

an

Administrator’s

When the court reviews an administrator’s determination under a de novo standard, the court must decide “whether, upon a full review of the administrative record, the decision of the administrator was correct.” Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 518 (1st Cir. 2005). The court should independently review the record and “grant[] no deference to administrators’ opinions or conclusions.” Id. In terms of plan interpretation, as stated above, the court applies the common law doctrine of contra proferentem to plan interpretations under the de novo standard. Hughes, 26 F.3d at 268. When review of an administrator’s plan interpretation is deferential, by contrast, the court’s review focuses on whether the interpretation was reasonable. Terry v. Bayer Corp., 145 F.3d 28, 35–36 (1st Cir. 1998). Under an arbitrary and capricious standard, the court must decide “whether the administrator’s action on the record before him was unreasonable.” Liston v. Unum Corp. Officer Severance Plan, 330 F.3d 19, 24 (1st Cir. 2003). See also Stamp, 531 F.3d at 94 (“we need not decide what is the best reading of the words in the insurance policy … nor how we would have applied those words de novo. Instead, we are called upon only to decide whether the plan administrator’s denial of benefits was ‘reasoned and supported by substantial evidence’”); Wright, 402 F.3d at 74 (quoting Gannon v. Metro. Life Ins. Co., 360 F.3d 211, 213 (1st Cir. 2004)). “Substantial evidence exists if it is reasonably sufficient to support a conclusion.” Sullivan v. Raytheon Co., 262 F.3d 41, 51 (1st Cir. 2001) (internal quotations omitted).

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The First Circuit has not explained how, if at all, such deference is affected by a structural conflict of interest post-Glenn, in the specific context of plan interpretation. In D&H Therapy Assoc. v. Boston Mut. Life Ins. Co., 640 F.3d 27, 35 (1st Cir. 2011), the court stated that challenges to benefit determinations “have typically involved the application of contested facts to uncontested plan terms.” The court noted the dearth of opinions regarding “purely interpretive questions” and that the Supreme Court has not spoken directly to how courts should “assess whether an administrator’s construction of a plan term is so unreasonable as to constitute an abuse of discretion.” Id. at 36. The D&H Therapy court further noted that Glenn required lower courts to consider conflicts of interest but also “warned against creating formulas that will ‘falsify the actual process of judging.’” Id. (quoting Glenn, 554 U.S. at 108). The court commented that “terms like ‘reasonable’ are … difficult to define precisely,” that the review must “reflect the relevant principles of trust law, rather than contract law,” and that the analysis must also weigh the (sometimes conflicting) interests underlying ERISA. Id. at 37. The D&H Therapy court then conducted a detailed review of the approaches taken in other circuits to interpretive questions, but declined to follow any of those approaches. The court stated: “Although these standards are instructive, we do not adopt them or any specific guiding factors. With all due deference to Boston Mutual’s role as fiduciary, it is clear that its construction of the ERISA plan at issue stretches beyond the bounds of reasonableness … for a number of reasons, which are specific to the particular facts at hand.” Id. at 38. In 129

practice, however, courts should apply deferential review to interpretive questions when the plan confers discretionary authority to the administrator to construe the terms of the plan. See Brien v. Metro. Life Ins. Co., 2012 WL 4370677, at *11 (D. Mass. Sept. 21, 2012). VI. Discovery in ERISA Cases A. Limitations on Discovery Discovery is permitted in limited circumstances in the First Circuit. However, despite the U.S. Supreme Court’s decision in Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), the party seeking discovery must still overcome the strong presumption that the record on review is limited to what was before the administrator. Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 520 (1st Cir. 2005) (citing Liston v. Unum Corp. Officer Severance Plan, 330 F.3d 19, 23–24 (1st Cir. 2003)). This rule applies to discovery regardless of whether the standard of review is de novo or deferential. Orndorf, 404 F.3d at 520. See also Morales-Alejandro v. Medical, 486 F.3d 693 (1st Cir. 2007) (plaintiff’s request for discovery properly denied where the plaintiff had no basis to allege a conflict of interest and showed no other reason to support the request for discovery). In Liston, the First Circuit addressed the issue of judicial discretion to permit discovery in ERISA denialof-benefits cases when the stated objective of discovery is to supplement the record with evidence pertaining to claims other than the one being reviewed. According to the court, “some very good reason is needed to overcome 130

the strong presumption that the record on review is limited to the record before the administrator.” Liston, 330 F.3d at 23. In a denial-of-benefits claim, “the central issue must always be what the plan promised … and whether the plan delivered.” Id. However, the court recognized that the treatment afforded to similarly situated individuals can be an appropriate topic for discovery “in some cases.” Id. Whether or not discovery may be permitted “turns on the nature of the challenge to the decision.” Orndorf, 44 F.3d at 519. Where the challenge is to the procedure used to reach the decision, personal bias by the plan administrator, or prejudicial procedural irregularity, discovery may be permitted. Also, discovery may be needed to explain a key item, such as the duties of a claimant’s occupation if omitted from the record. Id. at 519–20; Liston, 330 F.3d 9, 23–24; Doe v. Travelers Ins. Co., 167 F.3d 53, 57–58 (1st Cir. 1999). Courts in the First Circuit have allowed the plaintiff limited discovery “to determine whether the fiduciary or administrator fulfilled his fiduciary role in obtaining the necessary information in order to make his determination, whether the persons who assisted in compiling the record followed the proper procedure, as well as whether the record is complete.” Ardolino v. Metro. Life Ins. Co., 2001 WL 34563168, at *2–3 (D. Mass. July 2, 2001) (allowing discovery to determine the parameters of the administrative record, and the policy, procedures, training, and experience that the plan administrator relied upon in denying the claim). See also Glista v. Unum Life Ins. Co. of Am., 378 F.3d 113 (1st Cir. 2004) (allowing 131

discovery of policy and procedures manuals and training manuals and limited depositions regarding whether the insurer failed to follow its own guidelines); Ganem v. Liberty Life Assur. Co. of Boston, 2012 WL 5464604, at *4 (D. Me. Nov. 9, 2012) (ordering the defendant to produce materials pertaining to the procedures or standards for handling fibromyalgia claims, claims management services referrals, or job versus occupation determinations); Tebo v. Sedgwick Claims Mgmt. Servs., Inc., 2010 WL 2036961 (D. Mass. May 20, 2010) (requiring the defendant to produce internal guidelines, plans, and training materials that related to the standards under which the plaintiff’s application was analyzed, that existed at the time plaintiff’s claim was pending, and that related to the general topics addressed in the administrator’s decision); Slusarski v. Life Ins. Co. of N. Am., 632 F. Supp. 2d 159 (D.R.I. 2009) (allowing discovery on whether the plan administrator paid interest to other beneficiaries under the plan where a decision denying benefits had been reversed and paid retroactively); Weed v. Prudential Ins. Co. of Am., 2009 WL 2835207 (D. Mass. Aug. 28, 2009) (ordering production of two pages of claim guide addressing the plan’s preexisting condition exclusion, subject to a confidentiality order); Thompson v. UBS Fin. Servs., Inc., 2009 WL 5103284 (D.R.I. Dec. 18, 2009) (requiring production of claims manuals or policies related to disability benefit claims based on chronic fatigue and Ménière’s disease); Cannon v. Unum Life Ins. Co. of Am., 219 F.R.D. 211, 216 (D. Me. 2004) (requiring defendant to produce documents regarding internal policies and procedures relied upon in denying claim and administrative precedent on other claims regarding related 132

illnesses); Lowell v. Drummond, Woodsum & MacMahon Emp. Med. Plan, 2004 WL 437478 (D. Me. Mar. 4, 2004) (allowing limited discovery regarding the content of the record and contractual relationship between the contract administrator and the plan administrator). Discovery in an ERISA case, however, is not open ended. ERISA’s goal of speedy adjudication, in addition to the limitation of review on the merits to the record, operates to circumscribe discovery. Discovery related to new evidence outside the administrative record, such as newly uncovered medical opinions that the plaintiff is disabled, is improper. Orndorf, 404 F.3d at 518; Doe, 167 F.3d at 58. “Plaintiff is not entitled to engage in discovery which could have or should have been presented to the administrator prior to action on the [ERISA] claim.” Ardolino, 2001 WL 34563168, at *2–3; see also Sutera v. Aetna Life Ins. Co., 2007 WL 3020187 (D. Mass. Oct. 11, 2007) (request for production of documents allowed so long as it is narrowly tailored to the categories of documents defined as relevant by Department of Labor Claim Regulations; remainder of requests denied). B. Discovery and Conflict of Interest Following the U.S. Supreme Court’s decision in Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), the First Circuit addressed discovery in connection with a conflict of interest. In Denmark v. Liberty Life Assurance Co. of Boston, 566 F.3d 1, 10 (1st Cir. 2009), the court, while acknowledging that discovery was not a specific issue raised on appeal, stated that it had a “responsibility to offer guidance to the parties and the district court” 133

regarding discovery. The court recognized that Glenn could fairly be read as contemplating some discovery on the issue of whether a structural conflict of interest had morphed into an actual conflict. The structural conflict in Denmark existed because Liberty both paid the benefits and made the benefits determination. The First Circuit held that any discovery in the conflict issue “must be allowed sparingly and, if allowed at all, must be narrowly tailored so as to leave the substantive record essentially undisturbed.” Id. at 10. The court noted that in future cases it expected plan administrators would document in the administrative record the procedures used to prevent or mitigate the effect of structural conflicts. The court held that a conflict-oriented discovery would be needed only to the extent that gaps exist in the administrative record. The court used the example of a plan administrator’s failure to detail its procedures as one basis to allow discovery. Otherwise, the court held, discovery must normally be limited to clarifying ambiguities and ensuring that documented procedures were followed. Since Denmark, the district courts in the First Circuit have addressed conflict-based discovery in a number of decisions. Grosso v. Aetna Life Ins. Co., 2013 WL 949494, at *1–2 (D. Me. Mar. 11, 2013) (denying request for discovery); Ganem v. Liberty Life Assur. Co. of Boston, 2012 WL 5464604, at *6–8 (D. Me. Nov. 9, 2012) (denying vast majority of requested discovery); Chapman v. Supp’l Benefit Retirement Plan of Lin Television Corp., 861 F. Supp. 2d 41, 46 (D. R.I. 2012) (denying request for discovery); Ramsdell v. Huhtamaki, 134

Inc., 2012 WL 1440613 (D. Me. April 23, 2012) (denying request for discovery); Fortin v. Hartford Life & Acc. Ins. Co., 2011 U.S. Dist. Lexis 137118, at *2–3 (D. Me. Nov. 29, 2011) (denying request for discovery); Beattie v. Prudential Ins. Co. of Am., 2011 WL 2413458, at 1–2 (D. Mass. June 8, 2011) (ordering production of written policies and procedures, if any, which address (1) insulation of the claims review and evaluation process from financial considerations and (2) financial incentives offered to claims reviewers or others involved in the claim review process); Ferry v. Prudential Ins. Co. of Am., 2011 WL 322000 (D. Me. Jan. 30, 2011) (granting plaintiff’s motion for reconsideration and allowing one set of up to ten interrogatories and one set of document requests); Jones v. Walgreen Co., 2011 WL 2746788 (D. Mass. July 12, 2011) (denying request for discovery); Parent v. Principal Life Ins. Co., 763 F. Supp. 2d 257 (D. Mass. 2011) (denying discovery request where plaintiff provided no “good reason” for court to set aside the First Circuit’s clear preference not to allow discovery); Estrella v. Hartford Life & Acc. Ins. Co., 271 F.R.D. 8 (D. Mass. 2010) (allowing depositions of doctors and Hartford’s employees); Monast v. Johnson & Johnson, 2009 WL 2973309 (D. Mass. Sept. 14, 2009) (denying request for discovery where plaintiff failed to articulate how information sought would show an improper extraneous influence on administrator’s decision making); Slusarski v. Life Ins. Co. of N. Am., 632 F. Supp. 2d 159 (D.R.I. 2009) (allowing discovery even where the existence of an actual conflict of interest seemed improbable given the ultimate decision to pay benefits, because the administrative record did not include any evidence of conflict ameliorating procedures); Thompson v. UBS Fin. 135

Servs., Inc., 2009 WL 5103284 (D.R.I. Dec. 18, 2009) (allowing discovery regarding steps taken by plan administrator to insulate decision-making process against potential effects of structural conflicts); Weed v. Prudential Ins. Co. of Am., 2009 WL 2835207 (D. Mass. Aug. 28, 2009) (allowing discovery concerning relationship between claims administrator and evaluating doctors and allowing plaintiff’s request to obtain documents available to claims personnel related to preexisting conditions, subject to a confidentiality order). C. The Fiduciary Exception The First Circuit has not yet ruled on whether the fiduciary exception applies to the attorney-client privilege in the ERISA context. However, the issue has been addressed on two occasions by the District of Massachusetts. In Smith v. Jefferson Pilot Fin. Ins. Co., 245 F.R.D. 45 (D. Mass. 2007), suit was filed regarding the calculation of monthly disability benefits under a group policy. Prior to filing suit Smith hired an attorney to represent him in connection with discussions with Jefferson Pilot’s claims personnel concerning the benefit amount. Jefferson Pilot’s claims personnel consulted in-house counsel in preparing responses to Smith’s counsel. In the litigation, Smith sought an order from the court compelling Jefferson Pilot to disclose the documents withheld from production based on the attorney-client privilege. Smith argued the documents must be produced pursuant to the fiduciary exception. All parties agreed that in its role as a claims 136

administrator, Jefferson Pilot was a fiduciary by virtue of the fact that it exercised authority over the payment of benefits under the ERISA plan. The court observed that the fiduciary exception is rooted in two distinct rationales. The first is that the exception derives from an ERISA trustee’s duty to disclose all information regarding plan administration to plan beneficiaries. The second rationale is that, as a representative of the beneficiaries, a trustee is not the real client. Thus, when an attorney advises a plan administrator or other fiduciary concerning plan administration, the attorney’s clients are the beneficiaries, not the administrator. The court noted, however, that courts have determined that the fiduciary exception does not defeat the attorneyclient privilege with respect to communications between a fiduciary and its attorneys on non-fiduciary matters. Thus, when an ERISA trustee seeks legal advice for its own protection, the fiduciary exception is not applicable. In Smith’s case, the court held that the documents at issue were generated in connection with Jefferson Pilot’s processing of Smith’s claim for benefits and before a final benefit determination was made. The documents concerned issues of plan administration and were entirely unrelated to the defense of a pending legal action or other non-fiduciary matter. Therefore, the fiduciary exception applied. Subsequently, in Tebo v. Sedgwick Claims Mgmt. Services, Inc., 2010 WL 2036961 (D. Mass. May 20, 137

2010), the court addressed the fiduciary exception. While noting that many jurisdictions have recognized a fiduciary exception to the attorney-client privilege in ERISA cases, the court held that the exception to the attorney-client privilege did not apply in that case because the relevant communications had occurred after Sedgwick had issued its initial decision to deny benefits to Tebo. Because the interests of the beneficiary and those of the plan administrator diverged at that point, the fiduciary exception no longer applied. VII. Evidence A. Scope of Evidence under Standards of Review In the First Circuit, the general rule is that the scope of evidence is limited to the administrative record, regardless of whether the standard of review is de novo or deferential. Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 518 (1st Cir. 2005); Liston v. Unum Corp. Officer Severance Plan, 330 F.3d 19 (1st Cir. 2003). In Liston, the court held that under the arbitrary and capricious standard the focus of judicial review is ordinarily limited to the record before the plan administrator and at least some very good reason is needed to overcome that presumption. Liston, 330 F.3d at 24. It is almost inherent in the idea of reviewing an agency or other administrative action for reasonableness; how could an administrator act unreasonably by ignoring information never presented to it? Id. at 23. Review of the ultimate conclusion of whether the evidence supports the finding of a disability does not itself warrant introduction of new evidence about 138

historical facts. Orndorf, 510 F.3d at 518. New, previously unavailable medical evidence offered for the first time during litigation is inadmissible. Doe v. Travelers Ins. Co., 167 F.3d 53, 57 (1st Cir. 1999); Gross v. Sun Life Assur. Co. of Can., 2012 WL 29061, at *5 (D. Mass. January 6, 2012) (inappropriate to consider [award of SSDI benefits] since SSDI benefits were awarded and brought to Sun Life’s attention long after plaintiff had exhausted ERISA’s administrative procedures); OrtegaCandelaria v. Orthobiologics, LLC, 2012 WL 1982401, at *2 (D.P.R. June 1, 2012) (refusing to examine any medical evidence outside of the record and noting that even if new evidence directly concerned question of disability before final administrative decision, it is inadmissible); Rossignol v. Liberty Mut. Assur. Co. of Am., 2009 WL 1687810 (D.N.H. June 16, 2009) (denying motion to expand administrative record to add new medical records); Burchill v. Unum Life Ins. Co. of Am., 327 F. Supp. 2d 41 (D. Me. 2004) (holding that insurer need not consider medical evidence that plaintiff’s condition worsened after final denial of claim). In Orndorf, the First Circuit expanded this ruling to cases reviewed de novo and expressly held that it would offend interests of finality and exhaustion of administrative procedures required by ERISA to shift the focus from that decision to a moving target by presenting extra-administrative record evidence going to the substance of the decision. Review of the ultimate conclusion of whether the evidence supports the finding does not warrant calling as witnesses those persons whose opinions and diagnosis or expert testimony and reports are in the administrative record. Orndorf, 510 F.3d at 519. 139

Where review is de novo, the issue is simply whether the court believes there is sufficient evidence to support a finding of disability. Estate of Jajuga v. Prudential Ins. Co. of Am., 742 F. Supp. 2d 176, 179 (D. Mass. 2010). Both Liston and Orndorf held that “[t]here may be times where it is appropriate for courts to hear new evidence.” Orndorf, 510 F.3d at 520. For example, where the challenge is not to the merits of the decision to deny benefits, but to the procedure used to reach the decision, outside evidence may be of relevance. Id. Evidence outside the administrative record might be relevant to a claim of personal bias by a plan administrator or prejudicial procedure irregularity in the ERISA administrative review procedures. Id. Also, evidence may be relevant to explain a key item, such as the duties of the claimant’s position, if it was omitted from the administrative record. Id. See, e.g., Ortega-Candelaria v. Orthobiologics, LLC, 2012 WL 1982401, at *3 (D.P.R. June 1, 2012) (holding that court will not examine any additional medical evidence outside the record, and will not permit discovery beyond relevant plan-related documents and the claim record but will not yet foreclose the possibility of considering (limited non-medical) evidence necessary to explain a key item, such as the duties of the claimant’s position, if it was omitted from the administrative record). Based on the U.S. Supreme Court’s decision in Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), and the First Circuit’s ruling in Denmark v. Liberty Life Assur. Co. of Boston, 566 F.3d 1 (1st Cir. 2009), under the appropriate circumstances, a 140

court may also consider appropriate evidence regarding an administrator’s conflict of interest. “Because fullblown discovery would reconfigure that record and distort judicial review, courts have permitted only modest, specifically targeted discovery in such cases.” Id. at 10. “Even in the area of structural conflict, discovery ‘must be allowed sparingly and, if allowed at all, must be narrowly tailored so as to leave the substantive record essentially undisturbed.’ Discovery on the topic should exist only where there are gaps or ambiguities in the record or to ensure that documented procedures were followed.” Ganem v. Liberty Life Assur. Co. of Boston, 2012 WL 5464604 (D. Me. Nov. 9, 2012) (citation omitted) (quoting Denmark, 566 F.3d at 10). See, e.g., McGahey v. Harvard Univ. Flexible Benefits Plan, 685 F. Supp. 2d 168, 178 (D. Mass. 2009) (considering information obtained through discovery regarding independent medical examiners in reaching conclusion that denial of benefits was arbitrary and capricious). B. Evidentiary Determinations

Value

of

Social

Security

Although a determination of disability by the Social Security Administration (SSA) can be relevant evidence, the mere existence of a Social Security disability award has no binding effect on a plan’s decision to discontinue benefits. Kindelan v. Disability Mgmt. Alternatives, LLC, 437 F. App’x 5, 7 (1st Cir. 2011) (“there is no indication that Social Security restricts qualifying disabilities to those that can be proven on the evidence required by the Plan … [and] [t]he evidentiary significance of any federal determination is accordingly limited.”); Richards v. 141

Hewlett-Packard Corp., 592 F.3d 232, 240 (1st Cir. 2010); Gannon v. Metro. Life Ins. Co., 360 F.3d 211, 215 (1st Cir. 2004); Doyle v. The Paul Revere Life Ins. Co., 144 F.3d 181, 186 n.4 (1st Cir. 1998). The criteria for determining eligibility for Social Security disability benefits may be substantially different from the criteria established by many insurance plans. Pari-Fasano v. ITT Hartford Life and Acc. Ins. Co., 230 F.3d 415, 420 (1st Cir. 2000). Although “a plan is not required to accept a Social Security adjudication of disability as binding on it where the definitions of disability are different[,] … that does not mean that the Social Security determination provides no relevant evidence.” Bard v. Bos. Shipping Ass’n, 471 F.3d 229, 242 n.17 (1st Cir. 2006); see also Scibelli v. Prudential Ins. Co. of Am., 666 F.3d 32, 42–43 (1st Cir. 2012) (“That the Social Security Administration found [the plaintiff] eligible for SSDI benefits is not conclusive but tends to support our conclusion.”). The reasoning of the Social Security Administration’s determination cannot simply be ignored. A proper acknowledgment of a contrary SSA disability determination would entail comparing and contrasting not just the definitions employed but also the medical evidence upon which the decisionmakers relied. Petrone v. Long Term Dis. Income Plan for Choices Eligible Employees of Johnson & Johnson and Affiliated Cos., 2013 WL 1282315 (D. Mass. March 27, 2013) (holding that the ALJ’s decision is further evidence of the insured’s disability and a reasonable determination must address the substance of the decision, not merely whether it is binding).

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In Gannon, the SSA made specific findings that were highly relevant to MetLife’s determination of Gannon’s eligibility for disability benefits. Most significantly, the SSA found that Gannon’s condition was “not severe enough to keep [her] from working,” thereby providing some independent evidence that Gannon no longer met the plan’s definition of “disabled.” The First Circuit held that MetLife was therefore entitled to rely on the SSA’s denial of Gannon’s claim for Social Security disability benefits in its consideration of Gannon’s claim for disability benefits under the plan. Gannon, 360 F.3d at 215. As a result of the U.S. Supreme Court’s decision in Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), claimants continue to cite Social Security determinations not only as evidence of their disability, but also with regard to a plan administrator’s conflict of interest. In Glenn, the Court affirmed the decision of the Sixth Circuit Court of Appeals that had found questionable the fact that MetLife had encouraged Glenn to argue to the SSA that she could do no work and received the bulk of the benefits of her success in doing so, but then ignored the SSA’s findings when MetLife concluded that Glenn could do sedentary work. In those instances in which the plan administrator encourages or even requires the claimant to apply for Social Security benefits, and then makes a decision contrary to Social Security, the claimant can be expected to utilize this as evidence of a conflict of interest or an arbitrary and capricious determination. See Parent, 763 F. Supp. 2d. at 261 (plaintiff’s primary evidence of conflict of interest is principal’s requirement that she apply for Social Security disability benefits and, once 143

they were granted, its subsequent denial of disability benefits); McGahey v. Harvard Univ. Flexible Benefits Plan, 685 F. Supp. 2d 168, 178 (D. Mass. 2009) (finding plan’s disregard of the SSA’s disability determination a relevant factor in determining whether the decision was arbitrary and capricious); see also Cusson v. Liberty Life Assur. Co. of Bos., 592 F.3d 215, 228 (1st Cir. 2010) (rejecting plaintiff’s argument that Liberty’s failure to credit the SSA’s award of disability benefits shows that Liberty was influenced by its conflict, where SSA’s approval occurred after Liberty’s denial of disability benefits). C. Effect of an Independent Medical Exam versus a Medical Record Review While the opinion of the claimant’s treating physician must be considered, it is not entitled to special deference. Richards v. Hewlett-Packard Corp., 592 F.3d 233, 240 (1st Cir. 2010) (citing Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 526 (1st Cir. 2005)). However, claimants also often argue that the opinions of physicians who examine the claimant should be given greater weight than those who conduct a paper review. See, e.g., Ramsdell v. Aetna Life Ins. Co., 2012 WL 3575193 (D. Me. Jul. 31, 2012). In Orndorf, the plaintiff argued that Paul Revere’s decision was without support in the record because, among other things, Paul Revere did not have Orndorf physically examined and instead relied upon record reviews in reaching its decision. Orndorf, 404 F.3d at 526. The First Circuit held that Orndorf’s claim that Paul 144

Revere did not have its own physician examine Orndorf, as opposed to reviewing records, did not establish his case. “Denials of benefits may be based on review of medical records submitted by the claimant.” Id. Orndorf’s claim was thoroughly reviewed by a board-certified internal medicine physician. And thus, this is simply not a case where the only medical evidence ran in Orndorf’s favor, thus casting into doubt a denial of benefits. Id. Similarly, in Richards, the plaintiff in essence argued that because his policy gave Prudential the right to have the claimant undergo a physical exam, Prudential was limited to the use of physical exams and could not have a paper review performed. Richards, 592 F.3d at 240. Rejecting this argument, the First Circuit reaffirmed its decision in Orndorf that “an insurer is not required to physically examine a claimant and that benefit determinations may be based on review of medical records.” Id.; Orndorf, 405 F.3d at 526. D. Can an Administrator Require Objective Evidence of Disability? In the First Circuit it is impermissible to require that a claimant produce objective evidence to establish that he or she has a particular medical condition that does not lend itself to diagnosis by objective verification, such as fibromyalgia. Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 17 (1st Cir. 2003); Tebo v. Sedgwick Claims Management Services, Inc., 848 F. Supp. 2d 39, 61 (D. Mass. 2012). A plan administrator cannot simply ignore or discount reports of pain on the grounds that they are “subjective.” Desrosiers v. Hartford Life & Acc. Ins. Co., 145

515 F.3d 87, 93 (1st Cir. 2008). Likewise, a medical professional’s assessment of pain cannot be ignored by the plan when determining whether plaintiff is disabled. See Pollini v. Raytheon Disability Emp. Trust, 54 F. Supp. 2d 54, 60 (D. Mass. 1999) (finding the administrator’s rejection of the claim solely on the basis of a purported lack of objective evidence “troubling and questionable”). Even though subjective evidence is arguably less dependable than objective evidence, id. at 59, at a minimum, the plan administrator should consider the evidence and provide a satisfactory explanation if it elects to discount it, rather than simply rejecting it as “subjective.” Quinlisk v. Unum Life Ins. Co. of Am., 2009 WL 6506884, at *9 (D. Mass. Sept. 29, 2009). In dealing with hard-to-diagnose, pain-related conditions, it is not reasonable to expect or require objective evidence supporting the beneficiary’s claimed diagnosis. See Cook v. Liberty Life Assur. Co., 320 F.3d 11, 21 (1st Cir. 2003). The focus instead must be on whether evidence supports an inability to work due to “the physical limitations imposed by the symptoms of such illnesses….” Boardman, 337 F.3d at 16 n.5. It is permissible, however, to require objective findings where the condition does lend itself to diagnosis by objective verification. Desrosiers, 515 F.3d at 93 (where Hartford’s claim denials made reference to a lack of objective findings in conjunction with particular diagnoses—e.g., lumbar disc herniation—which do lend themselves to objective verification, there was no abuse of discretion). Likewise it is permissible to require objective evidence that a claimant is unable to work as a result of his or her condition, even if the condition cannot 146

be diagnosed by objective measures. Boardman, 337 F.3d at 17 (Prudential did not require Boardman to present objective medical evidence to establish her illnesses, but rather wanted objective evidence that these illnesses rendered her unable to work. “While the diagnoses of chronic fatigue syndrome and fibromyalgia may not lend themselves to objective clinical findings, the physical limitations imposed by the symptoms of such illnesses do lend themselves to objective analysis.”); Desrosiers, 515 F.3d at 93 (to the extent Hartford otherwise referred to objective evidence, it did so in the context of Desrosiers’s claim that she was unable to work and was therefore permissible). E. Other Evidence Issues If a dispute arises as to what constitutes the record, the court makes the final decision. Recupero v. New England Tel. & Tel Co., 118 F.3d 820, 831–32 (1st Cir. 1997). The district court may take “‘evidence on motion’ or convene a non-jury ‘trial’ in order to develop a ‘record’ suitable for judicial review of a challenged out of court decision.” Id. at 833. A court may also convene either of these proceedings to determine whether the record is complete and, if not, what additional supplementation is appropriate. Id. at 834. Where the court determines that the record is incomplete and admits supplemental evidence, it may remand the case back to the administrator for a full and fair review. Jones v. Metro. Life Ins. Co., 729 F. Supp. 2d 467, 472 (D. Mass. 2010); Urso v. Prudential Ins. Co. of Am., 2004 WL 3355265, at *6 (D.N.H. 2004). However, the burden is on the claimant to demonstrate that he or she is qualified for benefits 147

under the ERISA plan. See Richards v. Hewlett-Packard Corp., 592 F.3d 232, 239 (1st Cir. 2010) (“Richards’ burden is to prove that he is ‘unable to perform for wage or profit the material and substantial duties of any job’ for which he is reasonably fit by education, training or experience.”); Morales-Alejandro v. Med. Card Sys., Inc., 486 F.3d 693, 700 (1st Cir. 2007) (“A claimant seeking disability benefits bears the burden of providing evidence that he is disabled within the plan’s definition.”); Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 519 (1st Cir. 2005); Terry v. Bayer Corp., 145 F.3d 28, 34 (1st Cir. 1998). VIII. Procedural Aspects of ERISA Practice A. Appropriate Defendant In the First Circuit, the proper party defendant in an action concerning ERISA benefits is the party that controls the administration of the plan. Cintron-Serrano v. Bristol-Myers Squibb, P.R., Inc., 497 F. Supp. 2d 272, 276 (D.P.R. 2007). That is often the plan administrator. Barkin v. Patient Advocates, LLC, 493 F. Supp. 2d 119, 122 (D. Me. 2007). If an entity other than the named plan administrator makes the final determination, then that entity functions as the plan administrator for the purposes of an ERISA benefits claim. Cintron-Serrano, 497 F. Supp. 2d at 276. When the plan administrator retains discretion to decide disputes, a third-party service provider is not a fiduciary of the plan and thus not amenable to a suit under 29 U.S.C. § 1132(a)(1)(B). Terry v. Bayer Corp., 145 F.3d 28, 35 (1st Cir. 1998); Me. Coast Mem’l Hosp. v. Sargent, 369 F. Supp. 2d 61, 64 (D. 148

Me. 2005). Indeed, the power to act for a plan and institute plan policies is essential to the status of a fiduciary under ERISA. Santana v. Deluxe Corp., 920 F. Supp. 249, 254 (D. Mass. 1996). B. Methods of Adjudication The First Circuit has expressly ruled that in an ERISA case, where review is based only on the administrative record before the plan administrator, summary judgment is the vehicle for deciding the issues, regardless of whether the standard of review is de novo or deferential. D & H Therapy Associates, LLC v. Boston Mut. Life Ins. Co., 640 F.3d 27 (1st Cir. 2011); Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir. 2005). However, normal summary judgment standards do not apply. “This means that the non-moving party is not entitled to the usual inferences in its favor.” Id. The First Circuit has left open the possibility that in instances where the court determines that additional discovery and/or evidence is warranted, another form of adjudication may be appropriate. However, the district courts routinely strike claims for a jury in ERISA benefit cases. See Medina v. Triple-S Vida, Inc., 832 F. Supp. 2d 117 (D. Puerto Rico 2011); Pepicelli v. Fall River Shirt Co., Inc., 2010 WL 3749453 (D. Mass. Sept. 21, 2010); Gammell v. Prudential Ins. Co. of Am., 502 F. Supp. 2d 167, 172 (D. Mass. 2007); Charlton Mem’l Hosp. v. Foxboro Co., 818 F. Supp. 456, 459–60 (D. Mass. 1993). C. Reported ERISA Trials

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There have been rare occasions in the First Circuit where claims for benefits under ERISA have resulted in a bench trial. See, e.g., Janeiro v. Urological Surgery Prof’l Ass’n, 457 F.3d 130 (1st Cir. 2006) (three-day bench trial held on ERISA claim for pension benefits); Doe v. Travelers Ins. Co., 167 F.3d 53 (1st Cir. 1999) (four-day bench trial held on ERISA claim for benefits). However, Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir. 2005), makes clear that in the First Circuit summary judgment is the appropriate vehicle for deciding cases where review is based only on the administrative record that was before the plan administrator. D. Special Procedures for ERISA Benefit Cases The First Circuit has not adopted any formal procedures specifically for ERISA benefit cases that are used uniformly throughout the circuit. However, a number of district court judges issue a preliminary order regulating ERISA proceedings. The orders are similar. The order can specify that the judge will assume that the matter is reviewed under the abuse of discretion standard of review unless good cause is shown for applying the de novo review. In addition, the order frequently sets parameters for filing the record with the court, specific procedures for resolving disputes about the record, and requesting discovery related to supplementing the record. The judges typically require that the case be resolved on motions for summary judgment (or, alternatively, motion for judgment on the administrative record) unless a party can show cause for holding a trial or evidentiary hearing. It is best to check the local rules for your district, and also

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inquire of the courtroom clerk assigned to the district court judge. Of particular note is the standard ERISA scheduling order for the District of Maine. In that district, the order, presumably in reliance on Denmark v. Liberty Life Assur. Co. of Boston, 556 F.3d 1 (1st Cir. 2009), specifically defines “the administrative record” to include “all materials, to the extent they exist, which document efforts to mitigate the effects of structural conflicts.” Thus, the Maine court appears to require insurers to produce information documenting conflict-ameliorating measures at the time the insurer files the record with the court (at least to the extent such information exists at that time). IX. Remedies A. Remedies for Benefits Owed The most common type of litigation seen in ERISA is for benefits provided by an ERISA plan. This type of suit is authorized by 29 U.S.C. § 1132(a)(1)(B) which provides that a civil action may be brought by a participant or beneficiary to recover benefits due under the terms of the plan, to enforce rights under the terms of the plan, or to clarify rights to future benefits under the terms of the plan. See Santaliz Rios v. Metro. Life Ins. Co., 693 F.3d 57, 59 (1st Cir. 2012); Diaz v. Seafarers Intern. Union, 13 F.3d 454, 456 (1st Cir. 1994); Ramsdell v. Aetna Life Ins. Co., 2012 WL 3575193, at *1 (D. Me. July 31, 2012). B. Remedies for Breach of Fiduciary Duty

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Fiduciaries who fail to fulfill their responsibilities are “personally liable to make good to [the] plan any losses to the plan resulting from … such breach” in accordance with 29 U.S.C. § 1132(a). Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 18 (1st Cir. 1998). The only situations in which an individual may bring a claim against a fiduciary are (1) on behalf of the plan or (2) when equitable relief is sought. Watson v. Deaconess Waltham Hosp., 298 F.3d 102, 109 (1st Cir. 2002). Individuals cannot obtain compensatory or punitive damages for breach of fiduciary duty. Watson v. Deaconess Waltham Hosp., 141 F. Supp. 2d 145, 150 (D. Mass. 2001). In some instances the First Circuit has permitted an award of restitution to the plaintiff in order to prevent unjust enrichment. See Kwatcher v. Mass. Service Emp. Pension Fund, 879 F.2d 957 (1st Cir. 1989). The First Circuit noted that the appropriate distinction is not between “benefits” and “damages” but rather between relief to which a participant is entitled under ERISA and relief that is not authorized by the act. Evans v. Akers, 534 F.3d 65, 73 (1st Cir. 2008). In Evans, the First Circuit held that the Supreme Court’s refusal to allow suits for damages does not mean that monetary relief is excluded, but that it must be monetary relief to which the plan documents themselves entitle the participant. Id. ERISA does not authorize suits for extracontractual damages or damages separate from the benefits to which the plan documents entitle the participants. Claims for emotional distress, damages for failure to advise a participant of an option that would avoid taxes, or consequential damages 152

arising from a delay in processing a claim are extracontractual and not permitted. Id. However, a suit for losses to the plan due to mismanagement of plan assets, for example, “whether characterized as a suit for money damages or for additional benefits is expressly contemplated and explicitly authorized by ERISA.” Id. at 73–74. Moreover, damages need not be liquidated amounts to be recoverable. Id. In 2011, however, the Supreme Court issued its decision in CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011). The Amara Court arguably enlarged the relief that may be obtained by a participant or beneficiary under 29 U.S.C. § 1132(a)(3), which allows a participant or beneficiary to file a civil action to, among other things, “obtain other appropriate equitable relief.” In Amara, the Court held that in “a suit by a beneficiary against a plan fiduciary (whom ERISA typically treats as a trustee) about the terms of a plan (which ERISA typically treats as a trust)” a district court had within its power several “traditional equitable remedies.” These include the power to grant injunctions; the power to reform contracts; estoppel, and the power to order monetary “compensation for loss resulting from a trustee’s breach of duty, sometimes called a surcharge.” Id. at 1879–80. While the First Circuit has not yet addressed Amara, several district courts within the circuit have. In Kenney v. State St. Corp., 2011 WL 4344452 (D. Mass. Sep. 15, 2011), the plaintiff objected to a magistrate judge’s recommendation that his claims of 153

negligent misrepresentation and material non-disclosure be dismissed. The plaintiff argued that, in accordance with Amara, he should be allowed to pursue his claims as equitable relief under § 1132(a)(3). The court disagreed. The court held that Amara did not absolve the plaintiff of meeting his burden to show in a claim for negligent misrepresentation or omission that he detrimentally relied on the statements. Failing to plead any reliance or any misrepresentation or document that would have contained a material non-disclosure, the plaintiff could not state a plausible entitlement for any equitable relief. In Merrimon v. Unum Life Ins. Co. of Am., 845 F. Supp. 2d 310 (D. Me. 2012), the beneficiaries of group life insurance policies brought an action seeking, among other things, monetary relief, claiming that the insurer was unjustly enriched in connection with its use of retained asset accounts. The court observed the fact that the plaintiffs were seeking monetary relief did not mean the claims were not equitable given the Supreme Court’s decision in Amara. In Guerra-Delgado v. Popular, Inc., 2012 WL 1069703 (D.P.R. Mar. 29, 2012), the court denied the defendant’s motion to dismiss the plaintiff’s claim for equitable relief under § 502(a)(3). The plaintiff sought relief based upon what he alleged was false and misleading information provided by the defendant regarding his pension benefits. The court held that the plaintiff was essentially seeking the same relief as sought in Amara in the form of equitable estoppel and that the claim could continue.

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X. Fiduciary Liability Claims A. Definition of Fiduciary In the First Circuit the fiduciary duties imposed by ERISA apply only to those people or entities properly classified as fiduciaries. Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 18 (1st Cir. 1998). Fiduciary status does not depend on whether one is titled “plan administrator.” See Boucher v. Williams, 13 F. Supp. 2d 84, 91 (D. Me. 1998). The court will look at the plan document to determine whom it designates as the fiduciary. Dall v. Chinet Co., 33 F. Supp. 2d 26, 38 (D. Me. 1998). In addition to named fiduciaries, ERISA extends fiduciary status to functional fiduciaries—persons who act as fiduciaries. Beddall, 137 F.3d at 18; Anthony v. Jet Direct Aviation, Inc., 725 F. Supp. 2d 249, 253–54 (D. Mass. 2010). A party is a fiduciary to the extent that he or she exercises discretion over management of the plan or its funds or over its administration. Livick v. Gillette Co., 524 F.3d 24, 29 (1st Cir. 2008); Vander Luitgaren v. Sun Life Assur. Co. of Can., 2012 WL 5875526 (D. Mass. 2012) (defendant was acting as a fiduciary where it retained discretion with respect to selecting to pay the life benefits through retained asset accounts and in determining the interest rates to be credited to those accounts); W.E. Aubuchon Co. v. BeneFirst, LLC, 661 F. Supp. 2d 37, 50–51 (D. Mass. 2009). Likewise, a party not named as a fiduciary to the plan, including an employer, can become a fiduciary to the extent it undertakes fiduciary duties. Livick, 524 F.3d at 29; see also Guerra-Delgado v. Popular, Inc., 2012 WL 1069703 155

(D. Puerto Rico, March 29, 2012) (defendants acted as fiduciaries where they induced the plaintiff to accept employment by misleading him about credits of years of employment towards his retirement benefit plan). However, the mere exercise of physical control or the performance of mechanical administrative tasks generally is insufficient to confer fiduciary status. See Cottrill v. Sparrow, Johnson & Ursillo, Inc., 74 F.3d 20, 21–22 (1st Cir. 1996); Green v. ExxonMobil Corp., 413 F. Supp. 2d 103, 110–11 (D. R.I. 2006). Because one’s fiduciary responsibility under ERISA is directly and solely attributable to the possession or exercise of discretionary authority, fiduciary liability arises in specific increments correlated to the vesting or performance of particular fiduciary functions in service of the plan, not in broad, general terms. Beddall, 137 F.3d at 18. A fiduciary named in an ERISA plan can undertake nonfiduciary duties, and a party not identified as a plan fiduciary can become one, to the extent that he or she undertakes discretionary tasks related to the plan’s management or administration. Livick, 524 F.3d at 29. Making recommendations regarding plan administration is not indicative of fiduciary status. Santana v. Deluxe Corp., 920 F. Supp. 249, 254 (D. Mass. 1996). Attorneys, accountants, auditors, actuaries, and others who render their professional services to an employee benefit plan are not fiduciaries unless there is a showing of control of the management of the plan’s assets, investment advice for a fee, or a discretionary responsibility over the administration of the plan. Toomey v. Jones, 855 F. Supp. 19, 23 (D. Mass. 1994). Persons 156

processing claims, applying plan eligibility rules, communicating with employees, and calculating benefits are also not fiduciaries. Id. B. Definition of Fiduciary Duties The First Circuit follows the general rule that a “fiduciary must, among other things, follow a ‘prudent man standard of care.’” Watson v. Deaconess Waltham Hosp., 298 F.3d 102, 109 (1st Cir. 2002) (citing 29 U.S.C. § 1104(a)(1)); see also Bunch v. W.R. Grace & Co., 555 F.3d 1, 6–8 (1st Cir. 2009). “A fiduciary may be liable to the plan for violations of this duty.” Watson, 298 F.3d at 109 (citing 29 U.S.C. § 1109). “In addition, an individual plan participant or beneficiary may bring suit for equitable relief for breach of fiduciary duty under ERISA’s socalled ‘catch all’ provision,….” Id. (citing 29 U.S.C. § 1132(a)(3)). “ERISA’s specific statutory duties are not meant to be exhaustive of a fiduciary’s obligations; federal courts are expected to flesh out ERISA’s general fiduciary duty clause.” Barrs v. Lockheed Martin Corp., 287 F.3d 202, 207 (1st Cir. 2002) (citing 29 U.S.C. § 1104(a)). For instance, the First Circuit held there was no breach of fiduciary duty by a hospital where there was no evidence of “bad faith, concealment, or fraud.” Watson, 298 F.3d at 114. See also Agosto v. Academia Sagrado Corazon, 739 F. Supp. 2d 90, 98 (D.P.R. 2010) (no evidence of plan administrator’s bad faith, active concealment,

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or fraud, in its failure to provide plan participants notification of their COBRA rights upon employment termination); Alves v. Harvard Pilgrim Health Care, Inc., 204 F. Supp. 2d 198, 214 (D. Mass. 2002) (no evidence of the usual hallmarks of breach of fiduciary duty: intentional misrepresentation, bad faith, failure to protect the financial integrity of the plan, or a failure to provide material information in response to a direct inquiry). Fiduciaries have a duty to inform beneficiaries of material facts about the plan. Watson, 298 F.3d at 115. However, that affirmative fiduciary duty is subject to two limitations: (1) “a duty only arises if there was some particular reason that the fiduciary should have known that his failure to convey the information would be harmful” and (2) “fiduciaries need not generally provide individualized unsolicited advice.” Id. at 114–15. “Absent a promise or misrepresentation, the courts have almost uniformly rejected claims by plan participants or beneficiaries that an ERISA administrator has to volunteer individualized information….” Barrs, 287 F.3d at 207. For example, the calculation of benefits and preparation of reports concerning participants’ benefits are ministerial functions and not a fiduciary duty. Livick v. Gillette Co., 524 F.3d 24, 29–30 (1st Cir. 2008) (providing estimates of benefits is not a fiduciary function, nor is hiring someone to provide such estimates purely for plan members’ use). However, if a specific commitment is made by an employer to notify a beneficiary about a particular event relating to plan benefits, the First Circuit has found it “at least arguable” that the employer breaches its fiduciary duty if it fails to do so. Barrs, 287 F.3d at 210. 158

An employer also has “a fiduciary duty not to mislead an employee as to the prospective adoption of a plan under serious consideration.” Vartanian v. Monsanto Co., 14 F.3d 697, 702 (1st Cir. 1994). C. Fiduciary Liability in the Context of Health and Disability Claims The First Circuit has held that breach of fiduciary duty claims cannot stand where adequate relief is available under Section 502(a)(1)(B). LaRocca v. Borden, Inc., 276 F.3d 22, 28 (1st Cir. 2002); Turner v. Fallon Community Health Plan, Inc., 127 F.3d 196, 200 (1st Cir. 1997). D. Contribution and Indemnity Claims among Fiduciaries There is no express provision for contribution under ERISA. Although the First Circuit has not spoken on the issue, some district courts have found that a claim for contribution and indemnity can be implied by relying on a court’s ability to develop equitable remedies from federal common law. Duncan v. Santaniello, 900 F. Supp. 547, 550, 551 (D. Mass. 1995). See also Reich v. Rowe, 20 F.3d 25, 33 (1st Cir. 1994) (allowing federal common law cause of action where the remedy is designed and directed toward recovering plan assets). In Duncan, the district court held that former fiduciaries were able to maintain a claim for contribution and indemnity because it serves to enhance the enforcement of fiduciary responsibilities by making all fiduciaries ultimately accountable for harm done to the plan. Duncan, 900 F. Supp. at 551.

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Other District of Massachusetts courts have refused to follow Duncan, however, relying on recent Supreme Court and First Circuit case law, both of which caution against finding implied remedies under the statute. Anthony v. JetDirect Aviation, Inc., 725 F. Supp. 2d 249, 255 (D. Mass. 2010); Charters v. John Hancock Life Ins. Co., 583 F. Supp. 2d 189, 194–95 (D. Mass. 2008). In Charters, the district court held that it was not convinced that Congress inadvertently omitted a right of contribution from ERISA’s remedial scheme. The decision of whether to provide such a remedy, the court said, is best left to the legislature. Therefore, the district court found that ERISA does not allow for an implied right of contribution or indemnification. Charters, 583 F. Supp. 2d at 195. In Anthony, the court recognized a split among the courts of appeals and the judges in the District of Massachusetts about whether there is a federal common law right to contribution and indemnity under ERISA based on the principles of trust law and the promotion of strict fiduciary standards of care. 725 F. Supp. 2d at 255. The court in Anthony agreed with the Charters court and found that absent a federal common law right to contribution and indemnity under ERISA, the plaintiff’s claims could only survive as state common law claims. Id. at 256. See also Urological Surgery Prof’l Ass’n v. William Mann Co., Inc., 764 F. Supp. 2d 311, 324–25 (D.N.H. 2011) (finding that even if the First Circuit were to recognize a right to contribution and indemnity among duty-breaching fiduciaries, no right of action would exist

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where the party seeking contribution had not himself been found liable). E. ERISA Claims against Nonfiduciaries “ERISA contemplates actions against an employee benefit plan and the plan’s fiduciaries. With narrow exception, however, ERISA does not authorize actions against nonfiduciaries of an ERISA plan.” Terry v. Bayer Corp., 145 F.3d 28, 35 (1st Cir. 1998). For example, in Reich v. Rowe, 20 F.3d 25, 29 (1st Cir. 1994), the court found that nonfiduciary liability was limited to those “who commit violations of ERISA or who are engaged in an ‘act or practice’ proscribed by the statute” and does not extend to nonfiduciaries merely because they knowingly participate in a fiduciary breach. Id. In Rowe, the court expressed its concern “that extending the threat of liability over the heads of those who only lend professional services to a plan without exercising any control over, or transacting with, plan assets will deter such individuals from helping fiduciaries navigate the intricate financial and legal thick of ERISA.” Id. See also Gomez-Gonzalez v. Rural Opportunities, Inc., 658 F. Supp. 2d 325, 349 (D.P.R. 2009); Toomey v. Jones, 855 F. Supp. 19, 25 (D. Mass. 1994).

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XI. Attorneys’ Fees A. Introduction ERISA § 502(g)(1), 29 U.S.C. § 1132(g)(1), states: In any action under this subchapter [other than actions on behalf of the plan under ERISA § 515, 29 U.S.C. § 1145, dealing with employer contributions to a multiemployer plan], the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party. B. Criteria for Awarding Attorneys’ Fees The First Circuit has historically applied a five-factor test to determine whether attorneys’ fees should be awarded. Janeiro v. Urological Surgery Prof’l Ass’n, 457 F.3d 130 (1st Cir. 2006); Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 225 (1st Cir. 1996). This test is a “flexible one…. not every factor must be considered in each case, … and [] no one [factor] should be dispositive.” Gray v. New England Tel. & Tel. Co., 792 F.2d 251, 258 (1st Cir. 1986). The five factors are: (1) the degree of bad faith or culpability of a losing party; (2) the ability of such party to personally satisfy an award of fees; (3) whether such award would deter other persons acting under similar circumstances; (4) the amount of benefit to the action as conferred on the members of the pension plan; and (5) the relative merits of the parties’ positions.

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Id. at 257–58. An award of attorneys’ fees under ERISA is not automatic and there is no presumption of attorneys’ fees. Where the case on the merits is a close one, attorneys’ fees have been denied. See Vickers v. Principal Mut. Life Ins. Co., 993 F. Supp. 19 (D. Mass. 1998). The Supreme Court has clarified the proper mode of analysis with respect to this fee-shifting provision in Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010). The Hardt Court explained that eligibility for an award under 29 U.S.C. § 1132(g)(1) does not require that the fee-seeker be a prevailing party. The Court did not necessarily prohibit consideration of the five factors delineated in Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 225 (1st Cir. 1996). The Court nevertheless made clear that these factors could not be applied without modification, and that the focal point of the inquiry should be whether a claimant shows “some degree of success on the merits.” Achieving this benchmark requires something more than a “purely procedural victory.” The statutory standard is satisfied as long as the merits outcome produces some meaningful benefit for the fee-seeker. In Gastronomical Workers Union Local 610 & Metro. Hotel Ass’n Pension Fund v. Dorado Beach Hotel Corp., 617 F.3d 54, 66 (1st Cir. 2010), the First Circuit found that the district court did not have the benefit of Hardt when it denied the trustees’ motion for attorneys’ fees and, thus, did not engage in the requisite analysis. Consequently, the court vacated the order denying relief 163

under § 1132(g)(1) and ordered that should plaintiffs renew their motion, the district court should reconsider in light of Hardt, determine whether the trustees have achieved some degree of success on the merits, and decide whether to award attorneys’ fees, costs, or other remedies encompassed within § 1132(g)(1). In Jones v. Wallgreen Co., 2012 WL 603587 (D. Mass. Feb. 23, 2012) the plaintiff filed a ten-count complaint against her employer. Only one count related to her ERISA disability claim. The court remanded that decision back to the insurer and on remand the defendant reversed its previous denial of benefits and approved the plaintiff’s claim. Six months later the court granted the defendants motion for summary judgment on all nine remaining counts. The plaintiff then filed a motion for attorneys’ fees seeking approximately $97,000. The plaintiff claimed this amount was limited to the litigation of her ERISA disability claim. Id. at *2–3. The court held that in making a determination concerning whether to award reasonable attorney’s fees, the statutory standard is satisfied as long as the merits outcome produces some meaningful benefit for the feeseeker. Under the circumstances of this case, the court concluded that plaintiff had achieved success that is “‘substantial’ or [that] occurred on a ‘central issue.’” Jones, 2012 WL 603587, at *2–3 (alteration in original) (quoting Hardt). However, the court found that the amount sought far exceeded what was reasonable based on the five-factor test and awarded the plaintiff fees in the amount of $37,500. 164

The decision to award attorneys’ fees is solely within the discretion of the trial judge. See Lodge v. Shell Oil Co., 747 F.2d 16, 20 (1st Cir. 1984). Thus, if the district court applies the correct standard, the First Circuit will review the grant or denial of attorneys’ fees in ERISA cases “solely for abuse of discretion.” Cottrill, 100 F.3d at 223, 227. The court will disturb such rulings only if based on the record it finds that the district court “indulged in a serious lapse in judgment.” Twomey v. Delta Airlines Pilots Pension Plan, 328 F.3d 27, 33 (1st Cir. 2003); Janeiro, 457 F.3d at 143. However, the courts are clear that fees are recoverable only for the time spent on the litigation. “[A]ttorney’s fees are categorically unavailable for expenses incurred while exhausting administrative remedies.” McGahey v. Harvard Univ. Flexible Benefits Plan, 685 F. Supp. 2d 181, 183 (D. Mass. 2010); Warren v. Cochrane, 257 F. Supp. 2d 321, 324 (D. Me. 2003) (also refusing to award attorneys’ fees charged for clerical tasks and other charges the court deemed excessive); Torres-Negron v. Ramallo Bros. Printing, Inc., 203 F. Supp. 2d 120 (D.P.R. 2002). However, a court may award attorneys’ fees incurred for the litigation costs even if the case is resolved prior to a judgment on the merits. In Doe v. Raytheon Co., 2002 WL 1608279 (D. Mass. July 19, 2002), the insurer reinstated benefits shortly after suit was commenced. The court awarded attorneys’ fees for the litigation. Attorneys’ fees are also available to a party who successfully defends a judicial appeal. Cook v. Liberty Life Assur. Co. of Bos., 334 F.3d 122, 123–24 (1st Cir. 2003). In determining whether to award attorneys’ fees to 165

a party on an appeal, the courts have historically applied the same five-factor test. However, these factors are applied to the applicant’s “conduct during the appeal rather than to the conduct that brought [the] benefits dispute into court or to conduct before the trial court,” so as not to “deter a plausible but ultimately unsuccessful appeal.” Id. at 124. C. Fees Awarded to Plan Fiduciaries The First Circuit recognizes that attorneys’ fees are available to a successful defendant as well as a plaintiff. The same five-factor test has been used regardless of which party prevails. Gray v. New England Tel. & Tel. Co., 792 F.2d 251, 258 (1st Cir. 1986). The First Circuit has rejected arguments that a different test should apply to defendants because the second, third, and fourth factors have no bearing in evaluating a case where the defendant prevails. Even if applying the five-factor test favors prevailing plaintiffs, the First Circuit holds that this result is in line with the purposes of ERISA to protect the interests of plan beneficiaries and participants. Factors may simply not weigh equally where defendants rather than plaintiffs seek fees. Id. at 258–59. D. Calculation of Attorneys’ Fees Once a court determines that attorneys’ fees are warranted under the test set forth in Gray, the determination of reasonable fees is within the discretion of the trial court. The First Circuit has stated that where the relevant statute does not provide an alternate method for calculating 166

reasonable attorneys’ fees, the “lodestar” method should be used. Tenn. Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir. 1994). “The ‘lodestar method’ of calculating attorneys’ fees awards requires the district judge to multiply the number of hours productively expended by counsel by a reasonable hourly rate.” Burke v. McDonald, 572 F.3d 51, 56 n.5 (1st Cir. 2009). “In crafting its lodestar, the trial court may adjust the hours claimed to remove time that was unreasonably, unnecessarily or inefficiently devoted to the case … and subject to principles of interconnectedness, the trial court may disallow time spent litigating failed claims.” De Jesus Nazario v. Morris Rodriguez, 554 F.3d 196, 207 (1st Cir. 2009); McGahey v. Harvard Univ. Flexible Benefits Plan, 685 F. Supp. 2d 181, 184–85 (D. Mass. 2010). Legal hours billed should be divided into “core” hours (legal research, writing of legal documents, court appearances, negotiations with opposing counsel, monitoring, and implementation of court orders) and “non-core” hours (letter writing, telephone conversations, and tasks of a clerical nature). See Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 860 (1st Cir. 1998); Brewster v. Dukakis, 3 F.3d 488, 492 n.4 (1st Cir. 1993). “An appreciable reduction from the core rate for non-core work is consistent with prior decisions of the Court of Appeals.” McGahey, 685 F. Supp. 2d at 185 (citing Brewster, 3 F.3d at 492–93). In addition, the court will deduct hours spent on unsuccessful efforts. See, e.g., McGahey, 685 F. Supp. 2d at 185–86 (finding that plaintiff had appropriately subtracted 12.3 hours of work related to unsuccessful efforts including supplemental 167

research on the prior record of an independent medical examiner). See also Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 296 & n.5 (1st Cir. 2001). Once established, the lodestar represents a presumptively reasonable fee, although it is subject to upward or downward adjustments. Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992); Radford Trust v. First Unum Life Ins. Co., 399 F. Supp. 2d 3 (D. Mass. 2005). XII. ERISA Regulations In November of 2000, the Department of Labor modified ERISA regulations on claims procedure. The revised regulations, which apply to claims filed after January 1, 2002, establish shorter time frames for benefits determinations than those contained in the earlier version of the regulations. See 29 C.F.R. § 2560.503-1(f)(3). Appeals of claims filed before the effective date are governed by the old regulations. However, many cases decided on claims filed prior to January 1, 2002 may form a basis for interpreting current regulations. 29 C.F.R. § 1144(b)(2)(A)—Safe Harbor preservation of state laws regulating insurance: Maine Revised Statutes Annotated, 24-A M.R.S.A. § 4303 (prohibiting absolute discretion clauses in health Insurance policies); Vermont Statutes Annotated, 8 V.S.A. § 4062f (prohibiting discretionary clauses in life, health and disability insurance policies). 29 C.F.R. § 2509.75-8—Questions and answers relating to fiduciary responsibility under the 168

Employee Retirement Income Security Act: Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654, 665 (1st Cir. 2010) (employer not a proper party under 29 U.S.C. § 1132(a)(1)(B) as a “fiduciary” as beneficiary failed to produce evidence that employer performed anything more than ministerial functions regarding Plan and had delegated plan administration to the insurer of the plan); Livik v. The Gillette Co., 524 F.3d 24 (1st Cir. 2008) (corporation cannot be held liable for the purely ministerial errors of employees who are not plan fiduciaries); Solis v. Plan Benefits Services, Inc., 620 F. Supp. 2d 131, 145 (D. Mass. 2009) (plan provision relieving trustee from ERISAimposed obligations did not violate regulation setting fiduciary duties so as to support a breach, but was void as against public policy); Kling v. Fidelity Mgmt. Trust Co., 323 F. Supp. 2d 132, 146 (D. Mass. 2004) (citing regulation, duty to monitor is a responsibility of a fiduciary who has appointed other fiduciaries, therefore corporations may be held vicariously liable for the actions of their employees); DiGregorio v. PricewaterhouseCoopers, 2004 WL 1774566, at *17 (D. Mass. Aug. 9, 2004) (where a service provider had sufficient responsibilities to qualify as a fiduciary); Pegram v. Herdritch, 530 U.S. 211, 236 (2000) (physician’s mixed administrative decisions regarding eligibility were not fiduciary decisions under ERISA); Terry v. Bayer Corp., 145 F.3d 28, 35–36 (1st Cir. 1998) (citing regulation, holding that intermediate party who made a nonfinal decision to terminate benefits did not have any 169

inherent discretionary authority or control over the plan and was not a fiduciary); Beddall v. State St. Bank & Trust Co., 137 F.3d 12 (1st Cir. 1998) (citing regulation, court concludes that bank was not a fiduciary with respect to misevaluation of plan’s real estate investments); Santana v. Deluxe Corp., 920 F. Supp. 249, 254–58 (D. Mass. 1996) (where a plan has contracted with a third party to provide claims processing and other administrative services to the plan, but has retained discretion to decide disputed claims, the service provider is not a fiduciary); Pension Plan of Pub. Serv. Co. of N.H. v. KPMG Peat Marwick, 815 F. Supp. 52 (D.N.H. 1993) (attorneys, accountants, actuaries, and consultants performing their usual professional functions will ordinarily not be considered fiduciaries). 29 C.F.R. § 2509.95-1—Interpretive bulletin relating to the fiduciary standards under ERISA when selecting annuity provider for a defined benefit plan: Beck v. Pace Int’l Union, 551 U.S. 96 (2007) (under ERISA, whether employer’s actions implicates fiduciary duties depend on whether it acts as benefit plan administrator, as opposed to merely plan sponsor); Blossom v. Bank of N.H., 2004 WL 1588307, at *4 (D.N.H. July 16, 2004) (citing regulation, employer’s decision to purchase annuity plan to pay for employee’s monthly benefit did not create an ERISA plan and the plan’s liability is transferred to the annuity provider).

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29 C.F.R. § 2510.3-1(a)—Definitions and coverage under ERISA, General: McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 21–22 (1st Cir. 1991), cert. denied, 504 U.S. 910 (1992) (court labels “unpersuasive” the argument that regulation’s failure to include plans granting benefits under 29 U.S.C. § 186(c)(9) [money or things of value paid to a plant, area, or industrywide labor management committee] excludes such plans from ERISA coverage); LaChapelle v. Fechtor, Detwiler & Co., 901 F. Supp. 22 (D. Me. 1995) (regulation makes clear that a SEP IRA is not a welfare plan); Riofrio Anda v. Ralston Purina Co., 772 F. Supp. 46, 51 (D.P.R. 1991), aff’d, 959 F.2d 1149 (1st Cir. 1992) (promise to reimburse relocation expenses not an employee welfare benefit plan); Panto v. Moore Bus. Forms, Inc., 676 F. Supp. 412, 413–14 (D.N.H. 1988) (state claims relating to employer’s failure to pay severance benefits found to be ERISA preempted); Adam v. Joy Mfg. Co., 651 F. Supp. 1301 (D.N.H. 1987) (severance pay plan found to be an employee welfare benefit plan subject to ERISA). 29 C.F.R. § 2510.3-1(b)—Definitions and coverage under ERISA, “Payroll practices” not subject to ERISA: Polley v. Harvard Pilgrim Health Care, Inc., 2009 WL 4403994, at *3 (D.N.H. 2009) (dispositive issue is manner in which benefits were funded; short term disability benefits paid from employer’s general assets not governed by ERISA, despite assertion in plan documents); Woods v. Berry, Fowles & Co., 2001 WL 1602055, 171

at *10 (D. Me. Dec. 14, 2001) (“payroll practice exception” did not exempt the plan from ERISA because, although the premiums were paid from general assets, they were ongoing and long-term payments); McMahon v. Digital Equip. Corp., 162 F.3d 28 (1st Cir. 1998) (accident and sickness plan and salary continuation plan held not to be “payroll practices” exempt from ERISA coverage) (distinguished in Hogan v. Fidelity Investments Inst. Operations, Inc., 2013 WL 1330480 (D. Mass. Mar. 29, 2013) (where alleged negligent acts of employer require reference to Plan, ERISA preempts state law claims)); Woods v. Berry, Fowles & Co., 2001 WL 1602055 (D. Me. Dec. 14, 2001) (employer’s life insurance premium payments were ongoing, longterm, and not compensation and therefore life insurance coverage was not a “payroll practice”); In re Palmos Del Mar Props., Inc., 932 F. Supp. 36 (D.P.R. 1996) (overtime and sick leave pay, paid at employee’s normal rate of compensation, out of employer’s general assets, and without additional compensation or conditions, was a payroll practice exempt from ERISA); Rosario-Cordero v. Crowley Towing & Trans. Co., 850 F. Supp. 98 (D.P.R. 1994) (vacation benefits paid from trust fund, and not employer’s general assets, did not constitute a payroll practice). 29 C.F.R. § 2510.3-1(j)—Certain group or group-like insurance programs, “Safe harbor”: Colonial Life & Acc. Ins. Co. v. Medley, 572 F.3d 22, 28–29 (1st. Cir. 2009) (factual dispute governing applicability of safe harbor 172

regulation prevented court from finding facially conclusive exemption; requiring court to abstain while state agency determined underlying employment claim); Desrosiers v. Hartford Life & Acc. Ins. Co., 354 F. Supp. 2d 119, 125 (D.R.I. 2005) (citing regulation, ERISA applied when DOJ promoted a private welfare plan for its employees because the safe harbor requirement of neutrality was not met); Demars v. Cigna Corp., 173 F.3d 443 (1st Cir. 1999) (conversion policy obtained by employee after termination of employment and not subject to continuing administrative and financial obligations of employer not subject to ERISA); New England Mut. Life Ins. Co., Inc. v. Baig, 166 F.3d 1 (1st Cir. 1999) (considering safe harbor factors in concluding that a physician’s individual disability policy was not subject to ERISA); Johnson v. Watts Regulator Co., 63 F.3d 1129 (1st Cir. 1995) (focusing on safe harbor regulation requirements in concluding that employer did not endorse benefit program and in concluding that such program was not subject to ERISA); Sorel v. CIGNA, 1994 WL 605726 (D.N.H. 1994) (holding that employer who facilitated plan orientation program and recommended that employees enroll in benefit plan did more than merely advertise plan, and therefore plan fell outside safe harbor). 29 C.F.R. § 2510.3-1(k)—Unfunded scholarship programs: Cuoco v. Nynex, Inc., 722 F. Supp. 884, 887 (D. Mass. 1989) (scholarship benefits payable to child of former employee were to be made solely from general assets of employer 173

and were not included under an employee welfare benefit plan) (declined to follow by Rogers v. Rogers and Partners, Architects, Inc., 2009 WL 5124652 (D. Mass. July 27, 2009) (holding that ERISA pre-empts state law claims of negligent misrepresentation). 29 C.F.R. § 2510.3-2(c)—Employee pension benefit plan, Bonus program: Rivera Sanfeliz v. Chase Manhattan Bank, 349 F. Supp. 2d 240, 247 (D.P.R. 2004) (payments made as bonuses are generally not pension plans, unless systematically deferred to the termination of employment or beyond). 29 C.F.R. § 2510.3-2(d)(1)—Employee pension benefit plan, Individual retirement accounts: In re Printy, 171 B.R. 448, 450 (Ban. D. Mass. 1994) (an IRA is not established or maintained by an employer and generally is not covered by ERISA); LaChapelle v. Fechtor, Detwiler & Co., Inc., 901 F. Supp. 22 (D. Me. 1995) (SEP IRA is not a welfare benefit plan under ERISA). 29 C.F.R. § 2510.3-2(g)—Employee pension benefit plan, Supplemental payment plans: United Steel Workers of Am. v. Newman-Crosby Steel, Inc., 822 F. Supp. 862, 868 (D.R.I. 1993) (supplemental pension benefits found not to be costof-living adjustments under regulation, and thus vested under ERISA).

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29 C.F.R. § 2510.3-21(c)—Definition of fiduciary, Investment advice: Dudley Supermarket, Inc. v. Transamerica Life Ins. and Annuity Co., 302 F.3d 1 (1st Cir. 2002) (determination of whether entity acted in fiduciary capacity under ERISA with respect to alleged wrongdoing is based on the functions performed and its relationship to plaintiff; finding Transamerica was a fiduciary rendering investment advice and not a mere professional service provider); Stein v. Smith, 270 F. Supp. 2d 157, 170 (D. Mass. 2003) (citing regulation, an officer acting as an investment advisor may have fiduciary liability). 29 C.F.R. § 2510.3-21(e)(2)—Definition of fiduciary, Affiliate and control: Drolet v. Healthsource, Inc., 968 F. Supp. 757, 761 (D.N.H. 1997) (citing regulation, court notes that allegations of defendant’s control over a plan was a sufficient foundation for stating claim of fiduciary violations; HMO and its parent corporation were ERISA fiduciaries); Toomey v. Jones, 855 F. Supp. 19, 24–25 (D. Mass. 1994) (pension fund consulting company did not attain fiduciary status when it advised plan to stop paying cash dividend). 29 C.F.R. § 2510.3-3—Employee benefit plan: Yates v. Hendon, 541 U.S. 1 (2004) (citing regulation, the Court held that there is no categorical barrier against working owners participating in ERISA plans, as long as plan covered one or more employees other than owner 175

and spouse); O’Connor v. Commonwealth Gas Co., 251 F.3d 262 (1st Cir. 2001) (Employer’s Personnel Reduction Plan providing for one time payment to retiring employees not governed by ERISA). 29 C.F.R. § 2510.3-3(a)—General, and (d) Participant covered under plan: Evans v. Akers, 534 F.3d 65 (1st Cir. 2008) (former employees claiming benefits from alleged mismanaged plan have standing as “participants” and claim is not barred as a claim for “damages”); Blossom v. Bank of N.H., 2004 WL 1588307 (D.N.H. July 16, 2004) (citing regulation, when employer purchased an annuity it did not constitute an “employee benefit plan” as it had sold its obligations under the plan). 29 C.F.R. § 2510.3-101—Definition of plan assets: Patient Advocates, LLC v. Prysunka, 316 F. Supp. 2d 46, 48 (D. Me. 2004) (DOL definition of “plan assets” is not exhaustive but beneficiaries’ personal data was not considered plan assets absent evidence of economic value). 29 C.F.R. § 2520.102-2(a)—Style and format of summary plan description: Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011) (disclosures set forth in ERISA-required summary plan descriptions could not be enforced as terms of the plan itself); Caradonna v. Compaq Computer Corp., 2000 WL 1507454 (D.N.H. 2000) (not reported) (court concludes that benefits book failed to satisfy categories of information required in a summary plan description). 176

29 C.F.R. § 2520.102-3—Content of summary plan description: Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011) (disclosures set forth in ERISArequired summary plan descriptions could not be enforced as terms of the plan itself); Sorensen v. Metro. Life Ins. Co., 2009 WL 901864 (D. Mass. 2009) (stating that employer identifying itself as plan fiduciary in summary plan description should be given deference); Tetreault v. Reliance Standard Life Ins. Co., 2011 WL 7099961 (D. Mass. Nov. 28, 2011) (time periods for claims procedure need not be contained in Plan to be controlling, and inclusion in summary plan description is consistent with ERISA); compare with Merigan v. Liberty Life Assur. Co. of Boston, 926 F. Supp. 388 (D. Mass. 2011) (180 day time limit to file administrative appeal not controlling when appearing only in summary plan description, and not in plan); Kaufmann v. Prudential Ins. Co. of Am., 840 F. Supp. (D. N.H. 2012) (180 day appeal deadline contained only in summary plan description not enforceable); Alves v. Harvard Pilgrim Health Care, Inc., 204 F. Supp. 2d 198 (D. Mass. 2002), aff’d, 316 F.3d 290 (1st Cir. 2003) (noting that regulation’s requirement to disclose cost-sharing provisions, such as co-pays, did not require disclosure of costs of prescription medications to plan); United Paperworkers Int’l Union v. Int’l Paper Co., 777 F. Supp. 1010, 1019 (D. Me. 1991) (administrator failed to meet summary plan description requirements and therefore plan, as written, had no proper claim procedure).

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29 C.F.R. § 2520.102-4—Option for different summary plan descriptions: Dall v. Chinet Co., 33 F. Supp. 2d 26, 44 n.12 (D. Me. 1998), aff’d, 201 F.3d 426 (1st Cir. 1999) (noting that administrator may issue separate summary plan descriptions for separate classes of employees so long as the descriptions adequately give notice of the coverage of other classes under another summary). 29 C.F.R. § 2520.104b-1—Disclosure requirements: Barrs v. Lockheed Martin Corp., 287 F.3d 202, 207 (1st Cir. 2002) (citing regulation, employer had no reporting and disclosure duty in welfare benefit plan, as distinguished from pension plan); Kenna v. Hartford Life & Acc. Ins. Co., 2005 WL 2175158, at *16 (D.N.H. Sept. 6, 2005) (citing regulation, plan administrator was the only party responsible to provide summary plan description); Heller v. Cap Gemini Ernst & Young Welfare Plan, 396 F. Supp. 2d 10, 20 (D. Mass. 2005) (whether participant was provided with plan summary will not affect delegation of discretionary authority, as remedies for such violations are limited); Tetreault v. Reliance Standard Life Ins. Co., 2013 WL 823314 (D. Mass. Mar. 5, 2013) (penalties provided under § 1132 for failure to provide plan documents not applicable against insurer who served as claims administrator, as opposed to designated plan administrator). 29 C.F.R. § 2560.503-1—Claims procedure: Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) (claims against HMO for injuries caused by failure 178

to provide coverage for medical treatment recommended by treating physicians are preempted, as medical decisions are fiduciary function); Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003) (treating physicians’ opinions are not accorded extra respect under ERISA, unlike the Social Security Administration’s treating physician rule); Smith v. Jefferson Pilot Financial Ins. Co., 245 F.R.D. 45 (D. Mass. 2007) (fiduciary exception to attorney client privilege applied to communications between insurer’s in-house counsel and claims personnel); Tebo v. Sedgwick Claims Management Services, Inc., 2010 WL 2036961 (D. Mass. May 20, 2010) (fiduciary exception ceases to apply once interests of plan administrator and beneficiary diverge). 29 C.F.R. § 2560.503-1(b)—Obligation to establish and maintain reasonable claims procedures: Glista v. Unum Life Ins., 378 F.3d 113, 128–29 (1st Cir. 2004) (consistent interpretation of plan terms a certain way is relevant in assessing reasonableness of decision). 29 C.F.R. § 2560.503-1(f)—Timing of notification of benefit determination: Jones v. Metro. Life Ins. Co., 729 F. Supp. 2d 467 (D. Mass. 2010) (no claim for monetary damages available where administrator failed to process beneficiary’s claim in a timely manner); Cole v. Central States Se. & Sw., 101 Fed. App’x 840, 2004 WL 1335920, at *1 (1st Cir. 2004) (letter satisfied notice 179

requirements although sparse; no requirement to give reasoning behind specific reasons for denial); Glista v. Unum Life Ins., 378 F.3d 113, 128–29 (1st Cir. 2004) (citing regulation, limiting basis for denial of benefits to those actually communicated to beneficiary); Doe v. Travelers Ins. Co., 167 F.3d 53 (1st Cir. 1999) (claimant’s request for a medical examiner’s report did not impose duty on administrator to produce mental health guidelines); I.V. Servs. of Am., Inc. v. Inn Dev. & Mgmt., Inc., 7 F. Supp. 2d 79, 87 (D. Mass. 1998), aff’d, 182 F.3d 51 (1st Cir. 1999) (court cites regulation noting that while a deficient denial notice may excuse a claimant’s failure to exhaust administrative remedies, it did not excuse plaintiff’s failure to sue within the limitations period); Smart v. Gillette Co. Long-Term Dis. Plan, 887 F. Supp. 383 (D. Mass.), aff’d, 70 F.3d 173 (1st Cir. 1995) (ERISA requires only that a plan notify claimant of reasons under the terms of the plan for its denial of a request for benefits); Perez-Rodriguez v. Citibank, N.A., 1995 WL 116353 (D.P.R. 1995) (denial letters that failed to advise claimant of specific reasons for claim denial did not satisfy regulatory requirements). 29 C.F.R. § 2560.503-1(g)—Manner and content of benefit determination: Bard v. Boston Shipping Assn., 471 F.3d 229, 240 (1st Cir. 2006) (administrative appeal procedures failed to comport with regulatory requirements, entitling participant to an award of benefits); Denmark v. Liberty Assur. Co., 2005 WL 3008684, at *15 (D. Mass. Nov. 10, 2005) (citing old 1977 regulation and amended 180

regulations as not requiring administrators of disability policies to afford more than one level of internal review); Madera v. Marsh, 426 F.3d 56, 62 (1st Cir. 2005) (failure to give written notice of denial is not a defense to failure to exhaust remedies when a formal claim was never made and there was no evidence of futility); Terry v. Bayer Corp., 145 F.3d 28, 38–39 (1st Cir. 1998) (regulation does not require administrator to advise claimant what information is needed to win his appeal, only that which is needed to perfect the claim); Smith v. Blue Cross Blue Shield of Mass., 597 F. Supp. 2d 214 (D. Mass 2009) (procedural violation in denial notice will not invalidate notice unless claimant can show that defect in notice caused a difference); Tavares v. Unum Corp., 17 F. Supp. 2d 69, 78 (D.R.I. 1998) (administrator’s letter notifying participant of termination of benefits failed to satisfy requirements under the regulation). 29 C.F.R. § 2560.503-1(h)—Appeal of adverse determinations: Boyson v. Dartmouth Hitchcock Clinic, 2010 WL 1838322 (D.N.H. 2010) (“while the First Circuit has not directly addressed the precise timing requirements for the provision of relevant documents on administrative appeal, other circuits have explicitly held that ERISA ‘does not require a plan administrator to provide a claimant with access to the medical opinion reports of appeal-level reviewers prior to a final decision on appeal.’” (citations omitted)); Bard v. Boston Shipping Assn., 471 F.3d 229, 239 (1st Cir. 2006) (awarding disability pension benefits in 181

part because denial letter lacked specificity); Sansby v. Prudential Ins. Co., Slip Copy, 2009 WL 799468 (D. Mass 2009) (citing Glista, court ordered production of claims and training manuals in discovery); Grady v. Hartford Life & Acc. Ins. Co., 2009 WL 700875 (D. Me. 2009) (claimants have right to discover contents of administrative record if they are unsure whether all information has been included); Smith v. Jefferson Pilot Fin. Ins. Co., 245 F.R.D. 45 (D. Mass. 2007) (fiduciary exception to attorney-client privilege applied to communications between claims personnel and insurer’s in-house counsel); Davey v. Life Ins. Co. of N. Am., 2006 WL 1644690, at *14 (D.N.H. June 14, 2006) (ERISA does not require consultation with the same medical advisor at different levels of appeal, and regulations suggest that deference should not be given to prior adverse benefit determination); Krodel v. Bayer Corp., 345 F. Supp. 2d 110, 115 (D. Mass. 2004) (deferential review violated ERISA, and numerous violations of regulations necessitated remand for reconsideration by the administrator); Aetna Health v. Davila, 542 U.S. 200, 220 (2004) (unlike Pegram’s mixed treatment and eligibility decisions, regulations strongly imply that benefit determinations involving medical judgments made by doctors are actions by plan fiduciaries); Cannon v. Unum Life Ins. Co. of Am., 219 F.R.D. 211 (D. Me. 2004) (court, citing regulation, held that claimant was entitled to production of complete record of administrative review); Glista v. Unum Life Ins. Co. of Am., 2003 WL 22282175, at *7 (D. Mass. 2003) (court, noting regulation, held that 182

claim administrator must disclose all documents relevant to a beneficiary’s claim for benefits, “including the plan’s statement of policy or guidance concerning the denied benefit, regardless of whether the administrator relied upon that policy in making the benefit determination”); Sidou v. UnumProvident Corp., 245 F. Supp. 207, 216 (D. Me. 2003) (decided under old regulation, administrative appeal deemed denied when decision not rendered within 120 days); Shaffer v. FosterMiller, Inc., 650 F. Supp. 2d 124 (D. Mass. 2009) (failure to provide complete claims file did not toll claimant’s late filing of appeal, without demonstrable prejudice). 29 C.F.R. § 2560.503-1(i)—Timing of notification of benefit determination on review: D & H Therapy Assoc., LLC v. Boston Mut. Life. Ins. Co., 650 F. Supp. 2d 143 (D.R.I. 2009) (delay beyond 45 days plus 45 day extension to decide appeal did not require de novo review, where insurer was waiting for or negotiating over requested materials from participant), rev’d on other grounds, 640 F.3d 27 (1st Cir. 2011); Bard v. Boston Shipping Ass., 471 F.3d 229, 239 (1st Cir. 2006) (failure to render timely decision does not automatically result in de novo review, as such issues are to be decided on case-by-case basis); Schmir v. Prudential Ins. Co. of Am., 2003 WL 22466168, at *3 (D. Me. 2003) (untimely denial letter did not preclude claimant’s appeal from being deemed denied). 183

29 C.F.R. § 2560.503-1(j)—Manner and content of notification of benefit determination on review: Sheckley v. Lincoln Nat’l Corp. Employees’ Retirement Fund, 2004 WL 2905347, at *5 (D. Me. 2004) (only requirement for notice after the denial of internal appeal is that it must state that claimant has a right to bring an action under ERISA). 29 C.F.R. § 2560.503-1(m)—Definitions: Bard v. Boston Shipping Assn., 471 F.3d 229, 239 (1st Cir. 2006) (plan’s action was a “denial” rendering subsequent action an “appeal,” even if earlier action was based on procedural reason, and not on the merits); Glista v. Unum Life Ins. Co. of Am., 2003 WL 22282175, at *7 (D. Mass. 2003) (court, noting regulation, held that claim administrator must disclose all documents relevant to a beneficiary’s claim for benefits, “including the plan’s statement of policy or guidance concerning the denied benefit, regardless of whether the administrator relied upon that policy in making the benefit determination”). 29 C.F.R. § 2619.26: Cooke v. Lynn Sand & Stone Co., 70 F.3d 201 (1st Cir. 1995) (court, citing regulation, concludes that discount rate applied to lump-sum payout from terminated pension plan was reasonable). XIII. Cases Interpreting ERISA Statutes of Limitation “Because Congress did not provide a statute of limitations in the ERISA statute for section 510 claims, federal courts 184

must apply the limitations period of the state-law cause of action most analogous to the federal claims.” Muldoon v. C.J. Muldoon & Sons, 278 F.3d 31, 32 (1st Cir. 2002) (citing Wilson v. Garcia, 471 U.S. 261 (1985)). In Muldoon the First Circuit held that Section 510 claims (interference or discrimination with ERISA-protected rights) are most analogous to state-law actions for wrongful termination or retaliatory discharge. Muldoon, 278 F.3d at 32. The court affirmed the Massachusetts district court’s application of the three-year statute of limitations for torts, instead of the six-year statute of limitations for general contracts, finding that the cause of action accrued on the date that the plaintiff alleged he was wrongfully terminated. Id.; see also Edes v. Verizon Commc’ns, Inc., 417 F.3d 133 (1st Cir. 2005) (Section 510 claims are governed by Massachusetts’ three-year limitations period for torts, and the three-year period ran from date of employer’s alleged improper misclassification of employees). However, where the rights pursued are to benefits under an ERISA plan, see Hubert v. Medical Info. Tech. Inc., 2006 WL 721540 (D. Mass. Mar. 20, 2006) (when a plaintiff sues for benefits that are “incidents of the plaintiff’s employment,” and are provided “under an employment contract … the appropriate statute of limitations is six years”). Accordingly, courts in the First Circuit have looked to analogous state statutes of limitation. See, e.g., Skipper v. Claims Servs. Int’l, 213 F. Supp. 2d 4, 6 (D. Mass. 2002). A Puerto Rico 15-year residual contract limitations period (Martinez v. Johnson & Johnson Baby Products, Inc., 184 F. Supp. 2d 157 (D.P.R. 2002)), a Maine six-year state limitations 185

period for all civil actions (Bolduc v. Nat’l Semiconductor Corp., 35 F. Supp. 2d 106 (D. Me. 1998)), a New Hampshire three-year limitations period for breach of contract (Lund v. Citizens Fin. Group, Inc., 1999 WL 814341, at *5 (D.N.H. 1999)), and a Massachusetts sixyear breach of contract limitations period (Keiffer v. Shaw Group Inc., 2006 WL 1982684, at *3 (D. Mass. July 14, 2006); Salcedo v. John Hancock Mut. Life Ins. Co., 38 F. Supp. 2d 37, 40 (D. Mass. 1998)) have been applied to 29 U.S.C § 1132(a)(1)(B) benefit claims. The court in Pierce v. Metro. Life Ins. Co. held that an action for wrongful termination of disability benefits would be subject to New Hampshire’s three-year limitations period for installment contracts. It held that even though MetLife’s termination of benefits occurred more than three years prior to suit, plaintiff was not barred from seeking to recover benefit payments for the three years prior to filing suit. 307 F. Supp. 2d 325, 333 (D.N.H. 2004). Federal common law dictates the date on which a claim accrues. Salcedo, 38 F. Supp. 2d at 42 (citing cases); Mohiuddin v. Raytheon Co., 2013 WL 1821616 (D. Mass. Apr. 29, 2013). Courts within the circuit have disagreed about when a limitations period begins to accrue in an ERISA benefits case. The court in Salcedo—an action challenging the termination of disability benefits—held that the limitations period did not accrue until after the claimant had exhausted administrative remedies. 38 F. Supp. 2d at 43. The Mohiuddin court recently noted that “generally, a cause of action for recovery of benefits under ERISA accrues 186

when an application for benefits is formally denied.” Mohiuddin, 2013 WL 1821616, at *2 (internal quotation marks omitted) (citing and quoting Salcedo). Other courts have applied a discovery rule in which limitations periods have been deemed to run when the claimant first gets clear and unequivocal notice of an adverse claim determination. See, e.g., Young v. IMO Industries, Inc., 541 F. Supp. 2d 433 (D. Mass. 2008) (applying the discovery rule); Hubert v. Medical Info. Tech. Inc., 2006 WL 721540, at *5 (D. Mass Mar. 20, 2006) (consistent with federal discovery rule, the general rule in an ERISA action is that a cause of action accrues after a claim of benefits has been made and has been formally denied); Laurenzano v. Blue Cross & Blue Shield of Mass., Inc. Retirement Income Trust, 134 F. Supp. 2d 189, 208–09 (D. Mass. 2001). The district of Maine, in McLaughlin v. Unum Life Ins. Co. of Am.—an action brought to challenge an administrator’s determination that plaintiff’s claim was subject to a mental/nervous limitation—held that the limitations period began to run when the claimant first clearly and unequivocally repudiated the plaintiff’s claim. 224 F. Supp. 2d 283, 287–90 (D. Me. 2002). See also Lund, 1999 WL 814341, at *7; Bolduc, 35 F. Supp. 2d at 118–20. The First Circuit has held that while a technically deficient notice of denial or termination of benefits may excuse a participant’s failure to exhaust administrative remedies, it may not toll the limitations period. I.V. Servs. of Am., Inc. v. Inn Dev. & Mgmt., Inc., 182 F.3d 51, 57 (1st Cir. 1999).

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The First Circuit requires that ERISA Section 413 “claims based on a breach of fiduciary duty must be brought within six years of the ‘latest date on which the fiduciary could have cured the breach or violation,’ and within three years of the date on which the plaintiff had actual knowledge of the breach.” Watson v. Deaconess Waltham Hosp., 298 F.3d 102, 117 (1st Cir. 2002) (emphasis in original). In Edes v. Verizon Communications Inc., the First Circuit found that plaintiffs obtained “actual knowledge” on the date they got their paychecks and realized they were misclassified, rejecting the argument that a continuing breach would toll the limitations period. Edes v. Verizon Commc’ns, Inc., 417 F.3d 133 (1st Cir. 2005). In Kling v. Fidelity Mgmt. Trust Co., the court held that the evidence was insufficient, under both the “legal claims” and the “underlying facts” approaches, to determine whether the plaintiff had “actual knowledge.” 323 F. Supp. 2d 132 (D. Mass. 2004). Furthermore, the court stated, “it is not enough that [plaintiffs] had notice that something was awry; [plaintiffs] must have had specific knowledge of the actual breach of duty upon which [they sue].” Id. at 137 (citing Brock v. Nellis, 809 F.2d 753, 755 (11th Cir. 1987)). In Solis v. Benefits Plan Services, 620 F. Supp. 131 (D. Mass. 2009), the court declined to dismiss based on the applicable three-year statute, as the action was filed within three years of the plaintiff acquiring actual knowledge of the defendant’s conduct. Id. at 146. The First Circuit has construed the limitations period for breach of fiduciary duty claims, 29 U.S.C. § 1113, as incorporating the federal doctrine of “fraudulent concealment.” J. Geils Band Employee Benefit Plan v. 188

Smith Barney Shearson, Inc., 76 F.3d 1245, 1252 (1st Cir. 1996); Watson, 298 F.3d. at 118 (“In cases with fraud or concealment ERISA provides an alternate statute of limitations of six years from the date the plaintiff discovers the breach.”). Under this construction, the limitations period may begin to run when a plaintiff actually or constructively discovers the acts or omissions giving rise to the cause of action. Id. at 1254. The court noted that a plaintiff must exercise reasonable diligence in asserting its rights. The limitations period may indeed begin to run on a plaintiff lacking actual knowledge of a claim if that plaintiff should have known of the claim in the exercise of reasonable diligence. Id. In 2008, the First Circuit upheld a contractual period of limitations contained in a health insurance policy. In Island View Residential Treatment Facility v. Blue Cross Blue Shield of Mass., the court found a two-year contractual period to not be unreasonable or unconscionable so as to warrant the court’s refusal to apply it to plaintiff’s claim for benefits. 548 F.3d 24, 27 (1st Cir. 2008). The court stated, without setting any fast rule, that “conceivably, a federal court could for good cause refuse to recognize such a provision …,” recognizing prior decisions that described insurance benefits as “creatures of contract.” Id. In the case underlying Island View, the trial judge held that where the plan language provided that the two (2) year period accrued and began to run during the appeals process, the court would apply it to accrue as of the date of the final denial by Blue Cross. Island View v. Blue Cross Blue Shield of Mass., Inc., 2007 WL 4589335, at *13 (D. Mass. 2007) (while undisturbed this holding was not directly 189

discussed on appeal). More recently, in Santaliz-Rios v. Metro. Life Ins. Co., 693 F.3d 57 (1st Cir. 2012), the First Circuit upheld a three year contractual period of limitations. While Island View and Santaliz-Rios have shifted the weight of First Circuit authority toward recognizing contractual periods of limitation contained in ERISA-regulated insurance plans, examples of what may still constitute “good cause” for a court to ignore a contractual period may be found in earlier cases, where the trial courts were split on whether to apply limitations periods set by contract. Compare Skipper, 213 F. Supp. 2d at 6, 7 (plan language requiring suit to be filed within “two years from the time written proof of loss is required to be given” ambiguous and therefore unenforceable), with Alcorn v. Raytheon Co., 175 F. Supp. 2d 117, 121–23 (D. Mass. 2001) (court enforced plan language requiring that suit be filed “within three (3) years after expiration of the time permitted under the Plan for furnishing proof of disability”). The New Hampshire district court held a plaintiff’s claim was timebarred because of the limitations provision provided in the plan, requiring that “legal action … must be brought … within one year from the date the cause of action arose.” Ayotte v. Matthew Thornton Health Plan Inc., 2004 WL 1447875 (D.N.H. Jun. 28, 2004). With more plans containing contractual periods of limitation, the accrual date, discussed above, takes on heightened significance. Recent cases also focus on whether the insurer is estopped from asserting the shorter contractual period. See, e.g., Ortega Candelaria v. Orthobiologics LLC, 661 F.3d 675, 679 (1st Cir. 2011) (rejecting equitable estoppel claim when administrator 190

took no active steps to sabotage plaintiff’s suit); Moralesde Jesus v. Metro. Life Ins. Co., 2010 WL 5175179 (1st Cir. 2010) (for estoppel, beneficiary is required to present evidence that administrator knew facts and intended its conduct to be relied upon, and that employee did not know facts and that his reliance and ignorance worked to his detriment); Ephraim v. Hartford Life & Acc. Ins. Co., 2010 WL 5572072 (D.R.I. 2010) (factual issue regarding whether insurer should be estopped from asserting a contractual period of limitations preventing entry of summary judgment); Forrest v. The Paul Revere Life Ins. Co., 662 F. Supp. 2d 183 (D. Mass. 2009) (absent evidence that beneficiary relied to her detriment, statute of limitations defense was not barred by estoppel). XIV. Subrogation Litigation On January 14, 2010 the First Circuit issued its first decision dealing with the fine distinctions set between the Supreme Court’s decision in Great-West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204 (2002), and its decision in Sereboff v. Mid Atlantic Medical Servs., Inc., 547 U.S. 356 (2006), on the issue of benefit overpayment or subrogation litigation in ERISA cases. Cusson v. Liberty Life Assur. Co. of Boston, 592 F.3d 215 (1st Cir. 2010). In Sereboff, the U.S. Supreme Court had affirmed the Fourth Circuit’s holding that Mid Atlantic Medical Services sought equitable relief when it sued a beneficiary for reimbursement of medical expenses paid by the ERISA plan after the beneficiary had recovered for its injuries from a third party, and the funds were set aside by the court during the settlement proceedings. The question 191

facing the Court was whether the relief sought was “equitable in the days of the divided bench.” 547 U.S. at 357. The Court distinguished Knudson, where the relief sought was “not equitable—the imposition of a constructive trust or equitable lien on particular property—but legal—the imposition of personal liability for the benefits that [Great-West] conferred upon [Knudson].” Id. at 362 (citing Knudson, 534 U.S. at 212). Here, the Court held that Mid Atlantic’s claims were equitable because it sought specifically identifiable funds that were set aside and preserved from the proceeds of beneficiaries’ settlement with the third-party tortfeasors. Id. In Cusson, the First Circuit upheld Liberty’s right to reimbursement for overpayments resulting when Cusson received a retroactive award of Social Security Disability benefits covering a period during which she received payments from Liberty. The Cusson court focused on the distinction that in Knudson the funds had been deposited into a special needs trust and in Sereboff the funds were deposited and maintained in the beneficiary’s personal investment account. Cusson, 592 F.3d at 231. Acknowledging that Liberty could not identify the specific funds at issue, the court noted language in Sereboff regarding principles of equitable trust and the fact that Cusson had been on prior notice of Liberty’s right to reimbursement in the event that she won SSDI benefits, and that the funds were paid to Cusson directly. Id. Since Cusson, a trial court in the district of Massachusetts has cited Cusson for the principle that 192

funds need not be identifiable. Parent v. Principal Life Ins. Co., 763 F. Supp. 2d 257 (D. Mass. 2011). Compare that case with one from the district of Rhode Island where the court dismissed the insurer’s claim for reimbursement distinguishing that case on the grounds that the “overpayment” did not come from a third party but from the insurer itself, from an alleged miscalculation. D & H Therapy Assoc., LLC v. Boston Mut. Life Ins. Co., 691 F. Supp. 2d 304 (D.R.I. 2010), rev’d on other grounds, 640 F.3d 27 (1st Cir. 2011). Claims for reimbursement most often arise from alleged overpayments resulting from an insurer or other administrator paying benefits and subsequently learning that the payments should have been reduced, or offset, by other benefits that the participant received. Such offsets are usually referred to as “other income benefits” in plan documents. Recently, the First Circuit visited for the first time the question of whether Veteran Disability benefits are sufficiently similar to Social Security Disability Insurance (SSDI) benefits to qualify as offsets under the plan. In Hannington v. Sun Life and Health Ins. Co., 711 F.3d 226 (1st Cir. 2013), the court held that there were sufficient differences between veterans disability benefits and SSDI benefits, that the insurer could not reduce its obligation to pay benefits by the amount of the veterans disability benefit payments. Questions also sometimes arise as to whether insureds can invoke equitable defenses to a plan’s claim for reimbursement. In U.S. Airways v. McCutchen, 133 S. Ct. 1537 (2013) the Supreme Court held that equitable doctrines meant to prevent unjust enrichment, such as the double recovery rule and the common-fund doctrine, cannot override the clear terms of an ERISA plan. The 193

Court also clarified, however, that equitable rules may aid in properly construing the terms of an ERISA plan and in filling gaps, where the plan language is silent. XV. Miscellaneous A. Unique Substantive or Procedural Rules for ERISA Cases The First Circuit generally has not adopted unique substantive or procedural rules for ERISA benefit cases. Most cases are resolved on summary judgment. The First Circuit has not recognized exceptions to the general rule that 29 U.S.C. § 1132(a)(1)(B) cases are not tried by jury. Where there are disputes about the composition of the administrative record, the First Circuit has suggested that such disputes may be resolved by motion or a nonjury trial. Recupero v. New England Tel. & Tel. Co., 118 F.3d 820, 833–34 (1st Cir. 1997). Even if the case is not amenable to summary judgment, as there are one or more material facts in dispute, the court may still decide the case essentially on a record stated by the parties, and resolve factual disputes as required. When deciding a case stated, a court “draw[s] such inferences as are reasonable to resolve the case” rather than drawing all inferences against each moving party as it would when evaluating cross-motions for summary judgment. Id. The court also “may decide[ ] any significant issues of material fact.” Cont’l Grain Co. v. Puerto Rico Mar. Shipping Auth., 972 F.2d 426, 430 n.7 (1st Cir. 1992). The First Circuit has addressed the issue of alleged ERISA violations against an employee stock ownership 194

plan (ESOP), holding that the participants stated a cause of action against the employer for breach of fiduciary duty. Lalonde v. Textron, Inc., 369 F.3d 1 (1st Cir. 2004). The court acknowledged the difficulties an ESOP fiduciary faces in reconciling the ESOP goal of employee ownership (where the goal is not to guarantee retirement funds and assets are invested at a greater risk than typical diversified ERISA plans) and ERISA’s rigorous fiduciary obligations. Lalonde, 369 F.3d at 5. However, the court vacated the lower court, holding that the plaintiffs asserted enough facts to withstand dismissal under Federal Rule of Civil Procedure 12(b)(6). Id. at 6–7. The District Court of Puerto Rico held that the existence of contradictory medical reports did not defeat a finding of sufficient evidence for the plan administrator’s decision to deny benefits. Olivera v. Bristol Labs., 2006 WL 897972 at *9 (D.P.R. Apr. 5, 2006) (citing Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181 (1st Cir. 1988)). Where the plaintiff’s treating physicians found total disability but the independent medical consultants did not find total disability, the court held that the plan administrator’s decision to deny benefits was based upon sufficient and substantial evidence, even if one viewpoint was credited over another. Id. Where the District of Massachusetts found that the administrative record contained “significant evidence” in support of both the plan participant’s position that she was disabled and the Plan’s position that she wasn’t, the court remanded the case because of deficiencies in “the integrity of [the Plan’s] decision making process.” Petrone v. Long Term Dis. Income Plan for Choices Eligible Employees of Johnson & Johnson & Affiliated Cos., 2013 WL 1282315 195

(D. Mass. Mar. 27, 2013) (quoting Buffonge v. Prudential Ins. Co. of Amer., 426 F.3d 20, 31 (1st Cir. 2005)). B. Unique Approach to Common Policy-Based Defenses The First Circuit has developed no unique approaches to common policy-based defenses. The District Court of Massachusetts permitted an ERISA fiduciary to file an interpleader action in lieu of exercising its lawful discretion to designate a beneficiary for certain life insurance proceeds. Forcier v. Forcier, 406 F. Supp. 2d 132, 135 (D. Mass. 2005). The court rejected the “reverse exhaustion” argument, allowing MetLife to have the court make its decision instead. Forcier, 406 F. Supp. 2d at 141. The court reasoned that making MetLife choose between potential beneficiaries would only prolong litigation, requiring the parties to expend additional attorneys’ fees and resources because the “losing” party would file suit anyway. Id. at 142. The court awarded MetLife $5,000 in attorneys’ fees and costs from the proceeds and dismissed it as a party. Id. at 139. In the bench trial to determine who was the beneficiary under the policy, since none was named, the court took a practical approach, rejecting the spouse in favor of the decedent’s living parents. Id. at 149–50. Although the decedent was still technically married when he committed suicide, the final divorce decree was signed and it was only a matter of weeks before its effective date. Id. at 147. C. Delegation of Discretionary Authority 196

Notwithstanding the fact that the plan document did not include a delegation of discretionary authority to the plan administrator, based on provisions of the summary plan description and trust agreement, the First Circuit found that the plan authorized delegation of discretionary authority to the plan administrator, and that such delegation actually occurred. See Maher v. Mass. Gen. Hosp. Long Term Disability Plan, 665 F.3d 289, 293 (1st Cir. 2011). Thus, the plan administrator was vested with discretionary authority and its decision was subject to deferential review. Id. D. Supplementing the Administrative Record on Remand Applying the deferential standard of review, the First Circuit remanded a claim back to the plan administrator where the plan administrator failed to provide an analysis that fully justified its decision to terminate benefits. Maher v. Mass. Gen. Hosp. Long Term Disability Plan, 665 F.3d 289, 295 (1st Cir. 2011). The court allowed the plan administrator to conduct further review and provide further explanation to the claimant, and allowed the claimant “a fair opportunity to respond to any such supplementation of the administrative record.” Id. E. Other Miscellaneous Issues Class actions have been certified in ERISA cases in the First Circuit, provided the requirements of Federal Rule of Civil Procedure 23 are met. See, e.g., Carrier v. JPB Enters., Inc., 206 F.R.D. 332 (D. Me. 2002). The circuit court will review orders granting or denying class actions 197

for abuse of discretion. Tilley v. TJX Cos., Inc., 345 F.3d 34, 39 (1st Cir. 2003) (citing Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 295 (1st Cir. 2000)). In Lalonde v. Textron, Inc., 418 F. Supp. 2d 16, 22 (D.R.I. 2006), on remand from the First Circuit, the district court held that plaintiffs who were seeking class certification had no standing to bring action. The District Court of Rhode Island held that the former employees were not “participants” when they had neither (1) a reasonable expectation of returning to covered employment nor (2) a colorable claim to vested benefits. Lalonde, 418 F. Supp. 2d at 22.

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CHAPTER 2 Second Circuit MICHAEL H. BERNSTEIN VAUGHAN FINN KELLY SMITH HATHORN BRYANNE KELLEHER MATTHEW P. MAZZOLA I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan The Second Circuit has held that an ERISA plan is established if “from the surrounding circumstances a reasonable person can ascertain intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits.” Grimo v. Blue Cross/Blue Shield of Vt., 34 F.3d 148, 151 (2d Cir. 1994) (quoting Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir. 1982)). A plan can be established without a formal written instrument, so long as the essential functions are present. Grimo, 34 F.3d at 151. See also Gilbert v. Burlington Indus., Inc., 765 F.2d 320, 323–25 (2d Cir. 1985), aff’d, 477 U.S. 901 (1986) (holding that noncompliance with ERISA’s disclosure and claims procedure requirements did not preclude establishment of ERISA plan). Some of 199

the essential functions of a plan can be ascertained from sources outside the plan, such as an insurance company’s procedure for processing claims. Grimo, 34 F.3d at 151. As to the question of whether an employer’s involvement was enough to have “established or maintained” the plan, the Second Circuit has held that the employer’s purchase of a group policy of insurance, while not conclusive, offers substantial evidence that a plan has been established. Id. A “minimal ongoing administrative scheme” is all that is needed to establish a plan. Garrett v. Veterans Mem’l Med. Ctr., 821 F. Supp. 838, 840 (D. Conn. 1993). However, the Second Circuit has held that an insurance program was not governed by ERISA where the employer made irregular contributions to the insurance costs for only some of its employees, reasoning that the insurance program was not “maintained” by the employer. See Grimo, 34 F.3d at 153. See also Guilbert v. Gardner, 480 F.3d 140, 146 (2d Cir. 2007) (holding that employer’s oral promises and annual financial contributions were insufficient to establish employee pension plan). In addition, in Devlin v. Transp. Comm’ns Int’l Union, 175 F.3d 121, 127 (2d Cir. 1999), the Second Circuit held that an employer’s death benefit fund that paid $300 to an employee’s survivors was not an employee welfare benefit plan subject to ERISA because the regulations exclude “small gifts” made in remembrance of deceased employees. B. Definition of “Employee” for ERISA Purposes If no employees are participants in a plan, the plan is not governed by ERISA. See, e.g., Perlman v. Fidelity 200

Brokerage Servs. LLC, 2013 U.S. Dist. LEXIS 42793, at *24 (E.D.N.Y. Mar. 26, 2013) (holding that an employer who establishes the plan, and is covered by it, is not an employee under ERISA, so that for ERISA to apply, one or more employees would also need to be plan participants); Rand v. Equitable Life Assur. Soc. of U.S., 49 F. Supp. 2d 111, 116–17 (E.D.N.Y. 1999) (holding that group disability insurance policy issued to chiropractor and partner was not an employee benefit plan covered by ERISA since no employees of the practice were covered and the sole beneficiaries of the policy were the owners of the practice). The Eastern District of New York has held that a commodities floor broker who was a member of a mercantile exchange, and who received coverage under a group long-term disability plan sponsored by the exchange, was not an employee of the exchange and, as such, ERISA was inapplicable to his claim for benefits. Rafferty v. New York Mercantile Exch. Long-Term Disability Plan, 133 F. Supp. 2d 158, 161–62 (E.D.N.Y. 2000). Moreover, the District Court of Connecticut held that employees of an acquired company were not “employees” of the acquiring company until completion of the sale; thus, the acquiring company did not have a fiduciary duty under ERISA to provide employees of the acquired company with information regarding benefits the acquiring company was planning to offer. Flanigan v. Gen. Elec. Co., 93 F. Supp. 2d 236, 259–60 (D. Conn. 2000). With respect to ERISA’s exemption of governmental plans, the Second Circuit has held that an employee 201

benefit plan is exempt from ERISA where the employer that established the plan is an agency or instrumentality of a political subdivision of a state. See Rose v. Long Island R. R. Pension Plan, 828 F.2d 910, 914–21 (2d Cir. 1987) (railroad as employer); see also Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004) (holding that a plan funded by a school district for its employees is excluded from the purview of ERISA). As for ERISA’s exemption of plans maintained outside the United States primarily for the benefit of nonresident aliens, the Second Circuit has held that a plan maintained outside the United States may still be deemed an ERISA plan unless it is primarily for the benefit of persons substantially all of whom are nonresident aliens. Lefkowitz v. Arcadia Trading Co., 996 F.2d 600, 602 (2d Cir. 1993). C. Interpretation of Safe Harbor Regulation Courts within the Second Circuit interpret the “safe harbor” regulation, 29 C.F.R. § 2510.3-1(j), in conformity with its interpretation by other circuits. See Grimo v. Blue Cross/Blue Shield of Vt., 34 F.3d 148, 152 (2d Cir. 1994). The safe harbor regulation provides that if all four of the following criteria are met, a group insurance program will be excluded from ERISA coverage: 1. No contributions are made by an employer or employee organization; 2. Participation in the program is completely voluntary for employees or members; 3. The sole functions of the employer or employee organization with respect to the 202

program are, without endorsing the program, to permit the insurer to publicize the program to employees or members and to collect premiums through payroll deductions or dues checkoffs and remit them to the insurer; and 4. The employer or employee organization receives no consideration in the form of cash or otherwise in connection with the program other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs. For example, where an employer pays any portion of the premium for an insurance program, the program will not fall within the safe harbor. See, e.g., Adler v. Unicare Life & Health Ins. Co., 2003 WL 22928653, at *4 (S.D.N.Y. Dec. 10, 2003) (finding that insurance plan fails to meet safe harbor exception where employer contributes certain percentage of employees’ premiums); DiMaria v. First Unum Life Ins. Co., 2003 WL 21018819, at *4 (S.D.N.Y. May 6, 2003) (holding that where physician employer, a sole practitioner, paid for group disability insurance premiums with personal check, safe harbor criteria not satisfied). Several district courts have held that subsection (3) of the safe harbor regulation is not satisfied when an employee can reasonably conclude that the employer had not merely facilitated the program’s availability but had exercised some administrative control over it to make it appear to be part of the employer’s benefit plan. See, e.g., Cronin v. Zurich Am. Ins. Co., 189 F. Supp. 2d 29, 35 (S.D.N.Y. 2002). In Cronin, the Southern District of New York held that subsection (3) of 203

the regulation was not satisfied where the employer (1) considered the “Voluntary Accident Insurance Plan” an ERISA plan (it distributed a summary plan description and filed IRS Form 5500); (2) negotiated policy provisions; (3) was named as “plan administrator” in the summary plan description; (4) processed claim forms and provided guidance in completing forms; (5) exercised control over enrollment and eligibility requirements; and (6) offered the Voluntary Policy along with other plans in its overall program of employee benefits. Id. at 35–36; see also Sanfilippo v. Provident Life & Cas. Ins. Co., 178 F. Supp. 2d 450, 456 (S.D.N.Y. 2002) (holding that policy does not come within safe harbor exemption where policy describes itself as providing benefits under employer’s plan and includes ERISAspecific notices); Chase v. Prudential Ins. Co. of Am., 43 Empl. Benefits Cas. (BNA) 2873 (E.D.N.Y. Mar. 13, 2008) (holding that plan document that identified employer as contract holder, plan sponsor, and administrator defeated safe harbor claim). D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan See cases discussed in subsections A and C above. E. Treatment of Multiple Employer Trusts and Welfare Agreements The Second Circuit applies the same criteria to establish the existence of a welfare benefit plan to multiple employer trusts and welfare agreements (MEWAs) as it does to single-employer plans. See Atl. Health Benefits 204

Trust v. Googins, 2 F.3d 1, 3 (2d Cir. 1993). Cases in the Second Circuit have focused on the issue of whether states may regulate MEWAs as insurance companies under 29 U.S.C. § 1144(b)(6)(A). Id. at 4–6; USA for Healthcare Benefit Trust v. Googins, 1998 WL 136169, at *3–5 (D. Conn. Mar. 16, 1998). F. De Facto Plan Administrators The Second Circuit does not recognize de facto plan administrators. See Crocco v. Xerox Corp., 137 F.3d 105, 107 (2d Cir. 1998) (precluding employer liability as a de facto administrator in a suit brought under ERISA § 502(a)(1)(B) where the employer has designated a plan administrator); see also Spears v. Liberty Life Ass. Co. of Boston, 885 F. Supp. 2d 546, 555 (D. Conn. 2012) (dismissing claim against employer for long-term disability benefits where insurance company administered plan); In re Bausch & Lomb, Inc. ERISA Litig., 2008 U.S. Dist. LEXIS 106269, at *36, 45 Empl. Benefits Cas. (BNA) 1977 (W.D.N.Y. Dec. 12, 2008) (extending Crocco’s holding to the ERISA fiduciary context). II. Preemption A. Scope of ERISA Preemption The scope of ERISA preemption in the Second Circuit is “fundamentally a question of congressional intent.” Gerosa v. Savasta & Co., 329 F.3d 317, 323 (2d Cir. 2003); see also Stevenson v. Bank of N.Y. Co., 609 F.3d 56, 59 (2d Cir. 2010) (“In determining the scope of ERISA’s preemption provision, our touchstone is 205

congressional intent, primarily as evidenced by statutory language.”) In Gerosa, the Second Circuit held that Congress intended ERISA preemption to be limited to those laws that would interfere with ERISA’s primary goal of protecting the interests of participants in employee benefit plans and their beneficiaries. Gerosa, 329 F.3d at 323. For this reason, the key focus in any preemption analysis is whether the state law in question affects the relationship among the core ERISA entities: beneficiaries, participants, administrators, employers, trustees, fiduciaries, and the plan itself. Id. at 324. Also integral to the analysis is whether the state law conflicts with central ERISA functions, including, inter alia, determining benefit eligibility, the amount of benefits, or the means of securing unpaid benefits. Id. State laws affecting interactions among core ERISA entities with respect to central ERISA functions are likely to be preempted, whereas those involving relationships between ERISA and non-ERISA entities (such as a plan’s arrangement with an outside actuarial firm) are not. Id. at 328 (recognizing that “ERISA does not create a ‘fully insulated legal world’ for plans; they must deal with outsiders, such as landlords or debt-collectors, under the same diverse hodge-podge of state law as any other economic actor”). See also Stevenson, 609 F.3d at 61 (noting that a suit that “neither interferes with the relationships among core ERISA entities nor tends to control or supersede their functions … poses no danger of undermining the uniformity of the administration of benefits that is ERISA’s key concern.”) The Second Circuit recently restated with approval Gerosa’s holding that “state laws that would tend to 206

control or supersede central ERISA functions—such as state laws affecting the determination of eligibility for benefits, amounts of benefits, or means of securing unpaid benefits—have typically been found to be preempted.” Hattem v. Schwarzenegger, 449 F.3d 423, 431 (2d Cir. 2006) (citing Gerosa, 329 F.3d at 327). The Second Circuit has long described complete preemption as having two separate components. See Cicio v. Does, 321 F.3d 83, 92–94 (2d Cir. 2003) (Cicio I), vacated, 2004 U.S. LEXIS 4579 (U.S. 2004); Romney v. Lin, 94 F.3d 74, 78 (2d Cir. 1996), reh’g denied, 105 F.3d 806 (2d Cir. 1997). First, the reviewing court determines whether the state law conflicts with ERISA—i.e., whether the state law relates to an ERISA plan. Cicio I, 321 F.3d at 93 (citing 29 U.S.C. § 1144(a)). “A state law relates to an ERISA plan if it has a connection with or reference to such a plan.” Id. (citations omitted). Second, the court determines whether the cause of action is “within the scope of the civil enforcement provisions of ERISA § 502(a).” Id. (quoting 29 U.S.C. § 1132(a)). This requirement is met if the state law acts as an alternative enforcement mechanism to ERISA by “seek[ing] to vindicate rights already protected by § 502(a).” Id. at 94. If both of these conditions are satisfied, the state law is completely preempted and the action is subject to removal and dismissal under ERISA. Id. at 93. The Second Circuit revisited its preemption analysis following the U.S. Supreme Court’s decision in Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), and the subsequent order vacating Cicio v. Does, 2004 U.S. LEXIS 4579. As more fully discussed in subsection C 207

below, Davila was factually similar to Cicio in that both cases addressed whether ERISA preempts state-law medical malpractice claims brought against managed care organizations (MCOs). Davila, 542 U.S. at 203–05; Cicio I, 321 F.3d at 100–04. However, in addition to finding that ERISA completely preempts state law medical malpractice claims against most MCOs, the Supreme Court in Davila set out a comprehensive analysis of ERISA preemption. Davila, 542 U.S. at 206–21. Interestingly, the Supreme Court held that a state claim is both removable and completely preempted solely under ERISA § 502 “if [the state law] provides a separate vehicle to assert a claim for benefits outside of, or in addition to, ERISA’s remedial scheme” regardless of whether the law is saved from preemption under § 514. Id. at 217–18. After the Supreme Court vacated and remanded Cicio, the Second Circuit vacated its earlier decision and affirmed the district court’s dismissal of the plaintiff’s complaint. Cicio v. Does, 385 F.3d 156 (2d Cir. 2004) (Cicio II). The Second Circuit noted that the Supreme Court’s reasoning in Davila “fatally undermine[d]” the holding in Cicio I. Cicio II, 385 F.3d at 158. The Second Circuit recognized in Cicio II that Davila required dismissal of state medical malpractice claims against ERISA plan providers. Id. Davila’s holding appeared to contradict the Second Circuit’s long-standing two-step analysis requiring application of both § 502 and § 514 before a state law claim would be removable and completely preempted under ERISA. Cicio I, 321 F.3d 92–94; Romney, 94 F.3d 208

at 78. However, although the Second Circuit has not addressed the issue of whether Davila’s analysis supersedes that two-step method, it has applied the preemption analysis utilized in Davila. See Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 328 (2d Cir. 2011) (noting that if the plaintiff’s claims fall within the scope of § 502(a)(1)(B), those claims are preempted by ERISA); Arditi v. Lighthouse Int’l, 676 F.3d 294, 299–301 (2d Cir. 2012) (following Davila and Montefiore Med. Ctr.); see also NYU Hosps. Ctr.-Tisch v. Local 348 Health & Welfare Fund, 2005 U.S. Dist. LEXIS 256, at *5–6, 34 Empl. Benefits Cas. (BNA) 2339 (S.D.N.Y. 2005) (noting that Davila “reformulated” the Second Circuit’s traditional two-step inquiry); Curcio v. Hartford Fin. Servs. Group, 469 F. Supp. 2d 18, 24 (D. Conn. 2007) (following Davila and holding that because the plaintiff’s claim fell within the scope of § 502, it was completely preempted and therefore removable to federal court); but see DaPonte v. Manfredi Motors, Inc., 157 Fed. App’x 328, 330, 2005 U.S. App. LEXIS 19948, at *4, 35 Empl. Benefits Cas. (BNA) 2589 (2d Cir. 2005) (analyzing the plaintiff’s claim using both § 502 and § 514). B. Preemption of Managed Care Claims In Cicio, the plaintiff brought multiple state law claims against the defendant health maintenance organization, alleging that the HMO wrongfully denied authorization for a requested medical service. Cicio I, 321 F.3d 83. Plaintiff alleged that (1) the HMO’s benefit determination was untimely (“timeliness claims”), (2) the HMO misrepresented the availability of benefits under the plan 209

(“misrepresentation claims”), and (3) the HMO’s denial of the benefit was based upon a negligent medical decision (“medical malpractice claims”). Id. at 90. The district court found that each of plaintiff’s eighteen counts was preempted by ERISA. Id. at 89. Plaintiff appealed. Id. Plaintiff’s timeliness claims were based on a New York law requiring HMOs to render medical benefit determinations within one business day after receiving all necessary information relating to the request. Id. at 95 (citing N.Y. Pub. Health Law § 4903(3)). The Second Circuit held that the New York law conflicted with regulations issued by the Secretary of Labor setting forth time frames for responding to requests for services and thus had an “effect on the primary administrative functions of benefit plans.” Id. at 95 (citing Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 146 (2d Cir. 1989)). The Second Circuit also held that plaintiff’s timeliness claims acted as an alternative mechanism for enforcing the rights already available under ERISA § 502, namely the right to ensure timely benefit determinations through injunctive relief. Id. at 95–96. Accordingly, plaintiff’s timeliness claims were completely preempted. Id. at 95. The Second Circuit also found that plaintiff’s misrepresentation claims related to the existence or extent of benefits available under the plan and thereby conflicted with ERISA. Id. at 96. In addition, the claims acted as an alternative enforcement mechanism in that they sought to vindicate rights accruing under the plan’s terms. Id. Because ERISA § 502(a)(1)(B) allows recovery of benefits due under a plan, plaintiff’s misrepresentation 210

claims were deemed to be within the scope of ERISA’s civil enforcement provisions. Id. Based on these findings, the Second Circuit held that plaintiff’s misrepresentation claims were completely preempted. Id. at 96–97; see also Wiggin v. Bridgeport Hosp., Inc., 2003 U.S. Dist. LEXIS 10509, at *5–6 (D. Conn. June 20, 2003) (granting defendants’ motion to dismiss plaintiffs’ fraud and misrepresentation claims based on defendants’ statements concerning the availability of benefits under the plan). C. Preemption of Malpractice Claims Prior to Davila, the Second Circuit found that state medical malpractice law involves the application of duties of conduct that are defined outside of ERISA. Cicio I, 321 F.3d at 99–100. The Second Circuit reasoned that, because the plaintiff’s malpractice claim was based on the medical component of the MCO’s mixed eligibility and treatment decision, the claim did not “relate to” the plan. Id. at 104. Accordingly, the plaintiff’s medical malpractice claim was not preempted. Id. However, as noted in subsection A above, the Supreme Court vacated Cicio based upon its decision in Davila. 542 U.S. 200. Davila involved two consolidated cases from the Fifth Circuit (Aetna Health Inc. v. Davila and Cigna Healthcare of Tex. Inc.), in which the plaintiffs asserted medical malpractice-type claims against ERISA plan administrators based on the allegedly wrongful denial of benefits. Id. at 204. Specifically, the plaintiffs asserted claims under the Texas Health Care Liability Act (THCLA) alleging that the defendants violated the statutorily imposed duty of ordinary care in making their 211

health insurance benefit determinations. Id. In a unanimous decision, the Supreme Court held that the plaintiffs’ causes of action fell within the scope of ERISA § 502 and were completely preempted as alternative remedies to ERISA’s civil enforcement provisions. Id. at 214. The Supreme Court rejected the plaintiffs’ argument that THCLA was saved from preemption as a law regulating insurance, finding instead that “a state cause of action that provides an alternative remedy to those provided by the ERISA civil enforcement mechanism conflicts with Congress’ clear intent to make the ERISA mechanism exclusive,” regardless of whether the underlying state law was saved from preemption under ERISA § 514. Id. at 214 n.4 (citing Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990)). The Second Circuit has not discussed Davila in the context of a medical malpractice claim at the time of this publication. Prior to Davila, however, one district court applied Cicio in a way that seemed to anticipate the Supreme Court’s newly pronounced preemption analysis. In a case involving a plan’s utilization management (UM) agent as opposed to an HMO, the Southern District of New York found that the plaintiff’s medical malpractice claim was completely preempted despite the Second Circuit’s decision in Cicio. Rubin-Schneiderman v. Merit Behavioral Care Corp., 2003 U.S. Dist. LEXIS 14811, at *5 (S.D.N.Y. Aug. 27, 2003), aff’d, 193 Fed. App’x 70, 71 (2d Cir. 2006). The court began its analysis by reviewing the plan’s brochure and the correspondence between the UM agent and the plaintiff’s treating physician. Id. at *3 n.1, *5. Based on these documents, the court found that the relationship between the plaintiff 212

and the UM agent did not give rise to a duty of care outside of ERISA. Id. at *5. See also id. at *2–3 (distinguishing the role of a UM agent from that of an HMO, which, in some cases, may have a physicianpatient relationship with a member). The Rubin-Schneiderman court held that, even under Cicio, ERISA continues to preempt medical negligence claims brought against entities “which never sought to undertake responsibility for its insureds’ treatment.” Id. (citing Marks v. Watters, 322 F.3d 316, 324 (4th Cir. 2003)). This decision appears consistent with Davila, which suggested that liability beyond ERISA may still exist if the defendant is responsible for both treating the plaintiff and making benefit determinations. Davila, 542 U.S. at 220–24. D. Other Preemption Issues The Second Circuit has held that state law malpractice claims brought by plan fiduciaries against the plan’s outside actuary are not preempted. Gerosa, 329 F.3d 317. See Cicio I, 321 F.3d at 103–04 (noting that ERISA’s goal of promoting the interests of plan beneficiaries does not mandate “the elimination of protective standards of professional conduct”). In reaching this conclusion, the Second Circuit applied the general principle that Congress intended preemption to apply among core ERISA entities to further ERISA’s central purpose of protecting the interests of plan beneficiaries. Gerosa, 329 F.3d at 328. The state law claims in Gerosa were brought by the plan’s fiduciary (core ERISA entity) against an outside consultant (non-core ERISA entity). Id. See also Nelson v. 213

Unum Life Ins. Co. of Am., 232 Fed. App’x 23, 24 (2d Cir. 2007) (holding that an ERISA fiduciary is “one of the entities that Congress intended to exclusively regulate in its dealings with plan participants” and citing Gerosa for the proposition that employers, plan administrators, fiduciaries, and participants are “core” ERISA entities). The court also held that the claims were aimed at furthering the interests of the plan’s participants by seeking monetary damages to offset the losses allegedly caused by the defendant’s negligence and that no ERISA purpose would be served by preempting the claims. Gerosa, 329 F.3d at 328. Accordingly, the Second Circuit found that the plan’s state law claims were not preempted. III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? The Second Circuit recognizes the “firmly established federal policy favoring exhaustion of administrative remedies in ERISA cases.” Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 594 (2d Cir. 1993); see also Burke v. PricewaterhouseCoopers LLP Long Term Disability Plan, 572 F.3d 76, 80 n.3 (2d Cir. 2009) (stating that “ERISA does not contain an explicit exhaustion of remedies requirement, but this Circuit has inferred such a requirement”). The exhaustion requirement, the court has stated, encourages that administrative claim procedures established by plans be followed and facilitates the full development of the administrative record should the claim be litigated. Kennedy, 989 F.2d at 594. See also Kirkendall v. Halliburton, Inc., 707 F. 3d 173, 179 (2d Cir. 2013) 214

(“Implicit in the exhaustion requirement is the condition that a plaintiff must have an administrative remedy to exhaust.”) The Second Circuit has held, however, that failure to exhaust administrative remedies is not a jurisdictional bar to bringing an action but rather an affirmative defense that is waived if not asserted. See Paese v. Hartford Life & Acc. Ins. Co., 449 F.3d 435, 445–56 (2d Cir. 2006). Exhaustion “requires only those administrative appeals provided for in the relevant plan or policy.” Kennedy, 989 F.2d at 594. One district court has held that where the plan handbook stated only that a participant “may” seek review of a denied claim, exhaustion was not required. Sibley-Schreiber v. Oxford Health Plans (N.Y.), Inc., 62 F. Supp. 2d 979, 985–89 (E.D.N.Y. 1999); see also Serrapica v. Long-Term Disability Plan of the Chase Manhattan Bank, 2007 WL 2262878, at *3 (E.D.N.Y. Aug. 3, 2007) (noting that where a plaintiff has not been adequately informed of her appeal rights, the court can waive the exhaustion requirement). B. Exceptions to the Exhaustion Requirement A plaintiff must make a “clear and positive” showing of futility to avoid the exhaustion requirement. Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d at 594; Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 133 (2d Cir. 2001). See also Stewart v. NYNEX Corp., 78 F. Supp. 2d 172, 183 (S.D.N.Y. 1999) (finding that denial of one class member’s claim appeal was sufficient for “clear and positive” showing that exhaustion by other class members would be futile); but see Niblo v. UBS Global Asset Mgmt. (Americas) Inc., 2012 WL 995276, at *4 215

(S.D.N.Y. Mar. 21, 2012) (“Under the law of the Second Circuit, a plaintiff cannot make the requisite ‘clear and positive showing’ of futility merely by showing that an initial application was unreasonably denied”). In Paese, the court held that where the administrator did not distinguish between the “own occupation” and “any occupation” periods of disability in denial letters, the plan was estopped from asserting the plaintiff’s failure to exhaust remedies during the “any occupation” phase of disability. 449 F.3d at 447–48. In Nichols v. Prudential Ins. Co. of Am., 406 F.3d 98 (2d Cir. 2005), the Second Circuit held that an ERISA plan administrator’s failure to comply with regulatory deadlines governing appeals of adverse benefit determinations rendered the claimant’s administrative remedies exhausted. 406 F.3d at 106; see also Burke v. PricewaterhouseCoopers LLP Long Term Disability Plan, 537 F. Supp. 2d 546, 551 (S.D.N.Y. 2008) (citing Nichols for the proposition that substantial compliance with regulatory deadlines is insufficient, and claim administrators must strictly abide by the time line set forth in the regulations), aff’d, 572 F.3d 76 (2d Cir. 2009). At least one district court has held that an employee’s failure to adhere to administrative review deadlines may be excused on the grounds of equitable estoppel. See Tiger v. AT&T Techs. Plan, 633 F. Supp. 532, 534 (E.D.N.Y. 1986). See also Chapman v. Choicecare Long Island Long Term Disability Plan, 288 F.3d 506, 512–14 (2d Cir. 2002) (suggesting without deciding that equitable tolling of administrative review deadlines might be appropriate where mental illness of participant prevented pursuit of appeal). Where a plaintiff failed to appeal the denial of his disability benefits claim 216

within 60 days, but argued that the administrator should be estopped from asserting exhaustion since it had taken over 180 days to issue an initial claim denial, the court held that the plaintiff’s failure to file a timely appeal was not excused, since he could have appealed after the 180-day period had expired. Holm v. First UNUM Life Ins. Co., 7 Fed. App’x 40, 41–42 (2d Cir. 2001). C. Consequences of Failure to Exhaust Failure to exhaust remedies is an affirmative defense, but not a jurisdictional bar to bringing an action. See Paese, 449 F.3d 435, 445–56 (2d Cir. 2006). Although the Second Circuit has not yet addressed whether exhaustion is required for statutory ERISA claims, some district courts have held that it is not. See, e.g., Desilva v. N. Shore-Long Island Jewish Health Sys., 2011 U.S. Dist. LEXIS 27138, at *105 (E.D.N.Y. Mar. 16, 2011); DePace v. Matsushita Elec. Corp., 257 F. Supp. 2d 543, 557 (E.D.N.Y. 2003); MacKay v. Rayonier, Inc., 25 F. Supp. 2d 47, 50 (D. Conn. 1998) (holding that exhaustion not required for § 510 claims); Gray v. Briggs, 1998 WL 386177, at *7 (S.D.N.Y. July 7, 1998) (holding no exhaustion requirement for ERISA claims alleging statutory violation rather than denial of benefits). D. Minimum Number of Levels of Administrative Review The Second Circuit does not require a plan to provide more than the single appellate review mandated by ERISA.

217

IV. Standard of Review A. Plan Language The Second Circuit has held that when a plan confers upon a plan administrator discretionary authority to determine eligibility for benefits or construe plan terms, “we will not disturb the administrator’s ultimate conclusion unless it is ‘arbitrary or capricious,’” that is, “without reason, unsupported by substantial evidence or erroneous as a matter of law.” Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441–42 (2d Cir. 1995). The Second Circuit has recognized that words like “discretion” or “deference” are not required to confer discretionary authority. Krauss v. Oxford Health Plans, 517 F.3d 614, 622 (2d Cir. 2008); Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 251 (2d Cir. 1999). The Second Circuit has found that the following language is sufficient to confer discretionary authority on an administrator: The plan administrator “may adopt reasonable policies, procedures, rules and interpretations to promote the orderly and efficient administration of this Certificate” and the definition of a usual, customary, and reasonable charge as “the amount charged or the amount we determine to be the reasonable charge, whichever is less” (Krauss v. Oxford Health Plans, 517 F.3d at 622–23). “[T]he trustees shall determine any questions arising under the plan” (O’Shea v. First Manhattan 218

Co. Thrift Plan & Trust, 55 F.3d 109, 112 (2d Cir. 1995)). Fiduciaries were authorized to “determine conclusively … all questions arising in the administration of the Plan” (Pagan, 52 F.3d at 441). “[The] decision of the Pension Committee regarding whether or not a person is disabled is final and binding” (Neely v. Pension Trust Fund, 2003 WL 21143087, at *7 (E.D.N.Y. Jan. 16, 2003)). Trustees had authority to “resolve all disputes and ambiguities relating to the interpretation of the Plan” (Ganton Techs., Inc. v. Nat’l Indus. Group Pension Plan, 76 F.3d 462, 466 (2d Cir. 1996)). The following plan language has been held to be insufficient to confer discretion: Participant must submit “satisfactory proof to us” (Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d at 251–52). Discretion to establish initial terms of plan (Masella v. Blue Cross & Blue Shield of Conn., Inc., 936 F.2d 98, 103 (2d Cir. 1991)). B. What Standard of Review Applies When a plan confers discretionary authority to its fiduciaries, the arbitrary and capricious standard of review applies. See Pagan v. NYNEX Pension Plan, 52 F.3d 438,

219

441 (2d Cir. 1995); Murphy v. IBM Corp., 23 F.3d 719, 721 (2d Cir. 1994). The district court’s review of an administrator’s claim determination under the arbitrary and capricious standard is narrow in scope and highly deferential. The Second Circuit has explained: “[W]e may overturn a decision and deny benefits only if it was ‘without reason, unsupported by substantial evidence or erroneous as a matter of law.’ … [W]e are not free to substitute our own judgment for that of the [administrator] as if we were considering the issue of eligibility anew.” Pagan, 52 F.3d at 442 (citations omitted). See also Jordan v. Ret. Comm. of Rensselaer Polytechnic Inst., 46 F.3d 1264, 1271 (2d Cir. 1995) (“The arbitrary and capricious standard of review is highly deferential to a plan administrator…. The Court may not upset a reasonable interpretation by the administrator.”); Scannell v. Metro. Life Ins. Co., 2003 WL 22722954, at *4 (S.D.N.Y. Nov. 18, 2003) (“[The administrator’s] decision will be upheld unless it is not grounded on any reasonable basis. The reviewing court need only assure that the administrator’s decision falls somewhere on a continuum of reasonableness—even if on the low end.”) (emphasis in original) (internal citations omitted). C. Effect of Conflict of Interest or Procedural Irregularity Prior to the Supreme Court’s decision in Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), the Second Circuit approached situations in which a plan administrator had the dual authority to determine the validity of a claim and pay benefits under the policy by allowing a court to review de novo the administrator’s decision when it 220

was shown that a conflict of interest actually influenced the decision. See Sullivan v. LTV Aerospace & Def. Co., 82 F.3d 1251, 1255–56 (2d Cir. 1996). In McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 128 (2d Cir. 2008), the Second Circuit concluded that this standard was inconsistent with Glenn. It held that, following Glenn, “a plan under which an administrator both evaluates and pays benefits claims creates the kind of conflict of interest that courts must take into account and weigh as a factor in determining whether there was an abuse of discretion, but does not make de novo review appropriate.” Id. at 133. See also Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 82–83 (2d Cir. 2009) (holding that no weight is given to a conflict in the absence of evidence that the conflict actually affected the decision); Martucci v. Hartford Life Ins. Co., 863 F. Supp. 2d 269, 275–76 (S.D.N.Y. 2012) (holding that a conflict of interest does not exist when a plan administrator decides a plan participant’s eligibility for benefits, but does not pay the disability benefits it administers). The court concluded in McCauley that the abuse of discretion standard applied “even where the plaintiff shows that the conflict of interest affected the choice of a reasonable interpretation.” 551 F.3d at 128. The Second Circuit suggested that where circumstances indicated a higher likelihood that the conflict affected the benefits determination, such as where a plan administrator had a history of biased claims decisions, the conflict of interest would prove more important; it would be less important where the administrator had taken “active steps” to reduce potential bias. Id. at 133 (quoting Glenn, 554 U.S. at 117).

221

Failure to comply with ERISA regulations may alter the standard of review. In Nichols v. Prudential Ins. Co. of Am., 406 F.3d 98 (2d Cir. 2005), the Second Circuit held that an ERISA plan administrator’s failure to comply with regulatory deadlines for claims determinations resulted in the claim being “deemed denied.” Even though the plan might contain a grant of discretionary authority, the Second Circuit explained, the court’s review of a “deemed denied” claim is de novo because inaction is not a valid exercise of discretion. 406 F.3d at 109. See also Burke v. PricewaterhouseCoopers LLP Long Term Disability Plan, 572 F.3d 76, 80 (2d Cir. 2009). In Strom v. Siegel Fenchel & Peddy P.C. Profit Sharing Plan, 497 F.3d 234, 243–44 (2d Cir. 2007), the court held that de novo review applied in spite of discretionary language where the plan administrator failed to issue a decision at all because of the plaintiff’s alleged failure to provide necessary information. The Second Circuit has not formally decided whether substantial compliance with regulatory deadlines is sufficient to avoid de novo review, see Fershtadt v. Verizon Comm’ns Inc., 2010 U.S. Dist. LEXIS 13937, at *30–31 (S.D.N.Y. Feb. 9, 2010), although some lower courts have adopted this approach. See Tsagari v. Pitney Bowes, Inc., 473 F. Supp. 2d 334, 339 (D. Conn. 2007) (holding that plan substantially complied with regulations notwithstanding two-week delay in providing notice of intent to take additional 45 days to decide claim and that arbitrary and capricious standard applied). In Durakovic v. Building Service 32 BJ Pension Fund, 609 F.3d 133, 138 (2d Cir. 2010), the Second Circuit held that funds organized pursuant to 29 U.S.C. § 186(c)(5) are 222

conflicted within the meaning of Glenn even though they are trusts administered by employee and employer representatives. The court also noted that a conflict exists for insurance companies acting as third-party administrators, although the degree of the conflict might be less than in the case of employer-administrators who have a “categorical conflict.” Id. at 138. D. Other Factors Affecting Standard of Review Other factors that can affect the standard of review include whether discretionary authority has been properly delegated to the entity or person making the benefit determination. Thus, where a plan granted discretion to a named fiduciary but did not permit such discretion to be delegated, a claim decision made by an unrelated subcommittee was held reviewable de novo. Rubio v. Chock Full O’Nuts Corp., 254 F. Supp. 2d 413, 423 (S.D.N.Y. 2003). Where the plan does not explicitly “name” its claims administrator as a fiduciary, but describes the administrator’s specific fiduciary functions (such as making final claim determinations), a provision conferring discretionary authority on “other plan fiduciaries” is sufficient to confer discretionary authority on the claims administrator. See Winkler v. Metro. Life Ins. Co., 2004 WL 1687202, at *2–3 (S.D.N.Y. July 27, 2004). A grant of discretionary authority contained only in the summary plan description (rather than in the plan document or group policy) has been held to be effective. See Murphy v. IBM Corp., 23 F.3d 719, 721 (2d Cir. 1994); Scannell v. Metro. Life Ins. Co., 2003 WL 223

22722954, at *4 (S.D.N.Y. Nov. 18, 2003). In Gibbs v. CIGNA Corp., 440 F.3d 571 (2d Cir. 2006), the Second Circuit held that the summary plan description in effect at the time disability benefits “vested” (i.e., when the participant became disabled) was the governing document for purposes of determining the applicable standard of review. Id. at 576–77. A plan’s grant of discretion, the court noted, affects the substance of a participant’s benefits. Id. at 577–78. V. Rules of Plan Interpretation A. Application of Federal Common Law The Second Circuit construes ERISA plans “according to federal common law … and interprets them ‘in an ordinary and popular sense as would a person of average intelligence and experience.’” Pepe v. Newspaper & Mail Deliverers’-Publishers’ Pension Fund, 559 F.3d 140, 147 (2d Cir. 2009) (quoting Critchlow v. First Unum Life Ins. Co., 378 F.3d 246, 256 (2d Cir. 2004)). The court interprets an ERISA plan “as a whole, giving terms their plain meanings.” Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir. 2002). B. Application of Contra Proferentem The Second Circuit has incorporated the contra proferentem rule of contract construction (construing ambiguities in plan language against the drafter) into the federal common law of ERISA. However, the rule applies only when the court’s review is de novo. See Fay, 287 F.3d at 104; IV Servs. of Am. Inc. v. Trs. of Am. 224

Consulting Eng’rs Council Trust Fund, 136 F.3d 114, 121 (2d Cir. 1998); Pagan v. NYNEX Pension Plan, 52 F.3d 438, 443 (2d Cir. 1995). C. Deference Afforded Interpretation of a Plan

to

an

Administrator’s

If the administrator is granted discretionary authority, its interpretation of a plan term is to be given deference. The Second Circuit has stated that “[w]hen both the plan administrator and a spurned claimant ‘offer rational, though conflicting, interpretations of plan provisions, the [administrator’s] interpretation must be allowed to control.’” Pulvers v. First Unum Life Ins. Co., 210 F.3d 89, 92–93 (2d Cir. 2000) (quoting O’Shea v. First Manhattan Thrift Plan & Trust, 55 F.3d 109, 112 (2d Cir. 1995)); see also McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 132 (2d Cir. 2008). However, “where the administrator ‘impose[s] a standard not required by the plan’s provisions, or interpret[s] the plan in a manner inconsistent with its plain words, … [its] actions may well be found to be arbitrary and capricious.’” Pulvers, 210 F.3d at 93 (quoting O’Shea, 55 F.3d at 112); see also Miles v. Principal Life Ins. Co., 720 F.3d 472, 486 (2d. Cir. 2013). Nevertheless, the Second Circuit has held that a plan administrator who retains discretionary authority may reasonably require a claimant to provide objective medical evidence of disability even when such a requirement is not expressly contained in the plan. Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 88 (2d Cir. 2009). D. Other Rules of Plan or Contract Interpretation 225

In interpreting plan documents, the Second Circuit has held that oral promises made about benefits are unenforceable under ERISA and cannot vary the terms of an ERISA plan. See Ladouceur v. Credit Lyonnais, 584 F.3d 510, 512 (2d Cir. 2009); Perreca v. Gluck, 295 F.3d 215, 225 (2d Cir. 2002). However, the employer’s use of a PowerPoint presentation about welfare benefits has been deemed to be a written representation for purposes of ERISA. See D’Iorio v. Winebow, Inc., 920 F. Supp. 2d 313, 325–26 (E.D.N.Y. 2013). VI. Discovery A. Limitations on Discovery The Second Circuit has held that a court’s scope of evidentiary review in an ERISA plan benefits case is generally restricted to the administrative record (see section VII, below). Accordingly, in the absence of a conflict of interest, district courts have held that discovery is limited to such matters as determining the completeness of the claim file or clarifying codes or abbreviations found therein. See, e.g., Maida v. Life Ins. Co. of N.A., 949 F. Supp. 1087, 1091 (S.D.N.Y. 1997) (holding that employee challenging plan administrator’s denial of benefits was not entitled to depose claim adjuster where employee made no showing of how adjuster’s testimony might be expected to raise material issue of fact). The parameters of permissible discovery are not strictly fixed, however. Even in Miller v. United Welfare Fund, 72 F.3d 1066 (2d Cir. 1995), where the Second Circuit announced that the court’s review under the arbitrary and capricious standard is limited to the administrative record and held 226

that the district court had erred in considering extrinsic evidence, id. at 1071, the court relied on the deposition testimony of the fund’s administrator as support for its conclusion that the trustees’ decision was arbitrary and capricious. Id. at 1072. See also Nagele v. Elec. Data Sys. Corp., 193 F.R.D. 94, 103–05 (W.D.N.Y. 2000) (holding that standard discovery devices under rules of civil procedure are available in ERISA plan benefits cases to determine completeness and meaning of administrative record). B. Discovery and Conflict of Interest Discovery may be permitted on the issue of whether an administrator’s decision was influenced by a conflict of interest even when an insurer has discretionary authority. “On such an issue,” the Second Circuit has commented, “which is distinct from the reasonableness of the plan administrator’s decision, the district court will not be confined to the administrative record.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 174 (2d Cir. 2001). See also Samedy v. First Unum Life Ins. Co. of Am., 2006 WL 624889, at *2 (E.D.N.Y. May 10, 2006) (granting limited discovery to assist in determining whether actual conflict of interest influenced claim decision); Sheehan v. Metro. Life Ins. Co., 2002 WL 1424592, at *4 (S.D.N.Y. June 28, 2002) (concluding that whether plan administrator was conflicted when it terminated plaintiff’s benefits was proper subject for discovery). Following Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), some district courts have allowed substantial discovery on the conflict of interest issue. See, e.g., 227

Joyner v. Cont’l Cas. Co., 837 F. Supp. 2d 233 (S.D.N.Y. 2011) (holding that Glenn did not completely abrogate “limitations on discovery unique to ERISA” but allowing document requests and Rule 30(b)(6) deposition to address multiple factual areas); Strope v. Unum Provident Corp., 2009 U.S. Dist. LEXIS 19383 (W.D.N.Y. Mar. 11, 2009) (permitting discovery of administrator’s claims manual, compensation and recognition programs for claims personnel, and number of claims handled by personnel who evaluated plaintiff’s claim); Burgio v. Prudential Life Ins. Co. of Am., 253 F.R.D. 219 (E.D.N.Y. 2008) (permitting discovery regarding plan sponsor’s past relationships with physicians reviewing long-term disability application, financial incentives paid to claim reviewers, and sponsor’s contracts with third-party vendors); Hogan-Cross v. Metro. Life Ins. Co., 568 F. Supp. 2d 410 (E.D.N.Y. 2008) (permitting discovery, including depositions, regarding approval and termination rates for long-term disability claims, statistics for longterm disability claims administered by the insurer in litigation, and compensation of persons involved in evaluating claim). But see Durham v. Prud’l Life Ins. Co., 890 F. Supp. 2d 390, 397–98 (S.D.N.Y. 2012) (“the standard for permitting discovery outside the administrative record is far less stringent than the good cause standard for actually considering the outside evidence”). VII. Evidence A. Scope of Evidence under Standards of Review

228

The Second Circuit has held that when the arbitrary and capricious standard of review applies, a district court is limited in the scope of its evidentiary review and may consider only the administrative record that was before the fiduciary at the time of its claim decision. Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir. 1995); see also Trussel v. CIGNA Life Ins. Co., 552 F. Supp. 2d 387, 390 (S.D.N.Y. 2008). In Miller, the court explained that “[t]his rule is consistent with the fact that nothing ‘in the legislative history suggests that Congress intended that federal district courts would function as substitute plan administrators’ and with the ERISA ‘goal of prompt resolution of claims by the fiduciary.’” Id. at 1071 (quoting Perry v. Simplicity Eng’g, 900 F.2d 963, 967 (6th Cir. 1990)). Consequently, the Second Circuit has held on multiple occasions that district courts erred in considering evidence outside the administrative record. See, e.g., Krizek v. Cigna Group Ins., 345 F.3d 91, 99–100 (2d Cir. 2003) (vacating decision of district court, which expressly considered plaintiff’s demeanor during testimony at trial in upholding denial of benefits); see also Klecher v. Metro. Life Ins. Co., 2003 WL 21314033, at *7 (S.D.N.Y. June 6, 2003) (rejecting consideration of affidavits of coworkers offered in support of plaintiff’s summary judgment motion on her benefits claim since affidavits were not part of administrative record); Zervos v. Verizon N.Y., Inc., 277 F.3d 635, 646 (2d Cir. 2002) (holding that district court improperly considered testimony of insurer’s experts that had not been before administrator at time of its claim decision). Cf. Daniel v. UnumProvident Corp., 261 F. App’x 316, 318 (2d Cir. 2008) (holding that 229

district court abused discretion in declining to consider general services agreement that was offered to establish standard of review). When the de novo standard of review is applied, the Second Circuit has held that additional evidence may be considered in reviewing an issue of plan interpretation. See Locher v. Unum Life Ins. Co. of Am., 389 F.3d 288, 293 (2d Cir. 2004); Masella v. Blue Cross & Blue Shield of Conn., Inc., 936 F.2d 98, 103–05 (2d Cir. 1991). In DeFelice v. American Int’l Life Assur. Co. of New York, 112 F.3d 61 (2d Cir. 1997), the Second Circuit held that when conducting a de novo review of factual issues, it is within the discretion of the court to admit evidence not available at the administrative level if “good cause” is shown. Id. at 67. In Locher, 389 F.3d 288, the Second Circuit upheld the district court’s finding of good cause to consider evidence outside the administrative record based upon the insurer/administrator’s inadequate claim review procedures. The incompleteness of an administrative record may also constitute “good cause” for admitting additional evidence. See Zervos, 277 F.3d at 646–47; see also Juliano v. Health Maint. Org. of N.J., 221 F.3d 279 (2d Cir. 2000) (holding that failure of HMO to state in denial letter that reason for denial was lack of proof of medical necessity was “good cause” to admit additional evidence on that issue); Trussel v. Cigna Life Ins. Co. of N.Y., 552 F. Supp. 2d 387, 390 (S.D.N.Y. 2008) (holding that at the discovery stage, the plaintiff need not make a “full” good-cause showing “but must show a ‘reasonable chance that the requested discovery will satisfy the good cause standard,’” and granting plaintiff’s motion to compel discovery). Decisions that have allowed 230

consideration of evidence outside the administrative record following Metro. Life Ins. Co. v. Glenn, for purposes of establishing a financial conflict of interest, are discussed in section VI.B above. The plaintiff bears the burden of demonstrating “good cause” to expand the administrative record. See Krizek, 345 F.3d at 98. The Second Circuit has held that the plaintiff must allege facts “with sufficient specificity” to support the existence of “good cause” to admit evidence beyond the administrative record. Id. at 98 n.2. The Second Circuit has further commented that a district court should not exercise its discretion to expand the record in cases where a party fails to demonstrate “beyond mere speculation or conjecture” that the administrative record is inadequate. Id. (citing Hotaling v. Teachers Ins. Annuity Ass’n of Conn., 62 F. Supp. 2d 731, 738 (N.D.N.Y. 1999)). Even when “good cause” is shown to exist, “the decision whether to consider information outside the administrative record is a discretionary one.” Critchlow v. First Unum Life Ins. Co. of Am., 340 F.3d 130, 133 n.2 (2d Cir. 2003), withdrawn and vacated on reconsideration on other grounds, 378 F.3d 246 (2d Cir. 2004). For example, in Suozzo v. Bergreen, 2003 WL 22387083, at *4–5 (S.D.N.Y. Oct. 20, 2003), the court concluded that even if the existence of a conflict of interest constituted “good cause,” it would not exercise its discretion to expand the administrative record because the reason that the proffered evidence was not in the record was the claimant’s failure to contest the administrator’s reliance on a certain “model” plan amendment. See also 231

Kaus-Rogers v. Unum Life Ins. Co. of Am., 2004 WL 1166640, at *3–4 (W.D.N.Y. Apr. 4, 2004) (holding that denial letter’s technical noncompliance with ERISA’s notice regulations did not justify admission of evidence outside administrative record); Critchlow v. First Unum Life Ins. Co. of Am., 198 F. Supp. 2d 318, 322 (W.D.N.Y. 2002) (refusing to admit additional evidence because plaintiff offered no good reason why she could not have submitted such evidence to administrator before it rendered its decision), aff’d, 340 F.3d 130 (2d Cir. 2003); Muller v. First Unum Life Ins. Co. of Am., 166 F. Supp. 2d 706, 711 (N.D.N.Y. 2001) (concluding that plaintiff had not demonstrated “good cause” because she failed to state why additional evidence could not have been submitted during two-and-one-half-year administrative claim process). However, in Sheehan v. Metro. Life Ins. Co., 2003 WL 22290230, at *3 (S.D.N.Y. Oct. 6, 2003), the district court granted the employee’s motion to supplement the administrative record with additional medical reports, finding that “good cause” existed because the plaintiff’s treating physicians were not afforded an opportunity to review video surveillance tapes prior to MetLife’s termination of his benefits. In Hobson v. Metro. Life Ins. Co., 574 F.2d 75, 91 (2d Cir. 2009), the Second Circuit noted that where the plan administrator retains discretion to interpret the terms of its plan, it may elect not to conduct an independent medical examination, particularly where the claimant’s medical evidence on its face fails to establish disability. The court expressed concern that requiring an independent medical examination in the absence of objective medical evidence of disability inhibited “the commonplace practice of 232

doctors arriving at professional opinions after reviewing medical files,” which reduced the financial burden of repetitive tests and examinations. B. Evidentiary Determinations

Value

of

Social

Security

While an award of benefits by the Social Security Administration (SSA) may be considered by an ERISA administrator if included in the administrative record, courts within the Second Circuit have held that the SSA determination is not binding on a plan. See, e.g., Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d 133, 141 (2d Cir. 2010) (holding that claim denial was not arbitrary and capricious even when contrary to SSA decision); Billinger v. Bell Atl., 240 F. Supp. 2d 274, 285 (S.D.N.Y. 2003) (holding that SSA decision granting disability benefits is “but one piece of evidence [to be considered by plan administrator], and is far from determinative”). Likewise, the definition of disability used in the SSA’s determination is not binding on an ERISA plan. See Kocsis v. Standard Ins. Co., 142 F. Supp. 2d 241, 255 (D. Conn. 2001). See also Pepe v. Newspaper & Mail Deliverers’-Publishers’ Pension Fund, 559 F.3d 140, 149 (2d Cir. 2009) (noting that SSA’s determination of total and permanent disability did not satisfy plan requirement that claimant was “totally and permanently disabled … [in] the opinion of a medical examiner appointed by the Trustees”). But see Mikrut v. Unum Life Ins. Co. of Am., 2006 U.S. Dist. LEXIS 92265 (D. Conn. Dec. 20, 2006) (concluding that insurer’s use of SSA disability determination to demand refund of benefits payments while failing to factor it into analysis of 233

claim was evidence of conflict of interest). Nonetheless, the Second Circuit “encourages” plan administrators who deny benefits to explain why they reach a different conclusion from SSA. Hobson, 574 F.3d at 92. VIII. Procedural Aspects of ERISA Practice A. Proper Defendants in a Claim for Benefits under ERISA The only proper defendants in an action for benefits under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(b), are “the plan and the administrators and trustees of the plan in their capacity as such.” See Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1199 (2d Cir. 1989); see also Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 509–10 (2d Cir. 2002); Crocco v. Xerox Corp., 137 F.3d 105, 107 & n.2 (2d Cir. 1998). An insurer of an ERISA plan, who also administers claims for benefits under the plan, is generally not a proper defendant in a recovery of benefits claim unless it is identified in the plan as such or meets the statutory definition of “administrator” under ERISA. See 29 U.S.C. § 1002(16)(A); Chapman, 288 F.3d at 509-10; Crocco, 137 F.3d at 107 & n.2; see also Schnur v. CTC Communications Corp. Group Disability Plan, 621 F. Supp. 2d 96, 109 (S.D.N.Y. 2008). Notably, several Courts in the U.S. District Court for the Southern District of New York have held that insurers that also administer benefit claims may be sued as plan administrators under ERISA § 502(a)(1)(B) and § 502(a)(3), 29 U.S.C. § 1132(a)(1)(b). See Troy v. Unum 234

Life Ins. Co. of Am., 2006 WL 846355, at *1 (S.D.N.Y. Mar. 31, 2006) (“While Unum is nominally an insurance company, if an insurance company controls the distribution of funds and decides whether or not to grant benefits under an employee benefit plan, then it can be sued as a plan administrator.”) (internal quotation marks omitted); see also Sheehan v. Metro. Life Ins. Co., 2002 WL 1424592, at *2 (S.D.N.Y. June 28, 2002) (“If an insurance company controls the distribution of funds and decides whether or not to grant benefits under an employee benefit plan, then it can be sued as a plan administrator.”). However, in Schnur, the most recent decision on this point from the Southern District of New York, the court held that “the better view, consistent with the language of the statute, is that an insurer to an ERISA plan is generally not a proper defendant in a recovery of benefits claim unless it meets the statutory definition of ‘administrator’ under [ERISA].” Schnur, 621 F. Supp. 2d at 109. B. Methods of Adjudication The procedural aspect of litigating an ERISA case in the Second Circuit is both relatively simple and strangely complex, depending on the standard of review. If the facts of the case warrant, a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure is entirely appropriate for a case governed by ERISA. See Fortune v. Long Term Group Disability Plan for Employees of Keyspan Corp., 637 F. Supp. 2d 132, 141 (E.D.N.Y. 2009), aff’d, 391 Fed. App’x 74 (2d Cir. 2010); Fay v. Oxford Health Plan, 287 F.3d 96 (2d Cir 2002); Todd v. Aetna Health Plans, 31 F. App’x 13 (2d Cir. 235

2002) (all affirming summary judgment motions). See Alfano v. CIGNA Life Ins. Co. of N.Y., 2009 WL 222351, at *12 (S.D.N.Y. Jan. 30, 2009) (holding “[s]ummary judgment provides an appropriate mechanism for a court to consider a challenge to the termination of disability benefits under ERISA”). As the court’s review of a claim determination is limited to the administrative record where the arbitrary and capricious standard of review applies with respect to a motion for summary judgment, the district court does not review the record to determine whether there is an issue of fact but rather “sits in effect as an appellate court to determine whether the denial of ERISA benefits was arbitrary and capricious.” Rizk v. Long Term Disability Plan of the Dun & Bradstreet Corp., 862 F. Supp. 783, 791 (E.D.N.Y. 1994); see also Rappa v. Conn. Gen. Life Ins. Co., 2007 WL 4373949, at *1 (E.D.N.Y. December 11, 2007); Soron v. Liberty Life Assur. Co. of Boston, 2005 WL 1173076, at *8 (N.D.N.Y. May 2, 2005). In O’Hara v. Nat’l Union Fire Ins. Co. of Pittsburgh, 642 F.3d 110, 121 (2d Cir. 2011), the Second Circuit held that “[i]rrespective of whether a district court is tasked with reviewing a plan administrator’s denial of benefits de novo, a district court may not grant a motion for summary judgment if the record reveals a dispute over an issue of material fact.” The Second Circuit’s decision in O’Hara, which involved the de novo standard of review, certainly begs the question of what issues constitute issues of fact in a court’s review of a claim administrator’s determination under the arbitrary and capricious standard of review. In Reinhart v. Broadspire Servs. Inc., 2011 WL 3273152, at *8 (W.D.N.Y. Jul. 29, 2011), the U.S. 236

District Court for the Western District of New York provided some clarification, holding that plaintiff’s reliance on conflicting medical evidence to dispute the defendant’s adverse benefit determination did not create an issue of fact regarding whether defendants’ decisionmaking was arbitrary and capricious in an ERISA claim for benefits. Indeed, the court held that: Unquestionably, some factual disputes exist, particularly between Plaintiff’s treating physician and the peer review physicians, but these disputes must create a genuine issue that the Plan administrator’s determination was arbitrary and capricious. They do not. Id. To distinguish this type of summary judgment motion from the more traditional Rule 56 “issue of fact” motion, some litigants have styled an ERISA motion as a “motion for judgment on the administrative record” regardless of whether the standard of review is arbitrary and capricious or de novo. See Casey v. First Unum Life Ins. Co., 2004 U.S. Dist. LEXIS 5304 (N.D.N.Y. 2004) (granting motion for judgment on the administrative record); see also Henar v. First Unum Life Ins. Co., 2002 U.S. Dist. LEXIS 17585 (S.D.N.Y. 2002) (plaintiff’s motion for judgment on the administrative record granted). The Second Circuit has noted that a motion for judgment on the administrative record “[is] a motion that does not appear to be authorized in the Federal Rules of Civil Procedure.” Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir. 2003). However, the court stated 237

that such a motion could be converted into a Rule 56 motion for summary judgment by the district court or in cases where a district court had already denied summary judgment, the Second Circuit held that a motion for judgment on the administrative record could be equated to a request for a bench trial “on the papers,” with the district court acting as the finder of fact and that this form of bench trial is entirely proper. Id. (citing Connors v. Conn. Gen. Life Ins. Co., 272 F.3d 127, 134 (2d Cir. 2001)); Gannon v. Aetna Life Ins. Co., 2007 WL 2844869, at *7 (S.D.N.Y. September 28, 2007). If a court denies summary judgment, it generally remands the case back to the administrator for further review in accordance with its findings. Remand is the proper step to take “if upon review a district court concludes that the [trustee’s or administrator’s] decision was arbitrary and capricious.” Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir. 1995). For example, in Peterson v. Continental Cas. Co., the district court denied full summary judgment but held that Continental improperly defined Peterson’s regular occupation as the position created by CBS to accommodate Peterson’s disability. Because Continental evaluated Peterson’s claim against the wrong occupation, the district court remanded the claim back to the claim administrator to determine whether Peterson’s medical condition—evaluated against the duties of his “regular occupation” rather than his temporary accommodation—rendered him eligible for benefits under the terms of the long-term plan. 77 F. Supp. 2d 420, 429 (S.D.N.Y. 2000); see also Thomas v. The Hartford Life Ins. Co. of Am., 2013 WL 53710, at *5 (S.D.N.Y. Jan. 2, 238

2013) (plaintiff’s motion for summary judgment partially granted to the extent the matter was remanded to the claim administrator for further review). Under an arbitrary and capricious review, a district court also has the discretion to order that benefits be paid or reinstated if it concludes that no new evidence or consideration would produce a reasonable conclusion permitting denial of the claim or if “remand would otherwise be a ‘useless formality.’” Miller, 72 F.3d at 1071. Notably, in one decision from the U.S. District Court for the Eastern District of New York, the court disregarded the Second Circuit’s precedential opinion in Miller and awarded the claimant past due benefits without first finding that a remand would be futile. See Ingravallo v. Hartford Life and Acc. Ins. Co., 2013 WL 1346283, at *9 (E.D.N.Y April 3, 2013); see also Miller, 72 F.3d at 1071. Many district courts in the Second Circuit have apparently accepted Muller’s premise, 341 F.3d at 124, that a court can either treat a motion for judgment on the administrative record as a Rule 56 motion for summary judgment or as a motion for a bench trial “on the papers,” depending on the status of the case. See Arnone v. CA, Inc., 2009 WL 362304 (S.D.N.Y. Feb. 13, 2009) (rendering judgment for plaintiff on claim for ERISAplan severance benefits after conducting bench trial); Rappa v. Conn. Gen. Life Ins. Co., 2007 WL 4373949, at *1 (E.D.N.Y. Dec. 11, 2007) (granting plaintiff’s motion for judgment on administrative record, noting district 239

court “sits in effect as an appellate court to determine whether the denial of ERISA benefits was arbitrary and capricious”) (citation omitted); Kaus-Rogers v. Unum Life Ins. Co. of Am., 2004 U.S. Dist. LEXIS 9797 (W.D.N.Y. 2004) (citing Muller, 341 F.3d at 124); see also Casey, 2004 U.S. Dist. LEXIS 5304 (granting motion for judgment on the administrative record); Charles v. First Unum Life Ins. Co., 2004 U.S. Dist. LEXIS 9307 (W.D.N.Y. 2004) (treating a motion for “judgment based on the administrative record” as a motion for summary judgment under Rule 56(c)). The Second Circuit has found that in certain circumstances, it is appropriate for district courts to treat a motion for judgment on the administrative record as a bench trial on the parties’ submissions. This process is also called a “summary trial” on a stipulated record, and is permissible if all parties consent to this process. See O’Hara, 642 F.3d at 116; see also Burke v. PricewaterhouseCoopers LLP Long Term Disability Plan, 537 F. Supp. 2d 546, 548 (S.D.N.Y. 2008), aff’d, 572 F.3d 76, 78 (2d Cir. 2009) (the district court adjudicated the matter as a “summary trial” on a stipulated administrative record because the parties had previously consented to this procedure). If the court treats the motion as a request for a bench trial “on the papers,” the district court has an obligation to make explicit findings of fact and conclusions of law explaining the reasons for its decision as well as “judge the credibility of witnesses.” Fed. R. Civ. P. 52(a). If the district court does not make explicit findings of fact or conclusions of law in support of its denial of a claim, the 240

Second Circuit must vacate and remand back to the district court and has done so in ERISA cases. See, e.g., O’Hara, 642 F.3d at 116; Sullivan v. LTV Aerospace & Def. Co., 82 F.3d 1251, 1261 (2d Cir. 1996); Grimo v. Blue Cross/Blue Shield of Vt., 34 F.3d 148, 152–53 (2d Cir. 1994). The court’s factual findings will be subject to review for “clear error” on appeal and the legal conclusions reviewed de novo. See LoPresti v. Terwilliger, 126 F.3d 34, 39–40 (2d Cir. 1997). Under the de novo standard of review, the question before the court is not whether the administrator abused its discretion but instead whether the plaintiff has presented sufficient evidence to demonstrate that he or she is entitled to benefits under the policy. If the case is not resolved on summary judgment, the court then becomes the fact finder in a procedure sometimes referred to as an ERISA trial de novo. There is a conflict among the district courts within the Second Circuit as to the appropriate method of de novo review. For example, the following types of proceedings have been utilized for a de novo “trial”: Bench trial on the record supplemented with witness testimony. Locher v. Unum Life Ins. Co. of Am., 2002 WL 362769 (S.D.N.Y. Mar. 7, 2002) (three-day bench trial was held). “Summary” bench trial based upon written submissions outside of the administrative record. Schwartz v. Oxford Health Plans, Inc., 175 F. Supp. 2d 581 (S.D.N.Y. 2001); Meyer v. Ins. Co. of Am., 1998 WL 709854 (S.D.N.Y. 1998). 241

A de novo review of the administrative record without submission of any additional evidence. Connors v. Conn. Gen. Life Ins. Co., 2000 U.S. Dist. LEXIS 12962 (S.D.N.Y. Sept. 8, 2000); Moore v. INA Life Ins. Co., 66 F. Supp. 2d 378 (E.D.N.Y. 1999). As is clear from these cases, the scope of an ERISA trial varies and it is difficult to reach a uniform conclusion about the appropriate method for court review of a benefits decision under the de novo standard of review. The evidence before the court will be generally limited to the administrative record unless the court determines that additional evidence is necessary to conduct an adequate de novo review. See Zervos v. Verizon N.Y., Inc., 277 F.3d 635, 646 (2d Cir. 2002) (“Even where the district court exercises de novo review of the plan administrator’s determination, the district court ‘ought not’ to accept additional evidence absent ‘good cause.’”) (quoting DeFelice, 112 F.3d at 66). Once again, the court’s role is to provide, in effect, a bench trial with the judge acting as the finder of fact. Muller, 341 F.3d at 124. It is well-settled that it is an abuse of discretion for a district court to hold a bench trial in order to accept evidence outside the administrative record when the standard of review is the arbitrary and capricious standard. See Miller, 72 F.3d at 1070–71. In Miller, the Second Circuit held that the district court committed error by holding a bench trial during which it considered evidence outside the administrative record in an arbitrary and capricious review case. Id. However, despite the clear precedent set forth in Miller, the U.S. District Court for 242

the District of Connecticut held that the “ultimate issue of whether [the claim administrator’s] decision to terminate [the claimant’s] disability benefits was arbitrary and capricious is more appropriately resolved at trial, after the record is more fully developed.” Barber v. Sun Life and Health Ins. Co., 894 F. Supp. 2d 174, 188 (D. Conn. 2012). The district court in Barber did not attempt to reconcile its determination with the Second Circuit’s precedential holding in Miller. Id. Cf. Miller, 72 F.3d at 1070–71. While the Second Circuit recognizes that a bench trial in a de novo review case may be appropriate in certain circumstances, the court does not go so far as to relax the standard for considering the admission of evidence outside the administrative record. See O’Hara, 642 F.3d at 116. Indeed, generally, a plaintiff must show good cause for a court to consider evidence outside the administrative record, even in de novo review cases, and, without such a showing, there is a presumption against expanding the record to include such material. Locher v. Unum Life Ins. Co. of Am., 389 F.3d 288, 295 (2d Cir. 2004); see also Yasinoski v. Conn. Gen. Life Ins. Co., 2009 WL 3254929, at *4 (E.D.N.Y. Sep. 30, 2009). C. Reported ERISA Trials Under Sullivan, regardless of the standard of review, there is no right to a jury trial on an ERISA benefits claim in the Second Circuit. See Sullivan v. LTV Aerospace & Def. Co., 82 F.3d 1251, 1257 (2d Cir. 1996); see also DeFelice v. Am. Int’l Life

243

Assur. Co. of N.Y., 112 F.3d 61, 66 (2d Cir. 1997). The basis for this ruling is that ERISA actions are equitable, not legal, in nature. Id. Recent Supreme Court jurisprudence has raised the specter of the possibility of a right to a jury trial with regard to breach of fiduciary duty claims under ERISA. Since the Supreme Court’s decision in Great-West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204 (2002), which revived the distinction between suits in law and equity, courts have struggled to classify claims as legal or equitable and treat them accordingly. See, e.g., Pereira v. Farace, 413 F.3d 330, 340 (2d Cir. 2005) (“[T]he Supreme Court’s decision [in Knudson] … reconfigured the legal landscape of restitution.”). In Pereira, a nonERISA case, the Second Circuit held that an action for breach of fiduciary duty sounded in law, not equity, and as such, there was a right to a jury trial. Pereira, 413 F.3d at 341. The combination of Knudson and Pereira led to speculation that the Second Circuit’s holding in Sullivan may be on tremulous grounds with regard to breach of fiduciary claims, but, post-Knudson, the Second Circuit reaffirmed that “[t]here is no right to a jury trial under ERISA.” See Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir. 2003). Courts in the Second Circuit continue to rely on Sullivan. See Fershtadt v. Verizon Comm’ns, Inc., 550 F. Supp. 2d 447, 454 (S.D.N.Y. 2008) (holding that there is no right to a jury trial under ERISA); Turcotte v. Blue Cross & Blue Shield of Mass., Inc., 2008 WL 4615903, at *10 (S.D.N.Y. Oct. 14, 2008) (striking plaintiff’s jury demand in action to recover ERISA-plan benefits); Allison v. UNUM, 2005 U.S. Dist. LEXIS 3465, at *41 (E.D.N.Y. 2005) (“This court finds 244

that [Knudson] has not changed the law in this District regarding jury trials in ERISA actions.”); Peck v. Aetna Life Ins. Co., 2005 U.S. Dist. LEXIS 35605, at *11–13 (D. Conn. 2005) (Knudson does not change Second Circuit precedent that there is no right to a jury trial in a suit brought under ERISA). Although jury trials are not conducted, the longstanding tradition in common law courts is that a trial court may consult with an advisory jury during a bench trial as long as the court retains the ultimate responsibility for findings of fact and conclusions. Fed. R. Civ. P. 39(c); Lumbermens Mut. Cas. Co. of Ill. v. Timms & Howard, Inc., 108 F.2d 497 (2d Cir. 1939); Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 2335 (2d ed. 1990). Although there appear to have been two such advisory juries allowed in the ERISA context in the Second Circuit, the “advisory jury” was deemed “advisory” only after the jury had heard the case and the Second Circuit had ruled that there was no right to a jury trial in ERISA cases. The district court in Sullivan permitted a jury trial. On appeal, the Second Circuit held that jury trials were not permitted in ERISA. Rather than remanding the case for a new bench trial, the Second Circuit chose to view the jury in Sullivan as an advisory jury and remanded the case to the district court, with instructions to explain how the findings were made. Sullivan, 82 F.2d at 1261. In DeFelice, the case was tried before a jury prior to the Sullivan decision being issued. In its opinion, the Second Circuit noted that based upon its decision in Sullivan, DeFelice did not have a right to have her claim tried by a 245

jury; however, because she had already received a jury trial, the question was more properly stated in the inverse: Did defendant American International have a right to a bench trial? It held that the defendant did have this right as the claim was equitable in nature. Once again, rather than ordering that a new trial be conducted, the Second Circuit treated the jury as if it was an advisory jury and remanded the case to the district court with instructions to make its own factual findings and conclusions. DeFelice, 112 F.3d at 66. The Second Circuit in DeFelice recognized: “With regard to the role of the jury in this case, we note, as did Sullivan, the longstanding tradition in common law courts that a trial court may consult with an advisory jury during a bench trial so long as the court retains the ultimate responsibility for findings of fact and conclusions,” id. at 65, apparently giving lukewarm support to the proposition that a bench trial with an advisory jury was appropriate in an ERISA matter. However, factually speaking, the only times advisory juries were used in Second Circuit ERISA cases was when a jury had been allowed, pre-Sullivan, in the first place. There are no Second Circuit or district court cases post-DeFelice noting that an advisory jury was used in an ERISA matter. IX Remedies A. Remedies Available for Claimants under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B) Under ERISA § 502(a)(1)(B), “[a] civil action may be brought … by a participant … to recover benefits due to him under the terms of his plan, to enforce his rights 246

under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C § 1132(a)(1)(B). “A claim under [§ 502(a)(1)(B)], in essence, is the assertion of a contractual right under a benefit plan,” and in order to enforce the terms of the plan under that section, “the participant must first qualify for the benefits provided in that plan.” Strom v. Goldman, Sachs & Co., 202 F.3d 138, 142 (2d Cir. 1999) (quotation marks omitted), abrogated on other grounds by Great–West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204 (2002). Any remedy beyond enforcing or clarifying a plan participant’s rights under a particular ERISA plan are not available under ERISA § 502(a)(1)(B). See 29 U.S.C §1132(a)(1)(B). B. Remedies for Claims under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3) ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), provides for a private cause of action against a fiduciary (or other persons) for “other appropriate equitable relief,” and in the Second Circuit such a claim may be made even though a claim has also been made to recover plan benefits under § 502(a)(1)(B). Devlin v. Empire Blue Cross & Blue Shield, 274 F.3d 76, 89–90 (2d Cir. 2001). See also Krauss v. Oxford Health Plans, 517 F.3d 614, 630 (2d Cir. 2008) (“When an ERISA fiduciary deals unfairly with plan beneficiaries, a claim for breach of fiduciary duty may lie under ERISA § 502(a)(3)….”). Although only injunctive and other appropriate equitable relief is authorized under § 502(a)(3), courts have held that an award of interest, or disgorgement of the fiduciary’s profits, for delayed payment of benefits under 247

a long-term disability plan may be available as an equitable remedy. See Dunnigan v. Metro. Life Ins. Co., 277 F.3d 223, 230–31 (2d Cir. 2002); Dobson v. Hartford Fin. Servs., 196 F. Supp. 2d 152, 165–74 (D. Conn. 2002), aff’d in part, vacated in part, 389 F.3d 386 (2d Cir. 2004); see also Am. Med. Ass’n v. United Healthcare Corp., 2002 WL 31413668, at *7 (S.D.N.Y. 2002). Restitution is also available as an equitable remedy under § 502(a)(3) where the defendant wrongfully obtained a benefit, or had passively received a benefit, of which the retention would be unconscionable. Geller v. Cnty. Line Auto Sales, Inc., 86 F.3d 18, 22 (2d Cir. 1996). Recently, in Thurber v. Aetna Life Ins. Co., 712 F.3d 654 (2d Cir. 2013), the Second Circuit held that a plan’s provision informing the beneficiary that any overpayment she received belonged to the plan fiduciary was sufficient to create an “equitable lien by agreement” in favor of the plan fiduciary in the amount of the overpayment. Thurber, 712 F.3d at 254. In fact, the Second Circuit found that the plan fiduciary’s counter-claim for the return of the amount of the equitable lien by agreement constituted a claim for “appropriate equitable relief” under ERISA § 502(a)(3). See id. Courts have held that plaintiffs alleging breach of fiduciary duty claims cannot recover money damages, nor can requested relief be available under other sections of ERISA, such as § 502(a)(1)(B). See, e.g., Krauss, 517 F.3d at 630 (holding that plaintiffs cannot recover money damages on claim for breach of fiduciary duty); Frommert v. Conkright, 433 F.3d 254, 270 (2d Cir. 2006), rev’d on other grounds, 559 U.S. 506 (2010) (dismissing 248

plaintiffs’ equitable relief claims on the basis that the relief plaintiffs seek—recalculation of their benefits—“falls comfortably within the scope of § 502(a)(1)(B)”); Gregory v. Metro. Life Ins. Co., 2009 WL 790512, at *3–4 (D. Vt. Mar. 20, 2009) (dismissing claims for breach of fiduciary duty because the remedies plaintiffs seek—recovery of benefits or alternatively remand for full and fair review—are covered by § 502(a)(1)(B)); Turcotte v. Blue Cross & Blue Shield of Mass., Inc., 2008 WL 4615903, at *4–5 (S.D.N.Y. Oct. 14, 2008) (dismissing claim for breach of fiduciary duty as legal not equitable in nature). Recently, in CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011), the Supreme Court found that monetary relief may be available as “other appropriate equitable relief” under § 502(a)(3). In Amara, the plan fiduciary was found to have breached its fiduciary duty by misrepresenting certain information to plan participants when converting an old plan into a new plan, making the new plan less generous to plan members. Id. at 1868. At the district court level, the plan participants were thus awarded the amount due under the old plan. Id. The Supreme Court in Amara categorized this award of monetary relief, which was above and beyond those benefits available under the effective ERISA plan, as equitable in nature. Specifically, the Supreme Court held that: [e]quity courts possessed the power to provide relief in the form of monetary “compensation” for a loss resulting from a trustee’s breach of duty, or to prevent the trustee’s unjust enrichment … Indeed, prior to the merger of law and equity this kind of monetary remedy 249

against a trustee, sometimes called a “surcharge,” was “exclusively equitable.” Id. at 1880. The Supreme Court further held that the “surcharge remedy” extended to a breach of trust committed by a fiduciary encompassing any violation of a duty imposed upon that fiduciary. Id. The Second Circuit has yet to address the effect of the Supreme Court’s decision in Amara on claims for monetary relief under ERISA § 502(a)(3). However, in one recent case out of the U.S. District Court of the Eastern District of New York, the court found that the claimant sufficiently pled a claim for breach of fiduciary duty under ERISA § 502(a)(3), seeking monetary relief. See D’Iorio v. Winebow, Inc., 2013 WL 416313, at *8 (January 18, 2013). In D’Iorio, the plaintiff, a participant in an ERISA plan, claimed that she detrimentally relied on the material misrepresentations of a plan fiduciary in electing coverage under the plan at issue, which resulted in her entitlement to a significantly lesser amount of benefits than would have otherwise been available to her. The court held that “making all reasonable inferences in favor of the Plaintiff, the court finds that the Plaintiff has alleged facts which establish surcharge remedy as an equitable basis for the monetary relief that she seeks.” Id. at *8–9. X. Fiduciary Liability Claims A. Definition of Fiduciary 250

An individual or entity who has any discretionary authority or discretionary control respecting management or administration of an ERISA plan or control over disposition of its assets is a fiduciary. A person who renders investment advice for direct or indirect compensation is also a fiduciary. 29 U.S.C. § 1002(21)(A). ERISA permits an ERISA fiduciary to wear “two hats,” for example, as employer and fiduciary. Varity Corp. v. Howe, 516 U.S. 489, 498 (1996); Engler v. Cendant Corp. & Int’l Bus. Machs. Corp., 2006 WL 1408583, at *7 (E.D.N.Y. 2003). Courts will look not just at titles or formal job descriptions but at the actual daily operation of the plan and the activities such operation entails. Blatt v. Marshall & Lassman, 812 F.2d 810, 812 (2d Cir. 1987); Yurevich v. Sikorsky Aircraft Div., United Techs. Corp., 51 F. Supp. 2d 144, 151 (D. Conn. 1999); Cerasoli v. Xomed, Inc., 47 F. Supp. 2d 401, 407 (W.D.N.Y. 1999). In sum, ERISA defines a fiduciary “in functional terms of control and authority over the plan.” The “threshold question” in an action charging breach of a fiduciary duty under ERISA “is not whether the actions of some person employed to provide services under a plan adversely affected a plan beneficiary’s interest, but whether that person was acting as a fiduciary (that is, performing a fiduciary function) when taking the action subject to complaint.” In re Worldcom, Inc. ERISA Litig., 263 F. Supp. 2d 745, 757 (S.D.N.Y. 2003) (citations omitted); see also Levin v. Credit Suisse, Inc., 2013 WL 1296312, at *4 (S.D.N.Y. March 19, 2013). B. Definition of Fiduciary Duties 251

There are four specific duties imposed upon fiduciaries, who must act solely in the interests of participants and beneficiaries. Fiduciaries must act (1) for the exclusive purpose of providing benefits to participants and beneficiaries and defraying reasonable expenses of administering the plan; (2) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims; (3) by diversifying the investments of a plan to minimize risks of large losses; and (4) in accordance with plan documents. ERISA § 404(a)(1)(A)–(D). The Second Circuit has held that reliance upon erroneous information will not necessarily be considered a breach of fiduciary duty. Hart v. Equitable Life Assur. Soc’y, 75 F. App’x 51, 2003 U.S. App. LEXIS 19397 (2d Cir. 2003). A plan fiduciary may rely upon information furnished by persons who perform ministerial functions for a plan as long as the fiduciary acted prudently in the selection and retention of such person. Prudence in such a situation would entail having no reason “in the exercise of ordinary care … to doubt the competence, integrity or responsibility of such persons.” Id. at *2 (citations omitted). However, in a more recent case, the U.S. District Court for the District of Connecticut made it clear that misrepresenting to employees facts concerning a company’s intentions to offer special retirement plans was a breach of fiduciary duty where the fiduciary knowingly 252

and significantly deceived “a plan’s beneficiaries in order to save the employer money at the beneficiaries’ expense.” Broga v. Northeast Utils., 315 F. Supp. 2d 212, 255 (D. Conn. 2004) (quoting Varity Corp. v. Howe, 516 U.S. 489, 506 (1996)). The court held that the defendant had deliberately withheld critical information from employees, “including those charged with counseling other employees about retirement.” Id. at 243. Although the key to determining whether a person is a fiduciary is whether his duties include discretion and are not merely ministerial, such a person need not have absolute discretion with respect to a benefit plan to be considered a fiduciary. Blatt, 812 F.2d at 812; see also Tocker v. Kraft Foods N. Am. Inc. Ret. Plan, 2012 WL 3711343, at * 2 (2d Cir. Aug. 29, 2012) (finding that a “Benefits Administration Manager” whose responsibilities included supervising staff who “answered employee [benefit] questions” and “ensured that employees received benefit information and enrollment materials” performed only “ministerial tasks” and thus was not an ERISA fiduciary); Levin, 2013 WL 1296312, at *3 (holding that a person is an ERISA fiduciary only when and to the extent that he exercises discretionary authority over the management or administration of a plan). A person or entity need only have “sufficient control over at least a part of the [plan] assets to create a fiduciary relationship.” N.Y. State Teamsters Council Health & Hosp. Fund v. Centrus Pharmacy Solutions, 235 F. Supp. 2d 123, 126 (N.D.N.Y. 2002) (citing United States v. Glick, 142 F.3d 520, 528 (2d Cir. 1998)). “[F]iduciary status exists with respect to any activity enumerated in the statute over which the entity exercises 253

discretion or control.” Blatt, 812 F.2d at 812; Levin, 2013 WL 1296312, at *3. C. Fiduciary Liability in the Context of Health and Disability Claims Numerous Second Circuit cases hold that fiduciary liability may arise in the context of health and disability claims. See, e.g., Krauss v. Oxford Health Plans, Inc., 517 F.3d 614 (2d Cir. 2008); Geller v. Cnty. Line Auto Sales, Inc., 86 F.3d 18 (2d Cir. 1996); Turcotte v. Blue Cross & Blue Shield of Mass., 2008 WL 4615903 (S.D.N.Y. Oct. 14, 2008); Engler v. Cendant Corp. & Int’l Bus. Machs. Corp., 2006 WL 1408583, at *7 (E.D.N.Y. 2003); Am. Med. Ass’n. v. United Healthcare Corp., 2002 WL 31413668 (S.D.N.Y. 2002); Sunderlin v. First Reliance Standard Life Ins. Co., 235 F. Supp. 2d 222 (W.D.N.Y. 2002) The Second Circuit has held that a plan participant or beneficiary can pursue a claim for breach of fiduciary duty under ERISA § 502(a)(3) simultaneously with a claim for benefits under ERISA § 502(a)(1)(B). The ERISA § 502(a)(3) claim is only permissible, however, if the relief requested is different from an award of benefits, which is exclusively remediable under ERISA § 502(a)(1)(B). Devlin v. Empire Blue Cross & Blue Shield, 274 F.3d 76, 89–90 (2d Cir. 2001). A claim under ERISA § 502(a)(3) for breach of fiduciary duty is not permissible where the relief sought is not distinct from and is merely duplicative of plaintiff’s claim under ERISA § 502(a)(1)(B). Mead v. Arthur Anderson LLP, 309 F. Supp. 2d 596, 598 (S.D.N.Y. 2004). If a plaintiff’s lawsuit 254

only concerns a challenge to the ERISA plan fiduciary’s adverse benefit determination, courts have held that this claim is fully satisfied under ERISA § 502(a)(1)(B), and thus claims seeking equitable relief under ERISA § 502(a)(3) are considered duplicative of the § 502(a)(1)(B) claim because they do not seek “other appropriate equitable relief” under ERISA § 502(a)(3). Klecher v. Metro. Life Ins. Co., 331 F. Supp. 2d 279, 286–88 (S.D.N.Y. 2004), aff’d, 167 F. App’x 287 (2d Cir. 2006); Rubio v. Chock Full O’Nuts Corp., 254 F. Supp. 2d 413, 431–32 (S.D.N.Y. 2003) (dismissing ERISA § 502(a)(3) claim because it was duplicative of § 502(a)(1)(B) claim). D. Contribution and Indemnity Claims among Fiduciaries The Second Circuit permits contribution and indemnification claims among cofiduciaries. Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240–41 (2d Cir. 2002) (although Congress created no explicit cause of action for contribution or indemnity, the court’s reading of ERISA is that Congress intended to develop federal common law based upon principles of trust law). See also Sunderlin v. First Reliance Standard Life Ins. Co., 235 F. Supp. 2d 222, 236–38 (W.D.N.Y. 2002) (concerning denial of long-term disability payments). However, “ERISA does not provide a cofiduciary with a statutory claim against a cofiduciary.” GCO Servs., LLC, 324 B.R. 459, 464 (S.D.N.Y. 2005). “Knowing conduct is a prerequisite for cofiduciary liability under ERISA.” Polaroid ERISA Litig., 362 F. Supp. 2d 461, 470 (S.D.N.Y. 2005); Prentiss v. Wasley Prods., Inc., 2005

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WL 563091, at *3 (D. Conn. 2005); In re Worldcom, Inc. ERISA Litig., 354 F. Supp. 2d 423, 445 (S.D.N.Y. 2005). E. ERISA Claims against Nonfiduciaries The Second Circuit has held that a nonfiduciary may be a proper defendant under § 502(a)(3) if it would be a proper defendant under “the common law of trusts.” Carlson v. Principal Fin. Group, 320 F.3d 301, 307–08 (2d Cir. 2003) (quoting Harris Trust & Savs. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 246 (2000)). A nonfiduciary may be liable where the nonfiduciary is “a transferee of ill-gotten trust assets …, and then only when the transferee … knew or should have known of the existence of the trust and the circumstances that rendered the transfer in breach of the trust.” Carlson, 320 F.3d at 308 (quoting Harris, 230 U.S. at 251). See also Lee v. Burkhart, 991 F.2d 1004, 1010 (2d Cir. 1993) (claim involving health benefits). But see Smith v. Champion Int’l Corp., 220 F. Supp. 2d 124 (D. Conn. 2002) (corporation that employer hired to obtain evidence and information to use to deny or terminate long-term disability benefits was a nonfiduciary and could not be held liable under ERISA). “Nothing in the statute, however, permits a nonfiduciary to be held liable for breaches of fiduciary duties by others….” Nor is there an implied cause of action under the theory of respondeat superior. In re AOL Time Warner, Inc. Secs. & “ERISA” Litig., 2005 WL 563166, at *4 n.5 (S.D.N.Y. 2005); see also In re Bank of America Corp. Securities, Derivative, and Employee Retirement Income Sec. Act (ERISA) Litigation, 756 F. Supp. 2d 330, 347 (S.D.N.Y. 2010).

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XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees The Second Circuit has held that ERISA’s attorneys’ fee provision should be liberally construed to protect the statutory purpose of vindicating retirement rights. Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 872 (2d Cir. 1987). The Second Circuit has aligned with the majority of the circuits in holding that the decision of whether to award attorneys’ fees in an ERISA action is ordinarily based on five factors: (1) the degree of the offending party’s culpability or bad faith, (2) the ability of the offending party to satisfy an award of attorneys’ fees, (3) whether an award of fees would deter other persons from acting similarly under like circumstances, (4) the relative merits of the parties’ positions, and (5) whether the action conferred a common benefit on a group of plan participants. Salovaara v. Eckert, 222 F.3d 19, 27–28 (2d Cir. 2000); Chambless, 815 F.2d at 871; Miller v. United Welfare Fund, 72 F.3d 1066, 1074 (2d Cir. 1995). A party seeking an award of fees need not establish all five factors and no one factor is dispositive. See Stolarz v. Rosen, 2009 WL 691206, at *2 (S.D.N.Y. Mar. 11, 2009); Veltri v. Bldg. Serv. 32B-J Pension Fund, 2004 U.S. Dist. LEXIS 6834, at *4 (S.D.N.Y. Apr. 20, 2004). The Second Circuit recently applied the Supreme Court’s holding in Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010), in Toussaint v. JJ Weiser, Inc., 648 F.3d 108 (2d Cir. 2011). In Toussaint, the Second 257

Circuit ruled that even though Hardt mentioned that courts no longer needed to apply the Chambless factors, the district court may still use the Chambless factors to structure its analysis, although it is not required to do so. Toussaint, 648 F.3d at 110. The Second Circuit held that a district court must initially determine whether a party achieved “some degree of success on the merits,” but is not required to award fees simply because this precondition is satisfied. Id. at 110–11. Notably, in Scarangella v. Group Health Inc., __ F.3d __, 2013 WL 4792466, *6 (2d Cir. Sept. 10, 2013), the Second Circuit did not limit its view of “some degree of success on the merits” to a judgment received in one party’s favor. Instead, the Second Circuit held that a party could be found to have achieved “some degree of success on the merits” where “judicial action in some way spurred one party to provide another party with relief.” Scarangella, 2013 WL 4792466 at *6. In Toussaint, The Second Circuit also ruled that when determining whether attorney’s fees should be awarded to defendants, the court should focus on the first Chambless factor—whether plaintiffs brought the complaint in good faith. Toussaint, 648 F.3d at 110–11. As a result of Toussaint, district courts in the Second Circuit may still apply the Chambless factors after initially addressing whether the party seeking fees achieved “some degree of success on the merits.” An award of attorneys’ fees is not automatic and rests within the discretion of the trial court. A court may decline to award fees to a plaintiff if it finds that the defendant acted neither oppressively nor in bad faith. 258

Leyda v. Allied Signal, Inc., 322 F.3d 199 (2d Cir. 2003) (denying fees where defendant’s actions were not unreasonable and where resolution of the case was close); Miller, 72 F.3d at 1066; Lucaskevge v. Mollenberg, 11 Empl. Benefits Cas. (BNA) 1355 (W.D.N.Y. 1989). Similarly, that a defendant’s position on coverage is subsequently held to be incorrect does not automatically warrant an award of attorneys’ fees. Lauder v. First Unum Life Ins. Co., 284 F.3d 375, 382–83 (2d Cir. 2001). The Second Circuit has held that “culpability” and “bad faith” in the first Chambless factor are distinct standards, and that it is proper for the court to consider “the degree to which [the administrator] failed to engage in a fair and open-minded consideration of [plaintiff’s] claim as an indicator of [the administrator’s] culpability, not necessarily bad faith.” Paese v. Hartford Life Ins. Co., 449 F.3d 435, 450–51 (2d Cir. 2006) (emphasis in original). See also Slupinski v. First Unum Life Ins. Co., 554 F.3d 38, 46–53 (2d Cir. 2009) (reversing district court’s decision denying attorneys’ fees to plaintiff, finding that administrator’s conduct in terminating plaintiff’s disability benefits evinced sufficient culpability to weigh in favor of fee award and that district court’s findings “were not within the range of permissible decisions”). In reviewing the Chambless factors with regard to the “common benefit” criterion, the Second Circuit has held that a district court should also consider whether any legal precedent was established by the litigation and “whether the legal precedent established by [this] case and the benefits that precedent might confer on another plan participant make an award of attorney fees appropriate.” Chapman v. Choicecare Long Island Long

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Term Disability Income Plan, 2005 U.S. App. LEXIS 29193, at *7 (2d Cir. 2005). In the Second Circuit, a court’s authority to award fees is generally limited to fees incurred subsequent to litigation and any court-ordered remand. Peterson v. Cont’l Cas. Co., 282 F.3d 112, 119 (2d Cir. 2002) (holding that fees may be awarded during a court-ordered remand; however, fees may not be awarded for work performed during the original administrative review of the claim, which occurred prior to the litigation). See also Kickham Hanley, P.C. v. Kodak Ret. Ins. Plan, 2009 WL 468266, at *4 (2d Cir. Feb. 26, 2009) (holding that § 502(g)(1) permits recovery only for fees incurred in relation to lawsuit and not fees incurred in initial administrative process). Where administrative proceedings are not ordered by the court, fees could be awarded for time devoted to such proceedings if the work was “useful and of the type ordinarily necessary” to secure the final result obtained from the litigation. Trs. of the E. States Health & Welfare Fund v. Crystal Art Corp., 2004 U.S. Dist. LEXIS 8932 (S.D.N.Y. 2004); but cf. Aminoff v. Ally & Gargano Inc., 20 Empl. Benefits Cas. (BNA) 2172, 1996 U.S. Dist. LEXIS 17372 (S.D.N.Y. 1996) (holding that plaintiffs could not recover attorneys’ fees incurred in settling a pension fund dispute where no litigation was ever instituted). At least one district court has held that awarding attorneys’ fees to a competing claimant is inappropriate in an interpleader action brought by plan fiduciaries faced with competing claims to plan benefits. Lucaskevge, 11 260

Empl. Benefits Cas. (BNA) at 1355 (noting that an award to the prevailing claimant would be a likely abuse of discretion in that the plan fiduciaries had not acted in bad faith but in fact had acted in a laudatory manner). B. Fees Awarded to Plan Fiduciaries Citing 29 U.S.C. § 1132(g)(1), the Second Circuit has acknowledged that a court has discretion to award attorneys’ fees and costs to either party in an ERISA action and that the five-factor test is applicable regardless of which party seeks attorneys’ fees. See 29 U.S.C. § 1132(g)(1); Anita Founds., Inc. v. ILGWU Nat’l Ret. Fund, 902 F.2d 185, 188–89 (2d Cir. 1990). The Second Circuit has been willing to uphold an award of attorneys’ fees to successful defendants when the factors balance in favor of doing so, such as where a plaintiff acts in bad faith or pursues a meritless claim. See, e.g., Seitzman v. Sun Life Ins. Co. of Can., Inc., 311 F.3d 477, 485 (2d Cir. 2002) (approving a fee award to a defendant insurance company where evidence indicated that the plaintiff, a physician who sought long-term disability benefits under an ERISA plan, had falsified testimony and otherwise acted in bad faith); Anita Founds., Inc., 902 F.2d at 189–91 (upholding fee award where, inter alia, plaintiffs did not demonstrate a colorable legal position and brought suit in direct contravention to previous settlement agreements); Salovaara v. Eckert, 222 F.3d 19, 31–32 (2d Cir. 2000) (indicating it would affirm a defendant’s fee award if the plaintiff acted in bad faith); Sewell v. 1199 Nat’l Benefit Fund, 2008 WL 5262363, at *1 (2d Cir. Dec. 18, 2008) 261

(upholding district court’s award of attorneys’ fees to defendant, finding that plaintiff brought suit in bad faith). However, the Second Circuit has also held that “the bad faith prong is not automatically dispositive of a claim for attorney fees.” Chapman, 2005 U.S. App. LEXIS 29193, at *7. C. Calculation of Attorneys’ Fees In the Second Circuit, “the lodestar method is ordinarily the starting point in determining the amounts of fees that may be awarded.” Seitzman, 311 F.3d at 487. It is calculated by multiplying together two figures: “(1) the reasonable hourly rate; and (2) the number of hours reasonably expended.” Id. The fee award may not “reflect work done only in connection with unrelated claims on which the party did not succeed.” Id. at 487. Further, the compensable time must be “neither excessive nor duplicative.” Id. The party requesting the fee award bears the evidentiary burden for establishing an appropriate rate and documenting the time reasonably expended, but in the Second Circuit the “district judge may rely in part on his or her own knowledge of hourly rates charged in [the] community and is not limited to the submitted evidence of prevailing rates.” Chambless, 885 F.2d at 1059. The flexibility of the standard allows for different rates, depending on the lawyer, the firm, and the court’s assessment of the attorney’s skill and success; however, only work properly done by attorneys may be compensated at attorney rates. The Second Circuit has stated that an attorney’s status as a solo practitioner is 262

not by itself a valid reason to reduce the hourly rate. McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, 2006 U.S. App. LEXIS 13965, at *13 n.6 (2d Cir. 2006). In McDonald, the Second Circuit expressed its strong disapproval of the district court’s use of a “blended hourly rate” to calculate attorneys’ fees for a solo practitioner and to distinguish between work that could have been done by a hypothetical junior associate and work that could have been done only by the solo practitioner himself. Id. at *14. The Second Circuit noted, “The application of a blended hourly rate in calculating the lodestar figure has not been endorsed in our decisions, and it appears never to have been applied to a solo practitioner by any court in this Circuit.” Id. at *15. The court further stated, “There is simply no support for the proposition that a district court can decide what legal tasks could have been done by a hypothetical associate attorney … in order to calculate a blended hourly rate.” Id. at *17–18. The court suggested, though, that it would be acceptable to use different hourly rates for different litigation tasks rather than a blended hourly rate. Id. at *19. Courts have refused to reimburse solo practitioners for secretarial and clerical services. N.Y. State Teamster Conf. Pension & Ret. Fund v. UPS, 32 Empl. Benefits Cas. (BNA) 1711, 2004 U.S. Dist. LEXIS 3062, at *22 (N.D.N.Y. 2004). Instead, the rule in the Second Circuit is that attorneys will be reimbursed only for “those reasonable out-of-pocket expenses incurred by the attorney … which are normally charged fee-paying 263

clients.” Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1983). See also Onandaga Cnty. Laborers’ Health & Welfare, Pension, Annuity, & Training Funds v. Maxim Const. Servs. Corp., 2006 U.S. Dist. LEXIS 39698, at *14 (N.D.N.Y. 2006) (“[C]osts associated with lodging, meals, transportation, photocopying, postage, long distance telephone charges, and facsimiles are reasonable out-of-pocket expenses and thus recoverable.”) (citation omitted). But see Morin v. Nu-Way Plastering, Inc., 2005 U.S. Dist. LEXIS 37867, at *14 (E.D.N.Y. 2005) (holding that “the cost of transportation is not incidental to the representation and thus not reimbursable”); Critchlow v. First Unum Life Ins. Co., 377 F. Supp. 2d 337, 343 n.1 (W.D.N.Y. 2005) (noting that travel time is generally compensated at half the usual hourly rate). The magistrate judge in Morin also dismissed costs for computer-assisted legal research, since computerized research “is merely a substitute for an attorney’s time that is compensable under an application for attorney’s fees and is not a separately taxable cost.” Id. at *14–15 (citing United States ex rel. Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 173 (2d Cir. 1996)); but see Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 369 F.3d 91, 98 (2d Cir. 2004) (holding that use of online research services likely reduces the number of hours required for an attorney’s manual search, thereby lowering the lodestar, and that in the context of a fee-shifting provision, the charges for such online research may properly be included in a fee award).

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Once a court has calculated the lodestar figure, it has broad discretion to alter the award as appropriate. Reasons for adjusting the lodestar amount include: “(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the result obtained; (9) the experience, reputation and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.” U.S. Football League v. Nat’l Football League, 887 F.2d 408, 415 (2d Cir. 1989). Courts have reduced fees when they have found the documentation of expenses or the evidence of reasonable fees insufficient. Fairbaugh v. Life Ins. Co. of North America, 872 F. Supp. 2d 174, 186, 192 (D. Conn. 2012); ILGWU Nat’l Ret. Fund v. ESI Group, Inc., 2003 U.S. Dist. LEXIS 626, at *9 (S.D.N.Y. 2003); McDonald v. Pension Plan of NYSA-ILA Pension Trust Fund, 2002 WL 1974054 (S.D.N.Y. Aug. 27, 2002). The magistrate judge in Morin noted that the number of hours that the plaintiff’s attorneys spent working on the case was “not unreasonable,” but reduced the attorneys’ fees claimed by 25 percent because “some greater economy of time might have been used.” Morin, 2005 U.S. Dist. LEXIS 37867, at *9. The magistrate judge further noted that although some “overlap of efforts” often occurs in litigation, the “potential overlap is of particular concern when five 265

attorneys and a paralegal work on a single case.” Id. She also reduced by 25 percent the fees charged in the case by an auditing firm, citing the same concerns about economy of time and overlap of efforts. Id. at *13. See also Critchlow, 377 F. Supp. 2d at 343 (reducing fee award for appellate work by fifteen percent because legal research had been done previously). Finally, in the rare case when fees have been awarded to successful defendants, reductions have been made based on the plaintiff’s “ability to pay, and the need to avoid over-deterrence.” Seitzman, 311 F.3d at 487. D. Who May Be Reimbursed for Attorneys’ Fees? Generally, participants, beneficiaries, and plan fiduciaries may be reimbursed for attorneys’ fees. The Southern District of New York held that an individual’s estate that was not named as the beneficiary prior to the participant’s death was not a “beneficiary” for ERISA purposes and could not recover attorneys’ fees. Uon Suk Park v. Trs. of the 1199 SEIU Health Care Emps. Pension Fund, 418 F. Supp. 2d 343, 350–51 (S.D.N.Y. 2005). In Uon Suk Park, the deceased was a participant in an ERISA plan that awarded pension benefits only to surviving spouses unless the participant and his or her spouse both completed paperwork allowing the benefits to be paid to a third party. Id. at 348–49. The deceased participant apparently had wanted her pension benefits to be paid to her children upon her death but she failed to complete the requisite paperwork. Upon her death, her estate brought suit against the ERISA administrator seeking benefits. Id. at 349. The court granted summary judgment to the plan, holding that the estate was not the beneficiary and thus did not have 266

standing to sue under ERISA. Id. at 352, 360. The court also granted summary judgment with respect to the estate’s claim for attorneys’ fees, saying that the Chambless factors, which weighed against the award of fees as the estate was not a beneficiary and did not have standing to sue, rendered its position meritless. Id. at 359. XII. ERISA Regulations Within the Second Circuit, the consequence of a violation of the ERISA regulations with respect to deficient summary plan descriptions (SPD) is dependent upon the participant’s ability to demonstrate prejudice: a plan participant or beneficiary must demonstrate that he or she was likely to have been harmed as a result of a deficient summary plan description. “Where a participant makes this initial showing, however, the employer may rebut it through evidence that the deficient SPD was in effect a harmless error.” Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 113 (2d Cir. 2003). In Burke, the plan required an affidavit of domestic partnership for a partner to be eligible for benefits, but the affidavit was not mentioned in the summary plan description. The court held that the documents were inconsistent and that the summary plan description controlled and that Burke was prejudiced as a result of the same. However, the plan administrators were able to rebut this presumption by demonstrating a lack of detrimental reliance, namely that the Burkes had decided not to apply for domestic partnership status. In Nichols v. Prudential Ins. Co. of Am., 406 F.3d 98 (2d Cir. 2005), the Second Circuit interpreted 29 C.F.R. § 2560.503-1(h) (1999), which states that if no benefit 267

claim decision is reached by the regulatory deadline, a claim is “deemed denied.” In Nichols, Prudential failed to render a timely decision on Nichols’s appeal from an initial claim denial. Nichols filed suit. The Second Circuit held that because of Prudential’s failure to meet the regulatory deadline, Nichols’s claim was “deemed denied” and her administrative remedies were therefore exhausted. Moreover, the court held, because “a ‘deemed denied’ claim is not denied by any exercise of discretion but by operation of law,” such claim is reviewable de novo. 406 F.3d at 105–10. Notably, under the amended regulations effective in 2002, the “deemed denied” language was omitted. Instead, the amended regulation 29 C.F.R. § 2560.503-1(l) states that if a plan fails to comply with the regulations, the claimant will be deemed to have exhausted his or her administrative remedies. The Nichols court further held that substantial compliance with the regulatory deadlines cannot delay accrual of the right to sue. Id. at 107. The court noted, however, that “[t]here may be good equitable and policy reasons for a substantial compliance exception” to allow for arbitrary and capricious review. Id. at 109–10. In Demirovic v. Building Service 32 B-J Pension Fund, 467 F.3d 208 (2d Cir. 2006), the Second Circuit distinguished its holding in Nichols. In Demirovic, the plan failed to make its initial disability benefits claim determination within the regulatory deadline. Rather than go directly to court, however, Demirovic chose to appeal. She received a timely denial on her appeal. The Second Circuit held that the decision on appeal constituted an

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exercise of the plan’s discretion, and therefore the arbitrary and capricious standard of review applied. In Robinson v. Metro. Life Ins. Co., 2007 WL 3254397, at *2 (S.D.N.Y. Nov. 2, 2007), the court held that “[t]he holding of Nichols is limited to those cases where the administrator fails to respond at all, not those cases where the response is tardy. Where the response is merely procedurally tardy, the denial is still owed deference.” Id. (quoting Morganthaler v. First Unum Life Ins. Co., 2006 WL 2463656 (S.D.N.Y. Aug. 22, 2006)). See also Pava v. Hartford Life & Acc. Ins. Co., 2005 WL 2039192, at *8–10 (E.D.N.Y. Aug. 24, 2005) (“[T]he case law in this Circuit indicates that where the administrator communicates with the claimant regarding the status of her appeal, acts in good faith, and does not delay its decision unreasonably, its failure to comply with the regulation deadline may be excused.”); Topalian v. Hartford Life Ins. Co., 2013 WL 2147553, at *41 (E.D.N.Y. May 16, 2013) (holding that the claim administrator’s decision on plaintiff’s appeal, even if untimely, is subject to arbitrary and capricious review, which is consistent with the policy underlying the DOL’s regulations). The Second Circuit has held that denial letters must notify members what information is necessary to obtain benefits and how to effectively protest a decision. Juliano v. Health Maint. Org. of N.J., Inc., 221 F.3d 279, 287 (2d Cir. 2000). “Substantial compliance with the regulations may suffice absent strict compliance with the standards.” Burke, 336 F.3d at 107–09. See also Testa v. Hartford 269

Life Ins. Co., 483 F. App’x 595, 598 (2d Cir. 2012) (Summary Order) (holding that substantial compliance with the regulations is all that is needed to constitute “adequate notice” under ERISA). “Substantial compliance means that the beneficiary was ‘supplied with a statement of reasons that, under the circumstances of the case, permitted a sufficiently clear understanding of the administrator’s position to permit effective review.’” Cook v. N.Y. Times Co. Long Term Disability Plan, 2004 WL 203111, at *6 (S.D.N.Y. 2004) (quoting Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 690 (7th Cir. 1992)). See also Testa, 483 Fed. App’x at 598. In Cook, the Southern District adopted the standard that “[t]he existence of substantial compliance should be determined in light of the core requirements of a full and fair review, which include ‘knowing what evidence the decisionmaker relied upon, having an opportunity to address the accuracy and reliability of that evidence, and having the decision-maker consider the evidence submitted by both parties prior to reaching and rendering his decision.’” Cook, 2004 WL 203111, at *6 (quoting Brown v. Ret. Comm’n of Briggs & Stratton Ret. Plan, 797 F.2d 521, 534 (7th Cir. 1986)). The court held that determining whether there was substantial compliance requires a multistep fact-intensive inquiry as to what was communicated to the plaintiff in the letters informing her of the denial. The court adopted the following test: In sum, in order to evaluate the adequacy of notice in an internal ERISA appeal, a reviewing court must look first to what information is communicated to the claimant in the denial of the claim or appeal in question, and to what information the claimant submits 270

in response. Then, it must determine whether the subsequent denial of the appeal is consistent with the rationale given in the first denial notice, representing a fair evaluation that the appeal is still insufficient, or whether it impermissibly relies upon additional factors that were never communicated to the claimant. Accordingly, each of the plaintiff’s claims/appeals and defendant’s subsequent determinations will be considered in turn in light of ERISA requirements. Id. at *7. In Cook, the court held that the plan failed to give an employee a meaningful opportunity to correct the deficiencies in her claim where her claim was for chronic fatigue syndrome and the decision was rendered based upon her failure to meet the requirements of the Centers for Disease Control, but the plan did not provide her with a copy of those requirements. Id. at *4. In Nerys v. Building Service 32 B-J Pension Fund, 2007 WL 1032259, at *4 (S.D.N.Y. Apr. 2, 2007), the court analyzed the adverse benefits determination notice requirements of 29 C.F.R. § 2560.503-1(j) and found that the plan’s denial notice substantially complied with ERISA regulations so as to meet the full and fair review mandate in ERISA § 503, 29 U.S.C. § 1133. Cf. Laub v. Aetna Life Ins. Co., 549 F. Supp. 2d 571, 576–77 (S.D.N.Y. 2008) (finding claim denial notice did not contain sufficient detail about basis for decision to satisfy regulations). To date, there has been no ruling from the Second Circuit to address whether Nichols and its progeny are still enforceable given the U. S. Supreme Court’s ruling in 271

Conkright v. Frommert, 559 U.S. 506 (2010). Specifically, in Conkright, the Supreme Court found that where a claim administrator is granted discretionary authority under the ERISA plan, the deference owed to its determinations by the reviewing court may not be removed due to one good-faith mistake and thus, a remand for a further review and a new determination is the only proper remedy when such a mistake is found to have occurred. Id. at 1647–48, 1651. XIII. Cases Interpreting ERISA Statutes of Limitation In situations where ERISA does not prescribe a limitation period, the Second Circuit will utilize the most analogous state limitation statute. See, e.g., Miles v. N.Y. State Teamsters Conference Pension & Ret. Fund Emp. Pension Benefit Plan, 698 F.2d 593 (2d Cir. 1983). However, if the ERISA plan contains an express limitation period, that limitation period will be enforced. See Burke v. PricewaterhouseCoopers LLP Long Term Disability Plan, 537 F. Supp. 2d 546, 548 (S.D.N.Y. 2008), aff’d, 572 F.3d 76, 78 (2d Cir. 2009); Rice v. Hartford Life & Accid. Ins. Co., 2009 WL 982465, at *4 (W.D.N.Y. Apr. 13, 2009); Roberts v. Metro. Life Ins. Co., 2007 WL 900920, at *3 (S.D.N.Y. Mar. 26, 2007); Manginaro v. Welfare Fund of Local 771, 21 F. Supp. 2d 284, 306 (S.D.N.Y. 1998). “Although state law determines the limitations period, federal law governs the accrual date for a claim under ERISA. The cause of action accrues where there has been a repudiation by the fiduciary that is clear and made known to the beneficiary.” Carey v. Int’l Bhd. of Elec. 272

Workers Local 373 Pension Plan, 201 F.3d 44, 47 (2d Cir. 1999) (citing Miles, 698 F.2d 593). A cause of action begins to accrue where there is a clear repudiation by the plan that is known or should have been known by the plaintiff regardless of whether the plaintiff has filed a formal application for benefits. Id. There is a lack of consensus within the Second Circuit as to whether all administrative remedies need to be exhausted prior to the cause of action accruing. See Veltri v. Bldg. Serv. 32 B-J Pension Fund, 393 F.3d 318, 325 (2d Cir. 2004) (declining to decide which of two approaches to accrual is correct). See, e.g., Mitchell v. Shearson Lehman Bros., Inc., 1997 WL 277381, at *3 (S.D.N.Y. 1997) (holding that a cause of action does not accrue until administrative remedies are exhausted, reasoning “[s]o long as internal remedies are available to the plaintiff, the possibility means that the insurance company or plan will grant the claim—i.e., there has been no final decision and resort to a court is premature”); Paterson Priori v. Unum Life Ins. Co., 848 F. Supp. 1102, 1106–07 (E.D.N.Y. 1994) (holding that a cause of action begins to accrue upon the initial denial). A plaintiff’s attempt to revive a claim by submitting additional medical evidence and requesting reconsideration after a final claim decision has been rendered does not toll or extend the accrual date. See Roberts, 2007 WL 900920, at *4–5; see also O’Donnell v. MetLife Disability Ins. Co., 2009 WL 884811, at *4 (S.D.N.Y. Mar. 31, 2009) (holding that reiteration of final claim denial in response to inquiries does not restart limitations period). Notably, the clear repudiation standard is inapplicable to breach of fiduciary duty claims. See Jeffries v. Pension Trust Fund of the Pension of Hospitalization & Benefits Plan, 172 F. Supp. 2d 389 273

(S.D.N.Y. 2001); DeVito v. Pension Plan of Local 819, 975 F. Supp. 258 (S.D.N.Y. 1997). It is well settled in the Second Circuit that ERISA plan limitations of actions provisions are enforceable. See Heimeshoff v. Hartford Life & Acc. Ins. Co., 2012 WL 171325, at *6–7 (D. Conn. Jan. 20, 2012), aff’d, 496 F. App’x 129 (2d Cir. 2012), cert. granted, 2013 WL 1500233, at *1 (U.S. April 15, 2013); see also Burke, 537 F. Supp. 2d at 550–53, aff’d, 572 F.3d at 79, 80; Fry v. Hartford Ins. Co., 2011 WL 1672474, at *3, *4 (W.D.N.Y May 3, 2011); Rotondi v. Hartford Life & Accid. Group, 2010 WL 3720830, at *7–8 (S.D.N.Y. Sept. 22, 2010); Carpenter v. Aetna Life Ins. Co., 638 F. Supp. 2d 325, 328 (N.D.N.Y. July 31, 2009). This is so even if the plan limitation of actions provision starts the limitations period on a date prior to the time a plaintiff’s ERISA § 502(a)(1)(B) claim accrues. In other words, if the plan starts the time within which a lawsuit must be bought before administrative remedies have been exhausted, courts will still enforce that provision as long as the time remaining after administrative exhaustion occurs is reasonable. Burke, 537 F. Supp. 2d at 550–53, aff’d, 572 F.3d at 79, 80. In cases where the plan’s limitation of actions period runs from the date proof of loss is due, the limitations period begins to accrue on the date the plan specifies that proof of loss is due or, in the case of a continuing claim for plan benefits, on the date the claims administrator first requests submission of proof of loss of a continuing claim for benefits. See Burke, 572 F.3d at 81; see also Fry, 2011 WL 1672474, at *3. Indeed, the court in Fry held that a 274

limitation of actions period is not extended by a claim administrator’s subsequent requests for clarification or additional proof of loss after the first request. Fry, 2011 WL 1672474, at *3 (citing Salerno v. Prudential Ins. Co. of Am., 2009 WL 2412732, at *6 (N.D.N.Y. Aug. 3, 2009)). Notably, in one decision from the U.S. District Court for the Southern District of New York, a plan limitation of actions provision was found unenforceable where the court determined that the claim administrator’s initial adverse benefit determination letter violated ERISA regulations for failing to inform the claimant of the applicable plan limitation of actions period. The court found that the state law breach of contract statute of limitations governed in this circumstance. See Novick v. Metro. Life Ins. Co., 2011 WL 497458, at *4 (S.D.N.Y. Feb. 10, 2011). Subsequently, in Heimeshoff, 2012 WL 171325 at *6–7, a decision from the U.S. District Court for the District of Connecticut, the court declined to follow Novick, holding that ERISA regulations do not require claim administrators to inform a claimant of the plan’s limitations period for legal action in its benefits determination letter, and the failure to do so does not affect the untimeliness of the claimant’s complaint. While the Second Circuit affirmed the District of Connecticut’s decision in Heimeshoff, it did not specifically address whether a plan’s limitation of actions provision is subject to ERISA notice regulations because the claimant conceded that he had received a copy of the plan containing the unambiguous limitations provision long before the three-year limitation of actions period had expired. See Heimeshoff, 496 F. App’x at 130–31. 275

While the well-settled law in the Second Circuit enforces reasonable limitation of actions provisions and their corresponding dates of accrual, the Fourth and Ninth Circuits have held that limitation of actions provisions cannot begin to run until the claimant has exhausted administrative remedies and the plan has issued a formal, final adverse determination. See White v. SunLife Assur. Co., 488 F.3d 240 (4th Cir. 2007); see also Price v. Provident Life & Acc. Ins. Co., 2 F.3d 986 (9th Cir. 1993). Given this divide among the Circuits, the Supreme Court recently granted certiorari on this issue in Heimeshoff v. Hartford Life & Acc. Ins. Co., 2013 WL 1500233, at *1 (U.S. April 15, 2013). The Supreme Court granted certiorari in Heimeshoff to address the question: “when should a statute of limitations accrue for judicial review of an ERISA disability adverse benefit determination.” Heimeshoff, 2013 WL 1500233 at 1. XIV. Subrogation Litigation Knudson has had a great impact on Second Circuit law of subrogation and the right to recover monetary relief. In particular, prior to Great-West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204 (2002), the Second Circuit had held on multiple occasions that there is a right to recovery against both fiduciaries and nonfiduciaries who knowingly participate in a plan fiduciary’s breach of duties. See Strom v. Goldman Sachs & Co., 202 F.3d 138, 144–45 (2d Cir. 1999) (with respect to an individual’s right to recover against a fiduciary); Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270 (2d Cir. 1992) (with respect to the right to recover against a nonfiduciary). However, Knudson resulted in the Second Circuit’s 276

reversal of its position on these issues. In particular, in Gerosa v. Savasta & Co., 329 F.3d 317 (2d Cir. 2003), the Second Circuit held that there is no right to recover against a nonfiduciary (the plan’s actuaries) for producing incorrect actuarial statements. The Second Circuit reasoned that if such a cause of action was not preempted by the Supreme Court’s decision in Mertens v. Hewitt Assoc., 508 U.S. 248 (1993) (holding that such claims for consequential damages are not permitted by ERISA’s exclusive remedy scheme), it most certainly was preempted by the Supreme Court’s decision in Knudson, as “the monies sought by the Plaintiffs were never in Savasta’s possession; rather, they are simply consequential damages resulting from Savasta’s alleged negligence.” Gerosa, 329 F.3d at 322. See also Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 103–04 (2d Cir. 2005) (denying claims for equitable restitution when requested relief is really only money damages). Thereafter, the Southern District of New York considered the issue of whether individuals can bring a suit for monetary relief under 29 U.S.C. § 1132(a)(3). Bona v. Barasch, 2003 WL 1395932 (S.D.N.Y. 2003). The court held that Knudson precluded such relief. In so holding, the Southern District rejected the Second Circuit’s pre-Knudson decision in Strom, which held that breach of fiduciary duty claims were always equitable in nature. See Strom, 202 F.3d 138. The Southern District held that post-Knudson the issue is not whether a claim for breach of fiduciary duty is asserted, but rather, “in determining whether monetary relief in a particular case can be classified as equitable restitution, the crucial 277

question under [Knudson] is whether a suit seeks to ‘restore the plaintiff particular funds or property in the defendant’s possession.’” Bona, 2003 WL 1395932, at *11 (quoting Knudson, 534 U.S. at 214). In Strom, the Second Circuit held that a potential beneficiary could maintain a breach of fiduciary duty claim against a fiduciary for failing to submit an application for life insurance to the plan’s insured. Post-Knudson, in a case factually similar but far less sympathetic, the Southern District of New York held that Knudson repudiated Strom and its reasoning. See Kishter v. Principal Life Ins. Co., 186 F. Supp. 2d 438, 444–45 (S.D.N.Y. 2002). In Sereboff v. Mid Atlantic Medical Services, 547 U.S. 356 (2006), the Supreme Court both reaffirmed and clarified Knudson. In Sereboff, the issue was whether an ERISA health plan fiduciary could bring an action against plan beneficiaries seeking reimbursement of medical expense payments from the proceeds of the beneficiaries’ settlement of a personal injury action. The Sereboff Court held that such action constituted appropriate equitable relief under ERISA § 502(a)(3) because the settlement proceeds had been set aside in an identifiable account. 547 U.S. at 363. The Supreme Court distinguished between an action for restitution in equity, where an equitable lien or constructive trust can be imposed only on money traceable to an identifiable fund, with an equitable lien by agreement, which does not require strict tracing rules. Id. at 365. Courts in the Second Circuit have variously granted or denied plan fiduciaries’ claims for reimbursement of overpayments of benefits. See, e.g., Fedderwitz v. Metro. 278

Life Ins. Co., 2007 WL 2846365, at *11 (S.D.N.Y. Sept. 27, 2007) (granting summary judgment for MetLife on its counterclaim under § 502(a)(3) seeking recovery of overpayment of long-term disability benefits due to plaintiff’s retroactive receipt of Social Security disability benefits because a specific res (the Social Security disability benefits) was designated to a specific creditor (MetLife)); First Unum Life Ins. Co. v. Wulah, 2007 WL 3342470, at *4–7 (S.D.N.Y. Oct. 8, 2007) (granting fiduciary’s claim under plan’s offset provision for reimbursement of overpayment of disability benefits due to participant’s receipt of Social Security disability benefits); First Unum Life Ins. Co. v. Alleyne, 2009 WL 235543, at *2–3 (E.D.N.Y. Jan. 30, 2009) (permitting recovery of overpayment of disability benefits resulting from participant’s receipt of Social Security disability benefits based on participant’s execution of reimbursement agreement, but denying recovery of overpayment resulting from participant’s receipt of workers’ compensation benefits because, in absence of express reimbursement agreement, Unum failed to identify specific fund upon which to impose equitable lien); Fehn v. Group Long Term Disability Plan for Emps. of J.P. Morgan Chase Bank, 2008 WL 2754069, at *2–4 (S.D.N.Y. June 30, 2008) (dismissed counterclaim under § 502(a)(3) for recovery of mistaken overpayment of benefits because defendant failed to identify segregated funds in plaintiff’s possession); Kellner v. First Unum Life Ins. Co., 589 F. Supp. 2d 291, 312–13 (S.D.N.Y. 2008) (denying recovery of overpayment of disability benefits where plan did not contain provision expressly allowing fiduciary to recover such overpayments).

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Recently, in Thurber v. Aetna Life Ins. Co., 712 F.3d 654 (2d Cir. 2013), the Second Circuit granted a plan fiduciary’s counter-claim pursuant to ERISA § 502(a)(3) against a plan participant for the return of its overpayment of plan benefits caused by the participant’s receipt of other income benefits. Specifically, the Second Circuit held that the applicable plan’s provision informing the participant that any overpayment she received belonged to the plan fiduciary was sufficient to create an “equitable lien by agreement” in favor of the insurer in the amount of the overpayment. Id. at 254. Accordingly, the Second Circuit found that the plan fiduciary’s counter-claim for the return of the amount of the equitable lien by agreement constituted a claim for “appropriate equitable relief” under ERISA § 502(a)(3). XV. Miscellaneous A. Awarding Prejudgment Interest In ERISA cases in the Second Circuit, an award of prejudgment interest is left to the discretion of the district court. Jones v. Unum Life Ins. Co. of Am., 223 F.3d 130, 139 (2d Cir. 2000). In exercising its discretion, the court takes into account “(i) the need to fully compensate the wronged party for actual damages suffered, (ii) considerations of fairness and the relative equities of the award, (iii) the remedial purpose of the statute involved, and/or (iv) such other general principles as are deemed relevant by the court.” Id. (citing SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1476 (2d Cir. 1996)).

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The Second Circuit also held that an award of prejudgment interest may be necessary to avoid rewarding defendants for failing to comply with ERISA. Slupinski v. First Unum Life Ins. Co., 554 F.3d 38, 54 (2d Cir. 2009). Noting that prejudgment interest is one element of a successful plaintiff’s complete compensation, the court then listed some limited instances in which prejudgment interest would not be appropriate. Id. at 54–55. B. Class Actions Courts in the Second Circuit have generally denied class certification in cases involving ERISA-plan health and disability benefits. See, e.g., Dunnigan v. Metro. Life Ins. Co., 214 F.R.D. 125 (S.D.N.Y. 2003) (denying class certification in case involving claim for recovery of interest on delayed payment of disability benefits); Dobson v. Hartford Life & Accid. Ins. Co., 2006 WL 861021, at *4–9 (D. Conn. Mar. 31, 2006) (same). C. Objective Proof of Subjective Complaints of Pain According to several courts in the Second Circuit, proof of disability under an ERISA plan is not limited to the claimant’s recitation of his/her subjective complaints of pain, psychological and/or cognitive impairment. See Reinhart v. Broadspire Servs. Inc., 2011 WL 3273152, at *8 (W.D.N.Y. Jul. 29, 2011); Gaud-Figueroa v. Metro. Life Ins. Co., 771 F. Supp. 2d 207, 216 (D. Conn. 2011); Tortora v. SBC Communications, Inc., 739 F. Supp. 2d 427, 443 (S.D.N.Y. 2010). This remains so even if the recitation of subjective complaints appears in the claimant’s treating physician’s records. See Maniatty v. 281

UnumProvident Corp., 218 F. Supp. 2d 500, 504 (S.D.N.Y. 2002) aff’d, 62 Fed. App’x 413 (2d Cir. 2003) (“it was not unreasonable for the administrator to conclude that the only material reason the treating physicians were reaching their diagnoses was based on their acceptance of plaintiff’s subjective complaints; an acceptance more or less required of treating physicians, but by no means required of the administrator”). The Second Circuit has held that “it is not unreasonable for ERISA [claim] administrators to accord weight to objective evidence that a claimant’s medical ailments are debilitating in order to guard against fraudulent or unsupported claims of disability.” Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 88 (2d Cir. 2009); see Schnur v. CTC Comm. Corp. Group Disability Plan, 2010 WL 1253481, at *14–15 (S.D.N.Y. Mar. 29, 2010), aff’d, 413 Fed.App’x 377 (2d Cir. 2011). Indeed, it is well settled in the Second Circuit that “a distinction exists … between the amount of fatigue or pain an individual experiences, which … is entirely subjective, and how much an individual’s degree of pain or fatigue limits his functional capabilities, which can be objectively measured.” Schnur, 2010 WL 1253481, at *14–15 (citation omitted) (internal quotation marks omitted). See also Hobson, 574 F.3d at 88; Fortune v. Long Term Group Disability Plan for Employees of Keyspan Corp., 637 F. Supp. 2d 132, 143 (E.D.N.Y. 2009), aff’d, 391 Fed. App’x 74 (2d Cir. 2010); Martucci v. Hartford Life Ins. Co., 863 F. Supp. 2d 269, 278 (S.D.N.Y. 2012). D. Relapsing Conditions

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Courts in the Second Circuit have not found that the risk of a relapse of a claimant’s medical condition can form the basis of a disability claim where the claimant is not disabled under the terms of the applicable ERISA plan. See Fortune, 637 F. Supp. 2d at 142–44; see also Reinhart, 2011 WL 3273152, at *8 (the claimant was diagnosed with multiple sclerosis (“MS”), which is a condition characterized by symptoms that often come and go overtime; i.e., “relapsing and remitting”). In Fortune, the Second Circuit did not find that the claim administrator acted in an arbitrary and capricions manner when, after it had originally approved the claimant’s claim for disability benefits due to a flare-up of her MS symptoms, it denied her claim for continuing LTD benefits under the “any occupation” definition of disability once her medical records demonstrated that the symptoms of her MS had stabilized and were no longer disabling. Fortune, 637 F. Supp. at 142–44.

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CHAPTER 3 Third Circuit JOSHUA BACHRACH RANDI F. KNEPPER VALERIE G. KESEDAR HEATHER J. AUSTIN I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan Few cases in the Third Circuit address the question of what constitutes an ERISA plan. As a result, many of the district courts that have been called upon to answer this question rely on cases from other jurisdictions. One of the few decisions from the Third Circuit to address this topic is Smith v. Hartford Ins. Grp., 6 F.3d 131 (3d Cir. 1993). In Smith, the Third Circuit adopted the Eleventh Circuit’s test to determine whether a “plan” exists. See Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir. 1982). Under this test, the court looks to whether a reasonable person could identify the intended benefits, class of beneficiaries, source of financing for the plan, and procedures for receiving benefits based on the surrounding circumstances. Smith, 6 F.3d at 136. See also Deibler v.

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United Food & Comm. Workers’ Local Union 23, 973 F.2d 206, 209 (3d Cir. 1992). The Third Circuit recognizes that a plan may exist even if there is no formal written document. Smith, 6 F.3d at 136; Deibler, 973 F.2d at 209. As explained in Deibler, the “crucial factor” in deciding whether a “plan” has been established or maintained by the sponsor is whether the employer intended to provide benefits on a regular and long-term basis to participants. Deibler, 973 F.2d at 209. See also Gruber v. Hubbard Bert Karle Weber, Inc., 159 F.3d 780, 789 (3d Cir. 1998). B. Definition of “Employee” for ERISA Purposes Sometimes the court must decide when an individual is an “employee” for purposes of ERISA coverage. This issue typically involves whether the person is an independent contractor or a covered employee. In Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318 (1992), the Supreme Court adopted the common law test for determining whether an individual qualified as an “employee” under ERISA. The factors to be considered include the hiring party’s right to control the manner and means by which the work is accomplished, the skill required, the source of the instrumentalities and tools, the location of the work, the duration of the relationship between the parties, whether the hiring party may assign additional projects to the hired person, the extent of the hired person’s discretion over how and when to do the work, the method of payment, the hired person’s ability to hire and pay assistants, whether the work is part of the regular business of the hiring party, the nature of the hiring party’s 285

business, whether employee benefits are provided, and how the hired party is treated for tax purposes. Darden, 503 U.S. at 323–24. See also Bauer v. Summit Bancorp, 325 F.3d 155, 160 (3d Cir. 2003). Since the Darden decision, courts within the Third Circuit have considered whether an individual was an employee under ERISA. The District of New Jersey concluded that the plaintiff was an independent contractor and not an employee when taxes were never withheld from her pay and she signed an agreement recognizing her status as an independent contractor. Sturgis v. Mattel, Inc., 525 F. Supp. 2d 695 (D.N.J 2007). In Schwartz v. Independence Blue Cross, 299 F. Supp. 2d 441 (E.D. Pa. 2003), the court held that a computer programmer who worked exclusively on the premises of the plan sponsor but was paid by a separate company was not an employee but an independent contractor. Also, in Holtzman v. World Book Co., 174 F. Supp. 2d 251, 256 (E.D. Pa. 2001), the court stated that the classification of the individual as an independent contractor, while not dispositive, is a strong indicator of the individual’s status. This conclusion was cited with approval by the Third Circuit in Brown v. J. Kaz, Inc., 581 F.3d 175, 181 (3d Cir. 2009). One district court held that it was not necessary to consider the individual’s status under the Darden test based on his prior representations. In Brown v. Independence Blue Cross, No. 08-1355, 2008 WL 2805600 (E.D. Pa. July 21, 2008), the claimant argued that ERISA did not apply to his claims in an effort to have the claims remanded to state court. The court remarked 286

that Brown made prior inconsistent representations to the plan that resulted in the receipt of benefits. Based on these prior representations, the court concluded that Brown was estopped from arguing that he was not an employee regardless of the Darden factors. The question of whether a person is an employee under ERISA should not be confused with whether the person is a qualified employee under the plan’s eligibility requirements. Bauer, 325 F.3d at 160. A plan may limit benefits to certain categories of employees. Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983). For example, it is not unlawful for a plan to limit participation to only salaried employees or exclude leased employees from participation. Bauer, 325 F.3d at 166. In Yates v. Hendon, 541 U.S. 1 (2004), the Supreme Court resolved a split in the circuits as to whether a working owner may qualify as a participant in an employee benefit plan under ERISA. In Yates, the Supreme Court held that the working owner of a company may qualify as a participant in the plan resulting in the applicability of ERISA if the plan covers one or more employees other than the business owner or his or her spouse. Id. If no other employees are participants in the plan, ERISA does not apply. Matinchek v. John Alden Life Ins. Co., 93 F.3d 96, 102 (3d Cir. 1996); Leonard v. Educators Mut. Life Ins. Co., 620 F. Supp. 2d 654 (E.D. Pa. 2007). By regulation, a spouse cannot be considered an employee of the company or partnership for purposes of ERISA. 29 C.F.R. § 2510.3-3. The Third Circuit has held that based on its plain language, this regulation does not apply to 287

children of owners. Leckey v. Stefano, 263 F.3d 267, 270–72 (3d Cir. 2001). Because there were two employees who were not covered by the regulation, all claims under the plan were controlled by ERISA. Id. C. Interpretation of Safe Harbor Regulation An otherwise qualified plan may still be exempt from ERISA based on the limited involvement of the employer. The Department of Labor promulgated a regulation, commonly referred to as the ERISA “safe harbor” regulation, which sets forth the requirements. See 29 C.F.R. § 2510.3-1(j). To be exempt from ERISA, and fall under the safe harbor regulation, the following criteria must apply: (1) no contributions are made by the employer or employee organization, (2) participation in the plan is completely voluntary, (3) the employer permits the insurer to publicize the program to its employees and to collect premiums through payroll deduction and remit them to the insurer but does not itself endorse the plan, and (4) the employer receives no consideration for its administrative services other than reasonable compensation. Id. See also McCann v. Unum Provident, No. 11-3241, 2013 WL 396182 (D.N.J. Jan. 31, 2013); Spillane v. AXA Fin., Inc., 648 F. Supp. 2d 690 (E.D. Pa. 2009); Tannenbaum v. Unum Life Ins. Co. of Am., No. 03-1410, 2006 WL 2671405 (E.D. Pa. Sept. 15, 2006); Schneider v. Unum Life Ins. Co. of Am., 149 F. Supp. 2d 169 (E.D. Pa. 2001). For the safe harbor regulation to apply, all four of the criteria must be satisfied. Murdock v. Unum Provident Corp., 265 F. Supp. 2d 539, 540 (W.D. Pa. 2002); Weinstein v. Paul Revere Ins. Co., 15. F. Supp. 2d 552, 557 (D.N.J. 1998). 288

Courts within the Third Circuit have concluded that when an employer obtains a discount for its employees on an insurance policy premium, this constitutes an employer contribution, contrary to the first safe harbor requirement. Spillane, 648 F. Supp. 2d at 698; Brown v. Paul Revere Life Ins. Co., No. 01-1931, 2002 WL 1019021, at *8 (E.D. Pa. May 20, 2002). The most often litigated safe harbor issue is whether the employer “endorsed” the plan. An employer endorses a plan when, in light of all the surrounding facts and circumstances, an objectively reasonable employee would conclude on the basis of the employer’s actions that the employer exercised control over it or made it appear to be a part of the company’s own benefit package and did not simply make the coverage available to its employees. Ziesemer v. First UNUM Life Ins. Co., No. 04-6429, 2006 WL 2465622 (D.N.J. Aug. 23, 2006); Selkridge v. United of Omaha Life Ins. Co., 221 F. Supp. 2d 579 (D.V.I. Feb. 21, 2002); Byard v. QualMed Plans for Health, Inc., 966 F. Supp. 354, 359 (E.D. Pa. 1997). Courts have held that there is endorsement when an employer presents the plan to its employees as being a part of its benefit package. Shiffler v. Equitable Life Assurance Soc’y of the U.S., 663 F. Supp. 155 (E.D. Pa. 1986), aff’d, 838 F.2d 78 (3d Cir. 1988). The employer documents described the insurance as “our” plan and as “a valuable supplement to your existing coverage.” In Schneider, the court found endorsement based on the fact that the employer’s logo was on the plan document, and the plan was referred to as part of the employee benefit package. Schneider, 149 F. Supp. 2d at 181. Likewise, the 289

court held that the employer endorsed the plan where the employer’s name appeared on the face of the policy; the employer was designated as the plan administrator; the employer retained the right to amend or terminate the policy, and the employer specified the eligible employees. Ziesemer, 2006 WL 2465622. An employer will also have endorsed the plan where it negotiated the insurance coverage and favorable rates; answered employee questions regarding the coverage; and included ERISA rights language in the documents describing the plan. Cecchanecchio v. Cont’l Cas. Co., No. 00-4925, 2001 WL 43783 (E.D. Pa. Jan. 19, 2001). An employer will not be deemed to have endorsed the plan when it simply makes the employees aware of the opportunity to obtain the coverage but does not identify the plan as being its own program or part of another program offered by the employer. Bagden v. Equitable Life Assurance Soc’y of the U.S., No. 99-66, 1999 WL 305518 (E.D. Pa. Feb. 5, 1999). Likewise, in Byard, the court concluded that the employer did not endorse the plan since the employees had the right to select coverage from a number of options. Byard, 966 F. Supp. at 360. The ERISA statute also exempts from its coverage governmental plans and church plans. See 29 U.S.C. § 1003. The governmental plan exception includes plans that are established by political subdivisions, agencies, or instrumentalities. 29 U.S.C. § 1002(32). Until recently, district courts within the Third Circuit have taken different approaches to deciding whether an entity falls within these undefined categories and is therefore subject to the exception to ERISA, but the Third Circuit has now 290

endorsed the NLRB test, as formulated by the Supreme Court in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971), for the limited purpose of determining whether a state-affiliated entity, as opposed to a federal entity, is a political subdivision for purposes of the ERISA exception. See Koval v. Washington Cnty. Redevelopment Auth., 574 F.3d 238 (3d Cir. 2009). Applying the NLRB test, courts determine “whether an entity is ‘created directly by the state, so as to constitute departments or administrative arms of the government,’ or ‘administered by individuals who are responsible to public officials or to the general electorate.’” Id. at 240. Following the lead of the Second and Seventh Circuits, the Third Circuit applied the NLRB test when analyzing the Washington County Redevelopment Authority plan to determine whether it constituted a governmental plan. The court found that the plan was “created directly by the state, so as to constitute a department or administrative arm of the government” and therefore was a governmental plan exempt from ERISA, and the Court affirmed the district court’s order dismissing the ERISA-based lawsuit. Id. at 243. The Third Circuit will not necessarily apply the NLRB test to plans involving federal entities. In Koval, the Third Circuit stopped short of identifying the appropriate test to be applied to a plan issued by a federal entity. However, quoting at length from Alley v. Resolution Trust Corp., 984 F.2d 1201 (D.C. Cir. 1993), the Koval decision suggests that the NLRB test is not applicable to federal entities. Instead, the “employerrelationship” approach used in Alley is more appropriately 291

applied to a federal entity’s plan. The Alley “employerrelationship” test focuses on the nature of the entity’s relationship with its employees, and whether that relationship is akin to a private business/employee relationship or government worker relationship. In refusing to apply this approach to state entities, the Koval court commented “Alley itself suggests this result” when it “rightly noted its concern that the governmental plan analysis, when it arises in relation to a state entity, should focus on that entity’s ties to state government rather than the details of how it treats its employees.” Koval, 574 F.3d at 241–42. There are no significant Third Circuit decisions or decisions by the district courts within it that address what constitutes a church plan under ERISA. D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan No unique cases from the Third Circuit address the issue of the amount of employer involvement necessary to establish that a plan is governed by ERISA. District courts addressing this issue within the Third Circuit often cite to Johnson v. Watts Regulator Co., 63 F.3d 1129 (1st Cir. 1995). See, e.g., Murdock v. Unum Provident Corp., 265 F. Supp. 2d 539, 543 (W.D. Pa. 2002); Schneider v. Unum Life Ins. Co. of Am., 149 F. Supp. 2d 169 (E.D. Pa. 2001); Byard v. QualMed Plans for Health, Inc., 966 F. Supp. 354, 359 (E.D. Pa. 1997). Under Johnson, an employer’s involvement will be sufficient to have endorsed the plan if an objectively reasonable person would conclude that the employer made the program appear to be part of its own 292

benefit package based on all of the surrounding facts and circumstances. Johnson, 63 F.3d at 1135. In Schneider, the court held that ERISA applied even though the employer took no part in the plan’s administration because it allowed its logo to be printed on promotional materials that referred to the plan as being its own. Schneider, 149 F. Supp. 2d at 181. Likewise, in Shiffler v. Equitable Life Assurance Soc’y, 663 F. Supp. 155, 161 (E.D. Pa. 1986), aff’d, 838 F.2d 78 (3d Cir. 1988), the court concluded that an ERISA plan existed based on the employer’s presentation of the plan to its employees as part of the employer’s benefits package. However, courts are more likely to find that the employer’s involvement is insufficient to conclude that ERISA applies when an employer offers different coverage options to its employees. Murdock, 265 F. Supp. 2d at 545; Byard, 966 F. Supp. at 360. The district court in Post v. Hartford Ins. Co., had no difficulty in finding that there was endorsement of the plan because the policy was issued to the employer and not individual employees; the employer limited participation to full-time employees; the employer characterized the coverage as being governed by ERISA when it annually filed Form 5500 documents that are required only of ERISA plans; and the cover page of the summary plan description included the employer’s name. No. 04-3230, 2005 WL 424945 (E.D. Pa. Feb. 23, 2005), aff’d, 501 F.3d 154, 168 (3d Cir. 2007), overruled on other grounds, 574 F.3d 230 (3d Cir. 2009). Collectively, these actions were held to “show a

293

level of involvement by the employer above the limits of the third provision of ERISA’s safe harbor.” Id. E. Treatment of Multiple Employer Trusts and Welfare Agreements At times, one employer will join other employers in offering benefits to employees under a multiemployer trust. Not all of these trusts are governed by ERISA. See Gruber v. Hubbard Bert Karle Weber, Inc., 159 F.3d 780, 785 (3d Cir. 1998). Courts look to two factors in deciding whether a particular multiemployer plan is governed by ERISA: (1) whether the individual employers are involved in the administration of the plan (Atl. Health Care Benefits Trust v. Foster, 809 F. Supp. 365, 372 (M.D. Pa. 1992)), and (2) whether the employers participating in the trust have a common interest other than their participation in the plan. In Chao v. Community Trust Co., No. 07-1432, 2008 WL 4792419 (E.D. Pa. Oct. 31, 2008), the court concluded that the trust was governed by ERISA where numerous employers established benefit plans for their employees through the trust. However, the opposite conclusion was reached, in Faulman v. Security Mut. Fin. Life Ins. Co., No. 04-5083, 2006 WL 2482926 (D.N.J. Aug. 28, 2006), where no group of employers established or maintained the trust and the employers did not have a common economic or representation interest in the trust. A distinction must be made between whether the multiemployer trust qualifies as an ERISA plan and whether an individual employer’s plan qualifies. While the court in Faulman held that ERISA did not apply to the 294

trust itself, it further held that ERISA did apply to the individual employer’s plan that was part of the trust. Classification as a multiemployer trust under ERISA has both advantages and risks. Under the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. § 1301, all businesses are treated as a single employer. Based on this language, ERISA would apply to a claim by a participant of the multiemployer trust who is the owner of a business and has no other employees. As explained in section I.B, this would not be the case if the plan covered only the owner and/or a spouse. Because all members are treated as a single employer, each member is potentially liable for withdrawal liability for any other member of the plan. Flying Tiger Line v. Teamsters Pension Trust Fund, 830 F.2d 1241, 1244 (3d Cir. 1987). F. De Facto Plan Administrators The plan administrator of an ERISA plan has specific duties under the statute. These include the duty to disclose plan documents to participants. Moreover, a plan administrator may be subject to penalties for failing to meet its obligations. 29 U.S.C. § 1132(c). Therefore, the true identity of the plan administrator is important. Under the statute, the plan administrator is the entity that is so designated in the plan documents or, if no one is named, it is deemed to be the plan sponsor (typically the employer). 29 U.S.C. § 1002(16). At times, usually in connection with a claim for statutory penalties against the plan insurer, it is argued that an entity other than the plan sponsor should be 295

considered the de facto plan administrator. Courts within the Third Circuit have rejected the theory of de facto plan administrators. See Ctr. for Special Procedures v. Conn. Gen. Life Ins. Co., No. 09-6566, 2010 WL 5068164 (D.N.J. Dec. 6, 2010); Erbe v. Billeter, No. 06-113, 2007 WL 2905890 (W.D. Pa. Sept. 28, 2007); Campo v. Oxford Health Plans, Inc., No. 06-4332, 2007 WL 1827220 (D.N.J. June 26, 2007). II. Preemption A. Scope of ERISA Preemption Third Circuit authority is in line with the Supreme Court’s decision in Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987), with regard to the issue of preemption. See, e.g., Joyce v. RJR Nabisco Holdings Corp., 126 F.3d 166, 171 (3d Cir. 1997). Courts within the Third Circuit have likewise expressly recognized that the purpose of the broad preemption clause is “to ensure plans and plan sponsors that they would be subject to a uniform body of benefit law, minimizing the administrative and financial burden of complying with the conflicting requirements of the various states.” Jorgensen v. Prudential Ins. Co. of Am., 852 F. Supp. 255, 260–61 (D.N.J. 1994). The Supreme Court has firmly established that a state law “relates to” an ERISA plan “if it has a connection with or reference to such a plan.” Egelhoff v. Egelhoff, 532 U.S. 141, 147 (2001); see also Levine v. United Healthcare Corp., 402 F.3d 156, 164 (3d Cir. 2005); Keystone Chapter, Assoc. Builders & Contractors, Inc. v. Foley, 37 F.3d 945, 954–55 (3d Cir. 1994). A “state law relates to an ERISA plan if among other things, the rights or 296

restrictions” created by the state law “are predicated on the existence of … an [ERISA] plan.” Ragan v. Tri-Cnty. Excavating, Inc., 62 F.3d 501, 510–11 (3d Cir. 1995); see also Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) (state bad-faith claims are foreclosed by ERISA’s civil enforcement scheme); Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990). A unanimous Supreme Court in Davila explained the scope of complete preemption under ERISA: “if an individual, at some point in time, could have brought his claim under ERISA § 502(a)(1)(B), and where there is no other independent legal duty that is implicated by a defendant’s actions, then the individual’s cause of action is completely pre-empted by ERISA § 502(a)(1)(B).” Davila, 542 U.S. at 210. Courts within the Third Circuit have repeatedly given the preemption provision of ERISA a sweeping scope. See Kollman v. Hewitt Assoc., 487 F.3d 139 (3d Cir. 2007) (holding that state law malpractice claim was preempted); Barber v. Unum Life Ins. Co. of Am., 383 F.3d 134 (3d Cir. 2004) (holding that Pennsylvania’s badfaith statute was preempted); Pane v. RCA Corp., 868 F.2d 631 (3d Cir. 1989) (state law causes of action for breach of contract and tort were preempted); Pailleret v. Jersey Constr. Inc., No. 09-1325, 2011 WL 1485402 (D.N.J. Apr. 19, 2011) (holding that ERISA preempts a New Jersey Law Against Discrimination claim based upon a theory that defendant inferred with plaintiff’s ERISA protected rights); Martellacci v. Guardian Life Ins. Co. of Am., No. 08-2541, 2009 WL 440289 (E.D. Pa. Feb. 19, 2009) (state law causes of action for breach of 297

contract, negligence, negligent misrepresentation, breach of fiduciary duty, fraud, and intentional infliction of emotional distress were preempted); Klimowicz v. Unum Life Ins. Co. of Am., No. 04-2990, 2007 WL 2904195 (D.N.J. Sept. 28, 2007), aff’d, 296 F. App’x 248 (3d Cir. 2008) (state law causes of action for alleged violation of N.J. Stat. Ann. §§ 17B:27-26 et seq., breach of duty of good faith and fair dealing, and breach of fiduciary duty were preempted); Wells v. Genesis Health Venture, Inc., No. 05-0697, 2005 WL 2455371 (E.D. Pa. Sept. 16, 2005); Gilbertson v. Unum Life Ins. Co. of Am., No. 03-5732, 2005 WL 1484555 (E.D. Pa. June 21, 2005). In the Third Circuit, “ERISA’s civil enforcement mechanism, § 502(a), is one of those provisions with such extraordinary pre-emptive power that it converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Pascack Valley Hosp. v. Local 464A UFCW Welfare Reimbursement Plan, 388 F.3d 393, 400 (3d Cir. 2004). In Kentucky Assoc. of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003), the Supreme Court set forth the requirements necessary to invoke ERISA’s insurance savings clause, which exempts state laws deemed laws “which regulate insurance” from preemption under § 1144(b)(2)(A). First, the “state law must be specifically directed toward entities engaged in insurance.” Id. at 341–42. Second, the “state law must substantially affect the risk pooling arrangement between the insurer and the insured.” Id. The Third Circuit’s application of the insurance savings clause comports with the Miller decision. See, e.g., Barber v. Unum Life Ins. Co. of Am., 298

383 F.3d 134, 141 (3d Cir. 2004) (expressly ruling that even if Pennsylvania’s bad-faith insurance statute regulated insurance, “it would still be preempted because the punitive damages remedy supplements ERISA’s exclusive remedial scheme”); Bukuvalas v. Cigna Corp., No. 10-0710, 2010 WL 5055811 (D.N.J. Dec. 3, 2010) (holding that ERISA preempts state class action allegations that a disability insurance carrier violated New Jersey’s ban against discretionary clauses in insurance contracts as set forth in N.J. Admin. Code § 11:4-58.2 because although plaintiff invoked § 11:4-58.2, plaintiff’s actual causes of action were for common law fraud, violation of the obligation of good faith and fair dealing, and violations of the Consumer Fraud Act, none of which were specifically directed toward insurance entities). Cf. Horizon v. Transitions Recovery Program, No. 10-3197, 2011 WL 2413173 (D.N.J. Jun. 10, 2011) (holding that the New Jersey Insurance Fraud Prevention Act, N.J. Stat. Ann. §§ 17:33A-1 et seq., is not preempted by ERISA); Tri3 Enterprises, LLC v. Aetna Inc., No. 11-3921, 2012 WL 1416530 (D.N.J. April 24, 2012) (holding that ERISA does not completely preempt claims brought by an insurer suing a medical provider for fraudulent or negligent billing). B. Preemption of Managed Care and Malpractice Claims The Third Circuit case law with respect to preemption of managed-care malpractice claims was held to be preempted by the Supreme Court’s decision in Aetna Health Inc. v. Davila, 542 U.S. 200 (2004). Prior to Davila, the Third Circuit drew a distinction based upon 299

the issue of quality of care as opposed to quantum of benefits received. Lazorko v. Pa. Hosp., 237 F.3d 242 (3d Cir. 2000); In re U.S. Healthcare, Inc., 193 F.3d 151 (3d Cir. 1999); Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir. 1995). These decisions, however, were overruled by Davila, which makes clear that such claims are foreclosed by ERISA’s civil enforcement scheme even when the complaint alleges negligent conduct. See Kurtek v. Capital Blue Cross, 219 F. App’x 184 (3d Cir. 2007); Pascack Valley Hosp. v. Local 464A UFCW Welfare Reimbursement Plan, 388 F.3d 393 (3d Cir. 2004) (complete preemption applies when the plaintiff could have brought its claims under ERISA and no other legal duty independent of ERISA is implicated by the defendant’s actions); DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442 (3d Cir. 2003); Brown v. Weiner, No. Civ.A. 04-cv-3442, 2005 WL 2989748 (E.D. Pa. July 6, 2005). Unlike malpractice claims brought by plan participants, the Third Circuit has held that malpractice claims brought pursuant to state law by plan fiduciaries are not preempted. In Painters of Phila. Dist. Council No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146 (3d Cir. 1989), the court held that a suit brought by the plan’s trustees against the plan’s accountant/auditor was not preempted by ERISA. See id. at 1153. According to the Third Circuit, the reason that claims brought by a plan (as opposed to a participant) are not preempted is that such claims do not generally implicate funding, benefits, or the administration of a plan. See id.; see also Nagy v. De Wese, 705 F. Supp. 2d 456 (E.D. Pa. 2010); Feigenbaum v. Summit Health Admin., Inc., No. 01-cv-0805, 2008 WL 300

2386168 (D.N.J. June 9, 2008). In contrast, malpractice claims that are brought by participants are preempted because such claims require interpretation of the plan and would have the potential to upset the uniform regulation of plan benefits as intended by Congress. See Kollman v. Hewitt Assoc., 487 F.3d 139, 149 (3d Cir. 2007) (holding that malpractice claims brought by participant against nonfiduciary who performed administrative services for ERISA plan were preempted). C. Other Preemption Issues The Third Circuit has continually and consistently held that all damages beyond those permitted by ERISA’s exclusive remedy scheme are preempted by ERISA. See, e.g., Barber v. Unum Life Ins. Co. of Am., 383 F.3d 134 (3d Cir. 2004); Cox v. Keystone Carbon Co., 894 F.2d 647 (3d Cir. 1990); Pane v. RCA Corp., 868 F.2d 631 (3d Cir. 1989); Cox v. Keystone Carbon Co., 861 F.2d 390 (3d Cir. 1988); McBride v. Hartford Life & Acc. Ins. Co., No. 05-6172, 2006 WL 279113 (E.D. Pa. Feb. 3, 2006) (RICO claims dismissed). Courts within the Third Circuit have also repeatedly held that ERISA preempts all equitable state law claims, including equitable estoppel claims. See, e.g., O’Meara v. The CIT Group, Inc., No. 07-cv-4429, 2008 WL 907474 (D.N.J. Apr. 1, 2008) (holding that state law equitable estoppel claim was preempted); Clark v. Hartford Life & Accident Ins. Co., No. 06-0945, 2006 WL 3359651 (E.D. Pa. Nov. 17, 2006) (state law equitable estoppel claim was preempted); Gould v. Great-West Life & Annuity Ins. Co., 959 F. Supp. 214, 219 (D.N.J. 1997). However, the 301

Third Circuit has endorsed a separate ERISA-based equitable estoppel claim that differs from its state law counterpart, and is not preempted. See Curio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 235 (3d Cir. 1994); Luppino v. Sedgwick Claims Mgmt., No. 08-cv-5315, 2010 WL 1999316 (D.N.J. May 19, 2010). An equitable estoppel claim brought under ERISA requires (1) a material misrepresentation, (2) reasonable and detrimental reliance upon that representation, and (3) extraordinary circumstances. See Curio, 33 F.3d at 235; see also Gridley v. Cleveland Pneumatic Corp., 924 F.2d 1310, 1319 (3d Cir. 1991); Johnson v. Nanticoke Mem’l Hosp., 700 F. Supp. 2d 670 (D. Del. 2010); Woerner v. FRAM Grp. Operations, LLC, No. 12-6648, 2013 WL 1815518 (D.N.J. Apr. 29, 2013). The requirement of extraordinary circumstances, which is not a requirement of a state law estoppel claim, is a heavy one and demands proof of affirmative acts of fraud or similar inequitable conduct. See, e.g., Jordan v. Fed. Express Corp., 116 F.3d 1005, 1011 (3d Cir. 1997); Kurz v. Phila. Elec. Co., 96 F.3d 1544, 1553 (3d Cir. 1996) (“[A] plaintiff must do more than merely make out the ordinary elements of equitable estoppel to establish a claim for equitable estoppel under ERISA.”); Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292, 304 (3d Cir. 2008) (finding extraordinary circumstances where there were “repeated affirmative misrepresentations, combined with [plaintiff’s] diligence” over an extended course of dealing); Kapp v. Trucking Employees of N. Jersey Welfare Fund, Inc.—Pension Fund, 426 F. App’x 126, 130 (3d Cir. 2011) (declining to find extraordinary circumstances when plaintiff consulted with an attorney and still failed to file his claim timely); see also Clark, 302

2006 WL 3359651, at *4 (discussing difference between ERISA estoppel claim and state law estoppel claim). III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? Section 503 of ERISA requires plans to provide claimants with a “full and fair review” of a claim denial. 29 U.S.C. § 1133. Although the ERISA statute does not explicitly require that a beneficiary exhaust the internal plan review process before filing a lawsuit, this requirement has been enforced by the Third Circuit. D’Amico v. CBS Corp., 297 F.3d 287, 291 (3d Cir. 2002). See also Berger v. Edgewater Steel Co., 911 F.2d 911, 916 (3d Cir. 1990) (noting that the exhaustion requirement is “strictly enforced”), cert. denied, 499 U.S. 920 (1991); Zipf v. Am. Tel. & Tel. Co., 799 F.2d 889, 892 (3d Cir. 1986). Not all types of ERISA claims require the exhaustion of plan remedies. A claimant seeking to enforce the terms of a benefit plan must exhaust all plan remedies, whereas one asserting rights under the ERISA statute is not required to do so. Berger, 911 F.2d at 916. The Third Circuit’s decision has also left open the possibility that exhaustion of administrative remedies is not required when the claim is for breach of fiduciary duties under § 404 of ERISA. Id. If the claim for breach of fiduciary duties is in actuality one for plan benefits, however, exhaustion will be required. Id.; see also Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244, 255 (3d Cir. 2002); Engers v. AT&T, 428 F. Supp. 2d 213 (D.N.J. 2006) (exhaustion requirement applied to the plaintiff’s 303

claim for breach of fiduciary duty because the “crux” of the claim was one for benefits under the plan). B. Exceptions to the Exhaustion Requirement An exception to the exhaustion requirement exists when exhaustion would be futile. Harrow, 279 F.3d at 249; Hendricks v. Edgewater Steel Co., 898 F.2d 385, 388 (3d Cir. 1990). Whether exhaustion should be excused requires a case-specific inquiry. Metro. Life Ins. Co. v. Price, 501 F.3d 271, 279 (3d Cir. 2007). A plaintiff arguing for waiver of the exhaustion requirement bears the burden of proving futility by a “clear and positive showing.” Patient Care Assoc., L.L.C. v. N.J. Carpenters Health Fund, No. 10-1669, 2012 WL 1299144 (D.N.J. Apr. 16, 2012) (entering summary judgment in favor of the defendant where the claimant failed to come forward with evidence sufficient to excuse exhaustion based on futility grounds). Harrow, 279 F.3d at 249; Brown v. Cont’l Baking Co., 891 F. Supp. 238, 241 (E.D. Pa. 1995). Factors that a court may consider in deciding whether exhaustion would be futile include whether the plaintiff diligently pursued the available administrative relief; whether the plaintiff acted reasonably in seeking immediate judicial review under the circumstances; whether there was a fixed policy of denying benefits; and whether the insurance company complied with its own internal administrative procedures. Harrow, 279 F.3d at at 250. See also Berger v. Edgewater Steel, 911 F.2d 911, 916–17 (3d Cir. 1990). In Devito v. Aetna, Inc., 536 F. Supp. 2d 523, 532–33 (D.N.J. 2008), the court held that failure to exhaust is properly raised in a summary judgment motion and that the plaintiff should be 304

permitted discovery with respect to the factors stated in Harrow. In Gatti v. W. Pa. Teamsters & Employer’s Welfare Fund, No. 07-1178, 2008 WL 794516 (W.D. Pa. Mar. 24, 2008), the court applied the factors identified above and dismissed the complaint based on the claimant’s failure to exhaust. The plaintiff initiated the administrative appeals process but filed suit before it was completed. The court held that exhaustion was required as there was no evidence of a fixed policy to deny claims, nor was there evidence that the plan failed to follow its own procedures. See also Sultan v. Lincoln Nat’l Corp., No. 03-5190, 2006 WL 1806463 (D.N.J. June 30, 2006). Exhaustion was excused when the claimant demonstrated that he was refused meaningful access to the plan’s administrative review procedures in Tomczyscyn v. Teamsters, Local 115 Health & Welfare Fund, 590 F. Supp. 211, 213 (E.D. Pa. 1984). See also Murren v. American Nat. Can Co., No. 99-3136, 2000 WL 116067 (E.D. Pa. Jan. 27, 2000); Smith v. Prudential Health Care Plan, Inc., No. 97-891, 1997 WL 587340 (E.D. Pa. Sept. 10, 1997); Brown v. Cont’l Baking Co., 891 F. Supp. 238, 241 (E.D. Pa. 1995). A final exception to exhaustion exists when the claimant proves that he is threatened with irreparable harm. See Galinsky v. Bank of Am. Corp., No. 09-0060, 2009 WL 1173437 (D.N.J. Apr. 29, 2009); Tomczyscyn, 590 F. Supp. at 213; Grumbine v. Teamsters Pension Trust Fund of Phila. & Vicinity, 638 F. Supp. 1284, 1286 (E.D.Pa. 1986). In Carter v. U.S. Life Ins. Co., No. 07-143, 2007 WL 709331 (D.N.J. Mar. 5, 2007), the court rejected the plaintiff’s argument that he 305

was not required to exhaust his administrative remedies because the policy document itself did not specifically require it. C. Consequences of Failure to Exhaust Courts within the Third Circuit have held that if a court dismisses a claim or grants summary judgment for failure to exhaust, it must do so without prejudice, granting the plaintiff the right to re-file after exhausting the plan’s administrative remedies. D’Amico, 297 F.3d at 294; Luckenbaugh v. Ebenx, No. 06-1919, 2007 WL 846570 (M.D. Pa. Mar. 19, 2007); Engers v. AT&T, 428 F. Supp. 2d 213, 227 (D.N.J. 2006); Carducci v. Aetna U.S. Healthcare, 247 F. Supp. 2d 596, 610 (D.N.J. 2003). Courts have also held that exhaustion is still required even if the plan fails to notify the claimant of the guidelines for seeking review. Tomczyscyn, 590 F. Supp. 211; see also Majka v. Prudential Ins. Co. of Am., 171 F. Supp. 2d 410, 416 (D.N.J. 2001). When a plan provides inadequate notice to a claimant about appeal rights under the plan, the proper remedy is to remand the claim for exhaustion of administrative remedies prior to judicial review. Id.; Dellavalle v. Prudential Ins. Co. of Am., No. 05-0273, 2006 WL 83449 (E.D. Pa. Jan. 10, 2006). D. Is There a Distinction between Issue and Claim Exhaustion? At least one district court within the Third Circuit has recognized that exhaustion applies to both claims and issues that could have been raised in a claim for benefits. 306

In Morningred v. Delta Family-Care & Survivorship Plan, C.A. No. 10-272-MPT, 2011 WL 1195771 (D. Del. Mar. 29, 2011), the court concluded that by arguing for the first time during litigation that the claim denial letter was vague and did not identify the type of medical information needed to perfect the claim, the claimant failed to exhaust this issue and it could not be raised during the subsequent litigation. E. Minimum Number of Levels of Administrative Review Some plans offer a second mandatory level of review before a claimant has exhausted administrative remedies and may file suit in federal court. Under the most recent ERISA claim regulations, when a plan offers multiple appeals, all appeals must be completed within the time requirement for a single appeal. 29 C.F.R. § 2561.503-1(h). At least one district court within the Third Circuit has not been strict in its enforcement of the exhaustion requirement for supplemental levels of review. See Sprecher v. Aetna U.S. Healthcare, Inc., No. 02-580, 2002 WL 1917711 (E.D. Pa. Aug. 19, 2002). However, in Schaffer v. Prudential Ins. Co. of Am., 301 F. Supp. 2d 383 (E.D. Pa. 2003), the court stated that the claimant was required to exhaust all levels of administrative review prior to filing a lawsuit. Id. But see Dellavalle v. Prudential Ins. Co. of Am., No. 05-0273, 2006 WL 83449 (E.D. Pa. Jan. 10, 2006) (where the court held that the time limits for invoking the second appeal could not be enforced because of the plan’s faulty notice). 307

F. Can a Defendant Waive a Failure-to-Exhaust Defense? A defendant may waive the defense of failure to exhaust if it is not raised as an affirmative defense in the answer. See McCoy v. Bd. of Trs. of the Laborers’ Int’l Union, 188 F. Supp. 2d 461, 468 (D.N.J. 2002). In McCoy, the court noted the prejudice to the plaintiff resulting from the plan’s failure to raise the defense earlier. According to the court, had the plaintiff been made aware of the requirement sooner, he could have sought a stay and remand to allow for exhaustion. Based on the harm caused by the delay, the court held that the defense was waived. In Engers v. AT&T, 428 F. Supp. 2d 213 (D.N.J. 2006), the court held that the defendant did not waive the defense because there was no prejudice to the plaintiff based on the defendant’s failure to raise the defense earlier. IV. Standard of Review A. Plan Language The Third Circuit has long recognized that the denial of benefits under an ERISA qualified plan should be reviewed applying a deferential standard where the claim fiduciary has discretion to interpret the plan and to decide whether benefits are payable. When the plan expressly provides such discretion, the fiduciary’s exercise of discretion is judged by the arbitrary and capricious standard of review. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989).

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In Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 414 (3d. Cir. 2011), the Third Circuit appears to have abrogated a number of district court decisions which found that discretion existed based on more general language in the plan. The court explained that “the mere requirement to submit ‘satisfactory proof’ does not confer discretion upon an administrator, and thus, does not insulate the administrator from de novo review” because the “satisfactory” language is ambiguous. The court further stated that the burden of demonstrating that the abuse-of-discretion standard applies lies with the plan administrator. Viera, 642 F.3d at 413. Accordingly, a court will find discretion when the plan terms grant “the administrator or fiduciary discretionary authority to make eligibility determinations….” Viera, 642 F.3d at 413. At least one district court narrowly interpreted the holding in Viera. In Stevens v. Santander Holdings USA, Inc. Self-Insured Short Term Dis. Plan, No. 11-7473, 2013 WL 322628, at *7 (D.N.J. Jan. 28, 2013), the Court rejected the plaintiff’s argument that the plan language was insufficient to grant discretion. The plan in Stevens defined the term “proof” and reserved the right to determine if the submitted proof was satisfactory. The court concluded that this language is sufficient for discretionary review to apply. The Third Circuit has also held that in determining whether a plan confers discretionary authority upon the administrator, the courts should look at the plan in effect on the date the actual determination was made. See Smathers v. Multi-Tool, Inc./Multi-Plastics, Inc. Emp. Health & Welfare Benefit Plan, 298 F.3d 191, 195–96 (3d 309

Cir. 2002). In Smathers, the plan was amended to include discretionary authority after the insured’s injury occurred and after the claim was submitted, but before the administrator made its actual determination. In holding that the amended plan language applied, the Third Circuit reasoned that while the rights of participants to coverage or benefits may vest at the time of the occurrence of an accident, the standard of review does not and, accordingly, the standard of review at the time the claim determination is rendered is the relevant standard. Id.; see also Cherry v. Bio-Medical Applications of Pa., 397 F. Supp. 2d 609 (E.D. Pa. 2005); Fahringer v. Paul Revere Life Ins. Co., 317 F. Supp. 2d 504, 510–11 (D.N.J. 2003); Sapovits v. Fortis Benefits Ins. Co., No. 01-3628, 2002 WL 31923047 (E.D. Pa. Dec. 30, 2002). In CIGNA Corp. v. Amara, 131 S. Ct. 1866, 1877 (2011), the Supreme Court held that while the purpose of the summary plan description is to describe the plan, it is not the plan and may not be used to amend or modify its terms. Courts in other circuits have applied Amara in holding that discretionary language in a summary plan description is ineffective absent express language adopting the summary plan description as part of the plan. However, in Frey v. Herr Foods Inc. Employee Welfare Plan, No. 11-1416, 2012 WL 6209896 (E.D. Pa. Dec. 13, 2012), the court, relying on Amara, held that discretionary language in the summary plan description was insufficient to warrant application of the abuse of discretion standard. No other district court in the Third Circuit has addressed whether the summary plan description can confer discretionary authority. 310

B. What Standard of Review Applies? In Glenn, the Supreme Court held that a deferential abuse of discretion standard of review applies where a plan gives the administrator discretionary authority. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). Any conflict of interest is to be considered as one of several factors in determining whether the administrator or the fiduciary abused its discretion. Prior to Glenn, the Third Circuit used a sliding scale approach as set forth in Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377 (3d Cir. 2000), to review a conflicted administrator’s determination. Under Pinto, courts were to apply the arbitrary and capricious standard of review, but afforded less deference to a plan or claim administrator’s decision in proportion to the perceived conflict. Id. at 293; see also Post v. Hartford Ins. Co., 501 F.3d 154, 161 (3d Cir. 2007). Glenn overruled Pinto and today the abuse of discretion standard applies across the board even in the face of a conflict of interest. Estate of Schwing v. Lilly Health Plan, 562 F.3d 522 (3d Cir. 2009). The Third Circuit has had multiple opportunities to comment on the scope of Glenn and direction contained therein. See Bluman v. Plan Adm’r & Trustees for CNA’s Integrated Disability Program, 491 F. App’x 312, 315 (3d Cir. 2012) (“Glenn directs a court to … afford [a conflict of interest] greater importance … where the evidence suggests a greater likelihood that it affected the decision to deny benefits,” (internal quotation marks omitted)); Miller v. Am. Airlines, Inc., 632 F.3d 837, 845 (3d Cir. 2011) (In determining whether a benefits termination was arbitrary and capricious, we review 311

“various procedural factors underlying the administrator’s decision-making process, as well as structural concerns regarding how the particular ERISA plan was funded”); Funk v. CIGNA Group Ins., 648 F.3d 182, 190 (3d Cir. 2011) (conflict of interest must not be given undue weight); Howley v. Mellon Fin. Corp., 625 F.3d 788, 794 (3d Cir. 2010) (“Glenn directs a court to consider a conflict of interest as a factor in its analysis, and to afford that factor greater importance, perhaps determinative importance, where the evidence suggests a greater likelihood that it affected the decision to deny benefits”); see also Estate of Schwing v. Lilly Health Plan, 562 F.3d 522 (3d Cir. 2009); Evans v. Emp. Benefit Plan, Camp Dressler & McKee, Inc., No. 07-3552, 2009 WL 418628 (3d Cir. Feb. 20, 2009); Feigenbaum v. Merrill Lynch & Co., 308 F. App’x 585 (3d Cir. 2009); Michaels v. Equitable Life Assurance Soc’y, 305 F. App’x 896 (3d Cir. 2009). In Estate of Schwing, the Third Circuit interpreted Glenn in holding that a conflict of interest is to be taken into account when considering whether an administrator abused its discretion, not in determining which standard of review applies. See id. at 525. The Third Circuit also expressly acknowledged that the sliding scale approach previously applied in the Third Circuit was overruled and provided the framework for a new era of review under Glenn: [W]e find that, in light of Glenn, our “sliding scale” approach is no longer valid. Instead, courts reviewing the decisions of ERISA plan administrators or fiduciaries in civil enforcement actions brought pursuant to 29 U.S.C. § 1132(a)(1)(B) should apply a deferential abuse of discretion standard of review 312

across the board and consider any conflict of interest as one of several factors in considering whether the administrator or fiduciary abused its discretion. Estate of Schwing, 562 F.3d at 525–26 (emphasis added). Following Glenn and Estate of Schwing, it is clear that in each and every case where the administrator is granted discretionary authority, the proper standard of review is arbitrary and capricious. Moreover, the Third Circuit acknowledged that the revised standard is more favorable to a fiduciary exercising its discretion than the Pinto sliding scale approach in Evans, 2009 WL 418628, at *2 (stating that heightened review under Pinto applied by the district court “was more favorable to the plaintiff than the new standard”). C. Effect of Conflict of Interest or Procedural Irregularity A conflict of interest is relevant only when a plan confers discretionary authority to its administrators and is not relevant to claims determinations reviewed under the de novo standard. See Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 418 (3d Cir. 2011). Pursuant to Estate of Schwing, a conflict of interest or procedural irregularity will not alter the standard of review; instead, a conflict of interest or irregularity will be considered as a factor in the court’s determination as to whether the administrator abused its discretion: [B]enefit determinations will arise in many different contexts and circumstances, and, therefore, the factors 313

to be considered will be varied and case specific. In Glenn, factors included procedural concerns about the administrator’s decision making process and structural concerns about the conflict of interest inherent in the way the ERISA-governed plan was funded; in another case, the facts may present an entirely different set of considerations. After Glenn, however, it is clear that courts should “take account of several different considerations of which a conflict of interest is one,” and reach a result by weighing all of those considerations. Estate of Schwing, 562 F.3d at 526 (citing Glenn); see also generally Doe v. Hartford Life Ins. Co., No. 05-2512, 2008 WL 5400984 (D.N.J. Dec. 23, 2008) (finding per se conflict of interest present, and affording it little weight based on the facts of the case and the Glenn decision). Judge Weis, concurring in the Miller decision, addressed criticism of a deferential standard of review despite a conflict of interest: This deferential standard in the face of a clear, if not uncommon, conflict of interest is not without criticism. Indeed, we have observed that it may “simply invite[] drafters of employee benefit plans to insert boilerplate language in plan documents to ensure that courts will apply a deferential standard of review over the decisions of the plan administrator.” Abnathya [v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 n.5 (3d Cir. 1993), cert. denied, 30 S. Ct. 1060 (2010)] (discussing John H. Langbein, The Supreme Court Flunks Trusts, 1990 Sup. Ct. Rev. 314

207, 220–23); see also Paul J. Schneider & Brian M. Pinheira, ERISA: A Comprehensive Guide 8–15 (3d ed. 2008) (“Most employee benefit plans contain (or can easily be amended to provide) appropriate boiler-plate language giving plan administrators discretion to interpret the plan”). Although we have questioned this degree of deference, neither Congress nor the Supreme Court has addressed the issue further, see Abnathya, 2 F.3d at 45 n.5 (expressing desire for additional guidance from the Court or an amendment to the ERISA statute), and it is, therefore, a standard that we are obliged to uphold. Miller, 632 F.3d at 857 n.6. The Third Circuit has found that there is a structural conflict of interest when an employer both funds and administers a plan but pays benefits out of a fully funded and separate trust as opposed to its own operating budget. See Miller, 632 F.3d at 847; see also Bluman, 491 F. App’x at 314. Relying on Glenn, the Third Circuit in Miller reasoned that “[e]ven in an actuarially grounded plan, the employer provides the monetary contribution and any money saved reduces the employer’s projected benefit obligation. Id. As with the preexisting Third Circuit law regarding conflicts of interest, the Third Circuit case law providing for heightened review in the presence of alleged irregularity, bias, or unfairness in the review of a claimant’s application for benefits appears no longer valid in light of Glenn, Estate of Schwing, and Miller. Nevertheless, this case law remains potentially instructive 315

in determining when there may be a procedural irregularity, bias, or unfairness in the review process that could be considered as a factor in determining whether the administrator abused its discretion. In Tylwalk v. Prudential, 257 F. App’x 568, 571 (3d Cir. 2007), the Third Circuit instructed that procedural irregularities may arise where a claim determination reflects: reversal of position without additional medical evidence; self-serving selectivity in the use and interpretation of physician’s reports; disregard of staff recommendations that benefits be awarded; and request for a medical examination when all evidence indicates disability. In Kosiba v. Merck & Co., 384 F.3d 58 (3d Cir. 2004), the Third Circuit found the presence of procedural irregularities based upon the plan administrator’s intervention in the appeals process for the specific purpose of requesting an independent medical examination, notwithstanding its delegation of discretion to a large experienced carrier. See id. at 61. Likewise, in Post v. Hartford Ins. Co., 501 F.3d 154, 161 (3d Cir. 2007), the Third Circuit found the presence of procedural irregularities based upon the following: (1) Hartford attempted to use Post’s Social Security benefits to offset her disability benefits despite the plan not allowing such an offset; (2) Hartford terminated Post’s benefits in part because she allegedly refused to undergo a functional capacity evaluation, although it was not clear that a timely request for such an examination was made; (3) Hartford decided to cease paying benefits primarily based on a physician’s report that was not based upon a physician’s examination; and (4) Hartford conducted continued and extensive 316

surveillance on Post despite the surveillance revealing that she did not leave her home. See id. at 167–68. D. Other Factors Affecting Standard of Review Courts within the Third Circuit have had some occasion to consider whether state insurance laws/regulations may bar a plan’s ability to include discretionary language in policies of insurance issued within the Third Circuit. Section 11:4-58 of the New Jersey Administrative Code provides that no insurance policy delivered or issued in New Jersey may contain a provision “purporting to reserve sole discretion to the carrier to interpret the terms of the policy or contract.” N.J. Admin. Code § 11:4-58.3. In Baker v. Hartford Life. Ins. Co., 440 F. App’x 66, 68 (3d Cir. 2011), the Third Circuit upheld the district of New Jersey’s holding that section 11:4-58 is not subject to ERISA preemption because the regulation allows an employee to challenge a claim determination in federal court, and thus, does not reserve “sole discretion to the carrier.” 440 F. App’x at 68 (quoting N.J. Admin. Code § 11:4-58.3). Since ERISA explicitly grants claimants the right to judicial review, delegations under ERISA do not actually reserve sole discretion to the carrier, and inclusion of language preserving the plan participant’s rights under ERISA was sufficient for a plan to comply with section 11:4-58, although the plan otherwise vested “sole discretionary authority” in the carrier. Therefore, the court applied the abuse of discretion standard in reviewing the claim fiduciary’s denial of the plan participant’s benefits. See also Evans v. Employee Benefit Plan, Camp Dressler & McKee, Inc., 311 F. App’x 556 317

(3d Cir. 2009); Pain & Surgery Ambulatory Ctr., P.C. v. Conn. Gen. Life Ins. Co., No. 11-cv-5209, 2012 WL 3781516 (D.N.J. Aug. 30, 2012). V. Rules of Plan Interpretation A. Application of Federal Common Law The Third Circuit has held that courts should follow federal common law to fill in any gaps in ERISA. See Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 75 (3d Cir. 2011); Koval v. Washington Cnty. Redevelopment Auth., 574 F.3d 238 (3d Cir. 2009); Jakimas v. HoffmannLaRoche, Inc., 485 F.3d 770, 778 (3d Cir. 2007); Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1257 n.8 (3d Cir. 1993); Plan Adm’r v. Kienast, No. 06-1529, 2008 WL 202115 (W.D. Pa. Jan. 23, 2008); Zienowicz v. Metro. Life Ins. Co., 204 F. Supp. 2d 339, 344 (D.N.J. 2002). As long as a state law is consistent with the purposes of ERISA, federal courts will adopt it as federal common law. Bauer v. Summit Bancorp, 325 F.3d 155, 160 (3d Cir. 2003); Heasley, 2 F.3d at 1258; Int’l Union v. Skinner Engine Co., 188 F.3d 130, 138 (3d Cir. 1999); Ryan by Capria-Ryan v. Fed. Express Corp., 78 F.3d 123, 129 (3d Cir. 1996). Based on the foregoing, courts will apply federal common law when interpreting the terms of an ERISA plan rather than a state’s law. Baldwin, 636 F.3d at 75. The “paramount goal” of contract interpretation under federal common law is the intent of the parties. Id. The Third Circuit has also warned that “district court[s] should

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not easily fashion additional ERISA claims and parties outside congressional intent under the guise of federal common law.” Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 235 (3d Cir. 1994). B. Application of Contra Proferentem Under the de novo standard of review only, a court will apply the doctrine of contra proferentem when interpreting the plan. Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 231 (3d Cir. 1994); Heasley, 2 F.3d at 1257; Luppino v. Sedgwick Claims Mgmt. Services, Inc., No. 08-5315, 2010 WL 1999316 (D.N.J. May 19, 2010); Cohen v. Standard Ins. Co., 155 F. Supp. 2d 346, 354 (E.D. Pa. 2001). Under this rule of contract interpretation, when the language in an insurance contract is susceptible to two different but reasonable interpretations, it is ambiguous and the court will follow the interpretation that is most favorable to the insured. Heasley, 2 F.3d at 1257. C. Deference Afforded Interpretation of a Plan

to

an

Administrator’s

Contra proferentem will be applied in determining whether ambiguous plans grant the administrator discretion authority. Haisley v. Sedgwick Claims Mgmt. Services, Inc., 776 F. Supp. 2d 33 (W.D. Pa. 2011). Contra proferentem may not be applied when the plan grants to the decision maker discretionary authority. In those cases, the Third Circuit has recognized that when a term in an ERISA plan is ambiguous, it is the plan’s interpretation that is entitled to deference. See Lasser v. 319

Reliance Standard Life Ins. Co., 344 F.3d 381, 386 (3d Cir. 2003); Skretvedt v. E.I. DuPont de Nemours & Co., 268 F.3d 167, 177 (3d Cir. 2001) (abrogated on other grounds). See also Cecchanecchio v. Cont’l Cas. Co., 50 F. App’x 66, 73 (3d Cir. 2002); Doe v. Hartford Life & Accid. Ins. Co., No. 05-2512, 2008 WL 5400984 (D.N.J. Dec. 23, 2008); Serbanic v. Harleysville Life Ins. Co., No. 07-213, 2007 WL 4456305 (E.D. Pa. Dec. 17, 2007). This is because under the deferential standard of review, the court must accept the fiduciary’s interpretation as long as it is reasonable and not contrary to the language in the plan. In McElroy v. SmithKline Beecham Health & Welfare Benefits Trust Plan, 340 F.3d 139, 143 (3d Cir. 2003), the Third Circuit held that even though the plan language was ambiguous, the court “must defer to this interpretation [of the plan administrator] unless it is arbitrary and capricious.” Contra proferentem is a tool of last resort, appropriate only if the court cannot determine the parties’ intent. Erbe v. Conn. Gen. Life Ins. Co., 695 F. Supp. 2d 232 (W.D. Pa. 2010). In McLeod v. Hartford Life & Acc. Ins. Co., 372 F.3d 618, 624 (3d Cir. 2004), the court seemingly ignored the cases cited above when it reviewed the plan’s interpretation under the heightened standard of review. The court stated that it “must be especially mindful to ensure that the administrator’s interpretation of policy language does not unfairly disadvantage the policyholder.” Similarly, the Third Circuit has adopted the doctrine of reasonable expectations, which requires an insurer to demonstrate that the insured did not have a reasonable expectation of coverage. West v. Lincoln Benefit Life Co., 509 F.3d 160, 171–72 (3d Cir. 2007). 320

The continued validity of these latter two cases is questionable based on the subsequent statement by the Supreme Court that a plan’s interpretation “will not be disturbed if reasonable.” Conkright v. Frommert, 559 U.S. 506 (2010). D. Other Rules of Plan or Contract Interpretation At times courts will accept extrinsic evidence when interpreting the language in the plan. However, extrinsic evidence will not be considered when the terms of the plan are clear and unambiguous. In re Lucent Death Benefits Litig., 541 F.3d 250, 255 (3d Cir. 2008). In Smith v. Hartford Ins. Group, 6 F.3d 131, 139 (3d Cir. 1993), the Third Circuit considered extrinsic evidence of the party’s understanding of the term that was in dispute. This extrinsic evidence included the party’s prior performance under the agreement. Id.; see also Langer v. Monarch Life Ins. Co., 879 F.2d 75, 81 (3d Cir. 1989). In Smith, it was evidence of prior performance under the policy that the court looked to in order to demonstrate a latent ambiguity. The Third Circuit explained that extrinsic evidence may be used to explain the structure of the contract, the parties’ bargaining history, and their understanding of the contract as reflected in the conduct. Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 76 (3d Cir. 2011). In Exec. Benefit Plan Participants v. New Valley Corp., 89 F.3d 143, 150 (3d Cir. 1996), the Third Circuit held that extrinsic evidence “must be considered” to clarify the meaning of a term only if an ambiguity is found. See also Epright v. Envtl. Res. Mgmt., 81 F.3d 335, 339 (3d Cir. 1996); Saddler v. Elliott Co., No. 07-1320, 2009 WL 321

229648 (W.D. Pa. Jan. 30, 2009); Zylla v. Unisys Corp., 57 F. App’x 79, 85–86 (3d Cir. 2003) (holding that a court should not allow a party to introduce past practice to controvert the language of a contract that is otherwise unambiguous). But see Pension Fund for Nursing Home & Health Care Emps. v. Resthaven Nursing Ctrs., No. 07-313, 2008 WL 2132097 (E.D. Pa. May 20, 2008) (considering extrinsic evidence even though the court concluded that summary judgment should be granted based on the express terms of the plan). The Third Circuit has cautioned that extrinsic evidence should not be used to create an ambiguity where none exists. Gritzer v. CBS, Inc., 275 F.3d 291, 299 (3d Cir. 2002); In re Unisys Corp. (Unisys I), 58 F.3d 896, 904–06 (3d Cir. 1995). In Unisys I, the Third Circuit refused to consider extrinsic evidence because the language in the plan was unambiguous and did not allow the claims. See also Bruno v. AT&T Mobility LLC, No. 10-404, 2011 WL 2181962 (W.D. Pa. June 3, 2011). Often benefit plans are amended and the question arises as to which plan covers the claim. In Confer v. Custom Eng’g Co., 952 F.2d 34 (3d Cir. 1991), the Third Circuit held that coverage under the plan vests at the time of the loss and that a subsequent amendment limiting coverage cannot be applied retroactively. See also Cherry v. Biomedical Applications of Pa., 397 F. Supp. 2d 609 (E.D. Pa. 2005). In Smathers v. Multi-Tool, Inc., 298 F.3d 191 (3d Cir. 2002), the holding in Confer was limited to substantive, not procedural, amendments to a plan. In Smathers, the 322

participant sought coverage for medical expenses. Following the loss, the plan was amended to grant to the administrator discretionary authority. The participant relied on Confer in asserting that he had a vested right to have his claim reviewed based on the terms contained in the earlier plan. The Third Circuit disagreed, stating that the plan amendment granting discretion applied to the claim since it did not change the coverage under the plan. Id. at 195. A frequently litigated issue concerns the participant’s right to lifetime benefits. While pension benefits automatically vest, welfare benefits do not unless such vesting is clearly and expressly stated in the plan. Int’l Union v. Skinner Engine Co., 188 F.3d 130, 138–39 (3d Cir. 1999). See also In re Lucent Death Benefits ERISA Litig., 541 F.3d 250 (3d Cir. 2008) (holding that a death benefit was a welfare benefit that did not vest). A claimant bears the burden of proving that the employer intended the benefits to vest. In re Lucent Death Benefits ERISA Litig., 541 F.3d at 254. Additionally, when benefits are offered as part of a collective bargaining agreement, there is a presumption that they will expire when the agreement expires. Int’l Union, 188 F.3d at 141. The court faced a slightly different question in In re Visteon Corp., 612 F.3d 210 (3d Cir. 2010). There, the Third Circuit addressed the ability of a bankruptcy court to allow an employer to terminate retiree health benefits. The court stated that while the employer may have been able to terminate those benefits outside of bankruptcy, the bankruptcy procedures set forth in 11 U.S.C. § 1114 limited the employer’s rights in bankruptcy.

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VI. Discovery A. Limitations on Discovery The Third Circuit has made it clear that when reviewing a claim administrator’s determination regarding benefits under the arbitrary and capricious standard of review, a district court is limited to the well-developed record available to the administrator at the time of the final determination. Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3d Cir. 1997); Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40 (3d Cir. 1993). See also Johnson v. UMWA Health & Ret. Funds, 125 F. App’x 400, 405 (3d Cir. 2005). Prior to the Supreme Court’s decision in Glenn and the Third Circuit’s decision in Estate of Schwing, the Third Circuit permitted a reviewing court to consider evidence of potential biases and conflicts of interest that were not in the administrator’s record for the purpose of deciding whether to apply the arbitrary and capricious standard of review or a more heightened standard of review. See, e.g., Kosiba v. Merck & Co., 384 F.3d 58, 67 n.5 (3d Cir. 2004); Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377, 392 (3d Cir. 2000). However, Estate of Schwing has made clear that there are now only two standards of review: abuse of discretion (arbitrary and capricious) and de novo. See Estate of Schwing v. Lilly Health Plan, 562 F.3d 522, 526 (3d Cir. 2009); see also Farina v. Temple Univ. Health Sys. Long Term Disability Plan, No. 08-2473, 2009 WL 1172705 (E.D. Pa. Apr. 28, 2009) (citing Estate of Schwing and stating “there are only two possible standards of review that could apply in this case—arbitrary and capricious and de novo”). Therefore, previous Third Circuit authority permitting 324

discovery for the sole purpose of determining the standard of review appears to no longer be valid. With respect to attempts to expand the administrative record under the arbitrary and capricious standard of review, district courts within the Third Circuit have consistently held there is generally no basis for expanding the administrative record through discovery in a matter seeking review of a benefit determination. As set forth by the court in O’Sullivan v. Metro. Life Ins. Co.: The Court and the parties have found no applicable authority that would support looking beyond the administrative record when deferentially reviewing a plan administrator’s factual determination that a claimant is ineligible for benefits. The purpose in limiting the evidential scope of judicial review is to encourage the parties to resolve their dispute at the administrative level. If district courts permitted claimants to present additional evidence in reviewing benefit determinations, the administrator’s review of claims would be circumvented. ERISA’s goal of providing plan participants and beneficiaries an expeditious and inexpensive method of resolving their disputes would be seriously impaired. 114 F. Supp. 2d 303, 309 (D.N.J. 2000) (quotations and citations omitted). The lack of authority for discovery in an ERISA matter was reiterated by the District Court of New Jersey’s Chief Judge Garrett Brown:

325

Weiss’s remaining argument is that Judge Bongiovanni’s determinations that limited discovery were erroneous. The Court disagrees, and concludes that Judge Bongiovanni correctly applied precedential ERISA jurisprudence. Weiss primarily relies upon three cases in support of his argument that the discovery he sought should have been allowed: (1) Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989); (2) Pinto v. Reliance Standard Ins., 214 F.3d 337 (3d Cir. 2000); and (3) Metropolitan Life Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008)…. Weiss’s argument that these decisions compel the specific discovery sought by Weiss under the circumstances of this case, however, is unfounded. None of these three decisions address the specific issue of discovery under the “heightened arbitrary and capricious” standard of review in ERISA cases. Weiss has identified no controlling precedent that mandates the discovery denied by Judge Bongiovanni in the letter orders at issue, and the Court’s research has found none. As such, Plaintiff has not shown that the determinations of United States Magistrate Judge Bongiovanni … that limit discovery during the initial phase of this bifurcated case were clearly erroneous or contrary to law. Weiss v. First Unum Life Ins. Co., No. 02-4249, 2008 WL 5188857, at *4 (D.N.J. Dec. 10, 2008). See also Stevens v. Santander Holdings USA, Inc., No. 11-7473, 2013 WL 322628 (D.N.J. Jan. 28, 2013); Muccino v. Long Term Dis. Income Plan for Choices Eligible Employees of Johnson & Johnson, No. 11-3641, 2012 WL 2119152 (D.N.J. June 11, 2012); Shvartsman v. Long Term Dis. 326

Income Plan for Choices Eligible Employees of Johnson & Johnson, No. 11-03643, 2012 WL 2118126 (D.N.J. June 11, 2012); Swiger v. The Hartford, No. 08-cv-1387, 2009 WL 1248080 (W.D. Pa. Apr. 30, 2009); Fabyanic v. Hartford Life & Acc. Ins. Co., No. 02:08-cv-0400, 2009 WL 775404 (E.D. Pa. Mar. 18, 2009); Oslowski v. Life Ins. Co. of N. Am., 139 F. Supp. 2d 668, 675–76 (W.D. Pa. 2001). In Post v. Hartford Ins. Co., 501 F.3d 154 (3d Cir. 2007), the plaintiff sought to introduce five additional medical reports, including two prepared by her doctors more than two years after the final claim determination was rendered. The Third Circuit held that the plaintiff was precluded from relying upon the reports “because they were not submitted to Hartford and were not made part of the record.” Id. at 169. In Otto v. W. Pa. Teamsters & Employers Pen. Fund, 127 F. App’x 17 (3d Cir. 2005), the plan participant argued that the magistrate judge should not have relied on two affidavits that were not part of the record before the claim administrator. The Third Circuit, in a footnote, stated, “evidence beyond the administrative record may in certain circumstances be relevant and admissible as to the issues that were not before the plan administrator—such as trustee conflict of interest, bias, or a pattern of inconsistent benefits decision.” Id. at 21 n.7 (citing Kosiba, 384 F.3d at 69). However, the court found it unnecessary to decide whether the magistrate judge erred by reviewing affidavits outside of the administrative record, reasoning that “irrespective of the disputed evidence, the trustees’ interpretation of the plan is reasonable.” Id. In O’Malley v. Sun Life Assur. Co. of Am., No. 04-5540, 2006 WL 327

182099 (D.N.J. Jan. 23, 2006), the plaintiff, relying on Otto, argued that the court’s review of the record was not limited to the administrative record; that the court should review additional documents in rendering its decision; and that she had a right to discovery, purporting that there was a pattern of inconsistent decisions. The court, however, found no evidence that defendant treated the plaintiff differently than any other beneficiary, and therefore, refused to consider any additional documents in its review of the record. See also Johnson v. UMWA Health & Ret. Funds, 125 F. App’x 400, 405 (3d Cir. 2005) (“[T]his court has made clear that the record for arbitrary and capricious review of ERISA benefits denial is the record made before the plan administrator, which cannot be supplemented during litigation”). However, in a non-precedential opinion, the Third Circuit, without referencing Glenn, held in a footnote that allegations of fraud or mistake are subject to discovery. See Gardner v. Unum Life Ins. Co., 354 F. App’x 642, 648 n.4 (3d Cir. 2009). In circumstances where the de novo standard of review applies, the Third Circuit has recognized that review should be limited to the well-developed record, but will permit discovery where the record is not sufficiently developed. See Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 418 (3d Cir. 2011). Only where the district judge perceives deficiencies in the record should it exercise its discretion to entertain additional evidence. Luby v. Teamsters Health, Welfare, & Pension Trust Funds, 944 F.2d 1176 (3d Cir. 1991) (holding that a district court may conduct a de novo review based on the record where the record is sufficiently developed); see also Stepanski v. 328

Sun Microsystems, Inc., No. 10-2700, 2011 WL 8990579, at *17 (D.N.J. Dec. 9, 2011); Scheider v. Life Ins. Co. of N. Am., 820 F. Supp. 191 (D.N.J. 1993). In Luby, the Third Circuit specifically held that “if the record on review is sufficiently developed, the district court may, in its discretion, merely conduct a de novo review of the record, … making its own independent benefit determination.” In so holding, the Luby court reasoned that “plan administrators are not governmental agencies who are frequently granted deferential review because of their acknowledged expertise” in rendering benefit determinations. The court further recognized that courts are “better suited to hear evidence” than to develop evidence necessary to render such a determination. Luby, 944 F.2d at 1184–85. In Viera, the Third Circuit remanded the matter to the district court and, relying on Luby, instructed that the “District Court must determine whether [the administrator] properly denied Plaintiff recovery under the Policy. This determination may be based on any information before the administrator initially […] as well as any supplemental evidence[….]” 642 F.3d at 418. The Third Circuit will allow additional evidence to be considered under a de novo review when the administrative record is not “sufficiently developed.” However, an argument can still be made, under appropriate circumstances, that de novo review should be restricted to the administrative record before the administrator at the time of its claim determination under 329

review if the record is sufficiently developed and/or the discovery sought is not directed toward further development of the administrative record. B. Discovery and Conflict of Interest Prior to Glenn, the Third Circuit permitted discovery as to whether a conflict of interest existed, limited to the following issues: “The court may take into account sophistication of the parties, the information accessible to the parties, and the exact financial arrangement between the insurer and the company.” Pinto v. Reliance Standard Life Ins. Co., 214 F.3d at 392. Subsequent to Glenn, the Third Circuit held that a “district court may consider evidence outside the administrative record to decide the nature, extent and effect on the decision making process of any conflict of interest.” Howley v. Mellon Fin. Corp., 625 F.3d 788 (3d Cir. 2010). See also Sivalingam v. Unum Life Ins. Co., No. 09-4702, 2011 WL 1584055 (E.D. Pa. Apr. 26, 2011) (“Discovery is the only way the record can be fully developed on the conflicts issue. Otherwise, we would be handicapped in analyzing all the factors we must consider in deciding whether an abuse of discretion has occurred.”); Dandridge v. Raytheon Co., No. 08-4793, 2010 WL 376598 (D.N.J. 2010) (“By rejecting special evidentiary and procedural rules when evaluating conflicts, Glenn suggests allowing for limited discovery”); Killian v. Johnson & Johnson, No. 07-4902, 2009 WL 537666 (D.N.J. Mar. 4, 2009) (“Had the litigation progressed to the point where such a decision regarding the proper scope of discovery had been made, 330

Plaintiff would have had to present a good-faith allegation of a procedural irregularity or bias that could have been found within the administrative record to warrant the additional discovery-related work”); Mainieri & Iarolo v. Bd. of Trs. of the Operating Eng’rs Local 825 Pension Plan, No. 07-1133, 2008 WL 4224924, at *3 (D.N.J. Sept. 10, 2008) (“This Court agrees … [that] discovery can be taken with regard to issues that raise a good-faith allegation of procedural bias or structural conflict of interest—but not for matters that merely speak to the merits of the administrator’s decision”). In permitting limited discovery on conflicts of interests, the Third Circuit in Howley reasoned that [a] plan participant may be unaware of information relating to an administrator’s conflict until well after the administrative process has ended, and a conflicted administrator, especially one whose decision-making has been affected by that conflict, is not at all likely to volunteer that information. To allow an administrator the benefit of a conflict merely because it managed to successfully keep that conflict hidden during the administrative process would be absurd. Howley, 625 F.3d at 794. The Howley court further held that such limited discovery is appropriate in light of Glenn as “Glenn directs a court to consider a conflict of interest as a factor in its analysis, and to afford that factor greater importance, perhaps determinative importance, where the evidence suggests a greater likelihood that it affected the decision to deny benefits” and courts must consider such evidence “for this legal standard to be meaningful.” Id. 331

District courts within the Third Circuit, mindful that liberal discovery would “seriously impair ERISA’s goal of providing plan participants and beneficiaries an expeditious and inexpensive method of resolving their disputes,” O’Sullivan v. Metro. Life Ins. Co., 114 F. Supp. 2d 303, 309 (D.N.J. 2000), have closely scrutinized requests to expand the administrative record in ERISA matters. In doing so, these courts have continuously refused to permit discovery in ERISA matters absent a showing by the moving party of a legitimate good faith basis for alleging a structural conflict, bias or irregularity in the claims review process. See, e.g., Mainieri & Iarolo v. Bd. of Trs. of the Operating Eng’rs Local 825 Pension Fund, No. 07-1133, 2008 WL 4224924 at *3 (D.N.J. Sept. 10, 2008); Holt v. Prudential Ins. Co. of Am., No. 05-1529, 2007 WL 1071971, at *4 (D.N.J. Apr. 5, 2007); Delso v. Tr. of Ret. Plan for Hourly Employees of Merck & Co., Inc., No. 04-3009, 2006 WL 3000199, at *3 (D.N.J. Oct. 20, 2006). “[D]iscovery will typically not be permitted beyond the administrative record in ERISA cases unless some extrinsic factor exists, such as a structural conflict of interest or significant procedural abnormalities.” Shvartsman v. Long Term Dis. Income Plan for Choices Eligible Employees of Johnson & Johnson, No. 11-03643, 2012 WL 2118126, *8 (D.N.J. June 11, 2012). This standard places a heavy burden on a party seeking discovery to show a “good-faith basis” for alleging conflict, irregularity, or bias in the claim review process before being permitted to obtain any discovery beyond the administrative record. See, e.g., id.; Muccino v. Long Term Dis. Income Plan for Choices Eligible Employees of Johnson & Johnson, No. 11-3641, 2012 WL 2119152 (D.N.J. June 11, 2012); Mainieri & Iarolo, 332

2008 WL 4224924; Sec. Mut. Life Ins. Co. of N.Y. v. Joseph, No. 06-cv-4804, 2007 WL 1944345 (E.D. Pa. July 2, 2007); Delso v. Tr. of Ret. Plan for the Hourly Emps. of Merck & Co., No. 04-3009, 2006 WL 3000199 (D.N.J. Oct. 20, 2006). To successfully obtain discovery under this standard, the party seeking discovery must show a basis for discovery emanating from the face of the administrative record. See Delso, 2006 WL 3000199, at *3. In Delso, the court imposed a requirement of affidavitstyle evidence to satisfy this burden and permitted discovery only when presented with both an affidavit from a member of the defendant’s hourly pension committee (the decision maker) and an e-mail from a voting member of the committee that denied the plaintiff’s benefits. Id. at *4. The affidavit stated that the defendant had granted benefits to an individual similarly situated to the plaintiff; the e-mail expressed reservations regarding providing benefits, stating: “My greatest fear is that by voting to approve this retirement we will open up a can of worms we can never close again.” Id. Based on this documentation, the court concluded that there was “at least the potential that Plaintiff was subject to bias or inconsistent decision making.” Id. The apparent requirement of substantial evidence to support a “goodfaith basis” is to limit discovery in ERISA matters to truly exceptional circumstances and preclude discovery from becoming the norm in routine ERISA benefit actions. See id. One non-precedential case rejected the good faith standard originally articulated in Delso. See Dandridge v. 333

Raytheon Co., No. 08-4793, 2010 WL 376598 (D.N.J. Jan. 26, 2010). In Dandridge, the court concluded “that some discovery into alleged procedural irregularities is permitted in ERISA cases, but only when the parties seeking discovery have made at least some minimal showing of bias or irregularity that could have impacted the administration of the claim.” Id. at *6. However, the court further concluded that “[d]iscovery substantially more limited than that currently sought is permissible,” but the court did not set forth what discovery was permitted. The standard set forth in Dandridge was rejected in subsequent cases within the District of New Jersey on the basis that it was not precedential. See Shvartsman, 2012 WL 2118126, at *11 n.2; Muccino, 2012 WL 2119152, at *11 n.2. Despite the willingness of some courts to apply the good-faith basis standard, there is no authority from the Third Circuit itself to support this approach, which conflicts with ample Third Circuit authority limiting review under the arbitrary and capricious standard to the administrative record. See Mitchell v. Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997); see also Marciniak v. Prudential Fin. Ins. Co. of Am., 184 F. App’x 266 (3d Cir. 2006). Accordingly, most district courts continue to limit their review to the evidence that was before the administrator at the time of the determination. See, e.g., Fabyanic v. Hartford Life & Acc. Ins. Co., No. 02:08-cv-0400, 2009 WL 775404, at *7–8 (E.D. Pa. Mar. 18, 2009) (refusing to consider evidence not before the administrator); Swinger v. The Hartford, No. 08-cv-1387, 2009 WL 1248080 (W.D. Pa. Apr. 30, 2009) (noting that discovery under the arbitrary and capricious standard of 334

review is limited to the administrative record); Weiss v. First Unum Life Ins. Co., No. 02-4249, 2008 WL 5188857 (D.N.J. Dec. 10, 2008). VII. Evidence A. Scope of Evidence under Standards of Review When a court reviews a plan’s decision under the deferential standard of review, the court is limited to reviewing that evidence that was before the administrator at the time it rendered its decision. See Post v. Hartford Ins. Co., 501 F.3d 154, 168 (3d Cir. 2007) (abrogated on other grounds); Kosiba v. Merck & Co., 384 F.3d 58, 67 n.5 (3d Cir. 2004); Mitchell v. Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997) (abrogated on other grounds); Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 n.8 (3d Cir. 1993) (abrogated on other grounds). These materials include the evidence that was before the administrator at the time it originally decided the claim as well as any additional evidence that was submitted to the administrator and reviewed during any administrative appeal. Kosiba, 384 F.3d at 67 n.5. When a court reviews a plan’s decision de novo, the court is not limited to the evidence that is contained in the administrative record. Luby v. Teamsters Health, Welfare & Pension Trust Funds, 944 F.2d 1176, 1184–85 (3d Cir. 1991); Bair v. Life Ins. Co. of N. Am., 263 F.R.D. 219, 224 (E.D. Pa. 2009). However, a court is not required to accept additional evidence while conducting a de novo review. If the court believes in its discretion that the record is sufficiently developed, the court may limit 335

its de novo review to the administrative record. Luby, 944 F.2d at 1185; Bair v. Life Ins. Co. of N. Am., No. 09-0549, 2011 WL 4860006 (E.D. Pa. Oct. 13, 2011); Morris v. Paul Revere Ins. Grp., 986 F. Supp. 872, 882–83 (D.N.J. 1997). There are relatively few recent decisions that discuss de novo review as it has been 20 years since the Supreme Court of the United States decided Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), and nearly all plans now include language granting discretionary authority. B. Evidentiary Determinations

Value

of

Social

Security

In disability claims, a participant may have been awarded Social Security disability benefits. In such cases, the participant may ask the court to place extra weight on this evidence. Courts within the Third Circuit have generally agreed that an award of Social Security benefits is not binding on a disability plan. Burk v. Broadspire Servs., Inc., 342 F. App’x 732, 738 (3d Cir. 2009). In Burk, the court stated that the defendant did not abuse its discretion even though it failed to consider the Social Security award. See also Whittaker v. Hartford Life Ins. Co., No. 11-6465, 2012 WL 5902623 (E.D. Pa. Nov. 26, 2012); Colonias v. Hoffman-La Roche, Inc., No. 11-5275, 2012 WL 1067742 (D.N.J. Mar. 29, 2012); Balas v. PNC Fin. Servs. Grp., Inc., No. 2:10-cv-0249, 2012 WL 681711 (W.D. Pa. Feb. 29, 2012); Miller v. Mellon Long Term Disability Plan, No. 09-1166, 2011 WL 4345813 (W.D. Pa. Sept. 15, 2011; Houser v. Alcoa, Inc. Long Term Disability Plan, No. 10-160, 2010 WL 5058310 (W.D. Pa. Dec. 6, 2010); Gill v. Plan Adm’r of the Chubb Grp. 336

of Ins. Co. Long Term Disability Plan, No. 06-2926, 2008 WL 2301578 (D.N.J. May 28, 2008); O’Connell v. Unum Provident, No. 04-3499, 2006 WL 288080 (D.N.J. Feb. 6, 2006); Schreibeis v. Ret. Plan for Emps. of Duquesne Light Co., No. 04-969, 2005 WL 3447919 (W.D. Pa. Dec. 15, 2005); Sollon v. Ohio Cas. Ins. Co., No. 02-1632, 2005 WL 2768948 (W.D. Pa. Oct. 25, 2005); Russell v. Paul Revere Life Ins. Co., 148 F. Supp. 2d 392, 409 (D. Del. 2001), aff’d, 288 F.3d 78 (3d Cir. 2002); Pokol v. E.I. DuPont de Nemours & Co., 963 F. Supp. 1361, 1380 (D.N.J. 1997); Scarinci v. Ciccia, 880 F. Supp. 359, 365 (E.D. Pa. 1995). In Post, the Third Circuit held that when a claimant is awarded Social Security benefits for the same condition on which the disability claim is based, this fact “is relevant though not dispositive.” Post, 501 F.3d at 167. Apart from the argument that an award of Social Security benefits is evidence of a disability, a claimant may also introduce this evidence to support a conflict of interest argument. In Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), the Supreme Court held that the award of Social Security benefits was evidence of a conflict of interest because the defendant encouraged the claimant to apply for Social Security benefits and benefited from the award by offsetting them but failed to reconcile its own denial of benefits with the award. See also Serbanic v. Harleysville Life Ins. Co., 325 F. App’x 86 (3d Cir. 2009). In Weinberger v. Reliance Standard Life Ins. Co., 54 F. App’x 553 (3d Cir. 2002), the Third Circuit criticized the plan for dismissing the Social Security decision as

337

nonbinding without explanation. See also Porter v. Broadspire, 492 F. Supp. 2d 480 (W.D. Pa. 2007); Goletz v. Prudential Ins. Co. of Am., 425 F. Supp. 2d 540 (D. Del. 2006). However, in Wernicki-Stevens v. Reliance Standard Life Ins. Co., 641 F. Supp. 2d 418, 424 (E.D. Pa. 2009), the court concluded that it was not arbitrary and capricious for the defendant not to consider the decision of the Social Security Administration as the decision was six years old and decided on other medical evidence. The Third Circuit has not addressed the issue of which party bears the burden of obtaining the Social Security decision. However, in Pinto v. Reliance Standard Life Insurance Co., 214 F.3d 377, 394 n.8 (3d Cir. 2000) (abrogated on other grounds), the Third Circuit stated that the defendant had no duty to gather additional information on the claim. Instead, the question is whether the decision was arbitrary and capricious based on the available information. C. Other Evidence Issues In Lasser v. Reliance Standard Life Ins. Co., 344 F.3d 381, 385 (3d Cir. 2003), the court noted that the district court held a hearing on the extent of the conflict of interest and its effect on the standard of review. The court did not criticize the use of the hearing to obtain evidence regarding the conflict but did note that the trial court erroneously went further and accepted evidence regarding the claim. However, Lasser predates the Supreme Court decision in Glenn, in which the Court stated that it was neither “necessary [nor] desirable for courts to create special burden-of-proof rules, or other special procedural 338

or evidentiary rules” that focused narrowly on the conflict issue. Glenn, 554 U.S. 105. The Third Circuit has yet to rule on evidentiary issues involving a conflict of interest since Glenn was decided. D. Use of an IME instead of a Paper Review The Third Circuit has held that an adverse benefit determination based on a paper review instead of a physical examination will require courts to “consider the circumstances that surround an administrator ordering a paper review.” Hession v. Prudential Ins. Co. of Am., 307 F. App’x 650 (3d Cir. 2008) (citing Post v. Hartford Ins. Co., 501 F.3d 154 (3d Cir. 2007)). In Hession, the court held that the insurer’s heavy reliance on a paper review, when nearly all treating physicians had examined the claimant, was a procedural irregularity. Id. The Third Circuit has not precluded the use of a paper review by a doctor in lieu of an examination. However, citing to decisions from other circuits, the district court in Klinger v. Verizon Comm., Inc., 2007 WL 853833, at *3 (E.D. Pa. Mar. 14, 2007), stated that when the disability claim involves subjective symptoms the defendant is well advised to conduct an IME. See also Heim v. Life Ins. Co. of N. Am., No. 10-1567, 2012 WL 947137 (E.D. Pa. Mar. 21, 2012) (finding that a claim was improperly denied, in part because of the insurer’s failure to obtain an independent medical examination); Kelly v. Reliance Standard Life Ins. Co., 2011 WL 6756932 (D.N.J. Dec. 22, 2011) (same).

339

Other courts have stated that it is not arbitrary and capricious to deny a claim based on a paper review. Dolfi v. Disability Reins. Mgmt. Servs. Co., 584 F. Supp. 2d 709, 735 (M.D. Pa. 2008); Wernicki-Stevens v. Reliance Standard Life Ins. Co., 641 F. Supp. 2d 418, 424 (E.D. Pa. 2009). Courts have also rejected the argument that a plan’s reliance on a peer review report over an examining physician’s report violates the ERISA regulations. Dinote v. United of Omaha Life Ins. Co., 331 F. Supp. 2d 341, 347–49 (E.D. Pa. 2004); Fahringer v. Paul Revere Ins. Co., 317 F. Supp. 2d 504, 517–18 (D.N.J. 2003); Sweeney v. Standard Ins. Co., 276 F. Supp. 2d 388, 396–97 (E.D. Pa. 2003). E. When May a Plan Require Objective Evidence? In Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3d Cir. 1997), the Third Circuit held that the plan improperly required objective evidence that the claimant suffered from a medical condition for which there is no objective testing. See also Steele v. Boeing Co., 225 F. App’x 71, 74–75 (3d Cir. 2007) (arbitrary and capricious to require objective evidence when the claim was based on a subjective disorder). When objective testing for a condition does exist, a denial of a claim based on subjective complaints due to a lack of objective proof is not arbitrary and capricious. Dolfi v. Disability Reins. Mgmt. Servs., Inc., 584 F. Supp. 2d 709 (M.D. Pa. 2008). See also Zurawel v. Long Term Dis. Income Plan for Choices Eligible Emps. of Johnson & Johnson, No. 07-5973, 2010 WL 3862543, at *17 (D.N.J. Sept. 27, 2010). In Dolfi and Zurawel, the courts allowed the plans to deny claims based on unsupported subjective 340

complaints. Courts have also recognized a distinction between requiring objective evidence that a claimant has a subjective disorder for which no testing exists and requiring objective proof of a claimant’s functional capabilities, which can be measured objectively. Boby v. PNC Bank Corp. & Affiliates LTD Plan, No. 11-848, 2012 WL 3886916 (W.D. Pa. Sept. 6, 2012) (citing Balas v. PNC Fin. Services Group, Inc., No. 2:10-cv-0249, 2012 WL 681711 (W.D. Pa. Feb. 29, 2012); see also WernickiStevens v. Reliance Standard Life Ins. Co., 641 F. Supp. 2d 418 (E.D. Pa. 2009); and Lamanna v. Special Agents Mut. Benefits Ass’n, 546 F. Supp. 2d 261, 296 (W.D. Pa. 2008)). VIII. Procedural Aspects of ERISA Practice A. Methods of Adjudication The Third Circuit has not specifically addressed the issue of whether there exists a preferred procedure to be utilized by district courts when adjudicating ERISA cases. However, from a purely statistical standpoint, summary judgment represents the most often used and upheld procedure, especially under the arbitrary and capricious standard of review. See, e.g., Miller v. Am. Airlines, Inc., 632 F.3d 837, 857 (3d Cir. 2011) (reversing summary judgment in favor of administrator); Baker v. Hartford Life Ins. Co., 440 F. App’x 66, 68 (3d Cir. 2011) (affirming summary judgment in favor of administrator); Evans v. Emp. Benefit Plan, Camp Dressler & McKee, Inc., No. 07-3552, 2009 WL 418628 (3d Cir. Feb. 20, 2009) (affirming summary judgment in favor of administrator); Mallon v. Trust Co. of N.J. Severance Pay 341

Plan, 282 F. App’x 991 (3d Cir. 2008) (affirming summary judgment on behalf of plan administrator applying slightly heightened arbitrary and capricious review); Skretvedt v. E.I. DuPont de Nemours & Co., 268 F.3d 167 (3d Cir. 2001) (reversing grant of summary judgment in favor of plan and remanding for entry of judgment in favor of participant); Orvosh v. Program of Grp. Ins. for Salaried Emps. of Volkswagen of Am., Inc., 222 F.3d 123 (3d Cir. 2000) (affirming summary judgment entered on behalf of plan administrator under arbitrary and capricious standard of review); Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377 (3d Cir. 2000) (reversing entry of summary judgment on behalf of claim administrator because of the existence of issues of material fact); Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3d Cir. 1997) (affirming district court’s grant of summary judgment in favor of plan participant under arbitrary and capricious standard of review); see also Howley v. Mellon Fin. Corp., 625 F.3d 788 (3d Cir. 2010) (affirming summary judgment under abuse of discretion standard); Conrad v. The Wachovia Grp. Long Term Disability Plan, 462 F. App’x 192, 194–95 (3d Cir. 2012) (affirming summary judgment in favor of plan administrator under abuse of discretion standard). B. Reported ERISA Trials Notwithstanding the above, district courts within the Third Circuit have not limited adjudication of ERISA claims to summary judgment motions. See, e.g., Battoni v. IBEW Local Union No. 102 Emp. Pension Plan, 594 F.3d 230 (3d Cir. 2010) (affirming decision on bench trial 342

regarding whether amendment to welfare plan was precluded by anti-cutback provision); In re Joy Global, Inc., 346 B.R. 659 (D. Del. 2006) (conducting bench trial on whether state law causes of action were preempted by ERISA); Laslavic v. Principal Life Ins. Co., No. 11-684, 2013 WL 254450 (W.D. Pa. Jan. 23, 2013) (holding that a bench trial is to be conducted where there are disputed material facts). For example, in Lasser v. Reliance Standard Life Ins. Co., 146 F. Supp. 2d 619 (D.N.J. 2001), aff’d, 344 F.3d 381 (3d Cir. 2003), the district court ultimately held that Reliance Standard’s determination to deny long-term disability benefits was arbitrary and capricious, but only after conducting a bench trial requiring testimony limited to a claims representative. In an earlier reported decision in Lasser denying cross-motions for summary judgment, the court specifically rejected Reliance Standard’s argument that no plenary hearing was required and that summary judgment was appropriate because there was no dispute over the content of the administrative record. Lasser v. Reliance Standard Life Ins. Co., 130 F. Supp. 2d 616, 629 (D. N.J. 2001). The court noted as follows with respect to its consideration of the claim administrator’s testimony at trial concerning the various internal rules and conventions employed in rendering the claim determination: [The administrator’s] understanding and these rules and conventions, while not part of the paper record, nonetheless form part of the matrix within which [he] made the decision affecting Dr. Lasser. Their soundness, vel non, provides important insight into whether and how [he] may have abused his discretion. Evidence of what [the claim administrator] considered 343

and how he considered it is thus part of the “record” in the broader sense. Moreover, [his] testimony regarding the basis for the denial of benefits substantially mirrors the arguments of Reliance’s counsel, as might be expected given that [the administrator] is himself an attorney. On this basis, the Court will consider certain of [the administrator’s] trial testimony in relation to the underlying question of whether the denial of benefits was arbitrary and capricious. Lasser, 146 F. Supp. 2d at 621. In Havens v. Cont’l Cas. Co., No. 04-3268, 2005 WL 1353398 (E.D. Pa. June 6, 2005), the court conducted a bench trial in an ERISA benefit dispute limited to oral argument based on the administrative record. The trial court’s decision in Havens was reversed on appeal by the Third Circuit, which commented on the district court’s procedures but did not expressly endorse or reject the district court’s approach. See Havens v. Cont’l Cas. Co., 186 F. App’x 207 (3d Cir. 2007). It remains to be seen how far the Third Circuit will expand or contract the administrative “matrix” referred to in Lasser, or whether the approach used in Havens will be formally endorsed by the Third Circuit. Whether an ERISA case is adjudicated by way of summary judgment or trial, there is no right to a jury trial under ERISA itself. While ERISA is silent on the issue, virtually every circuit court has held that regardless of whether the action is for benefits under § 502(a)(1)(B) or one for general equitable relief under § 502(a)(3), the relief sought is equitable in nature, thus there is no right to a jury trial under ERISA or under the Seventh 344

Amendment. See Nat’l Sec. Sys., Inc. v. Iola, 700 F.3d 65, 79 (3d Cir. 2012), cert. denied, No. 12-975, 2013 WL 488680 (U.S. Apr. 15, 2013); Cox v. Keystone Carbon Co., 894 F.2d 647 (3d Cir. 1990); Pane v. RCA Corp., 868 F.2d 631 (3d Cir. 1989); Turner v. CF & I Steel Corp., 770 F.2d 43, 47 (3d Cir. 1985); McDonough v. Horizon Blue Cross Blue Shield of N.J., Inc., No. 09-571, 2011 WL 4455994, at *11 (D.N.J. Sept. 23, 2011); Miller v. Mellon Long Term Disability Plan, 721 F. Supp. 2d 415, 447 (W.D. Pa. 2010); Bush v. RMS, Inc., No. 08-1133, 2008 WL 1808307 (D.N.J. Apr. 21, 2008); Smith v. Cont’l Cas. Co., 303 F. Supp. 2d 560, 565 (E.D. Pa. 2002). IX. What Remedies Are Available under ERISA A. Remedies Available under § 502(a)(1)(B) ERISA’s civil enforcement provision identifies not only those who may bring a civil action under ERISA, but also the type of relief that one may seek. A “participant or beneficiary” may bring a civil action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). In Aetna Health, Inc. v. Davila, 542 U.S. 200, 209 (2004), Justice Thomas described this provision as “relatively straightforward,” explaining when “a participant or beneficiary believes that benefits promised to him under the terms of the plan are not provided, he can bring suit seeking provision of those benefits” or “generically to ‘enforce his rights’ under the plan or to clarify any of his rights to future benefits.” 345

Limiting the relief available under ERISA serves to strike a balance “between ensuring fair and prompt enforcement of rights under a plan and the encouragement of the creation of [ERISA] plans.” Sollon v. The Ohio Cas. Ins. Co., 396 F. Supp. 2d 560, 590–91 (W.D. Pa. 2005) (citing Davila, 542 U.S. at 215). In Sollon, the plaintiff sought damages because the value of his pension plan allegedly decreased. When the defendant moved for summary judgment and argued, in part, that the relief sought was outside the scope of available remedies under § 502(a)(1)(B), the court agreed. Id. at 590. B. Remedies Available under § 502(a)(3) In addition to the remedies above, ERISA also allows a “participant, beneficiary or fiduciary” to initiate a civil action “(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” While the remedies available under § 502(a)(1)(B) are available only to participants and beneficiaries, a fiduciary may seek relief under § 502(a)(3). Over the last few years, there has been a flurry of activity regarding participant/ beneficiary, as well as fiduciary efforts to obtain relief under ERISA. C. Remedies after Cigna v. Amara In CIGNA Corp. v. Amara, 131 S. Ct 1866 (2011), employees filed suit after CIGNA changed the terms of its 346

pension plan, allegedly to the detriment of its employees and in violation of ERISA. The Second Circuit Court of Appeals affirmed the district court’s finding that CIGNA’s actions violated ERISA. So finding, the district court reformed the terms of the amended plan, an act that CIGNA argued over-stepped the court’s authority. The Supreme Court agreed that ERISA § 502(a)(1)(B) did not authorize the district court’s actions, but nonetheless explained that the district court acted within the bounds of ERISA § 502(a)(3). The Court explained that the district court’s prescribed remedy was equitable in nature, a remedy that is only available under ERISA § 502(a)(3). There are no Third Circuit cases of note that have addressed the Amara decision. However, two eastern district of Pennsylvannia cases are noteworthy. In Weaver Bros. Ins. Assoc., Inc. v. Braunstein, No. 11-5407, 2013 WL 1195529 (E.D. Pa. Mar. 25, 2013), the plan filed a declaratory judgment action in response to claims that it failed to inform a plan participant of her right to convert life insurance coverage to individual coverage after she no longer met the group plan’s “active work” participation requirement. Upon her death and in response to the declaratory judgment proceedings, the decedent’s beneficiaries filed a counterclaim alleging breach of fiduciary duty and negligence and asking the court to award a “surcharge to cover the loss of life insurance benefits.” Id. at *1. The court in Weaver rejected the plaintiff’s arguments that ERISA’s equitable remedy limitations precluded an award of money damages. Noting that “ERISA is rooted in trust law principles” and that ERISA “plan fiduciaries 347

are treated as trustees, and the terms of the plan are treated as a trust,” the court reasoned that § 502(a)(3) “empowered [courts] to award monetary compensation analogous to the historical relief of ‘surcharge’ to the [claimants] for the [plaintiff’s] breach of fiduciary duty.” Id. at *16. In Zebrowski v. Evonik Degussa Corp. Admin. Comm., No. 10-542, 2012 WL 5881846 (E.D. Pa. Nov. 20, 2012), the Court utilized the Amara analysis to some extent when considering the parties’ opposing views regarding the calculation of prejudgment interest due after the defendant was found liable for pension benefits. The court acknowledged the surcharge remedy as appropriate equitable relief under ERISA but noted that “a fiduciary can be surcharged under § 502(a)(3) only upon a showing of actual harm—proved (under the default rule for civil cases) by a preponderance of the evidence.” Id. at *3 (citations omitted). The court held that each plaintiff demonstrated investment losses, the computation of which the defendants did not dispute. The court held that the defendants should assume that risk, despite the fact that they could only speculate as to how the plaintiffs would have invested the funds because it was the defendant’s actions that made such an inquiry necessary. While the majority of ERISA liability lawsuits involve participants and beneficiaries who seek relief from fiduciaries, in recent years, more fiduciaries have filed claims against participants and beneficiaries under § 502(a)(3) for equitable relief. The United States Supreme Court has most recently addressed the issue of ERISA remedies in US Airways, Inc. v. McCutchen, 133 S. Ct. 348

1537 (2013). McCutchen resolved a circuit split regarding equitable defenses, as opposed to claims, available under ERISA. At issue was the extent of US Airways’ right of reimbursement for medical benefits paid by the plan out of a third party recovery. McCutchen settled the third party claim for $110,000, with his attorney receiving $44,000 in fees. US Airways demanded the full value of the medical expenses paid to McCutchen, which slightly exceeded his portion of the settlement. McCutchen asserted two defenses. He first argued that US Airways was only entitled to reimbursement of that portion of the third party settlement that reimbursed McCutchen for medical expenses and not the portion allocated to pain and suffering and future earnings. The Court disagreed, finding McCutchen’s argument at odds with the clear plan language that entitled US Airways to recover from any money McCutchen recovered from a third party. The Court, however, accepted the second argument, that US Airways should be required to pay a fair percentage of the 40 percent contingency fee paid to McCutchen’s counsel because US Airways recovered from the common fund of settlement proceeds. Because the plan was silent with regard to fees, the Court agreed that the common-fund rule applied and that a portion of the attorney fees should be allocated to US Airways. X. Fiduciary Liability Claims A. Definition of Fiduciary Fiduciary status is broadly construed under ERISA. Smith v. Hartford Ins. Group, 6 F.3d 131, 141 (3d Cir. 1993). 349

As explained by the Third Circuit, the definition of “fiduciary” under ERISA is functional rather than formal. In re Unisys Corp. Retiree Med. Benefits ERISA Litig., 579 F.3d 220, 228 (3d Cir. 2009). Fiduciary status can be obtained by being named as the fiduciary in the instrument establishing the plan, by being named as a fiduciary pursuant to the plan’s procedures, or by falling under the statutory definition of a fiduciary. Glaziers & Glassworkers v. Newbridge Sec., 93 F.3d 1171, 1179 (3d Cir. 1996). According to the Third Circuit, discretionary authority is the “linchpin” of fiduciary status. Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 233 (3d Cir. 1994). See also Ruggieri v. Quaglia, No. 07-756, 2008 WL 5412058 (E.D. Pa. Dec. 24, 2008). This discretionary authority can involve the management of the plan or management of plan assets. Curcio, 33 F.3d at 233; Thomas v. Kimberly-Clark Corp., No. 07-3988, 2008 WL 4977762 (E.D. Pa. Nov. 20, 2008). The exercise of control over the administration of benefits is the “defining feature” of fiduciary status. Evans v. Emp. Benefit Plan, 311 F. App’x 556, 558 (3d Cir. 2009). However, when the party performs only a ministerial role, such as processing claims and calculating the benefits to be paid, it is not a fiduciary. Confer v. Custom Eng’g Co., 952 F.2d 34, 37 (3d Cir. 1991); McCaughan v. Bayer Corp., No. 04-1401, 2007 WL 906267 (W.D. Pa. Mar. 22, 2007) (third-party administrator was not a fiduciary of the plan and not a proper defendant because it did not have final authority over eligibility); Erbe v. Billeter, No. 06-113, 2007 WL 350

2905890 (W.D. Pa. Sept. 28, 2007). The ERISA regulations also identify categories of activities that do not create potential fiduciary liability. 29 C.F.R. § 2509.75-8. Often the plan will name a corporation as the fiduciary. This does not mean that the individual officers of the corporation are fiduciaries who may be liable under ERISA. There can be fiduciary liability only if the officer has been delegated personal discretionary control over the administration of the plan. Curcio, 33 F.3d at 233. Note, however, that in Taylor v. Peoples Natural Gas Co., 49 F.3d 982 (3d Cir. 1995), the court held that when an individual’s activities are related to implementing the policies, procedures, and interpretations made by others, the person cannot be individually liable as a fiduciary of the plan. See also Seborowski v. Pittsburgh Press Co., 188 F.3d 163, 170 (3d Cir. 1999). Not all actions taken by a plan fiduciary are subject to ERISA liability. For example, amendments to a plan by the sponsor are not considered fiduciary acts. Wachtel v. Health Net, Inc., 482 F.3d 225, 235 (3d Cir. 2007); Leuthner v. Blue Cross & Blue Shield of Ne. Pa., 454 F.3d 120, 127 (3d Cir. 2006); Curcio, 33 F.3d at 234 n.10; Bennett v. Conrail Matched Sav. Plan, 168 F.3d 671, 679 (3d Cir. 1999). There is an exception when the amendment violates ERISA. Bennett, 168 F.3d at 679. A plan sponsor may wear two hats. While a plan administrator wearing the hat of plan sponsor may be free to amend the plan, it must be careful in doing so. A plan sponsor who is also the administrator of the plan may not 351

make material misrepresentations, whether intentional or not, regarding modifications to an employee pension or benefit plan since this may result in a breach of fiduciary duty. Curcio, 33 F.3d 226 at 238–39. In Curcio, the Third Circuit held that the plan breached its fiduciary duty when it made a material misrepresentation regarding the coverage available under a group accidental-death plan. Curcio, 33 F.3d at 235. See also Kurz v. Phila. Elec. Co., 994 F.2d 136, 139 (3d Cir. 1993). Also, “[a] plan administrator … acts as a fiduciary when explaining plan benefits and business decisions about plan benefits to its employees.” Adams v. Freedom Forge Corp., 204 F.3d 475, 492 (3d Cir. 2000). B. Definition of Fiduciary Duties The Third Circuit recognizes a claim for breach of fiduciary duty based on a misrepresentation. To prevail on a breach of fiduciary duty claim under ERISA, a plaintiff must establish that “(1) the defendant was acting in a fiduciary capacity; (2) the defendant made affirmative misrepresentations or failed to adequately inform plan participants and beneficiaries; (3) the misrepresentation or inadequate disclosure was material; and (4) the plaintiff detrimentally relied on the misrepresentation or inadequate disclosure.” In re Unisys Corp. Retiree Med. Benefits ERISA Litig., 579 F.3d 200 (3d Cir. 2009). The Supreme Court’s decision in Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), may alter the abovestated requirements in some cases. In Amara, the Court stated that detrimental reliance is not a required element 352

when a court orders reformation of the plan based on fraudulent actions by the fiduciary. Detrimental reliance is also not needed when a court awards a “surcharge” to make a participant whole following a trustee’s breach. In Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292, 300–05 (3d Cir. 2008), the court explained the elements of a claim for equitable estoppel under Third Circuit law. A term in an ERISA plan is material when it establishes a benefit. Id. at 300. A misrepresentation is material when it is likely to mislead an average employee. Id. Reliance is reasonable when the misrepresentation is made by a person with apparent authority to act on behalf of the plan. Id. at 302. Detrimental reliance exists when the reliance on the misrepresentation leads to injury to the participant. Id. at 303. Finally, extraordinary circumstances have been found when there are repeated misrepresentations during the course of dealings, the participants are particularly vulnerable, or the employer was attempting to profit at the expense of the employees. Id. at 304. In Adams v. Freedom Forge Corp., 204 F.3d 475, 492 (3d Cir. 2000), the Third Circuit stated that a beneficiary has a valid claim for breach of fiduciary duty if he can prove that the employer, acting as a fiduciary, made a material representation that would confuse a reasonable beneficiary about his benefits or rights under the plan and the beneficiary acted on the misrepresentation to his detriment. Other Third Circuit decisions discussing misrepresentation include Romero v. Allstate, 404 F.3d 212, 227 (3d Cir. 2005), and Burstein v. Ret. Plan, Allegheny Health, 334 F.3d 365, 387 (3d Cir. 2003). 353

In re Unisys involved claims that Unisys misrepresented that retiree medical benefits were vested and could not be changed despite plan language that reserved the right to modify or terminate those benefits, and that it failed to adequately advise employees of its right to modify or amend the plan. Unisys argued that there were no misrepresentations because it never used the words “guaranteed” or “vested.” The court found that statements that employees would have “free or low-cost medical benefits throughout retirement or for life” created the same impression and were a misrepresentation. The court also rejected the defendant’s argument that the statements were not misrepresentations because Unisys did not intend to change the plan at the time these statements were made. Because the employees presented evidence that they relied on the misrepresentations, the Third Circuit affirmed the decision of the district court in favor of the plaintiffs. The Third Circuit concluded that there was no detrimental reliance in Shook v. Avaya Inc., 625 F.3d 69 (3d Cir. 2010). In Shook, the plaintiffs argued that based on the employer’s alleged misrepresentation to the plan participant regarding his expected pension benefit at retirement, Mr. Shook decided that his wife, who was not a participant of this plan, should retire from her job. The court refused to recognize this as a basis for a breach of fiduciary duty claim because any injury was to a separate plan. The defendant’s one-time mistake as to the amount of available retirement benefits did not give rise to a claim because it did not actually affect the amount of benefits plaintiff received under the plan. 354

In Horvath v. Keystone Health Plan East, 333 F.3d 450 462–63 (3d Cir. 2003), the court rejected the plaintiff’s claim that the plan breached its fiduciary duty by failing to disclose information regarding its physician incentives. The Third Circuit held that there is no duty under ERISA to disclose such information absent a request by the participant or evidence that the plan knew that the participant needed the information in order to make a decision regarding the coverage. Id. A fiduciary also breaches its duties if it engages in the prohibited transactions identified in 29 U.S.C. § 1106. The Third Circuit has interpreted this claim as having five elements: (1) the person or entity is a fiduciary with respect to the plan; (2) the fiduciary causes the plan to engage in the transaction at issue; (3) the transaction uses plan assets; (4) the transaction’s use of the assets is for the benefit of a party in interest; and (5) the fiduciary knows or should know that the third and fourth elements are satisfied. Reich v. Compton, 57 F.3d 270, 279 (3d Cir. 1995). C. Permissibility of Simultaneous Claims under ERISA § 502(a)(1)(B) and § 502(a)(3) In the absence of controlling authority, district courts within the Third Circuit are split on whether to allow claims under ERISA § 502(a)(1)(B) and claims for breach of fiduciary duty under § 502(a)(3) to proceed simultaneously. Miller v. Mellon Long Term Disability Plan, No. 09-1166, 2010 WL 2595568, at *6 (W.D. Pa. June 25, 2010); Cohen v. Prudential Ins. Co., No. 08-5319, 2009 WL 2488911 (E.D. Pa. Aug. 12, 2009). In 355

these cases, the courts concluded that because the claimants had an adequate remedy under § 502(a)(1)(B) to recover benefits, they could not pursue claims for breach of fiduciary duty. The opposite conclusion was reached in Parente v. Bell Atlantic Pa., No. 99-5478, 2000 WL 419981 (E.D. Pa. Apr. 18, 2000), and Tannenbaum v. Unum Life Ins. Co. of Am., No. 03-CV-1410, 2004 WL 1084658, at *4 (E.D. Pa. Feb. 27, 2004). More recently, the Third Circuit addressed the permissibility of simultaneous claims in Engers v. AT&T, Inc., No. 10-2752, 2011 WL 2507089 (3d Cir. June 22, 2011). There, the district court dismissed the claim for breach of fiduciary duty because the claimant was also seeking benefits under § 502(a)(1)(B). The Third Circuit reversed the dismissal of the claim by the district court. Because the plaintiff did not have a valid claim under the terms of the plan under § 502(a)(1)(B), the court stated that a claim could be brought under § 502(a)(3). D. Fiduciary Liability in the Context of Health and Disability Claims Notwithstanding the few decisions above that allowed simultaneous claims under ERISA, the argument can be made that there can be no breach of fiduciary duty claim in connection with health and disability claims. In McMahon v. McDowell, 794 F.2d 100, 109 (3d Cir. 1986), the Third Circuit recognized that a claim for breach of fiduciary duty under ERISA “does not go to any individual plan participant or beneficiary, but inures to the benefit of the plan as a 356

whole.” The court based its holding on the Supreme Court’s decision in Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 141 (1985), which held that the ERISA fiduciary duty requirements are meant to prevent “misuse of plan assets” and to “protect the entire plan, not individual participants.” Since a claim for health or disability benefits does not implicate the misuse of plan assets and is an individual claim, McMahon would appear to preclude such a claim. E. Remedies for Breach of Fiduciary Duty Courts are limited in the remedies that are available for a breach of fiduciary duty under ERISA. Relief is available under § 502(a)(3) only if it is equitable rather than legal and there is no alternative remedy available under ERISA. Sereboff v. Mid Atl. Med. Servs., 547 U.S. 356 (2006); Ream v. Frey, 107 F.3d 147, 152 (3d Cir. 1997). However, in Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), the Supreme Court expanded the type of relief that can be considered “equitable” under certain circumstances. The Supreme Court in Amara held that a court could award a “surcharge” to remedy a breach of fiduciary duty. This surcharge consists of monetary compensation to remedy a loss resulting from a breach of duty or to prevent the fiduciary from being unjustly enriched. According to the Court, a “surcharge” is a traditional form of relief available in equity. The Court also recognized reformation of plan documents as a remedy to prevent fraud based on false or misleading information provided by the fiduciary as well as a claim for estoppel to prevent 357

the plan from altering its terms. Id. at 1881–82. In the context of employee welfare plans, plaintiffs still face the hurdle of strict tracing if they seek a surcharge. In Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292 (3d Cir. 2008), the court concluded that an injunction to calculate future pension benefits using a different service date was equitable relief that is permissible. Id. The Third Circuit also concluded that restitution for the improper low payments that the participant already received was also an equitable remedy. Id. at 311. Two decisions from the Third Circuit allowed actions to recover interest on delayed payment of benefits based on breach of fiduciary duty. Fotta v. Trs. of United Mine Workers of Am., 319 F.3d 612 (3d Cir.), cert. denied, 540 U.S. 982 (2003), and Skretvedt v. E.I. DuPont de Nemours & Co., 372 F.3d 193 (3d Cir. 2004) (abrogated on other grounds). Interest is payable only if the delay is the result of a violation of ERISA or the terms of a plan. Fotta, 319 F.3d at 617. In Curcio, the court awarded as a remedy for the plan’s breach of fiduciary duty the benefits that were claimed under the plan. In Bixler v. Cent. Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir. 1993), the plaintiff claimed that the plan made material misrepresentations that led her not to elect COBRA coverage. The court recognized that under § 502(a)(3) of ERISA it could award “other equitable relief” based on a breach of fiduciary duty. According to the court, equitable relief includes an award of benefits based on a breach of fiduciary duty. The court further recognized not only that it is a breach of fiduciary 358

duty to provide misinformation, but also that there is an affirmative duty to provide information to a claimant when the fiduciary knows that the silence might be harmful. Bixler, 12 F.3d at 1300. F. Contribution and Indemnity Claims among Fiduciaries There is disagreement among the various circuit and district courts as to whether ERISA permits an action for contribution and indemnity against a co-fiduciary. The Third Circuit has not provided an answer to this question. In Ruggieri v. Quaglia, No. 07-756, 2008 WL 5412058 (E.D. Pa. Dec. 24, 2008), the court identified cases on both sides but did not need to reach the issue because the plaintiff did not allege that the defendant knowingly participated in a breach of his fiduciary duties. However, other district courts within the Third Circuit have routinely recognized such claims. Pressman-Gutman Co. v. First Union Nat’l Bank, 2004 WL 1091048 (E.D. Pa. 2004); Site-Blauvelt Eng’rs, Inc. v. First Union Corp., 153 F. Supp. 2d 707, 709–10 (E.D. Pa. 2001); Green v. William Mason & Co., 976 F. Supp. 298, 300–01 (D.N.J. 1997); Cohen v. Baker, 845 F. Supp. 289, 291 (E.D. Pa. 1994). These courts recognized that even though ERISA does not explicitly provide for a right to contribution or indemnity among fiduciaries, this is a remedy that traditionally exists under the law of trusts. As stated by the Supreme Court in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110 (1989), when developing the federal common law of ERISA, federal courts are to utilize traditional trust-law principles. Accordingly, these

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courts have held that claims for contribution and indemnity are not preempted. G. ERISA Claims against Nonfiduciaries In general, ERISA liability does not attach to a nonfiduciary. However, the Third Circuit has recognized that a nonfiduciary is a proper party in an action under ERISA when it is a party to a transaction that is prohibited under the statute. Reich v. Compton, 57 F.3d 270, 287 (3d Cir. 1995); Marks v. Indep. Blue Cross, 71 F. Supp. 2d 432, 437 (E.D. Pa. 1999). After Reich was decided, the Supreme Court issued its decision in Harris Trust & Savings Bank v. Salomon Smith Barney, Inc., 530 U.S. 238 (2000), holding that an action for equitable relief can be brought under 29 U.S.C. § 1132(a)(3) against a nonfiduciary only when the nonfiduciary was the recipient of ill-gotten trust assets and knew or should have known of the prohibited transaction. Therefore, if the claim is brought under ERISA § 502(a)(1)(B), a nonfiduciary is not a proper party. Tylwalk v. Prudential Ins. Co., No. 04-222, 2006 WL 2815806 (W.D. Pa. Sept. 28, 2006), rev’d on other grounds, 257 F. App’x 568 (3d Cir. 2007); McLendon v. Cont’l Group, Inc., No. 83-1340, 1986 WL 11789 (D.N.J. 1986). In Kollman v. Hewitt Assocs., LLC, 487 F.3d 139 (3d Cir. 2007), the plaintiff, an employee of Rohm & Haas, was provided incorrect information on the company’s website regarding the amount of his retirement pension. Hewitt maintained the website for the employer and provided other administrative services for the plan. The

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court concluded that Kollman’s professional malpractice claim was preempted by ERISA, even though Hewitt was not a fiduciary. The Third Circuit reasoned that the claim went “to the essence of the function of an ERISA plan—the calculation and payment of the benefit due to a plan participant.” Kollman, 487 F.3d at 150. XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees ERISA’s fee provision states: “In any action under this subchapter … by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). In Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010), the Supreme Court held that this provision does not require a claimant to be a “prevailing party” to recover fees. Rather, a claimant must show “some success on the merits.” Id. at 2157. “Trivial success on the merits” or a “purely procedural” victory is insufficient. Id. In Hardt, the Court held that the district court was within its discretion in awarding fees to the claimant after the claimant “persuaded the District Court to find that ‘the plan administrator has failed to comply with the ERISA guidelines’ and that she ‘did not get the kind of review to which she was entitled under applicable law.’” Id. The district court did not award the claimant benefits, but rather remanded the decision to the insurance company for further consideration in light of its findings. Id. at 2158–59. After further consideration, the insurance company reinstated Hardt’s benefits. Id. at 2159. The Supreme Court held that such a result “achieved far more 361

than ‘trivial success on the merits’ or a ‘purely procedural victory.’” Id. In Zacharkiw v. Prudential Ins. Co. of Am., No. 10-cv-0639, 2012 WL 551639 (E.D. Pa. Feb. 21, 2012), where the claimant filed a civil action two weeks after filing an administrative appeal, the court held that the claim fiduciary’s voluntarily reinstatement of benefits as a result of the administrative appeal, without any significant court involvement, did not entitle the claimant to attorneys’ fees because the claimant had not achieved “some success on the merits.” The court reasoned: Other than granting the parties’ joint request to stay this litigation pending Zacharkiw’s administrative appeal, we have had little involvement in this matter. We did not make any findings as to whether Prudential improperly terminated Zacharkiw’s LTD benefits in the first place. We did not make any findings as to whether Prudential improperly denied Zacharkiw’s first administrative appeal. We did not decide the exhaustion question. We did not rule on any summary judgment motions, as the parties submitted none […] Finally, we did not remand this matter to Prudential for further consideration of … the old record. As such, our actions in this case bear no resemblance to the active role played by the district court judge in Hardt, who found ‘compelling evidence’ of Ms. Hardt’s disability and directed the insurance company to reevaluate her claim or face an adverse court ruling. In short, the parties here resolved this dispute among themselves at the administrative level, not in this Court. Additionally, and importantly, based 362

on the record before us, we believe that Zacharkiw’s new evidence of disability, not this lawsuit, caused Prudential to change course and reinstate Zacharkiw’s benefits. Id. at *4. See also Staats v. Procter & Gamble Long Term Dis. Allowance Plan, No. 11-1320, 2012 WL 3705000 (W.D. Pa. Aug. 27, 2012) (finding plaintiff did not achieve “some success on the merits,” and was not entitled to attorneys’ fees where administrator voluntarily awarded benefits following review of additional records during stay of the litigation); Lemons v. Reliance Standard Life Ins. Co., No. 05-2378, 2011 WL 4017988, at *4 (E.D. Pa. Sept. 9, 2011) (refusing to award fees after the defendant voluntarily reinstated benefits after plaintiff filed a motion for summary judgment); Templin v. Independence Blue Cross, No. 09-4092, 2011 WL 3664427, at *6 (E.D. Pa. Aug. 19, 2011) (where the Court denied a motion for attorney’s fees under ERISA, stating: “although Plaintiffs received that which they sought as relief in this case, … [it] was provided by Defendants”). The Third Circuit has enumerated five factors that must be considered when considering ERISA fee applications: (1) the offending parties’ culpability or bad faith; (2) the ability of the offending parties to satisfy an award of attorneys’ fees; (3) the deterrent effect of an award of attorneys’ fees against the offending parties; (4) the benefit conferred on members of the pension plan as a whole; and (5) the relative merits of the parties’ position. Fama v. Design Assist. Corp., No. 12-2474, 2013 WL 1443463 (3d Cir. Apr. 10, 2013); Anthuis v. Colt Indus. Operating Corp., 971 F.2d 999, 1011 (3d Cir. 1992); 363

Ursic v. Bethlehem Mines, 719 F.2d 670, 673 (3d Cir. 1983); Hann v. Reliance Standard Life Ins. Co., No. 09-cv-2496, 2011 WL 1344502 (M.D. Pa. Apr. 8, 2011); Killian v. Johnson & Johnson, No. 07-4902, 2009 WL 537666 (D.N.J. June 23, 2009). In Hardt, the Supreme Court recognized that the determination of whether a party had shown “some degree of success on the merits” was only the first step in the required analysis and that a court may consider factors such as those identified in Ursic once a claimant has satisfied that initial requirement. Hardt, 130 S. Ct. at 2158 n.8. “[T]he Ursic factors are not requirements in the sense that a party must demonstrate all of them in order to warrant an award of attorney’s fees, but rather they are elements a court must consider in exercising its discretion.” In re Unisys Corp. Retiree Med. Benefits ERISA Litig., 579 F.3d 220, 239 (3d Cir. 2009) (quoting Fields v. Thompson Printing Co., 363 F.3d 259, 275 (3d Cir. 2004)). When deciding an ERISA fee application, a district court must articulate its analysis and conclusions with respect to each of the five Ursic factors. Fields, 363 F.3d at 275 (it is mandatory for a district court to consider and analyze all five Ursic factors); Koenig v. Auto. Data Processing, 156 F. App’x 461 (3d Cir. 2005) (vacating and remanding when district court did not consider the five Ursic factors despite the failure of plaintiff’s counsel to adhere to local civil rules relating to fee applications); Tomasko v. Ira H. Weinstock, P.C., 80 F. App’x 779 (3d Cir. 2003) (case remanded to district court for failure to consider Ursic factors and provide sufficient analysis). 364

There is no presumption within the Third Circuit that a successful plaintiff in an ERISA suit should receive an award of attorneys’ fees. See Ellison v. Shenango, Inc. Pension Bd., 956 F.2d 1268, 1273 (3d Cir. 1992). It is incumbent on the party seeking fees to establish the appropriateness of such an award. Id. at 1268. The awarding of attorneys’ fees is discretionary and “a successful plaintiff in an ERISA litigation is not entitled to a fee award solely because he prevails on his case.” Tomasko v. Ira H. Weinstock, P.C., 357 F. App’x 472, 476 (3d Cir. 2009). The Third Circuit has recognized that “a party is not culpable merely because it has taken a position that did not prevail in litigation.” McPherson v. Emps.’ Pension Plan of Am. Re-Ins. Co., 33 F.3d 253 (3d Cir. 1994). Rather, culpable conduct is commonly understood to mean conduct that is [b]lamable; censurable; at fault; involving a breach of a legal duty or the commission of a fault … such conduct normally involves something more than simple negligence … [on the other hand, it] implies that the act or conduct spoken of is reprehensible or wrong, but not that it involves malice or guilty purpose. Id. at 257 (quotations omitted); see also Skretvedt v. E.I. Du Pont de Nemours & Co., 262 F. Supp. 2d 366, 370 (D. Del. 2003) (defendant’s failure to provide information necessary for plaintiff to proceed with his claim, while not bad-faith conduct, was deemed improper and culpable conduct). In all cases, a prevailing party may not seek or obtain attorneys’ fees incurred during the pre-suit administrative process. See Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300 (3d Cir. 2008).

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B. Fees Awarded to Plan Fiduciaries A prevailing defendant may recover attorneys’ fees. See Monkelis v. Mobay Chem., 827 F.2d 935 (3d Cir. 1987). However, the courts that have awarded fees to a prevailing defendant have generally done so only when an action is completely lacking in merit. See, e.g., id. (affirming award of fees to prevailing defendant under 29 U.S.C. § 1132(g)(1) when plaintiff’s claim for wrongful termination of benefits was barred by the statute of limitations); Loving v. Pirelli Cable Corp., 11 F. Supp. 2d 480 (E.D. Pa. 1998) (awarding attorneys’ fees to prevailing defendant when participant’s claim for benefits was barred by res judicata); but cf. Veneziano v. Long Island Pipe Fabrication & Supply Corp., 238 F. Supp. 2d 683 (D.N.J. 2002), aff’d, 79 F. App’x 506 (3d Cir. 2003) (fees awarded when claim under the New Jersey Law against Discrimination (N.J. Stat. Ann. § 10:5-2.1) was deemed lacking in merit); Feinstein v. Saint Luke’s Hosp., No. 10-4050, 2012 WL 4364641 (E.D. Pa. Sept. 25, 2012) (awarding fees to defendant after concluding that the claims were “wholly unsupported by the facts” and made in bad faith). C. Calculation of Attorneys’ Fees The Third Circuit prohibits courts from granting contingency-fee enhancements in cases involving federal fee-shifting statutes, including ERISA. See, e.g., Brytus v. Spang & Co., 203 F.3d 238 (3d Cir. 2000). Moreover, the party seeking attorneys’ fees bears the burden of proving that the request for attorneys’ fees is reasonable. To meet this burden, the fee petitioner must submit evidence 366

supporting the hours worked and the rates claimed. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). It is the initial burden of the party requesting fees to “produce sufficient evidence of what constitutes a reasonable market rate for the essential character and complexity of the legal services rendered….” Chaaban v. Criscito, No. 08-1567, 2013 WL 1737689 (D.N.J. Apr. 3, 2013). In satisfying a prima facie case of reasonable fees, attorneys may not rest on their own affidavits. Id. In Killian, the district judge determined that attorneys’ fees billed for 62.2 hours to prepare a position paper in anticipation of settlement discussions was excessive, redundant, and unnecessary based upon the court’s experience, plaintiff’s counsel’s alleged experience, and the court’s review of the record and the filed documents. Killian, 2009 WL 537666, at *8. “[G]iven the issues involved in the case and the alleged expertise of Plaintiff’s counsel,” the judge determined that 10 hours should have been expended on such an effort and permitted recovery of fees for that amount of time. Id. XII. ERISA Regulations The ERISA statute and its regulations contain claim procedures that must be followed when a claim is denied. See 29 U.S.C. § 1133; 29 C.F.R. § 2560.503-1. These require the plan administrator or fiduciary to provide the claimant with adequate written notice identifying the specific reasons for the claim denial and to offer the claimant a “full and fair review” of the adverse decision.

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Id. See also Skretvedt v. E.I. DuPont de Nemours & Co., 372 F.3d 193 (3d Cir. 2004) (abrogated on other grounds). The purpose of the claim procedures is to ensure that a claimant knows the basis for the denial so that additional evidence may be submitted in support of the claim during the appeal and also so that courts reviewing a denial of benefits can perform “an informed and meaningful review” of the decision. See also Grossmuller v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 715 F.3d 853, 857–58 (3d Cir. 1983). Strict compliance with the ERISA regulations is not required. As long as the plan “substantially complies” with the regulations, it is sufficient. See Russell v. Paul Revere Life Ins. Co., 148 F. Supp. 2d 392, 410 (D. Del. 2001). In Miller v. Am. Airlines, Inc., 632 F.3d 837, 851 (3d Cir. 2011), the court stated that a plan’s compliance with the ERISA regulations is “probative of whether the decision to deny benefits was arbitrary and capricious.” Looking to the denial letter in that case, the court concluded that it was deficient because it did not mention the claimant’s specific diagnoses, the precise information that was lacking and did not provide any instructions on how the claimant could achieve a favorable determination. In contrast, in Houser v. Alcoa, Inc., No. 10-160, 2010 WL 5058310, at *10 (W.D. Pa. Dec. 6, 2010), the letter was held to be adequate where it quoted specific plan provisions on which the denial was based, informed plaintiff she could submit additional medical or vocational information and explained her appeal rights.

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The participant in Mazur v. Hartford Life & Acc. Co., No. 06-1045, 2007 WL 4233400 (W.D. Pa. Nov. 28, 2007), argued that the defendant failed to provide a full and fair review because the denial letter did not explain the materials needed to establish the claim. The court rejected plaintiff’s position because the participant was represented by counsel, the defendant provided access to the claim file, and the defendant told him that he could submit additional information in support of the claim. According to the court, “at the very least” the defendant substantially complied with ERISA. See also Kao v. Aetna Life Ins. Co., 647 F. Supp. 2d 397, 411 (D.N.J. 2009). A district court concluded that the plan failed to follow the ERISA claim procedures in Fultz v. Liberty Life Assur. Co., No. 05-1542, 2008 WL 1773941 (W.D. Pa. Apr. 16, 2008). In Fultz, the claim was referred to a special appeal review committee that was not identified in any of the plan procedures and there was no explanation as to which claims were selected for inclusion in the special program. The district court in Schreibeis v. Retirement Plan, No. 04-969, 2005 WL 3447919 (W.D. Pa. Dec. 15, 2005), concluded that the plan violated the regulation in two ways: (1) the court found that the claimant did not receive a full and fair review because the appeal was decided prior to the plan’s receipt of a medical report that was promised by the claimant, and (2) the denial letter was deficient because it did not identify a doctor’s report that was relied on in reaching the decision.

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In McElroy v. SmithKline Beecham Health & Welfare Benefits Trust Plan, 340 F.3d 139 (3d Cir. 2003), the plaintiff claimed that the plan violated ERISA in the manner in which it reviewed the appeal. At issue was the plan’s interpretation of an offset provision. The plaintiff asserted that he did not receive a full and fair review because his claim file was not submitted to the plan administrator when it made its decision. The court disagreed, noting that only those documents “submitted by the claimant” must be reviewed and the claimant never submitted his claim file to the plan administrator. Id. at 144. The regulation requires a plan to provide certain documents when requested by a claimant. The Third Circuit has held that the failure to produce these documents cannot give rise to a claim for statutory penalties under 29 U.S.C. § 1132(c). Groves v. Modified Ret. Plan, 803 F.2d 109, 117–18 (3d Cir. 1986); Syed v. Hercules Inc., 214 F.3d 155, 162 (3d Cir. 2000). The statutory penalty provision applies only to requests for those documents required under the statute, not its regulations. Id. Generally, when there has been a violation of the ERISA regulations, the remedy is to remand the claim to the plan for a “full and fair review.” Syed, 214 F.3d at 162; Russell, 148 F. Supp. 2d at 410. However, when the evidence shows that the procedural violation was so significant that it tainted the review process, a court may find that the denial was arbitrary and capricious. Scott v. Hartford Life & Acc. Ins. Co., No. 03-3696, 2004 WL 1090994 (E.D. Pa. May 13, 2004); Syed, 214 F.3d at 162; 370

Doyle v. Nationwide Ins. Co., 240 F. Supp. 2d 328, 344 (E.D. Pa. 2003). Recently, the Third Circuit distinguished its decision in Syed with respect to when a remand is appropriate. See Miller v. Am. Airlines, Inc., 632 F.3d 837, 856 (3d Cir. 2011). According to the court, it is important to return the parties to the “status quo” prior to the wrongful termination of benefits. Therefore, if the violation occurred prior to any award of benefits to the claimant, remand is appropriate. However, if the procedural violation occurred during a denial of benefits previously awarded, the remedy is to reinstate benefits. Id. XIII. Cases Interpreting ERISA Statutes of Limitation It has been expressly and repeatedly recognized both by the Third Circuit and district courts within the Third Circuit that if a plan contains a period of limitations shorter than the limitations period applicable to the analogous state law claim, that period presumptively controls and will be enforced, provided it is not manifestly unreasonable. See, e.g., Koert v. GE Grp. Life Assurance Co., 231 F. App’x 117 (3d Cir. 2007). The Third Circuit has not expressly stated what makes a contractual period unreasonable in the ERISA context, but has found as little as a three-year limitations period reasonable. See Klimowicz v. Unum Life Ins. Co. of Am., 296 F. App’x 248 (3d Cir. 2008); Fontana v. Div. Grp. Adm’r, Inc., 67 F. App’x 722 (3d Cir. 2003); Hosp. Support Servs., Ltd. v. Kemper Grp., Inc., 889 F.2d 1311 (3d Cir. 1989); Bayer v. Fluor Corp., 682 F. Supp. 2d 484 (E.D. Pa. 2010); Grasselino v. First Unum Life Ins. Co., 371

No. 08-cv-635, 2008 WL 5416403 (D.N.J. Dec. 22, 2008); Gill v. Plan Adm’r of Chubb Grp. of Ins. Co. Long Term Disability, No. 06-2926, 2008 WL 2301578 (D.N.J. May 29, 2008); Taylor v. Unum Life Ins. Co. of Am., No. 2:07-cv-724, 2008 WL 144204 (W.D. Pa. Jan. 11, 2008). The District Court of New Jersey has held that a two-year limitation period is reasonable. Stallings v. IBM Corp., No. 08-3121, 2009 WL 2905471 (D.N.J. Sept. 8, 2009) (applying two-year period of limitations set forth in the plan). Where the ERISA statute or the plan itself does not set forth a period of limitations, the Third Circuit “borrows” the period of limitations applicable to the most analogous state law claim. See Romero v. Allstate Corp., 404 F.3d 212 (3d Cir. 2005); Anderson v. Consol. Rail Corp., 297 F.3d 242 (3d Cir. 2002); Gluck v. Unisys Corp., 960 F.2d 1168 (3d Cir. 1992); Ingraham v. Prudential Ins. Co. of Am., No. 12-682, 2013 WL 1909304 (W.D. Pa. Mar. 7, 2013); Gregorovich v. E.I. DuPont de Nemours, 602 F. Supp. 2d 511 (D. Del. 2009). The Third Circuit has held that Pennsylvania’s two-year statute of limitations for wrongful discharge is most analogous to claims for wrongful termination of benefits brought pursuant to 29 U.S.C. § 1140. Anderson, 297 F.3d at 252. Rather, in Pennsylvania, with respect to a suit for benefits under 29 U.S.C. § 1132(a)(1)(B), the Pennsylvania four-year contract statute of limitation has been held to be applicable. See, e.g., Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300 (3d Cir. 2008); Thomas v. SmithKline Beecham Corp., 297 F. Supp. 2d 773 (E.D. Pa. 2003) (citing 42 Pa. Cons. Stat. § 5525(8)). In contrast, in New Jersey, the six-year period of limitations 372

applicable to a state law claim for breach of contract applies to a suit for benefits. See Klimowicz v. Unum Life Ins. Co. of Am., 296 F. App’x 248 (3d Cir. 2008); Connell v. Trs. of the Pension Fund of the Union Workers Dist. Council of N. N.J., 118 F.3d 154 (3d Cir. 1997); Dupont v. Sklarsky, No. 08-1724, 2009 WL 776947 (D.N.J. Mar. 20, 2009) (citing, among other authorities, N.J. Stat. Ann. § 2A:14-1). An interesting question is when the cause of action accrues. In the context of claims for breach of fiduciary duty, the Third Circuit has adopted the discovery rule with respect to when a cause of action accrues, meaning that a cause of action accrues when the claimant knew or should have known the claim existed. See Gluck, 960 F.2d 1168. The Third Circuit has adopted a twoprong test for actual knowledge that requires a showing that (1) plaintiff actually knew the breaching events occurred; and (2) the events support a claim of breach of fiduciary duty or violation of ERISA. See Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494 (3d Cir. 2006); Montrose Med. Grp. Participating Sav. Plan v. Bulger, 243 F.3d 773 (3d Cir. 2001); Kurz v. Phila. Elec. Co., 96 F.3d 1544 (3d Cir. 1996). With respect to the accrual date of actions seeking benefits, the Third Circuit has adopted the “clear repudiation rule.” See Miller v. Fortis Benefits Ins. Co., 475 F.3d 516 (3d Cir. 2007). Under the clear repudiation rule, a cause of action accrues when there has been a clear repudiation by the fiduciary that has been made known to the beneficiary, regardless of whether there has been a formal denial of benefits. See Id. at 520–21; Tinley v. 373

Gannett Co., 55 F. App’x 74 (3d Cir. 2003). For example, in Miller, the Third Circuit held that the plaintiff’s cause of action accrued when his claim was approved and he began receiving benefits, as opposed to when he purportedly discovered that benefits were incorrectly calculated 16 years later and the insurer denied his claim for additional benefits. See also Lutz v. Philips Elecs. N. Am. Corp., 347 F. App’x 773 (3d Cir. 2009) (unpublished) (holding that an ERISA claim accrued “when the [plaintiffs] began their ‘repeated’ complaints about the incorrect calculation of benefits”). XIV. Subrogation Litigation In Great-West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204 (2002), the Supreme Court narrowly construed what may be considered “equitable relief” under ERISA § 502(a)(3). Knudson involved a claim for reimbursement by the plan for medical expenses. The plan sought reimbursement from the proceeds of a settlement from a third-party action. The Court held that ERISA does not allow the imposition of personal liability for the contractual obligation to pay money. The Court further held that the claim, which sought any funds rather than funds in the defendant’s possession that in good conscience belonged to the plan, was an impermissible claim for legal relief rather than equitable relief. Following Knudson, there were conflicting decisions as to whether an equitable action for reimbursement could ever be brought. Therefore, the Supreme Court again addressed the subject of reimbursement actions under ERISA in Sereboff v. Mid Atlantic Medical Services, Inc., 374

547 U.S. 356 (2006). Because reimbursement was claimed under a contract, the Court held that an equitable lien was created and a constructive trust was imposed on the funds as soon as the funds were received by the plan participant. Also, strict tracing of the funds was not required. The question of equitable defenses to claims for equitable relief was addressed by the Supreme Court in US Airways, Inc. v. McCutchen, 133 S. Ct. 1537 (2013), a case which originated in the Western District of Pennsylvania. McCutchen received $66,866 from the plan for medical expenses incurred in a motor vehicle accident. The terms of the plan required McCutchen to reimburse it “for amounts paid for claims out of any monies recovered from [the] third party, including, but not limited to, your own insurance company as the result of judgment, settlement, or otherwise.” McCutchen settled his third party claim for $110,000, from which his attorney retained a 40 percent contingency fee. After deducting his attorney’s fees, McCutchen only recovered $66,000 but US Airways demanded $66,866 in reimbursement. US Airways filed suit under § 502(a)(3), seeking full reimbursement of the funds paid by the plan. McCutchen argued that US Airways was not entitled to reimbursement for that portion of the third party settlement allocated for payment of pain and suffering and future earnings. McCutchen also argued that any amount due to US Airways should be reduced under the common fund doctrine to account for the attorney’s fees incurred to obtain the third party recovery which benefited the plan.

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The Court rejected McCutchen’s first argument, holding that the plain language of the plan must be followed and it prevented the application of the double recovery rule. The plan was silent, however, as to whether the plan’s right of recovery included that portion of the settlement attributable to attorney’s fees to recover the funds. Absent clear plan language, the Court held that the common fund rule was a proper equitable defense. Reimbursement actions are not limited to subrogation claims involving health plans. A disability claim may be overpaid following the claimant’s receipt of other benefits that are subject to offset. See GE Group Life Assur. Co. v. Turner, No. 05-342, 2009 WL 150944 (W.D. Pa. Jan. 20, 2009). In Turner, the claimant received a retroactive award of Social Security benefits. These funds were to be deducted from the benefits paid by the plan. The plan insurer filed suit when the participant refused to refund the overpayment. The court held that the claim seeking an equitable lien was properly brought. The court also recognized that “[i]f beneficiaries were allowed to retain double payment or overpayment of benefits, the actuarial assumptions and financial models undergirding insurance plans would collapse, as would all insurance companies. Individuals would be left without methods to manage risk.” 2009 WL 150944, at *7. The district court in Sivalingam v. Unum Life Ins. Co. of Am., No. 09-4702, 2011 WL 1584055 (E.D. Pa. Apr. 26, 2011), concluded that the defendant did not have a valid claim for reimbursement based on Sereboff. Unum was seeking to recover $1,430,128.42 in benefits it allegedly overpaid the claimant between 1999 and 2008. 376

The plan required the claimant to reimburse Unum if it overpaid benefits based on his receipt of benefits under the Social Security Act; however, it was silent as to Unum’s right to reimbursement for other overpayments. Accordingly, the court concluded that there was no lien by agreement and that strict tracing of funds was required. XV. Miscellaneous An issue uniquely handled by the Third Circuit is the application of the “fiduciary exception” to the attorneyclient privilege in the context of an ERISA insurer. In Wachtel v. Health Net, 482 F.3d 225 (3d Cir. 2007), the Third Circuit considered, as a matter of first impression in the Circuit, whether the fiduciary exception should require an ERISA fiduciary—specifically, an insurer that sells insurance contracts to ERISA plans—to disclose to plan beneficiaries communications the insurer had with its own retained counsel. See id. at 227. The Third Circuit determined, based primarily on two principles, that an insurer who sells insurance contracts to ERISA plans is not precluded from asserting the attorney-client privilege against the beneficiaries of the plans that it sold and manages. Id. In the Third Circuit’s view, the beneficiaries of such plans were not truly the client of the counsel retained by the insurer/fiduciary, and there was no “trustee-like disclosure obligation[]” on an insurer who was simultaneously excluded from the statutory requirement that assets of an insurance company be held in trust. Id. at 235–37. Finally, the Third Circuit noted that ERISA is a complex statutory scheme and found that insurer fiduciaries should not be precluded from seeking 377

confidential legal advice when dealing in such a complicated area of the law. See id. Relying on Wachtel, the Western District of Pennsylvania in Cottillion v. United Refining Co., 279 F.R.D. 290, 299 (W.D. Pa. 2011), held that the liability limitation to the fiduciary exception to the attorney-client privilege applied to protect ERISA fiduciaries’ communications with counsel after fiduciaries attempted to recover overpayments from the beneficiary to the extent that those communications concerned strategy or legal advice related to potential litigation.

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CHAPTER 4 Fourth Circuit BRYAN D. BOLTON GEORGE K. EVANS, JR. MARIANNA M. JASIUKAITIS E. FORD STEPHENS ERNA A. P. WOMBLE I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan ERISA is a comprehensive statute designed to promote the interests of employees and their beneficiaries by regulating the creation and administration of employee benefit plans. For this reason, the Fourth Circuit explained, “inquiry into the existence of an ‘employee benefit plan’ must begin … with the language of the statute.” Madonia v. Blue Cross & Blue Shield of Va., 11 F.3d 444, 446 (4th Cir. 1993). ERISA defines an employee benefit plan as either an “employee pension benefit plan” or an “employee welfare benefit plan.” 29 U.S.C. § 1002(3). ERISA further defines an “employee welfare benefit plan” as:

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any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employer organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness…. Id. § 1002(1). “Ultimately, the existence of an ERISA plan is a question of fact, to be answered in light of all the surrounding facts and circumstances from the point of view of a reasonable person.” Provident Life & Accid. Ins. Co. v. Cohen, 137 F. Supp. 2d 631, 634 (D. Md. 2001) (citations omitted). In Madonia, the Fourth Circuit adopted the Eleventh Circuit’s Donovan test to determine whether an employee benefit plan exists. 11 F.3d at 446 (citations omitted). The Donovan test divides the statutory definition of “employee benefit plan” into the following five elements: “(1) a plan, fund, or program (2) established or maintained (3) by an employer … (4) for the purpose of providing medical, surgical, hospital care or sickness … benefits (5) to participants or their beneficiaries.” Id. (quoting Donovan v. Dillingham, 688 F.2d 1367, 1371 (11th Cir. 1982) (en banc)). B. Definition of “Employee” for ERISA Purposes In order to be a “participant” in an employee benefit plan, an individual must be an employee or former employee of 380

an employer. 29 U.S.C. § 1002(7). See West v. Murphy, 99 F.3d 166, 169–70 (4th Cir. 1996) (refusing to apply Internal Revenue Code section to vary ERISA’s definition of “participant” or its requirement of employer-employee relationship). ERISA defines “employee” as “any individual employed by an employer.” 29 U.S.C. § 1002(6). This statutory definition, as the Supreme Court observed, “is completely circular and explains nothing.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992). The Supreme Court, therefore, adopted the following non-exhaustive, multifactor “common-law test for determining who qualifies as [an] ‘employee’ under ERISA:” We consider the hiring party’s right to control the manner and means by which the product is accomplished. Among other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. Id. at 323–24 (citations omitted). The Supreme Court also stated “all incidents of the relationship must be assessed and weighed with no one factor being decisive.” Id. at 324 (citations and quotations omitted). 381

Pursuant to statutory mandate, the Secretary of Labor promulgated regulations clarifying these definitions and filling in statutory gaps. The regulations clarify that an “employee benefit plan” does not include any plan, fund, or program where no “employees” are participants. 29 C.F.R. § 2510.3-3(b). The regulations further state: For the purposes of this section: (1) An individual and his or her spouse shall not be deemed to be employees with respect to a trade or business, whether incorporated or unincorporated, which is wholly owned by the individual and his or her spouse, and (2) A Partner in a partnership and his or her spouse shall not be deemed to be employees with respect to the partnership. 29 C.F.R. § 2510.3-3(c). C. Interpretation of Safe Harbor Regulation “The Department of Labor has issued a regulation describing a ‘safe harbor’ which allows certain benefit plans to be exempt from ERISA, with the intended purpose of exempting from ERISA those arrangements in which employer involvement is completely absent.” Vazquez v. Paul Revere Life Ins. Co., 289 F. Supp. 2d 727, 731 (E.D. Va. 2001) (citing 29 C.F.R. § 2510.3-1(j), 40 Fed. Reg. 34,526 (1975)). The safe harbor excludes from ERISA any “group or group-type insurance program offered by an insurer to employees or members of an employee organization if (1) no contributions are made by an employer or employee organization; (2) participation is voluntary; (3) the employer’s function is limited to 382

allowing the insurer to publicize the program and collect premiums through payroll deductions; and (4) the employer does not profit from the program.” Id. See also Hall v. Standard Ins. Co., 381 F. Supp. 2d 526, 528–29 (W.D. Va. 2005); Kerr v. United Teacher Assocs. Ins. Co., 313 F. Supp. 2d 617, 618–19 (S.D.W. Va. 2004) (citing 29 C.F.R. § 2510.3-1(j)). “[A]ll four of these conditions must be present for a plan to qualify for the safe harbor regulation.” Vasquez, 289 F. Supp. 2d at 731. See also Chatterton v. CUNA Mut. Ins. Soc’ty, No. 3:07-0167, 2007 U.S. Dist. LEXIS 86567, at *10, *11–12 (S.D. W. Va. Nov. 26, 2007) (finding employee organization not within safe harbor because employees received discount through employee organization). “This regulation is often used to determine ‘whether a plan is ‘established or maintained’ by an employer’” under the Donovan test. Vasquez, 289 F. Supp. 2d at 731 (citations omitted). See also Kerr, 313 F. Supp. 2d at 618 (finding “ERISA regulations attempt to clarify the meaning of ‘established or maintained’ by an employer”). In Vasquez, the court found the plan did not fall within the safe harbor because the employer clearly endorsed the plan. 289 F. Supp. 2d at 731–32. Although employees individually purchased and paid premiums on the longterm disability policies with after-tax dollars, the premiums were discounted by 30 percent on account of an arrangement between the employer and insurer. Id. The Vasquez court concluded “[t]his arrangement constitutes endorsement … because it basically belies a subsidy and constructive contributions to [p]laintiff’s premium 383

payments.” Id. The district court further noted the employer was required to approve each employee’s plan before an employee could benefit from the discount. Id. at 732. The district court also recognized that although the policy was portable, a departing employee would no longer receive the discount. Id. The discount, therefore, appeared to be “tied to employment.” Id. The district court then pointed out the disability policy was part of an overall plan by the employer, which encompassed a basic policy and the supplemental employee policy. Id. Purchase of an insurance contract, however, is insufficient to automatically establish the existence of an ERISA plan. Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 417 (4th Cir. 1993). Under the safe harbor regulation, “if the employer merely facilitates the purchase of a group insurance policy paid for entirely by the employees, the employer is not establishing a plan.” Id. (citing 29 C.F.R. § 2510.3-1(j)). Courts recognize, for example, that, in order for an employee benefits program to fall within ERISA, the employer “must do more than merely advertise the plan and collect the contributions; it must actively participate in the administration of the plan.” ELCO Mech. Contractors, Inc. v. Builders Supply Ass’n of W. Va., 832 F. Supp. 1054, 1057 (S.D.W. Va. 1993). The Fourth Circuit, in Casselman v. Am. Family Life Ins. Co. of Columbus, 143 F. App’x 507 (4th Cir. 2005), found the employer’s selection of the type of employees eligible for insurance, review of the plans offered, and retention of a consulting firm to investigate the insurer sufficient to take the employer outside the safe harbor. Id. 384

at 509–10. See also Hall v. Standard Ins. Co., 381 F. Supp. 2d 526, 531 (W.D. Va. 2005) (employer failed to maintain sufficient neutrality to invoke safe harbor because employer selected the insurer, provided SPD to participants, requested plan amendments, retained the right to determine contributions, and terminate the plan); Hughes v. UnumProvident Corp., No. 04-cv-632, 2006 U.S. Dist. LEXIS 1400, at *12 (M.D.N.C. Jan. 10, 2006) (“[E]ven the slightest ‘additional’ functions performed by an employer in connection with a plan will trigger application of, and preemption of state claims by, ERISA.”) (citations omitted). But see Ballard v. Leone, No. 11-cv-779, 2012 U.S. Dist. LEXIS 25306, at *18-19 (D. Md. Feb. 28, 2012) (ERISA does not preempt state claims because the policy satisfied all of the requirements of the safe harbor exception); Walls v. Lemmon, No. 5:07-cv-207, 2007 U.S. Dist. LEXIS 77393, at *11 (S.D.W. Va. Oct. 17, 2007) (insurer failed to provide evidence sufficient to sustain removal and take plan outside safe harbor). D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan In Kerr v. United Teacher Assocs. Ins. Co., 313 F. Supp. 2d 617, 619 (S.D.W. Va. 2004), the court stated, “[i]f an employer’s only involvement in establishing or maintaining a plan is to allow an insurer to take premiums from employees’ pay, this is not a sufficient basis to find that the program is an employee welfare benefits program for the purposes of ERISA.” Use of an employer’s account to pay premiums and make monthly contributions to these premiums, however, is sufficient to establish an 385

employee welfare benefit plan. Id. (citations omitted). Thus, in principle, “[t]here must be some payment and manifestation of intent by the employer or employee organization to provide a benefit to the employees or the employees’ beneficiaries of the type described in 29 U.S.C. § 1002(1).” Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 417 (4th Cir. 1993) In Custer, the Fourth Circuit found the safe harbor inapplicable because the ERISA plan was “established” by the employer. See id. at 417–18. The Fourth Circuit noted that, among other things, the employer obtained the group insurance policy at its president’s direction for the benefit of the company’s employees; the employer determined the benefits to be provided by the policy, negotiated the terms of the policy, and paid for one-half of the cost. Id. at 417. When the employer became dissatisfied with the insurance company, the employer canceled the policy and obtained a replacement policy. Id. E. Treatment of Multiple Employer Trusts and Welfare Agreements ERISA defines “employer” to mean “any person acting directly as an employer, or indirectly in the interest of an employer in relation to an employee benefit plan; and includes a group or association of employers acting for the employer in such capacity.” Int’l Ass’n of Entrepreneurs of Am. Ben. Trust v. Foster, 883 F. Supp. 1050, 1056 (E.D. Va. 1995) (emphasis in original) (quoting 29 U.S.C. § 1002(5)), aff’d, No. 95-1947, 1996 U.S. App. LEXIS 7603 (4th Cir. Apr. 12, 1996). The term “employer” also includes multiple employer welfare 386

arrangements (MEWAs). A MEWA is an employee welfare benefit plan that offers or provides welfare benefits to employees of two or more employers. 29 U.S.C. § 1002(40)(A)(i). “The Department of Labor has articulated six factors by which to evaluate whether a purported association is in fact a bona fide association of employers within the meaning of ERISA: (1) how members are solicited; (2) who is entitled to participate and who actually participated in the association; (3) the process by which the association was formed; (4) the purposes for which it was formed and what, if any, were the preexisting relationships of its members; (5) the powers, rights, and privileges of employer-members; and (6) who actually controls and directs the activities and operations of the benefit program.” Pension and Welfare Benefits Admin., U.S. Dep’t of Labor, Multiple Employer Welfare Arrangements Under the Employee Retirement Income Security Act: A Guide to Federal and State Regulation 9 (1992). The Foster court reiterated that “employermembers of the group or association that participate in the benefit program must, either directly or indirectly, exercise control over that program, both in form and in substance, in order to act as a bona fide employer group or association with respect to the benefit program.” Foster, 883 F. Supp. at 1059 (emphasis in original) (citations omitted). The Foster court found the plan established by the International Association of Entrepreneurs of America (IAEA) was not established or maintained by a bona fide association of employers. Id. at 1061; compare with 387

ELCO Mech. Contractors, Inc. v. Builders Supply Ass’n of W. Va., 832 F. Supp. 1054, 1057 (S.D.W. Va. 1993) (finding a MEWA because “[t]he plan was established to provide health benefits to the employees of the [association]’s members”). First, membership solicitation was “essentially indiscriminate and not focused on any particular type of employer or entrepreneur.” Foster, 883 F. Supp. at 1061. “Second, membership in the association was open to any employer considering himself an entrepreneur.” Id. Third, the evidence on the makeup of the membership at the time the IAEA was incorporated was unclear. Id. Fourth, no evidence was offered on why the IAEA was formed. Id. Fifth, the evidence failed to establish the IAEA’s employer members actually exercised the requisite control over the plan. Id. Since “[t]he statutory definition of [multiple employer welfare arrangement (MEWA)] is broader than the definition of employee welfare benefit plan (EWBP),” “[o]nly MEWAs that also constitute statutory EWBPs are governed by and regulated under ERISA.” ELCO, 832 F. Supp. at 1056–57 (citations omitted). In ELCO, the district court applied the Donovan test to determine whether the multiple-employer plan at issue constituted an “employee benefit plan.” Id. at 1057–58. The ELCO court ultimately determined the multiemployer group failed to “establish or maintain” the plan. Id. Moreover, the ELCO court noted there should be “some cohesive relationship between the provider of benefits and the recipient of benefits under the plan” in order for the multiemployer group to be considered an employer under § 1002(5). Id. at 1058. The district court 388

concurred with the Eighth Circuit that the entity maintaining the plan and the individuals benefiting from the plan must be connected by a common economic interest, “unrelated to the provision of benefits.” Id. (emphasis in original) (citations omitted). Plaintiff received no benefit from the multiemployer group other than health insurance. Id. As a result, the district court concluded the plan failed to constitute an “employee benefit plan.” Id. F. Treatment of Individual Business Owners In Madonia v. Blue Cross & Blue Shield of Va., the Fourth Circuit confronted the question of whether a health insurance policy purchased by a professional corporation wholly owned by plaintiff’s spouse qualified as an employee benefit plan under ERISA. 11 F.3d 444, 446–50 (4th Cir. 1993). Plaintiff argued no employee of the corporation met the statutory definition of “participant” because no employee, other than the sole shareholder, was covered by the policy at the time the action was removed to federal court. Id. at 448. The Fourth Circuit, citing to § 2510.3-3(c)(1), agreed the sole shareholder could not be considered a participant for purposes of determining the existence of an employee benefit plan. Id. Yet, other employees were “participants” because they were eligible for coverage. Id. If a plan exists, a corporate officer, who is an “employee” of the corporation, may also be a “participant” in the employee benefit plan. Id. at 449–50. The Fourth Circuit found the regulation governing a sole shareholder inapplicable once an employee benefit plan is determined to exist. Id. See also Barringer-Willis v. Healthsource N.C. Inc., 14 F. Supp. 2d. 780, 782–83 389

(E.D.N.C. 1998) (applying ERISA to an independent contractor because disparate treatment would otherwise result and this would frustrate the statutory purpose of similar treatment of claims); Provident Life & Accid. Ins. Co. v. Cohen, 137 F. Supp. 2d 631, 635 (D. Md. 2001) (allowing a 50-percent shareholder/employer to be considered a “participant”). But see Carbonell v. Northwestern Mut. Life Ins. Co., 905 F. Supp. 308, 311–12 (E.D.N.C. 1995) (a sole shareholder in a professional corporation was not a “participant” for purposes of determining whether a disability insurance policy constituted an ERISA-qualified employee welfare plan where nonshareholder employees were not eligible to receive plan benefits). In Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1, 6 (2004), the Supreme Court considered whether a working owner of a business qualified as a “participant” under an ERISA pension plan. In the underlying appeal, the Sixth Circuit held an owner would not qualify as a plan participant. Id. at 11. Rejecting the Sixth Circuit’s holding, the Supreme Court concluded working owners may qualify as plan participants if the plan covers one or more employees who are not owners of the business or their spouses. Id. at 6. The Supreme Court looked to ERISA’s text and relevant provisions of the Internal Revenue Code for guidance. Id. at 12–13. The Court observed that Title I assumes working owners may participate in ERISA plans. Id. at 15. The Court further observed that pursuant to Title IV, an employer may have a dual status as the employer establishing the plan and an

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employee participating in the plan. Id. at 16. The Supreme Court concluded Congress intended that working owners qualify as plan participants under ERISA. Id. G. De Facto Plan Administrators ERISA provides that if a plan administrator is not designated in the written plan documents, then the plan sponsor is the plan administrator. See 29 U.S.C. § 1002(16)(A). The Fourth Circuit rejected the argument that an insurer can become a de facto administrator. See Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 62 (4th Cir. 1992) (citations omitted) (although insurer may perform administrative duties with respect to claim reviews, this gives the court no “license to ignore the statute’s definition of plan administrator” and impose plan administrator duties on an insurer). The Fourth Circuit, therefore, refused to impose penalties on an insurer when the insurer failed to comply with ERISA plan administrator statutory duties. Flores v. Life Ins. Co. of N. Am., No. L-10-0098, 2011 U.S. Dist. LEXIS 27547, at *8-9 (D. Md. 2011). II. Preemption A. Scope of ERISA Preemption “ERISA preempts all state claims that ‘relate to any employee benefit plan.’” Madonia v. Blue Cross & Blue Shield of Va., 11 F.3d 444, 446 (4th Cir. 1993) (quoting 29 U.S.C. § 1144(a)). ERISA’s preemption clause specifically provides that “the provisions of [ERISA] shall supersede any and all State laws insofar as they may 391

now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a) (emphasis added). The phrase “relates to” is given its common sense meaning, as having “connection with or reference to such a plan.” Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 418 (4th Cir. 1993) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96–97 (1983)); Stiltner v. Beretta U.S.A. Corp., 74 F.3d 1473, 1480 (4th Cir. 1996) (citations omitted), cert. denied, 519 U.S. 810 (1996); PPG Indus. Pension Plan A (CIO) v. Crews, 902 F.2d 1148, 1150 (4th Cir. 1990) (citations omitted). ERISA preemption is not all encompassing because some state actions affect employee benefit plans in “too tenuous, remote or peripheral a manner” to relate to the plan. Shaw, 463 U.S. at 100 n.21. Indeed, the Supreme Court recognized in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995), that an expansive interpretation of the ERISA “relate to” provision would mean that “for all practical purposes preemption would never run its course.” In Travelers, the Supreme Court clarified the scope of ERISA’s preemption by deciding to “go beyond the unhelpful text and the frustrating difficulty of defining its key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.” Id. at 656. The Supreme Court then reiterated the longstanding view that “[t]he basic thrust of ERISA’s preemption clause … was to avoid multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans.” Id. at 657.

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Following Travelers, the Fourth Circuit noted that ERISA was intended to “‘protect … the interests of participants in employee benefit plans and their beneficiaries … by establishing standards of conduct, responsibility, and obligation for fiduciaries … and by providing for appropriate remedies, sanctions, and ready access to the Federal Courts.’” Coyne & Delany Co. v. Selman, 98 F.3d 1457, 1470 (4th Cir. 1996) (quoting 29 U.S.C. § 1001(b)). In Coyne & Delany Co., the court considered whether malpractice claims against an insurance professional, concerning a change in coverage to a new plan, were preempted by ERISA. Id. at 1460. The Fourth Circuit, following Travelers, found no preemption. Id. at 1471. In reaching this conclusion, the court emphasized that the malpractice claims were not an alternate enforcement mechanism to recover plan benefits. Id. Indeed, the claims advanced were not seeking plan benefits, but damages for failure to procure the promised replacement coverage. Id. See also Darcangelo v. Verizon Commc’ns, Inc., 292 F.3d 181, 188 (4th Cir. 2002) (holding Maryland statutory and common law claims not preempted when employee alleged employer improperly obtained and distributed medical records as pretext for firing employee). In contrast, in Great West Life & Annuity Ins. Co. v. Info. Systems & Networks Corp., 523 F.3d 266 (4th Cir. 2008), the Fourth Circuit found claims for breach of contract and unjust enrichment filed against a plan sponsor not preempted by ERISA. Great West entered into a contract with Information Systems & Networks Corporation (ISN) to perform non-discretionary administrative services for the ISN health benefit plan. Id. 393

at 268. The plan was self-funded and the administrator, the CFO of ISN, retained all discretion. Id. After ISN notified Great West of its plan to terminate the contract, Great West requested reimbursement of advanced health benefit payments. Id. at 269. Although the administrator agreed the benefits were properly paid, ISN refused to reimburse Great West. Id. Great West filed a breach of contract and unjust enrichment claim against ISN. Id. ISN argued the claims were preempted by ERISA. Id. at 270. The district court found in favor of Great West on the breach of contract claim and the Fourth Circuit affirmed. Id. at 272–73. The Fourth Circuit explained as follows: [W]e hold that ERISA does not preempt a state law breach of contract claim, nor an alternatively pled state law unjust enrichment claim, brought by the third-party company hired to perform only nondiscretionary administrative services, under the self-funded portion of an employee health care benefit plan covered by ERISA, against the sponsor of such plan for reimbursement of $93,999.73 in nondiscretionary payments the third-party company fronted to satisfy self-funded benefits claims, when: (1) the plan administrator, with full discretion to determine whether a claim for self-funded benefits should be paid or denied (and who also served as the sponsor’s chief financial officer) expressly acknowledged the debt and recommended to the sponsor’s chief executive officer that it should be paid; and (2) resolution of either claim requires no interpretation of the plan terms nor is it in any way dependent upon the plan being governed by ERISA.

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Id. On the other hand, in Retail Indus. Leaders Ass’n v. Fielder, 475 F.3d 180, 197 (4th Cir. 2007), the Fourth Circuit, applying Travelers, determined Maryland’s Fair Share Health Care Fund Act (“Fair Share Act”) was preempted by ERISA. The Fair Share Act was enacted by the Maryland General Assembly to require employers with 10,000 or more Maryland employees to spend at least eight percent of their total payroll on health insurance costs for employees, or pay the difference to a state fund. Id. at 184. The only employer in Maryland with 10,000 or more employees subject to the minimum spending requirements was Wal-Mart. Id. at 185. The court considered whether the law “effectively mandates some element of the structure of administration of [ERISA plans]” or “creates only indirect economic incentives that affect but do not bind the choices of employers.” Id. at 193–94. The court opined an employer’s only rational choice under the Fair Share Act would be to structure their ERISA plan to meet the minimum spending threshold, rather than pay money to the state and face lower employee morale and public criticism. Id. at 193. The court further recognized the effect of the Fair Share Act would be to “disrupt employers’ uniform administration of employee benefit plans on a nationwide basis.” Id. at 194. In Stiltner v. Beretta, U.S.A. Corp., 74 F.3d 1473, 1480 (4th Cir. 1996) (en banc), the Fourth Circuit pointed out that courts consistently follow the Supreme Court’s mandate in Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987), by uniformly holding state-law claims of 395

intentional infliction of emotional distress, based on allegations of wrongfully denied or terminated benefits under an ERISA plan, preempted by ERISA. See also Elmore v. Cone Mills Corp., 23 F.3d 855, 863 (4th Cir. 1994) (holding state-law claims for breach of contract, fraud, unjust enrichment, breach of fiduciary duty, negligence, accounting, and conspiracy preempted); Powell v. Chesapeake & Potomac Tel. Co. of Va., 780 F.2d 419, 421 (4th Cir. 1985) (holding state-law claims for intentional infliction of emotional distress, breach of contract, and breach of an implied covenant of good faith and fair dealing preempted), cert. denied, 476 U.S. 1170 (1986). ERISA also preempts claims of waiver and estoppel offered by an insured in an effort to avoid remand to the plan administrator. See Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 239 (4th Cir. 2008). See also Thomas v. Telemecanique, Inc., 768 F. Supp. 503, 506 (D. Md. 1991) (holding state-law claim for emotional distress based on allegedly wrongful accusations that former employee had been defrauding employer by collecting disability benefits from ERISA plan preempted); Chapman v. Health Works Med. Grp. of W. Va., Inc., 170 F. Supp. 2d 635, 637–38 (N.D.W. Va. 2001) (state law claims for breach of contract, detrimental reliance, violation of good faith and fair dealing, fraud, and intentional conduct were preempted). See also Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan, 555 U.S. 285, 303–04 (2009) (refusing to recognize federal common law of waiver); compare with Andochick v. Byrd, 709 F.3d 296, 301 (4th Cir. 2013) (providing state court post-distribution suits by decedent’s estate to enforce a waiver against ERISA beneficiaries not preempted). 396

B. ERISA Savings Clause Notwithstanding the breadth of ERISA preemption, Congress never intended to remove the ability to regulate the insurance industry from the states. Congress, therefore, included a “savings clause” in the ERISA preemption, which preserves for state regulation any law that “regulates insurance, banking or securities.” 29 U.S.C. § 1144(b)(2)(A) (emphasis added). In Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003), the Supreme Court clarified the test for determining the applicability of the savings clause. The Supreme Court reduced the savings clause inquiry to two factors: “[f]irst, the state law must be specifically directed toward entities engaged in insurance …,” and “[s]econd … the state law must substantially affect the risk pooling arrangement between the insurer and the insured.” Id. at 341–42 (citations omitted). The Supreme Court made clear in Miller, “[r]ather than concerning itself with whether certain practices constitute ‘the business of insurance,’” ERISA “asks merely whether a state law is a ‘law … which regulates insurance, banking, or securities.’” Id. at 340. In Singh v. Prudential Health Care Plan, Inc., 335 F.3d 278, 284–87 (4th Cir. 2003), cert. denied, 540 U.S. 1073 (2003), the Fourth Circuit applied the Supreme Court’s analysis in Miller to determine whether the antisubrogation provisions in the Maryland HMO Act were saved from preemption. Although the insurer argued the subrogation laws were not laws regulating the business of insurance, the Fourth Circuit, applying Miller, noted the 397

savings clause inquiry was no longer whether the state law regulated the “business of insurance,” but whether the law regulated insurance. Id. at 285–86. The Fourth Circuit ultimately concluded the subrogation law fell within the ambit of the savings clause. Id. at 286. A state law regulating insurance may still be preempted if the remedies conflict with ERISA’s civil enforcement provisions. See Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 377–87 (2002). In Singh, the Fourth Circuit stated a state law may fall within this “limited exception” if the law either supplements or supplants ERISA’s exclusive remedies. Singh, 335 F.3d at 287–88. The Fourth Circuit ultimately found the Maryland law was not supplementing or supplanting ERISA remedies and, therefore, the subrogation prohibition remained “saved from preemption.” Id. at 289. Removal to federal court, however, was proper because the remedies sought were within the scope of ERISA § 502(a)(1)(B) and 502(a)(3). Id. at 291. The savings clause is further limited by the deemer clause. The deemer clause in ERISA provides that “[n]either an employee benefit plan … nor any trust established under such a plan shall be deemed to be an insurance company or other insurer … or to be engaged in the business of insurance … for the purposes of any law of any State purporting to regulate [insurance].” 29 U.S.C. § 1144(b)(2)(B). In FMC Corp. v. Holliday, 498 U.S. 52, 61–64 (1990), the Supreme Court held, because of the deemer clause, ERISA preempted a state’s anti-subrogation provisions 398

with respect to self-funded plans. In determining whether ERISA would preempt state law, the Supreme Court went to great lengths to distinguish between insured and selffunded plans. Id. at 61–62. The court recognized that its decision resulted “in a distinction between insured and uninsured plans, leaving the former open to indirect regulation while the latter are not.” Id. at 62. The court ultimately concluded the deemer clause exempts “selffunded ERISA plans from state laws … regulat[ing] insurance within the meaning of the saving clause.” Id. at 61 (emphasis added). As a result, states may not deem self-funded employee benefit plans to be insurance companies or to be engaged in the business of insurance for purposes of direct state regulation. See Singh, 335 F.3d at 286 (concluding plan was “insured” and, therefore, deemer clause did not exempt plan from state regulation); Health Cost Controls v. Whalen, No. 1:96-66A, 1996 U.S. Dist. LEXIS 20693, at *4–6 (E.D. Va. Aug. 14, 1996) (same); compare with K-VA-T Food Stores, Inc. v. Hutchins, 872 F. Supp. 2d 486, 489–91 (W.D. Va. Jan 20, 2012) (stating ERISA preempts state law application to a self-funded benefit plan); Med. Univ. Hosp. Authority/Med. Ctr. of the Med. Univ. of S.C. v. Oceana Resorts, LLC, No. 2:11-cv-1522, 2012 U.S. Dist. LEXIS 27897, at *23 (D.S.C. Mar. 2, 2012) (providing “a self-funded employee benefits plan document is not an ‘insurance policy’”); and Eppard v. Builders Transp. Inc., No. 92-02-C, 1993 U.S. Dist. LEXIS 1683, at *12 (W.D. Va. Feb. 4, 1993) (holding self-funded plan not subject to state regulation). C. Conflict Preemption

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In Gresham v. Lumberman’s Mut. Cas. Co., 404 F.3d 253, 257 (4th Cir. 2005), the court considered whether state law claims for breach of contract and wage payment in connection with severance benefits were preempted by ERISA. The court recognized that if state law claims were viewed as an alternative means of recovering benefits under ERISA, then conflict preemption applied. Id. at 258 (citing Aetna Health, Inc. v. Davila, 542 U.S. 200, 205–06 (2004)). The court went on to find no preemption, however, because (a) the employment agreement provided significantly greater benefits than the severance plan, which was not mentioned in the employment agreement, and (b) no evidence existed that severance under the employment agreement would be paid from the severance plan. Gresham, 404 F.3d at 259. In Wilmington Shipbuilding Co. v. New England Life Ins. Co., 496 F.3d 326, 341–44 (4th Cir. 2007), the court again confronted a question of conflict preemption, but this time in connection with group annuity contracts issued to fund an employee pension plan. In response to defendant’s assertion it was not an ERISA fiduciary, plaintiffs attempted to assert state law claims. Id. at 330. The court, however, found the state law claims preempted by ERISA and the ERISA claims survived plan termination. Id. at 343–44. D. Preemption of Managed-Care Claims In Pegram v. Herdrich, 530 U.S. 211 (2000), the Supreme Court considered an HMO’s simultaneous duties as both an ERISA plan administrator and a health care provider: in acting as a plan administrator, an HMO functions as a 400

plan fiduciary regulated by ERISA, but by providing treatment of a patient’s medical conditions, the HMO also functions as a healthcare provider regulated by state malpractice jurisprudence. Analyzing this dual medical/ administrative role, the Supreme Court concluded an HMO’s activities can be placed in three categories: (1) pure administrative eligibility decisions, (2) mixed eligibility and treatment decisions, and (3) pure treatment decisions. Id. at 228–29. The Pegram Court concluded that mixed eligibility decisions by HMO physicians are not fiduciary decisions under ERISA. See id. at 231–33. In so holding, the Supreme Court reasoned that a mixed eligibility and treatment decision reduces such disputes to the stuff of state malpractice claims, not traditional breach of fiduciary duty claims. Id. In Marks v. Watters, 322 F.3d 316, 318, 321 (4th Cir. 2003), the estate of a mental health patient who committed suicide after murdering his wife and daughter, and injuring his son, filed an action against the healthcare providers involved in the patient’s care, as well as the plan administrator and the utilization review case manager. The estate claimed that under Pegram, the statelaw claims were not preempted by ERISA because the claims challenged mixed eligibility and treatment decisions. Id. at 322. The Fourth Circuit determined the claims were preempted because the complaint attacked the administration of benefits rather than the quality of care received. Id. at 326. The Fourth Circuit noted the corporate utilization review agent was not involved in treating patients; rather, it managed the patient’s utilization of health care providers to accommodate plan benefits. Id. at 325. Moreover, the individual case 401

manager never provided treatment or made treatment decisions. Id. at 326. E. Preemption of Malpractice Claims Professional malpractice claims generally are not preempted by ERISA. In Custer v. Sweeney, 89 F.3d 1156, 1160 (4th Cir. 1996), the Fourth Circuit held a state-law legal malpractice claim asserted by a trustee of and participant in an ERISA plan against a lawyer who provided services to the plan not preempted by ERISA. The Fourth Circuit “did not believe that Congress intended ERISA to preempt state law malpractice claims involving professional services to ERISA plans.” Id. at 1167. Moreover, the Fourth Circuit noted ERISA does not “evince a clear legislative purpose to preempt such traditional state-based laws of general applicability, and permitting professional malpractice claims would not undermine the congressional policies that underlie ERISA.” Id. See also Coyne & Delany Co. v. Selman, 98 F.3d 1457, 1470–72 (4th Cir. 1996). F. Preemption of Independent Review Statutes Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 359 (2002) concerned a challenge to an Illinois law requiring external review by an independent medical expert of a health insurer’s denial of coverage for a medical service as not medically necessary. Under state law, if the independent expert found the service medically necessary, then the health insurer was required to pay for the service. Id. at 359–61. The Supreme Court held the law, even though it related to an employee benefit plan, was saved 402

from preemption because it regulated insurance. Id. at 365–75. The Supreme Court also considered whether the Illinois law fell within the limited exception to the savings clause. Id. at 375–86. The Supreme Court found the state law was not in conflict with ERISA. Since the state law was not supplementing or supplanting ERISA’s civil enforcement scheme, the state law remained “saved” from preemption by the ERISA savings clause. Id. See also Larsen v. Cigna Healthcare Mid-Atlantic, Inc., 224 F. Supp. 2d 998, 1009–10 (D. Md. 2002) (considering the potential impact of Rush on independent state review statutes). A state statute imposing a duty of care on HMOs, however, is preempted by ERISA. See Aetna Health Inc. v. Davila, 542 U.S. 200, 204 (2004). In Davila, the Supreme Court confronted claims that an HMO failed to exercise ordinary care in administering coverage decisions in violation of a duty imposed by a state health care liability act. Rejecting plaintiffs’ argument, the Supreme Court concluded plaintiffs were not pursuing a remedy for a violation of a legal duty independent of ERISA. Id. at 213–14. Rather, plaintiffs sought to rectify the denial of plan benefits. Id. Thus, their claims were within the scope of ERISA preemption. Id. The Supreme Court also rejected the argument that the state act was saved from preemption because it is a law regulating insurance. Id. at 217. Applying ordinary principles of conflict preemption, the Court observed that even when a state law could be characterized as regulating insurance, it will be preempted if it provides a basis for seeking plan benefits outside of or in addition to the remedial scheme afforded by ERISA. Id. at 217–18. 403

Relying on Davila, the court in Radcliffe v. El Paso Corp., 377 F. Supp. 2d 558, 562 (S.D. W. Va. 2005), concluded courts must consider two factors in determining whether a claim is completely preempted. The court should first consider “whether the plaintiff could have originally brought his cause of action under ERISA’s civil enforcement provisions.” Id. If so, then the court should further consider “whether the cause of action involves any independent legal duty on the part of the defendants.” Id. The district court concluded that “[i]f the alleged liability is derived from or dependent upon the existence and administration of an ERISA-regulated benefit plan, then the state-law claims are not ‘entirely independent of the federally regulated contract itself,’ and are therefore preempted.” Id. at 564. G. Other Preemption Issues The mere purchase of insurance is insufficient to establish an insured employee benefit plan for ERISA purposes. In Thompson v. Talquin Bldg. Prods. Co., 928 F.2d 649, 653 (4th Cir. 1991), the Fourth Circuit held an employer’s purchase of stop-loss insurance was insufficient to convert a self-funded or self-insured employee benefit plan into a fully insured plan. The Fourth Circuit pointed out that “[t]he stop-loss insurance does not pay benefits directly to participants, nor does the insurance company take over administration of the [p]lan at the point when the aggregate amount is reached.” Id. The Fourth Circuit reasoned the stop-loss insurance was protecting the employer from catastrophic losses rather than providing accident and health insurance for the employees. Id. The plan, therefore, was not insured for ERISA purposes. Id. 404

Since Thompson, the Fourth Circuit has consistently held stop-loss coverage does not destroy a plan’s self-funded status for ERISA preemption purposes. See Am. Med. Sec., Inc. v. Bartlett, 111 F.3d 358, 365 (4th Cir. 1997); Tri-State Mach. v. Nationwide Life Ins. Co., 33 F.3d 309, 315 (4th Cir. 1994); Hampton Indus. Inc. v. Sparrow, 981 F.2d 726, 730 (4th Cir. 1992); State Farm Mut. Auto. Ins. Co. v. Smith, 342 F. Supp. 2d 541, 545 (W.D. Va. 2004) (self-funded plan remained within ERISA and deemer clause applicable because insured vision plan was separately administered and claims were not related to vision care); Sealy, Inc. v. Nationwide Mut. Ins. Co., 286 F. Supp. 2d 625, 630 (M.D.N.C. 2003). The Fourth Circuit recently addressed the question left open in Kennedy v. Plan Adm’r. for DuPont Sav. & Inv. Plan, 555 U.S. 285, 299 n.10 (2009), of whether, once benefits are distributed by an administrator, can the estate bring an action to enforce a contractual waiver against the named plan beneficiary. Andochick v. Byrd, 709 F.3d 296, 299 (4th Cir. 2013). In Andochick, plaintiff argued Kennedy prescribed ERISA preemption of state-law waivers. Id. The Fourth Circuit disagreed, concluding that “permitting post-distribution lawsuits accords with the ERISA objectives discussed in Kennedy.” Id. at 299–300. III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? In the Fourth Circuit, an ERISA claimant is required to exhaust administrative plan remedies before pursuing an action to recover benefits pursuant to 29 U.S.C. § 1132. 405

See Hickey v. Digital Equip. Corp., 43 F.3d 941, 945 (4th Cir. 1995); Makar v. Health Care Corp., 872 F.2d 80, 82 (4th Cir. 1989). In Makar, plaintiff sought reimbursement from her HMO for hospitalization and treatment at an outof-plan hospital. 872 F.2d at 81. Plaintiff’s husband also sought reimbursement from his employer’s group health insurance plan. Id. at 81–82. The Makars, however, failed to file a written grievance as required by Mrs. Makar’s plan or to pursue the appeal procedures provided by Mr. Makar’s plan. Id. at 82. The Fourth Circuit observed the exhaustion requirement is based on ERISA’s text and structure, which mandates internal dispute resolution procedures for plan participants. Id. at 83. The court also recognized that requiring exhaustion of plan remedies conserves judicial resources by reducing frivolous claims, minimizing the cost of dispute resolution, and allows the court to analyze a fully developed record if litigation ensues. Id. at 82–83. B. Exceptions to the Exhaustion Requirement The general rule requiring exhaustion of plan remedies is applied as a matter of judicial discretion, which includes the discretion to excuse nonexhaustion. See Nessell v. Crown Life Ins. Co., 92 F. Supp. 2d 523, 528–29 (E.D. Va. 2000). In the exercise of this discretion, courts in the Fourth Circuit recognize two exceptions to the exhaustion requirement. See Vogel v. Independence Fed. Sav., 728 F. Supp. 1210, 1223 (D. Md. 1990). First, failure to exhaust plan remedies may be excused if pursuit of the internal appeals process would be futile. See Makar, 872 F.2d at 83; see also Woodard v. Fredericksburg Hospitalist Grp., P.C., No. 1:12cv261, 2012 U.S. Dist. LEXIS 78208, at 406

*8–9 (E.D. Va. June 5, 2012) (since plaintiff had yet to instigate the formal claim process, she could not make a claim that the process had proven futile); Fulk v. Hartford Life Ins. Co., 839 F. Supp. 1183, 1186 (M.D.N.C. 1993); Vogel, 728 F. Supp. at 1223–24. Second, exhaustion may be excused if plaintiff would have been denied meaningful access to the plan procedures. See SunTrust Bank v. Aetna Life Ins. Co., 251 F. Supp. 2d 1282, 1289–90 (E.D. Va. 2003); Nessell, 92 F. Supp. 2d at 529; Vogel, 728 F. Supp. at 1223; see also Makar, 872 F.2d at 83 (rejecting exhaustion argument because “no findings of futility and appellants [made no showing] that they would be denied access to the claims procedures provided by [their ERISA plans]”). A clear and positive showing of futility is needed in order to suspend the exhaustion requirement. See Hickey v. Digital Equip. Corp., 43 F.3d 941, 945 (4th Cir. 1995); Makar, 872 F.2d at 83; Nessell, 92 F. Supp. 2d at 529; O’Bryhim v. Reliance Standard Life Ins. Co., 997 F. Supp. 728, 731 (E.D. Va. 1998), aff’d, No. 98-1472, 1999 U.S. App. LEXIS 19232 (4th Cir. Aug. 16, 1999) (finding clear and positive showing of futility because review of decision on remand would be conducted by same individuals that rendered initial decision). Bare allegations of futility are insufficient. See Makar, 872 F.2d at 83 (plaintiffs alleged, without supporting evidence, that any attempt to pursue plan remedies would be futile); see also Hickey, 43 F.3d at 945 (rejecting plaintiffs’ allegation that remand for purpose of exhausting plan remedies was “mere formality if not a charade”).

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In Nessell, plaintiff’s sworn statement, which was not contradicted by the insurer, was sufficient to support waiver of exhaustion based on both futility and denial of meaningful access to plan procedures. 92 F. Supp. 2d at 529. Specifically, the court concluded an administrative appeal would have been futile because the insurer advised Nessell that any attempt to pursue an appeal through the plan would be unsuccessful. Id. (claims adjudicator advised plaintiff that (1) claim decision was final and irrevocable, and (2) insurer would not consider any further appeals). The district court also concluded that Nessell was denied meaningful access to the plan’s internal review process because the insurer failed to provide her with a requested copy of the independent medical examiner’s report, which was relied upon in rendering the claim decision. Id. In contrast, in Kern v. Verizon Comm’s., Inc., 381 F. Supp. 2d 532, 537 (N.D. W. Va. 2005), the court rejected plaintiffs’ argument that exhaustion was waived by an employer’s failure “to advise employees in writing of the denial of the claim for … benefits and to apprise employees of their rights to seek review of such denial.” The court noted that “pursuit and exhaustion of internal Plan remedies is an essential prerequisite to judicial review of an ERISA claim for denial of benefits.” Id. at 536 (citations omitted). The court further observed, “Circuit courts have refused to waive the exhaustion requirement in ERISA cases where the claimant was not adequately informed of claims procedures.” Id. at 537 (citations omitted). Thus, the district court refused to waive the “strict requirement of exhaustion.” Id.

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Significantly, a plaintiff cannot circumvent the exhaustion requirement through artful pleading. See Smith v. Sydnor, 184 F.3d 356, 362 (4th Cir. 1999); SunTrust Bank, 251 F. Supp. 2d at 1287–88. The Fourth Circuit, therefore, requires a plaintiff to exhaust plan remedies before bringing an action for breach of fiduciary duty if the basis for the action is the denial of plan benefits or the action is closely related to plaintiff’s claim for benefits. See Smith, 184 F.3d at 362. Claims related to the validity and effectiveness of assignment and/or beneficiary change forms, for example, were subject to the exhaustion requirement because they were inextricably linked to a claim for benefits and the only relief sought was payment of the policy proceeds. See SunTrust Bank, 251 F. Supp. 2d at 1288–90 (exhaustion requirement applied, but waived by denial of meaningful access). Finally, although the Fourth Circuit applies the exhaustion requirement in ERISA actions to recover plan benefits, exhaustion of plan remedies is not required in actions involving a claim for breach of fiduciary duty, pursuant to 29 U.S.C. §§ 1104 & 1106. See Smith, 184 F.3d at 364–65; see also Hall v. Tyco Int’l Ltd., 223 F.R.D. 219, 238 (M.D.N.C. 2004); SunTrust, 251 F. Supp. 2d at 1287. The Fourth Circuit’s reasoning is twofold. First, the exhaustion requirement is derived, in part, from ERISA’s statutory mandate that employee benefit plans must provide an internal review process for appealing denials of plan benefits. See Smith, 184 F.3d at 364. No similar premise exists for statutory claims involving a violation of ERISA. Id. at 364–65 (plan in dispute did not include provision for handling statutory claims, which further supported position that exhaustion is not required 409

for non–benefit-related claims). Second, a claim alleging a statutory violation of ERISA falls within the expertise of the judiciary, and, therefore, is distinguishable from a claim for benefits, which implicates the expertise of a plan fiduciary. Id. at 365. The policy considerations in favor of exhaustion, therefore, are not present in a claim for breach of fiduciary duty where no deference is given to the plan fiduciary’s expertise. See id. C. Consequences of Failure to Exhaust Once a court determines the exhaustion requirement is applicable and the plan participant has failed to pursue and exhaust plan remedies, the court can dismiss without prejudice to allow a participant to pursue plan remedies. See Makar v. Health Care Corp., 872 F.2d 80, 83 (4th Cir. 1989); Nessell v. Crown Life Ins., 92 F. Supp. 2d 523, 528 (E.D. Va. 2000) (claim for benefits dismissed without prejudice to refile after exhaustion of plan’s appeal procedure). The court also can stay the case and remand the claim to the plan administrator or plan fiduciary for further consideration in accordance with plan remedies. See Hickey v. Digital Equip. Corp., 43 F.3d 941, 945 (4th Cir. 1995); see also Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2159 (2010) (attorney’s fees may be awarded when district court remands for further administrative review and benefits are awarded to participant). In Gayle v. Flexible Benefit Plan/United Parcel Serv. Long Term Disability Plan, 318 F. Supp. 2d 328, 330 (D.S.C. 2004), aff’d, 401 F.3d 222 (4th Cir. 2005), the court encountered the issue of whether to dismiss or 410

remand an action involving failure to exhaust plan remedies. The plaintiff asserted two claims related to the denial of plan benefits. Id. The first claim sought remand to the plan, with an order requiring the plan to allow plaintiff to exhaust plan remedies. Id. The second claim sought judicial review of any subsequent denial made after the review on remand. Id. The district court recognized it could not satisfy its obligation to enforce the terms of the written plan without holding the plaintiff to the time frames for filing appeals as set forth in the plan. Id. at 331 (plan provided first-level appeal must be made within 180 days of denial of benefits and second-level appeal must be made within sixty days of denial of benefits). Consequently, the court dismissed the first claim with prejudice because plaintiff failed to comply with the plan’s time requirements. Id. at 330. Although the second claim was dismissed without prejudice, the court recognized the ultimate effect likely would be the equivalent of a dismissal with prejudice. Id. at 331. Affirming the district court’s decision, the Fourth Circuit addressed plaintiff’s equitable tolling argument. See Gayle v. United Parcel Serv., 401 F.3d 222, 227 (4th Cir. 2005). The Fourth Circuit concluded the principles of equitable tolling were not justified where a party failed to comply with the deadlines and internal procedures of an ERISA plan. Id. The court further concluded the exhaustion requirement would be useless if a party were allowed to wait for the internal deadlines to pass and then file a lawsuit. Id. at 229; Ford v. Hartford Life & Acc. Ins. Co., No. 3:08CV281, 2009 U.S Dist. LEXIS 29711, at *17–19 (W.D.N.C. Apr. 8, 2009).

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A failure to exhaust administrative remedies in accordance with the time stated in the ERISA plan also may result in summary judgment in favor of the plan. See Wheeless v. Wal-Mart Stores, Inc. Ass’n Health & Welfare Plan, 39 F. Supp. 2d 577, 582 (E.D.N.C. 1998). In Wheeless, the Wal-Mart plan denied claims for medical benefits, advising Wheeless he had ninety days to appeal. Id. at 579. Wheeless filed a written appeal long after the ninety-day period expired, and the plan denied the appeal for failure to timely pursue and exhaust the plan’s administrative remedies. Id. at 581–82 (appeal letter filed 255 days after plaintiff advised that his claim was denied). Concluding the plan’s denial based on the untimely appeal was not an abuse of discretion, the district court granted the plan’s motion for summary judgment. Id. D. Issue v. Claim Exhaustion Although not squarely addressed as issue exhaustion, at least one court in the Fourth Circuit has recognized a claimant’s right to raise new legal arguments in court. See Vincent v. Lucent Techs, Inc., 733 F. Supp. 2d 729, 737 (D.N.C. 2010). Indeed, the court noted the authorities relied upon by defendant precluded new evidence, not new arguments. Id. E. Can a Defendant Waive a Failure-to-Exhaust Defense? Although the Fourth Circuit has not squarely addressed whether an insurer or plan administrator can waive the administrative review process, the court’s decision in Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 412

230, 238 (4th Cir. 2008), suggests the Fourth Circuit likely would not approve such a waiver. Indeed, the Fourth Circuit’s consistent holdings that a plan administrator’s failure to follow ERISA’s procedural process warrants a remand for full and fair review suggests the court would reject such attempts to by-pass the ERISA administrative review process. Id. at 240–41; see generally Sedlack v. Braswell Serv., 134 F.3d 219 (4th Cir. 1998); Weaver v. Phoenix Home Life Mut. Ins. Co., 990 F.2d 154 (4th Cir. 1993). IV. Standard of Review To determine the appropriate standard of review for a challenge to a benefits decision, the Fourth Circuit employs a three-step approach. Feder v. Paul Revere Life Ins. Co., 228 F.3d 518, 522 (4th Cir. 2000). First, the court decides de novo whether the plan’s language confers discretion to determine eligibility for benefits or construe plan terms. Id. Second, if the plan confers discretion, the court decides de novo whether the acts were within the scope of the discretion conferred by the plan. Id. Third, if the actions were within the scope of the discretion, then the court reviews the decision for an abuse of discretion. Id. A. Plan Language “[T]here are obviously no magic words required to trigger the application of one or another standard of judicial review.” De Nobel v. Vitro Corp., 885 F.2d 1180, 1187 (4th Cir. 1989). The Fourth Circuit, therefore, gives deference to the fiduciary’s decision as long as it appears 413

from the face of the plan documents that the plan fiduciary is authorized to determine eligibility for plan benefits and construe plan language. Id. See also Rego v. Westvaco Corp., 319 F.3d 140, 146–47 (4th Cir. 2003). Indeed, an explicit grant of discretionary authority is not required; a plan’s provisions can create discretion by implication if the plan documents indicate a clear intention to delegate final authority for benefit determinations to the plan fiduciary. See Rego, 319 F.3d at 146; Boyd v. Tr. of the United Mine Workers Health & Ret. Funds, 873 F.2d 57, 59 (4th Cir. 1989) (pension plan trustees had discretionary authority because they had power of “full and final determinations as to all issues concerning eligibility for benefits” and “are authorized to promulgate rules and regulations to implement [the] Plan”). But see Woods v. Prudential Ins. Co. of Am., 528 F.3d 320, 322 (4th Cir. 2008) (holding language “when Prudential determines” conferred authority, not discretion, on Prudential). In Rego, for example, the court found discretionary authority because the plan documents (1) instructed the plan administrator “to adopt such procedures and rules as he deems necessary or advisable to administer the Plan,” and (2) indicated the plan administrator was responsible for determining participant eligibility and appeals of denied claims. 319 F.3d at 147 (quoting plan provisions). The Fourth Circuit also found discretionary authority under a plan authorizing a plan fiduciary to “construe the terms of the Plan and resolve any disputes which may arise with regard to the rights of any persons under the terms of the Plan.” United McGill Corp. v. Stinnett, 154 F.3d 168, 171 (4th Cir. 1998). In contrast, the court found 414

no discretionary authority even though a plan provided that (1) “written notice of a claim for disability must be given to [the insurer],” (2) “written proof should establish facts about the claim such as occurrence, nature and extent of the disability, injury or sickness or the loss involved,” (3) the insurer had the “right to require additional written proof to verify the continuance of any disability,” and (4) the insurer had the right to “request this additional proof as often as [it feels] is necessary, within reason.” Feder v. Paul Revere Life Ins. Co., 228 F.3d 518, 523–24 (4th Cir. 2000). The Fourth Circuit further found no discretionary authority when a plan specified “a claimant is eligible for benefits ‘when [the insurer] determines’ that eligibility exists and that disabilities are ‘determined by [the insurer].’” Woods, 528 F.3d at 322. The court found the authority to make determinations insufficient to create discretionary authority. Id. at 322–23. B. What Standard of Review Applies? If the court finds a plan confers discretionary authority on a plan fiduciary, then a decision denying plan benefits will be reviewed for an abuse of discretion. See Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 232 (4th Cir. 1997). Applying this deferential standard, the decision will not be disturbed if it is reasonable, even if the court would have reached a different conclusion independently. Id. A decision is reasonable if it results from a deliberate, principled reasoning process and is supported by substantial evidence. Id. See also Brogan v. Holland, 105 F.3d 158, 161 n.3 (4th Cir. 1997) (“arbitrary and capricious standard” is synonymous with “abuse of 415

discretion standard”). The court considers several factors in determining whether an abuse of discretion occurred. See Brogan, 105 F.3d at 161; Lockhart v. United Mine Workers of Am. 1974 Pension Trust, 5 F.3d 74, 77 (4th Cir. 1993); De Nobel, 885 F.2d at 1188. The court considers, for example, whether the interpretation of the plan is consistent with plan goals and whether the interpretation might render other plan language meaningless or internally inconsistent. See, e.g., De Nobel v. Vitro Corp., 885 F.2d 1180, 1188 (4th Cir. 1989). The court also considers whether the interpretation conflicts with the procedural and substantive requirements of ERISA. Id. Other considerations include whether the disputed provisions have been consistently applied and whether the interpretation is contrary to the plan’s clear language. Id. Post MetLife v. Glenn, the Fourth Circuit confirmed the following eight non-exclusive Booth factors that may be considered on review of a fiduciary’s decision under the abuse of discretion standard: “(1) the language of the plan; (2) the purposes and goals of the plan; (3) the adequacy of the materials considered to make the decision and the degree to which they support it; (4) whether the fiduciary’s interpretation was consistent with other provisions in the plan and with earlier interpretations of the plan; (5) whether the decision-making process was reasoned and principled; (6) whether the decision was consistent with the procedural and substantive requirements of ERISA; (7) any external standard relevant to the exercise of discretion; and (8) the fiduciary’s motives and any conflict of interest it may have.” Champion v. Black & Decker, Inc., 550 F.3d 353, 416

359 (4th Cir. 2008) (citing Booth v. Wal-Mart Stores, Inc. Assocs. Health and Welfare Plan, 201 F.3d 335, 542–43 (4th Cir. 2000)). See also Carden v. Aetna Life Ins. Co., 559 F.3d 256, 263 (4th Cir. 2009). C. Effect of Conflict of Interest or Procedural Irregularity In Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 114–15 (2008), the Supreme Court held that employers that fund plans and pay claims as well as insurance companies that receive premiums and pay claims are both subject to a conflict of interest. In Champion v. Black & Decker, Inc., 550 F.3d 353, 358–59 (4th Cir. 2008), the Fourth Circuit recognized that post-Glenn, “a conflict of interest is readily determinable by the dual role of an administrator or other fiduciary.” The Fourth Circuit found the Supreme Court’s decision in Glenn changed how a conflict of interest should be taken into account in reviewing a discretionary benefit determination. Id. A conflict of interest cannot change the standard of review from deferential to de novo, but rather is a factor to be weighed in determining whether an abuse of discretion occurred. Id. See also Catledge v. Aetna Life Ins. Co., 594 F. Supp. 2d 610, 629 (D.S.C. 2009). The Fourth Circuit stated, “courts are to apply simply the abuse-of-discretion standard for reviewing discretionary determinations by that administrator, even if the administrator operated under a conflict of interest. Under that familiar standard, a discretionary determination will be upheld if reasonable.” See Champion, 550 F.3d at 359.

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Procedural irregularities cannot justify substituting a de novo standard of review for an abuse of discretion standard. See Wertheim v. Hartford Life Ins. Co., 268 F. Supp. 2d 643, 664 (E.D. Va. 2003) (construing effect of “deemed denied” on standard of review). Rather, if a plan fiduciary fails to comply with ERISA’s procedural requirements, the appropriate remedy is remand for a full and fair review. See Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 239–42 (4th Cir. 2008) (holding district court erred in granting substantive remedy for procedural defect, ordering remand to administrator for “full and fair review”); Weaver v. Phoenix Home Mut. Life Ins. Co., 990 F.2d 154, 159 (4th Cir. 1993); see also Berry v. Ciba-Geigy Corp., 761 F.2d 1003, 1007 n.4 (4th Cir. 1985) (instructing district court to remand to plan administrator if court found the plan failed to comply with ERISA regulations). Remand for procedural irregularities is not always required in the Fourth Circuit. Remand is unnecessary if, for example, the evidence clearly establishes an abuse of discretion. See Weaver, 990 F.2d at 159 (insurer’s admission it did not know basis for claim denial evidenced an abuse of discretion, thereby allowing court to dispense with remand). Remand also may be unnecessary if no causal connection exists between the procedural irregularities and the final claim determination. See Ellis, 126 F.3d at 228–39 (although administrator technically failed to comply with ERISA’s procedural regulations, remand was pointless because review was substantively full and fair). More recently, the Fourth Circuit found no basis for either remand or finding an abuse of discretion, when the final appeal letter 418

thoroughly outlined the reasons for the decision, the claimant possessed a “sufficiently clear understanding of the administrator’s position” to effectively appeal, and the claimant failed to identify any additional information he would have added to the administrative record. See Larson v. Old Dominion Freight Line, Inc., 277 F. App’x 318, 322 (4th Cir. 2008). D. Standard of Review for Self-Funded Plans If an employer is both plan fiduciary and insurer, then the inherent conflict of interest is a factor the court will consider in reviewing any decision for abuse of discretion. See Denver v. Verizon Claims Review Comm., No. 09-902, 2010 U.S. LEXIS 78687, at *27–28 (D. Md. Aug. 2, 2010). If a self-funded plan retains a third party to adjudicate claims, then no conflict of interest exists. Mullins v. AT&T Corp., Nos. 04-2135, 04-2136, 07-1717, 424 Fed. App’x 217, 224–25 (4th Cir. 2011); see also Spry v. Eaton Corp. LTD Plan, 326 Fed. App’x 674, 679–81 (4th Cir. 2009). E. Other Factors Affecting Standard of Review Significantly, although the deferential standard of review afforded to ERISA plan administrators and fiduciaries is well established, state laws may attempt to limit this deferential standard. In 1998, for example, the Maryland legislature enacted a comprehensive regulatory scheme that established benefit determination standards for health insurers and provided claimants with an external administrative remedy

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when benefits are denied. See Md. Code Ann., Ins. §§ 15-10A-01 to 15-10C-04. The Maryland regulation established standards for utilization review (an internal process health insurers employ to make initial benefit determinations), required health insurers to maintain an internal grievance procedure for insureds to dispute benefit determinations, and provided insureds with an external review process through the Maryland Insurance Administration. Id. The statutorily mandated external review process empowered the Maryland Insurance Commissioner to (1) determine whether a health insurer improperly denied benefits, (2) order the insurer to provide the disputed benefits, and (3) impose penalties against insurers, including fines, for improper denial of health care benefits. Id. Under the statute, the Insurance Commissioner’s external review is de novo; thus, no deference is given to the insurer’s utilization review determination or internal grievance decision. In fact, the Insurance Commissioner may rely upon the advice of an independent review organization or a medical expert of his choice. See Md. Code Ann., Ins. § 15-10A-03(d). Further, “the Commissioner may consider all of the facts of the case and any other evidence that the Commissioner or designee of the Commissioner considers appropriate.” Id. § 15-10A-03(e)(2). In addition, the health insurer shall have the burden of persuasion that its adverse decision is correct. See id. § 15-10A-03(e)(1). Thus, the Maryland statute and other similar state statutes may alter the deferential standard of review.

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Courts consistently conclude that such independent review statutes are not preempted by ERISA. See Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 365–75 (2002) (Illinois independent review statute not preempted by ERISA); Larsen v. Cigna Healthcare Mid-Atlantic, Inc., 224 F. Supp. 2d 998, 1009–10 (D. Md. 2002) (abstaining from rendering decision, but noting Maryland’s internal and external review statutes not necessarily preempted by ERISA). Statutes attempting to impose additional liabilities and duties on plans, however, may be preempted. Aetna v. Davila, 542 U.S. 200, 212–14 (2004) (claims under Texas Health Care Liability Act preempted by ERISA). Thus, the precise parameters of what states can and cannot require remains in flux. V. Rules of Plan Interpretation A. Application of Federal Common Law When interpreting the provisions of an ERISA plan, courts are guided by federal common law. See, e.g., Baker v. Provident Life & Accid. Ins. Co., 171 F.3d 939, 942 (4th Cir. 1999); United McGill Corp. v. Stinnett, 154 F.3d 168, 171–72 (4th Cir. 1998); see also Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 156 (1985) (noting legislative history demonstrates Congress intended federal courts to develop federal common law to deal with issues involving rights and obligations under ERISA plans). Federal common law, however, may not be used to override the express terms of the plan. See Baker, 171 F.3d at 942 (language of plan is paramount to interpretation); United McGill, 154 F.3d at 172–73 (“[W]e are bound to enforce the contractual provisions as 421

drafted.”); Grose v. Sun Life Assur. Co. of Can., 568 F. Supp. 2d 652, 655–56 (W.D. Va. 2008). Rather, the Fourth Circuit requires the plain language of the plan be enforced in accordance with “its literal and natural meaning.” See United McGill, 154 F.3d at 172 (one of ERISA’s primary functions is to ensure integrity of written plan). Thus, the Fourth Circuit uses and applies ordinary principles of contract law and enforces an ERISA plan’s plain language in its ordinary sense. See Bynum v. CIGNA Healthcare of N.C., Inc., 287 F.3d 305, 313 (4th Cir. 2002). B. Application of Contra Proferentem Before the Supreme Court’s decision in Glenn, the Fourth Circuit applied contra proferentem to construe ambiguity in an ERISA plan against the drafter if the drafter had a conflict of interest. See, e.g., Bynum v. CIGNA Healthcare of N.C., Inc., 287 F.3d 305, 313–14 (4th Cir. 2002). In Glenn, however, the Supreme Court stated it was not “necessary or desirable for courts to create special burden-of-proof rules, or other special procedural or evidentiary rules, focused narrowly upon the evaluator/ payor conflict.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 116 (2008). The Fourth Circuit recognized this change in the law in Carden v. Aetna Life Ins. Co., 559 F.3d 256, 260 (4th Cir. 2009). The Carden court determined that continued application of the rule of contra proferentem in conflict of interest cases was no longer appropriate. Id. at 260. “As the result of Glenn, whenever a plan administrator employs its interpretive discretion to construe an ambiguous provision in favor of its financial interest, that fact may be considered as a 422

factor weighing against the reasonableness of its decision.” Id. at 261. C. Deference Afforded Interpretation of a Plan

to

an

Administrator’s

The general rule is that if a plan fiduciary has discretion to construe plan terms, a court must accept the fiduciary’s construction unless the court finds an abuse of discretion. See Bynum v. CIGNA Healthcare of N.C., Inc., 287 F.3d 305, 313 (4th Cir. 2002). Courts may reference several sources, including state and federal law, to determine whether the administrator’s interpretation of an undefined plan term is reasonable. See Baker v. Provident Life & Accid. Ins. Co., 171 F.3d 939, 942 (4th Cir. 1999). In Baker, the insured drove his car while intoxicated, resulting in a head-on collision with another car, which killed the driver in the other car. Id. at 941. The insured pled guilty to, inter alia, involuntary manslaughter and driving while impaired. Id. (involuntary manslaughter is a felony under North Carolina law, and driving while impaired is a misdemeanor). The ERISA plan provided benefits would not be paid if the illness or injury to the insured was “due to voluntary participation in a felony.” Id. (quoting plan language). The insurer, therefore, determined no benefits were due. Id. The Fourth Circuit examined the reasonableness of the interpretation of the term “voluntary” and focused on the closely analogous area of accidental death benefits. Id. at 942. The court noted that, under federal and North Carolina law, the general rule is the natural or probable consequence of an act or course of action is not an accident, and the insured should be held to have intended the result. Id. The court, 423

therefore, concluded the denial of benefits was reasonable because the insured voluntarily drank too much, voluntarily drove while drunk, and should reasonably have foreseen the results of his actions. Id. at 942–43. D. Other Rules of Plan or Contract Interpretation Plan interpretation may involve plan amendments as well as the terms of the original plan. Significantly, benefits under welfare benefit plans, such as health care and severance benefit plans, are not vested benefits. See Wheeler v. Dynamic Eng’g, Inc., 62 F.3d 634, 637 (4th Cir. 1995); Doe v. Grp. Hospitalization & Med. Servs., 3 F.3d 80, 84 (4th Cir. 1993); Sejman v. Warner-Lambert Co., 889 F.2d 1346, 1348–49 (4th Cir. 1989). An employer, therefore, may modify or withdraw plan benefits at any time. See Grp. Hospitalization, 3 F.3d at 84. To be effective, any amendment must be made in compliance with ERISA’s requirements and the terms of the plan. See id. (contract validly amended and insurer could base claim decision on language of amendment). In addition, because vesting may occur based on the existing plan terms, amendment may not apply to all claims under a plan. See Wheeler, 62 F.3d at 637–38. In Wheeler, the plan administrator denied a claim for high-dose chemotherapy with peripheral stem cell rescue (HDC/PSCR), a cancer treatment that involved a four-step process. Id. at 637. The plan administrator based the denial on a January 1, 1994, plan amendment that eliminated this coverage. Id. The Fourth Circuit considered whether Wheeler’s coverage for the HDC/ PSCR treatment vested under the terms of the prior plan. 424

Id. at 637–38. If so, then the amendment would be ineffective because a subsequent amendment could not apply retroactively to exclude vested coverage. Id. Applying a de novo standard of review, the court held that (1) if a medical insurance policy insures against illness, coverage for medical costs arising from an illness vests when that illness occurs; and (2) if a medical insurance policy insures against expenses, coverage vests when expenses are incurred. Id. Wheeler’s plan provided coverage for medical expenses, but failed to define the term “incurred.” Id. at 639. Analyzing the law of various state and federal courts, the Fourth Circuit concluded that an insured “incurs” all expenses stemming from a multistep medical procedure when the insured arranges for and begins the treatment. Id. The expenses were incurred and coverage vested under the prior plan when Wheeler began the HDC/PSCR treatment on December 15, 1993. Id. Thus, the amended plan, which became effective January 1, 1994, could not retroactively exclude coverage, and the remaining HDC/PSCR treatments were covered based on the prior plan terms. Id. at 640–41. Another example of the Fourth Circuit’s opposition to the forfeiture of vested welfare plan benefits may be found in the court’s decision in Blackshear v. Reliance Standard Life Ins. Co., 509 F.3d 634 (4th Cir. 2007). In that case, at the time of the employee’s death, the employee had coverage under both the SPD and the policy. Id. at 637. After death, the policy and SPD were amended to establish a six-month waiting period before coverage became effective. Id. Based on this change in policy, the claim for employee death benefits was denied. Id. The district court affirmed the denial of death benefits 425

because the amendment was the result of a “denial error” and the policy permitted amendment for the “clerical errors.” Id. at 638. The Fourth Circuit reversed. Id. at 644. The Fourth Circuit reasoned the right to receive death benefits vested at the time of the employee’s death and the amended policy could not deprive the beneficiary of a vested benefit. Id. at 641. The court rejected the argument that the “clerical errors” provision in the policy authorized “the administrator to divest benefits that are already due by amending, modifying or correcting the language of the policy itself.” Id. at 642. The Fourth Circuit further rejected any attempted equitable reformation, finding it inconsistent with ERISA’s protection of vested rights. Id. at 643–44. E. Plan Documents Rule In Boyd v. Metro. Life Ins. Co., 636 F.3d 138, 142–44 (4th Cir. 2011), the Fourth Circuit explicitly adopted the plan documents rule articulated in the Supreme Court’s decision in Kennedy v. Plan Administrator for DuPont Savs. & Inv. Plan, 555 U.S. 285 (2009). According to the Fourth Circuit, the plan documents rule contemplates that plan administrators will “look solely at the ‘directives of the plan documents’ in determining how to disburse benefits.” Boyd, 636 F.3d at 140 (quoting Kennedy, 555 U.S. at 300). Accordingly, the Fourth Circuit found MetLife properly paid the designated beneficiary, notwithstanding a prior waiver in a separation agreement. Id. at 143. VI. Discovery

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A. Limitations on Discovery The Fourth Circuit has not comprehensively addressed, by published decision, the scope of discovery in ERISA actions. Accordingly, the district courts are guided by the evidentiary rules set forth in Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1021–27 (4th Cir. 1993). Quesinberry held that a district court reviewing a denial of benefits de novo may consider evidence outside the administrative record in its discretion, but “only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.” Id. at 1025. It cautioned that “[i]n most cases, where additional evidence is not necessary for adequate review of the benefits decision, the district court should look only at the evidence that was before the plan administrator or trustee at the time of determination.” Id. The court of appeals elaborated in Sheppard & Enoch Pratt Hospital, Inc. v. Travelers Ins. Co., 32 F.3d 120, 125 (4th Cir. 1994): Thus, although it may be appropriate for a court conducting a de novo review of a plan administrator’s action to consider evidence that was not taken into account by the administrator, the contrary approach should be followed when conducting a review under the abuse of discretion standard. “[W]hen a district court reviews a plan administrator’s decision under a deferential standard, the district court is limited to the evidence that was before the plan administrator at the time of the decision.” Bernstein v. Capital-Care, Inc., 70 F.3d 783, 788 (4th Cir. 1995). 427

However, two recent decisions, McCravy v. Metro. Life Ins. Co., 690 F.3d 176 (4th Cir. 2012), and Helton v. AT&T, Inc., 709 F.3d 343 (4th Cir. 2013), may lead to increased discovery in actions to recover plan benefits. In McCravy, the court held that equitable relief may be available to a plaintiff whose claim is barred by plan terms. Such claims may turn on facts not contained in the administrative record. Helton, elaborating on Sheppard and other earlier rulings, held that a trial court could sometimes consider information constructively “known” to a claim administrator through its employees and records in determining whether there was an abuse of discretion. Helton thus invites inquiry about matters available to the claim administrator but not included in the administrative record. Some older, unpublished decisions provide guidance regarding discovery limitations in actions to challenge the denial of benefits governed by the abuse of discretion standard. In Donnell v. Metro. Life Ins. Co., 165 F. App’x 288, 2006 WL 297314 (4th Cir. 2006), the court of appeals sustained the trial court’s denial of benefits following review for an abuse of discretion. On appeal, the plaintiff contended that she should have been permitted to conduct discovery regarding the insurer’s conflict of interest. The court concluded that the district court’s decision was proper “even under the least deferential version of our modified abuse of discretion standard,” so that such evidence could not change the outcome. The court added: Where, as here, a court reviews an administrator’s decision under a deferential standard, discovery and 428

introduction of extrinsic evidence pertaining to the “mental processes of the plan’s administrator” are generally, if not uniformly, disallowed. 2006 WL 297314, at *9. In another action in which the denial of benefits was reviewed for an abuse of discretion, the court sustained the trial court’s decision denying discovery as to a previous business relationship between the defendant insurer and a vocational expert upon whose report the denial was, in part, based. Abromitis v. Cont’l Cas. Co., 114 F. App’x 57, 2004 WL 2491367 (4th Cir. 2004). The court of appeals endorsed the trial court’s analysis distinguishing the conflict of interest between a claimant and administrator, which is relevant, from the incidental possibility of a conflict of interest between the claim administrator and its employees and consultants, which is not. The court noted that a relevant inquiry might be whether the vocational survey contained inaccurate information, undermining the decision. 2004 WL 2491367, at *4 n.2. Some Fourth Circuit opinions reflect that discovery did take place at the district court level even though the claim fiduciary had discretionary authority. See, e.g., Bedrick v. Travelers Ins. Co., 93 F.3d 149, 153 (1996). However, as noted in Workman v. Aetna Life Ins. Co., 2007 WL 951765 (S.D. W. Va. 2007), Bedrick did not address the propriety of such discovery, to which the parties apparently had agreed. But see Cotter v. Prudential Financial, 238 F.R.D. 567, 573 (N.D. W. Va. 2006) (court considered Bedrick to constitute implicit approval 429

of discovery in a case governed by a deferential standard of review, and required the defendant to respond to several requests for admission). B. Discovery and Conflict of Interest In Booth v. Wal-Mart Stores, Inc. Assoc. Health & Welfare Plan, 201 F.3d 335, 342–43 (4th Cir. 2000), the court enumerated certain nonexclusive factors that “a court may consider” in determining whether a benefit denial should be reversed for abuse of discretion. Subsequent cases often utilize Booth as a guide, both in determining whether there has been an abuse of discretion and in resolving discovery issues. One of those factors is “the fiduciary’s motives and any conflict of interest it may have.” Id. Donnell v. Metro. Life Ins. Co., 165 F. App’x 288, 2006 WL 297314, at *9 (4th Cir. 2006), affirmed one of several decisions from the Eastern District of Virginia rejecting contentions that a claimant is entitled to conduct discovery regarding the degree of conflict in an abuse of discretion case. When the plan is insured, the nature of the conflict is clear, and that fact is to be taken into account on review. In McKeldin v. Reliance Standard Life Ins. Co., 254 F. App’x 964, 2007 WL 3022526, at *6 (4th Cir. 2007), the court sustained summary judgment for the defendant. It rejected plaintiff’s argument that she should have been allowed to conduct discovery regarding the handling of her claim, because her argument was “mooted by the fact that the district court’s analysis already took into account Reliance’s conflict of interest.” See also Stanley v. Metro. Life Ins. Co., 312 F. Supp. 2d 786 (E.D. 430

Va. 2004), and Burkhart v. Metro. Life Ins. Co., 2003 WL 21655486 (E.D. Va. 2003). In those cases, claimants had contended that Booth permitted limited discovery, and noted that discovery had been permitted in Bedrick v. Travelers Ins. Co., 93 F.3d 149 (4th Cir. 1996). The district court observed that neither decision addressed the propriety of discovery. The review must be from the record itself: Plaintiff is mistaken in her assertion that she is entitled to discovery of the administrator’s “knowledge” at the time MetLife evaluated the claim. Discovery into MetLife’s thought processes is prohibited. Stanley, 312 F. Supp. 2d at 791. In Bartel v. Sun Life Assur. Co. of Canada, 536 F. Supp. 2d 623 (D. Md. 2008), the court summarized relevant Fourth Circuit cases addressing discovery to ascertain conflict of interest, stating: The law in the Fourth Circuit, therefore, appears to preclude discovery beyond the administrative record when the court’s review is for an abuse of discretion. This rule applies equally to discovery concerning the extent of a conflict of interest, where, as here, that conflict is apparent. As previously discussed, where a conflict is apparent, the court will weigh it as a factor under the modified abuse of discretion standard. Limiting discovery and requiring a court to consider only the record that was before the plan administrator promotes ERISA objectives of promptly resolving

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claims and preventing courts from becoming substitute plan administrators. Id. at 631 (citations and footnotes omitted). Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), ended the Fourth Circuit’s “modified abuse of discretion” approach when there was a conflict of interest. Glenn held that the “dual role” of funding the plan and deciding claims necessarily creates a conflict of interest. Accordingly, when the defendant is in such a “dual role,” further evidence regarding the relationship between the parties should not be necessary to establish the existence of a conflict. As discussed in Champion v. Black & Decker (U.S.) Inc., 550 F.3d 353 (4th Cir. 2008), Glenn altered the approach to be taken in analyzing the existence of a conflict, abrogating a number of earlier holdings. When a conflict of interest exists, the court must take that factor into account, along with other relevant factors in determining whether there has been an abuse of discretion, but it does not change the standard of review. Champion reaffirmed the nonexclusive list of factors set out in Booth as matters that a court may consider in conducting such a review. It did not appear to alter the method of analysis suggested in Booth, but indicated that inquiry into the existence of a conflict may be unnecessary. See also Dean v. DaimlerChrysler Life, Disability & Health Care Benefits Program, 2010 WL 3895363, at *4 (D. Md. 2010) (concluding that discovery is normally not appropriate when the existence of a conflict of interest is established).

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In Clark v. Unum Life Ins. Co. of Am., 799 F. Supp. 2d 527 (D. Md. 2011), the court tracked post-Glenn decisions addressing discovery on conflict of interest questions, and acknowledged that limited discovery on this issue may be appropriate. The court required the parties to first address whether the existing administrative record was sufficient to determine the extent that any conflict of interest influenced the claim decision. Following the parties’ submissions, the court found that the administrative record itself sufficiently described a thorough claim analysis and decision-making process, so that no discovery was needed. In Anderson v. Reliance Standard Life Ins. Co., 2012 WL 32568 (D. Md. 2012), the court referred to the holding in Clark, but nevertheless permitted some written discovery into relationships between the plan administrator, the plan insurer and claim service providers. Plaintiff’s detailed allegations contended that these entities were improperly influenced by their business relationships, so that some discovery was permitted, despite the court’s skepticism about these claims. See also Kane v. UPS Pension Plan Board of Trustees, 2012 WL 5869307 (D. Md. 2012) (permitting some conflict of interest discovery). C. Limited Types of Discovery Permitted Some discovery may be permitted if there is uncertainty as to the manner in which a decision was made. See, e.g., Vaughan v. Celanese Ams. Corp., 2007 WL 2875222 (W.D.N.C. 2007), aff’d, 339 F. App’x 320, 2009 WL 2337350 (4th Cir. 2009), in which the district court heard evidence on the conflict of interest issue, ultimately ruling for the defendant on summary judgment. 433

In Mullins v. AT&T Corp., 290 F. App’x 642, 2008 WL 4073848 (4th Cir. 2008), the Fourth Circuit upheld a claimant’s right to obtain claim manual materials and guidelines pertinent to her disability claim, which was to be reviewed under the abuse of discretion standard. But see Brooks v. Metro. Life Ins. Co., 526 F. Supp. 2d 534 (D. Md. 2007) (court declined to permit the plaintiff to supplement the administrative record with claim guidelines after the insurer submitted an affidavit stating that any guidelines relied upon would have been specifically noted in the claim file). As previously discussed, Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), necessitates reevaluation of some of these earlier rulings. Discovery may be necessary to determine ERISA applicability. See Moore v. Life Ins. Co. of N. Am., 278 F. App’x 238, 2008 WL 2076376 (4th Cir. 2008), on remand, Moore v. Life Ins. Co. of N. Am., 708 F. Supp. 2d 597 (N.D. W. Va. 2010). A number of district court decisions have addressed specific discovery issues. In actions challenging an insurer’s denial of benefits under the pre-Glenn “modified abuse of discretion” standard, discovery beyond production of the policy, plan, and administrative record was normally disallowed. See, e.g., Briggs v. Marriott Int’l, Inc., 368 F. Supp. 2d 461, 467 n.4 (D. Md. 2005); Sawyer v. Potash Corp. of Sask., 417 F. Supp. 2d 730, 737–38 (E.D.N.C. 2006). Limited discovery was allowed when an insurer asserted an overpayment claim, and there were factual questions about the circumstances. Cress v. Ga.-Pac., LLC, 2008 WL 3895796 (W.D. Va. 2008). In 434

Total Renal Care of North Carolina, LLC v. Fresh Market, Inc., 457 F. Supp. 2d 619 (M.D.N.C. 2006), the court permitted limited discovery by the plaintiff service provider regarding its standing to pursue health care claims assigned to it. In Catledge v. Aetna Life Ins. Co., 594 F. Supp. 2d 610 (D.S.C. 2009), two limited depositions of claim personnel were permitted in an accidental death case despite a grant of discretionary authority. In other types of ERISA cases, such as claims for breach of fiduciary duty or interference with ERISA rights, standard discovery procedures usually apply. See, e.g., O’Donnell v. Biolife Plasma Servs., L.P., 384 F. Supp. 2d 971 (S.D. W. Va. 2005). However, even in such cases, it may be appropriate to limit discovery. See, e.g., Schaffer v. Westinghouse Savannah River Co., 135 F. App’x 568, 2005 WL 567812, at *3 (4th Cir. 2005). D. Fiduciary Exception to Claims of Privilege Claimants sometimes contend that documents pertaining to a claim must be produced as part of the administrative record even if they are otherwise privileged. In Solis v. Food Employers Labor Relations Ass’n, 644 F.3d 221 (4th Cir. 2011), the court addressed, for the first time, the applicability of the “fiduciary exception” to the discovery of attorney-client communications or work product in the ERISA context. Food Employers held that the fiduciary exception entitled the Secretary of Labor to enforce a subpoena for documents, otherwise privileged, “regarding plan administration.” Because there was no showing that the documents were prepared in anticipation of litigation, 435

they were not protected by the separate attorney workproduct privilege. Several district court decisions had applied the “fiduciary exception” to allow an ERISA plan beneficiary to seek documents pertaining to plan administration, on the grounds that beneficiaries are true clients of the attorney, or are otherwise entitled to have full access to information regarding plan administration. E.g., Coffman v. Metro. Life Ins. Co., 204 F.R.D. 296 (S.D. W. Va. 2001). As confirmed in Food Employers, the exception is not applicable to privileged communications relating to plan design. Tatum v. R.J. Reynolds Tobacco Co., 247 F.R.D. 488 (M.D.N.C. 2008). The exception cannot be used to obtain documents relating to privileged communications after a claim has been denied and litigation threatened. Fortier v. Principal Life Ins. Co., 2008 WL 2323918 (E.D.N.C. 2008). Clark v. Unum Life Ins. Co. of Am., 799 F. Supp. 2d 527, 537 (D. Md. 2012), highlighted the narrow scope of this exception; “the Solis opinion noted that the exception does not apply to all communications between ERISA trustees and their counsel, but only those concerning the fiduciary relationship.” VII. Evidence A. Scope of Evidence under Standards of Review 1. Abuse of Discretion Standard When a district court in the Fourth Circuit reviews an ERISA plan administrator’s decision under the abuse of 436

discretion standard, the court must assess the reasonableness of the administrator’s decision based upon the facts known to the administrator at the time. Elliott v. Sara Lee Corp., 190 F.3d 601, 608 (4th Cir. 1999); Bernstein v. CapitalCare, Inc., 70 F.3d 783, 788 (4th Cir. 1995); Sheppard & Enoch Pratt Hosp., 32 F.3d 120, 125 (4th Cir. 1994). If the denial of benefits was the result of a “deliberate, principled reasoning process and … is supported by substantial evidence,” it must be affirmed. Bernstein, 70 F.3d at 787. If the court concludes that the administrator lacked adequate evidence upon which to base a decision, the court should remand the claim to the administrator for a new determination rather than considering additional evidence. Elliott, 190 F.3d at 609; Sheppard, 32 F.3d at 125; Berry v. Ciba-Geigy Corp., 761 F.2d 1003, 1008 (4th Cir. 1985). See also Cole v. Aetna Life Ins. Co., 2012 WL 252731 (D.S.C. 2012) (plaintiff’s motion to remand granted, permitting her to submit additional materials to the insurer). In Helton v. AT&T, Inc., 709 F.3d 343 (4th Cir. 2013), the court expanded on these earlier holdings. The plaintiff sought retirement plan benefits which had been available to her for a number of years, contending that she had not been informed of her right to request the benefits until much later. The district court held that she was entitled to receive retroactive benefits, relying largely on evidence not contained in the administrative record relating to whether notice was given to her in earlier years. The plaintiff claimed that she had not received prior notice, and questioned the sufficiency of evidence regarding any mailing of notice to her. The district court found, and the court of appeals affirmed, that the benefit committee had 437

abused its discretion in failing to investigate questions about notice. The court of appeals, quoting from the earlier Sheppard decision, held that it was proper to consider evidence constructively known to the claim administrator at the time. This includes not only any material inappropriately excluded from the administrative record, but evidence of which the defendant may have had constructive knowledge through its employees and records. The court stated: In sum, under Sheppard, a district court may consider evidence outside of the administrative record on abuse of discretion review in an ERISA case when such evidence is necessary to adequately assess the Booth factors and the evidence was known to the plan administrator when it rendered its benefits determination. Id. at 356. The court noted that such evidence was appropriate here to “evaluate the adequacy of the administrative record” and to assess “the impact of a plan fiduciary’s conflict of interest.” Accordingly, the extent to which such extrinsic evidence is discoverable and admissible remains unclear. In Worsley v. Aetna Life Ins. Co., 780 F. Supp. 2d 397, 407 (W.D.N.C. 2011), the court discussed the tension between the need for some information as to an insurer’s procedural safeguards to diminish the effect of any conflict of interest, and the risk that expansive inquiries would undermine the objectives of ERISA. The court concluded that Aetna’s affidavit and discovery responses

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provided sufficient evidence to evaluate this factor without discovery. Consideration of claim guidelines, outside the administrative record, may be appropriate in determining whether there has been an abuse of discretion. Mullins v. AT&T Corp., 2011 WL 1491223 (4th Cir. 2011). In evaluating medical evidence, courts sometimes rely on medical reference books or Internet material for clarification of basic medical terminology. See, e.g., Stup v. Unum Life Ins. Co. of Am., 390 F.3d 301 (4th Cir. 2004). A finding that a denial of benefits constituted an abuse of discretion does not necessarily entitle the claimant to benefits; he must still satisfy his burden of proving a claim from the administrative record itself. For example, in Champion v. Black & Decker (U.S.) Inc., 550 F.3d 353 (4th Cir. 2008), the district court had found that the defendant plan abused its discretion in denying benefits, and remanded the claim to the plan for further consideration as to whether a mental health benefit limitation applied and whether the plaintiff met the “any occupation” definition of disability. Champion, 2007 WL 963478 (D.S.C. 2007). Following remand, the district court found from the expanded record that the plan did not abuse its discretion in applying the mental health limitation. Champion, 2007 WL 2493527 (D.S.C. 2007). Remand may be appropriate when the administrative record does not contain medical records that should have been reviewed. Chaffin v. NiSource, Inc., 703 F. Supp. 2d 579 (S.D. W. Va. 2010).

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Helton should reduce disputes over what constitutes “the administrative record.” Documents provided to the claim administrator before its decision may be considered, whether or not they have been treated as part of the administrative record. Likewise, documents not available at the time a claim decision was made should not be considered. Anderson v. Sara Lee Corp., 348 F. Supp. 2d 618 (W.D.N.C. 2004). District courts have differed in their rulings regarding attempts to supplement the record after a final claim decision. In Sawyer v. Potash Corp. of Sask., 417 F. Supp. 2d 730 (E.D.N.C. 2006), the court did not allow the plaintiff to supplement the administrative record with reports created more than a year after the denial on appeal. In Craine v. Hartford Life & Accid. Ins. Co., 2011 WL 1130591, at *5–6 (M.D.N.C. 2011), the court denied plaintiff’s motion to supplement the record with documents tendered to the insurer prior to litigation, which it had returned. However, in Brodish v. Federal Express Corp., 384 F. Supp. 2d 827 (D. Md. 2005), the court held that materials relating to the administrator’s refusal to reconsider the claim six months after the denial on appeal, but before suit, should be considered part of the administrative record. See also Gaines v. Guardian Life Ins. Co. of Am., 2010 WL 1759579 (D. Md. 2010). Some courts have specifically directed the administrator to consider additional material upon remand, based upon perceived deficiencies in the existing record. In Hill v. Hartford Life & Accid. Ins. Co., 743 F. Supp. 2d 569 (W.D. Va. 2010), the court remanded the claim to the administrator, so that certain additional medical

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records could be obtained and a functional capacity evaluation, which had been considered but not completed, could be performed. In Chaffin v. NiSource, Inc., 703 F. Supp. 2d 579 (S.D. W. Va. 2010), the court directed the administrator to obtain certain medical records known to exist, but specifically provided that a Social Security decision made after the claim decision need not be added. 2. De Novo Standard When a district court employs the de novo standard to review an ERISA claim denial, the court may, in its discretion, consider evidence that was not before the plan administrator. Elliott v. Sara Lee Corp., 190 F.3d 601, 609 n.6 (4th Cir. 1999); Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993). The district court should consider such additional evidence only when it is necessary to conduct an adequate de novo review of the decision. The Fourth Circuit has described certain exceptional circumstances that may warrant exercise of the court’s discretion to allow additional evidence. This list is not exhaustive, but rather is a guide for district courts faced with motions to introduce evidence not previously presented to the plan administrator. Quesinberry, 987 F.2d at 1027. Examples include: claims that require consideration of complex medical questions or issues regarding the credibility of medical experts; the availability of very limited administrative review procedures with little or no evidentiary record; the necessity of evidence regarding interpretation of the terms of the plan rather than specific historical facts; instances where the payor and the administrator 441

are the same entity and the court is concerned about impartiality; claims which would have been insurance contract claims prior to ERISA; and circumstances in which there is additional evidence that the claimant could not have presented in the administrative process. Id. In determining whether to admit additional evidence, the court “should address why the evidence proffered was not submitted to the plan administrator.” Id. In Elswick v. Life Ins. Co. of N. Am., 2007 WL 2745358 (S.D. W. Va. 2007), the court permitted the plaintiff to supplement the administrative record with a deposition from her physician to explain his change of position regarding her claimed disability, because she had had no means of compelling his testimony during the administrative process. However, the court rejected plaintiff’s request to submit other medical evidence because it was “cumulative or unnecessary for adequate review of the benefits decision.” Id. at *14. Admission of such evidence may be appropriate if “administrative procedures do not allow for or permit the introduction of the evidence.” Elliott, 190 F.3d at 609 n.6; Quesinberry, 987 F.2d at 1027. Such evidence must not be admitted where it is only “cumulative of the evidence presented to the plan administrator, or is simply better evidence than the claimant mustered for the claim review.” Elliott, 190 F.3d at 609 n.6; Quesinberry, 987 F.2d at 1027. Tester v. Reliance Standard Life Ins. Co., 228 F.3d 372 (4th Cir. 2000), affirmed the trial court’s decision in favor of plaintiff upon a de novo review, in an action to 442

recover group life insurance benefits. The trial court admitted testimony regarding the decedent’s employment status because of ambiguity in the plan’s definition of “active employee.” The defendant contended that the decedent was not an “active employee” at the time of her death, and thus no longer covered. In Shoop v. Life Ins. Co. of N. Am., 839 F. Supp. 2d 830 (E.D. Va. 2011), which also addressed a question of life insurance eligibility, the court considered language from the summary plan description in determining what was intended by the plan itself. While the summary plan description could not modify plan terms, it constituted evidence of what has been intended by ambiguous plan language. In most cases, the district court should consider only the evidence that went before the claim administrator. For example, it was not an abuse of discretion for the trial court to deny consideration of a supplemental analysis of a toxicology report that could have been added to the administrative record. Moore v. Unum Provident Corp., 116 F. App’x 416, 2004 WL 2538211 (4th Cir. 2004). In a de novo review, it is within the trial court’s discretion to strike reports tendered by plaintiff that were not part of the administrative record. Whitten v. Hartford Life Group Ins. Co., 247 F. App’x 426, 2007 WL 1856517 (4th Cir. 2007). B. Particular Types of Evidence The Fourth Circuit has stated that it is not an abuse of discretion for a plan fiduciary to deny disability benefits where conflicting medical reports were presented. Elliott, 443

190 F.3d at 606; Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 234 (4th Cir. 1997). In disability cases, particularly those being decided under an abuse of discretion standard, disputes often arise about the weight to be given to particular types of evidence. The Fourth Circuit Court of Appeals has commented on the difficulty of applying the abuse of discretion standard: The word “abuse” recognizes that authority can be misused. The word “discretion” recognizes that the exercise of authority is often impossible without some leeway for judgment. But taken together, the two words convey an unmistakable message: that as a matter of priority as well as sequence, discretion is first, and review for abuse is only a posterior check on judgment which strays too far from the mark. Evans v. Eaton Corp. Long-Term Disability Plan, 514 F.3d 315, 322 (4th Cir. 2008). Evans reversed a trial court determination that the plaintiff was entitled to benefits. By giving undue weight to the opinions of treating physicians, “the [district] court joined the fray, purportedly applying an abuse of discretion standard, but actually re-weighing the evidence for itself.” Id. at 325. As directed by the Supreme Court in Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003), no special weight should be given to the opinion of a treating physician. Claimants sometimes contend that the plan administrator is required to arrange for particular testing or a vocational analysis as part of the claim process. In Zhou v. Metro. Life Ins. Co., 807 F. Supp. 2d 458 (D. Md. 444

2011), the court found that there had been an abuse of discretion in denying a psychiatric claim, largely due to the absence of an independent medical examination. Generally, a plan is not required to obtain a vocational or occupational analysis. Piepenhagen v. Old Dominion Freight Line, Inc., 395 F. App’x 950, 2010 WL 6323225 (4th Cir. 2010); Elliott v. Sara Lee Corp., 190 F.3d 601, 609 (4th Cir. 1999); LeFebre v. Westinghouse Electric Corp., 747 F.2d 197, 206 (4th Cir. 1984). On occasion, a court may suggest that an administrator take specific steps on remand. In Hill v. Hartford Life & Accid. Ins. Co., 743 F. Supp. 2d 569 (W.D. Va. 2010), the court remanded, encouraging the insurer to perform a functional capacity evaluation on remand. C. Evidentiary Determinations

Value

of

Social

Security

The impact of Social Security is often disputed. A plan administrator is under no obligation to weigh Social Security determinations more favorably than other evidence unless the plan expressly declares that Social Security determinations are binding on the plan. Gallagher v. Reliance Standard Life Ins. Co., 305 F.3d 264, 275 (4th Cir. 2002); Elliott, 190 F.3d at 607–08; Simmons v. Prudential Ins. Co. of Am., 564 F. Supp. 2d 515 (E.D.N.C. 2008). See also Smith v. Cont’l Cas. Co., 369 F.3d 412, 418–19 (4th Cir. 2004) (in reversing the district court decision in favor of claimant, the court held it was error to utilize Social Security procedures for purpose of evaluating a disability claim under an employer-sponsored plan). 445

However, a district court may conclude that a favorable Social Security decision “should be given significant weight” in evaluating whether the denial of disability benefits constituted an abuse of discretion. Hines v. Unum Life Ins. Co. of Am., 110 F. Supp. 2d 458, 468 (W.D. Va. 2000). Despite the long-standing Fourth Circuit precedent holding that Social Security determinations of disability are not entitled to special weight, and the holding of the Supreme Court in Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003), district courts continue to encounter such arguments from litigants. See, e.g., McCready v. Standard Ins. Co., 417 F. Supp. 2d 684, 702 (D. Md. 2006) (reiterating that a disability finding by Social Security does not mandate a finding of disability under a plan). In Crouch v. Siemens Short-Term Disability Plan, 662 F. Supp. 2d 553, 560–61 (S.D. W. Va. 2009), the court remanded the claim for further consideration due to the insurer’s failure to consider an award of Social Security disability benefits. The insurer contended that the award was of no significance because it did not explain the medical basis underlying the decision. The court found it to be an abuse of discretion not to have considered it. However, in Spry v. Eaton Corp. Long Term Disability Plan, 326 F. App’x 674, 2009 WL 1524934 (4th Cir. 2009), the district court had concluded that the administrator did not give adequate weight to a favorable Social Security decision, and awarded benefits. The court of appeals reversed, noting that the award was more than five years before the claim decision at issue. Courts often explain what can be a significant difference between the Social Security determination and the ERISA claim at issue. E.g., Gluth v. Federal Home Loan Mortgage Corp. Long-Term 446

Disability Plan, 2013 WL 246897 (E.D.Va. 2013); Hunter v. Aetna Life Ins. Co., 2012 WL 4325641 (W.D.Va. 2012). Others suggest that the administrative record should include an analysis of the difference between Social Security and the claim. Dupell v. Aetna Life Ins. Co., 2013 WL 271792 (N.D.W. Va. 2013). Plans sometimes require participants to seek Social Security disability benefits, as noted in Metro. Life Ins. Co. v. Glenn, 54 U.S. 105 (2008). This practice has led to contentions that later claim denials are an abuse of discretion. Winebarger v. Liberty Life Assur. Co. of Boston, 571 F. Supp. 2d 719, 725 (W.D. Va. 2008), observed that an insurer was taking “inconsistent positions” by “encouraging the claimant to seek social security benefits and then ignoring the finding of the Social Security Administration that the claimant was disabled from any employment.” In Piepenhagen v. Old Dominion Freight Line, Inc., 395 F. App’x 950, 2010 WL 3623225 (4th Cir. 2010), the court confirmed that it was proper to give little weight to a favorable Social Security ruling, even though the claimant had been encouraged to apply for such benefits. The fact that a plan encouraged a Social Security claim is not necessarily indicative of the plan’s evaluation of disability. Roberts v. Am. Elec. Power Long-Term Disability Plan, 2010 WL 2854299, at *11 (S.D.W.Va. 2010). D. An IME versus Paper Review In a de novo review, some courts have given IME’s more weight than a review of medical records by a reviewing doctor. For example, in Neumann v. Prudential Ins. Co. of 447

Am., 367 F. Supp. 2d 969 (E.D. Va. 2005), the court observed that the insurer’s consultants “merely reviewed [the claimant’s] medical file,” whereas another doctor on which it relied on more had performed an IME. Id. at 990–91. The court also noted that two of the insurer’s consultants were employed by the insurer and that one of the outside consultants “issued only a cursory twoparagraph report.” Id. E. Objective versus Subjective Evidence In cases involving complaints of pain, denials may be based upon lack of objective evidence of an impairment. As noted in Williams v. Metro. Life Ins. Co., 632 F. Supp. 2d 525, 540 (E.D.N.C. 2008), aff’d, 609 F.3d 622 (4th Cir. 2010), it is reasonable for a plan to require some objective evidence to establish disability. In Hensley v. Int’l Business Machines Corp., 123 F. App’x 534, 2004 WL 2857576 (4th Cir. 2004), the court endorsed the normal preference for objective evidence. See also Neumann v. Prudential Ins. Co. of Am., 367 F. Supp. 2d 969, 992 (E.D. Va. 2005) (“To be sure, it is appropriate for a plan administrator to accord substantial weight to the absence of objective evidence of a disability claim, especially if a claimant’s subjective pain complaints are suspect or unreliable.”). However, reliable subjective complaints cannot be ignored. The Fourth Circuit has ruled that, under plan language before it, the claims administrator had to consider a claimant’s subjective pain as a possible debilitating factor. DuPerry v. Life Ins. Co. of N. Am., 632 F.3d 860, 873 (4th Cir. 2011). Because the policy in 448

DuPerry contained no provision precluding a claimant from relying on her subjective complaints as part of her evidence of disability, her claim could not be reasonably denied because of such reliance. Id. at 873. The claims administrator was not required to simply accept the claimant’s subjective complaints of pain without question, but neither could it simply dismiss such subjective complaints of pain out of hand, especially where there is objective medical proof of a disease that could cause such pain. Id. at 874. See also Neumann, 367 F. Supp. at 993. In Van Valen v. Employee Welfare Benefits Committee Northrup Grumman Corp., 741 F. Supp. 2d 756 (W.D. Va. 2010), involving a claim based on fatigue and possible chronic fatigue syndrome, the court distinguished between proof of the existence of a disease and proof of degree of impairment. Some disorders, such as those characterized by pain or fatigue, ultimately must be diagnosed on the basis of subjective complaints. However, the degree to which such a disorder or disease causes a claimant incapacity to work may be subject to objective testing, and it is not unreasonable to require such objective proof of disability. Id. at 763–64. There is a Social Security Administration rule that requires that the disabling effects of pain must be evaluated, even though its intensity or severity is shown only by subjective evidence. In Smith v. Continental Cas. Co., 369 F.3d 412, 420 (4th Cir. 2004), the district court, rather than applying the language in the plan under which the plaintiff claimed benefits, imported that Social Security Administration rule. The Fourth Circuit reversed and remanded to the district court, holding that the 449

language of the plan controls even if applying the plan terms would produce a different result than would be produced by the Social Security Administration rules. See id. at 419–20. On the other hand, in DuPerry, 632 F.3d 860, the Fourth Circuit held that a district court may apply a rule similar to that applied by the district court in Smith if the rule is derived from a commonsense interpretation of the plan language rather than by importing the rule from the Social Security Administration. Id. at 874. VIII. Procedural Aspects of ERISA Practice A. Correct Defendant in an Action for ERISA Benefits District courts have relied upon Gluth v. Wal-Mart Stores, Inc., 1997 WL 368625 (4th Cir. 1997), for guidance regarding proper parties to actions involving ERISA benefits. Gluth held it improper to join as a defendant the plan funding mechanism, a trust, because it exercised no control over plan administration. There, the employer was not a proper defendant because it did not exercise any discretion in plan administration. A party which assists in claim administration in a ministerial capacity, without discretionary authority, is not a proper defendant. Healthsouth Rehabilitation Hospital v. Am. Nat’l Red Cross, 101 F.3d 1005, 1008-09 (4th Cir. 1996). In McRae v. Rogosin Converters, Inc., 301 F. Supp. 2d 471, 475–76 (M.D.N.C. 2004), the court discussed the split among circuit courts about whether any party, other than the plan itself, could be sued for benefits. Relying on the discussion in Gluth, the court held that it was proper to sue a plan fiduciary, and that the case could go forward against a fiduciary without joining the plan. In Ankney v. 450

Metro. Life Ins. Co., 438 F. Supp. 2d 566 (D. Md. 2006), the court dismissed the employer, holding that the proper defendants were any entities with discretionary authority over the plan. B. Methods of Adjudication Many reported ERISA decisions are reviews of the denial of benefits under an abuse of discretion standard, normally resolved by summary judgment. In Phelps v. C.T. Enterprises, Inc., 394 F.3d 213 (4th Cir. 2005), the court of appeals commented that such cases did, in fact, involve a modified summary judgment procedure, noting the discussion in Wilkins v. Baptist Healthcare Systems, Inc., 150 F.3d 609, 617 (6th Cir. 1998). It is appropriate in some cases to sustain a fiduciary’s denial of benefits as a matter of law on summary judgment, even if the de novo standard is applicable, and the trial court finds benefits to be due. See Gallagher v. Reliance Standard Life Ins. Co., 305 F.3d 264 (4th Cir. 2002). Most decisions reviewing a claim under the abuse of discretion standard are reached through dispositive motions, although some courts have concluded that a trial is necessary to resolve material issues of fact. See, e.g., Watson v. Unum Life Ins. Co. of Am., 126 F. App’x 604, 2005 WL 665055 (4th Cir. 2005) (sustaining district court bench trial finding that defendant had not abused its discretion); Eubanks v. Prudential Ins. Co. of Am., 336 F. Supp. 2d 521 (M.D.N.C. 2004). In Harvey v. Astra Merck Inc. Long Term Disability Plan, 348 F. Supp. 2d 536 (M.D.N.C. 2004), the court concluded that summary 451

judgment could not be granted to either party because there were issues of fact as to the insurer’s motives and the extent to which the conflict of interest affected the claim decision. In Vaughan v. Celanese Americas Corp., 2007 WL 2875222 (W.D.N.C. 2007), the court conducted a bench trial on the single issue of whether the benefits committee of the plan was unduly influenced by a conflict of interest, and found that it was not. It then addressed the remaining Booth factors on cross-motions for summary judgment and found for the defendant. If the administrative record is inadequate to make a claim decision, remand to the claim administrator is appropriate. Elliott v. Sara Lee Corp., 190 F. 3d 601, 609 (4th Cir. 1999). The Fourth Circuit recently ruled that a district court order remanding to an ERISA claims administrator for reconsideration does not constitute a final decision and is not appealable. Dickens v. Aetna Life Ins. Co., 677 F.3d 228, 231 (4th Cir. 2012). C. Reported ERISA Trials In actions for breach of fiduciary duty, trials should follow the same procedure as other bench trials. See, e.g., DiFelice v. U.S. Airways, Inc., 436 F. Supp. 2d 756 (E.D. Va. 2006), aff’d, 497 F.3d 410 (4th Cir. 2007); Meyer v. Berkshire Life Ins. Co., 250 F. Supp. 2d 544 (D. Md. 2003), aff’d, 372 F.3d 261 (4th Cir. 2004). There is a dearth of specific appellate guidance regarding the procedure to be followed in an action for recovery of benefits, where the administrative record is the source of most, or all, admissible evidence. It is sometimes difficult to determine from the appellate decision exactly what procedure was employed by the trial court. For example, 452

in Booth v. Wal-Mart Stores, Inc. Associates Health & Welfare Plan, 201 F.3d 335 (4th Cir. 2000), the court of appeals reversed the trial court’s decision, at a bench trial, that the claim committee had abused its discretion. Because the trial court opinion is unreported, it is unclear how the district court handled the case procedurally. In Newman v. Prudential Ins. Co. of Am., 367 F. Supp. 2d 969 (E.D. Va. 2005), the court elaborated on the nature of a bench trial in which a claim denial is to be reviewed de novo. After addressing the analyses of other circuits, particularly the Sixth Circuit, the court outlined the procedure it considered appropriate in an ERISA bench trial for recovery of benefits; it would make findings of fact and conclusions of law from the existing administrative record, unless supplemental material is admitted under the narrow guidelines of Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017 (4th Cir. 1993). Examples of other bench trials in actions to recover ERISA benefits include Danz v. Life Ins. Co. of N. Am., 215 F. Supp. 2d 645 (D. Md. 2002) (group life insurance benefits denied on grounds that preexisting heart condition substantially contributed to death); Bynum v. Cigna Healthcare of N.C., Inc., 287 F.3d 305 (4th Cir. 2002) (appeal from district court bench trial involving claim for benefits under ERISA health plan where parties agreed to forgo consideration on summary judgment); Myers v. Hercules, Inc., 253 F.3d 761 (4th Cir. 2001) (appeal from district court bench trial involving claim for benefits under disability plan). Most of these trials were de novo reviews of claim denials. However, in Bynum the parties agreed to a bench trial even though the case was to be decided under the abuse of discretion standard. 453

Retirement or severance plan claims may necessitate trial due to the lack of a clear administrative record. See, e.g., Rinaldi v. CCX, Inc., 388 F. App’x 290, 2010 WL 2803915 (4th Cir. 2010) (affirming results of trial on a severance pay claim). However, retirement cases also are ordinarily decided on summary judgment. Vincent v. Lucent Techs., Inc., 733 F. Supp. 2d 729 (W.D.N.C. 2010). D. Jury Trials The Fourth Circuit has ruled that a jury trial is inappropriate in an action brought under ERISA. See Biggers v. Wittek Indus., Inc., 4 F.3d 291 (4th Cir. 1993); Berry v. Ciba-Geigy, 761 F.2d 1003 (4th Cir. 1985). More recently, Phelps v. C.T. Enterprises, Inc., 394 F.3d 213 (4th Cir. 2005), observed that claims alleging breach of fiduciary duty require no special procedure, except that they must be resolved by the court rather than by jury because the equitable relief provision of ERISA does not provide the right to a jury trial. Phelps does not address the possible impact of the Seventh Amendment, relying upon the court’s prior ruling in Berry v. Ciba-Geigy Corp. If ERISA and non-ERISA claims are brought jointly, only the non-ERISA claims are to be presented to the jury. Varghese v. Honeywell Int’l, Inc., 424 F.3d 411, 415 n.5 (4th Cir. 2005). See also Vaughan v. Celanese Ams. Corp., 339 F. App’x 320, 333 (4th Cir. 2009) (“Indeed, the purpose of having a judge—rather than a jury—assess the reasonableness of a benefits decision is that the judge is better-equipped to engage in a nuanced weighing of relevant factors”) (dissent).

454

A majority of district courts in the Fourth Circuit has found that jury trials are not available in ERISA actions. See, e.g., Grevera v. Microsoft Corp., 2013 U.S. Dist. LEXIS 16022 (W.D.N.C. 2013); Trotter v. Kennedy Krieger Inst., Inc., 2012 U.S. Dist. LEXIS 30335 (D. Md. 2012); Coleman v. Provident Life & Accid. Ins. Co., 2011 U.S. Dist. LEXIS 54426, at *1–2 (D. Md. May 20, 2011); Fanase v. Liberty Life Assur. Co., 2011 U.S. Dist. LEXIS 48416, at *16–17 (N.D. W. Va. May 5, 2011); Gardner v. TIMCO Aviation Servs., 2010 U.S. Dist. LEXIS 85633 (M.D.N.C. Aug. 19, 2010); McDonough v. Aetna Life Ins. Co., 2010 U.S. Dist. LEXIS 35237 (W.D. Va. Apr. 8, 2010); Ford v. Hartford Life & Accid. Ins. Co., 2009 U.S. Dist. LEXIS 29711 (W.D.N.C. 2009); Rinaldi v. CCX, Inc., 2009 U.S. Dist. LEXIS 16101 (W.D.N.C. 2009); Pressley v. Tupperware Long Term Dis. Plan, 2008 U.S. Dist. LEXIS 107116 (D.S.C. 2008). Despite such precedent, a few district court opinions have reached the opposite conclusion. These cases were decided after Biggers and Berry, but before Phelps. For example, in Hulcher v. United Behavioral Systems, Inc., 919 F. Supp. 879 (E.D. Va. 1995), the district court held that a jury trial is permitted under 29 U.S.C. § 1132(a)(1)(B) for a participant’s benefit claim under ERISA. The court reasoned that although the claim arose under ERISA, both the nature of the issue to be tried and the nature of the remedy sought were most closely analogous to an action in contract. See also Vaughn v. Owen Steel Co., 871 F. Supp. 247 (D.S.C. 1994). More recently, in Lamberty v. Premier Millwork & Lumber Co., 329 F. Supp. 2d 737 (E.D. Va. 2004), the court concluded that the Constitution provides a right to jury trial on a 455

claim for breach of fiduciary duty, relying upon recent Supreme Court decisions. See also Termini v. Life Ins. Co. of N. Am., 474 F. Supp. 2d 775, 778 (E.D. Va. 2007). Some district courts have refused to follow Hulcher. See Cherepinsky v. Sears Roebuck & Co., 455 F. Supp. 2d 470, 476 (D.S.C. 2006); Lawrence v. Cont’l Cas. Co., 1998 U.S. Dist. LEXIS 15108 (M.D.N.C. 1998); Ellis v. Metro. Life Ins. Co., 919 F. Supp. 936 (E.D. Va. 1996). Other district courts have questioned the ruling but concluded that a jury trial was not available after following its analysis. Allison v. Cont’l Cas. Ins. Co., 953 F. Supp. 127, 129 (E.D. Va. 1996). In addition, one district court found that neither Berry nor Biggers was dispositive. Williams v. Unum Life Ins. Co. of Am., 940 F. Supp. 136, 141 (E.D. Va. 1996). E. Special Procedures for ERISA Benefit Cases Although the Fourth Circuit has not adopted special procedures for ERISA actions, some district courts have implemented expedited procedures for the handling of ERISA actions. For example, case management orders used in the District of South Carolina require responses to special interrogatories designed to identify preemption issues and call for expedited production of the administrative record and policy. As noted in Dawkins v. Owens Corning Hourly Employees’ Retirement Plan, 2007 WL 2903955 (D.S.C. 2007), the parties may agree to decide the action upon cross-motions for judgment on the record, rather than summary judgment, even when governed by the abuse of discretion standard.

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IX. Remedies A. Award of Benefits and Interest Most ERISA suits are actions to recover plan benefits filed pursuant to 29 U.S.C. § 1132 (a)(1)(B). A successful claimant may not only recover benefits but may, in the court’s discretion, recover prejudgment interest. Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1030–31 (4th Cir. 1993). Courts take varying approaches to interest calculation. E.g., Feldman’s Medical Center Pharmacy, Inc. v. CareFirst Inc., 823 F. Supp. 2d 307, 326–27 (D.Md. 2011). The district court may, in its discretion, remand a claim if the record is inadequate for review. Elliott v. Sara Lee Corp., 190 F. 3d 601, 609 (4th Cir. 1999); Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 n.6 (4th Cir. 1993). Normally, “remand should be used sparingly.” Elliott, 190 F.3d at 609; Berry v. Ciba-Geigy, 761 F.2d 1003, 1008 (4th Cir. 1985). B. Equitable Relief for Plan Beneficiaries Prior to CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011), the availability of a plan benefit claim, regardless of its merits, normally precluded recovery of damages characterized as “other appropriate equitable relief” under 29 U.S.C. § 1132(a)(3). A claim for a purported breach of fiduciary duty under 29 U.S.C. § 1104 could not be used to recover monetary damages in lieu of a flawed benefit claim. Dwyer v. Metro. Life Ins. Co., 2001 WL 94749 (4th Cir. 2001). See also Sawyer v. Potash Corp. of Sask., 417 F. Supp. 2d 730, 745 (E.D.N.C. 2006); Korotynska v. 457

Metro. Life Ins. Co., 474 F.3d 101 (4th Cir. 2006). In McCravy v. Metro. Life Ins. Co., 650 F.3d 414 (4th Cir. 2011), decided the same day as Amara, the court applied this principle to affirm denial of the plaintiff’s claim. Following Amara, the court reversed its prior ruling. McCravy v. Metro. Life Ins. Co., 690 F.3d 176 (4th Cir. 2012) (McCravy II). (Other types of claims for breach of fiduciary duty in violation of 29 U.S.C. § 1104 are separately discussed in the next section.). In McCravy, the plaintiff had participated in a life insurance plan, administered by the plan’s insurer, which permitted her to obtain coverage on her daughter. Although the daughter had been ineligible for coverage for several years because of her age, premiums were collected through the time of her death. The district court had granted summary judgment to the plaintiff, but limited recovery to return of premiums. In McCravy II, relying on Amara, the court of appeals held that the equitable remedies of estoppel and surcharge are potentially available to claimants under § 1132(a)(3) when plan benefits are not recoverable. The court concluded that the plaintiff might be successful in pursuing two different equitable remedies, either “surcharging” the insurer for the amount of her claim due to its retention of premiums for an ineligible participant, or by applying equitable estoppel to allow her to obtain a conversion policy after the stated deadline for doing so had passed. Central to McCravy II was the fact that the insurer had accepted premiums after coverage ended, and would presumably have retained those premiums if she had not died. It characterized these premiums as “windfall profits” which provided “perverse incentives” to the 458

fiduciary “to wrongfully accept premiums.” 690 F.3d at 183. Footnote 4 reaffirmed that “equitable estoppel is of limited applicability in ERISA cases,” citing Coleman v. Nationwide Life Insurance Co., 969 F.2d 54 (4th Cir. 1992). Unlike McCravy, Coleman did not involve retention of premiums by an insurer. In Moon v. BWX Technology, Inc., 2012 WL 5992209 (4th Cir. 2012), similar claims for equitable relief were spared from dismissal. The plaintiff’s widow contended that her husband was eligible for certain life insurance coverage, based upon a purported understanding that he would be covered after he ceased to be an active employee. The benefit claim was barred by plan terms. While observing that the factual record provided little support for her equitable relief claims, the court of appeals nevertheless remanded to the district court for further consideration of claims for equitable relief or breach of fiduciary duty in light of Amara. Both decisions acknowledged that estoppel may not be used to modify the terms of a plan. Estoppel claims can also arise in the context of health benefits. In Strickland v. AT&T Umbrella Benefit Plan No. 1, 2012 WL 4511367 (W.D.N.C. 2012), the court denied summary judgment to both parties as a result of Amara and McCravy. The plaintiff contended that he had been misinformed regarding the interplay between his group health coverage and Medicare, and in reliance he incurred medical expenses which otherwise could have been postponed until new coverage became effective. Trial was required to resolve issues of material fact relating to telephone calls concerning coverage and the 459

degree to which the plaintiff relied on purported misrepresentations.

460

X. Fiduciary Liability Claims A. Definition of Fiduciary In Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 418 n.3 (4th Cir. 1993), the Fourth Circuit observed that “the concept of a fiduciary under ERISA is broader than the common law concept of a trustee.” ERISA fiduciaries include those specifically named as fiduciaries in the plan instrument and those who, pursuant to a procedure specified in the plan, are identified as fiduciaries. Custer v. Sweeney, 89 F.3d 1156, 1161 (4th Cir. 1996) (citing 29 U.S.C. § 1102(a)(2)). Equally important, a fiduciary is “any individual who de facto performs specified discretionary functions with respect to the management, assets, or administration of a plan.” Id. “The statutory language plainly indicates that the fiduciary function is not an indivisible one.” Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 61 (4th Cir. 1992) (holding that insurance company did not have fiduciary duty to notify beneficiary that her benefits were at risk due to employer’s nonpayment of premiums). “Fiduciary status under ERISA is not ‘an all-or-nothing concept.’” Sweeney, 89 F.3d at 1162 (quoting Coleman). Relying upon the language of 29 U.S.C. § 1002(21)(A), the Fourth Circuit has held that “a party is a fiduciary only as to the activities which bring the person within the definition.” Id. Because fiduciary status is often based upon a finding that the party had discretionary authority as to the specific

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act at issue, determination of fiduciary status frequently turns on facts specific to a particular case. For example, although an attorney is a fiduciary to his or her client, the Fourth Circuit has held that mere representation of an ERISA plan by an attorney “does not make the attorney an ERISA fiduciary because legal representation of ERISA plans rarely involves the discretionary authority or control required by the statute’s definition of ‘fiduciary.’” Sweeney, 89 F.3d at 1162 (emphasis added). Furthermore, “a plan sponsor does not become a fiduciary by performing settlor-type functions such as establishing a plan and designing its benefits.” Coyne & Delany Co. v. Selman, 98 F.3d 1457, 1465 (4th Cir. 1996). A plan cannot be a fiduciary subject to breach of fiduciary claims. Reininger v. Azdel, Inc. Ret. Plan, 2011 WL 814984 (W.D.N.C. 2011). In Estate of Weeks v. Advance Stores Co., 99 F. App’x 470, 2004 WL 1191792 (4th Cir. 2004), the court of appeals affirmed dismissal of a claim against an individual human resource manager based on her purported misrepresentations regarding continuation of life coverage. The record established that the individual defendant did not have discretionary authority or control with respect to the administration of the plans at issue, nor was she a named fiduciary. In Adams v. Brink’s Co., 420 F. Supp. 2d 523 (W.D. Va. 2006), aff’d, 261 F. App’x 583, 2008 WL 142771 (4th Cir. 2008), the court carefully parsed specific allegations of misrepresentation against each individual defendant in dismissing various claims for breach of fiduciary duty. The court noted that handling of clerical or routine administrative duties, “such as answering employees’ inquiries or processing claim forms 462

does not amount to discretionary functions, which would qualify a person as a fiduciary under ERISA.” Id. at 551–52. See also DiFelice v. U.S. Airways, Inc., 497 F.3d 410, 418 (4th Cir. 2007) (“ERISA fiduciaries owe these duties only when they are acting in their capacity as a fiduciary.”). Because corporate officers and directors are not fiduciaries simply by virtue of their corporate positions, the complaint must allege specific facts demonstrating fiduciary status. In re Mutual Funds Investment Litigation, 403 F. Supp. 2d 434, 445–47 (D. Md. 2005). When a claim administrator has a limited role in processing claims and does not have discretionary authority, it is not an ERISA fiduciary. Healthsouth Rehab. Hosp. v. Am. Nat’l Red Cross, 101 F.3d 1005, 1009 (4th Cir. 1996). See also Haidle v. Chippenham Hosp. Inc., 855 F. Supp. 127 (E.D. Va. 1994) (insurance company was not an ERISA fiduciary where it provided claims processing and other administrative services with respect to medical benefits plan subject to review and modification by plan administrator). A trust that is simply the “funding mechanism” for a plan is not a fiduciary and, therefore, not a proper party to a benefits action. Gluth v. Wal-Mart Stores, Inc., 117 F.3d 1413 (tbl.), 1997 WL 368625, at *6 (4th Cir. 1997). An employer’s status as a fiduciary is a frequently litigated issue. An employer that has not exercised any influence over a claim decision is not a fiduciary and, thereby, is not a proper party to an action to recover plan benefits. Sawyer v. Potash Corp. of Sask., 417 F. Supp. 2d 730, 737 (E.D.N.C. 2006). See also Moon v. BWX 463

Technologies, 2013 WL 3462692 (W.D. Va. 2013), in which the court held that an employer was not a fiduciary subject to equitable estoppel and surcharge claims. In Phelps v. C.T. Enterprises, 394 F.3d 213 (4th Cir. 2005), the court of appeals reversed summary judgment dismissing claims against defendants for their alleged failure to apply funds withdrawn from payroll to a health plan. When an employer is to remit employee funds to the claim administrator, the employer is usually a fiduciary in that activity. Id. at 219–20. The court of appeals has held that an employer whose role included that of a plan administrator was an ERISA fiduciary. Shade v. Panhandle Motor Serv. Corp., 91 F.3d 133 (tbl.), 1996 WL 386611 (4th Cir. 1996). See also Broadnax Mills, Inc. v. Blue Cross & Blue Shield of Va., 867 F. Supp. 398 (E.D. Va. 1994) (holding that both employer and insurer were fiduciaries because both were imbued with discretionary authority—the employer to maintain the plan and the insurer to administer and manage the plan—in a dispute regarding stop-loss coverage). However, an employer does not have fiduciary duties with respect to its actions in creating a plan. Elmore v. Cone Mills, 23 F.3d 855, 862 (4th Cir. 1994). B. Definition of Fiduciary Duties ERISA’s fiduciary responsibility provisions represent a codification of the common law of trusts. Griggs v. E.I. DuPont de Nemours & Co., 237 F.3d 371, 380 (4th Cir. 2001); Faircloth v. Lundy Packing Co., 91 F.3d 648, 656 (4th Cir. 1996). Accordingly, “ERISA commands undivided loyalty to plan participants” at all times, 464

including situations in which the fiduciary may have a conflict of interest, such as an insured health plan, where, in exchange for premiums from the employer, the insurer processes and pays claims and acts as the plan administrator. Bedrick v. Travelers Ins. Co., 93 F.3d 149, 154 (4th Cir. 1996). ERISA fiduciaries must “discharge their responsibilities ‘with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man would use.’” Bidwill v. Garvey, 943 F.2d 498, 507 (4th Cir. 1991) (quoting 29 U.S.C. § 1104(a)(1)(B)). ERISA further “requires plan fiduciaries to discharge their duties with respect to a plan ‘in accordance with the documents and instruments governing the plan.’” Faircloth, 91 F.3d at 658 (quoting 29 U.S.C. § 1104(a)(1)(D)). Claims alleging breach of fiduciary duty often relate to purported misrepresentations regarding benefits. When a participant makes a specific inquiry related to a yearly retirement election, an ERISA fiduciary has an “obligation ‘not to misinform employees through material misrepresentations and incomplete, inconsistent or contradictory disclosures.’” Griggs, 237 F.3d at 380 (quoting Harte v. Bethlehem Steel Corp., 214 F.3d 446, 452 (3d Cir. 2000)). Although there is no “general duty” that a fiduciary “ascertain on an individual basis whether each beneficiary understands the collateral consequences of his or her particular election,” if “an ERISA fiduciary … knows or should know that a beneficiary [is acting] under a material misunderstanding of plan benefits that will inure to his detriment,” the fiduciary “cannot remain silent,” particularly if the misunderstanding is the result of “the fiduciary’s own material representations or 465

omissions.” Id. at 381. In some circumstances, a fiduciary must inform a beneficiary of a change in coverage status. Shade, 1996 WL 386611 (4th Cir. 1996). Many recent fiduciary duty cases relate to retirement plans rather than welfare benefit plans. See, e.g., George v. Duke Energy Ret. Cash Balance Plan, 560 F. Supp. 2d 444 (D.S.C. 2008) (challenge to plan design). ERISA requires that a fiduciary diversify the plan’s investments unless circumstances dictate that it is not prudent to do so. Reich v. Walter W. King Plumbing & Heating Contractor, Inc., 98 F.3d 147, 152 (4th Cir. 1996) (citing 29 U.S.C. § 1104(a)(1)(C)). A trustee who fails to adequately investigate plan investment options is not liable for breach of duty if a “hypothetical prudent fiduciary would have made the same investment anyway.” Plasterers’ Local Union No. 96 Pension Plan v. Pepper, 663 F. 3d 210, 218 (4th Cir. 2011). These must be a loss caused to the plan before there can be potential liability, under 29 U.S.C. § 1109(a). Class action claims for purported failure to divest company stock as the price fell may be dismissed for failure to state a claim if the allegations fail to set out the breach of duty with specificity. In re Constellation Energy Group, 738 F. Supp. 2d 602 (D. Md. 2010). Modifications to plans, adoption of plan provisions that violate the technical requirements of ERISA, or the manner by which lump sum benefits are calculated may give rise to breach of fiduciary claims. E.g., Pender v. Bank of Am. Corp., 269 F.R.D. 589, 2010 WL 5071169 (W.D.N.C. 2010); George v. Duke Energy Ret. Cash 466

Balance Plan, 259 F.R.D. 225 (D.S.C. 2009); Cuthie v. Fleet Reserve Ass’n, 743 F. Supp. 2d 486 (D. Md. 2010). In DiFelice v. U.S. Airways, Inc., 497 F.3d 410 (4th Cir. 2007), a class of employees asserted that it had been a breach of fiduciary duty to offer company stock as a plan investment option. The court summarized the duties of a fiduciary as follows: Thus, in common parlance ERISA fiduciaries owe participants duties of prudence and loyalty. To enforce these duties, “the court focuses not only on the merits of [a] transaction, but also the thoroughness of the investigation into the merits of [that] transaction.” Good faith does not provide a defense to a claim of a breach of these fiduciary duties; “a pure heart and an empty head are not enough.” Id. at 418 (citations omitted). The district court had dismissed the action, in part because the participants had a range of options, so that the decision to invest in company stock was ultimately that of the employee, and because the plan had utilized investment advisors. DiFelice v. U.S. Airways, Inc., 436 F. Supp. 2d 756 (E.D. Va. 2006). The court of appeals did not agree that the availability of other options would excuse a fiduciary from offering an imprudent one, but found that the company stock option was prudent, taking into account the advice relied upon, and the disclosure to participants of the degree of risk involved. Accordingly, it affirmed the judgment. See also Boyd v. Coventry Health Care Inc., 828 F. Supp. 2d 809 (D. Md. 2011) (applying Di Felice, the plaintiffs may go forward with suit challenging investment decisions). 467

In David v. Alphin, 704 F.3d 327, 334–39 (4th Cir. 2013), the court held that beneficiaries of an overfunded defined benefit pension plan, where benefits are fixed, do not have standing to challenge investment fees paid by the plan, because they have suffered no injury. Other claims for alleged prohibited transactions in a separate 401(k) plan were properly dismissed due to the statute of limitations. The plaintiffs contended that certain investment options in funds affiliated with the bank plan sponsor were improper; the limitations period for any such claims began to run when the options were first offered. Id. at 339–43. C. Fiduciary Liability in the Context of Health and Disability Claims Claims for breach of fiduciary duty in connection with ERISA plans have arisen in a variety of contexts. Most common, of course, are claims for plan benefits under 29 U.S.C. § 1132(a)(1)(B). As discussed separately in the “Remedies” section, prior to McCravy v. Metro. Life Ins. Co., 690 F.3d 176 (4th Cir. 2012), the availability of a claim for benefits normally precluded a claim for equitable relief under 29 U.S.C. § 1132(a)(3). In Korotynska v. Metro. Life Ins. Co., 474 F.3d 101 (4th Cir. 2006), the court stated that “[i]ndividualized equitable relief under § 1132(a)(3) is normally appropriate only for injuries that do not find adequate redress in ERISA’s other provisions.” Id. at 102. McCravy now permits equitable relief in some instances.

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In Marks v. Watters, 322 F.3d 316, 326 (4th Cir. 2003), the court addressed claims relating to the death of the insured. Applying Pegram v. Herdrich, 530 U.S. 211 (2000), the court found that the state law claims against the plan administrator and case manager were preempted because they related to plan administration rather than treatment. The court concluded that the factual record did not support a claim that the plan administrator and case manager breached a fiduciary duty under ERISA where the insured, who had been released from a mental health facility, murdered his family, and subsequently committed suicide. In Coyne & Delany Co. v. Selman, 98 F.3d 1457 (4th Cir. 1996), the court of appeals considered claims brought by an employer alleging that defendant plan administrator had improperly designed its group health plan and failed to obtain proper replacement coverage. The court ruled that the employer was a fiduciary with standing to assert ERISA claims because of its power to appoint and remove the plan administrator. Because the plan had paid a portion of a nonparticipant’s medical expenses, it was entitled to proceed on its ERISA claim. Further, the employer’s state law malpractice claims were deemed not to be preempted. However, an employer may not bring an action against a fiduciary to obtain benefits for an employee; such action must be brought by a plan participant or beneficiary. Coyne & Delany Co. v. Blue Cross & Blue Shield of Va., Inc., 102 F.3d 712 (4th Cir. 1996). In Barron v. Unum Life Ins. Co. of Am., 260 F.3d 310, 316 (4th Cir. 2001), the Fourth Circuit held that an 469

insurer’s fiduciary responsibility as a claim administrator prohibited denial of a disability claim because of a release signed by the claimant while employed at another company that, coincidentally, had used the same insurer. Reliance on the release was not consistent with the insurer’s duties to the second plan. The failure of an employer or its officers to apply funds to a health plan may give rise to fiduciary liability. Phelps v. C.T. Enters., 394 F.3d 213, 219–20 (4th Cir. 2005). An insurer, as fiduciary, may bring an action seeking declaratory judgment and other relief, although it may not recover on its claims alleging unjust enrichment for repayment of benefits already paid. Provident Life & Accid. Ins. Co. v. Cohen, 423 F.3d 413 (4th Cir. 2005). In LaRue v. De Wolfe, Boberg & Assocs., Inc., 450 F.3d 570 (4th Cir. 2006), the court held that a plan participant could not recover compensatory damages under ERISA for alleged breach of fiduciary duties for failure to follow a plan participant’s investment instructions, under 29 U.S.C. § 1132(a)(2), nor may such a claim for damages be characterized as “other appropriate equitable relief” under 29 U.S.C. § 1132(a)(3). In a highly publicized decision, the Supreme Court reversed. LaRue v. De Wolfe, Boberg & Assocs., Inc., 552 U.S. 248 (2008), held that an individual plan participant could obtain monetary relief for breach of fiduciary duty in failing to carry out instructions concerning an individual retirement plan account. Because of the individual account structure, this was comparable to a suit on behalf of the plan under 29 U.S.C. § 1132(a)(2). The decision did not address the separate 470

question of whether such “make-whole” relief could also be deemed equitable relief available under 29 U.S.C. § 1132(a)(3). Based upon this decision, the court of appeals found that former defined contribution retirement plan participants could pursue a claim for allegedly improper investments in certain mutual funds. In re Mut. Funds Inv. Litig., 529 F.3d 207 (4th Cir. 2008). In Dunlap v. Ormet Corp., 2009 WL 763382 (N.D. W. Va. 2009), the court, in dicta, addressed the apparent effect of LaRue on claims asserted against an employer, an insurer, and two individuals concerning group life benefits that had already been paid to the named beneficiary. Plaintiff contended that she had been the former named beneficiary, and that the individual defendants had caused the designation to be changed by undue influence. The court granted summary judgment for the employer and insurer, dismissing remaining claims against the individuals without prejudice. In doing so, the court commented that a claim could be asserted under 29 U.S.C. § 1132(a)(2) on the theory that purported fiduciary misconduct caused injury to the “individual’s plan.” However, because plaintiff failed to exhaust administrative remedies, and because of the recent holding in Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285 (2009), the suit was dismissed. In Hornady Transport LLC v. McLeod Health Services, Inc., 773 F. Supp. 2d 622 (D.S.C. 2011), the court declined to dismiss a breach of fiduciary duty claim asserted by a plan and employer regarding the payment of medical claims by the defendants on behalf of the plan, 471

but noted that some of the claims asserted may be preempted by ERISA. D. Remedies for Breach of Fiduciary Duty “Section 502(a) [29 U.S.C. § 1132(a)] provides the exclusive statement of civil actions available under ERISA to the Secretary of Labor, participants, beneficiaries, and fiduciaries.” Coyne & Delany Co. v. Blue Cross & Blue Shield of Va., Inc., 102 F.3d 712, 714 (4th Cir. 1996). See also Singh v. Prudential Health Care Plan, Inc., 335 F.3d 278, 292 (4th Cir. 2003). The Supreme Court has held that only equitable relief is available under 29 U.S.C. § 1132(a)(3). Mertens v. Hewitt Assocs., 508 U.S. 248, 256–59 (1993). Extracontractual and punitive damages are not recoverable under 29 U.S.C. § 1132(a)(1)–(3). Darcangelo v. Verizon Commc’ns, Inc., 292 F.3d 181, 195 (4th Cir. 2002); Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 60 n.2 (4th Cir. 1992). A claim for punitive damages for breach of fiduciary duty was dismissed following a thorough analysis in Openshaw v. Cohen, Klingenstein & Marks, Inc., 320 F. Supp. 2d 357, 361–62 (D. Md. 2004). Reinstatement, or return of an employee plan participant to his preelection position, may sometimes be an appropriate remedy under ERISA’s “other appropriate equitable relief” provision at § 1132(a)(3)(B). Griggs v. E.I. DuPont de Nemours & Co., 237 F.3d 371, 384 (4th Cir. 2001). Equitable relief for breach of a fiduciary duty may, in appropriate circumstances, include monetary 472

relief where rescission of the plaintiff’s earlier retirement decision was impossible due to the passage of time. Griggs v. E.I. DuPont de Nemours & Co., 385 F.3d 440 (4th Cir. 2004). In Griggs, the plaintiff sought relief for allegedly negligent advice that had led him to accept a lump-sum early retirement benefit with adverse tax consequences rather than an annuity. In its 2004 ruling, the court of appeals modified the remedy granted by the trial court following the earlier appeal, reducing the relief awarded to the plaintiff because of the plaintiff’s delay in pursuing his claim. Appropriate relief for breach of fiduciary duty may include removal of plan fiduciaries. Chao v. Malkani, 452 F.3d 290 (4th Cir. 2006). In Faircloth v. Lundy Packing Co., 91 F.3d 648, 659 n.6 (4th Cir. 1996), the court stated that “[r]emoval of trustees is appropriate when the trustees have engaged in repeated or substantial violations of their fiduciary duties under ERISA.” The practical difficulties of finding and compensating a successor trustee are described in Solis v. Malkani, 638 F.3d 269 (4th Cir. 2011). E. Contribution and Indemnity Claims among Fiduciaries The Fourth Circuit has not addressed the issue of contribution and indemnity claims among fiduciaries. A split of authority exists among the district courts. In Cooper v. Kossan, 993 F. Supp. 375, 377 (E.D. Va. 1998), the court recognized the right to seek contribution among cofiduciaries. Noting a split among the circuit courts of appeals, the court adopted the reasoning of the 473

court of appeals for the Second Circuit by quoting Chemung Canal Trust Co. v. Sovran Bank/Maryland, 939 F.2d 12, 16 (2d Cir. 1991): There is no reason why a single fiduciary who is only partially responsible for a loss should bear its full brunt. Full responsibility should not depend on the fortuity of which fiduciary a plaintiff elects to sue. In Narda v. Rhode Island Hospital Trust National Bank, 744 F. Supp. 685 (D. Md. 1990), the district court concluded that there is no right to indemnification or contribution among culpable fiduciaries. The court concluded: It thus appears that the failure to include the rights of contribution and indemnity in ERISA was intended by Congress and the omission of rights is not an unaddressed detail or gap to be filled by a federal common law. Id. at 697. Accordingly, “the directive to develop a federal common law under ERISA does not include the right to infer common law rights of contribution and indemnity when the language and structure of the statute leads to a contrary intent.” Id. at 698. In Openshaw v. Cohen, Klingenstein & Marks, Inc., 320 F. Supp. 2d 357, 363–64 (D. Md. 2004), the court dismissed a counterclaim against plaintiff trustees for contribution. The court noted that there was no statutory basis for such a claim under ERISA. F. ERISA Claims against Nonfiduciaries 474

Some district courts within the Fourth Circuit have viewed ERISA claims against nonfiduciaries as cognizable, while others have not. For example, in Pension Benefit Guaranty Corp. v. Ross, 781 F. Supp. 415, 418 (M.D.N.C. 1991), the court observed that in Pension Benefit Guaranty Corp. v. Ross, 733 F. Supp. 1005 (M.D.N.C. 1990), the court had found that the essential elements of a claim against a nonfiduciary “for participation in a fiduciary’s breach are ‘(1) an act or omission which furthers or completes the breach of trust by the trustee; and (2) knowledge at the time that the transaction amounted to a breach of trust or the legal equivalent of such knowledge.’” Similarly, in Atwood v. Burlington Industries Equity Inc., 1994 WL 698314 (M.D.N.C. 1994), the court denied defendants’ motions to dismiss plaintiff’s ERISA claim against the defendants for their role in a prohibited transaction with a fiduciary. Id. at *17. The court stated that “should Plaintiffs be able to prove that the [fiduciary] violated § 1106(a), Plaintiffs may be able to recover in equity against the remaining Defendants as parties in interest; that is, under 29 U.S.C. § 1132(a)(3), the remaining Defendants could be ordered to provide restitution to the Plan and/or disgorge any profits derived from their misuse of Plan assets.” Id. at *12. However, in Colleton Regional Hospital v. MRS Medical Review Systems, Inc., 866 F. Supp. 891 (D.S.C. 1994), the court, without stating whether a nonfiduciary could ever be liable, refused to allow equitable relief against a nonfiduciary who knowingly participated in a fiduciary’s breach. Stating that the issue was not properly 475

before it, the court observed that “[n]either the Supreme Court nor the Fourth Circuit [has] resolved [the] issue” of whether plaintiffs could plead a cause of action for equitable relief against a nonfiduciary. Id. at 895 n.3. In re Mutual Funds Investment Litigation, 403 F. Supp. 2d 434, 447 n.15 (D. Md. 2005), addressed a contention that the doctrine of respondeat superior could provide the basis of fiduciary liability for certain business entities due to misconduct by employees who were plan fiduciaries. The court reasoned that when an individual acts on behalf of the plan, he is not acting on behalf of his corporate employer, and thus does not create derivative ERISA liability for the employer unless the employer is otherwise a fiduciary “as to the functions performed by its agents.” Id. However, in Meyer v. Berkshire Life Ins. Co., 250 F. Supp. 2d 544, 563 n.27 (D. Md. 2003), aff’d, 372 F.3d 261 (4th Cir. 2004), the court observed that although the Fourth Circuit had not “squarely address[ed] the issue of vicarious liability under ERISA,” the doctrine may serve to impose ERISA liability on a nonfiduciary principal stemming from actions of its fiduciary agent. Id. Because the insurer defendant admitted fiduciary status, the court was not required to determine whether it was derivatively liable. XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees The leading Fourth Circuit case regarding the award of attorneys’ fees in ERISA actions is Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017 (4th Cir. 1993). 476

Quesinberry reaffirmed a “five-factor test to be used by the district court in exercising its discretion” under 29 U.S.C. § 1132(g), first adopted in Reinking v. Philadelphia Am. Life Ins. Co., 910 F.2d 1210, 1217–18 (4th Cir. 1990). Those factors are the degree of opposing parties’ culpability or bad faith; the ability of opposing parties to satisfy an award of attorneys’ fees; whether an award of attorneys’ fees against the opposing parties would deter other persons acting under similar circumstances; whether the parties requesting attorneys’ fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and the relative merits of the parties’ positions. Quesinberry, 987 F.2d at 1029. The court emphasized that this “is not a rigid test, but rather provides general guidelines for the district court in determining whether to grant a request for attorneys’ fees.” Not every factor will apply in every case, and in some cases, other considerations may be relevant. Id. The suggestion that the earlier Reinking decision established a presumption in favor of awarding fees to the prevailing party was expressly rejected. Id. at 1029–30. See also Williams v. Metro. Life Ins. Co., 609 F. 3d 622, 634 (4th Cir. 2010). 477

However, fees are commonly awarded to prevailing claimants with limited analysis. See, e.g., McIntyre v. Aetna Life Ins. Co., 581 F. Supp. 2d 749, 762 (W.D. Va. 2008). The Quesinberry guidelines were recently reaffirmed in Plasterers’ Local Union No. 96 v. Pepper, 663 F. 3d 210, 222–23 (4th Cir. 2011), in a suit by a plan against former trustees for breach of fiduciary duty. That decision noted that it may be appropriate to consider the availability of insurance to pay fees, but only if the details of coverage are contained in the record. Fees can be awarded only to a “prevailing party.” Martin v. Blue Cross & Blue Shield of Va., Inc., 115 F.3d 1201, 1209–10 (4th Cir. 1997). In Hardt v. Reliance Standard Life Ins. Co., 336 F. App’x 332 (4th Cir. 2009), the court of appeals held that a plaintiff who had not expressly requested remand was not a “prevailing party” when the fiduciary awarded benefits after reconsideration upon remand. In Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149 (2010), the Supreme Court reversed, holding that a plaintiff may recover fees if he achieves “some degree of success on the merits.” This new standard was applied in Flores v. Life Ins. Co. of N. Am., 770 F. Supp. 2d 768 (D. Md. 2011), in which fees were awarded to a plaintiff because the suit “was the catalyst for” the award of benefits. In Feldman’s Medical Center Pharmacy, Inc. v. CareFirst Inc., 2012 WL 4514526, at *9–10 (D. Md. 2012), the court endorsed the “catalyst” analysis, but noted a dispute among courts as to whether a voluntary remand is adequate to permit a fee award, in the absence of a formal ruling in favor of the claimant. Dickens v. Aetna Life Ins. Co., 2011 U.S. Dist. LEXIS 32595 (S.D. W. Va. 2011), held that a court-ordered 478

remand was “a purely procedural victory” so that a claim for attorney’s fees upon such ruling was premature. Of the listed factors, the element of “bad faith” is sometimes seen as the most important. Hines v. Unum Life Ins. Co. of Am., 110 F. Supp. 2d 458, 469 (W.D. Va. 2000). However, a finding of bad faith may not be necessary for an award of attorneys’ fees. Davidson v. Kemper Nat’l Servs., Inc., 231 F. Supp. 2d 446, 454–55 (W.D. Va. 2002). In Carolina Care Plan Inc. v. McKenzie, 467 F.3d 383 (4th Cir. 2006), the court reversed a discretionary award of attorneys’ fees. While the trial court had specifically addressed the Quesinberry factors, the court of appeals concluded that undue weight had been given the “bad faith” factor, whereas “the record contains no evidence of bad faith or culpability.” Id. at 390. The opinion makes clear that “a court cannot rely solely on an administrator’s improper denial of coverage on a single claim to support an award of fees to a claimant.” Id. at 391. The failure of the district court to address those factors it considered in awarding fees usually precludes review, requiring remand. Denzler v. Questech, Inc., 80 F.3d 97, 104 (4th Cir. 1996). ERISA, alone, may not be the basis of awarding fees to a stakeholder bringing an interpleader because it is not a prevailing party, but such fees may be awarded under the federal interpleader statute. Trs. of the Plumber & Pipefitters Nat’l Pension Fund v. Sprague, 251 F. App’x 155, 156 n.1, 2007 WL 3024025 (4th Cir. 2007). In Bowling v. PBG Long-Term Disability Plan, 584 F. Supp. 479

2d 797 (D. Md. 2008), the court acknowledged that a defendant prevailing on an overpayment counterclaim may be entitled to recover its fees, but denied a fee award in its discretion. In Metropolitan Life Insurance Co. v. Leich-Brannan, 812 F. Supp. 2d 729 (E.D. Va. 2011), the court awarded fees against an insurer which filed a declaratory judgment action to confirm that it had correctly paid life insurance benefits before a second claimant surfaced. The court criticized the insurer’s neutrality in the suit, which left the payee with the full burden of sustaining his right to keep the funds. B. Fees Awarded to Plan Fiduciaries While most fee awards are against fiduciaries, district courts within the circuit have sometimes awarded fees to a fiduciary forced to defend claims or contentions unsupported by law or fact. See, e.g., Devine v. Am. Benefits Corp., 27 F. Supp. 2d 669, 677–78 (S.D. W. Va. 1998). Fees have also been awarded against a claimant’s attorney in favor of the fiduciary. Childers v. Medstar Health, 289 F. Supp. 2d 714, 718 (D. Md. 2003). In affirming the district court’s denial of a fee claim against a losing claimant in an interpleader, based upon a Quesinberry analysis, the court of appeals acknowledged the possibility of such a fee award. Pettit v. Metro. Life Ins. Co., 164 F.3d 857, 865–66 (4th Cir. 1998). In Mid Atlantic Medical Services, LLC v. Sereboff, 407 F.3d 212 (4th Cir. 2005), aff’d on other grounds, 547 U.S. 356 (2006), the court of appeals affirmed the district court’s ruling permitting plaintiff to recover on its subrogation claim. However, because of the trial court’s 480

failure to adequately consider “judicially recognized factors” in its determination, the court of appeals reversed a fee award to plaintiff and remanded for reconsideration. Failure to address each factor separately constituted an abuse of discretion. C. Calculation of Attorneys’ Fees If the district court, in its discretion, determines that fees should be awarded, the court must first determine an appropriate “lodestar” figure by multiplying a reasonable number of hours times a reasonable hourly rate. Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998). Quoting from earlier decisions, Brodziak further declared that in determining what rate and time are reasonable, the following factors should be taken into account: (1) The time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys’ fees awards in similar cases.

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Id. Brodziak held that the district court had abused its discretion by awarding a percentage of the lodestar fee equal to the percentage of claims upon which the plaintiff had prevailed. Instead of such a mechanical approach, the trial court “should consider the relationship between various claims raised by Brodziak and the degree of overall success obtained in determining an appropriate amount of fees and costs.” Id. at 197. Normally, a party may not recover fees incurred during the administrative process. Rego v. Westvaco, 319 F.3d 140, 150 (4th Cir. 2003). However, fees incurred while a claim is on remand may be recoverable. Bryner v. E.I. DuPont de Nemours & Co., 2013 U.S. Dist. LEXIS 46951 (E.D. Va. 2013). Fees may include time spent in preparing the fee petition. Trimper v. City of Norfolk, Va., 58 F.3d 68, 77 (4th Cir. 1995). The court of appeals may determine that fees should be awarded in connection with an appeal. Denzler v. Questech, Inc., 80 F.3d 97, 104–05 (4th Cir. 1996). When fees are awarded, they typically should be reduced to take into account the failure to prevail on some claims. Clark v. Metro Life Ins. Co., 384 F. Supp. 2d 894, 897, 901 (E.D. Va. 2005). Therefore partial reversal on the merits generally requires reconsideration of any fee award. Mitchell v. Fortis Benefits Ins. Co., 163 F. App’x 183, 2005 WL 1793641, at *11 (4th Cir. 2005). Fee awards should be based upon reasonable rates, commensurate with the work performed and the amount at issue. Flores v. Life Ins. Co. of N. Am., 770 F. Supp. 2d 768 (D. Md. 2011). Robinson v. Equifax Info. Services,

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LLC, 560 F.3d 235 (4th Cir. 2009) discusses guidelines for determining proper rates. XII. ERISA Regulations A. Cases Interpreting the Regulations In Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230 (4th Cir. 2008), the Fourth Circuit provided the following overview: ERISA requires that every employee benefit plan “provide adequate notice in writing to any participant or beneficiary whose claim for benefits … has been denied, setting forth the specific reasons for such denial.” 29 U.S.C. § 1133 (2008). The Plan must further “afford a reasonable opportunity to any participant whose claim for benefits has been denied a full and fair review by the appropriate named fiduciary of the decision denying the claim.” Id. The regulations implementing these statutory requirements provide that a “full and fair review” includes the opportunity for the claimant to appeal the adverse benefits determination and to submit written comments or records. The claimant must also be given reasonable access to documents relevant to her claim, and the resulting review must take into account all relevant information submitted by the claimant. Id. at 235. The court went on to discuss the remedy when there has been a procedural violation:

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In cases where there is a procedural ERISA violation, we have recognized the appropriate remedy is to remand the matter to the plan administrator so that a “full and fair review” can be accomplished. “Normally, where the plan administrator has failed to comply with ERISA’s procedural guidelines and the plaintiff/ participant has preserved his objection to the plan administrator’s non-compliance, the proper course of action for the court is remand to the plan administrator for a ‘full and fair review.’” The only exception to that rule would be where the record establishes that the plan administrator’s denial of the claim was an abuse of discretion as a matter of law. Id. at 240 (citations omitted) (footnote omitted). The Fourth Circuit in Gagliano reversed the lower court’s award in favor of the claimant based on the insurer’s violation of the procedural requirements under ERISA and remanded the case. Id. at 241. See also Gearhart v. Hartford Life Ins. Co., 2010 U.S. Dist. LEXIS 120988 (W.D. Va. Nov. 16, 2010) (remanding the claim for a full and fair review); Gonzales v. Truck Drivers & Helpers Local 355 Ret. Pension Fund, 2013 U.S. Dist. LEXIS 44942 (D. Md. 2013) (remanding the claim because the initial denial letter contravened the procedural mandates of ERISA, thus not affording the claimant an opportunity to address a certain issue on appeal). Cf. Hall v. Metro. Life Ins. Co., 259 Fed. App’x 589, 594 n.4 (4th Cir. 2007) (in which the court declined to remand the case, but rather upheld the insurer’s original determination as if a later determination, provided without the required notice, had never been made: “[W]e decline to issue the customary remedy of remand, instead curing MetLife’s violation by 484

simply reviewing the case as though the new rationale in the appeal denial had not been given”). Failure to technically comply with all of ERISA’s procedural requirements does not automatically invalidate an otherwise sound denial of benefits. Larson v. Old Dominion Freight Line, 277 F. App’x 318, 312 (4th Cir. 2008) (citing Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 238 (4th Cir. 1997)); Brogan v. Holland, 105 F.3d 158, 165 (4th Cir. 1997). “Substantial compliance” is typically sufficient. Id. (citing Sheppard & Enoch Pratt Hosp., Inc. v. Travelers Ins. Co., 32 F.3d 120, 127 (4th Cir. 1994)). To substantially comply with ERISA’s regulations, an administrator must supply the claimant “with a statement of reasons that, under the circumstances of the case, permitted a sufficiently clear understanding of the administrator’s position to permit effective review.” Id. (quoting Brogan, 105 F.3d at 165). See also Messer v. Prudential Ins. Co. of Am., 2013 U.S. Dist. LEXIS 45663 (W.D.N.C. 2013). In Stanford v. Continental Cas. Co., 514 F.3d 354, 360 (4th Cir. 2008), the claimant argued that the insurer had not followed the regulation providing that in deciding an appeal of any adverse benefit determination that is based in whole or in part on a medical judgment, the fiduciary must consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment. See 29 C.F.R § 2560.503(h)(3)(iii). However, the court held that an insurer need not consult a health care professional when its denial of benefits was based solely on its determination 485

that such a risk of relapse did not fall within the benefit plan’s definition of “disability.” Id. This determination was contractual, not medical. One court has noted that neither ERISA nor its regulations require an insurer to notify a claimant of its consultation with a reviewing doctor before the insurer makes its final appeal determination, and there is no requirement in ERISA disability cases that claimants must be provided with an opportunity to review and rebut the opinion of a reviewing consultant. Craine v. Hartford Life & Accid. Ins. Co., 2011 U.S. Dist. LEXIS 32547 (M.D.N.C. Mar. 25, 2011). “Nothing in the Regulations requires that the entire appeals process be explicitly laid out in the Plan summary; referral to the denial letter is an appropriate means by which ‘to apprise the plan’s participants and beneficiaries of their rights and obligations under the plan.’” Smith v. Westvaco Corp., 399 F. Supp. 2d 692, 695–96 (D.S.C. 2005) (citation omitted). Regarding the information considered by a claims administrator, the court in Sawyer v. Potash Corp., 417 F. Supp. 2d 730, 744 (E.D.N.C. 2006), held that the notice provisions of 29 C.F.R § 2560.503-(1)(h)(2) do not give a claimant the right to appear before an appeal committee or to present oral testimony. Another district court has ruled that the production requirement in 29 C.F.R. § 2560.503-1(h)(2)(iii) required a plan administrator to release only documents relied upon during the initial benefit determination prior to its final decision on appeal and that documents generated during the appeal process itself need be made available only after the decision on 486

appeal. Skipp v. Hartford Life Ins. Co., 2008 U.S. Dist. LEXIS 8884, at *31 (D. Md. 2008). Similarly, in Brooks v. Metro. Life Ins. Co., 526 F. Supp. 2d 534 (D. Md. 2007), the court found that the insurer did not have to produce its claims management guidelines because they were neither relied on nor considered in adjudicating the claim at issue, and thus the claimant was unable to show that they were “relevant” compliance verification material within the meaning of ERISA’s regulations. The court in Funkhouser v. Pilgrim’s Pride Corp. Group Benefits Plan, 2008 U.S. Dist. LEXIS 18149, at *16 (W.D. Va. 2008), rejected an argument that a claims administrator had acted improperly by taking more than the 120 days that the ERISA regulations permit to decide her second appeal. The court noted that the claimant could have chosen to file her action after the 120-day period expired and that there was no indication she was harmed as a result of the delay. See also Saunders v. Verizon Commc’ns, Inc., 2006 U.S. Dist. LEXIS 40296 (N.D. W. Va. 2006). The federal regulations governing appeals authorize limited periods for claimants to file requests for reviews of denied claims. Courts enforce these limits “because haphazard waiver of time limits would increase the probability of inconsistent results where one claimant is held to a limitation, and another is not. Similarly, permitting appeals well after the time for them has passed can only increase the cost and time of the settlement process.” Gayle v. United Parcel Serv., 401 F.3d 222, 226 (4th Cir. 2005) (citation omitted). The regulations do not require that a plan review an appeal for a particular 487

amount of time. Clark v. Metro. Life Ins. Co., 369 F. Supp. 2d 770, 779 (E.D. Va. 2005). The Fourth Circuit noted that under the ERISA regulations, once a claimant has filed a lawsuit, fiduciaries cannot offer new reasons for a claim determination. Thompson v. Life Ins. Co. of N. Am., 30 F. App’x 160, 2002 U.S. App. LEXIS 3390 (4th Cir. 2002). “A district court’s review is limited to whether the rationale set forth in the initial denial notice is reasonable. A court may not consider a new reason for claim denial offered for the first time on judicial review.” Id. at *7; accord Hall v. Metro. Life Ins. Co., 259 F. App’x 589 (4th Cir. 2007). XIII. Cases Interpreting ERISA Statutes of Limitation A. Limitation Periods For claims that allege a breach of a fiduciary duty, ERISA provides either a six-year or a three-year statute of limitations that hinges on certain acts, omissions, or knowledge. See 29 U.S.C. § 1113(a). Typically, except in cases of fraud or concealment, the three-year ERISA statute of limitations begins to run when a plaintiff has knowledge of the alleged breach of a responsibility, duty, or obligation by a fiduciary. Shofer v. Stuart Huck Co., 970 F.2d 1316 (4th Cir. 1992); 29 U.S.C. § 1113(a)(2). As the Fourth Circuit recently observed: Under ERISA § 413, a plaintiff is limited by a general six-year limitations period. 29 U.S.C. § 1113. The sixyear limitations period is shortened to three years in 488

instances where the plaintiff had actual knowledge of the breach. Id. Because § 413’s limitations period begins immediately upon “the last action which constituted a part of the breach or violation,” § 413 can most accurately be described as a statute of repose. Accordingly, the limitations period begins running “when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.” David v. Alphin, 704 F.3d 327, 339 (4th Cir. 2013). See also Browning v. Tiger’s Eye Benefits Consulting, Inc., 2009 U.S. App. LEXIS 3927, *9 (4th Cir. 2009); Cherochak v. Unum Life Ins. Co. of Am., 586 F. Supp. 2d 522, 532 (D.S.C. 2008). Courts have applied other limitations periods for wrongful discharge claims under ERISA. ERISA sets forth a remedy for plaintiffs who believe they have been wrongfully terminated for filing for benefits. See 29 U.S.C. § 1140. District courts have concluded that such a claim under 29 U.S.C. § 1140 is analogous to wrongful discharge under state law and have applied state statutes of limitations for wrongful discharge actions. Lawson v. Altria Ret. Plan, 2012 U.S. Dist. LEXIS 119100 (E.D. Va. 2012); Malik v. Philip Morris, USA, Inc., 2006 U.S. Dist. LEXIS 41046 (E.D. Va. 2006); Sutter v. First Union Nat’l Bank, 932 F. Supp. 753 (E.D. Va. 1996); Baradell v. Bd. of Social Servs., 970 F. Supp. 489 (W.D. Va. 1997); Carter v. Times-World Corp., 1997 U.S. Dist. LEXIS 10743 (W.D. Va. 1997), aff’d, 1998 U.S. App. LEXIS 10497 (4th Cir. 1998).

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Still other limitations periods have been found to apply to claims for statutory penalties under ERISA. ERISA does not include a statute of limitations for civil penalty claims under 29 U.S.C. § 1132(c)(1). In Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 339 (4th Cir. 2009), the Fourth Circuit applied a state limitation period for statutory penalties: “The literal and plain language of section 15-3-540—creating a three-year limitations period for ‘an action upon a statute for a penalty or forfeiture when the action is given to the party aggrieved’—fits precisely with a claim for penalties under 29 U.S.C. § 1132(c) for failure to respond to a request for information, because such claim is given to the requesting ‘participant or beneficiary,’ i.e., ‘the party aggrieved.’” However, when the applicable state law had no limitation period for statutory penalties, one district court applied the state’s catch-all limitations period. Frye v. Metro. Life Ins. Co., 2010 U.S. Dist. LEXIS 134565, at *42–46 (S.D. W.Va. Dec. 20, 2010). Looking to the law of the forum state, at least one court has held that a limitation period for breach of a written contract applied to a subrogation action. Lincoln Gen. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 425 F. Supp. 2d 738, 743 (E.D. Va. 2006). ERISA does not provide a statute of limitations for denial of benefits claims. As a result, the Fourth Circuit looks to the most analogous state statute of limitations and has found that the statutes of limitations for actions alleging a breach of contract are the most analogous state statutes for denial of benefits claims. See Belrose v. Hartford Life & Accid. Ins. Co., 478 Fed. App’x 21, 23 490

(4th Cir. 2012); Pressley v. Tupperware Long Term Disa. Plan, 553 F.3d 334, 337 (4th Cir. 2009); White v. Sun Life Assur. Co., 488 F.3d 240, 245 (4th Cir. 2007); Cotter v. E. Conf. of Teamsters Ret. Plan, 898 F.2d 424, 428 (4th Cir. 1990); Dameron v. Sinai Hosp. of Balt., Inc., 815 F.2d 975, 981 (4th Cir. 1987). For example, the court has noted that the statute of limitations for a claimant in Virginia is that for breach of a written contract in Virginia: five years under Virginia Code § 8.01-246. Christensen v. Northrop Grumman Corp., 1997 U.S. App. LEXIS 28565 (4th Cir. 1997); see also Cross v. Bragg, 329 F. App’x 443, 453 (4th Cir. 2009);. Hughes v. Unum Provident Corp., 2006 U.S. Dist. LEXIS 1400 (M.D.N.C. 2006). However, in at least two cases, courts have noted that benefit claims cases that do not allege a breach of fiduciary duty are analogous to claims “for either negligence or breach of contract.” Shofer v. Stuart Huck Co., 970 F.2d 1316 (4th Cir. 1992); accord Lippard v. UnumProvident Corp., 261 F. Supp. 2d 368, 377 (M.D.N.C. 2003). In both of these cases, the court adopted state statutes that applied to “civil actions” in general. See also Cherochak v. Unum Life Ins. Co. of Am., 586 F. Supp. 2d 522 (D.S.C. 2008) (where the court applied the three-year statute of limitations for ordinary civil actions under state law). B. Contractual Limitation Periods In some cases involving denials of benefits, courts have enforced limitation periods that were set forth in the plan. See White v. Sun Life Assur. Co., 488 F.3d 240, 250 (4th Cir. 2007); Gayle v. United Parcel Service, 401 F.3d 222 (4th Cir. 2005). In Payne v. Blue Cross & Blue Shield, 1992 U.S. App. LEXIS 24357 (4th Cir. 1992), the Fourth 491

Circuit found that a 12-month limitation period in a health insurance policy was enforceable because it was consistent with a state statute that provided that insurance policies limiting the time within which to bring an action to a period of less than one year are invalid. See Mirabile v. Life Ins. Co. of N. Am., 293 F. App’x 213 (4th Cir. 2008) (the policy contained a clause that extended any time limit to agree with the minimum limitations period permitted by the law of the state of residence); Arnold v. Metro. Life Ins. Co., 2005 U.S. Dist. LEXIS 23240 (W.D. Va. 2005). C. When the Limitation Period Accrues As for when a cause of action accrues for a denial of benefits, the Fourth Circuit has held that an “ERISA cause of action does not accrue until a claim of benefits has been made and formally denied…. To hold otherwise would require lay participants and beneficiaries to be constantly alert for ‘errors or abuses that might give rise to a claim and start the statute of limitations running.’” Rodriguez v. MEBA Pension Trust, 872 F.2d 69, 72 (4th Cir. 1989) (citation omitted). See also Cross v. Bragg, 329 F. App’x 443, 453 (4th Cir. 2009); Singleton v. Temp. Dis. Benefits Plan, 2006 U.S. App. LEXIS 12318 (4th Cir. 2006). However, although causes of action for breach of contract typically accrue at the time of the breach and such an instance of a claim under ERISA would be at the time that benefits are denied, the Fourth Circuit has held, in at least one case, that the cause of action accrued at the time when a claimant should have been alerted to an

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entitlement to benefits that he did not receive. Cotter v. E. Conference of Teamsters, 898 F.2d 424 (4th Cir. 1990). The Fourth Circuit has applied its rule that a cause of action accrues when a claim is denied, even when a plan expressly provided that a claimant had a specific time after proofs of loss were due to pursue litigation. White v. Sun Life Assur. Co., 488 F.3d 240, 245 (4th Cir. 2007). “Parties may establish such accrual provisions only ‘in the absence of a controlling statute to the contrary,’ and the accrual provision in the plan flies in the face of the ERISA statutory framework.” Id. at 246 (citing United Commercial Travelers of Am. v. Wolfe, 331 U.S. 586, 608 (1947)). See also Mirabile, 293 F. App’x at 215; Cherochak, 586 F. Supp. 2d at 538. It should be noted that the Fourth Circuit’s opinion in White has been criticized. Courts have applied state principles of tolling to that limitation period. Shofer, 970 F.2d at 1320. For example, the Fourth Circuit has held that the commencement of an action in a clearly inappropriate forum, that is, in a court that clearly lacks jurisdiction, will not toll the statute of limitations. Id. It also refused to apply equitable tolling to allow a claimant to bring a late claim based on an argument that the claimant’s lawyer’s negligence caused her to miss the plan’s deadline. Gayle, 401 F.3d at 226–27. XIV. Subrogation Litigation In Great-West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204 (2002), the Supreme Court held that insurance 493

companies seeking reimbursement of medical expenses paid on behalf of beneficiaries out of the beneficiaries’ settlement with a tortfeasor were not entitled to relief under 29 U.S.C. § 1132(a)(3) because the relief they sought was not equitable in nature. See Rego v. Westvaco Corp., 319 F.3d 140 (4th Cir. 2003) (containing a discussion of the Knudson decision). In Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006), a case on appeal from the Fourth Circuit, the Supreme Court held that a fiduciary could assert a claim for equitable relief under § 1132(a)(3)(B) for restitution where it sought “specifically identifiable” funds that were within the possession and control of the beneficiary. There have been several district court decisions since Sereboff. In TECO Coal Corp. v. Looney, 2008 U.S. Dist. LEXIS 95826 (W.D. Va. 2008), the court allowed a complaint for subrogation under 29 U.S.C.A. § 1132(a)(3) to move forward. The court found that the allegation money belonging to the plan was traceable to particular funds in the possession of defendant was sufficient to allow a claim for equitable relief, such as an equitable lien or a constructive trust. Id. See also Holley v. Harper, 2007 U.S. Dist. LEXIS 12432 (S.D. W. Va. 2007); Peterson v. Int’l Paper Co., 2009 U.S. Dist. LEXIS 98696 (E.D.N.C. 2009) (allowing a counter-claim filed by a claims administrator to recover overpayments of benefits to go forward, because the plan sought recovery of a specifically identifiable fund); T.A. Loving Co. v. Denton, 723 F. Supp. 2d 837, 841 (E.D.N.C. 2010) (denying relief as against the beneficiary’s personal injury lawyers, who received a contingent fee out of the third-party recovery, 494

noting that “Sereboff does not indicate that an ERISA regulated plan may seek reimbursement from an attorney who is not a party to the plan or guilty of obtaining the proceeds of the insured’s claim through wrongdoing”). In Tyson Foods, Inc. v. Macklin, 2012 U.S. Dist. LEXIS 85141 (W.D.N.C. 2012), a self-funded, employee health benefit plan sought equitable relief to secure reimbursement from the third-party settlement funds that its participant had received. The court allowed such a claim, noting that the plan’s lien attached at the moment of the settlement fund’s creation, and the plan was entitled to reimbursement of the benefits that it had paid the participant, “even if the settlement fund is ‘not specifically traceable to [his] current assets because of commingling or dissipation.’” Id. at *12. In what appears to be a case of first impression in the Fourth Circuit, the Court in Anderson v. Reliance Std. Life Ins. Co., 2013 U.S. Dist. LEXIS 41009, 42-43 (D. Md. 2013) found that the insurer had a constructive lien against Social Security disability benefits paid to the insured, even if the insured had dissipated such funds. The plan called for LTD benefits to be offset by Social Security, and if there was an overpayment, the claimant was required to repay. Further, the court noted that the insured promised to reimburse Reliance for the amount of the SSD award. Recently, the Supreme Court held that in an action brought under § 502(a)(3) of ERISA based on an equitable lien by agreement, the terms of the ERISA plan govern, and neither general principles of unjust 495

enrichment nor specific doctrines reflecting those principles—such as the double-recovery or common-fund rules—can override the applicable contract. US Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 1544–48 (U.S. 2013). However, the common-fund rule can inform interpretation of a reimbursement provision, and because that term does not advert to the costs of recovery, it is properly read to retain the common-fund doctrine. Id. at 1548–50. How the Fourth Circuit will apply McCutchen remains to be seen. XV. Miscellaneous A. Unique Substantive or Procedural Rules for ERISA Cases The Fourth Circuit has held that it is not an abuse of discretion for a plan fiduciary to deny disability pension benefits where conflicting medical reports were presented. See Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 234 (4th Cir. 1997); Brogan v. Holland, 105 F.3d 158, 162–63 (4th Cir. 1997). Nor is an administrator’s acceptance of the opinion of an independent physician consultant rather than those of a claimant’s treating physicians in itself an abuse of discretion. Dwyer v. Metro. Life Ins. Co., 4 F. App’x 133, 2001 U.S. App. LEXIS 1541 (4th Cir. 2001); White v. Sun Life Assur. Co., 488 F.3d 240, 254 (4th Cir. 2007). See also Scott v. Eaton Corp. Long Term Disability Plan, 454 Fed. App’x 154, 160 (4th Cir. 2011) (the treating doctor’s “conclusions—those of a well-meaning family doctor—were contradicted by several specialists, who gave no indication of unreliability. It was not 496

unreasonable to discount [the treating doctor’s] conclusions in these circumstances.”). A district court has noted, “Although a treating physician must accept a patient’s subjective complaints, the same is not required of a plan administrator in determining eligibility for benefits.” Williams v. Unum Life Ins. Co. of Am., 250 F. Supp. 2d 641, 649 (E.D. Va. 2003). But see Edmonds v. Hughes Aircraft Co., 1998 U.S. App. LEXIS 9419 (4th Cir. 1998) (“disinterested decision makers would [have] give[n] greater weight to the opinions of two treating therapists of long standing (neither of whom were hired in connection with the filing of the claim) over the first impression of another expert, who had conducted a single short interview and whose opinion belies perhaps too great a familiarity with its intended purpose.”). Also, when an ERISA plan discontinues an employee’s benefits after totally disregarding some portion of a physician’s opinion that is favorable to the employee’s claim and seizing upon that portion which is adverse to the employee’s claim, such decision making is unreasonable. See Donovan v. Eaton Corp., 462 F.3d 321, 329 (4th Cir. 2006). B. Unique Approach to Common Policy-Based Defenses There are generally two types of disability coverage. “An ‘occupational’ disability policy provides benefits if the claimant is unable to perform his regular job; a ‘general’ disability policy provides benefits if the claimant is unable to perform any job for which he is qualified.” Dewitt v. State Farm Ins. Cos. Ret. Plan, 905 F.2d 798, 802 (4th Cir. 1990) (emphasis in original). The Fourth 497

Circuit has noted: “The difference between the two is substantial.” Id. District courts have rejected insureds’ arguments that being disabled from some, but not all, of their regular duties renders them totally disabled. “When the policy language reads as that at hand, i.e., total disability due to the inability to perform the important duties of regular occupation, the claimant must show his disability ‘prevented him from performing all of those duties, not just some of them.’” Conway v. Paul Revere Life Ins. Co., 2002 U.S. Dist. LEXIS 23656 (W.D.N.C. 2002) (citations omitted). Otherwise, the existence of the residual disability portion of the policy would have no meaning: It is evident that a person who can perform some but not all of his or her important duties has a “Residual Disability” within the meaning of the policy, and that therefore in order to be eligible for total disability payments a person would be required to show that he or she was unable to perform any of those important duties. It is not otherwise possible to give effect to both parts of the contract. Id. (citations omitted). See also Provident Life & Accid. Ins. Co. v. Cohen, 423 F.3d 413, 421–22 (4th Cir. 2005). The Fourth Circuit has noted that all aspects of a claimant’s occupation and all aspects of her medical condition had to be viewed in their totality, rather than in isolation. DuPerry v. Life Ins. Co. of N. Am., 632 F.3d 860, 870–71 (4th Cir. 2011).

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The Fourth Circuit has upheld an insurer’s denial of benefits for a claim based on a claimant’s risk of relapse. In Stanford v. Continental Cas. Co., 514 F.3d 354, 358 (4th Cir. 2008), the claimant was a nurse anesthetist who sought and completed treatment for drug abuse. The claimant argued in his administrative appeal that his addiction rendered him unable to perform his duties because of the high risk that he would relapse into drug use if exposed to narcotics in the workplace. The insurer rejected this argument, concluding that the policy did not cover potential risk of relapse. Affirming the insurer, the court could not say that the insurer’s conclusion was unreasonable. Id. The court distinguished between a situation where an addicted health care provider and a doctor with a heart condition both go back into the stress of an operating room; the addict may choose to resume his addiction but the doctor with a heart condition does not choose to have another heart attack. Id. The court also noted that there are cases reaching opposite conclusions on the issue, stating, “Given this widespread, thoughtful, and reasonable disagreement, Continental’s decision cannot plausibly be termed unreasonable.” Id. at 359. A district court has upheld a 24-month exclusion for mental illness under Georgia law. Johnson v. Gen. Am. Life Ins. Co., 178 F. Supp. 2d 644 (W.D. Va. 2001). It found that the provision was not ambiguous and that the etiology of the mental illness was irrelevant. Id. Another district court has found that such limitation provisions need not use the terminology from the most current Diagnostic and Statistical Manual. Kelly-Hicks v. Paul Revere Ins. Co., 1998 U.S. Dist. LEXIS 12530 (W.D.N.C. 1998). See also Saah v. Contel Corp., 1992 U.S. App. 499

LEXIS 27532 (4th Cir. 1992); Allen v. Unum Life Ins. Co. of Am., 289 F. Supp. 2d 745 (W.D. Va. 2003) (upholding 36-month mental illness limitation). C. ERISA Class Actions The Fourth Circuit applies an analysis of Rule 23 of the Federal Rules of Civil Procedure to determine whether a class action is appropriate in the context of ERISA claims. In Gunnells v. Healthplan Services, 348 F.3d 417 (4th Cir. 2003), claims were made against a third-party administrator based on allegations that it mismanaged administration of the plan, created a huge backlog of unpaid claims, did not timely transfer information, and made it impossible to forecast rate increases accurately, resulting in the plan’s collapse and failure to pay hundreds, if not thousands, of health care claims. The district court conditionally granted plaintiffs’ motion for class certification with respect to their mismanagement claim against the administrator. The Fourth Circuit upheld that certification based on its analysis of Rule 23 of the Federal Rules of Civil Procedure: Class actions must meet several criteria. First, the class must comply with the four prerequisites established in Rule 23(a): (1) numerosity of parties; (2) commonality of factual and legal issues; (3) typicality of claims and defenses of class representatives; and (4) adequacy of representation. Fed. R. Civ. P. 23(a). Second, the class action must fall within one of the three categories enumerated in Rule 23(b)….

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If a lawsuit meets these requirements, certification as a class action serves important public purposes. In addition to promoting judicial economy and efficiency, class actions also “afford aggrieved persons a remedy if it is not economically feasible to obtain relief through the traditional framework of multiple individual damage actions.” Thus, federal courts should “give Rule 23 a liberal rather than a restrictive construction, adopting a standard of flexibility in application which will in the particular case ‘best serve the ends of justice for the affected parties and promote judicial efficiency.’” To be sure, Rule 23(b)(3) class actions must meet predominance and superiority requirements not imposed on other kinds of class actions. This is because these suits involve situations where “classaction treatment is not as clearly called for.” However, as the Supreme Court has noted, the predominance and superiority requirements in Rule 23(b)(3) do not foreclose the possibility of mass tort class actions, but merely ensure that class certification in such cases “achieve economies of time, effort, and expense, and promote … uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” For these very reasons, we have expressly “embraced the view that the mass tort action for damages may be appropriate for class action, either partially or in whole.” Furthermore, “[d]istrict courts have wide discretion in deciding whether or not to certify a class and their 501

decisions may be reversed only for abuse of discretion,” recognizing, of course, that this “discretion must be exercised within the framework of Rule 23.” Our review is particularly deferential in a case like this—involving an interlocutory appeal of a conditional class certification. Gunnells, 348 F.3d at 423–24 (citations omitted). Several district courts have concluded that claims under ERISA that have an element of misrepresentation or detrimental reliance are not appropriate for class certification. Wiseman v. First Citizens Bank & Trust Co., 215 F.R.D. 507, 510–11 (W.D.N.C. 2003) (citations omitted). See also Tootle v. Arinc, Inc., 2004 U.S. Dist. LEXIS 10629 (D. Md. 2004); Mick v. Ravenswood Aluminum Corp., 178 F.R.D. 90 (S.D. W. Va. 1998); George v. Duke Energy Ret. Cash Balance Plan, 259 F.R.D. 225, 238–41 (D.S.C. 2009) (denying a request to certify a breach of fiduciary duty claim based on misrepresentation). At least one court has observed that ERISA’s “attorneys’ fee provision also undercuts one of the prime reasons for permitting a class action (with all of a class action’s attendant complexities), mainly that individuals with claims too small to justify individual lawsuits must be allowed to aggregate their claims.” Doe v. Blue Cross Blue Shield of Md., Inc., 173 F. Supp. 2d 398, 406 (D. Md. 2001). By contrast, a class action has been certified in litigation involving claims for breach of fiduciary duty regarding the alleged mismanagement of a retirement plan. Tatum v. R.J. Reynolds Tobacco Co., 254 F.R.D. 59 502

(M.D.N.C. 2008); see also Cuthie v. Fleet Reserve Ass’n, 743 F. Supp. 2d 486 (D. Md. 2010); Pender v. Bank of Am. Corp., 269 F.R.D. 589, 596 (W.D.N.C. 2010) (“In an ERISA action, typicality is met when the class representative and class members ‘have suffered the same harm, to wit, an underpayment of their pension benefits, and would assert the same violations under ERISA’” (citation omitted)). In Savani v. Wash. Safety Mgmt. Solutions, LLC, 2012 U.S. Dist. LEXIS 121687 (D.S.C. 2012), the court certified a class action regarding the elimination of early retirement supplemental benefits and whether it violated ERISA’s anti-cut back rule. D. Jurisdictional Removal The Fourth Circuit reviewed the framework of jurisdictional removal of ERISA claims in King v. Marriott Int’l, Inc., 337 F.3d 421, 424–25 (4th Cir. 2003): Although the plaintiff is generally the “master of his complaint,” the federal removal statute allows a defendant to remove certain claims originally brought in state court into federal court. Removal is appropriate, however, only where the civil action is one over which “the district courts of the United States have original jurisdiction.”

A civil action “arising under the Constitution, laws, or treaties of the United States” can be brought originally in federal district court. Under the venerable wellpleaded complaint rule, jurisdiction lies under section 503

1331 only if a claim, when pleaded correctly, sets forth a federal question; in other words, whether “a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, must be determined from what necessarily appears in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose.” Thus, ordinarily courts “look no further than the plaintiff’s complaint in determining whether a lawsuit raises issues of federal law capable of creating federal-question jurisdiction under 28 U.S.C. § 1331.” In particular, a claim in which the federal question arises only as a defense to an otherwise purely state law action does not “arise under” federal law, and hence jurisdiction would not lie under section 1331. There is one corollary to the well-pleaded complaint rule. “Federal pre-emption is ordinarily a federal defense to the plaintiff’s suit.” Therefore, a defen dant’s raising of the defense of federal preemption is, under the well-pleaded complaint rule, insufficient to allow the removal of the case to federal court. But, in some cases, federal law so completely sweeps away state law that any action purportedly brought under state law is transformed into a federal action that can be brought originally in, or removed to, federal court. The operation of this rule has come to be known as the doctrine of “complete preemption.” The Supreme Court recently summarized the doctrine in Beneficial National Bank v. Anderson. There, the Court emphasized that the touchstone of complete 504

preemption is “whether Congress intended the federal cause of action” to be “the exclusive cause of action” for the type of claim brought by a plaintiff. In cases of complete preemption, however, it is misleading to say that a state claim has been “preempted” as that word is ordinarily used. In such cases, in actuality, the plaintiff simply has brought a mislabeled federal claim, which may be asserted under some federal statute. Thus, a vital feature of complete preemption is the existence of a federal cause of action that replaces the preempted state cause of action. Where no discernable federal cause of action exists on a plaintiff’s claim, there is no complete preemption, for in such cases there is no federal cause of action that Congress intended to be the exclusive remedy for the alleged wrong. We have found that ERISA does completely preempt many state law claims. In particular, “when a complaint contains state law claims that fit within the scope of ERISA’s § 502 civil enforcement provision, those claims are converted into federal claims, and the action can be removed to federal court.” The absence of a federal cause of action says nothing about whether the state claim is preempted in the ordinary sense: it is entirely within the power of Congress to completely eliminate certain remedies by preempting state actions, while providing no substitute federal action. But in such cases, preemption serves only as a federal defense, the barred claims are not

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completely preempted, and thus not removable to federal court. Id. (citations omitted) (emphasis in original). See Horizon Hematology-Oncology, P.C. v. Blue Cross Blue Shield, 2008 U.S. Dist. LEXIS 6817 (D.S.C. 2008) (removal based, in part, on complete preemption); Thomas v. Wells Fargo Ins. Servs., 2010 U.S. Dist. LEXIS 95973, at *19–34 (S.D. W. Va. 2010) (same). The usual procedural rules of removal apply in ERISA cases. For example, in cases involving multiple defendants, each must join in the petition for removal. Stonewall Jackson Mem. Hosp. v. Am. United Life Ins. Co., 963 F. Supp. 553, 558 (N.D. W. Va. 1997). In Acord v. Montelone, 2013 U.S. Dist. LEXIS 10962 (N.D. W. Va. 2013), the court remanded the case to state court because not all defendants had joined in the removal to federal court. Courts have recognized that the party seeking to remove a case to federal court has the burden of establishing federal jurisdiction, and if federal jurisdiction is doubtful, a remand is necessary. See, e.g., Fair v. Giant of Md., 2006 U.S. Dist. LEXIS 5758 (D. Md. 2006); Four-Cnty. Cmty. Servs. v. FIA Adm’rs, Inc., 2003 U.S. Dist. LEXIS 23462 (M.D.N.C. 2003). A district court has noted that the majority of courts look to the whole record brought forward on removal, and not just the complaint, to determine whether removal jurisdiction exists; “even under this approach the burden of establishing removal jurisdiction rests upon the party seeking to invoke it.” Potter v. Shoney’s, Inc., 108 F. Supp. 2d 489, 497 n.11 (M.D.N.C. 1999) (citation omitted). Nor does a plaintiff’s 506

failure to object to a notice of removal or file a motion to remand automatically confer removal jurisdiction on a federal court. Id. In the context of ERISA, the Fourth Circuit has held that a plaintiff, who timely filed a motion to remand, had not waived her objection to a defendant’s removal of her case to federal court by amending her complaint to explicitly assert a cause of action under § 502 of ERISA. King v. Marriott Int’l, Inc., 337 F.3d 421, 425–26 (4th Cir. 2003). On the other hand, a district court has held that a plaintiff cannot avoid the preemptive force of ERISA, and thus seek a remand to state court, merely because she disavows any attempt to enforce rights under an ERISA plan. Moon v. BWX Techs., Inc., 742 F. Supp. 2d 827, 835 (W.D. Va. 2010). A district court has ruled that a third-party health plan could not remove a case to federal court based on ERISA. Sanford v. Premier Millwork & Lumber Co., 234 F. Supp. 2d 569 (E.D. Va. 2002). See also Carroll Cnty. Gen. Hosp. v. Rosen, 174 F. Supp. 2d 384 (Md. 2001). The concurrent jurisdiction that exists between the state and federal courts for benefit claims brought under § 1132(a)(1)(B) has been noted not to be a justification for remanding an ERISA case to state court. Pearson v. Hartford Comprehensive Emp. Benefits Servs. Co., 2006 U.S. Dist. LEXIS 41953 (M.D.N.C. 2006); Schrader v. Trucking Emps. of N. Jersey Welfare Fund, Inc., 232 F. Supp. 2d 560, 567 (M.D.N.C. 2002). Moreover, a district court has rejected an argument that a plan had waived its right to remove a case to federal court by previously 507

including in its summary plan description a notice to participants that “if you have a claim for benefits which is denied or ignored, in whole or in part, you may file suit in a state or federal court.” Fanney v. Trigon Ins. Co., 11 F. Supp. 2d 829, 831–32 (E.D. Va. 1998). As for the timing of filing a notice of removal, a district court has found that a defendant could remove an ERISA case more than 180 days after service of the initial state court pleading, because the case as originally stated in that pleading was not removable. Therrell v. Cameron, 1997 U.S. Dist. LEXIS 20294, at *19 (M.D.N.C. 1997) (citing Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997)). The court found that in reading the entire complaint, “notice of an ERISA cause of action is at best obscure” because it was not apparent that plaintiffs had provided an employee benefit plan and were making a claim against that plan. Id. Moreover, citing Lovern again, the court rejected the plaintiffs’ argument that the defendants had actual knowledge that the insurance constituted an employee benefit, noting that removal jurisdiction is an objective inquiry, not a subjective one. Id. at *20–21.

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CHAPTER 5 Fifth Circuit JENNIFER M. LAWRENCE VIRGINIA N. RODDY KELLY D. SIMPKINS HON. STEPHEN W. SMITH I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan Nearly every Fifth Circuit case that discusses the existence of a plan under ERISA begins the inquiry at the statutory definition of an employee benefit plan. 29 U.S.C. § 1002(1)(3). The Fifth Circuit has “devised a comprehensive test for determining whether a particular plan qualifies as an employee welfare benefit plan.” Meredith v. Time Ins. Co., 980 F.2d 352, 355 (5th Cir. 1993). The three-part inquiry is “whether a plan (1) exists; (2) falls within the safe-harbor provision established by the Department of Labor; and (3) satisfies the primary elements of an ERISA ‘employee benefit plan’—establishment or maintenance by an employer intending to benefit employees.” Id. “If

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any part of the inquiry is answered in the negative, the submission is not an ERISA plan.” Id. In determining whether a plan exists, the Fifth Circuit has stated that it turns to a test devised by the Eleventh Circuit: “whether from the surrounding circumstances a reasonable person could ascertain the intended benefits, beneficiaries, source of financing, and procedures for receiving benefits.” Id. (citing Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir. 1982) (en banc) (adopted in Mem’l Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236 (5th Cir. 1990)). Determining whether a plan satisfies the elements of an ERISA plan requires an examination of the definitions of employer and employee and the relationship between the two. B. Definition of “Employee” for ERISA Purposes In Meredith, the Fifth Circuit notes that “ERISA simply provides that an employee is ‘any individual employed by an employer.’” 980 F.2d at 356 (citing 29 U.S.C. § 1002(6)). Citing Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 323 (1992), the Fifth Circuit stated, “In the absence of textual clues, courts should look to the federal common law in order to determine who is an employee.” Provident Life & Acc. Ins. Co. v. Sharpless, 364 F.3d 634, 638 (5th Cir. 2004). Like the Supreme Court, the Fifth Circuit has also looked to the DOL regulations, including its “interpretation of employee status,” to determine whether certain individuals should be treated as participants or beneficiaries under ERISA plans. In March of 2004, the 510

Supreme Court answered the question: “Does the working owner of a business … qualify as a ‘participant’ in a pension plan governed by … [ERISA]?” Yates v. Hendon, 541 U.S. 1, 6 (2004). “The answer,” the Court held, “is yes: If the plan covers one or more employees other than the business owner and his or her spouse, the working owner may participate on equal terms with other plan participants.” Id. This ruling was consistent with the approach taken by the Fifth Circuit in Vega v. National Life Ins. Services, Inc., 188 F.3d 287 (5th Cir. 1999) (holding that husband and wife owners of a corporation were employees for purposes of ERISA). Furthermore, the Fifth Circuit has had an opportunity to rule on this issue post-Yates, and has consistently followed Yates. See Sharpless, 364 F.3d 634 (court held that Dr. Sharpless, who was a shareholder in a multiple shareholder corporation, was also an employee for purposes of ERISA). A sole proprietor, however, who purchased insurance only for herself and her husband was held not to be an employer for purposes of ERISA and, therefore, her “plan” was not governed by ERISA. Meredith, 980 F.2d 352. C. Interpretation of Safe Harbor Regulation To fall under the “safe harbor” provision and be exempt from ERISA, a plan must meet the four criteria established by the Department of Labor at 29 C.F.R. § 2510.3-1(j): (1) the employer does not contribute to the plan; (2) employee participation is voluntary; (3) the employer’s role is limited to collecting and remitting 511

premiums to the insurer, without endorsement of the plan; and (4) the employer receives no profit from the plan. “Given the language of the [safe harbor] regulation, especially the use of the conjunction ‘and,’ the presence of all four conditions is jointly sufficient to cause the program to be excluded from the definition of a ‘group plan.’” Kidder v. H&B Marine, Inc., 932 F.2d 347 (5th Cir. 1991). “Group insurance plans which meet all of these criteria are excluded from ERISA’s coverage.” Hansen v. Cont’l Ins. Co., 940 F.2d 971 (5th Cir. 1991). Where the employer pays the premium for the employees’ coverage under the plan (and thereby negates the first of the four safe harbor conditions), the plan is exempt from the safe harbor regulations. Tatum v. Special Ins. Servs., 2003 WL 22922302 (5th Cir. 2003). The Fifth Circuit has also held that a group accidental insurance policy qualified as an ERISA plan where the employer’s brochure endorsed the plan by urging employees to “give the program careful consideration” and the employer employed a full-time employee benefits administrator. Hansen, 940 F.2d at 974. However, “the mere fact that coverage flows from the employment relationship is not sufficient to invoke ERISA.” Metoyer v. Am. Int’l Life Assur. of N.Y., 296 F. Supp. 2d 745, 750 (S.D. Tex. 2003). Another Fifth Circuit decision interpreting the safe harbor regulation is House v. American United Life Ins. Co., 499 F.3d 443 (5th Cir. 2007). In House, plaintiff, a partner in a law firm, was covered under a multi-class employee welfare benefit plan. House was a member of the partner-only class, all of whom paid their own premiums. The Fifth Circuit reversed the district court’s 512

ruling that House’s coverage was not governed by ERISA, citing Yates for the proposition that separate treatment of participants governed under the same plan is inconsistent with “Congress’s intent of achieving uniformity in the law governing employee benefits.” Id. at 452. D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan In Taggart Corp. v. Life & Health Benefits Administration, Inc., 617 F.2d 1208 (5th Cir. 1980), the Fifth Circuit held that an employer’s “bare purchase” of an insurance policy does not establish an ERISA plan. In Memorial Hospital System v. Northbrook Life Ins. Co., 904 F.2d 236, 242–43 (5th Cir. 1990), the court distinguished Taggart as follows: Unlike Taggart, the present case does not involve the bare purchase of insurance by a lone employee through a MET [multiple employer trust]. Noffs, a statutory employer, has chosen to provide welfare benefits to all of its full-time employees through the purchase of a group insurance policy. Noffs is solely responsible under the policy for submitting monthly premiums directly to Northbrook by the premium due dates. The fact that Noffs’ administrative functions under the policy are minimal is perfectly in keeping with its intent that Northbrook administer the plan as well as insure it. There is, thus, an employer-employee-plan relationship that was lacking in Taggart.

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In Kidder v. H&B Marine, Inc., 932 F.2d 347, 353 (5th Cir. 1991), the Fifth Circuit concluded that “H&B Construction Inc.’s payment of premiums on behalf of its employees is ‘substantial evidence that a plan, fund, or program [was] established.’” See also Hansen, 940 F.2d at 977. The Fifth Circuit does not recognize a “list bill” exception for individual policies. There are district court cases which discuss list billing in the context of policies issued to associations, but list billing was not a material factor in finding those plans to be governed by ERISA. See Acuna v. Conn. Gen. Life Ins. Co., 572 F. Supp. 2d 713 (E.D. Tex. 2008). E. Treatment of Multiple Employer Trusts and Welfare Agreements Under ERISA, a multiple employer welfare arrangement (MEWA) includes all arrangements “established or maintained for the purpose of offering or providing” certain benefits “to the employees of two or more employers … or to their beneficiaries.” 29 U.S.C. § 1002(40)(A). “ERISA does not automatically govern all MEWAs. Congress’s notion of a MEWA is broader than its concept of an ‘employee benefit plan’ … The statutory definition of a MEWA encompasses both [employee welfare benefit plans] and arrangements ‘other than … employee welfare benefit plan[s].’” MDPhysicians & Assoc., Inc. v. State Bd. of Ins., 957 F.2d 178, 181 (5th Cir. 1992). For purposes of ERISA preemption, the question is not whether a particular arrangement is a MEWA, but whether the plan in question meets the 514

statutory definition. See Meredith v. Time Ins. Co., 980 F.2d 352 (5th Cir. 1993). In MDPhysicians, the Fifth Circuit concluded that MDPhysicians & Associates, Inc. Employee Benefit Plan, formed by an independent physician practice association, was not an employee welfare benefit plan governed by ERISA, although it was a MEWA. The court could not “locate [MDPhysicians] as an ‘employer’ within ERISA,” and stated: Absent the protective nexus between the entity providing the benefits and the individuals receiving the benefits, we cannot consider the … [plan] a “group or association of employers” acting indirectly for the Subscribing Employers in relation to the … Plan. …. [MDPhysicians] established and maintained the [MDPhysicians] Plan to generate profits. The Subscribing Employers, the entities with economic and representational ties to the individuals that benefited from the … Plan, were not involved in the establishment or maintenance of the … Plan. We hold that the [MDPhysicians] Plan did not act as a “group or association of employers” in the interest of the Subscribing Employers in relation to the … Plan. 957 F.2d at 186. F. De Facto Plan Administrators In Musmeci v. Schwegmann Giant Super Markets, Inc., 332 F.3d 339 (5th Cir. 2003), the Fifth Circuit held that 515

the employer could be sued for plan benefits under ERISA § 502(a)(1)(B) because it was the entity that had final decision-making authority over whether the plaintiff was entitled to receive benefits under the plan. Following Musmeci, district courts in the Fifth Circuit have allowed suits against non-plan defendants when there is “evidence showing that defendants exert control over plan administration.” Delgado v. Citigroup Inc., 2008 WL 548801, at *9 (S.D. Tex. 2008) (citations omitted). However, where “there is no such showing of intertwining between [a non-plan defendant] and the plan,” there can be no recovery against the non-plan defendant for plan benefits. Firmin v. Life Ins. Co. of N. Am., 684 F.3d 533, 546 (5th Cir. 2012). The Fifth Circuit has not, however, ruled definitively on whether an entity that controls plan administration but is not the plan administrator—a de facto plan administrator—can be liable for penalties under § 502(c). In Fisher v. Metro. Life Ins. Co., 895 F.2d 1073 (5th Cir. 1990), the Fifth Circuit considered the plaintiff’s argument that the defendant insurer, to whom the plan administrator had delegated the responsibility for evaluating and administering claims, was also responsible for providing plaintiff with a copy of the plan when requested. Id. at 1077. The court did not rule on the issue but, in a later case, held that a non-plan administrator could not be held liable for failure to furnish a plan participant with a notice of modification to an employee benefit plan. Therefore, it is unclear at this time under what circumstances the Fifth Circuit would find a de facto plan administrator liable for statutory penalties. 516

II. Preemption A. Scope of ERISA Preemption A Fifth Circuit judge once ruefully observed, “We have spilled much ink over the last few decades trying to interpret this statute.” Roark v. Humana, Inc., 307 F.3d 298, 313 (5th Cir. 2002). Most of that ink dealt with preemption. Like many other circuits, the Fifth Circuit has found it difficult to stay in step with the Supreme Court’s shifting views of ERISA preemption. In general, the circuit has tended toward a narrower view of ERISA’s preemptive scope. Thus, in Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41 (1987), the Supreme Court reversed the Fifth Circuit’s holding that state law contract and tort claims for denial of insurance benefits were not preempted by ERISA. In Boggs v. Boggs, 520 U.S. 833 (1997), the Supreme Court reversed a Fifth Circuit finding that ERISA did not preempt Louisiana community property laws affecting pension benefits. And most recently in Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), the Supreme Court held that ERISA preempted a suit for HMO negligence under the Texas Health Care Liability Act, contrary to the Fifth Circuit’s view. Occasionally, the Fifth Circuit has failed to anticipate Supreme Court zags toward a more restrictive view of preemption. For example, in Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002), the Supreme Court rejected a preemption challenge to an Illinois statute requiring HMOs to provide independent review of disputes between the primary care physician and the HMO. The Fifth Circuit had reached the opposite 517

conclusion in overturning a similar provision of the Texas Health Care Liability Act. Corp. Health Ins. Inc. v. Tex. Dep’t of Ins., 215 F.3d 526 (5th Cir. 2000), vacated and remanded sub nom., Montemayor v. Corp. Health Ins. Inc., 536 U.S. 935 (2002). B. Complete versus Ordinary Preemption Until recently, the Fifth Circuit emphasized the importance of the distinction between complete preemption on the one hand and ordinary preemption, sometimes called “conflict” preemption, on the other. Ordinary preemption is a federal defense to the plaintiff’s suit and may arise either by express statutory term or by a direct conflict between the operation of federal and state law. Arana v. Ochsner Health Plan, 338 F.3d 433, 459 (5th Cir. 2003) (en banc). Because it is merely a defense, ordinary preemption does not provide a jurisdictional basis for removal to federal court. Id. Complete preemption has been described as less a principle of substantive preemption than it is a rule of federal jurisdiction. McClelland v. Gronwaldt, 155 F.3d 507, 516 (5th Cir. 1998), rev’d in part on other grounds, Arana, 338 F.3d at 440 n.11. A state law claim that duplicates, supplements, or supplants ERISA civil enforcement remedies is contrary to congressional intent to make those remedies exclusive. State law claims falling within the scope of the civil enforcement provisions contained in ERISA § 502(a) are completely preempted. Id. at 517. The state action thus becomes “transmogrified” into a federal one, giving rise to federal question jurisdiction. Giles v. NYLCare Health Plans, Inc., 172 518

F.3d 332, 337 (5th Cir. 1999). Among other things, two criteria are necessary for complete preemption: (1) an employee benefit plan must exist; and (2) the plaintiff must have standing to sue under § 502(a). Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 291 (5th Cir. 1999) (en banc). The test for ordinary preemption under ERISA § 514(a) (the “relate to” clause) is different, and calls for an evaluation of the nexus between ERISA and the asserted state law claim in the context of ERISA’s statutory objectives. A state law claim is subject to ordinary preemption if a two-prong test is met: (1) the state law claim addresses an area of exclusive federal concern, such as the right to receive benefits under the terms of an ERISA plan; and (2) the claim directly affects the relationships among traditional ERISA entities—the employer, the plan and its fiduciaries, and the participants and beneficiaries. Smith v. Tex. Children’s Hosp., 84 F.3d 152, 155 (5th Cir. 1996). State law claims with only a tenuous, remote, or peripheral connection with an ERISA plan will not be preempted under § 514. Lewis v. Bank of Am., 343 F.3d 540, 543 (5th Cir. 2003). The Fifth Circuit has recognized that the tests for complete and ordinary preemption are not coextensive, and that cases could arise in which “there may be complete preemption subject matter jurisdiction over a claim that falls within ERISA section 502(a) even though that claim is not conflict-preempted by ERISA section 514.” Arana, 338 F.3d at 440. Cf. Woods v. Tex. Aggregates, L.L.C., 459 F.3d 600, 603 (5th Cir. 2006) (“The set of claims described by § 502(a) will rarely, if 519

ever, differ from the set of claims that ‘relate to’ an ERISA plan under § 514(a).”). More recent Fifth Circuit ERISA cases reflect differing approaches to preemption. Some cases downplay or ignore the distinction between § 502(a) preemption and § 514(a) preemption, and seem to adopt a unitary approach that blends the two standards together. See McAteer v. Silverleaf Resorts Inc., 514 F.3d 411 (5th Cir. 2008) (state law negligence claims for failing to maintain safe workplace held not preempted); Woods v. Tex. Aggregates, L.L.C., 459 F.3d 600 (5th Cir. 2006) (same). Another case cited the Supreme Court’s return to a “traditional analysis of preemption” in its 1995 Travelers decision (N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995)), and analyzes ERISA preemption under the same three separate categories (express, implication, and conflict) applied to other federal statutes. La. Health Serv. & Indem. Co. v. Rapides Healthcare Sys., 461 F.3d 529 (5th Cir. 2006) (Louisiana statute requiring insurance companies to honor patient assignment of benefits to hospitals is not preempted). Still another case focused entirely on express preemption under § 514(a), ignoring other forms of preemption altogether. Bank of La. v. Aetna U.S. Healthcare Inc., 468 F.3d 237 (5th Cir. 2006) (employer claims against stop-loss insurer unrelated to claims processing held not preempted). At present, the Fifth Circuit’s analytical approach to ERISA preemption lacks clarity and consistency, although its general tendency to preserve state law is predictable enough.

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C. Preemption of Health Care Benefit Claims In 1992, the Fifth Circuit ruled that any putative tort claim based on negligence in handling a benefit determination was preempted under ERISA § 514. Corcoran v. United Health Care, Inc., 965 F.2d 1321 (5th Cir. 1992). Later panels have expressed discomfort with the Corcoran rule, particularly in the managed care context, where eligibility and medical treatment decisions are frequently mixed. In Roark v. Humana, Inc., 307 F.3d 298, 315 (5th Cir. 2002), rev’d sub nom. Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), plaintiffs argued that decisions by plan administrators denying coverage for certain treatments recommended by their doctors breached the duty of care in making treatment decisions, in violation of the Texas Health Care Liability Act. The Fifth Circuit held that such claims were not preempted, relying in part on an expansive reading of the Supreme Court’s decision in Pegram v. Herdrich, 530 U.S. 211 (2000): We decline, two years after the [Supreme] Court [in Pegram] expressed disbelief that Congress would federalize medical malpractice law under § 502(a)(2), to hold that Congress had done so under § 502(a)(1)(B). Roark, 307 F.3d at 311. The Supreme Court reversed, limiting Pegram’s application to mixed eligibility/treatment decisions made by treating physicians.

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The Davila reversal initially appeared to check any impetus toward cutting back on the scope of ERISA preemption in the health care arena. See Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420 (5th Cir. 2004) (state law negligence, unfair trade practice, tortious interference, and defamation claims held preempted as collateral attack on benefit denial). State law claims challenging denial of long-term disability status under both the Texas Insurance Code and common law duty of good faith were held conflict preempted in Ellis v. Liberty Life Assur. Co., 394 F.3d 262 (5th Cir. 2004), cert. denied, 545 U.S. 1128 (2005). Even though the Insurance Code provides remedies for unfair practices and bad-faith claim denial by insurers, they do not substantially affect the risk pooling arrangement between the insurer and the insured, and therefore do not qualify for the insurance exemption to ERISA preemption under the Supreme Court’s decision in Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 341–42 (2003). More recent cases appear to revert to the circuit’s pre-Davila posture of narrowly construing ERISA preemption. An employer’s state law claims for breach of contract and misrepresentation against the administrator and stop-loss insurer for its self-insured ERISA benefit plan was held not preempted in Bank of La. v. Aetna U.S. Healthcare Inc., 468 F.3d 237 (5th Cir. 2006). A Louisiana statute requiring insurance companies to honor assignments of benefit claims made by patients to hospitals survived a preemption challenge in La. Health Service & Indem. Co. v. Rapides Healthcare System, 461 F.3d 529 (5th Cir. 2006). The court found no conflict preemption because the 522

assignment statute did not create an additional means to enforce payment of benefits under an ERISA plan, but merely transferred the cause of action from the patient to the hospital. Nor was there express preemption under the “relate to” clause of § 514, in light of ERISA’s statutory silence on benefit plan assignments, as well as the Supreme Court’s rejection of an “uncritical literalism” in N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995), and return to a traditional preemption analysis paying more respect to areas of traditional state regulation. The panel decision acknowledged and expressly declined to follow contrary holdings in both the Eighth and Tenth Circuits. When faced with a medical provider’s claim against an insurer under the Texas Prompt Pay Act, the Fifth Circuit held that claims implicating the rate of payment set in the provider agreement are not completely preempted under Davila; however, claims asserting the provider’s right to payment under the terms of ERISA plans are completely preempted. Lone Star OB/GYN Assocs. v. Aetna Health Inc., 579 F.3d 525, 530 (5th Cir. 2009). However, in a more recent en banc decision, the Fifth Circuit has rejected the distinction between “existence of coverage” versus “extent of coverage” for purposes of deciding whether a medical device provider’s claims for misrepresentation were subject to ordinary preemption under ERISA § 514. Access Mediquip, L.L.C. v. United Healthcare Ins. Co., 662 F.3d 376 (5th Cir. 2011), opinion reinstated on rehearing en banc, 698 F.3d 229 (5th Cir. 2012), cert. denied, 133 S. Ct. 1467 (2013). The lawsuit arose from United’s refusal to pay some or all of Access’s claims for reimbursement for medical device 523

procurement and financing services provided in connection with over 2000 patients insured under ERISA plans administered by United. Relying upon an earlier decision, Transitional Hospitals Corp. v. Blue Cross, 164 F.3d 952, 955 (5th Cir. 1999), the court framed the dispositive issue as whether the provider’s state law claims “are dependent on, and derived from the rights of [the patients] to recover benefits under the terms of their ERISA plans.” 662 F.3d at 383. Applying that standard, the court found that Access’s promissory estoppel, negligent misrepresentation, and Texas Insurance Code claims were not preempted, because these claims were based on allegations and evidence that Access provided the services in reliance on United’s representations that it would pay reasonable charges for Access’s services. On the other hand, Access’s quantum meruit and unjust enrichment claims were preempted, because they depended on Access’s assertion that without its services the patients’ ERISA plans would have obliged United to reimburse a different provider for the same services. The en banc opinion expressly overruled three prior cases inconsistent with its decision: Cypress Fairbanks Med. Ctr., Inc. v. Pan-Am. Life Ins. Co., 110 F.3d 280 (5th Cir. 1997); Hermann Hosp. v. MEBA Med. & Benefits Plan, 845 F.2d 1286 (5th Cir. 1988) (Hermann I); and Hermann Hosp. v. MEBA Med. & Benefits Plan, 959 F.2d 569 (5th Cir. 1992) (Hermann II). Curiously, there is no mention of the Lone Star OB/GYN case discussed above, which relies on a distinction—right to payment versus rate of payment—very similar to the one explicitly rejected in Access. III. Exhaustion of Administrative Remedies 524

A. Is Exhaustion an Absolute Requirement? The Fifth Circuit adheres to the rule that a party must exhaust available administrative remedies under the plan before bringing suit to recover benefits. Denton v. First Nat’l Bank of Waco, 765 F.2d 1295, 1300 (5th Cir. 1985). The exhaustion requirement has been extended to claims that a plan breached its fiduciary duty in connection with a benefit denial. Simmons v. Willcox, 911 F.2d 1077, 1081 (5th Cir. 1990). However, fiduciary breach claims that do not seek the distribution of any benefits do not require the exhaustion of administrative remedies. Milofsky v. Am. Airlines, Inc., 442 F.3d 311 (5th Cir. 2006) (en banc) (suit to recover losses to 401(k) plan arising from delay in transferring account balances to new plan). Failure to exhaust is not a defense to claims of interference with protected rights under ERISA § 510. Chailland v. Brown & Root Inc., 45 F.3d 947 (5th Cir. 1995). Exhaustion of administrative remedies is not a prerequisite for subject matter jurisdiction. Crowell v. Shell Oil Co., 541 F.3d 295, 308–09 (5th Cir. 2008) (“ERISA exhaustion is not jurisdictional”); Hager v. NationsBank N.A., 167 F.3d 245, 248 n.3 (5th Cir. 1999). Although not specifically required by ERISA, the exhaustion doctrine is a common law defense “uniformly imposed by the courts in keeping with Congress’ intent in enacting ERISA.” Hall v. Nat’l Gypsum Co., 105 F.3d 225, 231 (5th Cir. 1997). The purposes of the exhaustion requirement include minimizing frivolous ERISA suits, promoting consistent treatment of benefit claims, providing a nonadversarial dispute resolution process,

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reducing delay and expense, and creating a clear record of administrative action if litigation ensues. Id. B. Exceptions to the Exhaustion Requirement The Fifth Circuit has so far recognized two exceptions to the exhaustion requirement. The first is futility: a claimant need not exhaust administrative remedies when it would be futile to do so. Denton v. First Nat’l Bank of Waco, 765 F.2d 1295, 1300 (5th Cir. 1985). But futility may be shown only when the plan administrator is hostile or biased against the claimant. McGowin v. ManPower Int’l, Inc., 363 F.3d 556, 559 (5th Cir. 2004); Bourgeois v. Pension Plan for Emps. of Santa Fe Int’l Corps., 215 F.3d 475, 479 (5th Cir. 2000). The mere fact that the claim was initially denied by a high-ranking company official, or even by the same committee that would review an appeal, is insufficient to establish futility. McGowin, 363 F.3d at 560; Bourgeois, 215 F.3d at 479; Denton, 765 F.2d at 1300. The second recognized exception is denial of meaningful access to the administrative process. McGowin, 363 F.2d at 560. For example, in Hall v. National Gypsum Co., the plaintiff overcame the exhaustion defense because the plan had abolished the appeals committee that was supposed to review the plaintiff’s claim denial. 105 F.3d 225, 232 (5th Cir. 1997). By contrast, in McGowin the plaintiff was not denied meaningful access, despite her lack of notice of plan claim procedures, because she never requested the plan documents nor was she told specifically that she could not obtain them. 363 F.3d at 560. 526

The court generally insists upon strict compliance with the claims procedure provided by the plan. “[A]llowing informal attempts to substitute for the formal claims procedure would frustrate the primary purposes of the exhaustion requirement.” Bourgeois, 215 F.3d at 480 n.14. See Swanson v. Hearst Corp. Long Term Disability Plan, 586 F.3d 1016, 1018 (5th Cir. 2009) (plan member attorney’s letter expressing an “intention to appeal” was not an appeal). This normally includes completion of any internal appeals process. Denton, 765 F.2d at 1300. C. Consequences of Failure to Exhaust The remedies imposed for failure to exhaust vary depending on the circumstances. If the plaintiff has filed an initial claim, the case is normally remanded back to the plan for further consideration. Bourgeois v. Pension Plan for Emps. of Santa Fe Int’l Corps., 215 F.3d 475, 482 n.30 (5th Cir. 2000). If no such claim has been filed, then dismissal is the preferred course. McGowin v. ManPower Int’l, Inc., 363 F.3d 556, 560 (5th Cir. 2004) (affirming summary judgment dismissing claims); Coop. Benefit Adm’rs, Inc. v. Ogden, 367 F.3d 323 (5th Cir. 2004) (same). In Crowell v. Shell Oil Co., 541 F.3d 295, 308–09 (5th Cir. 2008), both the district court and appellate court reached (and rejected) plaintiffs’ claim for additional early retirement benefits on the merits, despite a finding of failure to exhaust that went unchallenged on appeal. D. Minimum Number of Levels of Administrative Review

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The Fifth Circuit has not required an ERISA plan to provide more levels of administrative reviews than the statute requires. 29 U.S.C § 1133. E. Can a Defendant Waive a Failure-to-Exhaust Defense? Presumably, like any other affirmative defense, failure to exhaust may be waived if not pleaded, although no reported Fifth Circuit decision has so held. The Fifth Circuit has recognized that under certain circumstances plan defendants may be estopped from raising a failureto-exhaust defense. Bourgeois v. Pension Plan for Emps. of Santa Fe Int’l Corps., 215 F.3d 475, 481 (5th Cir. 2000) (“various officials of the company led Bourgeois on a wild goose chase, effectively extinguishing his time to apply for benefits”). IV. Standard of Review A. Plan Language The Fifth Circuit has not insisted on any talismanic formula to obtain Firestone deference for plan determinations. Language conferring discretionary authority to interpret the plan and decide claims is generally sufficient. However, discretionary authority is not conferred by plan language stating merely that the fiduciary has authority to control and manage the plan. Cathey v. Dow Chem. Co. Med. Care Program, 907 F.2d 554 (5th Cir. 1990), cert. denied, 498 U.S. 1087 (1991). A plan administrator’s discretion to resolve ambiguities in the plan does not extend to the plan summary, even when 528

the summary is a verbatim copy of text in the plan. Koehler v. Aetna Health Inc., 683 F.3d 182, 188 (5th Cir. 2012). B. What Standard of Review Applies? Unlike other circuits, the Fifth Circuit adheres to the view that factual findings by the plan administrator are entitled to review under the arbitrary and capricious standard, even where de novo review would be required for plan interpretation issues. Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 213 (5th Cir. 1999); Pierre v. Conn. Gen. Life Ins. Co., 932 F.2d 1552 (5th Cir. 1991), cert. denied, 502 U.S. 973 (1993). By the same token, a plan administrator’s statutory and legal conclusions unrelated to plan interpretation are always subject to de novo review. Brown v. Cont’l Airlines, Inc., 647 F.3d 221,226 (5th Cir. 2011) (federal courts need not defer to plan administrator’s determination that a state court domestic relations order was invalid because the underlying divorce was a “sham”); Dial v. NFL Player Supp. Disability Plan, 174 F.3d 606, 611 (5th Cir. 1999) (no deference owed to administrator’s interpretation of state court domestic relations order). In conducting this deferential review, courts determine whether the plan administrator’s denial of benefits is supported by “substantial evidence.” See Anderson v. Cytec Indus., Inc., 619 F.3d 505, 512 (5th Cir. 2010); Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir. 2009); Dutka v. AIG Life Ins. Co., 573 F.3d 210, 213 (5th Cir. 2009). In other words, there must be more than a scintilla (but not necessarily a preponderance) of 529

relevant evidence that a reasonable mind might accept to support the denial. Anderson, 619 F.3d at 512 (quoting Corry v. Liberty Life Assur. Co. of Bos., 499 F.3d 389, 398 (5th Cir. 2007)). Thus, courts owe no deference to “unsupported suspicions.” Id. (quoting Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 302 (5th Cir. 1999)). The Fifth Circuit has adopted a two-step process for reviewing a plan administrator’s denial of benefits for abuse of discretion. First, did the administrator give the plan the “legally correct” interpretation? In answering this question, the court must consider (1) whether the administrator has given the plan a uniform construction, (2) whether the interpretation is consistent with a fair reading of the plan, and (3) any unanticipated costs resulting from different interpretations. Wildbur v. ARCO Chem. Co., 974 F.2d 631, 637–38 (5th Cir. 1992). The second factor is considered the most important. Gosselink v. Am. Tel. & Tel., Inc., 272 F.3d 722, 727 (5th Cir. 2001). As for the third factor, the Fifth Circuit recently affirmed an administrator’s determination that the term “children” in a pension plan did not include unadopted stepchildren, because that interpretation would result in unanticipated costs. Herring v. Campbell, 690 F.3d 413, 416 (5th Cir. 2012). If the court concludes the administrator’s interpretation is legally incorrect, the court must then proceed to determine whether the administrator abused its discretion. Three factors are relevant here: (1) the internal consistency of the plan under the administrator’s interpretation, (2) any relevant regulations promulgated by administrative agencies, and (3) the factual 530

background of the determination and any inferences of bad faith. Id.; see Stone v. Unocal Termination Allowance Plan, 570 F.3d 252, 258 (5th Cir. 2009) (a plan administrator’s conflict of interest is considered in this second inquiry). The Wildbur two-step approach need not be rigidly applied in every case, however. Where an administrator interprets an ERISA plan in a manner that “directly contradicts” the plain meaning of the plan language, an abuse of discretion may be found even if there is no evidence of bad faith or violation of administrative regulations. Gosselink, 272 F.3d at 727. This direct-contradiction exception to Wildbur is to be used “sparingly and with restraint,” however. Baker v. Metro. Life Ins. Co., 364 F.3d 624, 634 (5th Cir. 2004) (Weiner, J., concurring). Where a benefit plan provides for binding arbitration of disputes, court review of the arbitration award is limited to the same exceedingly deferential standard of review applied to arbitration awards generally. Kergosien v. Ocean Energy, Inc., 390 F.3d 346 (5th Cir. 2004) (enforcing arbitration award under severance pay plan), overruled on other grounds by Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008), as recognized in Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349 (5th Cir. 2009). In light of recent Supreme Court precedent, the Fifth Circuit has held that an arbitration award can be challenged only under the grounds set forth in section 10 of the Federal Arbitration Act. Citigroup Global Mkts., 562 F.3d at 355. Plan administrators who exercised authority under the plan to break a deadlock by referring 531

disability claims to an arbitrator, and then adopted the arbitrator’s decision, did not improperly delegate the benefits determination to a nonfiduciary so as to require de novo judicial review. Atkins v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, 694 F.3d 557, 568–69 (5th Cir. 2012). C. Effect of Conflict of Interest or Procedural Irregularity Prior to the Supreme Court’s decision in Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), the Fifth Circuit employed a sliding scale of deference to the decision of a plan administrator with a conflict of interest. “The greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be.” Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 297 (5th Cir. 1999) (en banc). This approach did not alter the governing standard, but reduced the amount of deference based on “the extent to which the challenging party has succeeded in substantiating its claim that there is a conflict.” MacLachlan v. ExxonMobil Corp., 350 F.3d 472, 478–79 (5th Cir. 2003). As a practical matter, there is not much daylight between this approach and that outlined in Glenn, that is, conflict as one among many case-specific factors to be weighed under Firestone. See Sanders v. UNUM Life Ins. Co., 553 F.3d 922, 925 (5th Cir. 2008) (citing both Glenn and pre-Glenn cases in describing standard of review); see also Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 247 n.3 (5th Cir. 2009) (“Nonetheless, much of our ‘sliding scale’ precedent is compatible with the Supreme Court’s newly clarified ‘factor’ methodology, and Glenn does not 532

[supersede] that precedent to the extent it reflects the use of a conflict as a factor that would alter the relative weight of other factors.”). The only change wrought by Glenn is the recognition that a conflict exists whenever a plan administrator both evaluates and pays the claims, which is commonly the case when the administrator is a human resources employee paid by the plan sponsor. See Holland, 576 F.3d at 248 (conflict existed where the employer made irrevocable and nonreversionary contributions to a trust and also determined eligibility for benefits); Crowell v. Shell Oil Co., 541 F.3d 295, 312 (5th Cir. 2008) (noting that MacLachlan, 350 F.3d 472, had held that no conflict arose from the “mere fact that benefit claims are decided by a paid human resources administrator who works for the defendant corporation”). This type of inherent conflict has not yet been held significant enough to be a tiebreaker in any reported case. As a factor in determining the propriety of a benefit denial, conflicts of interest are given greater weight “where the circumstances surrounding the plan administrator’s decision suggest ‘procedural unreasonableness.’” Schexnayder v. Hartford Life & Acc. Ins. Co., 600 F.3d 465, 469 (5th Cir. 2010). In that case, the Fifth Circuit held that the employer’s failure to minimize its conflict of interest and address a contrary Social Security award constituted “procedural unreasonableness.” Id. at 470–71. The following steps were found sufficient to minimize a potential conflict of interest by the administrators of a change-of-control benefit plan: (1) the administrators 533

neither investigated nor considered the cost of granting a benefit application; (2) their compensation was not affected by the number of claims granted or denied; (3) appeals committee members did not report to the manager responsible for benefit claims; (4) administrators had access to independent counsel for advice; and (5) the employer made no attempt to influence the administrative process. Stone v. Unocal Termination Allowance Plan, 570 F.3d 252, 262 (5th Cir. 2009). The Fifth Circuit has not imposed a heightened standard of review for benefit decisions in conflict with ERISA’s procedural requirements. Wade v. HewlettPackard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533, 538 (5th Cir. 2007). In a recent case, the court noted that the Ninth Circuit applied a de novo standard of review for “flagrant procedural violations of ERISA,” but expressed no opinion on the question. See Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d 148 (5th Cir. 2009). Challenges to ERISA plan procedures are evaluated under the substantial compliance standard. Lacy v. Fulbright & Jaworski LLP, 405 F.3d 254, 256–57 (5th Cir. 2005). A plan did not substantially comply with ERISA’s “full and fair review” requirement when it relied on an entirely different ground for denial on administrative appeal. Rossi v. Precision Drilling Oilfield Serv. Corp. Employee Benefits Plan, 704 F.3d 362, 366 (5th Cir. 2013). Procedural failures resulting in prejudice to final determinations may provide grounds for a court to overturn an administrator’s decision. Love v. Dell Inc., 551 F.3d 333, 338 (5th Cir. 2008). “Remand to the plan administrator for full and fair review is usually the 534

appropriate remedy when the administrator fails to substantially comply with the procedural requirements of ERISA.” Lafleur, 563 F.3d at 157. This rule is applicable where there is a colorable claim for benefits. Id. at 158. An exception applies where the evidence clearly shows the denial was arbitrary and capricious. Rossi v. Precision Oilfield Serv. Corp. Employee Benefits Plan, 704 F.3d 362, 368 (5th Cir. 2013). In such cases, summary judgment for the plaintiff is appropriate. Robinson v. Aetna Life Ins. Co., 443 F.3d 389, 396 (5th Cir. 2006). Some cases suggest the possibility of substantive damages including retroactive reinstatement of benefits “when the violations are continuous and amount to substantive harm,” but the point has not been definitely decided in this circuit. Id.; Hines v. Mass. Mut. Life Ins. Co., 43 F.3d 207, 211 (5th Cir. 1995). D. Other Factors Affecting Standard of Review In Baker v. Metro. Life Ins. Co., 364 F.3d 624 (5th Cir. 2004), the Fifth Circuit confronted an unusual case in which two ERISA fiduciaries, each with discretionary authority to interpret the plan, disagreed on a benefit claim. The plan administrator initially granted the claim for enhanced life insurance benefits, but the plan insurer refused to pay, citing certain unmet preconditions. The court sided with the plan insurer, because the plan administrator’s interpretation directly contradicted the plan language, and hence was arbitrary and capricious. In a concurring opinion, Judge Weiner noted that if the plan administrator had not abused its discretion, the court would have been required to defer to the plan

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administrator’s interpretation, especially given the plan insurer’s potential conflict of interest. The standard of review is not affected by a plan fiduciary’s decision to terminate benefits previously granted. In particular, a plan insurer is not required to prove a subsequent and substantial change in medical condition in order to justify a decision terminating disability benefits initially granted six months earlier. Ellis v. Liberty Life Assur. Co., 394 F.3d 262 (5th Cir. 2004) (upholding termination of benefits based on subsequently acquired medical evidence); cf. Robinson v. Aetna Life Ins. Co., 443 F.3d 389 (5th Cir. 2006) (overturning decision to terminate long-term disability benefits previously granted, where plan administrator relied on evidence outside administrative record that claimant had no opportunity to contest). V. Rules of Plan Interpretation A. Application of Federal Common Law The interpretation of ERISA benefit plans is a matter of federal common law. Wegner v. Standard Ins. Co., 129 F.3d 814, 818 (5th Cir. 1997). Analogous state law principles may provide guidance, but only to the extent that they are consistent with congressional policy reflected in ERISA. Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1451 (5th Cir. 1995). Federal common law definitions of undefined terms in insured plans are controlling, even where the plan administrator is given discretion to interpret the plan. Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 534 (5th Cir. 2012) (common law 536

definition of “accident” is controlling in all ERISA accidental death and dismemberment plans where the term “accident” is undefined). Eligibility for ERISA benefits is “governed in the first instance by the plain meaning of the plan language.” Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998). ERISA plans are interpreted from the standpoint of “a person of average intelligence and experience,” Jones v. Ga. Pac. Corp., 90 F.3d 114, 116 (5th Cir. 1996), or, more particularly, “the average plan participant.” Tucker v. Shreveport Transit Mgmt., Inc., 226 F.3d 394, 398 (5th Cir. 2000); see 29 U.S.C. § 1022(a). Plan provisions are to be read “not in isolation, but as a whole.” Dallas Cnty. Hosp. Dist. v. Associates’ Health & Welfare Plan, 293 F.3d 282, 288 (5th Cir. 2002). Until recently, the settled rule in the Fifth Circuit was that the terms of the summary plan description (SPD) control over inconsistent terms in the underlying plan. Fallo v. Piccadilly Cafeterias, Inc., 141 F.3d 580, 584 (5th Cir. 1998). Hansen v. Cont’l Ins. Co., 940 F.2d 971,981 (5th Cir. 1991). Those cases preceded Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), which held that the SPD is not itself part of the plan for purposes of a claim under § 1132(a)(1)(B). In Koehler v. Aetna Health Inc., the Fifth Circuit considered the impact of Amara on its case law, concluding as follows: [Amara] changes our case law to the extent that the plan text ultimately controls the administrator’s obligations in a § 1132(a)(1)(B) action, but [Amara] does not disturb our prior holdings that (1) ambiguous 537

plan language be given a meaning as close as possible to what is said in the plan summary, and (2) plan summaries be interpreted in light of the applicable statutes and regulations. 683 F.3d 182, 189 (5th Cir. 2012). Reversing a summary judgment for the plan administrator, the Koehler court held the plan summary was inadequate because the preauthorization requirement at issue was a “restrictive plan provision” not disclosed with the clarity which ERISA regulations require. The Fifth Circuit has recognized ERISA estoppel as an actionable legal theory. Mello v. Sara Lee Corp., 431 F.3d 440 (5th Cir. 2005). Its elements are (1) material misrepresentation, (2) reasonable and detrimental reliance, and (3) extraordinary circumstances. Because estoppel is a legal theory rather than an interpretation of plan terms, court review of a plan decision on that ground is de novo rather than deferential. A party’s reliance on a misrepresentation that conflicts with the plain language of plan documents will seldom, if ever, be reasonable. High v. E-Sys. Inc. Long Term Disability Income & Death Benefit Plan, 459 F.3d 573 (5th Cir. 2006) (reliance upon actual receipt of disability benefits not offset by monthly Veterans Administration benefits is unreasonable in view of conflict with plan terms); Mello, 431 F.3d at 445 (reliance upon repeated oral and written misstatements of monthly benefit amount held unreasonable in light of unambiguous plan language). In Gearlds v. Entergy Serv., Inc., 709 F.3d 448, 453 (5th Cir. 2013), the Fifth Circuit recognized that the traditional equitable doctrine of

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“surcharge” was available under ERISA as a monetary remedy for misrepresentation by a plan fiduciary. Although the Supreme Court affirmed the Fifth Circuit’s judgment in Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285 (2009), it overturned two lines of this circuit’s common law precedent dealing with ERISA benefit waivers. First, the Court rejected the circuit’s own rationale for its holding, which was that ERISA’s anti-alienation provision precluded waiver of pension benefits by the ex-spouse in a divorce decree. Because the waiver did not purport to assign or transfer anything to the estate or any other beneficiary, it did not constitute an assignment or alienation rendered void by ERISA § 1056(d)(1). Second, the Court held that a beneficiary’s federal common law waiver of plan benefits is ineffective where that waiver is inconsistent with plan documents. In upholding “the bright-line requirement to follow plan documents in distributing benefits,” the Court erased a well-established line of Fifth Circuit cases allowing valid waivers to trump plan beneficiary designations as a matter of federal common law. See, e.g., Guardian Life Ins. Co. v. Finch, 395 F.3d 238 (5th Cir. 2004); Manning v. Hayes, 212 F.3d 866 (5th Cir. 2001); Brandon v. Travelers Ins. Co., 18 F.3d 1321 (5th Cir. 1994). Outside the beneficiary designation context, the Fifth Circuit has applied the doctrine of waiver against plan administrators. See Rhorer v. Raytheon Eng’rs & Const’rs, Inc., 181 F.3d 534 (5th Cir. 1999) (denying summary judgment on claim that plan administrator knowingly waived a condition of coverage by accepting 539

employees’ insurance premiums for several months); Pitts v. Am. Sec. Life Ins. Co., 931 F.2d 351 (5th Cir. 1991) (plan insurer waived a coverage condition by accepting health insurance premiums for five months after learning the condition had not been met); see also High v. E-Sys. Inc. Long-Term Disability Income & Death Benefits Plan, 459 F.3d 573 (5th Cir. 2006) (no waiver by new plan administrator who discovered and promptly discontinued overpayments initiated by previous administrator). B. Application of Contra Proferentem The Fifth Circuit follows the rule of contra proferentem, that is, ambiguities must be resolved against the drafter in cases involving insurance benefits under ERISA plans. Wegner v. Standard Ins. Co., 129 F.3d 814, 818 (5th Cir. 1997); Hansen v. Cont’l Ins. Co., 940 F.2d 971, 982 (5th Cir. 1991) (construing SPD that conflicted with underlying life insurance policy). The rule applies even to cases where the plan administrator has been given discretion to interpret the insurance plan. Rhorer v. Raytheon Eng’rs & Const’rs Inc. Basic Life, Optional Life, Accidental Death & Dependent Life Ins. Plan, 181 F.3d 635, 642 (5th Cir. 1999) (contra proferentem may properly be used under first step of Wildbur abuse of discretion review). But see High v. E-Sys. Inc. Long-Term Disability Income & Death Benefits Plan, 459 F.3d 573, 578–79 (5th Cir. 2006) (declining to apply contra proferentem because the plan language was not ambiguous and “if there had been an ambiguity, [the administrator] was empowered to resolve it” by exercising its “complete discretion to interpret the plans”). The Fifth Circuit has not definitively ruled whether the 540

contra proferentem doctrine applies to uninsured ERISA benefits. See, e.g., Weir v. Fed. Asset Disposition Ass’n, 123 F.3d 281, 286 (5th Cir. 1997) (describing the issue as one of first impression in the circuit but declining to reach it). A later Fifth Circuit case strongly implies that contra proferentem should be confined to insurance contracts because the doctrine would be inconsistent with congressional intent under ERISA. Walker v. Wal-Mart Stores, Inc., 159 F.3d 938, 940 (5th Cir. 1998). But see McCall v. Burlington N./Santa Fe Co., 237 F.3d 506, 512 (5th Cir. 2000) (declaring without analysis that ambiguities in a severance pay SPD “must be resolved in the employee’s favor,” citing insurance plan cases). C. Other Rules of Plan or Contract Interpretation The Fifth Circuit has held that where the terms of the summary plan description (SPD) conflict with the plan itself, the claimant need not prove prejudice or reliance on the SPD’s conflicting terms to prevail on a claim for benefits. Washington v. Murphy Oil USA, Inc., 497 F.3d 453 (5th Cir. 2007). This holding may need to be revised in light of Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), which held that SPDs cannot be enforced as plan terms under § 502(a)(1)(B). The Amara court did not rule out the possibility of equitable relief in such situations, but noted that equitable remedies typically require some showing of prejudice or actual harm. The administrator of a long-term disability benefit plan did not abuse its discretion by relying upon the Department of Labor’s Dictionary of Occupational Titles

541

to define the plan term “your occupation,” which established the minimal baseline ability to perform the claimant’s job. Pylant v. Hartford Life & Acc. Ins. Co., 497 F.3d 536 (5th Cir. 2007). D. Effect of Plan Amendments on Pending Claims Procedural amendments to a benefit plan may legitimately be applied to a pending claim, at least before the claim has initially been ruled on by the administrator. Vercher v. Alexander & Alexander, 379 F.3d 222, 226 n.6 (5th Cir. 2004) (dicta). Where amendments to a severance plan became effective after the employee was given notice of termination but before he was actually terminated, the plan administrator did not abuse its discretion in applying the amended terms to his claim. Chacko v. Saber, Inc., 473 F.3d 604 (5th Cir. 2006). ERISA requires plan administrators to notify participants of material changes in the plan, and DOL regulations specify that “measures reasonably calculated to ensure actual receipt” must be used. 29 C.F.R. § 2520.104b-1(b)(1). In Custer v. Murphy Oil USA Inc., 503 F.3d 415 (5th Cir. 2007), the court reversed a summary judgment enforcing modifications to a long-term disability plan in light of a factual dispute whether the modification notice was properly addressed and mailed to the plaintiffs. Employers generally are free under ERISA to modify or terminate welfare plans, but contracts restricting that freedom are enforceable. See Vasseur v. Halliburton Co., 950 F.2d 1002, 1006 (5th Cir. 1992). A class of retirees of an acquired company was entitled to enforce a merger agreement imposing limits on the ability of the surviving 542

corporation to amend the retirees’ medical program, notwithstanding a no-third-party beneficiary clause in the merger agreement. Halliburton Co. Benefits Comm. v. Graves, 463 F.3d 360 (5th Cir. 2006), as clarified on petition for reh’g, 479 F.3d 360 (5th Cir. 2007). In order to be a valid plan amendment, a corporate agreement must be in writing, contain a provision directed to an ERISA plan, and satisfy the plan amendment formalities. Id. 463 F.3d at 370–74. An express intention to amend the plan is not required, nor does the failure to include or distribute the agreement as a plan document affect its status as a valid plan amendment. Evans v. Sterling Chemicals, Inc., 660 F.3d 862, 871–72 (5th Cir. 2011). VI. Discovery A. Limitations on Discovery The trial courts recognize that the Fifth Circuit’s limitation of the evidence a court may consider in reviewing a plan administrator’s decision imposes concomitant discovery limitations. In Vega v. Nat’l Life Ins. Services, Inc., the Fifth Circuit reaffirmed its longstanding rule that it “will not permit the district court or our own panels to consider evidence introduced to resolve factual disputes with respect to the merits of the claim when the evidence was not in the administrative record.” 188 F.3d 287, 300 (5th Cir. 1999); see also Robinson v. Aetna Life Ins. Co., 443 F.3d 389, 395–96 (5th Cir. 2006) (refusing to consider vocational analysis submitted by insurer because it was not in the administrative record); see also Bellaire Gen. Hosp. v. Blue

543

Cross Blue Shield of Mich., 97 F.3d 822, 827 (5th Cir. 1996) (in evaluating whether plan administrator abused his discretion in making factual determination, district court may consider only evidence available to the plan administrator). In Vega, the Fifth Circuit prohibited the admission of evidence to resolve the merits of coverage determinations, unless the evidence is in the administrative record, relates to how the administrator has previously interpreted the plan, or would assist the court in understanding medical terms and procedures. Vega, 188 F.3d at 300. However, Vega does not prohibit the admission of evidence to resolve other issues that may be raised in ERISA actions. Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 263 (5th Cir. 2011). For example, a claimant may question the completeness of the administrative record. Estate of Bratton v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 215 F.3d 516, 521 (5th Cir. 2000) (indicating that a claimant may contest whether the identified administrative record is complete). A claimant may also question whether the plan administrator complied with ERISA’s procedural regulations. Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d 148, 150 (5th Cir. 2009) (remanding the case to the district court to further remand to the plan administrator because the plan administrator failed to comply with ERISA’s procedural requirements). It is also foreseeable that a claimant may wish to question the existence and extent of a conflict of interest created by a plan administrator’s dual role in making benefits determinations and funding the plan. See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008) (defining conflict of interest as a factor for the court to 544

consider when evaluating whether the plan administrator abused its discretion). The Fifth Circuit does not limit the admissibility of evidence to the administrative record on the aforementioned issues because each is distinct from the question of whether coverage should be extended. Crosby, 643 F.3d at 263 (“[W]e can envision situations where evidence resolving these disputes may not be contained in the administrative record.”), accord Wildbur v. ARCO Chem. Co., 974 F.2d 631, 638–39 (5th Cir. 1992). Thus, a discovery request for such information is relevant and therefore permissible under federal discovery rules. Crosby, 643 F.3d at 263 (request must be reasonably calculated to lead to the discovery of admissible evidence). Accordingly, it is impermissible to consider evidence outside of the administrative record to “resolve the merits of the coverage determination—i.e. whether coverage should have been afforded under the plan—unless the evidence is in the administrative record, relates to how the administrator has interpreted the plan in the past, or would assist the court in understanding medical terms and procedures.” Bullard v. Life Ins. Co. of N. Am., 2011 U.S. Dist. LEXIS 47, at *9 (S.D. Tex. 2011) (citing Crosby, 629 F.3d at 461). However, discovery is allowed to aid in the court’s resolution of issues separate and distinct from the issue of whether or not coverage should be afforded. Crosby, 629 F.3d at 461. B. Discovery and Conflict of Interest

545

The Fifth Circuit permits discovery outside the administrative record in order to enable the beneficiary to develop evidence demonstrating the extent of alleged conflicts of interest on the part of the plan administrator. Copus v. Life Ins. Co. of N. Am., 2008 U.S. Dist. LEXIS 55099, at *5–6 (N.D. Tex. 2008) (citing Albert v. Life Ins. Co. of N. Am., 156 F. App’x 649, 653 (5th Cir. 2005)). See also Arnold v. F.A. Richard & Assocs., Inc., 2000 WL 1875905, at *2 (E.D. La. 2000) (court allowed discovery of nonprivileged information on issue of whether conflict of interest existed and to what extent). VII. Evidence A. Scope of Evidence under Standards of Review “A long line of Fifth Circuit cases stands for the proposition that, when assessing factual questions, the district court is constrained to the evidence before the plan administrator.” Vega, 188 F.3d 287, 299 (5th Cir. 1999); see also Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 263 (5th Cir. 2011). In determining whether an administrator’s plan interpretation was an abuse of discretion, the district courts may consider “some evidence other than that contained in the administrative record.” Wildbur v. ARCO Chem. Co., 974 F.2d 631, 638 (5th Cir. 1992); see also Vega, 188 F.3d at 299 (courts may stray from administrative record to determine whether interpretation was an abuse of discretion); see also Crosby v Louisiana Health Service and Indemnity Co., 647 F. 3d 258 (5th Cir. 2011) (finding that Vega prohibits discovery and the 546

admission of evidence to resolve the merits of the coverage determination but not discovery and admission of evidence to resolve other questions such as completeness of the administrative record, whether the plan administrator complied with ERISA’s procedural regulations, and the existence and extent of a conflict of interest created by a plan administrator’s dual role in making benefits determinations and funding the plan). B. Evidentiary Determinations

Value

of

Social

Security

Social Security determinations are relevant to a plan administrator’s decision if a plan administrator’s general policy is to follow the Social Security Administration’s decision when determining eligibility. Moller v. El Campo Aluminum Co., 97 F.3d 85, 87–88 (5th Cir. 1996). However, where there is no evidence before the court that a plan administrator relies on or considers decisions by the Social Security Administration when determining whether insureds meet the definition of disabled under a particular plan, the administrator is not bound by the Social Security Administration’s determination. Curley v. Sedgwick Claims Management Services, Inc., 2013 WL 135525, at *2 (5th Cir. 2013) (finding that administrator’s decision was not arbitrary and capricious even though it did not consider social security award because SSA’s determination rests upon different definitions and standards); Jones v. Metro. Life Ins. Co., 2003 WL 22952212, at *5 (N.D. Tex. 2003), aff’d, 119 F. App’x 635 (5th Cir. 2005).

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The Fifth Circuit recognizes that an insurer may insist on objective proof and measures of symptoms and of limits on the ability to work, even when diagnosis is difficult and subjective complaints such as “fatigue” or “pain” are the signature of the disease. Adams v. Unum Life Ins. Co. of Am., 2005 U.S. Dist. LEXIS 32098, at *100 (S.D. Tex. 2005). An insistence on objective evidence of restrictions and limitations is not arbitrary and capricious. Adams, 2005 U.S. Dist. LEXIS 32098, at *100–01 (S.D. Tex. 2005) (citing Vercher v. Alexander & Alexander Inc., 379 F.3d 222, 230–31 (5th Cir. 2004), and upholding a plan administrator’s denial of claim based on lack of objective evidence). C. Other Evidence Issues One exception to the general rule is that district courts may consider evidence outside the record to help the court understand medical terminology relating to a claim. Id. The plan administrator has the obligation to identify the evidence in the administrative record and the claimant may then contest the completeness of the record. Crosby, 643 F.3d at 263. The claimant may also challenge whether the administrator complied with ERISA’s procedural regulations. Id.; see also Albert v. Life Ins. Co. of N. Am., 156 F. App’x 649, 653 (5th Cir. 2005) (court allowed to look beyond administrative record at evidence that assists in understanding medical terminology or practice related to claim); Baptist Mem’l Hosp.-DeSoto, Inc. v. Crane Auto., Inc., 2007 WL 405051 (N.D. Miss. 2007) (court allowed expert to testify regarding whether charges were excessive or unreasonable), aff’d, 392 F. 548

App’x 289, 298 (5th Cir. 2010); Dowdy v. Hartford Life & Acc. Ins. Co., 458 F. Supp. 2d 289, 292 (N.D. Miss. 2006) (court considered brochure not in administrative record to help court understand fibromyalgia). VIII. Procedural Aspects of ERISA Practice A. Methods of Adjudication The Fifth Circuit has recognized that summary judgment is the appropriate procedural vehicle for resolution of a plan beneficiary’s suit. Barhan v. Ry-Ron, Inc., 121 F.3d 198, 201–02 (5th Cir. 1997). Once the motion for summary judgment is filed, a court applies the usual summary judgment rules. Id. The Fifth Circuit also recognizes motions for judgment on a stipulated record. See Smith v. Blue Cross Blue Shield of La., 2008 U.S. Dist. LEXIS 8323, at *7 (W.D. La. 2008). B. Reported ERISA Trials There is no right to jury trial in an ERISA claim; the plaintiff’s request for a jury trial should be stricken. Calamia v. Spivey, 632 F.2d 1235, 1237 (5th Cir. 1980); Sparks v. Life Investors Ins. Co., 818 F. Supp. 945, 948 (N.D. Miss. 1993). But see LeTourneau Lifelike Orthotics & Prosthetics, Inc. v. Wal-Mart Stores, Inc., 298 F.3d 348, 349 (5th Cir. 2002) (court tried issue of whether provider was entitled to reimbursement); Estate of Bratton v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 215 F.3d 516, 519 (5th Cir. 2000) (court tried issue of whether accidental death benefits were due to estate of plan participant); Gibbs v. Gibbs, 210 F.3d 491, 494 (5th 549

Cir. 2000) (beneficiary brought ERISA claim for death benefits and court tried claim and insurer’s counterclaim for interpleader); Baptist Mem’l Hosp.-DeSoto, Inc. v. Crane Auto., Inc., 457 F. Supp. 2d 702, 705 (N.D. Miss. 2006) (court denied summary judgment on grounds that trial was necessary to determine whether hospital’s charges were unreasonable, excessive, or noncustomary), aff’d, 392 F. App’x 289 (5th Cir. 2010); Williams ex rel. Williams v. Jackson Stone Co., 867 F. Supp. 454 (S.D. Miss. 1994) (court could try issue of whether employer breached fiduciary duty). IX. Fiduciary Liability Claims A. Definition of Fiduciary ERISA provides for named and de facto fiduciaries. Fiduciary status may be conferred by express designation, pursuant to 29 U.S.C. § 1105(c)(1)(A); or, pursuant to 29 U.S.C. § 1002(21)(A), a person may be a fiduciary with respect to a plan to the extent that “he … exercises any authority or control regarding management … of [a benefits] plan or … its assets”; renders “investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan”; or has “any discretionary authority or discretionary responsibility in administration of a plan.” Therefore, a “fiduciary may be defined not only by reference to a particular title … but also by considering the authority which a particular person has over an employee benefit plan.” Donovan v. Mercer, 747 F.2d 304, 308 (5th Cir. 1984). “The term ‘fiduciary’ is liberally construed in keeping with the remedial purpose of ERISA.” Bannistor 550

v. Ullman, 287 F.3d 394, 401 (5th Cir. 2002) (citation omitted). B. Definition of Fiduciary Duties ERISA imposes a uniform standard of fiduciary conduct upon fiduciaries of plans regulated by ERISA. Pursuant to 29 U.S.C. § 1104(a)(1)(B): A fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and … for the exclusive purpose of providing benefits to participants and their beneficiaries … and … defraying reasonable expenses of administering the plan … and with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims. “ERISA does not expressly enumerate the particular duties of a fiduciary, but rather relies on the ‘common law of trusts to define the general scope of a fiduciary’s responsibilities.’” Martinez v. Schlumberger, 338 F.3d 407, 412 (5th Cir. 2003) (citing Edward E. Bintz, Fiduciary Responsibility under ERISA: Is There Ever a Fiduciary Duty to Disclose? 54 U. Pitt. L. Rev. 979 (1993)). A more recent line of ERISA fiduciary duty cases decided in the circuits after Varity Corp. v. Howe, 516 U.S. 489 (1996), has focused on an 551

employer–administrator’s representations (or lack thereof) to employees concerning plan changes or amendments. In Martinez, the Fifth Circuit held that an employer–administrator has no fiduciary duty under ERISA to affirmatively disclose whether it is considering amending its benefit plan and that the employer had no duty to disclose to employees that it was considering an early retirement offering. However, the court did note that if an employer “chooses to communicate about the future of a participant’s plan benefits, [it] has a fiduciary duty to refrain from misrepresentations.” 338 F.3d at 424. The court could not, however, “agree that misrepresentations are actionable only after the company has seriously considered the plan change.” Id. at 425. Rather, the court indicated that “the more seriously a plan is being considered, the more likely a representation about the plan is material.” Id. at 428. Refusing to accept or formulate a bright-line rule to determine whether an employer’s alleged misrepresentations are material and, therefore, actionable, the court held “only that the lack of serious consideration does not equate to a free zone for lying.” Id. C. Fiduciary Liability in the Context of Health and Disability Claims A plaintiff cannot bring a private action for breach of fiduciary duty under § 502(a)(3) of ERISA when the civil enforcement provisions of ERISA provide a possible remedy. See Estate of Bratton v. Nat’l Union Fire Ins. Co., 215 F.3d 516, 526 (5th Cir. 2000); Rhorer v. Raytheon Eng’rs & Const’rs, Inc., 181 F.3d 634, 639 (5th Cir. 1999). If a plaintiff may bring a claim under § 552

502(a)(1)(B) for benefits allegedly owed under an ERISA plan, he may not bring a claim for breach of fiduciary duty. Id. See also Tolson v. Avondale Inds., 141 F.3d 604, 610 (5th Cir. 1998). Therefore, fiduciary liability does not generally arise in the context of health and disability claims. However, in CIGNA Corp. v. Amara, 131 S.Ct. 1866 (2011), the Supreme Court expanded the relief available under § 502(a)(3) where the relief sought makes the plaintiff whole for losses caused by the defendant’s breach of duty. This principle was applied by the Fifth Circuit in Gearlds v. Entergy Corp., 709 F.3d 448 (5th Cir. 2013). Finding that CIGNA Corp. v. Amara overruled its prior decision in Amschwand v. Spherion Corp., 505 F.3d 342 (5th Cir. 2007), the Gearlds court reversed the district court’s ruling dismissing Gearlds’ complaint for monetary relief in connection with his claim for breach of fiduciary duty, finding that remand to the district court was appropriate to determine “whether Gearlds’s breach of fiduciary duty claim may prevail on the merits and whether the circumstances of the case warrant the relief of a surcharge.” D. Remedies for Breach of Fiduciary Duty ERISA § 409(a) provides that anyone who breaches a fiduciary duty to a plan shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary that have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may 553

deem appropriate, including removal of such fiduciary. Recovery for fiduciary breaches to the plan is available under § 502(a)(2), but only if breach affected the entire plan, and the recovery would inure to the benefit of the plan as a whole. Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985). ERISA § 502(a)(3) authorizes lawsuits for individualized equitable relief for breach of fiduciary obligations. Varity Corp. v. Howe, 516 U.S. 489 (1996). It also may allow recovery of monetary relief to make the plaintiff whole for losses caused by the breach of fiduciary duty. See CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011); Gearlds v. Entergy Corp., 709 F.3d 448 (5th Cir. 2013). E. Contribution and Indemnity Claims among Fiduciaries The Fifth Circuit has not expressly ruled as to whether cofiduciaries can claim indemnification and contribution. F. ERISA Claims against Nonfiduciaries In Harris Trust & Savings Bank v. Salomon Smith Barney, Inc., 530 U.S. 238 (2000), the Supreme Court held that a participant, beneficiary, or fiduciary could bring a civil action for “appropriate equitable relief” under ERISA § 502(a)(3) against a nonfiduciary party who engaged in a prohibited transaction. Following suit, the Fifth Circuit, in Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, 354 F.3d 348 (5th Cir. 2003), allowed a suit for a 554

constructive trust under § 502(a)(3) against a law firm holding settlement funds for its plan participant/client in a trust account. X. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees Under ERISA, “the court in its discretion may allow a reasonable attorneys’ fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). In the Fifth Circuit, a party need not prevail on its underlying claim in order to be eligible for an award of attorneys’ fees under 29 U.S.C. § 1132(g)(1). Gibbs v. Gibbs, 210 F.3d 491, 503 (5th Cir. 2000); Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1459 (5th Cir. 1995). Rather, such an award, as the statute states, is purely discretionary. Riley v. Adm’r of Supersaver 401K Capital Accumulation Plan for Emps. of Participating AMR Corp. Subsidiaries, 209 F.3d 780, 782 (5th Cir. 2000); Todd, 47 F.3d at 1458; Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1016 (5th Cir. 1992). Additionally, the Fifth Circuit will review a district court’s decision only for an abuse of discretion. Id. Although other circuits have asserted that a presumption exists under ERISA in favor of awarding costs and attorneys’ fees, no such presumption exists in the Fifth Circuit. Todd, 47 F.3d at 1459; Harms v. Cavenham Forest Indus., Inc., 984 F.2d 686, 694 (5th Cir. 1993). Once a request for attorneys’ fees under 29 U.S.C. § 1132(g)(1) has been made, the Fifth Circuit may in its discretion consider the following five Bowen factors under 29 U.S.C. § 1132(g)(1): 555

1. The degree of the opposing parties’ culpability or bad faith; 2. The ability of the opposing parties to satisfy an award of attorneys’ fees; 3. Whether an award of attorneys’ fees against the opposing party would deter other persons acting under similar circumstances; 4. Whether the parties requesting attorneys’ fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and 5. The relative merits of the parties’ positions. Riley, 209 F.3d at 781–82; Todd, 47 F.3d at 1458; Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980). However, a court is not required to consider the Bowen factors. Lifecare Management Services, LLC v Ins. Management Admin. Inc., 703 F. 3d 835, 846 (5th Cir. 2013). In Lifecare, the Fifth Circuit recognized that in Hardt v Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2158 (2010), the Supreme Court clarified that courts need not consider the Bowen factors in determining whether to award fees under 29 U.S.C. § 1132(g)(1). The Fifth Circuit did not reject the Bowen factors. Therefore, it is still prudent to consider all of the Bowen factors as a whole as courts have done in the past. Riley, 209 F.3d at 782. No one factor individually is entitled to greater weight than any of the others. Id. Although the Bowen factors are the “nuclei” of concerns that the Fifth Circuit will address in applying 29 U.S.C. § 1132(g)(1),

556

the Bowen factors are a “non-exhaustive” list of factors the Fifth Circuit considered prior to Lifecare. Id. The Fifth Circuit will also consider, on a case-by-case basis, other factors and considerations that it deems relevant. Id.; see also Collinsworth v. AIG Life Ins. Co., 267 F. App’x 346, 350 (5th Cir. 2008) (rejecting argument that the party that presents its side with greater merit is entitled to discretionary award of attorneys’ fees). B. Fees Awarded to Plan Fiduciaries There is no requirement that a party prevail in order to be eligible for consideration for attorneys’ fees. Gibbs v. Gibbs, 210 F.3d 491, 503–04 (5th Cir. 2000). The Fifth Circuit has recognized that “either” party may recover attorneys’ fees. See Id. at 501 (court may award “reasonable attorneys’ fees and costs … to either party”) (quoting 29 U.S.C. § 1132 (g)(1) and supplying the emphasis). In Tolson v. Avondale Industries, the Fifth Circuit assessed costs of appeal against the plaintiff to discourage “prosecuting litigation of this ilk.” 141 F.3d 604, 611 (5th Cir. 1998). It warned that similar actions “could result in sanctions more stringent than mere assessment of costs, including, without limitation, attorneys’ fees and double costs under Federal Rules of Appellate Procedure 38 for frivolously appealing adverse dispositions of the district court.” Id. In other instances, the Fifth Circuit has been reluctant to affirm the award of attorneys’ fees to plan fiduciaries. In Gibbs, the Fifth Circuit reversed the award of attorneys’ fees to the plan fiduciary, even though the district court found that the plaintiff/appellant acted in bad faith. Gibbs, 210 F.3d at 505. See also Dennard v. Richards Group, 681 F.2d 306, 557

319 (5th Cir. 1982) (rejecting suggestion that the Fifth Circuit establish preference in favor of awarding fees to successful plan defendants, because it would discourage plan participants from attempting to vindicate their rights). C. Calculation of Attorneys’ Fees The district court must apply a two-step analysis to determine the amount of attorneys’ fees. Todd, 47 F.3d at 1459. A district court must first determine whether a party is entitled to attorneys’ fees by applying the five factors enumerated in Bowen. Id. If the district court concludes that a party is entitled to attorneys’ fees, it must then apply the “lodestar” calculation—multiplying the number of hours expended on the matters at issue in the case by a reasonable hourly rate—to determine the amount to be awarded. Id.; see also Baptist Mem’l Hosp.-DeSoto v. Crane Auto., Inc., 2008 WL 5100217 (N.D. Miss. 2008) (court reviewed statements line by line and reduced fee requests by 50 percent because of excessive and duplicative billing and because some charges pertained to claims against other defendants), aff’d, 392 F. App’x 289 (5th Cir. 2010). Attorneys’ fees may not be awarded based upon a percentage of the recovery. Id.; see also Pa. v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564 (1986) (endorsing the lodestar method for calculating attorneys’ fees under federal fee-shifting statutes such as ERISA). Todd, 47 F.3d at 1459 (citing Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1016 (5th Cir. 1992)). XI. ERISA Regulations 558

Regulations promulgated by the Secretary of Labor under ERISA § 505 are entitled to “considerable” deference, as they are the pronouncements of the agency charged with enforcement and administration of ERISA. Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 241 n.6 (5th Cir. 1990). The Fifth Circuit has often resorted to DOL regulations clarifying the statutory definitions of “employee benefit plan,” “welfare plan,” and “pension plan” in order to resolve coverage disputed under ERISA. See 29 C.F.R. pt. 2510 (2003); Memorial Hosp. Sys., 904 F.2d at 241 n.6 (relying upon 29 C.F.R. § 2510-3-1(j) (1987) to support its conclusion that the group health insurance policy at issue was a covered ERISA plan); Robertson v. Alexander Grant & Co., 798 F.2d 868, 870 (5th Cir. 1986) (upholding regulation 29 C.F.R. § 2510.3-3(c)(2) (1985), which excludes partnership plans from ERISA coverage as consistent with ERISA legislative history); Murphy v. Inexco Oil Co., 611 F.2d 570, 575–76 (5th Cir. 1980) (bonus plan consisting of royalty rights held excluded from ERISA coverage under 29 C.F.R. § 2510.3-(2)(c) (1979)). In Musmeci v. Schwegmann Giant Super Markets, Inc., 332 F.3d 339, 346 (5th Cir. 2003), the court rejected the employer’s contention that a grocery voucher program fit within the “sales to employees” exclusion of 29 C.F.R. § 2510.3-1(e) because the transactions more closely resembled gifts than sales. The court also gives appropriate deference to Treasury regulations pertaining to qualification of plans for preferential tax treatment. In Myers-Garrison v. Johnson & Johnson, 210 F.3d 425, 430 (5th Cir. 2000), the court 559

gave Chevron deference to Treasury regulations covering transitional discount rates for lump-sum distributions under the Retirement Protection Act of 1994. Similar deference was given to a Treasury regulation (§ 1.401(a)-20, Q&A 10(b)) interpreting “annuity starting date” for lump-sum termination distributions, as used in 26 U.S.C. § 417. PBGC v. Wilson N. Jones Mem. Hosp., 374 F.3d 362 (5th Cir. 2004). Nevertheless, when ERISA confers authority upon the Secretary of Labor to issue clarifying regulations, and the Secretary fails to exercise that authority, the court will not necessarily look to IRS tax regulations to fill the void. Donovan v. Cunningham, 716 F.2d 1455, 1473 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984) (ERISA fiduciaries are not required to follow IRS regulations concerning valuation of closely held stock, where the Secretary of Labor has not exercised congressionally delegated authority to issue regulations on the subject). XII. Cases Interpreting ERISA Statutes of Limitation Under ERISA, a cause of action accrues and the statute of limitations begins to run when a request for benefits is denied. Craft v. Northbrook Life Ins. Co., 813 F. Supp. 464, 471 (S.D. Miss. 1993) (citing Hogan v. Kraft Foods, 969 F.2d 142, 145 (5th Cir. 1992)); Simmons v. Willcox, 911 F.2d 1077, 1981 (5th Cir. 1990). Because ERISA does not provide a statute of limitations period for a § 502(a)(1)(B) claim to enforce plan rights, the Fifth Circuit has addressed the issue by applying the state statute of limitations most analogous to the cause of action raised in

560

each particular action. Hall v. Nat’l Gypsum Co., 105 F.3d 225, 230 (5th Cir. 1997); Hogan, 969 F.2d at 145. For instance, in Mississippi, the “catch-all” statute of limitations period set forth in section 15-1-49 of the Mississippi Code Annotated is most analogous and provides a three-year statute of limitations period for § 502 actions. Craft, 813 F. Supp. at 464. In Louisiana, § 502 claims are governed by Louisiana’s 10-year prescription period. Hall, 105 F.3d at 233. In Texas, § 502 claims are most analogous to an action under state law for breach of contract and are governed by Texas’s four-year statute of limitations applicable to breach of contract claims, section 16.004 of the Texas Civil Practice and Remedies Code. Stahl v. Exxon Corp., 212 F. Supp. 2d 657, 666 (S.D. Tex. 2002). But see Lopez v. Premium Auto Acceptance Corp., 389 F.3d 504, 510 (5th Cir. 2004) (applying two-year statute of limitations to claim for COBRA notice violations in Texas). Where the action is one for interference with protected rights under ERISA § 510, 29 U.S.C. § 1140, the Fifth Circuit has found § 510 claims to be most analogous to wrongful discharge or employment discrimination claims. McClure v. Zoecon, Inc., 936 F.2d 777, 778 (5th Cir. 1991). The appropriate statute of limitations for wrongful termination under Mississippi law is the “catch-all” statute of limitations, section 15-1-49 of the Mississippi Code Annotated. Banks v. Jockey Int’l. Inc., 996 F. Supp. 576, 579 (N.D. Miss. 1998). In Louisiana, courts have consistently applied the one-year prescriptive period of 561

article 3492 in wrongful discharge cases. Franz v. Iolab, Inc., 801 F. Supp. 1537, 1544 (E.D. La. 1992) (citing Lynn v. Berg Mech., Inc., 582 So. 2d 902, 909 (La. App. 2d Cir. 1991)); Arvie v. Century Tel. Enters., Inc., 452 So. 2d 392, 393 (La. App. 3d Cir. 1984). In Texas, a § 510 suit is most similar to a wrongful discharge or employment discrimination claim and, consequently, subject to the two-year prescription period prescribed in section 16.003 of the Texas Civil Practice and Remedies Code. McClure v. Zoecon, Inc., 936 F.2d 777, 778 (5th Cir. 1991). Where the plan designates a reasonable, shorter time period, that lesser limitation schedule governs. White v. Metro. Life Ins. Co., 2011 U.S. App. LEXIS, at *3 (5th Cir. 2011); Harris Methodist Ft. Worth v. Sales Support Servs., Inc. Emp. Healthcare Plan, 426 F.3d 330, 337 (5th Cir. 2005); see also Dye v. Assoc. First Capital Corp. Long-term Disability Plan 504, 243 F. App’x 808, 810 (5th Cir. 2007) (holding that 120-day contractual limitations period was reasonable). A person with fiduciary responsibilities to an employee benefit plan may be sued under ERISA § 413 for breach of those responsibilities. Section 413 of ERISA prescribes the period within which such suits must be brought. Generally, the limitation period is the shorter of six years from the date of the last action constituting a part of the breach or three years from the date the plaintiff first gains actual knowledge of the breach. 29 U.S.C. § 1113(1), (2). In a case of fraud or concealment, however, a more liberal limitation period

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applies—an action may be commenced up to six years after the date of discovery of the breach. Id. The Fifth Circuit has held that the three-year limitations period will begin to run only when a plaintiff has “actual knowledge of all material facts necessary to understand that some claim exists, which facts could include necessary opinion of experts, knowledge of a transaction’s harmful consequences, or even actual harm.” Babcock v. Hartmarx Corp., 182 F.3d 336, 339 (5th Cir. 1999); Reich v. Lancaster, 55 F.3d 1034, 1057 (5th Cir. 1995); Maher v. Strachan Shipping Co., 68 F.3d 951, 953–55 (5th Cir. 1995). The test is stringent and requires “specific knowledge of the actual breach” upon which plaintiff sues. Lancaster, 55 F.3d at 1057. Mere awareness of a particular event or set of facts later revealed as a breach of fiduciary duty is not actual knowledge of material facts that would make up each of the elements in a complex ERISA claim. Maher, 68 F.3d at 954–55 (claimants must have been aware of the process utilized in choosing an investment to have actual knowledge of the resulting fiduciary duty breach). See also Serton v Lockheed Martin Corp., 459 Fed. App’x 463, 2012 WL 360025, at *2 (5th Cir.) (recognizing that time in prison could toll statute of limitations under Mississippi law). Without more, the six-year limitations period applies and begins to run on the date of the last action that constituted a breach or violation. 29 U.S.C. § 1113. The Fifth Circuit enforces contractual limitation provisions. See In re Charles H. Ponstein HMO La., Inc., 563

2009 U.S. Dist. LEXIS 39754, at *11 (E.D. La. 2009) (citing Hogan, 969 F.2d at 145, and applying analogous Texas statute of limitations of four years to ERISA claim where contract did not otherwise provide limitations period). Further, the Fifth Circuit has repeatedly held that “an ERISA cause of action does not accrue until a request for benefits is denied.” Acosta v. Bank of La., 88 F. App’x 688, 690 (5th Cir. 2004) (citing Hall, 105 F.3d at 230); Hogan, 969 F.2d at 145; Paris v. Profit Sharing Plan for Emps. of Howard B. Wolf, Inc., 637 F.2d 357, 361 (5th Cir. 1981). XIII. Subrogation Litigation In the first of the three cases considered post-Knudson, the Fifth Circuit held that § 502(a)(3) of ERISA did not authorize the plaintiff’s suit. See Bauhaus USA, Inc. v. Copeland, 292 F.3d 439 (5th Cir. 2002). Judge Weiner, the author of the majority opinion in two subsequent cases, Bombardier Aerospace Emp. Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, 354 F.3d 348 (5th Cir. 2003), and Cooperative Benefit Administrators v. Ogden, 367 F.3d 323 (5th Cir. 2004), dissented from the majority opinion in Bauhaus. The Bauhaus plaintiff, an ERISA plan sponsor and administrator, had filed a complaint for declaratory judgment that under the terms of the plan it was entitled to a portion of the funds a plan participant had received by settlement with a third-party tortfeasor. The district court granted motions to dismiss the action for lack of subject matter jurisdiction, but did not consider the applicability of ERISA § 502(a)(3) because the asserted basis for jurisdiction was ERISA preemption. The Fifth 564

Circuit had indicated that it would not consider the preemption issue until it resolved the issue of whether the plaintiff’s action was “authorized” by ERISA. It concluded that the facts in Bauhaus were “indistinguishable in principle” from those of Knudson, and held that § 502(a)(3) did not authorize Bauhaus’s suit. The court discussed Knudson, enumerating the similarities between the two cases as follows: Both cases involve ERISA-governed employee benefit plans that include reimbursement provisions allowing the plans to recover from any settlement proceeds any amount the plans advanced for medical expenses resulting from third party wrong-doing. Third-party tortfeasors injured the plan beneficiaries in both cases, and the plans advanced funds to the beneficiaries for medical expenses. In both cases, the plan beneficiaries made tort settlements with third-party tortfeasors following suit in state court. In both, the plan administrator or assignee filed suit in the federal district court seeking declaratory relief that it was entitled to repayment of the benefits it had conferred. In the instant case, the settlement proceeds are in the registry of the Mississippi Chancery Court. In GreatWest, the proceeds of the settlement were placed in a private Special Needs Trust outside the possession and control of the plan beneficiary. Nevertheless, the defendants in this case, like the Knudsons in GreatWest, are not in possession of the disputed funds, a fact that Justice Scalia found extremely important in GreatWest. Bauhaus, 292 F.3d at ___. 565

The Court in Knudson characterized the suit in the case as “[a] claim for money due and owing under a contract” and that such a suit is “quintessentially an action at law.” In his dissent, Judge Weiner stated that the Bauhaus majority erred in “adopting an overly expansive reading” of Knudson and in misreading the central principles enunciated by the Supreme Court in Knudson. Bauhaus, 292 F.3d at __ (Weiner, J., dissenting). He concluded that the majority “seriously misreads” Knudson as holding that “if the disputed funds are not in the defendant’s possession, the remedy sought must be legal and not equitable.” Id. at 450. He noted that the “doctrinal point” was that after the distribution of funds, the tort victim herself was left without specific, identifiable funds to which the ERISA plan could assert title … the [Supreme] Court’s test was not whether the money was in the defendant’s possession vel non, but whether the remedy that the plan sought to impose was legal or equitable; and this distinction turned on where the money to pay the judgment would come from: if from the defendant’s personal, fungible, and untraceable resources, the remedy sought was legal and proscribed. That was the case in Great-West Life; that is not the case in Bauhaus. Id. Judge Weiner further distinguished Bauhaus from Knudson, explaining that Bauhaus claimed entitlement to funds in a state court registry and, therefore, his claim was “in rem against funds possessed by a neutral stakeholder,” and there was no

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“danger … of the district court’s imposing general, personal, contractual liability on anyone.” Id. at 451. Judge Weiner also found an “important distinction” between the two cases in “the nature of the obligation” sought to be enforced—subrogation in Bauhaus and reimbursement or restitution in Knudson. Id. Judge Weiner noted that the language in the Great-West plan provided for personal liability of the beneficiary; the Bauhaus plan did not. Furthermore, “unlike gardenvariety restitution or reimbursement, subrogation does not require that the contested funds be in the possession of the principal obligor.” Id. at 452–53. The final point that Judge Weiner made in his dissent was that the Bauhaus claim would have no adequate legal remedy against the funds held in the state court registry. He stated: [I]f the district courts are held to lack jurisdiction in cases such as this, ERISA plaintiffs like Bauhaus would have to sue in state court, overcome ERISA preemption, and then contend with a welter of disparate state laws—such as Mississippi’s antireimbursement doctrine at issue here—that could and likely would defeat the congressional purpose of achieving a nationally uniform set of rules to govern ERISA plans. Id. at 455. Following his dissent in Bauhaus, Judge Weiner wrote the majority opinion in two Fifth Circuit decisions addressing relief available under ERISA § 502(a)(3). In Bombardier, the Fifth Circuit held that § 502(a)(3) 567

authorized an ERISA plan’s suit against a law firm for settlement funds held in the law firm’s trust account under a “constructive trust” theory. The court found the facts of Bombardier “significantly distinguishable” from Knudson and Bauhaus based upon a “three-part inquiry”: Does the Plan seek to recover funds (1) that are specifically identifiable, (2) that belong in good conscience to the Plan, and (3) that are within the possession and control of the defendant beneficiary? Bombardier, 354 F.3d at 356. The third element of the inquiry, the court held, distinguished Bombardier from Knudson as follows: Here … the funds that the Plan is seeking to recover belong to the participant and are simply being held in a bank account in the name of the participant’s attorneys, who are indisputably his agent. Unlike the beneficiaries in Knudson and Bauhaus, the Plan’s participant … has ultimate control over, and thus constructive possession of, the disputed funds. The law firm … is legally obligated to disburse the funds … the moment [the plan participant] directs their release. Id. at 357. Coop. Benefit Administrators v. Ogden, the second of Weiner’s two majority opinions post-Knudson, found no authority under ERISA § 502(a)(3) or federal common law (unjust enrichment) for a claims administrator’s suit against a plan 568

participant seeking reimbursement of benefits advanced prior to the receipt by the participant (and her dependents) of Social Security disability benefits. Noting that the relief sought—enforcement of the plan participant’s contractual reimbursement obligation—was “precisely the kind of ‘legal’ remedy that the Supreme Court has held to be beyond § 502(a)(3)’s jurisdictional grant,” the court rejected the claim for unjust enrichment, stating: As Mertens and Knudson demonstrate, Congress, in drafting § 502(a)(3) to allow only “equitable relief,” specifically contemplated the possibility of extending to plan fiduciaries a right to sue a participant for money damages and chose instead to limit fiduciaries’ remedies to those typically available in equity. As ERISA’s text “specifically and clearly addresses” the issue … there is no “gap” in ERISA on this question and thus no basis for granting … a federal common law remedy … to pursue … money damages. Ogden, 367 F.3d at 332 (citations omitted). Applying the three-part inquiry advanced in Bombardier and distinguishing Bauhaus, a Louisiana federal court had concluded that “to the extent the Plan seeks to recover the funds deposited into the registry of the court in this action,” the relief is “typically equitable in nature.” Reynolds v. S. Cent. Reg’l Laborers Health & Welfare Fund, 306 F. Supp. 2d 646, 651 (W.D. La. 2004). However, the remainder of funds allegedly in the hands of the plaintiff’s attorney were not recoverable by the plan, since the plaintiff’s attorney had not been joined as a

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defendant in the suit. Id. (citing Great-West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204 (2002)). A post-Knudson clarification case by the Supreme Court that employs an analysis consistent with Bombardier is Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006). In Sereboff, the Court notes the division in the courts of appeal as to whether § 502(a)(3) authorizes recovery of settlement funds held in plan participants’ investment account where those funds equal the amount paid under a health insurance plan for the participants’ medical expenses. Like the Fifth Circuit in Bombardier, the Sereboff Court found the Knudsondistinguishing fact to be that the funds sought were “specifically identified funds” in the plan participants’ possession. In so doing, the Court abrogated Sixth and Ninth Circuit cases that had held otherwise in similar circumstances. Equitable relief was allowed in AT&T, Inc. v. Flores, 332 F. App’x 391 (5th Cir. 2009), where the plan fiduciary sought to enforce a plan provision requiring reimbursement of medical expenses paid out on behalf of the plan participant, which were being held in his attorneys’ trust account, for claims arising out of an auto accident. Applying the Bombardier three-part test and the principles established in Sereboff, the Fifth Circuit upheld the district court’s grant of summary judgment in favor of AT&T on its § 502(a)(3) claims. The most recent addition to the Sereboff Fifth Circuit offspring is ACS Recovery Services, Inc. v. Griffin, 2013 WL 1890258 (5th Cir. May 7, 2013), an en banc 570

rehearing reversing the prior panel decision at 676 F.3d 512 (5th Cir. 2012). There, the Court held that the plan administrator could recover reimbursement from a Special Needs Trust which held funds “directly traceable to [the plan participant’s] tort recovery.” VIV. Miscellaneous A. Procedural Rules District Court Judges in some federal district courts in Louisiana have adopted variations of an ERISA Case Order designed to streamline ERISA cases. The Order generally requires the parties to file: (1) a joint stipulation that ERISA governs the plan at issue or a summary judgment motion presenting the issue for the court’s determination if disputed; (2) a “defendant’s response to ERISA Case Order,” identifying any discretionary language in the plan documents and stating the defendant’s position as to whether state-law claims are preempted, along with a copy of the plan at issue and the complete administrative record; (3) a “plaintiff’s response to ERISA Case Order,” which requires a statement as to whether the plan vests the administrator with discretionary authority, whether ERISA preempts the state-law claims at issue, and whether the administrative record is complete; and (4) a joint stipulation or dispositive motions on (a) the completeness of the administrative record; (b) the issues as to which counsel cannot agree; and (c) whether the plan vests the administrator with discretionary authority to determine eligibility for benefits and to construe the terms of the plan. 571

The orders may also state that “absent further order, discovery … is limited to subject matter which relates to the administrator’s interpretation of the terms of the policy or plan” and that “discovery may not be conducted regarding the factual basis of the plaintiff’s medical claim because this court’s review is constrained to the evidence in the administrative record as reviewed by the plan administrator.” Following completion of the ERISA Case Order, a briefing schedule is entered. B. Common Policy-Based Defenses One common policy-based defense which has been considered by the Fifth Circuit in several reported ERISA decisions is the mental/nervous disorder limitation. In Tolson v. Avondale Industries, 141 F.3d 604 (5th Cir. 1996), the plaintiff claimed that he was entitled to disability benefits under a plan with a limitation for mental or nervous disorders (payment was limited to persons who were hospitalized) because his depression was “secondary to and caused by his hepatitis and the treatment of it with Interferon.” Id. at 609 (emphasis added). The Court rejected his suggestion that it “conclude that his depression is part and parcel of his hepatitis and its Interferon treatment, and this should not be restricted by the coverage limitations for mental or nervous disorders or conditions.” Id. Quoting from its decision in Lynd v. Reliance Standard Life Insurance Company, 94 F.3d 979 (5th Cir. 1996), the Court stated: simply because a medical problem and an ensuing disability are produced by depression (a stereotypical mental condition or disorder) that is itself the product 572

of a pathological disease (Hepatitis) or of the medication used to treat such a disease (Interferon), the fact is not altered that the depression is and remains a mental disorder or condition. Tolson, 141 F.3d at 609. Consistent with the ruling in Tolson and Lynd is the Fifth Circuit’s ruling in Aboul-Fetouh v. Employee Benefits Committee, 245 F.3d 465 (5th Cir. 2001). In that case, the plaintiff, after having received long term disability benefits for twenty-four months based upon a mental disability limitation, argued that he was entitled to additional benefits due to a physical condition which would not have been subject to the twenty-four month limitation. The claims administrator, Hartford, had concluded that the plaintiff’s “medical evidence failed to establish that he was totally disabled by a physical impairment when his entitlement to long-term disability benefits on the basis of the July 1994 depression and anxiety claim expired.” Id. The Fifth Circuit affirmed the decision of the district court, holding that the decision to limit benefits was not an abuse of discretion. C. ERISA Class Actions A handful of ERISA class actions have been certified in the Fifth Circuit. The most notable of those was Musmeci v. Schwegmann Giant Supemarkets, Inc., 332 F.3d 339 (5th Cir. 2003) (certification decision at 2000 WL 1010254 (E.D. La. 2000)). Musmeci involved a class composed of retired Schwegmann’s employees who were 573

receiving grocery vouchers when Schwegmann’s stopped the program and unretired Schwegmann’s employees who were fully vested in the voucher program when Schwegmann’s discontinued it. The Fifth Circuit upheld the award of monetary relief to the class members under ERISA, section 502(a)(1)(B). However, the Fifth Circuit rejected class certification in Langbecker v. Electronic Data Systems Corp., 476 F.3d 299 (5th Cir. 2007). There, the Fifth Circuit found that the district court had certified in error a class of 401(k) participants and beneficiaries who alleged breach of fiduciary duty relating to loss of investments in company stock through imprudent management of the plan. D. Risk of Relapse Cases There are no reported Fifth Circuit decisions addressing “risk of relapse” in ERISA cases. E. Jurisdiction and Removal There are no recent unique Fifth Circuit decisions regarding jurisdiction and removal.

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CHAPTER 6 Sixth Circuit ROBERT D. ANDERLE JESSICA HANDLOS S. RUSSELL HEADRICK ERIC SETTERLUND V. AUSTIN SHAVER I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan In the Sixth Circuit, “[d]etermining the existence of an ERISA plan is a question of fact to be answered in light of all the surrounding circumstances and facts from the point of view of a reasonable person, which is reviewed for clear error.” Kolkowski v. Goodrich Corp., 448 F.3d 843, 847 (6th Cir. 2006) (citing Thompson v. Am. Home Assur. Co., 95 F.3d 429, 434 (6th Cir. 1996)). In general, courts apply a three-part test to determine whether ERISA covers a particular plan or practice: (1) first, does a “safe harbor” exception apply; (2) if not, do “the surrounding circumstances” suggest that “a reasonable person could ascertain the intended benefits, the class of beneficiaries, the source of financing, and the procedures for receiving benefits”; and (3) has “the employer established or 575

maintained the plan with the intent of providing benefits to its employees.” Id. at 848 n.3 (citing Thompson, 95 F.3d at 434–35). See also id. at 848 (providing that the hallmark of an ERISA plan is an ongoing administrative program). B. Definition of “Employee” for ERISA Purposes ERISA § 3(6), 29 U.S.C. § 1002(6), defines “employee” as any individual employed by an employer. This circular and somewhat meaningless definition has led the Sixth Circuit to adopt traditional common law agency principles as a guide to determining whether an individual is considered an “employee” under ERISA. See, e.g., Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) (holding that an insurance agent did qualify as an employee upon application of the agency law definition of employee); Moore v. Lafayette Life Ins. Co., 458 F.3d 416 (6th Cir. 2006) (providing that plaintiff’s representation to Social Security Administration that he was an independent contractor was compelling); Shah v. Deaconess Hosp., 355 F.3d 496, 499 (6th Cir. 2004) (“[W]e apply the common law agency test to determine whether a hired party is an independent contractor or an employee…. [W]e have made it clear that we prefer the common law agency analysis.”); Santino v. Provident Life & Accid. Ins. Co., 276 F.3d 772 (6th Cir. 2001) (applying common law agency criteria, the court determined that a physician shareholder was considered an employee under ERISA); Simpson v. Ernst & Young, 100 F.3d 436 (6th Cir. 1996) (applying the common law agency test, the court determined that the plaintiff was an employee,

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rather than a partner, for purposes of the Americans with Disabilities Act and ERISA). In Yates v. Hendon, 541 U.S. 1, 6 (2004), the Supreme Court held that “the working owner of a business, the sole shareholder and president of a professional corporation, in this case, may qualify as a ‘participant’ in a pension plan covered by ERISA.” The Court explained, “ERISA’s text contains multiple indications that Congress intended working owners to qualify as plan participants … [therefore] there is no cause in this case to resort to common law.” Id. at 12. If the plan covers one or more employees other than the business owner and his or her spouse, the working owner may participate on equal terms with other plan participants. Such a working owner, in common with other employees, qualifies for the protections ERISA affords plan participants and is governed by the rights and remedies ERISA specifies. Id. at 6. Prior to Yates, the Sixth Circuit’s view had been that a sole proprietor or sole shareholder of a business is considered an employer, and not an employee, under ERISA and therefore is not considered a plan participant. See Fugarino v. Hartford Life & Acc. Ins. Co., 969 F.2d 178 (6th Cir. 1992); Agrawal v. Paul Revere Life Ins. Co., 205 F.3d 297 (6th Cir. 2000). In response to Yates, courts within the Sixth Circuit changed their position with regard to employee owners, holding that employee owners may in fact be considered participants in an ERISA plan. See 577

Elec. Workers Pension Trust Fund of Local #58 v. Brennan Elec. Contractors, Inc., No. 08-cv-13057, 2010 U.S. Dist. LEXIS 29007 (E.D. Mich. Mar. 26, 2010) (“arguments premised on the Sixth Circuit’s holdings in Agrawal and Fugarino are unpersuasive as those opinions are abrogated on points where they contradict the Supreme Court’s holding in Yates.”) A given individual’s designation as an “employee” is of limited import given ERISA’s statutory framework, particularly in ERISA benefits cases. A § 502(a)(1)(B) claim for benefits may be brought either “by a participant or beneficiary.” Fugarino, 969 F.2d at 186 (noting that “‘participants’ and ‘beneficiaries’ as defined by ERISA have standing to recover benefits under ERISA” (citing 29 U.S.C. § 1132(a)(1))). Although the term “participant” is defined to include “any employee or former employee of an employer” who is or may become eligible for a benefit under an employee benefit plan, see 29 U.S.C. § 1002(7), the term “beneficiary” is not limited to an “employee.” Rather, “beneficiary” is defined as “a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder.” 29 U.S.C. § 1002(8). Thus, although every “employee” is a “participant” capable of bringing a § 502(a)(1)(B) claim for benefits, such claims may also be brought by nonemployee beneficiaries. Although the Sixth Circuit has not directly addressed this distinction, other circuits have recognized that a claimant’s status as an “employee” is not necessarily dispositive of the applicability of ERISA to his or her claim for benefits. See Hollis v. Provident Life & Accid. Ins. Co., 259 F.3d 578

410 (5th Cir. 2001) (“[A]n independent contractor can be a beneficiary so long as he is a person ‘who is or may become entitled to a benefit’ under the plan. Therefore, [the claimant’s] independent contractor status does not preclude him from being a beneficiary.”); see also Wolk v. Unum Life Ins. Co. of Am., 186 F.3d 352 (3d Cir. 1999); Prudential Ins. Co. of Am. v. Doe, 76 F.3d 206 (8th Cir. 1996); Peterson v. Am. Life & Health Ins. Co., 48 F.3d 404 (9th Cir. 1995); Engelhardt v. Paul Revere Life Ins. Co., 139 F.3d 1346 (11th Cir. 1998); Turnoy v. Liberty Life Assur. Co. of Bos., No. 02 C 6066, 2003 U.S. Dist. LEXIS 1311 (N.D. Ill. Jan. 20, 2003). C. Interpretation of Safe Harbor Regulation The Department of Labor’s “safe harbor” regulations provide that an employer-provided insurance plan will be exempt from ERISA if (1) the employer makes no financial contribution to policy premiums, (2) employee participation is voluntary, (3) the employer’s sole function is to permit the insurer to publicize the policy to employees and to collect payroll deductions, and (4) the employer receives no consideration from the insurer. 29 C.F.R. § 2510.3-1(j). In the Sixth Circuit, a plan will be exempt from ERISA if it meets all four criteria established in the safe harbor regulations. See Thompson, 95 F.3d at 435. The court has focused on whether employer neutrality is compromised to such an extent that ERISA should provide the governing framework. Id. Specifically, “a finding of endorsement is appropriate if, upon examining all the relevant circumstances, there is some factual showing on 579

the record of substantial employer involvement in the creation or administration of the plan.” Id. at 436. See, e.g., Fugarino, 969 F.2d at 178 (plan was not exempt from ERISA where the employer paid premiums, permitted employees to reimburse it, and also paid for at least one employee’s coverage); Arbor Health Care Co. v. Sutphen Corp., No. 98-3497, 1999 WL 282667 (6th Cir. Apr. 30, 1999) (plan was not exempt from ERISA because the employer paid 80 percent of the premiums and “endorsed” the plan by being named as plan administrator); Nicholas v. Standard Ins. Co., 48 Fed. App’x 557, 564 (6th Cir. 2002) (“Under Thompson, when an employer determines which employees will be eligible for coverage, negotiates the terms or benefits of the policy, is named as plan administrator, and provides a summary plan description describing the plan as an ERISA plan, the plan is governed by ERISA.”). In Thompson, the Sixth Circuit held that “the relevant framework for determining if endorsement exists is to examine the employer’s involvement in the creation of administration of the policy from the employees’ point of view.” Thompson, 95 F.3d at 436–37 (emphasis added). The court also enumerated certain actions that may constitute “endorsement” within the meaning of the “safe harbor” regulation. Id. For instance, “where the employer plays an active role in determining which employees will be eligible for coverage or in negotiating the terms of the policy or benefits provided thereunder, the extent of employer involvement is inconsistent with ‘employer neutrality’ and a finding of endorsement may be appropriate.” Id. at 436. Further, “where the employer is

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named as the plan administrator, a finding of endorsement may be appropriate.” Id. Finally, where the employer provides a summary plan description that specifically refers to ERISA in laying out the employee’s rights under the policy or that explicitly states that the plan is governed by ERISA, the employee is entitled to presume that the employer’s actions indicate involvement sufficient to bring the plan within the ERISA framework. Id. at 437. In Helfman v. GE Group Life Assurance Co., 573 F.3d 383, 391 (6th Cir. 2009), the Sixth Circuit held with respect to the first criteria that “if an employer contributes to any employee’s payment of premiums, ERISA must apply to the entirety of the particular insurance program regardless of whether one or more employees pays his own premiums in full.” (emphasis added). In Helfman, the insured argued that while his employer may have contributed to premiums on behalf of the majority of the other employees, he reimbursed his own premiums, thereby satisfying the first criteria. The Sixth Circuit disagreed, relying heavily on the Supreme Court’s rationale in Yates that ERISA’s “policy of uniform regulation dictates a finding that a single plan may not be variously governed by both ERISA and state law, depending on the particular employee in question.” Id. at 390. Therefore, because the employer contributed premiums on behalf of the majority of employees, Helfman was unable to satisfy the first criterion of the

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safe harbor analysis and ERISA applied to the entirety of the plan. D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan The Sixth Circuit has determined that only minimal employer involvement is required for a plan to qualify as an ERISA employee welfare benefit plan. The mere purchase of insurance is sometimes enough to bring the plan under ERISA. See Arbor Health Care Co., 1999 WL 282667, at *5 (company “established and maintained the plan” by paying 80 percent of the premiums for covered employees with the intent of providing benefits to them); Libbey-Owens-Ford Co. v. Blue Cross & Blue Shield Mut. of Ohio, 982 F.2d 1031 (6th Cir. 1993) (company established an ERISA plan by contracting with insurer to provide benefits to its employees even though it had no administrative responsibilities); Fugarino, 969 F.2d 178 (employer established and maintained a plan by purchasing a group health insurance policy for the benefit of its employees); Int’l Res., Inc. v. N.Y. Life Ins. Co., 950 F.2d 294 (6th Cir. 1991) (plan was covered by ERISA where the employer contracted with an agency, chose a plan, and paid all premiums, and where all employees were automatically covered). E. Treatment of Multiple Employer Trusts and Welfare Agreements The Sixth Circuit determined that multiple employer trusts are considered employee welfare benefit plans 582

under ERISA if the employer obtains and purchases the insurance coverage for its employees with the intent to provide coverage to its employees. Int’l Res., Inc., 950 F.2d at 294, 297–98 (citing Donovan v. Dillingham, 688 F.2d 1367 (11th Cir. 1981)). In International Resources, Inc., the court found the employer’s acts of (1) contracting with the multiemployer trust; (2) obtaining coverage for its employees; (3) automatically enrolling all employees; and (4) paying the insurance premiums to be persuasive in ultimately determining that the employer established an employee benefit plan. Id. at 298. F. Treatment of a Merger Agreement between Employers The Sixth Circuit has held that a merger agreement between two companies containing a contractual agreement to provide severance benefits under the existing severance plans of the companies was not an ERISA plan. Although the merger agreement referenced the existing severance plans, a reasonable person could not ascertain the amount or nature of the severance benefits to be provided or the procedures for receiving benefits without consulting the existing severance plans. Ljubisavljevic v. Nat’l City Corp., No. C-1-05-202, 2007 WL 1577759 (S.D. Ohio May 30, 2007), aff’d, 285 Fed. App’x 276 (6th Cir. 2008). G. Recognition of De Facto Plan Administrators The Sixth Circuit does not recognize de facto plan administrators when the plan expressly designates a plan administrator. See Benham v. Disability Portion of Life & 583

Disability Plan, 6 Fed. App’x 280 (6th Cir. 2001). In Benham, the ERISA plan expressly named the plaintiff’s employer as the plan administrator. The insurer, on the other hand, possessed “significant discretionary authority in the plan’s administration, including the authority to determine … eligibility for benefits and to interpret the terms and provisions of the policy when making benefit determinations.” The district court, relying on the insurer’s significant discretionary authority, determined the insurer to be the plan’s de facto administrator. On appeal, the Sixth Circuit rejected the district court’s determination, holding instead that “we conclude that the plan’s naming of Liberty National [the employer] as administrator must control.” Id. The court reasoned that “when interpreting ERISA plan provisions, general principles of contract law dictate that we interpret the provisions according to their plain meaning in an ordinary and popular sense.” Id. (citing Williams v. Int’l Paper Co., 227 F.3d 706, 711 (6th Cir. 2000)). Accordingly, because the plain meaning of the plan designated the employer as the plan administrator, it was improper for the district court to determine that the insurer was a de facto administrator. II. Preemption A. Scope of ERISA Preemption The Sixth Circuit has interpreted the scope of the ERISA preemption provision very broadly. Consistent with the Supreme Court’s directive, the court has given the phrase “relates to” broad meaning such that a state law claim is preempted if it has connection with or reference to a plan. 584

See Briscoe v. Fine, 444 F.3d 478, 497 (6th Cir. 2006) (noting that both the Supreme Court and the Sixth Circuit emphasize the expansiveness of ERISA preemption). The court has explained that ERISA preempts virtually all state law claims stemming from processing claims for benefits. Nester v. Allegiance Healthcare Corp., 315 F.3d 610, 613 (6th Cir. 2003) (“[A]ny judicial complaint for recovery of any benefits allegedly due under an employee benefit plan is strictly, and exclusively, governed by ERISA jurisprudence.”); Caffey v. Unum Life Ins. Co., 302 F.3d 576, 582 (6th Cir. 2003) (“‘[V]irtually all state law claims relating to an employee benefit plan are preempted by ERISA’”) (citing Cromwell v. Equicor—Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir. 1991)). More recently, the court has focused on “the kind of relief the plaintiffs seek, and its relation to the pension plan.” Briscoe, 444 F.3d at 497 (citing Ramsey v. Formica Corp., 398 F.3d 421, 424 (6th Cir. 2005)). In Thurman v. Pfizer, Inc., 484 F.3d 855, 861 (6th Cir. 2007), the court held that a state law may be preempted even if the law is not specifically designed to affect ERISA plans, or the effect is only indirect. In Thurman, the court found plaintiff’s misrepresentation claims preempted to the extent that plaintiff sought expectation damages, but also held that these claims were not preempted to the extent that plaintiff sought reliance and rescission damages. The court reasoned that an award of expectation damages required an evaluation of the plan and the parties’ performance pursuant to it, but that an award of reliance and rescission damages did not. See id.; Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 453 (6th Cir. 585

2003) (partially preempting claims for fraud and misrepresentation where plaintiff alleged that his employer induced him into accepting changes to an existing insurance plan and into working for the company in the first place). In Penny/Ohlman/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692 (6th Cir. 2005), the court endorsed the Fourth Circuit’s approach, which identified several areas of ERISA preemption, including state laws that mandate benefit structures or their administration, that provide alternative enforcement mechanisms, or that bind employers or plan administrators to particular choices or preclude uniform administrative practices. Id. at 698 (quoting Coyne & Delany Co. v. Selman, 98 F.3d 1457, 1468 (4th Cir. 1996)). In Briscoe, the court also suggested a fourth category of preempted claims—those seeking “remedies for misconduct growing out of the administration of” an ERISA plan. Briscoe, 444 F.3d at 497 (citation omitted). Applying these principles, a Tennessee district court later determined that ERISA preempted two employment discrimination claims because “plaintiff seek[s] damages for the ERISAregulated actions of an ERISA fiduciary.” Steele v. United Parcel Serv., Inc., 499 F. Supp. 2d 1035, 1040 (E.D. Tenn. 2007) (internal quotations and citation omitted). In Steele, the complaint’s only allegation against the plan administrator was that it determined that plaintiff was unable to perform the material and substantial duties of his regular occupation, but this was the plan administrator’s role under the plan. Id. Thus, the Steele court found that plaintiff’s claims related to an ERISA plan because the “issue of deciding whether to grant 586

benefits is exclusively under the control of ERISA law.” Id. (citation and quotations omitted). The Sixth Circuit has held a variety of claims to be preempted, including (1) wrongful death, (2) bad faith, (3) improper denial of benefits, (4) malpractice, (5) breach of contract, (6) promissory estoppel, (7) negligent misrepresentation, and (8) unjust enrichment. Cromwell, 944 F.2d at 1276. See also Ackerman v. Fortis Benefits Ins. Co., 254 F. Supp. 2d 792, 819 (S.D. Ohio 2003) (finding that ERISA preempts state law claims for intentional infliction of emotional distress and loss of consortium). However, the Sixth Circuit found preemption improper where an employment discrimination claim merely referred to a clause in the plan summary, finding the relationship between the state law claim and the plan too remote. Marks v. Newcourt Credit Group, 342 F.3d 444 (6th Cir. 2003) (“We will not conclude that state-law claims are preempted where their effect on employee benefits plans is merely tenuous, remote or peripheral.”) (quotations omitted). See also Paysource, Inc. v. Triple Crown Fin. Group, No. Civ. A. 2004-171-WOB, 2005 WL 2095754 (E.D. Ky. Aug. 29, 2005) (refusing to preempt a state law claim where, in an attempt to specify damages, plaintiff merely referenced the insurance contract). The Sixth Circuit also has permitted state law claims based on a legal duty independent of the existence of an ERISA plan. Briscoe, 444 F.3d at 499; PONI, 399 F.3d at 703–04 (preemption does not extend to state law claims brought against a nonfiduciary service provider whose professional services for the plan are limited to record keeping and do not directly touch the plan); Miami Valley Hosp. v. Cmty. Ins. 587

Co., No. 3:05-cv-297, 2006 WL 2252669 (S.D. Ohio Aug. 7, 2006) (preemption avoided when the plaintiff alleged a violation of a law that simply regulates insurance and does not contend that any term of the plan was violated); McMurtry v. Wiseman, 445 F. Supp. 2d 756 (W.D. Ky. 2006) (state law fraud and negligent misrepresentation claims not preempted when claims arose from the defendant’s inducing plaintiff to join the plan). In considering Supreme Court precedent regarding express preemption, the Sixth Circuit has adopted the Court’s holding in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995), which required courts to “go beyond the unhelpful text and the frustrating difficulty of defining [§ 514(a)’s] key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.” For example, in Kentucky Ass’n of Health Plans, Inc. v. Nichols, 227 F.3d 352 (6th Cir. 2000), the court considered the “Any Willing Provider” provision of the Kentucky Health Care Reform Act, which stated that health care “benefit plans shall not discriminate against any provider who is located within the geographic coverage area of the health benefit plan and is willing to meet the terms and conditions for participation established by the health benefits plan.” Id. at 355. In considering this statute, the court held that “to determine whether a law ‘relates to’ an employee benefit plan, the [Supreme] Court has formulated a two part test, under which a law ‘relates to’ a covered employee benefit plan for purposes of § 514(a) if it [1] has a connection with or [2] reference to such 588

plan.” Id. at 358 (citing Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316 (1997)). Regarding the “reference to” prong, the court noted that while “a mere reference to an ERISA plan, without more, may not be enough to cause preemption, Supreme Court precedent shows that if such a reference is combined with some effect on those plans, such as singling them out for different treatment, preemption will result.” Id. at 360. Applying this standard, the court concluded that the Kentucky statutes “‘relate to’ ERISA plans and are therefore preempted.” Id. at 361. Regarding the “connection with” prong, the court cited Travelers, noting that in order to determine whether the normal presumption against preemption has been overcome in a particular case, it must go beyond the unhelpful text and the frustrating difficulty of defining [§ 514(a)’s] key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive. Id. (quotations omitted). Applying this “connection with” analysis, the court was “convinced” that the Kentucky statutes were “connected with” ERISA covered plans. Id. at 363. The Sixth Circuit has also recently interpreted the insurance “savings” clause that “saves” from preemption the “law of any State which regulates insurance, banking or securities.” 29 U.S.C. § 1144(a) and (b)(2)(A). For 589

example, in Johnson v. Connecticut General Life Ins. Co., 324 Fed. App’x 459 (6th Cir. 2009), the court applied the savings clause to an Ohio statute which read, in pertinent part: “No answer to any interrogatory made by an applicant in his application for a policy shall bar the right to recover upon any policy issued thereon … unless it is clearly proved that such answer is willfully false….” Id. at 463. The court considered Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003), in noting that for a law to “regulate insurance,” a law must satisfy two requirements: (1) “the state law must be specifically directed toward entities engaged in insurance” and (2) “the state law must substantially affect the risk pooling arrangement between the insurer and the insured.” Id. (citing Miller, 538 U.S. at 342). In considering the Ohio law, the court noted that the statute is “firmly applied to insurance contracts and prevents an insurer from denying coverage for an insured’s innocent misrepresentation.” Id. at 464. The court further noted that the Ohio law substantially affected the risk pooling arrangement between an insurer and an insured because the statute “alters the scope of permissible bargains by dictating the conditions under which the insurer may deny recovery for misrepresentations in the application for life insurance.” Id. at 465. Accordingly, pursuant to the ERISA “savings” clause, ERISA did not preempt the Ohio statute. See also Am. Council of Life Insurers v. Ross, 558 F.3d 600 (6th Cir. 2009) (considering Miller for its holding that a Michigan policy prohibiting discretionary clauses in insurance contracts was not preempted under the ERISA “savings” clause). 590

The Sixth Circuit has also recently examined the concept of “conflict preemption” under ERISA law. For example, in American Council of Life Insurers, the court considered a Michigan law prohibiting discretionary clauses in insurance contracts. Id. On the defendant’s argument that this provision was preempted by an express provision of the ERISA statute, the court cited Aetna Health, Inc. v. Davila, 542 U.S. 200 (2004), in reiterating that “[u]nder ordinary principles of conflict pre-emption … even a state law that can arguably be characterized as ‘regulating insurance’ will be pre-empted if it provides a separate vehicle to assert a claim for benefits outside of, or in addition to, ERISA’s remedial scheme.” Id. at 607 (citing Aetna Health, 542 U.S. at 217–18). Considering Michigan’s statute, however, the court found that the statute did “not create, duplicate, supplant, or supplement any of the causes of action that may be alleged under ERISA.” Id. Accordingly, “Michigan’s rules [did] not conflict with ERISA’s civil enforcement provisions.” Id. at 608. B. Preemption of Malpractice and Managed Care Claims The Sixth Circuit has addressed malpractice and managed care claims in Tolton v. American Biodyne, Inc., 48 F.3d 937 (6th Cir. 1995). There, plaintiffs brought a wrongfuldeath action against various health care providers and the decedent’s health care plan. Plaintiffs claimed that the claims administrator had negligently refused benefits (inpatient treatment) pursuant to a utilization review. In affirming the grant of summary judgment, the court of appeals held that plaintiffs’ claims, including those for 591

medical malpractice and negligent refusal to provide treatment, arose from an allegedly improper denial of benefits and were preempted by ERISA because they related to the benefit plan. Id. at 942. It did not matter that the claims were based on a utilization review, because the court found such review to be a “means of processing claims.” Id. Several district court decisions from the Sixth Circuit have distinguished Tolton and held that certain types of malpractice and/or managed care claims were not “completely preempted” by ERISA and therefore not subject to removal. In Oullette v. Christ Hosp., 942 F. Supp. 1160 (S.D. Ohio 1996), for example, the district court reasoned that plaintiff’s claim against Choice Care, alleging that its utilization procedures and financial relationships with the hospital caused the malpractice in question, was not a claim for benefits. The Oullette court held that the plaintiff’s claims did not rest on the terms of the plan because the plaintiff was not challenging the benefits; she challenged the quality of service she received. Id. at 1165. Consequently, the plaintiff’s claim that “Choice Care’s financial arrangements with The Christ Hospital caused the hospital to commit malpractice” will not, said the court, “require review of Choice Care’s utilization review or otherwise demand construction of the Choice Care plan.” Id. at 1165. See also Stewart v. Berry Family Healthcenter, 105 F. Supp. 2d 807 (S.D. Ohio 2000) (claims alleging that Anthem’s financial incentives induced medical malpractice were not completely preempted); Kendrick v. CNA Ins. Cos., 71 F. Supp. 2d 815 (S.D. Ohio 1999) (claim that CNA had negligently performed a physical examination was not a 592

claim for benefits under the plan or to enforce a right to any benefits under the plan and was not completely preempted); Richie v. Hartford Life & Accid. Ins. Co., No. 2:09-cv-00604, 2010 U.S. Dist. LEXIS 30279 (S.D. Ohio 2010) (dismissing the plaintiff’s negligence and “failure to deal in good faith” claims as preempted by ERISA). Of course, the district courts in these cases held only that because involved claims were not ERISA claims for benefits, they were not completely preempted. These courts did not directly address whether these claims would otherwise be preempted, as relating to an employee benefit plan. The Sixth Circuit has not addressed this issue since Tolton. C. State Rules Prohibiting Discretionary Clauses Not Preempted In American Council of Life Insurers v. Ross, 558 F.3d 600 (6th Cir. 2009), the Sixth Circuit considered whether certain rules promulgated by the Michigan Office of Financial and Insurance Services (OFIS) were preempted by ERISA. Specifically, plaintiffs challenged OFIS rules that prohibited insurers from issuing, delivering, or advertising insurance contracts or policies that contain discretionary clauses (i.e., clauses that provide that courts will give deference to a plan administrator’s benefits determination or interpretation of plan terms in any court proceeding challenging such decision or interpretation). To reach its holding, the Ross court considered the ERISA express preemption clause, 29 U.S.C. § 1144(a) (stating that ERISA “supersede[s] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan”), and the ERISA savings clause, 29 U.S.C. § 593

1144(b)(2)(A) (stating “nothing in this chapter shall be construed to exempt or relieve any person from any law of any state which regulates insurance, banking, or securities”). Id. at 605. The parties to the litigation agreed that the OFIS rules related to an employee welfare benefit plan; thus, they agreed that the rules fell under ERISA’s express preemption clause. Id. The parties also agreed that the OFIS rules did not regulate banking or securities. Id. at 604–05. Therefore, the rules were saved from preemption only if they regulated insurance. Id. To determine whether the rules “regulate[d] insurance,” the court looked to the test set forth in Kentucky Ass’n of Health Plans v. Miller, 538 U.S. 329, 341 (2003): first, “the state law must be specifically directed toward entities engaged in insurance,” and second, “the state law must substantially affect the risk-pooling arrangement between the insurer and the insured.” Id. at 605. Applying Miller, the court thus held that the OFIS rules fell within the ambit of ERISA’s savings clause and thus, they were not preempted by ERISA. Id. D. Other Preemption Issues In Husvar v. Rapoport, 430 F.3d 777 (6th Cir. 2005), the Sixth Circuit emphasized the difference between removal and preemption. Cases are removable only if they fall under ERISA’s benefit payment enforcement provision, 29 U.S.C. § 1132(a)(1)(B). Id. at 781 (quoting Warner v. Ford Motor Co., 46 F.3d 531, 535 (6th Cir. 1995)). A state law claim preempted under 29 U.S.C. § 1144 is

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removable only if there is some other basis for federal jurisdiction. Id. In Daimler-Chrysler Corp. v. Cox, 447 F.3d 967 (6th Cir. 2006), the Sixth Circuit held that the State of Michigan could not require ERISA pension plans to send a prisoner’s pension benefits to the warden of the prison, where the warden could garnish up to 90 percent to reimburse the state for the cost of the prisoner’s care. The court’s decision was based on the state law conflicting with ERISA’s anti-alienation provision; it specifically declined to opine on the effect of the general preemption provision. Id. at 976. The court noted, however, that the anti-alienation provision did not prevent the garnishment of the prisoner once the plan had paid the benefits. Id. at 974, 976. III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? The general rule is that exhaustion of administrative remedies is a requirement to bring suit to recover benefits under 29 U.S.C. § 1132(a)(1)(B) in the Sixth Circuit. See, e.g., Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 717 (6th Cir. 2005). “Although ERISA is silent as to whether exhaustion of administrative remedies is a prerequisite to bringing a civil action, we have held that ‘[t]he administrative scheme of ERISA requires a participant to exhaust his or her administrative remedies prior to commencing suit in federal court.’” Coomer v. Bethesda Hosp., Inc., 370 F.3d 499, 504 (6th Cir. 2004) (quoting Miller v. Metro. Life Ins. Co., 925 F.2d 979, 986 595

(6th Cir. 1991)). See also Ravencraft v. Unum Life Ins. Co. of Am., 212 F.3d 341, 343 (6th Cir. 2000); Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 418 n.4 (6th Cir. 1998) (noting that 10 federal circuits made exhaustion of administrative remedies a prerequisite to commencing a civil ERISA action); Baxter v. C.A. Muer Corp., 941 F.2d 451, 454 (6th Cir. 1991). “[A]pplication of the administrative exhaustion requirement in an ERISA case is[, however,] committed to the sound discretion of the district court….” Fallick, 162 F.3d at 418 (citing Costantino v. TRW, Inc., 13 F.3d 969 (6th Cir. 1994)) Baxter, 941 F.2d at 453–54). Whether exhaustion is required for ERISA statutory claims such as breach of fiduciary duty is an open question. See Hill, 409 F.3d at 717. But see Fallick, 162 F.3d at 418 n.6 (citing Richards v. Gen. Motors Corp., 991 F.2d 1227 (6th Cir. 1993) (claimant need not exhaust administrative remedies where a plan fiduciary has no expertise in interpreting a statutory right)). B. Exceptions to the Exhaustion Requirement Both futility and inadequacy of the administrative remedy are recognized by the Sixth Circuit as exceptions to the exhaustion of administrative remedies requirement. See Coomer, 370 F.3d at 505; Fallick, 162 F.3d at 418; cf. Hagen v. VPA, Inc., 428 F. Supp. 2d 708, 712–13 (W.D. Mich. 2006) (while equitable tolling might excuse failure to exhaust, district court rejected plaintiff’s factual showing as inadequate). However, these claims must be substantial enough for the court to waive the exhaustion requirement. See Coomer, 370 F.3d at 505. “‘The standard for adjudging the futility of resorting to the 596

administrative remedies provided by a plan is whether a clear and positive indication of futility can be made.’” Id. (quoting Fallick, 162 F.3d at 419). A plaintiff must demonstrate that “‘it is certain that his claim will be denied on appeal, not merely that he has doubts that an appeal will result in a different decision.’” Id. (quoting Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir. 1996)). For example, futility excused the plaintiff’s failure to file a long-term disability claim where the plaintiff’s short-term disability claim was denied before onset of long-term disability period and long-term disability policy requires the plaintiff to qualify for short-term disability benefits through the short-term disability maximum benefit period. Welsh v. Wachovia Corp., No. 05-3365, 2006 U.S. App. LEXIS 17998 (6th Cir. July 13, 2006); Dozier v. Sun Life Assur. of Can., 466 F.3d 532, 533 (6th Cir. 2006) (holding that it would have been futile for plaintiff to ask insurer to find that he could not perform “any occupation” for which he was qualified after the company had already concluded that he could perform his “own occupation”). Courts have also waived exhaustion of administrative remedies where the nature of the claim focused on the legality of an ERISA plan, not on an interpretation of that plan. Garrett v. Hewitt Assoc., 2010 U.S. Dist. LEXIS 65544, at *7–8 (N.D. Ohio June 9, 2013) (citing Costantino, 13 F.3d at 975; Durand v. Hanover Ins. Group, 560 F.3d 436, 439–40 (6th Cir. 2009)). C. Consequences of Failure to Exhaust The consequence of bringing suit in the Sixth Circuit without exhausting administrative remedies is that the 597

case will be dismissed, either with or without prejudice, depending on the circumstances of the case. Compare Ravencraft, 212 F.3d at 344 (court dismissed case without prejudice because dismissal was solely based on the plaintiff’s failure to exhaust administrative remedies); with Baxter, 941 F.2d at 454 n.1 (court dismissed case with prejudice because dismissal was based on both a loss on the merits and procedural deficiency). But see Hagen, 428 F. Supp. 2d at 713–14 (dismissing benefit denial claim with prejudice where plaintiff failed to exhaust his administrative remedies and was not entitled to equitable tolling or equitable waiver of the exhaustion requirements). If the time for appeal has expired, and plaintiff is therefore unable to exhaust his administrative remedies, district courts have held that the appropriate result is dismissal with prejudice. Beamon v. Assurant Employee Benefits, No. 1:12-CV-463, 2013 WL 227692, at *4 (W.D. Mich. Jan. 22, 2013); Bird v. GTX, Inc., No. 2:08-CV-02582, 2010 WL 883738, at *4 (W.D. Tenn. March 4, 2010). However, under appropriate circumstances, a court may stay the case, rather than dismiss it, if the plaintiff still has the opportunity to exhaust his administrative remedies. Beamon, 2013 WL 227692, at *4 (citing Lindemann v. Mobile Oil Corp., 79 F.3d 647, 651 (7th Cir. 1996)). D. Issue Exhaustion versus Claim Exhaustion No Sixth Circuit case has expressly addressed whether both “claim exhaustion” and “issue exhaustion” of the plaintiff’s administrative remedies is required, or whether “claim exhaustion” alone is sufficient.

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E. Minimum Number of Levels of Administrative Review No Sixth Circuit case has expressly decided how many levels of administrative review a claimant may be required to exhaust. F. Can a Defendant Waive a Failure-to-Exhaust Defense? In an unpublished 2004 Sixth Circuit Court of Appeals case, the court ruled that the defendant had waived its defense that the plaintiff had failed to exhaust his administrative remedies. Parson v. Union Underwear Co., 2004 U.S. App. LEXIS 7317, at *3 (6th Cir. 2004). The parties in that case had stipulated that the plaintiff, who sued defendants under ERISA, had “‘made requests for disability retirement benefits under the Union Underwear Pension Plan’ and that his ‘requests were denied, and those denials were reviewed and confirmed,’” even though the plaintiff later admitted that he never submitted claims to the pension plan committee. Id.; see also Glass v. Kellogg Co., 2009 U.S. Dist. LEXIS 72300, at *7 (W.D. Mich. 2009) (noting that the plaintiff had failed to exhaust her administrative remedies and had not argued that the defendants had waived the exhaustion requirement). The Eastern District of Tennessee similarly held that the defendants waived the exhaustion requirement by failing to comply with the notice provisions within the plan. Scott v. Regions Bank, 702 F. Supp. 2d 921, 933 (E.D. Tenn. 2010). See also Smith v. Gen. Motors Corp., 791 F. Supp. 701, 704 (S.D. Ohio 1992) (in an administrative review case, the court held 599

that a defendant may waive review required by collective bargaining agreement, which the court likened to ERISA’s requirements). G. Failure to Utilize and Exhaust Administrative Remedies Cannot Be Used to Revive a Time-Barred Claim In Redmon v. Sud-Chemie, Inc., 547 F.3d 531, 539–40 (6th Cir. 2008), the Sixth Circuit was not persuaded by plaintiff’s argument that her claim did not accrue until after she exhausted her administrative remedies, where plaintiff received clear and unequivocal repudiation of benefits before she made a formal request for benefits and that request was denied, and where the applicable statute of limitations had expired. IV. Standard of Review A. Plan Language In Firestone Tire & Rubber Co. v. Bruch, the Supreme Court held that where an ERISA plan expressly grants discretionary authority to determine eligibility for benefits or to construe the terms of a plan, the court must review benefits determinations under the highly deferential arbitrary and capricious standard of review. 489 U.S. 101, 109 (1989). A plan must “expressly give discretionary authority to the administrator.” Perry v. Simplicity Eng’g, 900 F.2d 963, 965 (6th Cir. 1990). However, no “magic words” are required to trigger application of the arbitrary and capricious standard. Johnson v. Eaton Corp., 970 F.2d 1569, 1571–72 (6th Cir. 1992). It need only appear 600

on the face of the plan documents that the decision maker has the power and authority to resolve eligibility disputes. Id. B. What Standard of Review Applies? Benefit denials generally are reviewed de novo unless the plan grants discretionary authority to the plan administrator, in which case they are reviewed under an arbitrary and capricious standard. Sanford v. Harvard Indus., Inc., 262 F.3d 590, 594–95 (6th Cir. 2001). But see Solomon v. Medical Mut. of Ohio, 411 Fed. App’x 788, 791 (6th Cir. 2011) (“Even when the plan documents confer discretionary authority on the plan administrator, when the benefits decision is made by a body other than the one authorized by the procedures set forth in a benefits plan, federal courts review the benefits decision de novo.”). After the Supreme Court’s decision in Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), the Sixth Circuit still applies the arbitrary and capricious standard when a plan grants discretionary authority to the plan administrator, but the conflict of interest “may trigger a somewhat more searching review.” Schwalm v. Guardian Life Ins. Co., 626 F.3d 299, 311–12 (6th Cir. 2010). See also Cox v. Standard Ins. Co., 585 F.3d 295, 299 (6th Cir. 2009) (“Deferential review is tempered, however, when an important conflict of interest consideration requires the benefits decisions be closely scrutinized.”). This deferential standard requires upholding the claim administrator’s decision if it has a reasoned explanation, based on the evidence. De Lisle v. Sun Life Assur. Co. of 601

Can., 558 F.3d 440, 444 (6th Cir. 2009); Marquette Gen. Hosp. v. Goodman Forest Ind., 315 F.3d 629, 632 (6th Cir. 2002). The Sixth Circuit “will uphold a benefits determination if it is rational in light of the plan’s provisions.” Judge v. Metro. Life Ins. Co., 710 F.3d 651, 655 (6th Cir. 2013) (citing Jones v. Metro. Life Ins. Co., 385 F.3d 654, 661 (6th Cir. 2004)). The Sixth Circuit described this standard as follows: “The arbitrary and capricious standard is the least demanding form of judicial review of administrative action…. When it is possible to offer a reasonable explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Davis v. Kentucky Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir. 1989) (quoting Pokratz v. Jones Dairy Farm, 771 F.2d 206, 209 (7th Cir. 1985)). This deferential review, however, is not a mere rubber stamp of the plan administrator’s claim denial. Schwalm, 626 F.3d at 308 (citing Evans v. UnumProvident Corp., 434 F.3d 866, 876 (6th Cir. 2006)). C. Effect of Conflict of Interest or Procedural Irregularity An inherent conflict of interest exists when a party is both the administrator determining eligibility for benefits and the insurer responsible for paying the benefits out of its own pocket. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). Where there is an inherent conflict of interest, the applicable standard of review is not altered, but the conflict must be weighed as a factor in determining whether the benefits determination was arbitrary and capricious. Id.; De Lisle v. Sun Life Assur. Co. of Can., 558 F.3d 440, 444 (6th Cir. 2009). 602

The significance of the conflict of interest will depend on the circumstances of each case. Johnson v. Conn. Gen. Life Ins. Co., 324 Fed. App’x 459, 465 (6th Cir. 2009) (citing Glenn, 554 U.S. 105). For example, the conflict of interest “should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision” and “less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy.” Id. Further, the Sixth Circuit has stated that “[m]ere allegations of a conflict are not sufficient; [instead,] there must be ‘significant evidence’ the apparent conflict affected the administrator’s decision to deny benefits.” Grisham v. Life Ins. Co. of N. Am., No. 1:06-cv-251, 2007 U.S. Dist. LEXIS 79310, at *17–18 (E.D. Tenn. Oct. 25, 2007) (quoting Peruzzi v. Summa Med. Plan, 137 F.3d 431, 433 (6th Cir. 1998)). See also Judge, 710 F.3d at 664 (“[T]his court has given greater weight to the conflict-of-interest factor when the claimant offers more than conclusory allegations of bias.”). Additionally, “a long history of biased claims administration may render the conflict more important.” Helfman v. GE Group Life Assur. Co., 573 F.3d 383, 392–93 (6th Cir. 2009). For self-funded plans, a conflict of interest is implied. Killian v. Healthsource Provident Adm’rs, Inc., 152 F.3d 514 (6th Cir. 1998). When an insurer funds and administers a plan, “there is an actual, readily apparent conflict … not a mere potential for one.” Mitzel v. Anthem Life Ins. Co., 351 Fed. App’x 74, 79 (6th Cir. 2009). As for plans administered by a third party, if the plan grants discretionary authority to the plan administrator, but the 603

benefits decision “is made by a body other than the one authorized by the procedures set forth in a benefits plan,” the decision will be reviewed de novo. Shelby Cnty. Health Care Corp. v. Majestic Star Casino, LLC, 581 F.3d 355, 365 (6th Cir. 2009) (quoting Sanford v. Harvard Indus. Inc., 262 F.3d 590, 597 (6th Cir. 2001)). Thus, courts will not apply the arbitrary and capricious standard if the plan administrator did not make the decision in accordance with procedures set forth in the plan. When evaluating benefits decisions for procedural errors, the Sixth Circuit utilizes “a ‘substantial compliance’ standard, which means that we will not disturb a benefits decision based on a procedural defect when the underlying purposes of 29 U.S.C. § 1133, to ensure notice and an opportunity for review, are fulfilled.” Stoll v. Western & Southern Life Ins. Co., 64 Fed. App’x 986, 991 (6th Cir. 2003) (citing Kent v. United of Omaha Life Ins. Co., 96 F.3d 803, 807–08 (6th Cir. 1996)). But see Myers v. Iron Workers Dist. Council of S. Ohio & Vicinity Pension Trust, No. 2:04-CV-966, 2005 U.S. Dist. LEXIS 39191, at *14 (S.D. Ohio Nov. 7, 2005) (“It is unclear how the Sixth Circuit and other courts will resolve the issue of what constitutes the appropriate standard of review for failure to comply with the regulatory requirements [regarding timeliness].”). The circuit does not allow substantive remedies for procedural violations. See, e.g., Sanford, 262 F.3d at 599. D. Other Factors Affecting Standard of Review

604

The same standard of review analysis appears to apply even in the case of an insured plan or an insurance policy. Libbey-Owens-Ford Co. v. Blue Cross & Blue Shield Mut., 982 F.2d 1031 (6th Cir. 1993) (based on ERISA § 3(1), which defines a welfare plan as providing benefits through “insurance or otherwise”). Moreover, since the Sixth Circuit apparently applies the contra proferentem rule both to ERISA plans and to the interpretation of insurance policies, there is no readily apparent distinction. See infra Section V(B). V. Rules of Plan Interpretation A. Application of Federal Common Law The Sixth Circuit has determined that Congress expected federal courts to develop federal common law to fill in ERISA’s gaps in order to ensure national uniformity. Auto Owners Ins. Co. v. Thorn Apple Valley, Inc., 31 F.3d 371, 374 (6th Cir. 1994). “In situations where the substantive provisions of ERISA are not at issue, federal courts are expected to develop a body of federal common law to resolve claims.” Parker v. Union Planters Corp., 203 F. Supp. 2d 888 (W.D. Tenn. 2002). Federal courts do have a certain latitude to create federal common law under ERISA, but that authority is limited to instances in which ERISA is “silent or ambiguous,” “where there is an awkward gap in the statutory scheme,” or where it may “be said that federal common law is essential to the promotion of fundamental ERISA policies.” Local 6-0682 Int’l Union of Paper v. Nat’l Indus. Group Pension Plan, 342 F.3d 606, 609 (6th Cir. 2003) (internal citations omitted). 605

Federal courts develop federal common law by considering the law of the state where it sits, or by reviewing general contract law and developing a federal rule on the issue. Citizens Ins. Co. of Am. v. MidMichigan Health ConnectCare Network Plan, 449 F.3d 688 (6th Cir. 2006); Cassidy v. Akzo Nobel Salt, Inc., 308 F.3d 613, 615 (6th Cir. 2002) (“When interpreting ERISA plans, federal courts apply ‘general rules’ of contract law as part of the federal contract law.”); Perez v. Aetna Life Ins. Co., 150 F.3d 550, 556 (6th Cir. 1998). Federal courts adopt the rules “that best comport with the interests served by ERISA’s regulatory scheme.” Regents of the Univ. of Mich. v. Employees of Agency Rent-A-Car Ass’n, 122 F.3d 336, 339 (6th Cir. 1997). If federal courts in the Sixth Circuit employ state law as a guide for creating federal common law, the state law must be in accord with the ERISA provisions. Swisher-Sherman v. Provident Life & Accid. Ins. Co., No. 93-3959, 1994 U.S. App. LEXIS 28768, at *7 (6th Cir. Oct. 13, 1994) (citing Brewer v. Lincoln Nat’l Life Ins. Co., 921 F.2d 150, 153 (8th Cir. 1990)). B. Application of Contra Proferentem Contra proferentem requires that an ambiguous provision in a written document be construed against the person who prepared the terms of the document. As a principle of state contract law, contra proferentem has not survived ERISA preemption in the Sixth Circuit. In McMahan v. New England Mutual Life Ins. Co., 888 F.2d 426 (6th Cir. 1989), the court held that ERISA preempted Kentucky’s law of interpreting ambiguity against the drafter. The court maintained that contra proferentem does not 606

“regulate insurance” and therefore does not fall within ERISA’s savings clause. Id. at 430. In several cases, however, the Sixth Circuit either has referenced contra proferentem or suggested in dicta that it applies in ERISA cases. In Tolley v. Commercial Life Ins. Co., Nos. 92-6490, 92-6514, 1993 U.S. App. LEXIS 33508 (6th Cir. Dec. 17, 1993), the court explained that although ERISA preempts state contract law, contra proferentem still may be relevant under federal common law. Similarly, in University Hospitals of Cleveland v. Emerson Electric Co., 202 F.3d 839, 847 (6th Cir. 2000), the court noted in dicta that if an ERISA plan provision is ambiguous, the court would construe ambiguities against the drafter. See also Perez v. Aetna Life Ins. Co., 150 F.3d 550, 557 n.7 (6th Cir. 1998) (“[t]he rule of contra proferentem provides that the ambiguous contract provisions in ERISA-governed insurance contracts should be construed against the drafting party”); Marquette Gen. Hosp. v. Goodman Forest Indus., 315 F.3d 629 (6th Cir. 2003) (court noted contra proferentem but found no ambiguity). In Mitchell v. Dialysis Clinic, Inc., 18 Fed. App’x 349, 353 (6th Cir. 2001), however, the court itself recognized that these various citations to the rule of contra proferentem were in dicta and that the Sixth Circuit had not clearly established a “rule that would completely contradict the deference paid to an administrator’s decision.” The court refused to resolve how the rule of contra proferentem affects application of the arbitrary and capricious standard, deciding the case on other grounds. Thus, despite the Sixth Circuit’s willingness to cite to the 607

rule of contra proferentem, its application in cases applying a deferential standard of review remains an open question. See, e.g., Morrison v. Regions Fin. Corp., No. 10-2843-STA-tmp, 2013 U.S. Dist. LEXIS 57921, at *44 (W.D. Tenn. Apr. 23, 2013) (“[T]he Sixth Circuit has expressed concern that invoking the rule of contra proferentem undermines the arbitrary and capricious standard of review in ERISA cases.”); Mitzel v. Anthem Life Ins. Co., 351 Fed. App’x 74, 81 (6th Cir. 2009) (“[I]n cases such as this one, in which the administrator’s denial of benefits is reviewed under the arbitrary and capricious standard because of the discretion conferred by the Plan, we believe that invoking the rule of contra proferentem undermines the arbitrary and capricious standard of review.” “Limiting the application of the contra proferentem rule to cases in which an administrator’s decision is reviewed de novo strikes us as the only sensible approach to resolving ambiguities in plan documents.”); Lennon v. Metro. Life Ins. Co., 504 F.3d 617, 627 n.2 (6th Cir. 2007) (dicta: “[W]ere this court tasked with interpreting the language de novo, in view of [the word accident’s] apparent ambiguity, the rule of contra proferentum [sic] would apply.”); Osborne v. Hartford Life & Accid. Ins. Co., 465 F.3d 296, 300 (6th Cir. 2006) (doctrine of contra proferentem applies only if contract term is ambiguous). Even when relevant, courts apply contra proferentem only when the contract is equally susceptible to two reasonable interpretations. Osborne, 465 F.3d at 300; Perez, 150 F.3d at 557 n.7. In applying federal common law rules of contract interpretation, the Sixth Circuit interprets ERISA plan provisions according to their plain 608

meaning. The words in an ERISA provision are read as having an “ordinary and popular” meaning. Id. Thus, for the Sixth Circuit to apply contra proferentem under federal common law, the ERISA provision must have two reasonable interpretations. Id. at 557. C. Deference Afforded Interpretation of a Plan

to

an

Administrator’s

When the plan grants the plan administrator discretion to construe plan terms, the Sixth Circuit will give deference to the administrator’s interpretation. See Jones v. Metro. Ins. Co., 385 F.3d 654, 661 (6th Cir. 2004); Peruzzi v. Summa Med. Plan, 137 F.3d 431, 433 (6th Cir. 1998); Smith v. Bayer Corp. Long Term Disability Plan, 275 Fed. App’x 495, 504 (6th Cir. 2008) (if plan expressly grants administrator discretion, and there is no evidence of a conflict of interest, court must review administrator’s denial of evidence under the highly deferential arbitrary and capricious standard of review). The deference, however, is not unlimited. The courts have repeatedly held that deference afforded to the plan administrator does not mean no review or merely “rubber stamping” the plan administrator’s decision as it still must be “the result of a deliberate, principled reasoning process and [be] supported by substantial evidence.” Moss v. Unum Life Ins. Co., 495 Fed. App’x 583, 590 (6th Cir. 2012) (citing Elliott v. Metro Life Ins. Co., 473 F.3d 613, 617 (6th Cir. 2006)). Discretion to interpret the plan, for example, will not support adding to the plan terms. Jones, 385 F.3d at 661 (deference does not include the authority to add eligibility requirements to the plan). 609

D. Other Rules of Plan or Contract Interpretation The Sixth Circuit has also held that principles of estoppel cannot be applied to vary the terms of an unambiguous plan document except in the presence of extraordinary circumstances. See Bloemker v. Laborers’ Local 265 Pension Fund, 605 F.3d 436, 442–43 (6th Cir. 2010) (“ERISA equitable estoppel applies to pension plans where a plaintiff can demonstrate extraordinary circumstances in addition to the traditional estoppel elements.”); Marks v. Newcourt Credit Group, 342 F.3d 444, 456 (6th Cir. 2003). Estoppel may, however, be invoked when the plan terms at issue are ambiguous. Cataldo v. United States Steel Corp., 676 F.3d 542, 553–54 (6th Cir. 2012); see also Smiljanich v. Gen. Motors Corp., 302 Fed. App’x 443, 449 (6th Cir. 2008) (where plan language was not clear, participant could bring equitable estoppel claim); Sprague v. Gen. Motors Corp., 133 F.3d 388, 404 (6th Cir. 1998) (a participant’s reliance on a representation regarding the plan “can seldom, if ever, be reasonable or justifiable if it is inconsistent with the clear and unambiguous terms of plan documents.”). VI. Discovery A. Limitations on Discovery Regardless of the standard of review, a district court’s review of a claim decision under ERISA is limited to the record before the administrator. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 615 (6th Cir. 1998); Perry v. Simplicity Eng’g, 900 F.2d 963, 966 (6th Cir. 610

1990). But see Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 427 (6th Cir. 2006) (“The district court may consider evidence outside of the administrative record only if that evidence is offered in support of a procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part.”). Because review is on the record, permitting or requiring district courts to consider evidence from the parties that was not presented to the plan administrator would seriously impair the goal of inexpensive and expeditious resolution of claims. Perry, 900 F.2d at 966. The Sixth Circuit has developed an exception to the general rule prohibiting consideration of matters outside the record, and consequently, discovery. See Wilkins, 150 F.3d at 619. If the plaintiff alleges that the administrator failed to follow proper administrative procedures resulting in a denial of a full and fair opportunity for review, the appropriate remedy is to allow the plaintiff to submit additional evidence to the court. Vanderklok v. Provident Life & Accid. Ins. Co., 956 F.2d 610 (6th Cir. 1992). Thus, evidence may be offered in “support of a procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part,” and discovery should be limited to such challenges. Moss v. Unum Life Ins. Co., 495 Fed. App’x 583, 597 (6th Cir. 2012) (citing Wilkins, 150 F.3d at 619). In Vanderklok, for example, the court held that the administrator’s denial letter was defective because it failed to provide the specific reason for denial or to identify the pertinent plan provisions. 956 F.2d at 616–17. 611

Consequently, the plaintiff was denied his opportunity to submit any additional evidence relevant to the claim decision. Id. The court remanded the case to the district court and instructed that the plaintiff be permitted to submit additional evidence for review by the court. Id. Similarly, in Killian v. Healthsource Provident Administrators, 152 F.3d 514 (6th Cir. 1998), the plaintiff claimed the administrator had improperly rejected additional material provided by the claimant and closed the administrative record. The court explained that the remedy for this procedural failure was to allow in the evidence. The court in Killian, however, remanded the claim back to the claim administrator for consideration of the plaintiff’s submissions. B. Discovery and Conflict of Interest While lack of due process may be easy to identify, district courts in the Sixth Circuit have struggled to a degree with identifying when allegations of bias and alleged conflicts of interest justify discovery and consideration of evidence outside the record. Consequently, they have addressed these issues on a case-by-case basis. Some district court judges simply have denied requests to conduct discovery, citing the general rule against considering matters outside of the record. See, e.g., Maxwell v. Ameritech Corp., Inc., 7 F. Supp. 2d 905 (E.D. Mich. 1998) (discovery inappropriate on a conflict of interest). Others have denied discovery on conflict of interest or bias if it did not relate to a specific procedural challenge. Schey v. UNUM Life Ins. Co. of N. Am., 145 F. Supp. 2d 919, 925 (N.D. Ohio 2001) (the fact that the administrator also is the payor does not entitle the plaintiff to discovery; the 612

plaintiff must identify a specific procedural challenge). Still others have held that even when a procedural challenge or bias is alleged, the plaintiff must come forward with some threshold evidence in order to conduct discovery. But see Kinsler v. Lincoln Nat’l Life Ins. Co., 660 F. Supp. 2d 830, 836 (M.D. Tenn. 2009) (“[W]here, as here, a plaintiff has alleged an inherent conflict of interest to the extent that the entity that makes a benefits determination is the same entity that is responsible for paying that claim, the rulings in Wilkins, Moore, and Glenn compel the result that discovery into this alleged conflict of interest is proper, even if the plaintiff has not made an initial threshold showing of bias beyond alleging the existence of this type of conflict of interest.”). In Myers v. Prudential Ins. Co. of Am., 581 F. Supp. 2d 904, 907 (E.D. Tenn. 2008), the court revisited Bennett v. Unum Life Ins. Co. of Am., 321 F. Supp. 2d 925 (E.D. Tenn. 2004) (where it previously established a compromise approach allowing discovery where a claimant identified specific procedural challenges and demonstrated a reasonable basis for such challenges), noting that the two cases involve the “identical” issue. The court then reviewed the intervening developments in the case law, including the rulings in Calvert v. Firstar Fin., Inc., 409 F.3d 286 (6th Cir. 2005), and Kalish v. Liberty Mut., 419 F.3d 501 (6th Cir. 2005), which the court characterized as “persuasive dicta, but dicta nonetheless,” and the nonbinding rulings in the Putney v. Medical Mut. of Ohio, 111 Fed. App’x 803 (6th Cir. 2004) line of cases. Myers, 581 F. Supp. 2d at 910–11. The court found that the rulings in Calvert and Kalish were “highly persuasive in favor of allowing 613

discovery absent any threshold showing,” and that the Sixth Circuit’s ruling in Moore was the published case most directly on point, to the extent that Moore implies that no initial threshold showing of bias is required for a plaintiff to conduct discovery on that issue. Id. The Myers court read Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), as a warning against establishing special evidentiary procedures to apply to interest/bias issues that arise in ERISA-denial-of-benefits cases. Instead, “the Supreme Court exhorts the courts to examine and review each case on an individual basis, which would include fashioning an appropriate discovery plan based on the tools already available to parties in any other civil action.” Myers, 581 F. Supp. 2d at 912. The Myers court distanced itself from its earlier ruling in Bennett, noting that “by requiring a plaintiff to make an initial threshold showing of bias, the effect of Bennett was to create a special evidentiary procedure for ERISA cases involving claims of conflict of interest or bias, in contravention of Glenn.” Id. at 912–13. In light of the Sixth Circuit’s rulings in Calvert, Kalish, and Moore, and in particular, the Supreme Court’s ruling in Glenn, the Myers court found the Bennett approach “no longer appropriate.” Id. at 913. At most, however, conflict analysis may apply in a close case, in effect serving as a “tiebreaker.” See Smith v. Health Servs., 314 F. App’x 848, 855 (6th Cir. 2009); see also Gismondi v. United Tech. Corp., 408 F.3d 295, 299 (6th Cir. 2005) (a conflict of interest is only “a factor in determining whether there is an abuse of discretion”). The Sixth Circuit also held in Johnson v. Conn. Gen. Life Ins. 614

Co., 324 Fed. App’x 459, 467 (6th Cir. 2009) that “discovery will not be ‘automatically’ available in every case where there is a conflict of interest.” This is because, according to the Supreme Court, “the significance of [a conflict] will depend upon the circumstances of the particular case.” Glenn, 554 U.S. at 108. C. Must a Plaintiff Make a Prima Facie Showing in Order to Get Discovery? Although no bright line rule has been established, the holding in Kinsler v. Lincoln Nat’l Life Ins. Co., 660 F. Supp. 2d 830, 836 (M.D. Tenn. 2009), suggests that, at least in conflict of interest situations, “the rulings in Wilkins, Moore, and Glenn compel the result that discovery into this alleged conflict of interest is proper, even if the plaintiff has not made an initial threshold showing of bias beyond alleging the existence of this type of conflict of interest.” “Nothing in Wilkins suggests that anything more than an allegation of bias is required of a plaintiff to establish that evidence regarding bias is both relevant and, therefore, discoverable.” Id. Likewise, “although Moore does not state so explicitly, nothing in that opinion suggests that any type of initial threshold showing is necessary for a plaintiff to obtain discovery into allegations of bias.” Id. Moreover, “as the Supreme Court noted in Glenn, and consistent with the persuasive rulings of the Sixth Circuit in Calvert and Kalish, discovery into bias is necessary to enable courts to evaluate the proper weight to afford a conflict of interest in adjudicating a denial of benefits claim under ERISA.” Id. “To deny a plaintiff the opportunity to conduct limited discovery on the bias issue 615

until she has made an initial threshold showing essentially handcuffs the plaintiff, who, as the Pratt court noted, will rarely have access to any evidence beyond a bare allegation of bias, in the absence of discovery.” Id. D. What Types of Discovery Are Permitted? The scope of permissible discovery is narrow and “must be strictly and carefully circumscribed to the needs of the particular case.” Myers v. Prudential Ins. Co. of Am., 581 F. Supp. 2d 904, 914 (E.D. Tenn. 2008). In Myers, the court ruled that it would not permit discovery into personnel files and pay records but would permit discovery into “any type of incentive, bonus, or reward program or system” for employees reviewing disability claims, the “specific individuals involved in the review of [the] plaintiff’s claim,” and “the temporal and financial depth” of any relationship between a third-party reviewer and the defendant. Id. at 914–15. E. Does the Sixth Circuit Recognize the Fiduciary Exception to Claims of Attorney-Client Privilege? In Moss v. Unum Life Ins. Co., 495 Fed. App’x 583, 596 (6th Cir. 2012), the court noted that “[a]lthough the Sixth Circuit has not addressed the fiduciary exception in the ERISA context, it has recognized the exception in a different context.” Id. (citing Fausek v. White, 965 F.2d 126, 133 (6th Cir. 1992) (applying the exception to a dispute between a corporation and its minority shareholders)). While the Moss court found that the fiduciary exception did not apply in its particular case, its holding was due to the fact that the sought after 616

communications “occurred prior to a final benefits decision, the communications relate[d] to a pending lawsuit, [did] not concern the plan administration, and thus the fiduciary exception [did] not apply.” Id. Where these factors do not obtain, it appears that the Sixth Circuit will recognize the fiduciary exception in an ERISA context. The Moss court then proceeded to set forth a helpful explanation of the privilege and the fiduciary exception thereto. “The question of whether the attorney-client privilege applies is a mixed question of law and fact and is reviewed by this Court de novo.” Id. at 595 (citing Regional Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697, 712 (6th Cir. 2006)). “Where, as here, the underlying claim is based on federal law, federal common law determines the extent of the privilege.” Id. (citing Fed. R. Evid. 501). The purpose of the attorney-client privilege is to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Id. (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). “The privilege is not ironclad, however, and is subject to exceptions.” Id. (citing In re United States, 590 F.3d 1305, 1310 (Fed. Cir. 2009)). “One such exception is the fiduciary exception, which requires that when an attorney gives advice to a client acting as a fiduciary for third-party beneficiaries, that attorney owes the beneficiaries a duty of full disclosure.” Id. (citing In re Long Island Lighting Co., 129 F.3d 268, 272 (2d Cir. 1997)). 617

Under the fiduciary exception in the context of ERISA, “a fiduciary of an ERISA plan ‘must make available to the beneficiary, upon request, any communications with an attorney that are intended to assist in the administration of the plan.’” Id. (citing Bland v. Fiatallis N. Am., Inc., 401 F.3d 779, 787 (7th Cir. 2005)). This is because “[w]hen an attorney advises a plan administrator or other fiduciary concerning plan administration, the attorney’s clients are the plan beneficiaries for whom the fiduciary acts, not the plan administrator.” Id. (citing Wildbur v. ARCO Chem. Co., 974 F.2d 631, 645 (5th Cir. 1992)). The fiduciary exception “generally applies only to communications related to plan administration and not to communications after a final decision or ‘addressing a challenge to the plan administrator in his or her personal capacity.’” Id. at 595–96 (citing Redd v. Brotherhood of Maint. of Way Emps. Div. of the Int’l Bhd. of Teamsters, No. 08-11457, 2009 U.S. Dist. LEXIS 46288, 2009 WL 1543325, at *1 (E.D. Mich. June 2, 2009)). The Ninth Circuit has explained: “Thus, the case authorities mark out two ends of a spectrum. On the one hand, where an ERISA trustee seeks an attorney’s advice on a matter of plan administration and where the advice clearly does not implicate the trustee in any personal capacity, the trustee cannot invoke the attorney-client against the plan beneficiaries. On the other hand, where a plan fiduciary retains counsel in order to defend herself against the plan beneficiaries …, the attorney-client privilege remains intact.” Id. at 596 (citing United States v. Mett, 178 F.3d 1058, 1064 (9th Cir. 1999)). “‘[H]ard cases should be resolved in favor of the privilege, not in favor of disclosure.’” Id. (citing Mett, 178 F.3d at 1065). 618

VII. Evidence A. Scope of Evidence under Standards of Review The Sixth Circuit has long been of the view that a court can generally consider only evidence in the administrative record. Liss v. Fidelity Employer Servs., LLC, No. 11-2124, 2013 U.S. App. LEXIS 4082, at *8 (6th Cir. Feb. 26, 2013) (citing Perry v. Simplicity Eng’g, 900 F.2d 963, 966 (6th Cir. 1990)). This applies to both de novo review and the deferential review. Id. (de novo); Univ. Hosps. of Cleveland v. Emerson Elec. Co., 202 F.3d 839 (6th Cir. 2000) (arbitrary and capricious); Killian v. Healthsource Provident Adm’rs, 152 F.3d 514, 522 (6th Cir. 1998) (arbitrary and capricious). As set forth in the previous sections, however, the majority of the Wilkins court set forth an exception to this rule for procedural challenges to the administrator’s decision: The district court may consider evidence outside of the administrative record only if that evidence is offered in support of a procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part. 150 F.3d 609, 619 (6th Cir. 1998) This also means that any prehearing discovery at the district court level should be limited to such procedural challenges. Id. Thus, discovery can be obtained and evidence introduced on matters such as lack of due 619

process, procedural irregularities, or bias. See id. at 615; Kinsler v. Lincoln Nat’l Life Ins. Co., 660 F. Supp. 2d 830, 836 (M.D. Tenn. 2009). B. Evidentiary Value and Burden of Production of Social Security Determinations Following the decision in Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003), the Sixth Circuit has held that an ERISA plan administrator is not bound by a Social Security Administration disability determination when reviewing a benefits claim under an ERISA plan. See Whitaker v. Hartford Life & Accid. Ins. Co., 404 F.3d 947 (6th Cir. 2005) (citing Hurse v. Hartford Life & Accid. Ins. Co., No. 02-5496, 2003 WL 22233532 (6th Cir. Sept. 26, 2003)). In Whitaker, the court recognized “the incongruity of binding an ERISA plan administrator to the SSA’s disability determination, when the SSA—but not the ERISA administrator—is bound by law to accord special deference to a claimant’s treating physician.” Id. at 949. Accordingly, the court held that “an ERISA plan administrator is not bound by an SSA disability determination when reviewing a claim for benefits under an ERISA plan.” Id. Additionally, in Raskin v. Unum Provident Corp., No. 03-2270, 2005 WL 271939 (6th Cir. Feb. 3, 2005), the court held that an ERISA administrator making an ERISA determination does not have to follow the Social Security Administration’s decision regarding a claimant’s right to benefits. The court specifically held that benefits determinations under the Social Security Administration follow a different set of procedures from ERISA claims 620

because the procedures are designed to meet the need of efficiently and uniformly administering a large system. Therefore, the Social Security determination would not necessarily change the outcome of this case. Id. at *14 (citing Nord, 538 U.S. at 832–33). The Sixth Circuit also has stated, however, that “the failure of a plan administrator to discuss a disability determination by the [Social Security Administration] may be considered as a factor in determining the arbitrariness of the plan’s decision to deny benefits.” Calvert v. Firstar Fin., Inc., 409 F.3d 286, 295 (6th Cir. 2005). Nevertheless, an “‘SSA determination, though certainly not binding, is far from meaningless.’” Wooden v. Alcoa, Inc., No. 12-3190, 2013 U.S. App. LEXIS 968, at *18 (6th Cir. Jan. 11, 2013) (citing Calvert, 409 F.3d at 294). “It takes on special significance when a plan administrator seeks and embraces the SSA determination for its own benefit, only to ignore or discount it later.” Id. In fact, in cases where the plan administrator “(1) encourages the applicant to apply for Social Security disability payments; (2) financially benefits from the applicant’s receipt of Social Security; and then (3) fails to explain why it is taking a position different from the SSA on the question of disability, the reviewing court should weigh this in favor of a finding that the decision was arbitrary or capricious.” Id. at *18–19 (citing Bennett v. Kemper Nat. Servs., Inc., 514 F.3d 547, 554 (6th Cir. 2008)). C. Effect of an IME versus Paper Review

621

Reliance on independent physicians’ review of records as opposed to plaintiff’s treating physicians is not inherently arbitrary and capricious. See Balmert v. Reliance Std. Life Ins. Co., 601 F.3d 497, 504 (6th Cir. 2010) (citing Black & Decker Disability Plan v. Nord, 538 U.S. 822, 831 (2003)) (“Under ERISA, plan administrators are not required to accord special deference to the opinions of treating physicians. Moreover, ERISA does not impose a heightened burden of explanation on administrators when they reject a treating physician’s opinion. Reliance on other physicians is reasonable so long as the administrator does not totally ignore the treating physician’s opinions.”); see also Wooden v. Alcoa, Inc., No. 12-3190, 2013 U.S. App. LEXIS 968, at *17 (6th Cir. Jan. 11, 2013) (“Generally, when a plan administrator chooses to rely upon the medical opinion of one doctor over that of another in determining whether a claimant is entitled to ERISA benefits, the plan administrator’s decision cannot be said to have been arbitrary and capricious.”); Calvert, 409 F.3d at 295–96 (“[R]eliance on a file review does not, standing alone, require the conclusion that [the administrator] acted improperly.” There is “nothing inherently objectionable about a file review by a qualified physician in the context of a benefits determination.”). Also, an administrator’s decision to credit the opinion of a reviewing physician over a treating physician’s opinion, standing alone, cannot alter that result. See Eastover Mining Co. v. Williams, 338 F.3d 501, 510 (6th Cir. 2003) (Claim administrators are not bound by a treating physician’s opinion of disability because, among other things, “treating physicians may have strong pro-claimant biases.”)

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D. Under What Circumstances May an Administrator Require Objective Evidence? In the Sixth Circuit, a plan may require the claimant to provide objective evidence. In Schwalm v. Guardian Life Ins. Co. of Am., 626 F.3d 299, 313 (6th Cir. 2010), for example, the court held that the claimant “did not provide the necessary information” where the “plan required him to provide objective evidence to support a continued finding of disability.” See also O’Bryan v. Consol Energy, Inc., 477 Fed. App’x 306, 309 (6th Cir. 2012) (citing Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 166 (6th Cir. 2007)) (“Requiring objective evidence of disability is not irrational or unreasonable.”). The claimant in Schwalm, in fact, provided the administrator “with a list of medications and printouts from several Internet sites outlining their potential side effects. The printouts, while certainly some evidence that opioid pain medications can lead to cognitive side effects … do not demonstrate that [claimant] was disabled by those side effects in this case.” 626 F.3d at 313. VIII. Procedural Aspects of ERISA Practice A. Who Is the Correct Defendant in an Action for ERISA Benefits? The Sixth Circuit has held that the proper defendant in an action for ERISA benefits is the party that actually makes the benefit decision, regardless of the title applied to that party. See Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 438 (6th Cir. 2006) (upholding district court’s dismissal of an employer plan administrator where the insurance 623

company claims administrator exercised full authority in adjudicating plaintiff’s claims for benefits). According to ERISA, “a plan ‘fiduciary’ is one who ‘exercises any discretionary authority or discretionary control respecting the management of [an ERISA] plan or exercises any authority or control respecting the management or disposition of its assets’ or who ‘has any discretionary authority or discretionary responsibility in the administration of such plan.’” Id. (citing 29 U.S.C. § 1002(21)(A)). “This Court has found that ‘the definition of a fiduciary under ERISA is a functional one, [and] is intended to be broader than the common-law definition’ such that the issue of whether one is considered a fiduciary does not turn upon formal designations.” Id. (citing Smith v. Provident Bank, 170 F.3d 609, 613 (6th Cir. 1999)). Therefore, for purposes of ERISA, “a ‘fiduciary’ not only includes persons specifically named as fiduciaries by the benefit plan, but also anyone else who exercises discretionary control or authority over a plan’s management, administration, or assets.” Id. (citing Michigan Affiliated Healthcare Sys., Inc. v. CC Sys. Corp. of Mich., 139 F.3d 546, 549 (6th Cir. 1998)). Under ERISA, “a person is a fiduciary only with respect to those aspects of the plan over which he or she exercises authority or control.” Moore, 458 F.3d at 438 (citing Grindstaff v. Green, 133 F.3d 416, 426 (6th Cir. 1998)). “When an insurance company administers claims for employee welfare benefit plans and has authority to grant or deny claims, the insurance company is a ‘fiduciary’ for ERISA purposes.” Id. (citing LibbeyOwens-Ford Co. v. Blue Cross & Blue Shield Mut. of 624

Ohio, 982 F.2d 1031, 1035 (6th Cir. 1993)). “An employer who does not control or influence the decision to deny benefits is not the fiduciary with respect to denial of benefit claims.” Id. (citing Chiera v. John Hancock Mut. Life Ins. Co., 3 Fed. App’x 384, 389 (6th Cir. 2001) (“Defendant [insurance company] is a fiduciary for purposes of ERISA inasmuch as it had a role in administering the plan because it had authority to accept or reject claims for losses under the group insurance policy as evidenced by the rejection letter that it sent to Plaintiff in response to her attorney’s letter.”)). Thus, “‘unless an employer is shown to control administration of a plan, it is not a proper party defendant in an action concerning benefits.’” Ciaramitaro v. Unum Life Ins. Co. of Am., No. 12-1859, 2013 U.S. App. LEXIS 6968, at *20 (6th Cir. Apr. 4, 2013) (citing Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir. 1988)). Further, “[w]hen an insurance company administers claims for employee welfare benefit plans and has authority to grant or deny claims, the insurance company is a ‘fiduciary’ for ERISA purposes…. [Conversely, a]n employer who does not control or influence the decision to deny benefits is not the fiduciary with respect to denial of benefit claims.” Id. (citing Moore, 458 F.3d at 438). Accordingly, even if an employer is called the “plan administrator,” if the termination decision is made by the insurer as the “claims administrator,” the Sixth Circuit will affirm a district court’s dismissal of the employer. Id. (citing Moore, 458 F.3d at 438). B. Methods of Adjudication

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In Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 616 (6th Cir. 1998), the Sixth Circuit confirmed that jury trials are not permitted by ERISA, which provides only for equitable relief. It further stated that “summary judgment procedures set forth in Rule 56 are inapposite to ERISA actions, and thus should not be utilized in their disposition.” Id. at 619. In In re Campbell, 116 F. Supp. 2d 937, 941 (M.D. Tenn. 2000) (aff’d, 70 Fed. App’x 798 (6th Cir. 2003) (unpublished opinion)), the court found that, in light of Wilkins, defendant’s “Motion to Deny Relief and to Affirm the Plan Administrator’s Decision to Deny Benefits” was “properly styled.” Although the Wilkins court did not specify exact procedures for resolving ERISA claims, the court set forth the following steps or guidelines: 1. As to the merits of the action, the district court should conduct a de novo review based solely upon the administrative record, and render findings of fact and conclusions of law accordingly. The district court may consider the parties’ arguments concerning the proper analysis of the evidentiary materials contained in the administrative record, but may not admit or consider any evidence not presented to the administrator. 2. The district court may consider evidence outside of the administrative record only if that evidence is offered in support of a procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by 626

the administrator or alleged bias on its part. This also means that any prehearing discovery at the district court level should be limited to such procedural challenges. Wilkins, 150 F.3d at 619. The court in Reznick v. Provident Life & Accid. Ins. Co., 181 Fed. App’x 531, 535 (6th Cir. May 17, 2006), held that ERISA cases are not standard “trials on the merits” and, therefore, require a different procedural posture before the court. C. Reported ERISA Trials/Jury Trials The Sixth Circuit has held that plaintiffs are not entitled to a jury trial under ERISA. See Bender v. Newell Window Furnishings, Inc., 681 F.3d 253, 262 (6th Cir. 2012) (citing Reese v. CNH Am. LLC, 574 F.3d 315, 327 (6th Cir. 2009)) (“[I]t is now settled that there would be no right to a jury trial of these [ERISA] claims.”) (bracketed language added); see also In re Iron Workers Local 25 Pension Fund, No. 04-cv-4024, 2011 U.S. Dist. LEXIS 34505, at *46–47 (E.D. Mich. Mar. 31, 2011) (“[I]t is also well settled that there is no right to a jury trial on ERISA claims for recovery of benefits or breach of fiduciary duty.”) (citing Sprague v. Gen. Motors Corp., 133 F.3d 388, 406 (6th Cir. 1998) (en banc)). There are, however, many cases in the Sixth Circuit, particularly prior to Wilkins, in which district courts conducted bench trials or styled the method of adjudication as a bench trial. Thus, there are many reported ERISA trials. As set forth below, courts have been inconsistent, even in following Wilkins, in how they

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resolve ERISA claims, and some may conduct or style the adjudication as a bench trial. D. Special Procedures for ERISA Benefit Cases In practice, several district courts have heeded Wilkins and established specific procedures for resolving ERISA claims, including (1) requiring the parties’ motions to be styled as motions for entry of judgment, and (2) rendering specific findings of fact and conclusions of law. “This Court will follow this procedure making necessary findings of fact and conclusions of law and deciding this case by issuing an order for judgment on the merits.” Lehman v. Exec. Cabinet Salary Continuation Plan, 241 F. Supp. 2d 845, 847 (S.D. Ohio 2003) (citing Frankenmuth Mut. Ins. Co. v. Wal-Mart Assocs.’ Health & Welfare Plan, 182 F. Supp. 2d 612 (E.D. Mich. 2002)). However, other district courts in the Sixth Circuit have resolved ERISA claims using Rule 56, without comment from the Sixth Circuit. See, e.g., Durbin v. Columbia Energy Group Pension Plan, No. 12-3910, 2013 U.S. App. LEXIS 7891 (6th Cir. Apr. 17, 2013) (“We review a district court’s grant of summary judgment in an ERISA action de novo, ‘applying the same standard of review to the administrator’s action as required by the district court.’”) (citing Bidwell v. University Med. Ctr., Inc., 685 F.3d 613, 616 (6th Cir. 2012)); Kottmyer v. Maas, 436 F.3d 684 (6th Cir. 2006); Marks v. Newcourt Credit Group, 342 F.3d 444 (6th Cir. 2003) (affirming grant of summary judgment); Nester v. Allegiance Healthcare Corp., 162 F. Supp. 2d 901, 907–08 (S.D. Ohio 2001) (noting that the Sixth Circuit has ignored Wilkins and panels of that court 628

have reviewed ERISA claims by conducting summary judgment analyses). IX. Remedies A. Under § 502(a)(1)(B) [29 U.S.C. § 1132(a)(1)(B)] Section 502(a)(1)(B) of ERISA allows “‘a participant or beneficiary’ to bring a civil action ‘to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.’” Daft v. Advest, Inc., 658 F.3d 583, 587 (6th Cir. 2011) (citing 29 U.S.C. § 1132(a)(1)(B)). For example, in Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478 (6th Cir. 2009), the plaintiffs “asked the district court for recovery of health benefits due under the plan (including monetary damages), a declaration of their rights to health benefits under the plan, and an injunction prohibiting the plan administrator from modifying or terminating retiree health benefits in the future,” and the court found that “[a]ll of these remedies are cognizable under § 502(a)(1)(B).” Id. at 492 (citing Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 147 (1985) (explaining that there are three distinct remedies available under § 502(a)(1)(B): “an action … [1] to recover accrued benefits, [2] to obtain a declaratory judgment that [a participant or beneficiary] is entitled to benefits under the provisions of the plan contracts, and [3] to enjoin the plan administrator from improperly refusing to pay benefits in the future”)). Where plaintiffs’ “additional claims for equitable relief pursuant to § 502(a)(3) are simply repackaged claims for 629

benefits,” however, “further equitable relief pursuant to § 502(a)(3) is unavailable” because “§ 502(a)(1)(B) fully provides a means for the relief sought by the [plaintiffs].” Tackett, 561 F.3d at 492. Also, where the “‘problem is with the integrity of [the plan’s] decision-making process,’ rather than ‘that [a claimant] was denied benefits to which he was clearly entitled,’ the appropriate remedy generally is remand to the plan administrator.” Daft, 658 F.3d at 595 (citing Elliott v. Metro Life Ins. Co., 473 F.3d 613, 621 (6th Cir. 2006) (On plaintiff’s long-term disability claim, the court found that the administrator had not relied on an application of the relevant evidence to the occupational standard, the administrator’s physician had not given reasons for his conclusions, never discussed the employee’s job duties, and evaluated her ability to do sedentary work even though “sedentary work” did not appear in the plan’s terms, but the court remanded for a full and fair review because the employee was not clearly entitled to benefits). B. Under § 502(a)(3) [29 U.S.C. § 1132(a)(3)] Section 502(a)(3) of ERISA allows “‘a participant, beneficiary, or fiduciary’ to bring a civil action ‘to enjoin any act or practice which violates any provision of [ERISA] or the terms of the plan’ or ‘to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of [ERISA] or the terms of the plan’….” Daft, 658 F.3d at 591 (citing 29 U.S.C. § 1132(a)(3)). The “Supreme Court has held that this statute authorizes only equitable, not legal, relief.” Id. (citing Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 630

204, 221 (2002)). But see Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011) (discussed infra). Section 502(a)(3) is a “‘catchall’ for ERISA violations, Varity Corp v. Howe, 516 U.S. 489, 511 (1996), that allows courts to provide ‘appropriate’ equitable relief.” Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478, 491 (6th Cir. 2009) (citing 29 U.S.C. § 1132(a)(3)). But “§ 502(a)(3) is not an appropriate means to relief when a plaintiff merely ‘repackage[s]’ a § 502(a)(1)(B) claim: ‘Where Congress has elsewhere provided means to adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case [§ 502(a)(3)] relief normally would not be appropriate.’” Id. (citing Varity, 516 U.S. at 515). Although the Varity Court, in allowing the § 502(a)(3) claim, emphasized that the plaintiff could not have brought a § 502(a)(1)(B) claim, the Sixth Circuit sometimes allows a plaintiff to bring claims under both § 502(a)(3) and § 502(a)(1)(B). See Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 718 (6th Cir. 2005). The Hill court allowed a plaintiff to bring claims under both sections when § 502(a)(1)(B) would not provide the complete relief the plaintiff sought. There, the plaintiff complained of an “improper methodology for handling all of the … claims.” Id. at 718. The Court held that the plaintiff had pleaded sufficient facts to support a § 502(a)(1)(B) for unpaid benefits. But the plaintiff in Hill also brought a claim for injunctive relief under § 502(a)(3) to require the defendant “to alter the manner in which it administers all of the … claims.” Id. The Court noted that this § 502(a)(3) claim was for “plan-wide injunctive relief, not [for] individual-benefit payments.” 631

Id. Although the plaintiff had the ability to seek damages for improperly denied benefits, the Court allowed the plaintiff to proceed on both claims because “[o]nly injunctive relief of the type available under § [502(a)(3)] will provide the complete relief sought.” Id. See also Gore v. El Paso Energy Corp. Long Term Disability Plan, 477 F.3d 833, 841–42 (6th Cir. 2007) (holding that plaintiff could bring both a § 1132(a)(1)(B) claim for denial of benefits and a § 1132(a)(3) claim for breach of fiduciary duty because the plaintiff sought recovery of benefits according to the plan terms as they were misrepresented to him by the defendant, rather than according to the actual terms of the plan, where the defendant administrator misrepresented a change in the length of time for which plaintiff would have to meet an “own occupation” standard versus “any occupation” for disability benefits). C. Cases Addressing Cigna Corp. v. Amara The Sixth Circuit has yet to fully address Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), where the Court held that, while 29 U.S.C. § 1132(a)(1)(B) did not authorize reformation of an ERISA plan, § 1132(a)(3) authorized “appropriate equitable relief,” including equitable estoppel, contract reformation, and surcharge, when raised against a breaching fiduciary. In Bidwell v. University Med. Ctr., Inc., 685 F.3d 613 (6th Cir. 2012), for example, the court declined to consider Amara because it did not find there to be any conflict between the plan and the summary plan description. Similarly, in Lipker v AK Steel Corp., 698 632

F.3d 923 (6th Cir. 2012), the court acknowledged that “[t]he CIGNA Court left open the possibility that ‘appropriate equitable relief’ could potentially be awarded under § 502(a)(3),” but did not consider the possibility because “no such equitable theory [was] asserted in plaintiff’s complaint, which expressly pray[ed] only for award of benefits under the ‘specific’ and ‘clear and unambiguous language’ of the plan.” Id. at 931 n.4. In Kern v. Chrysler UAW Pension Plan, No. 11-11970, 2012 U.S. Dist. LEXIS 99498, *12–24 (E.D. Mich. Mar. 16, 2012), the court sets forth a succinct analysis of the Amara holding and remedies, but found that the plaintiff’s complaint (which was filed less than two weeks prior to Amara), even when applying “a bit of creative interpretation,” did not state a viable claim for equitable relief pursuant to 29 U.S.C. § 502(a)(3). Id. at *19. In Teisman v. United of Omaha Life Ins. Co., No. 1:11-CV-1211, 2012 U.S. Dist. 160130 (W.D. Mich. Nov. 8, 2012), however, the plaintiff sought a monetary remedy to compensate her for material misrepresentations made by the defendant that her deceased husband’s life insurance policy had not terminated. The court held that “when a fiduciary is involved, compensatory relief is a ‘typical equitable remedy’ available under § 1132(a)(3)” and that plaintiff was entitled to her “make-whole” equitable relief because “Jedco [the plan sponsor and plan administrator] is a fiduciary.” Id. at *8–9. See also Sitso v. Int’l Steel Group, No. 5:11-cv-2592, 2013 U.S. Dist. LEXIS 45565, at *4, *13 (N.D. Ohio Mar. 29, 2013) (holding that plaintiff’s claim for equitable estoppel pursuant to 29 U.S.C. § 1132(a)(3) was permissible against the plan administrator but ultimately ruling in 633

favor of the defendant administrator as the “plain language of the Plan is wholly inconsistent with [plaintiff’s argument].”). X. Fiduciary Liability Claims A. Definition of Fiduciary The Sixth Circuit applies a functional interpretation of ERISA’s definition of “fiduciary,” looking to a party’s control and authority over a plan rather than formal grants of trusteeship. Briscoe v. Fine, 444 F.3d 478, 486 (6th Cir. 2006); Seaway Food Town, Inc. v. Med. Mut., 347 F.3d 610, 616 (6th Cir. 2003); Hamilton v. Carell, 243 F.3d 992, 998 (6th Cir. 2001). A party is a fiduciary, and consequently owes duties to an ERISA plan, if he or she falls under one of two categories. The first category of ERISA fiduciaries is “named” fiduciaries, which are parties explicitly listed as fiduciaries in a plan instrument. The second category of ERISA fiduciaries is that of “unnamed” fiduciaries, that is, one that exercises discretionary authority or control respecting management of such plan or disposition of its assets. Pfahler v. Nat’l Latex Prods. Co., 517 F.3d 816, 828 (6th Cir. 2007). “‘The definition of fiduciary is intended to be broader than the common law definition’ such that the issue of whether one is considered a fiduciary does not turn upon formal designations.” Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 438 (6th Cir. 2006) (quoting Smith v. Provident Bank, 170 F.3d 609, 613 (6th Cir. 1999)). The Sixth Circuit’s functional interpretation follows the Supreme Court’s mandate in Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993). 634

When applying this functional interpretation, courts in the Sixth Circuit “[examine] the conduct at issue to determine whether it constitutes ‘management’ or ‘administration’ of the plan, giving rise to fiduciary concerns, or merely a business decision that has an effect on an ERISA plan not subject to fiduciary standards.” Briscoe, 444 F.3d at 486; Seaway, 347 F.3d at 617 (quoting Hunter v. Caliber Sys., Inc., 220 F.3d 702, 718 (6th Cir. 2000)); Sengpiel v. B.F. Goodrich Co., 156 F.3d 660, 666 (6th Cir. 1998). In applying a functional interpretation of ERISA’s definition of “fiduciary” to parties charged with a breach of fiduciary duty, the threshold question in every case is “not whether the actions of some person employed to provide services under a plan adversely affected a plan beneficiary’s interest, but whether that person was acting as a fiduciary (that is, was performing a fiduciary function) when taking the action subject to complaint.” Seaway, 347 F.3d at 617 (quoting Pegram v. Herdrich, 530 U.S. 211, 226 (2000)). “Determining whether an administrator is a fiduciary with respect to a particular action requires a functional analysis to determine if the administrator exerted any authority or control over a fund’s assets when it took the action in question.” Pipefitters Local 636 Ins. Fund v. Blue Cross Blue Shield of Michigan, 654 F.3d 618, 631 (6th Cir. 2011). If the conduct at issue is merely a business decision that affects an ERISA plan, without constituting management or administration of the plan, the person’s actions are not subject to fiduciary standards with respect to that conduct. Seaway, 347 F.3d at 617. A party is a fiduciary only insofar as its conduct constitutes a fiduciary function, because, under ERISA, a person may be a fiduciary for 635

some purposes but not for others. See, e.g., Moore, 458 F.3d at 438 (“[U]nder ERISA a person is a fiduciary only with respect to those aspects of the plan over which he or she exercises authority or control.”); Kuper v. Quantum Chem. Corp., 838 F. Supp. 342, 347 (S.D. Ohio 1993), judgment entered, 852 F. Supp. 1389 (S.D. Ohio 1994), aff’d, Kuper v. Iovenko, 66 F.3d 1447 (6th Cir. 1995). “Because fiduciary status is not an all or nothing concept, the relevant question is whether an entity is a fiduciary with respect to the particular activity in question.” Guyan Int’l, Inc. v. Professional Benefits Adm’rs, Inc., 689 F.3d 793, 797 (6th Cir. 2012) (internal quotations omitted). In Libbey-Owens-Ford Co. v. Blue Cross & Blue Shield Mutual, 982 F.2d 1031 (6th Cir. 1993), the court held that an insurance company administrator of a selfinsured employee benefit plan was a fiduciary for ERISA purposes, as long as it had discretionary authority regarding claims. Id. at 1036. See also Moore, 458 F.3d at 438 (“When an insurance company administers claims for employee welfare benefit plans and has authority to grant or deny claims, the insurance company is a ‘fiduciary’ for ERISA purposes. An employee who does not control or influence the decision to deny benefits is not the fiduciary with respect to denial of benefit claims.”) (internal citations omitted). Similarly, in Guardsmark, Inc. v. Blue Cross & Blue Shield of Tenn., 169 F. Supp. 2d 794 (W.D. Tenn. 2001), an insurance company was found to be a fiduciary under ERISA because it administered claims for an employee welfare benefit plan, having the authority to grant or deny any of those claims. However, in Seaway, the court found 636

that an insurance company was not a fiduciary under ERISA where group contracts did not authorize it to exercise discretion with respect to any funds resulting from provider discounts, but specifically required the provider to retain such funds for its sole benefit. 347 F.3d at 619. See also Mich. Affiliated Healthcare Sys., Inc. v. Lansing Gen. Hosp., 139 F.3d 546 (6th Cir. 1998) (claims administrator not a fiduciary where it had no discretion and employer had final discretion to grant or deny claims); Cataldo v. United States Steel Corp., 676 F.3d 542, 552–53 (6th Cir. 2012) (union held not to be a fiduciary where it merely explained plan benefits and business decisions and made assurances to the plaintiffs, but there was no basis for plaintiffs to believe union was acting as plan administrator). B. Definition of Fiduciary Duties The duties charged to an ERISA fiduciary are the highest known to the law. Pfeil v. State Street Bank and Trust Co., 671 F.3d 585, 598 (6th Cir. 2012). ERISA’s fiduciary duty, codified at 29 U.S.C. § 1104(a)(1), essentially encompasses three components: (1) the duty of loyalty, (2) the “prudent man” duty, and (3) the “exclusive purpose” duty. See Berlin v. Mich. Bell Tel. Co., 858 F.2d 1154, 1162 (6th Cir. 1988); see also Gregg v. Transp. Workers of Am. Int’l, 343 F.3d 833, 840 (6th Cir. 2003); Kuper v. Iovenko, 66 F.3d 1447, 1458 (6th Cir. 1995). The duty of loyalty is rooted in the statute’s “requirement that each fiduciary of a plan must act solely in the interests of the plan’s participants and beneficiaries.” Berlin, 858 F.2d at 1162 (quoting Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir.)). 637

Section 1104(a)(1)(B), moreover, expressly requires that a plan fiduciary act “with the skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity would use in conducting an enterprise of like character.” Id. Under the Sixth Circuit’s analysis, the prudent-man standard coupled with the duty of loyalty “imposes an unwavering duty on an ERISA trustee to make decisions with a singleminded devotion to a plan’s participants and beneficiaries and, in so doing, to act as a prudent person would act in a similar situation.” Id. Finally, “an ERISA fiduciary must act for the exclusive purpose of providing benefits to plan beneficiaries.” Id. See also Pfahler v. Nat’l Latex Prods. Co., 517 F.3d 816, 829–30 (6th Cir. 2007) (a fiduciary who fails to discharge his duties “solely in the interest of the participants and beneficiaries” and act with the care, skill, prudence, and diligence of a prudent person may be held personally liable); Gregg, 343 F.3d at 840–41 (ERISA fiduciary duty standard encompasses three components—a duty of loyalty, the prudent-man obligation, and that a fiduciary act for the exclusive purpose of providing benefit plans to employees) (quoting Bierwirth, 680 F.2d at 271); Best v. Cyrus, 310 F.3d 932, 935 (6th Cir. 2002) (a fiduciary has a duty to act in the interest of the plan’s fiduciaries and with skill, care, prudence, and diligence); James v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 448–49 (6th Cir. 2002) (same); Krohn v. Huron Mem’l Hosp., 173 F.3d 542, 547 (6th Cir. 1999) (same); Kuper, 66 F.3d at 1458 (if a fiduciary fails to meet any one of the three components, the fiduciary

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may be held personally liable for any losses to the plan that result from the fiduciary’s breach of duty). C. Fiduciary Liability in the Context of Health and Disability Claims and Prosecution of § 1132(a)(1)(B) and § 1132(a)(3) Claims The significant Sixth Circuit cases on this issue, including Libbey-Owens-Ford Co., Guardsmark, and Seaway, are identified and discussed in the previous section. Additionally, “Section 1132(a)(1)(B) permits a pension plan participant to file a civil action under ERISA to recover benefits owed, enforce rights, or clarify rights to future benefits under the pension plan.” Thornton v. Graphic Commc’ns Conf., 566 F.3d 597, 616 (6th Cir. 2009). In contrast, however, “§ 1132(a)(3) authorizes suits by participants, among others, to enjoin violations of ERISA and obtain other appropriate equitable relief.” Id. “A § 1132(a)(3) claim can only be brought simultaneously with a § 1132(a)(1)(B) claim when § 1132(a)(1)(B) cannot ‘provide an adequate remedy for the alleged injury to the plaintiffs caused by the breach of fiduciary duties.’” Id. at 616–17 (citing Gore v. El Paso Energy Corp. Long Term Disability Plan, 477 F.3d 833, 840 (6th Cir. 2007)). D. Remedies for Breach of Fiduciary Duty While “the Secretary of Labor and the plan administrator are entitled to seek the full gamut of legal and equitable relief” in enforcing the statute’s provisions, “ERISA restricts plan beneficiaries to equitable relief with no recourse to money damages.” Helfrich v. PNC Bank, Ky., 639

Inc., 267 F.3d 477 (6th Cir. 2001). Beneficiaries may not recover compensatory or punitive damages. Id. See also Del Rio v. Toledo Edison Co., 130 Fed. App’x 746, 750 (6th Cir. 2005) (ERISA “does not afford avenue of redress” for plan beneficiary seeking damages in individual capacity in a claim for breach of fiduciary duty); Int’l Union, United Auto., Aerospace, & Agr. Implement Workers of Am. v. Park-Ohio Indus. Inc., 661 F. Supp. 1281 (N.D. Ohio 1987) (denying recovery of extracontractual and punitive damages where breach of fiduciary duty under ERISA was found), aff’d in part, rev’d in part on other grounds; Bova v. Am. Cyanamid Co., 662 F. Supp. 483 (S.D. Ohio 1987) (granting recovery of benefits owed but not extracontractual or punitive damages); Varhola v. Doe, 820 F.2d 809 (6th Cir. 1987) (holding that in an action to recover benefits under 29 U.S.C. § 1132(a)(3), punitive damages are not recoverable); Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598 (6th Cir. 2007) (plaintiffs may sue in their individual capacities for injunctive or other appropriate equitable relief but not for monetary damages); Kmatz v. Metro. Life Ins. Co., 232 Fed. App’x 451, 457 (6th Cir. 2007) (neither § 1132(a)(2) nor (a)(3) provides for money damages as a remedy); Alexander v. Bosch Auto. Sys., Inc., 232 Fed. App’x 491, 501 (6th Cir. 2007) (restitutionary-type relief would merely compel the payment of money from a general fund and constitute money damages not available under ERISA). In addition, the Sixth Circuit appears to be strictly construing the Supreme Court’s decision in Great-West Life & Annuity Insurance Co v. Knudson, 534 U.S. 204 640

(2002), limiting remedies to those that are nonmonetary. For example, the court has held that labeling a claim as one for “restitution” will not allow a plaintiff to recover compensatory damages. See Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009) (“[F]or restitution to lie in equity, the action generally must seek not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant’s possession.”). In Helfrich, the court explained that while equitable relief may include restitution, a restitutionary award must focus on the defendant’s conduct and wrongfully obtained gain as opposed to the plaintiff’s loss. The court looked past the label and held that measuring relief by the plaintiff’s loss was the hallmark of money damages, which are not permitted under ERISA. Helfrich, 267 F.3d at 482–83. But see McFadden v. R & R Engine & Mach. Co., 102 F. Supp. 2d 458 (N.D. Ohio 2000) (decided before Helfrich). Similarly, in Qualchoice Inc. v. Rowland, 367 F.3d 638 (6th Cir. 2004), the court rejected claims for subrogation and restitution, even though the participant possessed recovery in an identifiable fund, finding that such restitution was a legal remedy. The Supreme Court’s decision in Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006), however, abrogated Qualchoice. In Sereboff, a plan filed suit under 29 U.S.C. § 1132(a)(3) to recover from a plan participant more than $70,000 paid by the plan on the participant’s behalf after the participant settled a tort lawsuit. The Supreme Court held that though the plan’s claim was a subrogation claim, the relief the plan sought was indistinguishable from an

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action to enforce an equitable lien and was, therefore, permissible under § 1132(a)(3). Sereboff, 547 U.S. at 358. E. Contribution and Indemnity Claims among Fiduciaries In McDannold v. Star Bank, N.A., 261 F.3d 478 (6th Cir. 2001), the Sixth Circuit acknowledged the split among the circuits regarding whether ERISA fiduciaries could seek contribution from a cofiduciary. See also May v. Nat’l Bank of Commerce, 390 F. Supp. 2d 674, 676 (W.D. Tenn. 2004). There, however, the court refused to address the issue, finding it was not ripe due to factual issues that remained outstanding and required remand. While the Sixth Circuit has not yet issued an opinion determining whether a fiduciary may seek contribution, district courts in the circuit have rejected such claims. See id.; see also Toledo Blade Newspaper Unions-Blade Pension Plan v. Investment Performance Services, LLC, 448 F. Supp. 2d 871 (N.D. Ohio 2006) (ERISA does not provide for a right of contribution or indemnity); Williams v. Provident Inv. Counsel Inc., 279 F. Supp. 2d 894 (N.D. Ohio 2003); Roberts v. Taussig, 39 F. Supp. 2d 1010 (N.D. Ohio 1999). F. ERISA Claims against Nonfiduciaries In the Sixth Circuit, there is some question as to whether officials with nonfiduciary status can be found liable under ERISA. In McDannold v. Star Bank, N.A., 261 F.3d 478 (6th Cir. 2001), the court remanded the case to the trial court, holding that professional advisors who were 642

not fiduciaries of an employee stock ownership plan could still have common law liability under ERISA. Specifically, the court held that a cause of action lies under ERISA § 502(a)(3) against a nonfiduciary party-ininterest who knowingly participates in a prohibited transaction. Id. at 486 (citing Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238 (2000)). See also Pfahler, 517 F.3d at 835 (summary judgment proper where there was no evidence nonfiduciary lender received misappropriated plan assets or did so knowingly); In re Regions Morgan Keegan ERISA Litigation, 692 F. Supp. 2d 944 (W.D. Tenn. 2010) (nonfiduciaries’ motion to dismiss denied where plaintiff alleged nonfiduciaries were parties in interest who knowingly participated in ERISA violations). Moreover, in Brock v. Hendershott, 840 F.2d 339, 342 (6th Cir. 1998), the court allowed a disgorgement of profits against an ERISA nonfiduciary because the nonfiduciary aided and assisted in the breach of a fiduciary duty. Despite these holdings, there is case law within the Sixth Circuit indicating that a plaintiff’s state law claims are not preempted by ERISA when those claims are brought against nonfiduciaries. See, e.g., McLemore v. Regions Bank, 682 F.3d 414, 426 (6th Cir. 2012) (ERISA does not preempt garden variety claims against nonfiduciaries providing professional services to an ERISA plan); Smith v. Provident Bank, 170 F.3d 609, 613 (6th Cir. 1999). In Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692 (6th Cir. 2005), the court was faced with a breach of contract claim brought against an entity that provided professional services to ERISA plans. The court held that ERISA does not 643

preempt state law claims brought against nonfiduciary service providers in connection with professional services rendered to an ERISA plan. Id. at 698–99. XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees The Sixth Circuit has twice held that the Supreme Court case of Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010), does not displace the “five factor” analysis in Secretary of Labor v. King, 775 F.2d 666 (6th Cir. 1985). The Court in O’Callaghan v. SPX Corp., 442 Fed. App’x 180, 186 (6th Cir. 2011), held that Hardt does not change the five factor analysis, it “merely relaxes the threshold for eligibility for attorney’s fees—from “prevailing party” to “some degree of success on the merits.” In Ciaramitaro v. Unum Life Ins. Co. of Am., No. 12-1859, 2013 U.S. App. LEXIS 6968, at *16 (6th Cir. April 4, 2013), the Court stated that “while the five factor King test is not required, it still has vitality in helping courts determine whether or not to award fees to a party that achieves some degree of success on the merits.” Under the King test, the Sixth Circuit will consider the following five factors in determining whether to award fees: (1) the degree of the opposing party’s culpability or bad faith; (2) the opposing party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an award on other persons under similar circumstances;

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(4) whether the party requesting fees sought to confer a common benefit on all partici pants and beneficiaries of an ERISA plan or to resolve significant legal questions regarding ERISA; and (5) the relative merits of the parties’ positions. Sec’y of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir. 1985). See also Foltice v. Guardsman Prods., Inc., 98 F.3d 933, 937 (6th Cir. 1996) (“The five factors … have been cited in numerous subsequent cases.”); Gaeth v. Hartford Life Ins. Co., 538 F.3d 524, 529 (6th Cir. 2008); O’Callaghan, 442 Fed. App’x at 185–86; Ciaramitaro, 2013 U.S. App. LEXIS 6968, at *14 n.2. The factors are flexible, developed to give guidance to the district court in exercising its discretion. No single factor is determinative. Gaeth, 538 F.3d at 529 (citing Moon v. Unum Provident Corp., 461 F.3d 639, 642 (6th Cir. 2006)). ERISA has been interpreted by the Sixth Circuit as granting substantial discretion to the district courts to grant or deny a request for attorneys’ fees. See Jordan v. Mich. Conf. of Teamsters Welfare Fund, 207 F.3d 854, 860 (6th Cir. 1998). Awards are reviewed for abuse of discretion. See Armistead v. Vernitron Corp., 944 F.2d 1287, 1304 (6th Cir. 1991). But see Moon, 461 F.3d 639 (applying abuse of discretion standard reversed denial-offee award); Smiljanich v. Gen. Motors Corp., 302 Fed. App’x 443, 448 (6th Cir. 2008). B. Fees Awarded to Plan Fiduciaries The Sixth Circuit has not precluded awarding attorneys’ fees to prevailing defendants in ERISA actions. In Moore 645

v. Lafayette Life Ins. Co., 458 F.3d 416 (6th Cir. 2006), the court awarded defendants partial attorney fees because the court found the plaintiff did not litigate in “good faith,” the plaintiff presented “near frivolous” claims, filed “unreliable” briefs and pursued arguments rejected by the trial court. See also Gettings v. Building Laborers Local 310 Fringe Benefits Fund, 349 F.3d 300 (6th Cir. 2003) (fees may be awarded to either party; court remanded the case to the district court for explicit consideration of the King test and instructed the district court to provide a reasoned explanation for its decision granting or denying the award of fees). C. Fees Awarded When Plaintiffs Lack Standing The Sixth Circuit has held that a determination that the plaintiff is not an employee or participant under an ERISA plan does not preclude the district court from awarding attorneys’ fees under the statute. In Moore, 458 F.3d 416, the court rejected the plaintiff’s argument that if he was not an employee, he lacked standing, and the court lacked jurisdiction under ERISA and could not award fees. The court concluded that the plaintiff made at least a colorable claim that he was an employee and therefore an ERISA participant, his claims were not so insubstantial that they failed to present a federal controversy, and the district court did not abuse its discretion in awarding defendants a portion of attorneys’ fees. See also Primax Recoveries, Inc. v. Gunter, 433 F.3d 515, 519–20 (6th Cir. 2006) (district had subject matter jurisdiction to award fees even though the plaintiff failed to state a claim). D. Calculation of Attorneys’ Fees 646

The Sixth Circuit has held that district courts must apply the lodestar method (relevant hours times a reasonable hourly rate) in calculating an appropriate fee award. See Bldg. Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995). But see Moore, 458 F.3d at 447–48 (where plaintiff unnecessarily expanded the scope of the ERISA action by 50 percent, an award of 50 percent of defendant’s attorneys’ fees is not unreasonable). The lodestar method is used regardless of whether there is a fee arrangement. First Trust Corp. v. Bryant, 410 F.3d 842, 856–57 (6th Cir. 2005). There is no requirement in the Sixth Circuit that fee awards be proportional to the damages awarded; however, the fees must be reasonable. Id. Although fees generally are not awarded for the administrative process, in at least one case a district court included such fees in its award, based on what it viewed as the defendant’s culpable conduct. See Kohrn v. Citigroup, No. 3:04 CV 7553, 2006 U.S. Dist. LEXIS 11691 (N.D. Ohio Mar. 21, 2006). XII. ERISA Regulations 29 C.F.R. § 2509.75-8. Briscoe v. Fine, 444 F.3d 478, 494 (6th Cir. 2006) (third-party administrator is a fiduciary with respect to the plan assets under his control); Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 700 (6th Cir. 2005) (service provider performing record-keeping services and having no discretionary control over the management of the plan is not a fiduciary); Six Clinics Holdings Corp. II v. Catcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997) (party that had 647

authority to amend plan was fiduciary); Flache v. Sun Life Assur. Co., 958 F.2d 730 (6th Cir. 1992) (mere payment of claims insufficient to give discretionary control over plan assets); Shirk v. Fifth Third Bankcorp, 2009 WL 692124 (S.D. Ohio Jan 29, 2009) (fiduciary’s performance should be reviewed to ensure performance is in compliance); Munsey v. Tactical Armor Prods., Inc., 2008 WL 4442550 (E.D. Tenn. Sept. 25, 2008) (person who performs purely ministerial functions such as processing claims, applying plan eligibility rules, communicating with employees, and calculating benefits is not a fiduciary); Loren v. Blue Cross & Blue Shield of Mich., 2006 U.S. Dist. LEXIS 53784, at *26–27 (E.D. Mich. Aug. 3, 2006) (a named fiduciary may not delegate to anyone, other than an investment manager, authority or discretion to manage a plan); Toke v. Hadick, 2005 U.S. Dist. LEXIS 40703, at *23–25 (S.D. Ohio Oct. 27, 2005) (party providing ministerial functions for the plan and not employed as the plan-defined administrator is not a fiduciary); In re AEP, 327 F. Supp. 2d 821, 832–33 (S.D. Ohio 2004) (fiduciary has a duty to monitor those he appoints to make decisions for the plan); Noble v. Cumberland River Cool Co., 26 F. Supp. 2d 958 (E.D. Ky. 1998); Sheward v. Bechtel Jacobs Co. LLC, 2010 WL 841301 (E.D. Tenn. 2010) (mere fact error occurring in the calculation of plaintiff’s benefits is not sufficient basis to support claim for breach of fiduciary duty); McLemore v. Regions Bank, 682 F.3d 414, 424 (6th Cir. 2012) (withdrawal of routine contractual fees insufficient to support determination that third party 648

administrator was subject to liability as an ERISA fiduciary). 29 C.F.R. § 2510.3-1(b). Langley v. DaimlerChrysler Corp., 502 F.3d 475, 480 (6th Cir. 2007) (where an employer pays an employee normal compensation for periods of mental or physical disability entirely from its general assets, the program constitutes an exempted payroll practice); Capriccioso v. Henry Ford Health Sys., 2000 U.S. App. LEXIS 17535, at *8 (6th Cir. July 17, 2000) (salary continuation policy constituted payroll practice); Hart v. Reynolds & Reynolds Co., 1993 U.S. App. LEXIS 17678 (6th Cir. July 6, 1993) (same); Langley v. Daimler-Chrysler Corp., 407 F. Supp. 2d 897, 912–13 (N.D. Ohio 2005) (where the criteria are otherwise met, the payroll practice exemption still applies even though the employer represented that the plan was covered by ERISA); Hall v. Group Sickness & Accid. Ins. Plan, 2005 U.S. Dist. LEXIS 40700, at *15 (E.D. Mich. Aug. 19, 2005) (sickness and accident plan paid for out of the general assets of the employer was a payroll practice exempt from ERISA coverage); Miller v. PPG Indus. Inc., 278 F. Supp. 2d 826 (W.D. Ky. 2003) (vacation benefit program was payroll practice); Williams v. Great Dane Trailer Tenn. Inc., No. 94-2189-G/A, 1995 U.S. Dist. LEXIS 22152 (W.D. Tenn. Jan. 23, 1995) (shortterm disability benefits constituted payroll practice). 29 C.F.R. § 2510.3-1(j). Nicholas v. Standard Ins. Co., 48 Fed. App’x 557 (6th Cir. 2002); 649

Thompson v. Am. Home Assur. Co., 95 F.3d 429 (6th Cir. 1996) (court considered employer endorsement of plan); Burns v. Unum Group, 2010 WL 5173806 (E.D. Mich. 2010) (no substantial involvement on behalf of plaintiff’s employer where plaintiff merely checked a box on application showing employer would pay the premiums); Gindele v. Am. United Life Ins. Co., 2006 U.S. Dist. LEXIS 66750, at *11–12 (E.D. Ky. Sep. 15, 2006) (plan exempted only if it meets all four of the safe harbor criteria; plan failed on three grounds when employers contributed to the fund, participation was not voluntary, and the union created and had substantial involvement in administering the plan); Doskey v. Unum Life Ins. Co. of Am., 2006 U.S. Dist. LEXIS 10319, at *4–6 (N.D. Ohio Feb. 17, 2006) (court found plan endorsed by the employer because of its substantial involvement in the creation and administration of the plan); Harvey v. Life Ins. Co. of N. Am., 404 F. Supp. 2d 969, 976–77 (E.D. Ky. 2005) (court found employer endorsement despite lack of employer involvement in claim processing and eligibility determination when a reasonable employee would believe the employer endorsed the plan and all other factors indicate endorsement); Oliver v. Sun Life Assur. Co. of Can., 417 F. Supp. 2d 865, 867 (W.D. Ky. 2005) (no employer endorsement when employee paid 100 percent of the cost with after-tax dollars and employer made clear that participation was voluntary and that the plan was distinct from the employer-endorsed plan); Vincent v. Unum Provident Corp., 2005 U.S. Dist. LEXIS 9087, at *7 650

(E.D. Tenn. May 5, 2005) (safe harbor provision did not apply when employee could not prove that he, and not the employer, paid the premiums); Wausau Benefits v. Progressive Ins. Co., 270 F. Supp. 2d 980 (S.D. Ohio 2003) (court found endorsement where employer was plan administrator); B-T Dissolution, Inc. v. Provident Life & Accid. Ins. Co., 101 F. Supp. 2d 930 (S.D. Ohio 2000) (questions of fact existed concerning whether employer endorsed plan and paid premiums). 29 C.F.R. § 2510.3-3(c)(1). Santino v. Provident Life & Accid. Ins. Co., 276 F.3d 772 (6th Cir. 2001) (joint shareholder a participant); Talley v. Kan. City Life Ins. Co., 2006 U.S. Dist. LEXIS 17168, at *11–12 (E.D. Tenn. Feb. 28, 2006) (plan had no employee participants when it covered only husband and wife co-owners); Melluish v. Provident Life & Accid. Ins. Co., 2001 U.S. Dist. LEXIS 4595 (W.D. Mich. Feb. 26, 2001) (plaintiff not sole shareholder and not employer). 29 C.F.R. § 2520.102-2(a), (b). Bolone v. TRW Sterling Plant Pension Plan, 130 Fed. App’x 761, 766 (6th Cir. 2005) (court would not reach the issue of whether the plan was misleading because there is no substantive remedy available when the plaintiff alleges only procedural violations); Anderson v. Mrs. Grissom’s Salads, Inc., No. 99-5207, 2000 U.S. App. LEXIS 14511 (6th Cir. June 19, 2000) (summary plan description was misleading); Heady v. Dawn Food Prods., Inc., 2003 U.S. Dist. LEXIS

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21634 (W.D. Ky. Nov. 25, 2003) (summary plan descriptions must not be misleading). 29 C.F.R. § 2560.503-1(b). Marks v. Newcourt Credit Group, Inc., 342 F.3d 444 (6th Cir. 2003) (administrator substantially complied with procedural requirements). 29 C.F.R. § 2560.503-1(g). McCartha v. Nat’l City Corp., 419 F.3d 437, 446 (6th Cir. 2005) (requirement that participant be notified of the specific reason for benefit denial necessitates more than mere reference to the provision to which participant failed to comply); Stoll v. W. & S. Life Ins. Co., No. 01-3401, 64 Fed. App’x 986 (6th Cir. 2003) (failure to provide adequate notice of basis for denial did not alter standard of review); Blajei v. Sedgwick Claims Mgmt. Servs., 721 F. Supp. 2d 584 (E.D. Mich. 2010) (defendant violated notice requirement by failing to instruct plaintiff as to what type of additional medical certification would be sufficient); Scott v. Regions Bank, 702 F. Supp. 2d 921 (E.D. Tenn. 2010) (administrator waived exhaustion requirement when denial letter did not mention review process available to appeal decision and unequivocally indicated matter was closed); Spectrum Health v. Valley Truck Parts, 2008 WL 2246048 (W.D. Mich. May 30, 2008) (denial letter that failed to explain the plan’s review procedures and applicable time limits and failed to inform recipient of the right to bring an action to review denial did not satisfy notice requirement and therefore did not trigger 180-day appeal period); 652

Harbison v. Hartford Life & Accid. Ins. Co., 2007 WL 1665300 (S.D. Ohio June 5, 2007) (Sixth Circuit has adopted “substantial compliance” standard where the court will consider all communications between the administrator and plan participant, not just the denial letter); Seal v. John Alden Life Ins. Co., 437 F. Supp. 2d 674, 687 (E.D. Mich. 2006) (notification failed to state plaintiff’s right to have claim denial reviewed); Children’s Hosp. Med. Ctr. of Akron v. Grace Mgmt. Servs. Employment Benefit Plan, 2006 U.S. Dist. LEXIS 62567, at *9–10, *12 (N.D. Ohio Sept. 1, 2006) (plaintiff was entitled to present evidence outside of the administrative record because defendant failed to comply with claims procedures); Jacobs v. Unum Life Ins. Co., 2006 U.S. Dist. LEXIS 10567, at *38–39 (M.D. Tenn. Feb. 21, 2006) (purpose of notification requirements essentially satisfied when the benefit determination letter stated the reason for denial, the specific plan provision at issue, and the information necessary to perfect an appeal, and informed participant that he had access to relevant information); Neiheisel v. AK Steel Corp., No. 1:03-cv-868, 2005 U.S. Dist. LEXIS 4639, at *20, *21 (S.D. Ohio Feb. 17, 2005) (conclusory denial letter that failed to provide additional information necessary to perfect claim did not constitute notification); Francis v. United Parcel Serv., 288 F. Supp. 2d 882 (S.D. Ohio 2003) (written notice of denial not provided); Parker v. Union Planters Corp., 203 F. Supp. 2d 888 (W.D. Tenn. 2002) (plaintiff not provided timely notice of

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claim denial; defendant did not offer reasonable opportunity for full and fair review). 29 C.F.R. § 2560.503-1(h). Balmert v. Reliance Standard Life Ins. Co., 601 F.3d 497 (6th Cir. 2010) (claimant’s failure to fully exercise her procedural rights does not render administrative appeal defective); Byrd v. Prudential Ins. Co. of Am., 2010 WL 5155570 (M.D. Tenn. 2010) (plan administrator not required to produce consultative reports during pendency of administrative review); Edwards v. Life Ins. Co. of N. Am., 2009 WL 693139 (E.D. Tenn. Mar. 13, 2009) (request to examine consultants under oath did not fall within definition of “document, record, or other information” “relied upon in making the benefit determination”); Morrison v. Marsh & McLennan Cos., Inc., 326 F. Supp. 2d 883 (E.D. Mich. 2004) (requirement to provide relevant information applies only to participant or beneficiary). 29 C.F.R. § 2560.503-1(l). Nale v. Ford Motor Co. UAW Ret. Plan, 703 F. Supp. 2d 714 (E.D. Mich. 2010) (defendant failed to provide a reasonable claims procedure, and therefore the court deemed that claimant exhausted administrative remedies); Hall v. Baptist Health Care Sys., Inc., 2007 WL 3119275 (W.D. Ky. Oct. 22, 2007) (adopting the “substantial compliance” standard for § 2560.5034(1)); Kohrn v. Plans Adm’r Comm. of Citigroup, No. 3:04-cv-7553, 2006 U.S. Dist. LEXIS 1092, at *19, *24–25 (N.D. Ohio Jan. 13, 2006); Netzel v. Crowley Am. Transp. Co., 2006 654

U.S. Dist. LEXIS 16603, at *13–14 (E.D. Mich. Feb. 22, 2006) (exhaustion not excused when denial letter complied with ERISA requirements). XIII. Cases Interpreting ERISA Statutes of Limitation A claim for breach of fiduciary duty is the only claim for which ERISA establishes a statute of limitations. Pursuant to § 413 of ERISA, 29 U.S.C. § 1113, a claim for breach of fiduciary duty must be brought by the earlier of: 1. Six years after the act that constituted the breach or violation, or if an omission, the last date the breach of violation could have been cured, or; 2. Three years after the plaintiff had actual knowledge of the breach or violation. Wright v. Heyne, 349 F.3d 321, 327 (6th Cir. 2003). In situations where the defendant hides the breach or violation, and therefore fraud and concealment exist, the plaintiff will have six years from the date she discovers the breach to bring a claim. Id. However, plaintiffs cannot avoid the statute of limitations due to their own failure to read plan documents made available to them. Brown v. Owens Corning Inv. Review Comm., 622 F.3d 564 (6th Cir. 2010) (when a plan participant is given instructions on how to access plan documents, the failure to read the documents will not shield them from having actual knowledge of the document terms).

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In Cataldo v. United Steel Corp., 676 F.3d 542, 551 (6th Cir. 2012), the Sixth Circuit recognized that it is an open question whether the six-year statute of limitations period applies in instances where the claim is based on fraud, absent allegations of separate conduct to hide that fraud. The Court explicitly abstained from deciding that issue, however, and instead held the plaintiffs’ claims were time-barred because plaintiffs had failed to sufficiently plead a cause of action for fraud. Id. Given that ERISA does not provide a statute of limitations for claims other than for breach of fiduciary duty, courts are forced to borrow the most analogous state law statute of limitations applicable to the case. Redmon v. Sud-Chemie Inc. Ret. Plan for Union Emps., 547 F.3d 531, 534–35 (6th Cir. 2008); Meade v. Pension Appeal & Review Comm., 966 F.2d 190, 194–95 (6th Cir. 1992). For claims concerning benefits, enforcement of plan terms, and failure to provide required information or documentation, the Sixth Circuit generally looks to the analogous state statute of limitations for contract actions. Santino v. Provident Life & Accid. Ins. Co., 276 F.3d 772, 776 (6th Cir. 2001). In general, the statute of limitations for a claim for ERISA benefits begins to run when the claim for benefits has been formally denied. Stevens v. Emp’r-Teamsters Joint Council No. 84 Pension Fund, 979 F.2d 444, 451 (6th Cir. 1992). See Bender v. Newek Window Furnishings, Inc., 681 F.3d 253, 273 (6th Cir. 2012) (letter stating defendant had a “right to modify the coverage and benefits provided, as may be amended from time to time” was not a “clear repudiation” of the vested 656

benefits and did not trigger the statute of limitations). However, under certain circumstances the courts apply the discovery rule whereby the statute of limitations begins to run when the claimant discovers, or should have discovered, the denial or was put on notice of the denial. Mich. United Food & Commercial Workers Union v. Muir Co., 992 F.2d 594 (6th Cir. 1993). In Rice v. Jefferson Pilot Financial Ins. Co., 578 F.3d 450 (6th Cir. 2009), the Sixth Circuit held that the parties may contract not only for the limitations period, but also for the date on which an ERISA claim accrues. The court reached its conclusion by finding that the clear repudiation rule did not apply when the limitations period is governed by contract as opposed to state law. Id. at 455. The court further determined that it was not unreasonable for the limitation period to begin to run when “proof of claim is required to be given,” pursuant to the plan. Id. at 455–56. XIV. Subrogation Litigation The most significant development in the Sixth Circuit following the Supreme Court’s decision in Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006), is Longaberger Co. v. Kolt, 586 F.3d 459 (6th Cir. 2009). In Longaberger, the Sixth Circuit allowed the plan to recover from a contingency fee paid to an attorney who reached a settlement on behalf of the beneficiary in civil tort actions filed against two negligent drivers involved in an automobile accident. The Sixth Circuit held that while § 502(a)(3) limits the universe of potential plaintiffs, it does not limit the parties 657

who may be proper defendants. It then explained that under Sereboff, the plan was free to follow the portion of the settlement into the attorney’s hands. Thus, the plan was entitled to full reimbursement of funds the beneficiary received from third parties and was not required to deduct attorneys’ fees. Importantly, the administrator in Longaberger brought the action against both the beneficiary and the attorney. In Reinhart Cos. Employee Benefit Plan v. Vial, 2011 WL 976505 (W.D. Mich. 2011), for example, the district court distinguished the Longaberger holding that a plan’s failure to sue the beneficiary’s attorney precluded recovery of settlement funds in his possession. The Reinhart court extensively discussed Sereboff and went on to hold that the plan was entitled to an equitable lien on the limited amounts held by the beneficiaries. 2011 WL 976505, at *10. In US Airways, Inc. v. McCutchen, 133 S. Ct. 1537 (2013), the Supreme Court decided that equitable principles may require plans to share costs associated with payment of attorney’s fees under some circumstances. While the McCutchen Court did hold that the ERISA plan’s terms governed § 502(a)(3) actions based on equitable liens by agreement, it clarified that equitable rules can aid in construing plan reimbursement provisions. Id. (paragraph 2 of syllabus). In McCutchen, the plan was silent on how to pay for the cost of obtaining a recovery; the Court held that the “common-fund doctrine” applied, and held that any recovery by the plan had to be reduced pro-rata by the 658

applicable contingency fee. Id. at 1551. The Court did note, however, that if the plan’s terms had “expressly addressed” costs associated with obtaining recoveries (as the plan at issue in Longaberger did), then the plan’s terms would have governed. Id. No Sixth Circuit case has yet addressed McCutchen. XV. Miscellaneous The Sixth Circuit has permitted ERISA plaintiffs to bring class actions in spite of the exhaustion requirement. See Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir. 1998) (“where … the crux of an ERISA plaintiff’s complaint concerns the methodology used to determine benefits, courts have recognized that the standing-related provisions of ERISA were not intended to limit a claimant’s right to proceed under Rule 23” of the Federal Rules of Civil Procedure). However, class claims must still satisfy Rule 23. For example, in Sprague v. General Motors Corp., 133 F.3d 388 (6th Cir. 1998), the court reversed class certification where the claims were based on representations and individual issues predominated. Id. at 398–99.

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CHAPTER 7 Seventh Circuit KRISTEN CARROLL MARK D. DEBOFSKY MARK E. SCHMIDTKE I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan The Seventh Circuit has held that there are five statutory criteria required for a plan to constitute an employee welfare benefit plan under the Employee Retirement Income Security Act of 1974 (ERISA): (1) A plan, fund or program, (2) established or maintained, (3) by an employer or by an employee organization, or by both, (4) for the purpose of providing medical, surgical, hospital care, sickness, accident, disability, death, unemployment or vacation benefits, apprenticeship or other training programs, day care centers, scholarship funds, pre-paid legal services or severance benefits, (5) to participants or their beneficiaries.

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Ed Miniat, Inc. v. Globe Life Ins. Group, 805 F.2d 732, 738 (7th Cir. 1986); Cler v. Ill. Educ. Ass’n, 423 F.3d 726, 730 (7th Cir. 2005). The Seventh Circuit also follows the virtually universal rule that a “plan, fund, or program” implies “the existence of intended benefits, intended beneficiaries, a source of financing, and a procedure to apply for and collect benefits.” James v. Nat’l Bus. Sys., Inc., 924 F.2d 718, 720 (7th Cir. 1991) (citing Donovan v. Dillingham, 688 F.2d 1367, 1372 (11th Cir. 1982)); Ed Miniat, Inc., 805 F.2d at 739 (citing Donovan). For purposes of determining whether a benefit plan is subject to ERISA, its various aspects ought not be unbundled. Postma v. Paul Revere Life Ins. Co., 223 F.3d 533, 538 (7th Cir. 2000). A mere failure to comply with all of ERISA’s technical requirements is irrelevant to whether a plan is governed by ERISA. For example, the core technical requirement is that an ERISA plan be in writing. Nevertheless, the Seventh Circuit has held that even where a plan is not in writing, it may still be governed by ERISA. See, e.g., Diak v. Dwyer, Costello & Knox, 33 F.3d 809, 811 (7th Cir. 1994) (“[a] plan need not be in writing to be covered by ERISA so long as the plan is a reality, meaning something more than a mere decision to extend benefits”); James, 924 F.2d at 720 (“while a plan is not established merely by the employer’s deciding to have a plan, the plan need not be in writing, provided it is a reality”). All that is required is that its terms can be determined with reasonable definiteness. Miller v. Taylor Insulation Co., 39 F.3d 755, 760 (7th Cir. 1994). Extending its holdings further, in Shyman v. Unum Life Ins. Co., 427 F.3d 452 (7th Cir. 2005), the court ruled that a commodity trader was a participant and/or a beneficiary in a benefit plan 661

sponsored by the clearing-house through which he made his trades regardless of the fact that the plaintiff was an independent contractor. See also Ruttenberg v. U.S. Life Ins. Co. in the City of N.Y., 413 F.3d 652 (7th Cir. 2005) (same). B. Definition of “Employee” for ERISA Purposes An “employee” in the traditional sense is a person who works in the service of another person under which the employer has the right to control the details of work performance. Ruttenberg v. U.S. Life Ins. Co., 413 F.3d 652, 665 (7th Cir. 2005). Under ERISA, any person employed by an employer is considered an “employee.” 29 U.S.C. § 1002(6) (2005). However, fitting within the definition of “employee” under the common law definition articulated in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992), does not automatically entitle one to benefits under an ERISA plan’s definition of employee; it only entitles one to standing. Trombetta v. Cragin Fed. Bank for Sav. Employee Stock Ownership Plan, 102 F.3d 1435, 1440 (7th Cir. 1997). The Seventh Circuit has held that “[n]othing in ERISA … compels a plan to use the term ‘employee’ in the same way it is used in the statute…. [B]ecause a plan governed by ERISA need not include all categories of employees, there is no reason to expect that it would.” Id. Generally, an independent contractor is not an employee and may not have standing to pursue benefits under an ERISA plan where the plan limits benefits to employees. See, e.g., Suskovich v. Anthem Health Plans of Virginia, 553 F.3d 559 (7th Cir. 2009). But see Shyman, 427 F.3d 452 (independent contractor’s claim for benefits under 662

ERISA-governed plan is subject to ERISA’s civil enforcement scheme where contractors are considered beneficiaries under the plan). Former employees are eligible under ERISA if they have a colorable claim to benefits. Miller, 39 F.3d at 758. A working joint shareholder is considered a participant in an ERISA plan where the plan covers the joint shareholder and other nonowner employees even though no nonowner employees remain covered at the time of the dispute. In re Baker, 114 F.3d 636 (7th Cir. 1997). The Seventh Circuit went further in both Shyman, 427 F.3d 452, and Ruttenberg, 413 F.3d 652, where the court held that commodity traders who were independent contractors were also participants and/or beneficiaries in employee benefit plans sponsored by the clearinghouses through which the traders cleared their trades. But see Department of Labor amicus brief in Yates v. Hendon, 541 U.S. 1 (2004) (arguing that a “beneficiary” of a plan can be designated as such only by a “participant”). An employer need not provide the same benefits to all of its employees so long as the employer treats similarly situated employees the same. Rush v. McDonald’s Corp., 966 F.2d 1104, 1120–21 (7th Cir. 1992). C. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan See also discussion in Section I.B, supra. Although not entirely clear how it plays out in this context, the Seventh Circuit has recognized that the concept of “common control” applies under ERISA and that, pursuant to 663

various IRS regulations, a parent-subsidiary group exists when a common parent owns a controlling interest in the relevant subsidiary. A controlling interest is at least 80 percent ownership. Central States, S.E. & S.W. Areas Pension Fund v. SCOFBP, LLC, 668 F.3d 873 (7th Cir. 2011). D. Treatment of Multiple Employer Trusts and Welfare Agreements In Ed Miniat, 805 F.2d 732, the Seventh Circuit held that an employer’s subscription to a multiple employer trust constitutes the establishment of an ERISA welfare plan where the subscription is for the purpose of providing insured welfare benefits to one or more classes of employees. Upon consideration of ERISA statutory language that “any residual assets of a single plan may be distributed to the employer,” the court in Chicago Truck Drivers v. Local 710, 2005 WL 525427 (N.D. Ill. 2005), held that this language does not prevent compensation from being distributed to three employers when all three employers have made contributions to the plan. Id. at *10. In Chicago Truck Drivers, the group policy was owned by the employers and the plan was silent with respect to how to treat demutualization compensation. Id. II. Preemption A. Scope of ERISA Preemption ERISA’s preemption provision states that federal law “supersede[s] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 664

U.S.C. § 1144(a). A state-law claim relates to an employee benefit plan if it has a connection with or reference to such a plan. Sembos v. Philips Components, 376 F.3d 696, 703 (7th Cir. 2004). Relying on Supreme Court authorities such as Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987), and Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987), the Seventh Circuit has held that state-law claims such as breach of contract and bad faith are preempted by ERISA and that ERISA’s civil enforcement provisions are the exclusive means of remedying a wrongful denial of plan benefits. See, e.g., Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 786 (7th Cir. 1996) (breach-of-contract claims preempted by ERISA); Tomczyk v. Blue Cross & Blue Shield United of Wis., 951 F.2d 771 (7th Cir. 1991), cert. denied, 504 U.S. 940 (1992) (bad-faith claims preempted by ERISA). More recently, following the Supreme Court’s refinement of ERISA preemption principles, the Seventh Circuit has identified three categories of state laws that are preempted by ERISA: (1) state laws that mandate employee benefit structures or their administration, (2) state laws that bind employers or plan administrators to particular choices or preclude uniform administrative practices, thereby functioning as a regulation of an ERISA plan itself, and (3) state laws that provide an alternative enforcement mechanism to ERISA. Trustees of AFTRA Health Fund v. Biondi, 303 F.3d 765, 775 (7th Cir. 2002). In Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002), the Supreme Court affirmed a Seventh Circuit decision holding that a state law mandating independent review of a health insurer’s medical necessity 665

determination was “saved” from preemption as a state law that regulates insurance under 29 U.S.C. § 1144. In reaching this conclusion, the Supreme Court relied on the fact that the state regulatory scheme at issue provided no new cause of action and authorized no new form of relief, but instead promulgated a procedural rule of the type ERISA does not preempt. Id. at 379–80. B. Preemption of Managed Care Claims In Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002), the Supreme Court upheld a Seventh Circuit decision that a state third-party review law regulated insurance and, consequently, was saved from preemption by ERISA. As yet, the Seventh Circuit has not specifically addressed the preemptive effect of the Supreme Court’s ruling in Pegram v. Herdrich, 530 U.S. 211 (2000), which found that mixed eligibility/treatment decisions by an HMO through its physician were not fiduciary decisions regulated by ERISA, as such a decision might affect the preemption of managed care and/or medical malpractice claims. See Klassy v. Physicians Plus Ins. Co., 371 F.3d 952, 956 (7th Cir. 2004) (ruling that there was no need to discuss the precise boundaries of Pegram because a decision to deny benefits for a proposed surgery was purely an eligibility decision remedied by ERISA). C. Preemption of Malpractice Claims Although Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), made clear that efforts to bring malpractice claims against employee benefit plans are preempted by ERISA, 666

the Seventh Circuit has decided a number of cases on that issue. In Rice v. Panchal, 65 F.3d 637, 646 (7th Cir. 1995), the court held that a suit against an ERISA health plan insurer alleging vicarious liability for the malpractice of a network physician was not completely preempted by ERISA for removal jurisdiction purposes (i.e., it did not fall within the scope of ERISA’s civil enforcement section, 29 U.S.C. § 1132(a)), in part because the claim did not rest on the terms of the ERISA plan and could be resolved without interpreting the ERISA-governed plan. Because the court held that it did not have jurisdiction over the state-law claim, the court did not address whether the vicarious liability claim was preempted by ERISA’s preemption provision, 29 U.S.C. § 1144(a), although it acknowledged that this was an issue that the state court would need to resolve on remand. In Jass v. Prudential Health Care Plan, 88 F.3d 1482, 1495 (7th Cir. 1996), the court held that a medical malpractice claim against a nurse who worked as a utilization review administrator for an ERISA plan insurer was completely preempted by ERISA and would be recharacterized as a claim for plan benefits under ERISA, 29 U.S.C. § 1132(a)(1)(B). The court also held that a state-law claim of vicarious liability against the plan insurer arising from the alleged negligence of the attending physician’s “failure to treat,” which extended from the utilization reviewer’s refusal to authorize the treatment, was preempted by ERISA, 29 U.S.C. § 1144(a), because the vicarious liability claim “relate[d] to” the ERISA health plan. See also Lehmann v. Brown, 230 F.3d 916, 920 (7th Cir. 2000) (stating that ERISA does not attempt to specify standards of medical care); Klassy v. Physicians Plus Ins. Co., 371 F.3d 952, 957 (7th Cir. 2004) (finding 667

preemption after recharacterizing a provider’s decision regarding an out-of-network doctor as a denial of benefits claim). D. Other Preemption Issues The Seventh Circuit has held that a state-law doctrine of substantial compliance “relates to” an ERISA plan and is preempted. Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 566 (7th Cir. 2002). The Seventh Circuit ruled in Administrative Committee of the Wal-Mart Stores, Inc. Associates’ Health & Welfare Plan v. Varco, 338 F.3d 680 (7th Cir. 2003), that though the equitable common fund doctrine survived ERISA preemption, plan language explicitly disclaiming the applicability of that doctrine trumps state law. Finally, one district court has ruled that ERISA does not work to effect a complete preemption of common wage law claims in some instances. See Perl v. Laux/Arnold, Inc., 864 F. Supp. 2d 731 (N.D. Ind. 2012) (noting that the Seventh Circuit has not addressed the issue of whether common wage law claims are completely preempted by ERISA). III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? On several occasions, the Seventh Circuit has applied an exhaustion-of-remedies requirement in ERISA benefit disputes. Although not required statutorily, the Seventh Circuit has mandated exhaustion in claims disputes under the rationale that exhaustion “reduce[s] the number of frivolous law-suits under ERISA … promote[s] the 668

consistent treatment of claims for benefits … [and] provide[s] a nonadversarial method of claims settlement; and to minimize the cost of claims settlement for all concerned.” Schorsch v. Reliance Standard Life Ins. Co., 693 F.3d 734; 739 (7th Cir. 2012); Stark v. PPM Am., 354 F.3d 666 (7th Cir. 2004); Zhou v. Guardian Life Ins. Co., 295 F.3d 677 (7th Cir. 2002); Gallegos v. Mount Sinai Med. Ctr., 210 F.3d 803 (7th Cir. 2000). Exhaustion is favored because the plan’s review process may resolve a number of issues, the facts and the administrator’s interpretation of the plan may be clarified, and exhaustion encourages private resolution of disputes. Id. In addition, the Seventh Circuit is one of the few circuits to also require exhaustion of remedies in matters based on alleged violations of ERISA statutory duties. See, e.g., Ames v. Am. Nat’l Can Co., 170 F.3d 751 (7th Cir. 1999). In the context of class actions under ERISA, the Seventh Circuit has recognized that in some cases, “requiring exhaustion by the individual class members would merely produce an avalanche of duplicative proceedings and accidental forfeitures.” In re Household Int’l Tax Reduction Plan, 441 F.3d 500, 501 (7th Cir. 2006). However, like other types of ERISA actions, in class action suits the district court has discretion whether or not to require exhaustion of remedies. Id. B. Exceptions to the Exhaustion Requirement The Seventh Circuit treats a failure to exhaust internal remedies as an affirmative defense, which may be waived; however, “a delay in asserting an affirmative defense waives the defense only if the plaintiff was 669

harmed as a result.” Curtis v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005); See also Hess v. Reg-Ellen Mach. Tool Corp., 502 F.3d 725, 730 (7th Cir. 2007). Accordingly, in order to avoid the exhaustion requirement once a defendant has asserted its defense, a plaintiff has the burden of proving that an administrative appeal would be futile or that the plaintiff was not afforded meaningful access to the plan’s administrative process. Schorsch, 693 F.3d at 739; Gallegos, 210 F.3d at 803. See also Ruttenberg v. U.S. Life Ins. Co., 413 F.3d 652, 662 (7th Cir. 2005). The exhaustion requirement may also be excused if the plaintiff relies to her detriment on written misrepresentations by the plan insurer or the plan administrator. See, e.g., Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574 (7th Cir. 2000). Exhaustion may also be waived at the discretion of the court. Salus v. GTE Directories Serv. Corp., 104 F.3d 131 (7th Cir. 1997). In two recent rulings, the Seventh Circuit refused to excuse exhaustion based on the plaintiff’s claim that errors in the denial letter estopped the defendant from insisting on exhaustion. Schorsch, 693 F.3d 734; Aschermann v. Aetna Life Ins. Co., 689 F.3d 726 (7th Cir. 2012). In Aschermann, the court rejected the plaintiff’s argument that she was misled into believing that she need only submit an updated report from a single physician in order for her benefits to be reinstated. Similarly, in Schorsch, the court ruled the plan gave sufficient notice of its reasons for the denial of benefits and offered the plaintiff a sufficient opportunity to challenge the determination. 693 F.3d at 740–42. Even though there were misstatements in the denial letter and the insurer had lost portions of the claim file, the court found there was 670

no reliance on any misstatements to the plaintiff’s detriment. Schorsch also sidestepped the question of whether a claim that arises prior to the 2002 ERISA claim regulations but where benefits are terminated subsequently are subjected to the earlier regulations. The court found it made no difference whether the plaintiff had 60 days or 180 days to submit an appeal, since Schorsch never requested review. The Seventh Circuit also recently ruled in Edwards v. Briggs & Stratton Retirement Plan, 639 F.3d 355 (7th Cir. 2011), that the failure to submit an appeal prior to the expiration of the appeal deadline constituted a failure to exhaust, even though the deadline was missed by only a few days. The court refused to give the plaintiff the benefit of the doctrine of substantial compliance which has been used in the Seventh Circuit to permit minor deviations from regulatory requirements by claim administrators. C. Consequences of Failure to Exhaust Dismissal is an appropriate remedy for a plaintiff’s failure to exhaust administrative remedies. Gallegos, 210 F.3d at 803. D. Minimum Number of Levels of Administrative Review There is nothing unique in the Seventh Circuit regarding this issue. E. Can a Defendant Waive a Failure-to-Exhaust Defense?

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Since a failure to exhaust is an affirmative defense, defendants can waive the defense. See Hess, 502 F.3d 725; Massey v. Helman, 196 F.3d 727, 734–35 (7th Cir. 2000). However, failure to raise the defense in the answer does not constitute a waiver as long as the defendant asserts the affirmative defense in a subsequent motion to dismiss. Id. See discussion in Section III.B, supra. F. Issue Exhaustion versus Claim Exhaustion Although claim exhaustion is required under ERISA, the Seventh Circuit has not directly addressed whether issue exhaustion is also required. Cf. Senese v. Chi. Area Int’l Bhd. of Teamsters Pension Fund, 237 F.3d 819, 823 (7th Cir. 2001) (noting the issue but finding it unnecessary to render a decision in the case). G. Is Exhaustion Required before Asserting a Counterclaim? In Gutta v. Standard Select Trust Ins. Plans, 530 F.3d 614 (7th Cir. 2008), the Seventh Circuit sidestepped the question of whether an ERISA fiduciary is required to exhaust administrative review before asserting a claim for reimbursement against a plan participant. IV. Standard of Review A. Plan Language The Seventh Circuit has approved specific language that will grant discretion and require application of a deferential review standard: “Benefits under this plan will

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be paid only if the plan administrator decides in his discretion that the applicant is entitled to them.” Herzberger v. Standard Ins. Co., 205 F.3d 327, 331 (7th Cir. 2000). The court reinforced that holding in Diaz v. Prudential Ins. Co. of Am., 422 F.3d 630 (7th Cir. 2005), where the court explicitly overturned prior rulings that upheld more lenient language in granting discretion. The court ruled in Ruiz v. Cont’l Casualty Co., 400 F.3d 986 (7th Cir. 2005), that language conveying discretion could be located in the policy certificate; similarly, in Semien v. Life Ins. Co. of N. Am., 436 F.3d 805 (7th Cir. 2006), the court found discretion from its examination of a series of plan documents that made it clear to the court that the plan sponsor intended a reservation of discretion. See also Shyman v. Unum Life Ins. Co., 427 F.3d 452, 455 (7th Cir. 2005) (finding discretion-granting language in the certificate of insurance where the policy declared that the certificate was part of the policy unless it contradicted other clauses). However, in Sperando v. Lorillard Tobacco Co., 460 F.3d 866 (7th Cir. 2006), the court held that discretionary language appearing in the certificate but not in the master policy did not grant discretion where the certificate was not incorporated into the master policy. Similarly, in Schwartz v. Prudential Ins. Co., 450 F.3d 697 (7th Cir. 2006), the Seventh Circuit found that the inclusion of discretion-granting language in the summary plan description (SPD) but not in the plan precluded the application of a deferential standard of review. And in Ruttenberg v. U.S. Life Insurance Co., 413 F.3d 652, 662 (7th Cir. 2005), the court ruled that the inclusion of 673

discretion-granting language in the policy application was inadequate to trigger a deferential review. However, in Raybourne v. CIGNA Life Ins. Co. of N.Y., 576 F.3d 444 (7th Cir. 2009), the court deemed a claim fiduciary appointment agreement an adequate plan document sufficient to confer discretionary authority when the same language was also included in the SPD. B. What Standard of Review Applies? If an ERISA plan grants discretion to a claim administrator to interpret plan terms or to determine eligibility for plan benefits, the reviewing court will employ the arbitrary and capricious standard of review. Williams v. The Interpublic Severance Pay Plan, 523 F.3d 819 (7th Cir. 2008); Blickenstaff v. R.R. Donnelley & Sons Co., 378 F.3d 669, 677 (7th Cir. 2004). See also Dabertin v. HCR Manor Care, Inc., 373 F.3d 822, 827 (7th Cir. 2004) (recognizing that once the court determines that proper discretion was granted, the review is limited to whether actions pursuant to this discretion were arbitrary and capricious). The plan language that is in effect at the time the claim arises controls whether or not a court will apply an arbitrary and capricious review standard. Thus, even if a plan under which a claimant is initially found disabled did not contain discretionary language, if benefits are subsequently terminated the court applies the language of the plan in existence at the time of the termination. Hackett v. Xerox Corp. Long-Term Dis. Income Plan, 315 F.3d 771 (7th Cir. 2003). Where the arbitrary and capricious standard is applicable, a court will not substitute its judgment for that 674

of the claim administrator, but will overturn the claim administrator’s decision only if it is “downright unreasonable.” See, e.g., Jenkins v. PriceWaterhouse Long Term Dis. Plan, 564 F.3d 856 (7th Cir. 2009); Cozzie v. Metro. Life Ins. Co., 140 F.3d 1104 (7th Cir. 1998). In Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758, 766 (7th Cir. 2010), the Seventh Circuit clarified that “downright unreasonable” “should not be understood as requiring a plaintiff to show that only a person who had lost complete touch with reality would have denied benefits. Rather, the phrase is merely a shorthand expression for a vast body of law applying the arbitraryand-capricious standard in ways that include focus on procedural regularity, substantive merit, and faithful execution of fiduciary duties.” Thus, a reviewing court will uphold the administrator’s decision as long as it has rational support in the record. Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569, 576 (7th Cir. 2006) (finding rational support in the record for a denial of disability benefits where the insurer relied on in-house medical personnel). Nonetheless, the Seventh Circuit has also explained, “deferential review is not no review,” and “deference need not be abject.” Gallo v. Amoco Corp., 102 F.3d 918, 922 (7th Cir. 1996). In some cases, the plain language or structure of the plan will require the court to pronounce an administrator’s determination arbitrary and capricious. Hess v. Hartford Life & Acc. Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001). In other cases, the Seventh Circuit has held that a decision will not be overturned under an arbitrary and capricious review standard if (1) it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome; (2) the decision is 675

based on a reasonable explanation of relevant plan documents; or (3) the claim administrator has based its decision on a consideration of the relevant factors that encompass important aspects of the problem. Militello v. Cent. States, 681, 686 (7th Cir. 2004). The arbitrary and capricious and abuse of discretion standards are viewed as synonymous. Holmstrom v. Metro. Life, 615 F.3d 758; Jenkins v. Price Waterhouse, 564 F.3d 856. C. Effect of Conflict of Interest or Procedural Irregularity The Seventh Circuit was one of the first jurisdictions to apply a sliding scale analysis to the deferential review standard under ERISA to take into account a claim administrator’s conflict of interest. See, e.g., Van Boxel v. Journal Co. Employees’ Pension Trust, 836 F.2d 1048, 1052 (7th Cir. 1987) (“the arbitrary and capricious standard may be a range, not a point”). See also Mers v. Marriott Int’l Group Accidental Death & Dismemberment Plan, 144 F.3d 1014, 1020 n.1 (7th Cir. 1998) (“The arbitrary and capricious standard does not pose an all-ornothing choice between full deference or none. Courts may vary the deference incrementally to account for the strength or weakness of a specific conflict of interest.”). In order for a court to apply less deference in the face of a conflict, the plaintiff has the burden to prove more than a potential conflict (e.g., the “inherent” conflict of an insurer that decides whether or not to pay benefits under a fully insured benefit plan). Rather, the plaintiff must prove that a conflict of interest actually affected the administrator’s decision on the plaintiff’s claim. Mers, 144 F.3d at 1020–21; Leipzig v. AIG Life Ins. Co., 362 676

F.3d 406, 408–09 (7th Cir. 2004). The Seventh Circuit has pointed out, though: When it is “possible to question the fiduciaries’ loyalty, they are obliged at a minimum to engage in an intensive and scrupulous independent investigation of their options to insure that they act in the best interests of the plan beneficiaries.” Leigh v. Engle, 727 F.2d 113, 125–26 (7th Cir. 1984). Seeking independent expert advice is evidence of a thorough investigation, and provided that the fiduciary has investigated the expert’s qualifications, has provided the expert with complete and accurate information, and determined that reliance on the expert’s advice is reasonably justified under the circumstances, the fiduciary’s decision will be respected, despite the conflict of interest. Howard v. Shay, 100 F.3d 1484, 1488 (9th Cir. 1996). Hightshue v. AIG Life Ins. Co., 135 F.3d 1144, 1148 (7th Cir. 1998). Decisions by claim administrators are not cloaked with the same level of authority as administrative agencies, but once an ERISA plan grants a claim administrator discretionary authority, the claim administrator’s motivations should not be questioned absent a prima facie showing of some misconduct or conflict of interest. Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 814 (7th Cir. 2006). Reviewing courts presume a plan and its claim administrator act neutrally unless shown otherwise. Dougherty v. Ind. Bell Tel. Co., 440 F.3d 910, 915–16 (7th Cir. 2006). Therefore, in order for a reviewing court to impose a less deferential standard than the arbitrary and 677

capricious review, the plaintiff must prove with specific evidence an actual bias on the part of the claim administrator that creates a significant conflict. Id.; see also Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569, 575 (7th Cir. 2006) (“We presume neutrality unless a claimant shows by providing specific evidence of actual bias that there is a significant conflict.”). Characterizing the inherent conflict of an insurer serving as both the payor of benefits and decision maker as ubiquitous in Reed v. Liberty Life Assur. Co., 438 F.3d 772 (7th Cir. 2006), the court dismissed allegations of a conflict. Other recent decisions rejecting conflict of interest include Kobs v. United Wis. Ins. Co., 400 F.3d 1036 (7th Cir. 2005); Shyman v. Unum Life Ins. Co., 427 F.3d 452 (7th Cir. 2005); and Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569. The Davis ruling also found nothing impermissible about utilizing in-house physicians as the sole basis for terminating benefits under a fully insured long-term disability plan. In the wake of the Supreme Court decision in Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), the Seventh Circuit has continued to apply a highly deferential review standard, taking a claim administrator’s conflict of interest into account as a factor in determining whether the decision was arbitrary and capricious. Leger v. Tribune Co. Long Term Dis. Plan, 557 F.3d 823 (7th Cir. 2009). The Seventh Circuit has expressly rejected application of a “heightened” arbitrary and capricious standard. Id. Moreover, in Marrs v. Motorola, Inc., 577 F.3d 783 (7th Cir. 2007), the court rejected the idea of deeming the conflict of interest a balancing test because 678

the notion that the likelihood the conflict influenced the decision is a more appropriate test. Thus, it is not the conflict itself but the gravity of the conflict that constitutes the more important consideration. Id. at 789. It has also held that where a decision can be upheld under a de novo review standard, the claim administrator’s conflict of interest is irrelevant. Williams. v. The Interpublic Severance Pay Plan, 523 F.3d 819 (7th Cir. 2008). However, based on Glenn, the Seventh Circuit has more recently become concerned about structural conflicts of interest. In Majeski v. Metro. Life Ins. Co., 590 F.3d 478, 482 (7th Cir. 2009), the court acknowledged that one approach would be for the conflict to be taken into consideration in all cases, “mixing it in somehow with all other relevant factors.” Other cases suggested, however, that it is the “gravity” of the conflict that matters; and that conflict is considered in relation to “the reasonableness of the procedures by which the plan administrator decided the claim, any safeguards the plan administrator has erected to minimize the conflict of interest, and the terms of employment of the plan administrator’s staff that decides benefit claims.” Marrs v. Motorola, Inc., 577 F.3d 783, 788 (7th Cir. 2009). In Holmstrom v. Metro. Life, 615 F.3d 758, without explicitly deciding how the conflict should be taken into consideration, the court identified three indications of how the conflict affected the determination of a long-term disability benefit claim: (1) a selective consideration of the evidence; (2) the insurer’s conduct regarding a Social Security disability award; and (3) a repeated “moving of the target” where the insurer kept altering its demands for evidence to prevent the insured from receiving benefits.

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Most recently, in Raybourne v. CIGNA Life Ins. Co. of N.Y., 700 F.3d 1076 (7th Cir. 2012), found the same procedural unreasonableness that was described in Glenn to have infected the claim outcome. Specifically, the insurer’s disregard of a Social Security award that was the result of the advocacy of the insurer’s vendor and an overreliance on one specific piece of evidence that was internally inconsistent demonstrated that the result was based on an insurer’s structural conflict. D. Other Factors Affecting Standard of Review In Ruiz v. Cont’l Cas. Co., 400 F.3d 986 (7th Cir. 2005), the court held that an insurance certificate is a plan document and that discretionary language in the certificate is sufficient to require an arbitrary and capricious review standard. Similarly, in Semien v. Life Ins. Co. of N. Am., 436 F.3d 805 (7th Cir. 2006), the court found discretion from its examination of a series of plan documents that made it clear to the court that the plan sponsor intended a reservation of discretion. See also Shyman v. Unum Life Ins. Co., 427 F.3d 452, 455 (7th Cir. 2005) (finding discretion-granting language in the certificate of insurance when the contract declared that the certificate is part of the policy unless it contradicts other clauses). Also, in Raybourne v. CIGNA Life Ins. Co. of N.Y., 576 F.3d 444 (7th Cir. 2009), the court found that a summary plan description along with a “claim fiduciary appointment” form granting an insurer discretionary authority was sufficient to trigger deference, finding the appointment form constituted a “plan document.” However, in Sperando v. Lorillard Tobacco Co., 460 F.3d 866 (7th Cir. 2006), the court held that discretionary 680

language appearing in the certificate but not in the master policy did not grant discretion where the certificate was not incorporated into the master policy. Similarly, in Ruttenberg v. U.S. Life Insur. Co. in the City of N.Y., 413 F.3d 652 (7th Cir. 2005), the Seventh Circuit ruled that discretionary language found in an application for insurance coverage but not in the policy itself failed to trigger discretionary review. Finally, in Schwartz v. Prudential Ins. Co. of Am., 450 F.3d 697 (7th Cir. 2006), the court ruled that discretionary language in a plan summary, but not in the plan itself, was inadequate to trigger a deferential standard of review. E. Delegation of Discretionary Authority In Aschermann v. Aetna Life Ins. Co., 689 F.3d 726 (7th Cir. 2012), the Seventh Circuit addressed the question of whether discretionary authority may be delegated. Finding that a successor claim fiduciary succeeded to the discretionary authority of its predecessor, the court avoided the question of whether an explicit written delegation is required. F. Effect of State Bans on Discretionary Clauses Although the Seventh Circuit has yet to rule on the question of whether state bans on discretionary clauses are preempted, several district court rulings have addressed the issue and unanimously ruled that the Illinois ban on discretionary clauses (50 Ill. Admin. Code § 2001.3) invalidates discretionary clauses in policies issued or

681

renewed subsequent to July 1, 2005, the regulation’s effective date. Haines v. Reliance Standard Life Ins. Co., 2010 U.S. Dist. LEXIS 104625 (N.D. Ill. Sept. 9, 2010) (holding that Illinois Department of Insurance Bulletin explaining that regulation prohibiting discretionary clauses applied both to newly issued policies as well as renewed policies); accord Ball v. Standard Ins. Co., 2011 U.S. Dist. LEXIS 19146 (N.D. Ill. Feb. 23, 2011); Difatta v. Baxter Intl., Inc., 2013 U.S. Dist. LEXIS 6360 (N.D. Ill. Jan. 15, 2013) (same). And in Curtis v. Hartford Life & Acc. Ins. Co., 2012 U.S. Dist. LEXIS 5423 (N.D. Ill. Jan. 18, 2012), the court rejected Hartford’s efforts to maintain the policy was issued to a trust in a state that lacked a discretionary clause prohibition. The court determined the coverage was still “issued” and/or “delivered” in the State of Illinois and therefore subject to that state’s prohibition against the incorporation of discretionary clauses in insurance policies. A district court also rejected a challenge to the authority of the Illinois Director of Insurance to issue such a regulation in Zuckerman v. United of Omaha Life Ins. Co., 2012 U.S. Dist. LEXIS 128204 (N.D. Ill. Sept. 6, 2012). And in Ehas v. Life Ins. Co. of North America, 2012 U.S. Dist. LEXIS 169151 (N.D. Ill. Nov. 29, 2012), a district court ruled the ban superseded discretionary language found in other plan documents since the benefit at issue was fully insured. V. Rules of Plan Interpretation A. Application of Federal Common Law

682

Principles of federal common law govern the interpretation of ERISA plan terms. See, e.g., Frye v. Thompson Steel Co., Inc., 657 F.3d 488 (7th Cir. 2011); Neuma, Inc. v. Amp, Inc., 259 F.3d 864 (7th Cir. 2001); Hammond v. Fidelity & Guar. Life Ins. Co., 965 F.2d 428 (7th Cir. 1992); Bowles v. Quantum Chem. Co., 266 F.3d 622, 633 (7th Cir. 2002) (“Because we have determined that Quantum’s severance plan is governed by ERISA, we shall construe the plan in accordance with the federal common law under ERISA and shall apply general rules of contract interpretation.”). Federal common law “direct[s] us to interpret ERISA plans in an ordinary and popular sense as would a person of average intelligence and experience.” Neuma, 259 F.3d at 873. See also Grun v. Pneumo Abex Corp., 163 F.3d 411, 419 (7th Cir. 1998). When interpreting an ERISA plan, the court’s first task is to determine whether the plan language is ambiguous or unambiguous. Kamler v. H/N Telecomm. Servs., Inc., 305 F.3d 672, 680 (7th Cir. 2002). Where plan language is unambiguous, a court will not look beyond its “four corners” in interpreting its meaning. Neuma, 259 F.3d at 873. Unambiguous provisions in ERISA plan documents must be interpreted in accordance with their plain meaning and enforced as written. Favre v. Prudential Ins. Co. of Am., 2006 WL 449204, at *4 (N.D. Ind. 2006). On the other hand, where plan language is ambiguous, a court may look to extrinsic evidence to determine its intended meaning. Anstett v. Eagle-Pitcher Indus., Inc., 203 F.3d 501 (7th Cir. 2000). Where a deferential review standard is applicable, a fiduciary’s use of interpretive tools to resolve ambiguities is entitled to deference. Frye v. Thompson Steel, 657 F.3d 488.

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B. Application of Contra Proferentem Where extrinsic evidence does not resolve the ambiguity, a court may apply the contra proferentem rule, which construes ambiguities against the drafter of the contract, under principles of federal common law. Hall v. Life Ins. Co. of N. Am., 317 F.3d 773, 776 (7th Cir. 2003). However, contra proferentem is just a tiebreaker, and it does not entitle insureds to prevail simply because lay readers do not know all technical details of the law. Id. at 776. Even if extrinsic evidence is not first considered to resolve an ambiguous term, the court can apply contra proferentem in circumstances where the plan administrator was not empowered to interpret the contract terms, the parties failed to offer extrinsic evidence, and application of the doctrine would serve its function to prevent traps for the unwary. Ruttenberg, 413 F.3d at 666. The rule does not apply where a plan grants discretion to interpret ambiguities in the plan documents. Becker v. Chrysler LLC Health Care Benefits Plan, 691 F.3d 879, 890 (7th Cir. 2012). C. Deference Afforded Interpretation of a Plan

to

an

Administrator’s

The Seventh Circuit gives “great deference” to an administrator’s interpretation of its plan, “including its interpretation of the ambiguous language in the Plan.” Dabertin v. HCR Manor Care, Inc., 373 F.3d 822, 833 (7th Cir. 2004) (applying an arbitrary and capricious standard); see also James v. Gen. Motors Corp., 230 F.3d 315, 317 (7th Cir. 2000) (stating that a benefit determination will be found arbitrary and capricious only 684

when “downright unreasonable”). When a plan gives the administrator discretion to interpret it, the court will not merely apply federal common law principles of contract interpretation, but instead will view the contractual ambiguity through a lens that gives broad discretion to the plan administrator to interpret the plan. Hess v. Reg-Ellen Mach. Tool Corp., 423 F.3d 653, 660 (7th Cir. 2005); Schultz v. Aviall, Inc. LTD Plan, 670 F.3d 834 (7th Cir. 2012). Furthermore, deference to the claim administrator’s interpretation is especially applicable where the language at issue is ambiguous. Hess, 423 F.3d at 660. However, even when applying a deferential standard of review, the court will not apply a “rubber stamp” to a fiduciary’s decision. Hackett v. Xerox Corp. Long-Term Disability Income Plan, 315 F.3d 771, 774 (7th Cir. 2003). “In some cases, … simple common sense will require the court to pronounce an administrator’s determination arbitrary and capricious.” Hess v. Hartford Life & Acc. Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001). Further, according to Call v. Ameritech Mgmt. Pension Plan, 475 F.3d 816, 822 (7th Cir. 2007), deference may be “overridden … by the lack of any reasoned basis for [the plan administrator’s] interpretation.” More recently, the Seventh Circuit has also held that an administrator’s interpretation of a plan will not be deemed suspect just because the plan’s benefit appeals committee makes the same ruling under different rationale. Dennison v. MONY Life Retirement Income Sec. Plan, 710 F.3d 741 (7th Cir. 2013) (Dennison also includes implications in ERISA discovery matters, discussed infra). D. Other Rules of Plan or Contract Interpretation 685

As do other circuits, the Seventh Circuit eliminates all reference to state common law regarding the interpretation of ERISA plans. Hammond, 965 F.2d at 428, 430 (“ambiguities in ERISA plans and insurance policies should be resolved by referring to the federal common law rules of contract interpretation”). Applying federal common law, the terms of a contract are to be interpreted “in an ordinary and popular sense as would a [person] of average intelligence and experience.” GCIU Employer Ret. Fund v. Chi. Tribune Co., 66 F.3d 862, 865 (7th Cir. 1995), citing Phillips v. Lincoln Nat’l Life Ins. Co., 978 F.2d 302, 308 (7th Cir. 1992). The Seventh Circuit will not use extrinsic evidence to add terms to a contract that is plausibly complete without them. Bidlack v. Wheelabrator Corp., 993 F.2d 603, 608 (7th Cir.). Similarly, extrinsic evidence cannot be used to rebut a motion for summary judgment unless patent or latent ambiguity can be proven. Cherry v. Auburn Gear, Inc., 441 F.3d 476, 481 (7th Cir. 2006). However, Call v. Ameritech, 475 F.3d 816, points out that unambiguous terms leave no room for interpretation regardless of discretion. Moreover, while a contract or other instrument that looks unambiguous to the uninformed reader may be shown to be ambiguous when the context of the instrument is explained, where there is no evidence of a latent ambiguity, the claim administrator’s discretionary authority will not create one. Id. at 823. The Seventh Circuit also has held that unlike ordinary contracts, ERISA plans cannot be modified orally and subsequent conduct cannot operate to amend the terms of an ERISA plan. See, e.g., Orth v. Wisconsin State 686

Employee’s Union, 546 F.3d 868 (7th Cir. 2008). In the relatively few cases in which the court has applied estoppel principles, the claim of estoppel was based on a writing that the court has deemed essential to such a claim. Id. VI. Discovery A. Limitations on Discovery In Perlman v. Swiss Bank Corp. Comprehensive Disability Protection Plan, 195 F.3d 975 (7th Cir. 1999), the Seventh Circuit criticized a district court for allowing interrogatories and depositions of an administrator’s claim personnel regarding their training, thought processes, and “in general who said what to whom” in a case involving an arbitrary and capricious review standard. The court held as follows: Deferential review of an administrative decision means review on the administrative record. We have allowed parties to take discovery and present new evidence in ERISA cases subject to de novo judicial decisions … but never where the question is whether a decision is supported by substantial evidence, or is arbitrary and capricious…. [W]hen there can be no doubt that the application was given a genuine evaluation, judicial review is limited to the evidence that was submitted in support of the application for benefits, and the mental processes of the plan’s administrator are not legitimate grounds of inquiry any more than they would be if the decisionmaker were an administrative agency.

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Id. at 981–82. However, the court said that “discovery may be appropriate to investigate a claim that the plan’s administrator did not do what it said it did—that, for example, the application was thrown in the trash rather than evaluated on the merits.” Id. In Semien v. Life Ins. Co. of N. Am., 436 F.3d 805 (7th Cir. 2006), the court reiterated Perlman’s prohibition against discovery, allowing it only if the claimant could first present credible evidence of bias or corruption in the review process. If the plaintiff can make a prima facie showing of misconduct or bias, or proves a good-faith basis that such evidence will materialize following limited discovery, then impartiality and a genuine review may be questioned and district courts may allow limited discovery. Id. at 813–14. However, more recently and according to the Seventh Circuit, Semien’s rule has been at least “softened.” See Dennison, 710 F.3d at 747 (noting the case law on this point is “in flux”—thus the Court declined to “trace the contours of permissible discovery” under ERISA, stating only that the trial court retains broad discretion to manage discovery). In Dennison, the Court merely held that a thin suspicion of conflict of interest of an ERISA review panel was not enough to warrant further discovery. Id. (identifying the conflict of interest is a “prerequisite” of further discovery, and not its “goal”). In Burns v. Am. United Life Ins. Co., 2006 U.S. Dist. LEXIS 2006 (S.D. Ill. April 17, 2006), discovery was permitted when the de novo standard of review applied. See also Marantz v. Permanent Medical Group Inc. Long Term Dis. Plan, 2006 U.S. Dist. LEXIS 87258 (N.D. Ill. 2006); Patton v. MFS/Sun Life Fin. Distributors, Inc., 480 F.3d 478 (7th Cir. 2007) (discovery allowed to clarify 688

discrepancy in the evidence) (on remand, judgment for insurer following bench trial—Patton v. MSF/Sun Life Fin. Distributors, 2008 U.S. Dist. LEXIS 6246 (S.D. Ind. 2008)). See also Krolnik v. The Prudential Ins. Co. of Am., 570 F.3d 841 (7th Cir. 2009). Following Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, it is unclear whether the Seventh Circuit’s current rules regarding limited discovery under the arbitrary and capricious standard will be changed. However, Gessling v. Group Long Term Dis. Plan for Employees of Sprint/ United Mgmt. Co., 2008 U.S. Dist. LEXIS 96623 (S.D. Ind. 2008), ruled that Semien was superseded by Glenn and allowed limited discovery. Further, the Seventh Circuit has recently held that discovery need not be permitted where the terms of the plan documents at issue in an ERISA dispute are unambiguous. Central States, S.E. and S.W. Areas Pension Fund v. Waste Mgmt. of Mich., Inc., 674 F.3d 630, 636 (7th Cir. 2012). B. Discovery and Conflict of Interest At least two district courts in the Seventh Circuit have allowed limited discovery regarding a decision maker’s conflict of interest. Robbins v. Milliman U.S. Long Term Disability Ins. Plan, 2003 U.S. Dist. LEXIS 17138, at *20 (S.D. Ind. 2003) (“[b]ecause the Seventh Circuit recognizes that the potential conflict or bias of an actual decision maker is a relevant factor to be weighed in evaluating whether the denial of benefits was arbitrary and capricious, under Rule 26(b) information regarding such a potential conflict or bias is discoverable”); Fowler v. Williams Cos., 2005 U.S. Dist. LEXIS 5025, at *6–7 689

(W.D. Wis. 2005) (allowing limited discovery into the funding of benefits and the manner in which the compensation and promotion opportunities of benefits staff were determined). However, in Semien v. Life Ins. Co. of N. Am., 436 F.3d 805 (7th Cir. 2006), the court disallowed discovery even as to bias. But see Gessling, 2008 U.S. Dist. LEXIS 96623. As discussed, supra, the Seventh Circuit has upheld denial of discovery where conflict of interest is not shown as a prerequisite. See Dennison, 710 F.3d 741. VII. Evidence A. Scope of Evidence under Standards of Review Where an arbitrary and capricious review standard is applicable, a court’s review is limited to the evidence that was before the claim administrator at the time of its final decision, and the court acts in the capacity of a reviewing court. See, e.g., Semien v. Life Ins. Co. of N. Am., 436 F.3d 805 (7th Cir. 2006); Militello v. Cent. States, 360 F.3d at 686; Perlman v. Swiss Bank Corp. Comprehensive Dis. Prot. Plan, 195 F.3d 975 (7th Cir. 1999); Casey v. Uddeholm Corp., 32 F.3d 1094, 1098–99 & n.4 (7th Cir. 1994). Under the arbitrary and capricious standard of review, the court does not decide whether the decision maker reached the correct conclusion or whether it relied on proper authority; the only relevant inquiry is whether the decision was reasonable. Kobs v. United Wis. Ins. Co., 400 F.3d 1036, 1039 (7th Cir. 2005). A claim that the terms of a plan violate ERISA is a legal issue subject to de novo review. Silvernail v. 690

Ameritech Pension Plan, 439 F.3d 355, 357 (7th Cir. 2006). Additionally, where the de novo review standard is applicable because no discretion has been granted to the claim administrator, a court has discretion to limit its review to the administrative record or, alternatively, to admit additional evidence where such evidence is necessary for the court to conduct an adequate review of the claim administrator’s decision. Casey v. Uddeholm Corp., 32 F.3d 1094, 1098–99 & n.4 (7th Cir. 1994). See also Wilczynski v. Kemper Nat’l Ins. Cos., 178 F.3d 933, 938 n.14 (7th Cir. 1999). In Perlman, 195 F.3d 975, the Seventh Circuit acknowledged a willingness to allow parties additional discovery and present new evidence in ERISA cases subject to de novo review, but stated it has “never [done so] where the question is whether a decision is supported by substantial evidence, or is arbitrary and capricious.” Id. at 982. Although “discovery may be appropriate to investigate a claim [regardless of the standard of review] that the plan administrator did not do what it said it did … when there can be no doubt that the application was given a genuine evaluation, judicial review is limited to the evidence that was submitted in support of the application for benefits, and the mental processes of the plan’s administrator are not legitimate grounds of inquiry….” Id. Thus, even in a case governed by an arbitrary and capricious review standard, there may be room in an appropriate case for a court to consider additional evidence to resolve a dispute over the makeup of the administrative record. Cf. Militello v. Cent. States, 360 F.3d at 686–88. In administrative proceedings, a claim administrator is not bound by formal evidentiary rules in 691

determining whether or not to admit specific evidence. See, e.g., Karr v. Nat’l Asbestos Workers Pension Fund, 150 F.3d 812 (7th Cir. 1998). Moreover, when a court is reviewing the administrative record, the Federal Rules of Evidence do not apply and a court is required to consider the entire record, including hearsay evidence. Black v. Long Term Dis. Ins., 2009 U.S. App. LEXIS 20762 (7th Cir. 2009). The exact amount of evidence outside of the administrative record to be admitted in a de novo case is unclear. In Patton v. MSF/Sun Life Fin. Distribs., 2008 U.S. Dist. LEXIS 6246 (S.D. Ind. 2008), the Seventh Circuit remanded a case to the district court for additional discovery and trial to resolve contested evidence in the administrative record. On remand, the matter was tried to the bench, with testimony from expert witnesses and the plaintiff, resulting in a judgment in favor of the defendant. In Krolnik v. Prudential Ins. Co., 570 F.3d 841 (7th Cir. 2009), the court ruled that under the de novo standard the court is not conducting a review proceeding and will treat the case in the same manner as any other suits for breach of contract allowing discovery and trial procedures, including the cross-examination of witnesses. The court held that testimony from treating physicians and crossexamination of reviewing physicians was permissible. However, in a subsequent case, Estate of Blanco v. Prudential Ins. Co. of Am., 606 F.3d 399 (7th Cir. 2010), the Seventh Circuit held that a district court properly excluded affidavits from the plaintiff and the plaintiff’s treating physicians and reaffirmed that evidence outside of the administrative record is admissible in a de novo case only where it is necessary for the district court to 692

make an informed and independent judgment. See also Casey v. Uddeholm, 32 F.3d 1094. B. Evidentiary Determinations

Value

of

Social

Security

Determinations and decisions made by the Social Security Administration and other plan administrators are instructive but are not binding in ERISA disability actions. See, e.g., Tegtmeier v. Midwest Operating Eng’rs, 390 F.3d 1040 (7th Cir. 2004); Anderson v. Operative Plasterers’ & Cement Masons’ Int’l. Assoc., 991 F.2d 356 (7th Cir. 1993). In Diaz v. Prudential Ins. Co., of Am., 499 F.3d 640 (7th Cir. 2007), the court explained that Social Security disability decisions ought to be taken into consideration, but in Jenkins v. PriceWaterhouse Long Term Dis. Plan, 564 F.3d 856 (7th Cir. 2009), the court stressed that private disability determinations and Social Security determinations must be analyzed separately because the Social Security Administration uses various shortcuts that private insurers do not use. The Seventh Circuit has also discussed the possibility of applying judicial estoppel principles where a disability plan actively pursues a claimant’s Social Security claim. See, e.g., Ladd v. ITT Corp., 148 F.3d 753, 755–56 (7th Cir. 1998). Most recently, in the wake of Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, the Seventh Circuit explained in Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758, 766 (7th Cir. 2010), that the Social Security determination was relevant where the insurer insisted that the claimant apply for Social Security disability benefits, where the insurer would benefit financially from the coordination of benefits between private long-term disability insurance 693

and Social Security, and where the definition of disability was nearly identical. An insurer’s failure to articulate a basis for disagreeing with the Social Security finding can be a factor in determining whether an insurer’s conflict influenced the benefits determination. Moreover, in Raybourne v. CIGNA Life Ins. Co. of N.Y., 700 F.3d 1076 (7th Cir. 2012), the Seventh Circuit ruled that insurers cannot disregard Social Security awards and have a burden of explaining why a different result was reached. The court summarily rejected an insurer’s stated reasons for not crediting a Social Security finding that it assisted in obtaining through the use of a vendor it retained to advocate on behalf of the insured. C. IME versus Paper Review Historically, the Seventh Circuit has been very lenient in accepting file reviews as substantial evidence, even if the file reviewer was an employee of the insurance company. Davis v. Unum Life Ins. Co., 444 F.3d 569 (7th Cir. 2006). However, in Holmstrom, 615 F.3d 758, and Love v. Nat’l City Corp. Welfare Benefits Plan, 574 F.3d 392 (7th Cir. 2009), the court expressed some skepticism as to the validity of reviewing doctors’ findings where the evidence from the examining doctors was overwhelming and the reviewing doctors selectively criticized those findings without offering a reasoned explanation for their disagreement. In an earlier ruling, Hawkins v. First Union Corp., 326 F.3d 914 (7th Cir. 2003), the Seventh Circuit refused to give deference to treating physicians; however, the court noted that the superior knowledge possessed by a treating doctor who has an extensive treatment 694

relationship with the patient may trump a consulting doctor’s opinion, especially if the consultant had failed to examine the claimant. On the other hand, the Seventh Circuit has also commented that treating doctors can sometimes act more as advocates than as doctors rendering objective opinions: “most of the time, physicians accept at face value what patients tell them about their symptoms; but [claim administrators] must consider the possibility that applicants are exaggerating in an effort to win benefits (or are sincere hypochondriacs not at serious medical risk).” Leipzig v. AIG Life Ins. Co., 362 F.3d 406, 409 (7th Cir. 2004); Davis v. Unum, 444 F.3d at 578. D. Objective Evidence Requirement In the absence of an objective medical evidence requirement, the Seventh Circuit has refused to impose upon claimants the burden of coming forth with objective evidence in support of their condition. In Diaz v. Prudential Ins. Co., of Am., 499 F.3d 640 (7th Cir. 2007), the court ruled that the insurer could not insist on objective proof of pain, particularly since the policy contained a provision offering limited benefits for “selfreported” conditions. The court also relied on Social Security caselaw for the proposition that an extensive history of seeking treatment for severe pain supports the legitimacy of such symptoms. However, even where an insurer may not insist on objective proof of a particular diagnosis, objective proof of functional limitations has been required. See Williams v. Aetna Life Ins. Co., 509 F.3d 317 (7th Cir. 2007). A detailed functional capacity evaluation was held to meet such a requirement in several 695

cases, including Holmstrom v. Metro. Life, 615 F.3d 758, Majeski v. Metro. Life Ins. Co., 590 F.3d 478 (7th Cir. 2009), Love v. Nat’l City, 574 F.3d 392, and Leger v. Tribune Co. Long Term Dis. Plan, 557 F.3d 823 (7th Cir. 2009). In Weitzenkamp v. Unum Life Ins. Co. of Am., 661 F.3d 323 (7th Cir. 2011), the Seventh Circuit refused to permit an insurer to impose its “self-reported illness” limitation on a claimant suffering from fibromyalgia on the ground that the symptoms were clinically validated. The court further remarked that “the only viable conclusion is that the self-reported symptoms limitation applies to disabling illnesses or injuries that are diagnosed primarily based on self-reported symptoms rather than to all illnesses or injuries for which the disabling symptoms are selfreported.” Id. at 330 (emphasis in original). However, in Williams v. Aetna Life Ins. Co., 509 F.3d 317, the court ruled that while objective proof of a diagnosis is not required, a claimant is nonetheless required to offer objective proof of functional limitations. VIII. Procedural Aspects of ERISA Practice A. Proper Defendants The Seventh Circuit is one of several circuits to hold that the plan is a proper defendant in an ERISA suit for benefits. See, e.g., Neuma, Inc. v. AMP, Inc., 259 F.3d 864 (7th Cir. 2001); Garratt v. Knowles, 245 F.3d 941 (7th Cir. 2001). However, the court has also held that in some cases it is also proper to sue the employer where the employer is the plan administrator and the plan and the employer are intertwined and/or where the plan has never 696

been identified as a distinct entity. See, e.g., Leister v. Dovetail, Inc., 546 F.3d 875 (7th Cir. 2008); Mein v. Carus Corp., 241 F.3d 581 (7th Cir. 2001). An employer can also be named as a defendant where the employer is a fiduciary and the claim is for equitable relief under section 502(a)(3). Neuma, 259 F.3d 864. A nonfiduciary is not a proper defendant in an action for ERISA benefits. Rud v. Liberty Life Assur. Co. of Boston, 438 F.3d 772 (7th Cir. 2006). B. Methods of Adjudication Most ERISA benefit disputes in the Seventh Circuit have been decided by summary judgment. However, more recently, there has been less consistency. Some district judges in the Southern District of Indiana prefer “paper bench trials” (i.e., where the parties submit the administrative record, plan documents, and written argument). One district in the Seventh Circuit highly recommends adjudication through trial on the papers, contending that such a method eliminates problems of nondecision, unnecessary litigation, additional costs, and unnecessary delay. See Crespo v. Unum Life Ins. Co. of Am., 294 F. Supp. 2d 980, 991–92 (N.D. Ill. 2003) (finding trial on the papers beneficial because it is certain to result in a decision for one party rather than present the risk of a nondecision, it does not require a remand for a new trial if reversed on appeal, and it does not require complex mental gymnastics such as drawing particular inferences in favor of one party). Nonetheless, in Coles v. LaSalle Partners Inc. Disability Plan, 287 F. Supp. 2d 896 (N.D. Ill. 2003), the court refused to conduct a paper trial absent the parties’ stipulation, and the court denied 697

cross-motions for summary judgment, finding that a genuine issue of material fact precluded the entry of either motion for summary judgment. Id. Likewise, in Patton v. MSF/Sun Life, 2008 U.S. Dist. LEXIS 6246, and Diaz v. Prudential, 499 F.3d 640, the court held that summary judgment cannot be used to resolve factual disputes in cases applying a de novo review standard. C. Reported ERISA Trials Because ERISA has been described as a law that provides only equitable remedies, the Seventh Circuit, along with every other circuit to have addressed the issue, has held that there is no right to a jury trial. Mathews v. Sears Pension Plan, 144 F.3d 461, 468 (7th Cir. 1998). Hess v. Hartford Life & Acc. Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001), supported the resolution of ERISA cases by a trial on the papers. Such a procedure was also followed in LaBarge v. Life Ins. Co. of N. Am., 2001 WL 109527 (N.D. Ill. 2001), and in Deal v. Prudential Ins. Co. of Am., 263 F. Supp. 2d 1138 (N.D. Ill. 2003). Moreover, in Crespo v. Unum Life Ins. Co. of Am., 294 F. Supp. 2d 980 (N.D. Ill. 2003), the court recommended a trial on the papers due to the unsuitability of summary judgment as a means of resolving ERISA benefit disputes. D. Jury Trials Jury trials are not permissible under ERISA. See, e.g., McDougall v. Pioneer Ranch Ltd. Partnership, 494 F.3d 571 (7th Cir. 2007) (ERISA’s antecedents are equitable, not legal).

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IX. Remedies The Seventh Circuit has held that remedies under section 502(a) are discrete, non-redundant, and non-fungible. Ponsetti v. GE Pension Plan, 614 F.3d 684 (7th Cir. 2010). The remedy for wrongfully withheld benefits is an award of benefits due under the terms of the ERISA plan. See, e.g., Ponsetti, 614 F.3d 684; Senese v. Chicago Area Int’l. Brotherhood of Teamsters Pension Plan, 237 F.3d 819 (7th Cir. 2001). Where a benefit determination is overturned due to procedural errors, the typical remedy is to remand for further review. See, e.g., Majeski, 590 F.3d 478; Love, 574 F.3d 392. However, an award of benefits may be appropriate in the context of a procedural error where the case is so clear cut that it would be unreasonable for the administrator to deny benefits on any ground. See, e.g., Love, 574 F.3d 392; Hess v. Hartford Life & Acc. Ins. Co., 274 F.3d 456 (7th Cir. 2001). Furthermore, a court may be more likely to award withheld benefits where the determination involves a termination of ongoing benefits rather than an initial denial of benefits, so as to restore the status quo pending correction of the procedural deficiencies. See, e.g., Holmstrom, 615 F.3d 758; Hackett v. Xerox Corp. Long Term Dis. Plan, 315 F.3d 771 (7th Cir. 2003). A court cannot award benefits where the definition to entitlement to benefits has changed since the claim administrator made its final determination. Holmstrom v. MetLife, 615 F.3d 758. In the context of equitable relief claims under section 502(a)(3), the Seventh Circuit has held that disgorgement of profits claims are limited to cases where a fiduciary 699

breaches its obligations and thereby makes a profit through the use of plan assets and that there is no remedy if there is no misuse of plan assets or if no losses are incurred. W.S.O.L. v. Fiduciary Mgmt. Assoc., Inc., 266 F.3d 654 (7th Cir. 2001). Moreover, while restitution is a proper remedy under ERISA, a mistake in payment does not provide for an automatic right of restitution. Operating Eng. Local 139 v. Gustafson Construction, Inc., 258 F.3d 645 (7th Cir. 2001) (employer can sue for restitution of overpayments made to a pension fund). At the time this chapter was being revised, there was a case pending for en banc decision at the Seventh Circuit that will likely impact the court’s interpretation and application of the Supreme Court decision in Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011). See Killian v. Concert Health Plan, 680 F.3d 749 (7th Cir. 2012), vacated and rhg. en banc granted (2012). X. Fiduciary Liability Claims A. Definition of Fiduciary The term “fiduciary” is defined by the ERISA statute. 29 U.S.C. § 1002(21)(A). Fiduciary status under ERISA is to be liberally construed in a way consistent with ERISA’s policies and objectives. According to Ruiz v. Cont’l Cas. Co., 400 F.3d 986, 990 (7th Cir. 2005), The measure of whether a person is a fiduciary is not whether that person is formally designated as such. Instead, a fiduciary should be viewed “in functional 700

terms of control and authority over the plan.” … A court should thus look to whether a proposed fiduciary exercises control or authority over a particular benefit in an ERISA plan. Applying the statutory definition, the Seventh Circuit has held that discretionary authority with respect to the administration of a plan is a sine qua non of fiduciary status under ERISA. See, e.g., Pohl v. Nat’l Benefits Consultants, Inc., 956 F.2d 126, 128 (7th Cir. 1991). Management or control of plan assets also results in fiduciary status. See, e.g., Peoria Union Stock Yards Co. Ret. Plan v. Penn Mut. Life Ins. Co., 698 F.2d 320, 327 (7th Cir. 1983). A health plan third-party administrator that has no authority to make final claims decisions is not a fiduciary. See, e.g., Klosterman v. Western Gen. Mgmt., Inc., 32 F.3d 1119, 1123 (7th Cir. 1994). Other service providers such as investment advisors also may not be fiduciaries absent discretionary authority over the plan or control of plan assets. Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009). However, there is no per se rule that prevents professionals who give advice to an ERISA plan from becoming fiduciaries. Pappas v. Buck Consultants, Inc., 923 F.2d 531, 538 (7th Cir. 1991). Whether a consultant has exercised the degree of influence over a plan to constitute a fiduciary is a fact-sensitive analysis. Id. Finally, the court held in Wallace v. Reliance Standard Life Ins. Co., 318 F.3d 723 (7th Cir. 2003), that a disability insurer is not necessarily a fiduciary under ERISA where it has not been granted discretion to make benefit eligibility determinations. Some contend that the latter holding may be altered by Aetna Health v. Davila, 542 U.S. 200 (2004). 701

B. Definition of Fiduciary Duties Fiduciaries have a duty not to mislead plan participants or misrepresent the terms or administration of a plan. Schmidt v. Sheet Metal Workers’ Nat’l Pension Fund, 128 F.3d 541, 546 (7th Cir. 1997); Anweiler v. Am. Elec. Power Serv. Corp., 3 F.3d 986, 991 (7th Cir. 1993); Peoria Union Stock Yards Co. Ret. Plan v. Penn Mut. Life Ins. Co., 698 F.2d 320, 326 (7th Cir. 1983) (lying is inconsistent with the duty of loyalty owed by all fiduciaries). A fiduciary also has a duty to administer a plan in accordance with its terms. See, e.g., Swaback v. Am. Info. Techs. Corp., 103 F.3d 535 (7th Cir. 1996). However, a fiduciary can wear two hats, and when a fiduciary is not performing an ERISAregulated discretionary function, its actions are not subject to ERISA’s fiduciary provisions. For example, where an employer amends or terminates a benefit plan, the employer is not acting in a fiduciary capacity and decisions to amend or terminate the plan are not regulated by ERISA’s fiduciary requirements. See, e.g., Baker v. Kingsley, 387 F.3d 649 (7th Cir. 2004); Ames v. Am. Nat’l Can Co., 170 F.3d 751 (7th Cir. 1999). C. Fiduciary Liability in the Context of Health and Disability Claims A person who is not a fiduciary cannot be held liable for a breach of fiduciary duties under ERISA. See, e.g., Tegtmeier v. Midwest Operating Eng’rs, 390 F.3d 1040, 1047 (7th Cir. 2004). A person is a fiduciary only when performing discretionary functions. See, e.g., Beach v. Commonwealth Edison Co., 382 F.3d 656, 658 (7th Cir. 702

2004). Where a plaintiff claims that a plan was amended to deprive him of health benefits, such a claim is not cognizable under ERISA because amendment of a health plan is not regulated by ERISA’s fiduciary duty provision. Dade v. Sherwin-Williams Co., 128 F.3d 1135 (7th Cir. 1997). A disability insurer that processes claims and provides benefits under an employer-sponsored plan may be a fiduciary. See, e.g., Ruiz v. Cont’l Cas. Co., 400 F.3d 986 (7th Cir. 2005). The law in this area is currently under review as the Seventh Circuit reheard en banc the case of Killian v. Concert Health Plan, 680 F.3d 749 (7th Cir. 2012), involving alleged representations of health plan coverage. A decision is anticipated in 2013. D. Remedies for Breach of Fiduciary Duty Remedies for violation of ERISA’s fiduciary duty provision are limited to the remedies available under ERISA’s civil enforcement section, 29 U.S.C. § 1132(a). For example, although a participant or beneficiary can bring a cause of action for breach of fiduciary duties under § 1132(a)(3), remedies under that subsection are limited to injunctive and/or equitable remedies. Damages, whether compensatory or punitive, are not available. See, e.g., Mondry v. Am. Family Mut. Ins. Co., 557 F.3d 781 (7th Cir. 2009) (equitable relief may include restitution for the lost value of money spent to pay medical expenses where health plan delayed payment of benefits); Orth v. Wisconsin State Employees Union, 546 F.3d 868 (7th Cir. 2008); Harsch v. Eisenberg, 956 F.3d 651 (7th Cir. 1992); but see Clair v. Harris Trust & Savings Bank, 190 F.3d 703

495, 498 (7th Cir. 1999) (recognizing that equity sometimes awards monetary relief and restitution can take the form of an equitable remedy, therefore an award of unpaid benefits is permissible under ERISA). The remedy for a plaintiff who has sued to overturn a denial of benefits under an ERISA plan should focus on what is required in each case to fully remedy defects in the claim review process given the status quo prior to the denial or termination of benefits. Schneider v. Sentry Group Long Term Dis. Plan, 422 F.3d 621, 629 (7th Cir. 2005). Reinstatement of long-term disability benefits is appropriate to claimants who were receiving benefits and who, but for the decision maker’s arbitrary and capricious conduct, would have continued to receive benefits, or where there is no evidence in the record to support a termination or denial of benefits. Id.; Quinn v. Blue Cross & Blue Shield Assoc., 161 F.3d 472, 477 (7th Cir. 1998). However, where a claim administrator fails to make proper findings or reasoning, the proper remedy is to remand for further findings or explanations, unless it is clear that it would be unreasonable for the claim administrator to deny the application for benefits on any ground. Leger v. Tribune Co. Long Term Dis. Plan, 557 F.3d 823 (7th Cir. 2009); Tate v. Long Term Dis. Plan for Salaried Employees of Champion Int’l. Corp., 545 F.3d 555 (7th Cir. 2008); Quinn, 161 F.3d at 477. E. Contribution and Indemnity Claims among Fiduciaries Older cases may suggest the possibility of contribution and indemnification claims among cofiduciaries under ERISA. Alton Mem’l v. Metro. Life Ins. Co., 656 F.2d 704

245, 250 (7th Cir. 1981); Free v. Briody, 732 F.2d 1331, 1337 (7th Cir. 1984). More recent cases, however, note that the status of contribution among cofiduciaries is “still unsettled” at the circuit level. Summers v. State Street Bank & Trust Co., 453 F.3d 404 (7th Cir. 2007); Lumpkin v. Envirodyne Indus., 933 F.2d 449, 464 n.10 (7th Cir. 1991); see also Donovan v. Robbins, 752 F.2d 1170, 1178 (7th Cir. 1985) (following Alton and Free without deciding the issue). Some district courts have rejected the principle, finding no statutory basis for contribution among fiduciaries. See, e.g., Mut. Life Ins. Co. v. Yampol, 706 F. Supp. 596, 600 (N.D. Ill. 1989); Plumbers Local 93 Health & Welfare & Pension Fund, Journeymen Training Fund & Apprenticeship Training Fund v. Dipietro Plumbing Co., 1999 U.S. Dist. LEXIS 6913, at *13–15 (N.D. Ill. 1999); BP Corp. N. Am. Inc. Savings Plan Inv. Oversight Cmte. v. Northern Trust Investments NA, 692 F. Supp. 2d 890 (N.D. Ill. 2010). One district court has relied on traditional trust law principles to uphold a right to contribution. Daniels v. Bursey, 329 F. Supp. 2d 975, 979 (N.D. Ill. 2004). F. ERISA Claims against Nonfiduciaries The Seventh Circuit follows Harris Trust & Savings Bank v. Salomon Smith-Barney Inc., 530 U.S. 238 (2000), which reversed a Seventh Circuit decision and held that ERISA authorizes a cause of action for restitution from nonfiduciary parties in interest who engage in prohibited transactions under 29 U.S.C. § 1106(a). Sprague v. Cent. States, Se. & Sw. Areas Pension Fund, 269 F.3d 811, 817–18 (7th Cir. 2001) (finding no liability for a nonfiduciary employer where the employer was not 705

obligated to contribute to an ERISA plan). According to one district court, in order to successfully plead a claim against a nonfiduciary under 29 U.S.C. § 1132(a)(3), a plaintiff must prove that a fiduciary violated a substantive provision of ERISA and that the nonfiduciary knowingly participated in the conduct that constituted the violation. Daniels v. Bursey, 313 F. Supp. 2d 790, 807–08 (N.D. Ill. 2004). Once a participant or beneficiary establishes that a particular transaction is prohibited under § 1106, the plaintiff can seek injunctive and/or equitable relief for the violation under § 1132(a)(3) against parties in interest. Keach v. U.S. Trust Co., N.A., 244 F. Supp. 2d 968, 975 (C.D. Ill. 2003), aff’d, 419 F.3d 626 (7th Cir. 2005) (finding no breach of fiduciary duty). XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees In Huss v. IBM Medical & Dental Plan, 418 F. App’x 498 (7th Cir. Apr. 13, 2011) (non-precedential), the Seventh Circuit issued its first ruling on attorneys’ fees following the Supreme Court’s decision in Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149 (2010). While the Seventh Circuit acknowledged that Hardt overturned its prior precedents automatically precluding awards of fees in cases where claims are remanded to the claim administrator and allowing fees where a claimant shows “some degree of success on the merits,” the court adhered to its prior use of a “substantially justified” test as well as a five-factor test in determining whether attorneys’ fees should be shifted to the opposing party under ERISA. 706

Under the five-factor test, a district court evaluates the merits of a fee request based on consideration of the following: (1) the degree of the opposing party’s culpability or “bad faith,” (2) the ability of the opposing party to satisfy a fee award, (3) the degree that an award would deter other persons acting under similar circumstances, (4) the amount of benefits conferred on all plan members, and (5) the relative merits of the parties’ positions. Fritcher v. Health Care Serv. Corp., 301 F.3d 811, 819 (7th Cir. 2002) (citing Quinn v. Blue Cross & Blue Shield Ass’n, 161 F.3d 472, 478 (7th Cir. 1998)). The court applies the five-factor test in implementing, rather than contradicting, the “substantially justified test.” Lowe v. McGraw-Hill Cos., Inc., 361 F.3d 335, 339 (7th Cir. 2004). Under the “substantially justified” test, the district court determines whether the opposing party’s position was substantially justified or taken in bad faith. Id. If the losing party’s position was taken in good faith and between the realm of nonfrivolous and meritorious, an award of attorneys’ fees will be denied to the successful party. Herman v. Cent. States, Se. & Sw. Areas Pension Fund, 423 F.3d 684, 695 (7th Cir. 2005). Both tests essentially posit the same inquiry: Was the losing party’s position justified in good faith, or was that party simply out to harass its opponent? Id. (quoting Quinn v. Blue Cross, 161 F.3d at 478). An award of fees is discretionary with the district court and is reviewable only for abuse of discretion. See, e.g., Helfrich v. Carle Clinic Ass’n, P.C., 328 F.3d 915, 919 (7th Cir. 2003). However, when a district court denies attorneys’ fees on the basis of interpreting and applying a principle of law, the reviewing court will employ the de novo standard. See Moriarty v. Svec, 429 F.3d 710, 717 (7th Cir. 2005) (citing Jaffee v. 707

Redmond, 142 F.3d 409, 412–13 (7th Cir. 1998)). When fees are properly awarded in the district court under the authority of a fee-shifting statute, they are automatically awarded on appeal where the underlying judgment is affirmed. Id. The Seventh Circuit recognizes a modest presumption in favor of attorneys’ fees awards for prevailing plaintiffs. Fritcher v. Health Care Serv. Corp., 301 F.3d 811 (7th Cir. 2002); Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 592 (7th Cir. 2000). After Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149 (2010), courts within the Seventh Circuit have begun to question the prior standards for awards of fees. However, in Raybourne v. CIGNA Life Ins. Co. of N.Y., 700 F.3d 1076 (7th Cir. 2012), the Seventh Circuit retained a requirement that lower courts continue to review fee applications under a “substantially justified” test as well as a five-factor test in determining whether attorneys’ fees should be shifted to the opposing party under ERISA’s fee-shifting provision. Raybourne also established that, in an appropriate case, fees may be due for all aspects of the case where the party achieves a complete victory. The court rejected an argument that he was due fees only for the final stage of the litigation where victory was achieved, remarking, “It is true that Raybourne lost a few skirmishes along the way, but in the end, his victory was complete. As the court noted, Raybourne had one claim and one theory throughout the litigation. He sought to reverse the company’s determination that he was no longer eligible 708

for long-term disability benefits and he achieved that goal in its entirety. We see no abuse of discretion in the court’s decision to award him fees for the entirety of the litigation.” Id. at 1091. B. Fees Awarded to Plan Fiduciaries Fee awards to prevailing defendants are generally unavailable in the absence of frivolousness or claims pursued in bad faith. Harris Trust & Savings Bank v. Provident Life & Acc. Ins. Co., 57 F.3d 608, 617 (7th Cir. 1995); Senese v. Chi. Area Int’l Bhd. of Teamsters Pension Fund, 237 F.3d 819, 826 (7th Cir. 2001). In Kolbe & Kolbe Health & Welfare Benefit Plan v. Med. College of Wis., Inc., 657 F.3d 496, 506–07 (7th Cir. 2011), the Seventh Circuit revisited the issue of awards of fees to prevailing defendants following Hardt. While the plaintiffs were unsuccessful on the merits, the court found that their litigation position was substantially justified and “taken in good faith without the purpose of harassing defendants.” The court reversed a fee award to a prevailing defendant. C. Calculation of Attorneys’ Fees The Seventh Circuit applies a lodestar formula in determining the amount of fees to be awarded, based on a calculation of the reasonable number of hours multiplied by a reasonable hourly rate for the work performed. Stark v. PPM Am., Inc., 354 F.3d 666, 674 (7th Cir. 2004). One important factor in determining the reasonableness of a fee award is the degree of success obtained in relation to the other goals of the lawsuit. Linda v. Rice Lake Area 709

School Dist., 417 F.3d 704, 708 (7th Cir. 2005). Although the district court is entitled to wide discretion and substantial deference upon review, it must demonstrate that it has considered the proportionality of the fee award to the total damages award (including settlement offers), and it must provide an explanation of the hourly rate used. Moriarty, 429 F.3d at 717. Fees are not awarded for work that is excessive, redundant, or unnecessary. Id. A district court can also reduce fees for time spent litigating claims on which the party seeking fees did not succeed to the extent those claims are distinct from the claims on which the party did succeed. Id. Where a defendant is entitled to fees, the defendant can recover the amount of fees incurred in producing a defense to the plaintiff’s allegations. Helfrich, 328 F.3d at 919. XII. ERISA Regulations In Schneider v. Sentry Group Long Term Disability Plan, 422 F.3d 621 (7th Cir. 2005), the Seventh Circuit reiterated its holding in Halpin v. W.W. Grainger, Inc., 962 F.2d 685 (7th Cir. 1992), that the Department of Labor’s ERISA claim regulations (29 C.F.R. § 2560.503-1) are mandatory. See also Miller v. Ameritech Long Term Disability Plan, 584 F. Supp. 2d 1106 (C.D. Ill. 2008) (holding that ERISA requires that specific reasons for denial of benefits be communicated to a claimant, and that a claimant be afforded opportunity for full and fair review by the claim administrator). Thus, the plan’s failure to substantially comply with proper procedures for terminating benefits necessitated restoration of the status quo ante reinstatement of longterm disability benefits until proper procedures could be 710

implemented. The primary procedural violation in Schneider was the claim administrator’s failure to draft a proper denial letter. Similarly, in Halpin the issue was whether a claim administrator “substantially complied” with DOL claim procedure regulations in terminating the claimant’s long-term disability benefits. The court held that the regulations require articulation of the reasons for the denial and that a full and fair review requires that claimants be given an opportunity to examine the evidence on which the decision was based. Because of the claim administrator’s failure to substantially comply with the claim regulations, the Seventh Circuit vacated the claim administrator’s decision, ordered the reinstatement of disability benefits, and remanded the matter to the claim administrator for further review in accordance with the regulations. Having said that, the “substantial compliance” doctrine implies that the rules are not absolutes, so do not require a claim administrator to identify each and every piece of evidence that it relied on in denying benefits. Marantz v. Permanente Med. Group, Inc. Long Term Dis. Plan, 687 F.3d 320 (7th Cir. 2012). Likewise, a mistaken reference to a 60-day appeal period (as opposed to the required minimum 180-day appeal period) was irrelevant where the claimant never sought any review of the denial decision. Schorsch v. Reliance Std. Life Ins. Co., 693 F.3d 734 (7th Cir. 2012). XIII. Cases Interpreting ERISA Statutes of Limitation Because ERISA itself does not contain a statute of limitations for benefit claims, a reviewing court must 711

apply the most analogous state statute of limitations. See, e.g., Daill v. Sheet Metal Workers’ Local 73, 100 F.3d 62, 65 (7th Cir. 1996); Webb v. Gardner, Carton & Douglas LLP LTD Plan, 2012 WL 5195966 (N.D. Ill. 2012). In Daill, the Seventh Circuit held that the most analogous state statute of limitations in an ERISA benefit claim under 29 U.S.C. § 1132(a)(1)(B) was Illinois’ ten-year limitations period for suits pertaining to written contracts. See also Leister v. Dovetail, Inc., 546 F.3d 875 (7th Cir. 2008). The Daill court also held that federal common law governs the accrual date and that the action accrued in a suit for pension benefits when the claim was denied. 100 F.3d at 65. See also Jenkins v. Local 705, Int’l Bhd. of Teamsters Pension Plan, 713 F.2d 247, 254 (7th Cir. 1983). In Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869 (7th Cir. 1997), the court held that where an ERISA plan contains a contractual limitations period that is shorter than the otherwise applicable state statutory period, the contractual limitations period is enforceable so long as it is reasonable and even though state law expressly forbids contractual periods that are shorter than statutory periods of limitation. Id. at 874–75. In that case, a 39-month contractual limitations period in a health benefit plan that ran from the date that services for which benefits were sought were rendered to the participant was reasonable where the participant’s claim for benefits was finally denied nearly a year and a half before the contractual period ended. Id. at 875. The court also held that in appropriate cases, estoppel and tolling principles can apply to prevent or delay application of a contractual limitations period. Id. at 875–77. The Seventh Circuit 712

reaffirmed these holdings in Abena v. Metro. Life Ins. Co., 544 F.3d 880 (7th Cir. 2008). Similarly, the equitable doctrine of laches is an available defense in an ERISA case and can be used to shorten the applicable state statute of limitations. Teamsters & Employers Welfare Trust of Ill. v. Gorman Bros. Ready Mix, 283 F.3d 877, 881 (7th Cir. 2002). XIV. Subrogation Litigation The Seventh Circuit has addressed several cases dealing with insurer claims for reimbursement. Most recently, in Weitzenkamp v. Unum Life Ins. Co. of Am., 661 F.3d 323 (7th Cir. 2011), the court ruled that Sereboff v. MidAtlantic Med. Svcs., 547 U.S. 356 (2006), granted a disability insurer’s claim seeking reimbursement following an award of Social Security disability benefits which the policy coordinated with long-term disability payments. The court deemed the claim to relate to overpaid long-term disability benefits rather than Social Security disability insurance payments. The Seventh Circuit earlier ruled in Northcutt v. GM Hourly-Rate Empl. Pension Plan, 467 F.3d 1031 (7th Cir. 2006), that a future stream of benefits could be reduced to satisfy an overpayment under the doctrine of setoff. Also, in Gutta v. Standard Select Trust Ins. Plans, 530 F.3d 614 (7th Cir. 2008), the court upheld a counterclaim seeking a judgment for reimbursement relating to other group insurance that the court found should have offset Standard’s disability payments. However, in Barrett v. Life Ins. Co. of N. Am., 868 F. Supp. 2d 779 (N.D. Ill. 2012), the court refused to permit 713

a claim for reimbursement unless and until the claimant prevailed on his claim for benefits since the only money over which the claimed lien could be asserted was for Social Security benefits. Pursuant to 42 U.S.C. § 407, creditors are unable to assert claims over government benefits. Also see Mote v. Aetna Life Ins. Co., 435 F. Supp. 2d 827 (N.D. Ill. 2006) (same). Another important reimbursement ruling is Trustees of the AFTRA Health Fund v. Biondi, 303 F.3d 765 (7th Cir. 2002), which held that a plan’s claim that the plan participant committed fraud against the plan is not preempted by ERISA and that the plan has the right to sue for reimbursement of plan benefits fraudulently obtained. XV. Miscellaneous A. Unique Approach to Common Policy-Based Defenses In Hawkins v. First Union Corp., 326 F.3d 914 (7th Cir. 2003), the court rejected several arguments advanced by the insurer to support a denial of long-term disability benefits for a claimant with fibromyalgia. The court ruled that a consultant’s opinion that the majority of people with fibromyalgia are capable of working is the “weakest possible evidence,” and that individualized consideration is required. The court also held that the fact that the insured worked after his diagnosis could be a tribute to his courage and determination; the court recognized that many people work as long as they possibly can before surrendering to this condition. Finally, the court ruled that

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the ability to perform some housework and to use the Internet does not necessarily mean the claimant can work. In Leipzig v. AIG Life Ins. Co., 362 F.3d 406 (7th Cir. 2004), the court was unpersuaded that a claimant’s risk of adverse medical consequences due to the effect of stress on an underlying cardiac condition justified an award of long-term disability benefits under a deferential standard of review. The court cited examples of well-known people who had serious heart conditions but continued to work (e.g., former Vice President Cheney, Justice Stevens). The Seventh Circuit held in Weitzenkamp v. Unum Life Ins. Co. of Am., 661 F3d 323 (7th Cir. 2011), that a selfreported symptom limitation in a long term disability policy did not apply to disability based on fibromyalgia. According to the court, the self-reported symptom limitation in the policy at issue applied to disabling illnesses that are diagnosed primarily based on selfreported symptoms rather than to objectively diagnosed conditions with subjective symptoms. Id. In Marantz v. Permanente Med. Group Long Term Dis. Plan, 687 F.3d 320 (7th Cir. 2012), the court held that the amount of weight given to surveillance evidence depends on the nature and amount of activity observed and should be used in conjunction with other medical evidence to determine whether it demonstrates an inconsistency between a claimant’s actual abilities and the claimant’s demonstrated abilities. B. Other Miscellaneous Issues

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The Seventh Circuit has held that a choice-of-forum provision in the ERISA rights section of a summary plan description stating that a benefit claim can be filed in state or federal court does not waive the plan’s right to remove a benefit claim to federal court. Cruthis v. Metro. Life Ins. Co., 356 F.3d 816, 819 (7th Cir. 2004). Seventh Circuit cases suggest prejudgment interest may be appropriate in ERISA denial-of-benefits cases. See, e.g., Fritcher v. Health Care Service Corp., 301 F.3d 811, 819–20 (7th Cir. 2002); Trustmark Life Ins. Co. v. Univ. of Chicago Hosps., 207 F.3d 876, 885 (7th Cir. 2000). The Seventh Circuit has held that “prejudgment interest should be presumptively available to victims of federal law violations. Without it, compensation of the plaintiff is incomplete and the defendant has an incentive to delay.” Gorenstein Enters., Inc. v. Quality Care-USA, Inc., 874 F.2d 431, 436 (7th Cir. 1989). This “presumption in favor of prejudgment interest awards is specifically applicable to ERISA cases.” Rivera v. Benefit Trust Life Ins. Co., 921 F.2d 692, 696 (7th Cir. 1991). Whether to award an ERISA plaintiff prejudgment interest is “a question of fairness, lying within the court’s sound discretion, to be answered by balancing the equities.” Trustmark, 207 F.3d at 885 (citing Landwehr v. DuPree, 72 F.3d 726, 739 (9th Cir. 1995) (quotations omitted)). When considering an award of prejudgment interest it is appropriate to consider the presence of bad faith and good will. See id. (citing “bad faith” as “[o]ne of the factors” to be considered). The calculation of prejudgment interest is left to the discretion of the court. See Gorenstein, 874 F.2d at 436. In Gorenstein, the Seventh Circuit “suggest[ed] that district 716

judges use the prime rate for fixing prejudgment interest where there is no statutory interest rate,” but also “caution[ed] them against the danger of setting prejudgment interest rates too low by neglecting the risk, often nontrivial, of default.” Id. at 437.

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CHAPTER 8 Eighth Circuit MATTHEW SHOREY TERRANCE J. WAGENER I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan An “employee welfare benefit plan” is “any plan, fund, or program … established or maintained by an employer … for the purpose of providing … benefits in the event of sickness, accident, disability, death or unemployment.” Johnston v. Paul Revere Life Ins. Co., 241 F.3d 623, 629 (8th Cir. 2001) (quoting 29 U.S.C. § 1002(1)). The Eighth Circuit has adopted the Donovan test for determining whether a plan exists under ERISA. See Harris v. Ark. Book Co., 794 F.2d 358, 360 (8th Cir. 1986) (citing and approving the factors set forth in Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir. 1982)); Johnston, 241 F.3d at 629. In determining whether a plan exists, a court must determine whether from the surrounding circumstances a reasonable person could ascertain the intended benefits, beneficiaries, source of financing, and procedures for receiving benefits. Johnston, 241 F.3d at

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629 (citing Harris, 794 F.2d at 360 and Donovan, 688 F.2d at 1373). The “pivotal inquiry” to determine whether a plan is an ERISA plan is whether it requires the establishment of a separate, ongoing administrative scheme to administer the plan’s benefits. Simple or mechanical determinations do not necessarily require the establishment of such an administrative scheme; rather, an employer’s need to create an administrative system may arise where the employer, to determine the employee’s eligibility for and level of benefits, must analyze each employee’s particular circumstances in light of the appropriate criteria. Kulinski v. Medtronic Bio-Medicus, Inc., 21 F.3d 254, 257 (8th Cir. 1994). However, an employer’s purchase of an insurance policy to provide health care benefits for its employees can constitute an employee welfare benefit plan for ERISA purposes, and the employer’s payment of insurance premiums, standing alone, is substantial evidence of the existence of an ERISA plan. Robinson v. Linomaz, 58 F.3d 365, 368 (8th Cir. 1995). B. Definition of “Employee” for ERISA Purposes The common law agency test applies when determining whether a person is an “employee” within the meaning of 29 U.S.C. § 1002(6). Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992); Prudential Ins. Co. of Am. v. Doe, 76 F.3d 206, 208 n.3 (8th Cir. 1996). As a result, district courts first focus on the “hiring party’s right to control the manner and means by which a task is 719

accomplished” and then balance several factors. Berger Transfer & Storage v. Cent. States, S.E. & S.W. Areas Pension Fund, 85 F.3d 1374, 1378 (8th Cir. 1996). In order for the plan to be an ERISA plan, it must cover at least one common law employee other than the owner or the owner’s spouse. Once that requirement is met, all persons covered by the plan, including individual owners, will be held to be beneficiaries of the ERISA plan (and thus will have standing to maintain suit under ERISA). See Robinson, 58 F.3d at 370 (shareholders held to be plan beneficiaries because they were designated to be eligible for benefits under the plan); see also Prudential Ins. Co. of Am. v. Doe, 76 F.3d 206, 209 (8th Cir. 1996) (ERISA’s anti-inurement provision does not prevent employers from being beneficiaries). C. Interpretation of Safe Harbor Regulation The Eighth Circuit strictly construes the “safe harbor” exception at 29 C.F.R. § 2510.3-1(j). Failure to meet one criterion renders the exception inapplicable. Dam v. Life Ins. Co. of N. Am., 206 F. App’x 626, 627 (8th Cir. 2006). D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan The Eighth Circuit does not require the employer to play “any role in the administration of the plan” for the arrangement to be an ERISA plan if the employer established the plan, since “the statute simply provides that the [plan] must be ‘established or maintained by the employer.’” Robinson, 58 F.3d at 368 (finding 720

establishment of an ERISA plan where employer purchased insurance policy to protect all full-time employees and their families). The Eighth Circuit has not commented on “list bill” exceptions to individual policies. E. Treatment of Multiple Employer Trusts and Welfare Agreements A multiple employer welfare arrangement (MEWA) or similar arrangement is an employee welfare benefit plan, established or maintained for the purpose of offering or providing certain benefits to the employees of two or more employers or their beneficiaries. Forbes v. Lathers, Plasterers & Cabinet Makers Ins. Trust, No. Civ. 050506 (PAM/RLE), 2006 WL 1072030, at *3 (D. Minn. Apr. 21, 2006) (citing 29 U.S.C. § 1002(40)(A)). MEWAs do not include plans established by a collective bargaining agreement. Id.; 29 C.F.R. § 2510.3-40(a). ERISA does not preempt state insurance regulation of fully insured MEWAs to the extent such state laws provide standards for minimum levels of contributions and reserves and provisions to enforce such standards. 29 U.S.C. § 1144(6)(A). See State of Minn. by Ulland v. Int’l Ass’n of Entrepreneurs of Am., 858 F. Supp. 937, 939 (D. Minn. 1994) (29 U.S.C. § 1144(b)(6) specifically subjects MEWAs to limited regulation and control by state authorities, and cause of action to enjoin the trust from practicing in Minnesota did not fall within the scope of civil enforcement provisions at 29 U.S.C. § 1132(a)).

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The Eighth Circuit has occasionally encountered multiple-employer plans. See, e.g., Hunter v. Philpott, 373 F.3d 873, 876 (8th Cir. 2004) (trust agreements established funds that were “union-sponsored, multipleemployer ERISA plans”). Although MEWAs are generally exempt from ERISA preemption, they may have ERISA plans among their subscribers. Niethammer v. Prudential Ins. Co. of Am., No. 406-CV-16644 (CDP), 2007 WL 1629886, at *1 (E.D. Mo. June 4, 2007). F. Treatment of Individual Business Owners The Eighth Circuit does not treat a business’s sole shareholders as “employees” for the purpose of determining the existence of an ERISA plan. Robinson, 58 F.3d at 369 (citing 29 C.F.R. § 2510.3-3(b), (c)(1)). However, once the threshold question of whether an ERISA plan exists has been answered in the affirmative, sole shareholders who are also employees of the corporation can qualify as beneficiaries of the ERISA plan. Id. at 369–70. See also Prudential Ins. Co. of Am. v. Doe, 76 F.3d 206, 208 (8th Cir. 1996) (controlling shareholder and his daughter were ERISA plan beneficiaries). G. De Facto Plan Administrators The Eighth Circuit has rejected the de facto administrator argument where the plan documents unambiguously identify the plan administrator. Ross v. Rail Car Am. Group Dis. Income Plan, 285 F.3d 735, 743 (8th Cir. 2002). As the court stated in Ross, such arguments:

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[C]annot stand in the face of the uncontroverted facts, ERISA, and settled case law. The Summary Plan Description unambiguously identified Rail Car as the Plan Administrator. Canada Life admits that it had control over claims under the policy, but assuming that function did not transform it into the Plan Administrator. ERISA specifically makes the Plan Administrator responsible for providing the Plan documents Ross requested, see 29 U.S.C. § 1024(b), and the Summary Plan Description directed that all requests for Plan document be made in writing to the Plan Administrator.”). Id.; see also Brown v. J.B. Hunt Trans. Servs., Inc., 586 F.3d 1079, 1088 (8th Cir. 2009) (“Hunt, not Prudential, is the plan administrator. Governing precedent forecloses Brown’s argument that Prudential was the ‘de facto plan administrator.’”). II. Preemption A. Scope of ERISA Preemption 1. State Law Claims Applying Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 52 (1987), the Eighth Circuit has consistently held that state law causes of action are completely preempted by ERISA when they “arise from the administration of benefits.” Fink v. Dakotacare, 324 F.3d 685, 689 (8th Cir. 2003). ERISA broadly preempts state laws “to the extent that those laws relate to any employee benefit plan.” Werdehausen v. Benicorp Ins. Co., 487 F.3d 660, 668 (8th 723

Cir. 2007) (quoting Unum Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 363 (1999)). In determining whether a state law “relates to” an ERISA plan, the Eighth Circuit follows the test set forth in Ca. Div. of Labor Standards Enforcement v. Dillingham Construction, 519 U.S. 316, 324 (1997): a state law “relates to” an ERISA plan if it has a connection with, or reference to, such a plan. Johnston v. Paul Revere Life Ins. Co., 241 F.3d 623, 630 (8th Cir. 2001). A state law that “premises a cause of action on the existence of an ERISA plan” also relates to an ERISA plan. Howard v. Coventry Health Care of Iowa, Inc., 293 F.3d 442, 446 (8th Cir. 2002). In addition, when making the “relates to” determination, district courts are to look to the objectives of the ERISA statute and to the nature of the effect of the state law on ERISA plans. Johnston, 241 F.3d at 630 (citing Dillingham, 519 U.S. at 325). The Eighth Circuit has endorsed several factors for analyzing the effect of the state law on ERISA plans: (1) whether the state law negates an ERISA plan provision, (2) whether the state law affects relations between primary ERISA entities, (3) whether the state law affects the structure of ERISA plans, (4) whether the state law affects the administration of ERISA plans, (5) whether the state law has an economic impact on ERISA plans, (6) whether preemption of the state law is consistent with other ERISA provisions, and (7) whether the state law is an exercise of traditional state power. Eckelkamp v. Beste, 315 F.3d 863, 870 (8th Cir. 2002).

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2. Savings Clause ERISA expressly saves from preemption “any law of any State which regulates insurance.” Werdehausen v. Benicorp Ins. Co., 487 F.3d 660, 668 (8th Cir. 2007) (citing Unum Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 363 (1999)). A state law “regulates insurance” within the meaning of the ERISA savings clause if it (1) is specifically directed toward entities engaged in insurance and (2) substantially affects the risk pooling arrangement between the insurer and the insured. Id. at 668. However, a state statute that comes within the savings clause with respect to insured plans is nevertheless preempted to the extent it applies to self-funded ERISA plans. See Prudential Ins. Co. of Am. v. Nat’l Park Med. Ctr., Inc., 413 F.3d 897, 912–13 (8th Cir. 2005) (Arkansas Patient Protection Act of 1995 held preempted with respect to self-funded ERISA plans). B. Conflict Preemption The Eighth Circuit has recognized conflict preemption where a state law “conflicts with a specific portion of the complex ERISA statute.” Painter v. Golden Rule Ins. Co., 121 F.3d 436, 439 (8th Cir. 1997). “If there is a conflict, state law is preempted whether or not the statutory phrase ‘relate to’ provides further and additional support for the preemption claim.” Id. C. Preemption of Managed Care Claims 725

ERISA preempts claims against managed care providers stemming from the denial of medical treatment. Shea v. Esensten, 107 F.3d 625, 627–28 (8th Cir. 1997). See also Kuhl v. Lincoln Nat’l Health Plan of Kansas City, Inc., 999 F.2d 298, 301–02 (8th Cir. 1993) (action against HMO for delay in authorizing surgery held preempted). The Missouri Health Care Utilization Review Act was saved from ERISA preemption. Werdehausen, 487 F.3d at 669. However, the court noted that “any state law remedy is preempted by ERISA’s comprehensive remedial scheme.” Id. D. Preemption of Malpractice Claims ERISA preempts medical malpractice claims against plan administrators where the “essence of the claim” rests on the administration or denial of plan benefits. See Thompson v. Gencare Health Sys., Inc., 202 F.3d 1072, 1073 (8th Cir. 2000) (ERISA preempted claim of surviving spouse of employee health plan participant alleging that administrator committed medical malpractice by failing to provide certain treatment for participant’s breast cancer). E. State Independent Review Statutes Independent review provisions are generally saved from preemption. Prudential Ins. Co. of Am. v. Nat’l Park Med. Ctr., Inc., 413 F.3d 897, 909 (8th Cir. 2005) (citing Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 366–67 (2002)).

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F. Preemption of Equitable Claims and Defenses, Such as Waiver and Estoppel ERISA preempts state law equitable claims such as waiver and estoppel. See Algren v. Pirelli Armstrong Tire Corp., 197 F.3d 915, 916 (8th Cir. 1999) (plaintiffs’ state law promissory-estoppel claims held preempted by ERISA). III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? Exhaustion is required when an ERISA plan requires it. Brown v. J.B. Hunt Trans. Servs., Inc., 586 F.3d 1079, 1084–85 (8th Cir. 2009). This rule applies if the claimant has notice of the review procedure, even if the denial of benefits letter fails to provide explicit notice of the exhaustion requirement and even if the plan document describes a review procedure that is permissive rather than mandatory. Wert v. Liberty Life Assur. Co. of Bos., Inc., 447 F.3d 1060, 1065–66 (8th Cir. 2006). The exhaustion rule applies to “unexhausted claims,” but not to issues or theories. Chorosevic v. MetLife Choices, 600 F.3d 934, 942 (8th Cir. 2010) (citing Wolf v. Nat’l Shopmen Pension Fund, 728 F.2d 182, 186–87 (3d Cir. 1984) (“Section 502(a) of ERISA does not require either issue or theory exhaustion; it requires only claim exhaustion.”)). B. Exceptions to the Exhaustion Requirement 1. Futility Exception 727

A party may be excused from exhausting administrative remedies if further administrative procedures would be futile, and an administrative remedy will be deemed futile if there is doubt about whether the agency could grant effective relief. Midgett v. Wash. Group Int’l Long Term Dis. Plan, 561 F.3d 889, 898 (8th Cir. 2009). Under the futility exception, the claim accrues at the time it became futile to apply for benefits. Union Pac. R.R. v. Beckham, 138 F.3d 325, 332 n.4 (8th Cir. 1998). However, the futility exemption is “narrow,” and unsupported speculative claims of futility do not excuse a claimant’s failure to exhaust administrative remedies. Midgett, 561 F.3d at 898. See also Brown, 586 F.3d at 1084–85 (“The futility exemption is narrow—the plan participant ‘must show that it is certain that [her] claim will be denied on appeal, not merely that [she] doubts that an appeal will result in a different decision.’”). 2. Denial of Meaningful Access to Procedures The claimant may be excused from exhausting administrative remedies if the employer fails to provide the claimant with meaningful access to the plan’s administrative claims procedure. See Back v. Dancka Corp., 335 F.3d 790, 792 (8th Cir. 2003) (claimant’s failure to exhaust administrative remedies excused because employer failed to inform claimant of necessity of seeking an internal remedy). 3. Rapid and Life-Threatening Illness Claimants seeking treatment for “rapid, life-threatening illnesses” need not exhaust administrative procedures 728

before bringing a lawsuit to compel coverage under an ERISA plan. See Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 962 (8th Cir. 1995) (reversing district court’s denial of injunctive relief and remanding where the claimant had breast cancer and made a showing of likely success on the merits, and plan covered high-dose chemotherapy for other types of cancer). C. Consequences of Failure to Make a Timely Request for Administrative Review When an ERISA plan requires exhaustion, a claimant’s failure to exhaust her administrative remedies bars her from seeking relief. Reindl v. Hartford Life & Acc. Ins. Co., 705 F.3d 784, 788 (8th Cir. 2013) (affirming summary judgment where administrator reasonably construed letter as not requesting appeal and subsequent appeal fell outside deadline); Chorosevic v. MetLife Choices, 600 F.3d 934, 942 (8th Cir. 2010) (“Where a claimant fails to pursue and exhaust administrative remedies that are clearly required under a particular ERISA plan, his claim for relief is barred.”). However, if time remains to exhaust administrative remedies, the district court may stay the action or dismiss without prejudice pending exhaustion. See Galman v. Prudential Ins. Co. of Am., 254 F.3d 768, 769 (8th Cir. 2001) (staying case pending exhaustion). D. Minimum Number of Levels of Administrative Review The Eighth Circuit does not require an ERISA plan to provide a minimum number of administrative reviews. 729

One district court has observed that nothing in ERISA requires plan administrators to allow limitless appeals. Fogerty v. Hartford Life & Acc. Ins. Co., No. Civ. 02-655, 2003 WL 22076589, at *8 (D. Minn. Sept. 3, 2003). Although claims procedures should not require a claimant to file more than two appeals of an adverse benefit determination before bringing a civil action, 29 C.F.R. § 2560.503-1(c)(2), allowing a claimant to file a third appeal is not a “serious procedural irregularity” as would warrant a less deferential standard of review. Menz v. Procter & Gamble Health Care Plan, 520 F.3d 865, 869–70 (8th Cir. 2008). E. Can a Defendant Waive a Failure-to-Exhaust Defense? The Eighth Circuit has not directly addressed the issue of waiving a failure-to-exhaust defense. The District of North Dakota has held that an administrator can waive a failure-to-exhaust defense. See Spagnolia v. Dakota Neuro-surgical Assocs., P.C., No. A1-03-087, 2003 WL 23101775, at *5 (D.N.D. Dec. 19, 2003) (failure to comply with procedural requirements waives failure-toexhaust defense). On the other hand, the Eastern District of Missouri has held that the agreement to reprocess a plaintiff’s claims does not operate to waive exhaustion of remedies. Chorosevic v. MetLife Choices, No. 4:05-CV-2394 (CAS), 2009 WL 723357, at *6 (E.D. Mo. Mar. 17, 2009) (noting Eighth Circuit’s stated goal that reconsideration of prior requests be encouraged and observing that if defendant’s agreement to reprocess claims satisfied exhaustion requirement, that would discourage reconsideration by restarting expired 730

exhaustion process). In affirming, the Eighth Circuit characterized the claim as one of estoppel and held that it failed because of the lack of evidence that the claimant would have exhausted administrative remedies but for the statements at issue. Chorosevic v. MetLife Choices, 600 F.3d 934, 942–43 (8th Cir. 2010). IV. Standard of Review A. Plan Language A plan document must contain “explicit discretiongranting language.” McKeehan v. Cigna Life Ins. Co., 344 F.3d 789, 793 (8th Cir. 2003). “In line with other circuits, [the Eighth Circuit] held ‘a grant of discretion to the plan administrator appearing only in a summary plan description, does not vest the administrator with discretion where the policy provides a mechanism for amendment and disclaims the power of the summary plan description to alter the plan.’” Ringwald v. Prudential Ins. Co. of Am., 609 F.3d 946, 948 (8th Cir. 2010) (quoting Jobe v. Med. Life Ins. Co., 598 F.3d 478, 484 (8th Cir. 2010)). The discretion-granting language varies by plan. See, e.g., Groves v. Metro. Life Ins. Co., 438 F.3d 872, 874 (8th Cir. 2006) (where summary plan description provides that plan administrator “has discretionary authority to determine eligibility for benefits” and appoints claim administrator “to process and pay claims for these benefits in accordance with the terms of the Plan,” claim administrator has discretionary authority); Birdsell v. UPS of Am., Inc., 94 F.3d 1130, 1133 (8th Cir. 1996) (“the 731

exclusive right and discretion to interpret the terms and conditions of the plan, and to decide all matters arising in its administration and operation, including questions pertaining to eligibility for, and the amounts of benefits to be paid by the plan,” confers discretion). However, phrases such as “to be considered disabled,” “as long as the definition of total disability is satisfied,” and “proof of loss,” “read like a typical insurance policy” and “do not trigger the deferential ERISA standard of review.” Brown v. Seitz Foods, Inc., 140 F.3d 1198, 1200 (8th Cir. 1998) (quoting Ravenscraft v. Hy-Vee Emp. Benefit Plan & Trust, 85 F.3d 398, 402 n.2 (8th Cir. 1996)). B. What Standard of Review Applies? The Eighth Circuit has recognized three standards of review. 1. Abuse of Discretion When an ERISA plan authorizes the claims administrator to determine eligibility for benefits, courts review the administrator’s eligibility determinations for abuse of discretion. Pralutsky v. Metro. Life Ins. Co., 435 F.3d 833, 837 (8th Cir. 2006). “Under the traditional abuse of discretion standard, the plan administrator’s decision to deny benefits will stand if a reasonable person could have reached a similar decision.” Woo v. Deluxe Corp., 144 F.3d 1157, 1162 (8th Cir. 1998). To determine whether a decision is reasonable, a court evaluates whether the administrator’s decision is supported by substantial 732

evidence, meaning “more than a scintilla but less than a preponderance.” Id. (quoting Donaho v. FMC Corp., 74 F.3d 894, 900 n.10 (8th Cir. 1996)). A decision “will be deemed reasonable if a reasonable person could have reached a similar decision, given the evidence before him, not that a reasonable person would have reached that decision.” Cash v. Wal-Mart Group Health Plan, 107 F.3d 637, 641 (8th Cir. 1997). A court “will not disturb a decision supported by a reasonable explanation ‘even though a different reasonable interpretation could have been made.’” Clapp v. Citibank, N.A., 262 F.2d 820, 828 (8th Cir. 2001). Some courts employ a five-factor test in determining reasonableness: (1) whether the administrator’s interpretation is consistent with the goals of the plan, (2) whether the interpretation renders any language in the plan meaningless or internally inconsistent, (3) whether the administrator’s interpretation conflicts with the substantive or procedural requirements of the ERISA statute, (4) whether the administrator has interpreted the relevant terms consistently, and (5) whether the interpretation is contrary to the clear language of the plan. Torres v. Unum Life Ins. Co. of Am., 405 F.3d 670, 680 (8th Cir. 2005) (citing Shelton v. ContiGroup Cos., Inc., 285 F.3d 640, 643 (8th Cir. 2002)). Although all factors are to be considered, “significant weight should be given to … a misrepresentation of unambiguous language in the plan.” Lickteig v. Bus. Men’s Assur. Co. of Am., 61 F.3d 579, 585 (8th Cir. 1995).

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The abuse of discretion standard of review applies even when the plan administrator operates under a conflict of interest, such as where the plan administrator both evaluates claims for benefits and pays benefit claims. Wakkinen v. Unum Life Ins. Co. of Am., 531 F.3d 575, 581 (8th Cir. 2008). “[T]he existence of a conflict did not lead the [Glenn] court to announce a change in the standard of review. We are to review an administrator’s discretionary benefit determination for abuse of discretion. The court concluded that ‘a conflict should be weighed as a factor in determining whether there is an abuse of discretion.’” Id. (citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008)). 2. De Novo Where a plan document does not grant the administrator discretion, a court makes its own determination as to whether the claimant is entitled to benefits within the meaning of the plan. See Donatelli v. Home Ins. Co., 992 F.2d 763, 765 (8th Cir. 1993). De novo review applies to both fact determinations and plan interpretations. Riedl v. Gen. Am. Life Ins. Co., 248 F.3d 753, 756 n.2 (8th Cir. 2001). 3. Sliding Scale Before Glenn, the Eighth Circuit considered a sliding scale standard of review where a plan document conferred discretionary authority and the claimant alleged that a financial conflict or procedural irregularity tainted the benefit decision. In such situations, the reviewing court would review a claim decision with heightened scrutiny 734

where a claimant produced “material probative evidence demonstrating (1) a palpable conflict of interest or serious procedural irregularity existed, which (2) caused a serious breach of the plan administrator’s fiduciary duty.” Clapp v. Citibank, 262 F.2d 820, 827 (8th Cir. 2001). Following the Glenn decision, the sliding scale is no longer applicable with respect to a conflict of interest. Contrast Hackett v. Standard Ins. Co., 559 F.3d 825, 830 (8th Cir. 2009), and Chronister v. Unum Ins. Co. of Am., 563 F.3d 773, 775 (8th Cir. 2009), with Woo v. Deluxe Corp., 144 F.3d 1157, 1160–61 (8th Cir. 1990) (holding that the presence of a conflict could change the standard of review from an abuse of discretion to a less deferential standard—even to de novo review). The continued application of the sliding scale analysis with respect to a procedural irregularity is uncertain. In Wrenn v. Principal Life Ins. Co., 636 F.3d 921, 927 n.6 (8th Cir. 2011), the Eighth Circuit noted that “[t]he procedural irregularity component of the Woo sliding scale approach may, however, still apply in our circuit post-Glenn,” but declined to address the extent to which Glenn may have changed the procedural irregularity component of Woo’s sliding-scale approach. A procedural irregularity may be one of several “casespecific” factors considered in applying the abuse of discretion standard. See also Waden v. Aetna Life Ins. Co., 684 F.3d 1360, 1362 n.2 (8th Cir. 2012). C. Effect of Conflict of Interest or Procedural Irregularity

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The existence of a conflict does not change the abuse of discretion standard of review. Wakkinen, 531 F.3d at 581 (citing Glenn, 554 U.S. at 112). However, heightened scrutiny may arguably still apply where a claimant establishes that “a serious procedural irregularity existed which caused a serious breach of the plan administrator’s fiduciary duty.” Id. (citing Woo, 144 F.3d at 1160). 1. Conflict of Interest A conflict is assumed where an administrator both evaluates claims for benefits and pays benefit claims. Id. The rule applies to both employers and insurers who hold dual roles. Id. “[A] conflict should be weighed as a factor in determining whether there is an abuse of discretion.” Id. A conflict of interest alone is insufficient to find an abuse of discretion. Atkins v. Prudential Ins. Co., 404 F. App’x 82, 86 (8th Cir. 2010). A claimant must establish “how the existence of a conflict of interest impacted the claims decision.” Khoury v. Group Health Plan, Inc., 615 F.3d 946, 954 (8th Cir. 2010). A district court’s failure to consider the conflict of interest factor may constitute error. Hackett v. Standard Ins. Co., 559 F.3d 825, 830 (8th Cir. 2009) (“In this instance, the district court erred by concluding the conflict of interest could not be taken into account.”); Atkins, 404 F. App’x at 86 (“The conflict of interest is one of several factors to consider and may serve as a tiebreaker if the other factors are closely balanced.”). 2. Procedural Irregularity 736

The effect of a procedural irregularity on the standard of review remains an open question in the Eighth Circuit. Waden v. Aetna Life Ins. Co., 684 F.3d 1360, 1362 n.2 (8th Cir. 2012). “In determining whether procedural irregularities occurred, we consider whether the plan administrator’s decision was made without reflection or judgment, such that it was the product of an arbitrary decision or the plan administrator’s whim.” Parkman v. Prudential Ins. Co., 439 F.3d 767, 772 n.5 (8th Cir. 2006). For example, it is a procedural irregularity where the administrator (1) relies on an in-house physician rather than a specialist to review a disability claim involving an uncommon medical condition, Woo, 144 F.3d at, 1161; (2) fails to respond in writing to a claimant’s appeal, McGarrah v. Hartford Life Ins. Co., 234 F.3d 1026, 1030–31 (8th Cir. 2000); (3) fails to address adequately the medical evidence provided by the claimant’s treating physicians, Morgan v. Unum Life Ins. Co. of Am., 346 F.3d 1173, 1176 (8th Cir. 2003); (4) fails to obtain medical records after it led the claimant to believe it would, Harden v. Am. Express Fin. Corp., 384 F.3d 498, 500 (8th Cir. 2004); (5) fails to consider the effects of medication on a claimant’s ability to work, Torres v. Unum Life Ins. Co. of Am., 405 F.3d 670, 677–78 (8th Cir. 2005); or (6) never issues a written decision, Buttram v. Cent. States, S.E. & S.W. Areas Health & Welfare Fund, 76 F.3d 896, 900 (8th Cir. 1996). It is not a procedural irregularity where the administrator: (1) declines to obtain an independent medical examination (IME), Torres, 405 F.3d at 670; Manning v. Am. Republic Ins. Co., 604 F.3d 1030, 1041 (8th Cir. 2010) (“A plan administrator is not required to 737

order an IME when the claimant’s evidence is facially insufficient to support a finding of disability.”); (2) refuses to utilize a cardiologist or rheumatologist to review the claimant’s complex medical condition where a treating physician declines to render an opinion on disability, Clapp v. Citibank, N.A. Dis. Plan (501), 262 F.2d 820, 828 (8th Cir. 2001); (3) fails to verify the accuracy of data submitted by the claimant, Sahulka v. Lucent Techs., Inc., 206 F.3d 763, 769 (8th Cir. 1999); or (4) relies on the opinions of in-house physicians who review the claimant’s treatment records, Kolosky v. Unum Life Ins. Co. of Am., 182 F. App’x 607, 609 (8th Cir. 2006). Even if the claimant establishes a procedural irregularity, he must also show that it has a “connection to the substantive decision rendered.” Waden v. Aetna Life Ins. Co., 684 F.3d 1360, 1362 (8th Cir. 2012) (affirming summary judgment where purported irregularity occurred long after claim decision made). D. Other Factors Affecting Standard of Review Failure to comply with regulatory requirements may constitute a serious procedural irregularity. See Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1327–29 (8th Cir. 1995) (administrator’s failure to render a timely decision during its administration resulted in a loss of discretion); Janssen v. Minn. Auto Dealers Benefit Fund, 447 F.3d 1109, 1113 (8th Cir. 2006) (failure to provide an adequate explanation for the benefit denial or the right to appeal are procedural irregularities); Seman v. FMC Corp. Ret. Plan for Hourly Emps., 334 F.3d 728, 733 (8th Cir. 2003) 738

(where administrator fails to make a decision on the initial application for benefits, remand to the administrator for a decision is appropriate). In addition, regardless of whether the delay or failure to respond affects the standard of review, it may excuse the claimant from exhausting her administrative remedies. See Phillips-Foster v. Unum Life Ins. Co. of Am., 302 F.3d 785, 796 (8th Cir. 2002) (administrator’s failure to meet claim deadlines under 29 C.F.R. § 2560.503 (1997) resulted in a “deemed denial” giving claimant the “right to bring a civil action to have the merits of [her] application determined …”). V. Rules of Plan Interpretation A. Application of Federal Common Law Plan interpretation is subject to the principles of federal common law. Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1327 (8th Cir. 1995); Brewer v. Lincoln Nat’l Life Ins. Co., 921 F.2d 150, 153 (8th Cir. 1990). B. Application of Contra Proferentem Contra proferentem does not apply in ERISA cases. Brewer, 921 F.2d at 153. C. Deference Afforded Interpretation of a Plan

to

an

Administrator’s

Generally, under the abuse of discretion standard, the administrator’s interpretation is entitled to deference, “so long as it is ‘reasonable,’ even if the court would interpret the language differently as an original matter.” Khoury v.

739

Group Health Plan, Inc., 615 F.3d at 954. See also Hutchins v. Champion Int’l Corp., 110 F.3d 1341, 1344 (8th Cir. 1997) (“Under an abuse of discretion standard we do not search for the best or preferable interpretation of a plan term: it is sufficient if the [administrator]’s interpretation is consistent with a commonly accepted definition.”). In some cases, courts apply a five-factor test in determining whether the administrator’s plan interpretation is reasonable under the abuse of discretion standard. See section IV.B.1, supra; see also Cash v. WalMart Group Health Plan, 107 F.3d 637, 641 (8th Cir. 1997); Finley v. Special Agents Mut. Benefit Ass’n, Inc., 957 F.2d 617, 621 (8th Cir. 1992). Where an administrator evaluates facts to determine the plan’s application to a particular case, the substantial evidence test governs the court’s review. Donaho v. FMC Corp., 74 F.3d 894, 899 n.9 (8th Cir. 1996). D. Other Rules of Plan or Contract Interpretation 1. Ordinary Meaning “[U]nless the plan language specifies otherwise, courts should construe any disputed language ‘without deferring to either parties’ interpretation.’” Brewer, 921 F.2d at 153–54 (emphasis in original) (quoting Wallace v. Firestone Tire & Rubber Co., 882 F.2d 1327, 1329 (8th Cir. 1989)). The administrator is required to furnish plan descriptions that are written in a manner calculated to be 740

understood by the average plan participant. Brewer, 921 F.2d at 154 (citing 29 U.S.C. § 1022(a)(1)). As a result, the terms of an ERISA plan “should be accorded their ordinary, and not specialized, meanings.” Id. See also Mansker, 54 F.3d at 1327 (applying interpretation of “arising out of employment” used by Arkansas courts in workers’ compensation cases contrary to ERISA “because legal definition is not consistent with what an average plan participant would understand the words to mean”). In ERISA cases, ordinary meaning is determined by the dictionary definition of a word and the context in which it is used. Hutchins v. Champion Int’l Corp., 110 F.3d 1341, 1344 (8th Cir. 1997). Where an ERISA plan is ambiguous, a court may consider extrinsic evidence. Barker v. Ceridian Corp., 122 F.3d 628, 638 (8th Cir. 1997). 2. Vesting of Benefits While ERISA mandates vesting of pension benefits, Congress did not require vesting of employee welfare benefit plans (EWBPs). Stearns v. NCR Corp., 297 F.3d 706, 711 (8th Cir. 2002). Vesting of EWBPs is not presumed and is determined by a review of the plan documents. Barker v. Ceridian Corp., 122 F.3d 628, 632–33 (8th Cir. 1997). Absent a contractual agreement to the contrary, an employer may unilaterally modify or terminate an EWBP at any time. Stearns, 297 F.3d at 711; Hutchins v. Champion Int’l Corp., 110 F.3d 1341, 1343 (8th Cir. 1997). Whether vesting of benefits occurs is a legal issue governed by ERISA. John Morrell & Co. v. United Food & Com. Workers Int’l Union, 37 F.3d 1302,

741

1303 (8th Cir. 1994). The claimant has the burden of establishing vested benefits. Stearns, 297 F.3d at 711. An agreement to vest must be written and incorporated into the ERISA plan itself. See Barker, 122 F.3d at 633; United Paperworkers Int’l Union v. Jefferson Smurfit Corp., 961 F.2d 1384, 1386 (8th Cir. 1992). Accordingly, the payment of ongoing benefits may be modified or terminated, depending on the plan language. See, e.g., Hutchins, 110 F.3d at 1345–46 (because the plan did not contain language that limited the ability of the administrator to terminate or amend benefits once a participant was already entitled to receive them, administrator could terminate claimant’s receipt of longterm disability benefits); Hughes v. 3M Retiree Med. Plan, 281 F.3d 786, 792–93 (8th Cir. 2002) (reservation of rights provision in plan otherwise devoid of vesting language defeats claim by participants that their welfare benefits vested for life); Blessing v. Deere & Co., 985 F. Supp. 899, 903 (S.D. Iowa. 1997) (the plan in effect at the time benefits are terminated or denied is the plan governing the scope of the review of the administrator’s decision). 3. Proper Beneficiary Designation A plan must act in accordance with a properly submitted beneficiary designation under the plan, and should not look outside the plan documents to determine intent with respect to beneficiaries. Matschiner v. Hartford Life & Acc. Ins. Co., 622 F.3d 885, 887 (8th Cir. 2010). This “‘straight-forward rule of hewing to the directives of the plan documents’ has the virtues of ‘simple administration, 742

avoiding double liability, and ensuring that beneficiaries get what’s coming quickly, without the folderol essential under less-certain rules.’” Id. (quoting Kennedy v. Plan Admin. for DuPont Sav. & Inv. Plan, 555 U.S. 285 (2009)). VI. Discovery A. Limitations on Discovery The scope of discovery is determined by the standard of review, and the presence of claimed conflicts of interest or procedural irregularities. 1. Abuse of Discretion Standard of Review Under the abuse of discretion standard, discovery is generally limited to the administrative record compiled by the administrator up to the time of the final benefits decision. Milone v. Exclusive Healthcare, Inc., 244 F.3d 615, 618 (8th Cir. 2001) (citing Sahulka v. Lucent Techs., Inc., 206 F.3d 763, 769 (8th Cir. 2000)). See, e.g., Barnhart v. Unum Life Ins. Co. of Am., 179 F.3d 583 (8th Cir. 1999) (district court properly excluded claimant’s affidavit and Social Security Administration determination from consideration at motion for summary judgment); Maune v. I.B.E.W., Local No. 1, Health & Welfare Fund, 83 F.3d 959, 963 (8th Cir. 1996) (affirming denial of discovery where district court review was limited to evidence before the administrator); Davidson v. Prudential Ins. Co. of Am., 953 F.2d 1093, 1095 (8th Cir. 1992) (refusing to reopen administrative record to allow additional evidence because the claimant 743

had the burden to submit all relevant information before the administrator made its final benefits determination). 2. De Novo Standard of Review Generally, “additional evidence gathering” under de novo review is discouraged to “ensure expeditious judicial review of ERISA benefit decisions and to keep district courts from becoming substitute plan administrators.” Brown v. Seitz Foods, Inc., 140 F.3d at 1200 (quoting Cash v. Wal-Mart Group Health Plan, 107 F.3d 637, 641–42 (8th Cir. 1997)). But see Weber v. St. Louis Univ., 6 F.3d 558, 561 (8th Cir. 1993) (the district court erred in declining to permit the administrator to conduct discovery under the de novo review where onset of claimant’s disability was necessary “to sustain a verdict for either [party]”). 3. Fiduciary Exception The Eight Circuit addressed the fiduciary exception in Carr v. Anheuser-Busch Cos., Inc., 495 F. App’x 757 (8th Cir. 2012). The Eighth Circuit held that the district court did not abuse its discretion in determining that the fiduciary exception applied to only one of four emails between a vice president of the plan administrator and its legal department. The district court had concluded that the three emails were not subject to disclosure under the fiduciary exception on two grounds. First, “[i]n contrast to the October 9, 2009, email, the December 2009 emails relate[d] to the substantive merit of plaintiff’s individual claim and the content of the final decision letter denying his severance benefits, not advice as to procedural duties 744

owed to each beneficiary.” Id. at 768. Second, the district court determined that, by December 2009, the employee’s interest had become sufficiently adverse to that of the plan administrator’s interest because the final decision to deny benefits had effectively been made and the employee’s only recourse to challenge the decision was litigation. Id. B. Discovery and Conflict of Interest Discovery may be permitted under the abuse of discretion standard to establish a procedural irregularity or conflict of interest. Before Glenn, the Eighth Circuit suggested that such discovery should rarely be allowed: “A palpable conflict of interest or procedural irregularity will ordinarily be apparent on the face of administrative record or will be stipulated to by the parties. Thus, the district court will only rarely need to permit discovery and supplementation of the record to establish these facts.” Farley v. Ark. Blue Cross & Blue Shield, 147 F.3d 774, 776 n.4 (8th Cir. 1998). However, Glenn’s emphasis on case-specific facts relevant to a conflict of interest analysis arguably suggests a broader scope of discovery. 554 U.S. at 117 (“The conflict of interest at issue here, for example, should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration. It should prove less important (perhaps to a vanishing point) where the

745

administrator has taken active steps to reduce potential bias and to promote accuracy….”). The Eighth Circuit has not yet decided the impact of Glenn on the scope of discovery regarding conflicts of interest or procedural irregularities, and district courts in this jurisdiction have adopted competing views on the issue. See Atkins v. Prudential Ins. Co., 404 F. App’x 82, 85 (8th Cir. 2010) (“We have not yet decided whether Glenn affects discovery limitations under ERISA[.]”); Chronister, 563 F.3d 773, 777 n.2 (8th Cir. 2009) (“We are not faced with determining whether Glenn changes the discovery limitations in ERISA cases.”); compare Sampson v. Prudential Ins. Co. of Am., No. 4:08-CV-1290 (CDP), 2009 U.S. Dist. LEXIS 24858, at *5 (E.D. Mo. Mar. 26, 2009) (“What Glenn makes clear, however, is that a conflict or procedural irregularity cannot be considered in a vacuum. Discovery is required to explore the nature and extent of the purported conflict or irregularity at issue.”), with Chorosevic v. MetLife Choices, No. 4:05-CV-2394 (CAS), 2008 U.S. Dist. LEXIS 98318, at *6–7 (E.D. Mo. Dec. 4, 2008) (“This discovery does not seek to determine a conflict of interest, but is instead merits-driven. Even assuming the Court would allow limited discovery related to determining whether a conflict of interest exists (which it is not inclined to do), this discovery would be limited to the factors highlighted by the Supreme Court in Glenn as worth considering….”). VII. Evidence A. Scope of Evidence under Standards of Review 746

Under the abuse of discretion standard, evidence not presented to the administrator is generally inadmissible. See Maune v. I.B.E.W., Local No. 1, Health & Welfare Fund, 83 F.3d at 963 (affirming stay of discovery); see also Brown v. Seitz Foods, Inc., 140 F.3d at 1200 (admission of evidence outside the administrative record is not permitted on deferential review). However, district courts may consider evidence outside the administrative record in limited circumstances. See, e.g., Koons v. Aventis Pharms., Inc., 367 F.3d 768, 780 (8th Cir. 2004) (court may consider additional evidence where administrative record is disputed); Welsh v. Burlington N., Inc. Emp. Benefit Plan, 54 F.3d 1331 (8th Cir. 1995) (district court permitted to consider additional evidence necessary to make an informed judgment where plan made no factual determination in denying benefits). In addition, evidence of conflicts or irregularities may also be relevant. With respect to de novo review, consideration of evidence outside the administrative record is discouraged to “ensure expeditious judicial review of ERISA benefit decisions and to keep district courts from becoming substitute plan administrators.” Brown, 140 F.3d at 1200; Ferrari v. Teachers Ins. & Ann. Ass’n, 278 F.3d 801, 807 (8th Cir. 2002) (en banc). District courts applying de novo review may look beyond the administrative record for “good cause,” but only if consideration is necessary for adequate review of the fiduciary’s decision. Donatelli v. Home Ins. Co., 992 F.2d 763, 765 (8th Cir. 1993); Koons, 367 F.3d at 780. 747

Good cause may exist where the claimant did not receive an opportunity to supplement the administrative record during the initial benefit determination and appeal. See Ferrari, 278 F.3d at 807; Birdsell v. UPS of Am., Inc., 94 F.3d 1130, 1133 (8th Cir. 1996). See also Bernards v. United of Omaha Life Ins. Co., 987 F.2d 486, 489 (8th Cir. 1993) (expedient clarification of the experimental nature of medical treatment for a terminally ill patient is good cause). B. Objective Evidence “It is not unreasonable for a plan administrator to deny benefits based upon a lack of objective evidence.” Jackson v. Prudential Ins. Co. of Am., 530 F.3d 696, 701 (8th Cir. 2009). It is not an abuse of an ERISA plan administrator’s discretion to ignore an opinion when the physician did not provide “reliable objective evidence of testing or other proof to support the finding of long term disability.” Manning v. Am. Republic Ins. Co., 604 F.3d 1030, 1041 (8th Cir. 2010); Darrell v. Life Ins. Co. of N. Am., 597 F.3d 929, 935 (8th Cir. 2010). It may not be reasonable for an administrator to deny benefits because a claimant cannot provide a diagnosis that would explain self reported symptoms. Collins v. Cont’l Cas. Co., 87 F. App’x 605, 606–07 (8th Cir. 2004). The administrator’s ability to require objective evidence may depend on plan language. Compare House v. Paul Revere Life Ins. Co., 241 F.3d 1045, 1048 (8th Cir. 2001) (“nothing in the terms of the plan support Paul Revere’s demand for ‘objective medical evidence’”), with Johnson v. Metro Life Ins. Co., 437 F.3d 809, 813 (8th 748

Cir. 2006) (plan requirement of “documented proof” sufficient to allow administrator to require objective evidence of disability). A frequently litigated issue, however, is what constitutes sufficient “objective evidence.” See, e.g., Chronister v. Baptist Health, 442 F.3d 648, 656 (8th Cir. 2006) (“Our circuit recently joined the Seventh Circuit in recognizing that trigger-point test findings consistent with fibromyalgia constitute objective evidence of the disease.”); Pralutsky v. Metro. Life Ins. Co., 435 F.3d 833, 839 (8th Cir. 2006) (“[W]e also believe it was reasonable on the facts presented here for MetLife to request clinical and objective evidence, and to deny the claim when Pralutsky failed to provide it. MetLife’s communications with Pralutsky support its contention that it was requesting only substantiation of the extent of Pralutsky’s disability and not an impossible level of objective proof that she suffered from fibromyalgia.”). C. Evidentiary Determinations

Value

of

Social

Security

Although a Social Security Administration determination is not binding, it is admissible evidence to support an ERISA claim for long-term disability benefits. Riedl v. Gen. Am. Life Ins. Co., 248 F.3d at 759 (citing Duffie v. Deere & Co., 111 F.3d 70, 74 n.5 (8th Cir. 1997)). See also Walden v. Eaton Corp., 170 F. App’x 435, 436 (8th Cir. 2006) (employer justifiably relied on denial letter from Social Security Administration as proof of claimant’s work activities). However, the Social Security Administration’s determination is not admissible where it 749

was not part of the administrative record. See Rugby v. Unum Life Ins. Co. of Am., 391 F. App’x 579 (8th Cir. 2010) (“We also decline to remand based on a Social Security Administration decision that was not part of the administrative record or binding on Unum[.]”); Glick v. Coop. Benefit Adm’rs, Inc., 36 F. App’x 224 (8th Cir. 2002) (rejecting claimant’s argument that administrative record should be supplemented by record of Social Security Administration hearing conducted two years after closure of administrative record on claimant’s claim for long-term disability benefits). But see Harden v. Am. Express Fin. Corp., 384 F.3d 498, 500 (8th Cir. 2004) (reversing summary judgment for administrator and remanding to reopen administrative record, obtain Social Security records, and make new determination of claim, where administrator obtained authorizations for, and led claimant to believe that it was considering, certain Social Security medical documents, but did not obtain the documents and therefore omitted them from the administrative record). In addition, a Social Security determination can affect the conflict of interest analysis. “In Glenn, the Court concluded the conflict took on even greater significance because, as in this case, the insurer … encouraged the claimant to apply for social security disability benefits, and then disregarded the Social Security Administration’s finding she could do no work….” Hackett v. Standard, 559 F.3d 825, 830 (8th Cir. 2009) (citing Glenn, 554 U.S. at 118). D. Other Evidence Issues

750

In cases where the administrative record is not in dispute, it is presumed that the record reflects the evidence that was before the administrator or committee. White v. HealthSouth Long-Term Dis. Plan, 320 F. Supp. 2d 811, 820 (W.D. Ark. 2004). However, when there is a dispute over the composition of the administrative record, district courts will make their own determination whether the disputed evidence was actually offered to the administrator, and even whether it was timely offered. See Fogerty v. Hartford Life & Acc. Ins. Co., No. Civ. 02-655 (JRT/SRN), 2003 WL 22076589, at *8 (D. Minn. Sept. 3, 2003) (court found that evidence was not part of administrative record and declined to find good cause to consider it because it was not offered until after record was closed). VIII. Procedural Aspects of ERISA Practice A. Proper Defendants in an ERISA Case The proper defendants in an action for ERISA benefits are those responsible for determining eligibility and paying benefits. See, e.g., Layes v. Mead Corp., 132 F.3d 1246, 1249 (8th Cir. 1998) (“With regard to Layes’ claim for long-term disability benefits, the district court properly granted summary judgment in favor of Mead. CNA was at all relevant times the sole administrator of the long-term disability plan offered by Mead. Thus, Mead was not a proper party defendant.”); Brown v. J.B. Hunt Transp. Servs., Inc., 586 F.3d 1079, 1088 (8th Cir. 2009) (“We affirm the district court’s dismissal of Count I as to Hunt, because Hunt, as plan administrator, is not the proper defendant for an award of benefits under the Plan. It is 751

undisputed the Plan requires Prudential, not Hunt, to pay LTD benefits to Brown if she is disabled.”) (citations omitted); Richmond v. Cont’l Cas. Co., 246 F. App’x 399, 400 n.2 (8th Cir. 2007) (“Baxter Healthcare Corporation (Baxter) was Richmond’s employer and the employersponsor of CNA’s plan. Because CNA was the sole administrator of the plan at all relevant times, and Baxter had no role in the discontinuation of decision, Baxter was never a proper defendant.”). Compare Brant v. Principal Life & Dis. Ins. Co., 6 Fed App’x 533, 535 (8th Cir. 2001) (“Both Brant’s employer and its insurance provider were proper defendants in such an action, because their administrative services agreement gave them discretionary authority to determine eligibility for benefits and to construe the terms of the plan.”). Courts in this jurisdiction have recognized, however, that the determination of the proper defendants in an action for benefits governed by ERISA may require a more detailed analysis, including an examination of a party’s role in plan administration. See, e.g., Genosky v. Metro. Life Ins. Co., 2012 U.S. Dist. LEXIS 105751 (D. Minn. Apr. 27, 2012) (recognizing that ERISA does not define “administrator” in terms of what one does; thus, “in some situations, the proper defendant can include the party who ‘controls administration of the plan’” and “[i]n such situations, courts examine a party’s ‘role in an ERISA plan to determine whether it in fact administered the plan’”); Slayhi v. High-Tech Institute, 2007 U.S. Dist. LEXIS 89192 (D. Minn. Dec. 3, 2007) (setting forth a two-step analysis to determine whether a named “administrator” is a proper defendant in an action for disability benefits 752

under ERISA); Greenwald v. Liberty Life Assur. Co. of Bos., 2013 U.S. Dist. LEXIS 38652, at *83 (D. Neb. Mar. 20, 2013) (“Here, Wells Fargo delegated the initial levels of claim review to Liberty Life. But Wells Fargo retained the final authority to determine eligibility for benefits and was ultimately responsible for paying benefits. So, following the rationale of Slayhi and Brown, Liberty Life is not a proper defendant to Greenwald’s first claim.”). B. Methods of Adjudication Most ERISA cases in the Eighth Circuit are resolved by summary judgment. Cases in the Eighth Circuit may also be decided on a motion for judgment on the administrative record. See, e.g., Menz v. Procter & Gamble Health Care Plan, 520 F.3d 865, 871 (8th Cir. 2008) (affirming judgment on the administrative record). C. Reported ERISA Trials There is no right to a jury trial of ERISA cases in the Eighth Circuit. In re Vorpahl, 695 F.2d 318, 322 (8th Cir. 1982). There have been several reported ERISA bench trials within the Eighth Circuit. See, e.g., Schoedinger v. United Healthcare of Mw., Inc., 557 F.3d 872 (8th Cir. 2009) (affirming judgment following bench trial). D. Special Procedures for ERISA Benefit Cases There are no special procedures for ERISA benefit cases in the Eighth Circuit. IX. Remedies

753

The Eighth Circuit has not considered available remedies under 29 U.S.C. § 1132(a)(1)(B), or (a)(3)(B), in light of the United States Supreme Court’s decision in CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011). Courts in this jurisdiction have held that the dictum in CIGNA relating to equitable relief under § 502(a)(3), does not supplant prior Eighth Circuit case law. Plambeck v. Kroger Co., 2013 U.S. Dist. LEXIS 33088, at *15 (D.S.D. Mar. 11, 2013); Silva v. Metro. Life Ins. Co., 2012 U.S. Dist. LEXIS 40713, at *14–15 (E.D. Mo. Mar. 26, 2012). Under Eighth Circuit precedent, legal relief is precluded under § 502(a)(3). Pichoff v. QHG of Springdale, Inc., 556 F.3d 728, 731 (8th Cir. 2009). “To determine whether a plaintiff requests legal or equitable relief, [the court] ask[s] whether the value of the harm done that forms the basis for the damages is measured by the loss to the plaintiff or the gain to the defendant, and whether the money sought is specifically identifiable as belonging in good conscience to the plaintiff.” Id. at 732. Post-CIGNA, the Eighth Circuit continues to follow the Supreme Court’s decision in Great-West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002), which limited the relief available under § 502(a)(3) to “those categories of relief that were typically available in equity.” See Treasurer, Trustees of Drury Indus., Inc. Health Care Plan & Trust, v. Goding, 692 F.3d 888, 895 (8th Cir. 2013) (“Here, like in Knudson, Drury is essentially attempting to impose personal, or legal, liability on Casey for the benefits it conferred on Goding…. Casey initially held in trust the $11,423.79 to which Drury claims an interest, but he eventually disbursed the entirety of the sum to Goding. Casey thus no longer has any money to 754

which Drury claims an interest. Accordingly, any action by Drury to recover from Casey is legal, not equitable. Because § 502(a)(3) allows only equitable relief, the district court was correct in denying Drury’s motion for summary judgment on the issue.”). X. Fiduciary Liability Claims A. Definition of Fiduciary Discretion is the “benchmark for fiduciary status under ERISA” pursuant to the explicit wording of 29 U.S.C. § 1002(21). Johnston v. Paul Revere Life Ins. Co., 241 F.3d 623, 632 (8th Cir. 2001) (quoting Maniace v. Commerce Bank of Kansas City, 40 F.3d 264, 267 (8th Cir. 1994)). An individual is subject to fiduciary duties under ERISA “to the extent he exercises any discretionary authority or discretionary control respecting management of such plan or … management or disposition of its assets.” Trs. of the Graphic Commc’ns Int’l Union Upper Mw. Local 1M Health & Welfare Plan v. Bjorkedal, 516 F.3d 719, 732 (8th Cir. 2008) (quoting 29 U.S.C. § 1002(21)(A)(i)). Subsection (i) imposes a fiduciary duty on those who exercise discretionary authority, regardless of whether such authority was ever granted. Id. The fiduciary status applies, however, only when the individual is performing a fiduciary duty; it is not an allor-nothing concept. Id. When employers adopt, modify, or terminate plans that provide employee benefit or pension plans, “they do not act as fiduciaries, but are analogous to the settlors of a trust.” Schultz v. Windstream Commc’ns, 600 F.3d 948, 951 (8th Cir. 2010). 755

Persons who serve as fiduciaries may also act in other capacities, even capacities that conflict with the individual’s fiduciary duties, but ERISA requires that the fiduciary with two hats wear only one at a time, and wear the fiduciary hat when making fiduciary decisions. Id. In every case charging breach of ERISA fiduciary duty the threshold question is not whether the actions of some person employed to provide services under a plan adversely affected a plan beneficiary’s interest, but whether that person was acting as a fiduciary (that is, was performing a fiduciary function) when taking the action subject to complaint. Id. Fiduciaries can take different forms. See, e.g., Prudential Ins. Co. of Am. v. Doe, 140 F.3d 785, 789–90 (8th Cir. 1998) (insurer with sole responsibility to interpret plan and to review and decide claims); FirsTier Bank, N.A. v. Zeller, 16 F.3d 907 (8th Cir. 1994) (trustee of profit-sharing plan); Martin v. Feilen, 965 F.2d 660 (8th Cir. 1992) (controlling stockholders, directors, and accountants who exercised effective control over the plan’s assets); Olson v. E.F. Hutton & Co., 957 F.2d 622, 627 (8th Cir. 1992) (account broker whose investment advice served as primary basis for plan’s investment decisions). However, professionals who merely provide services to an employee benefits plan are not fiduciaries unless they transcend the normal role and exercise discretionary authority. See Johnston v. Paul Revere Life Ins. Co., 241 F.3d 623–32 (8th Cir. 2001) (broker); Kerns v. Benefit Trust Life Ins. Co., 992 F.2d 214 (8th Cir. 1993) (broker who informed employees of impending termination of 756

health insurance coverage); Consol. Beef Ind., Inc. v. N.Y. Life Ins. Co., 949 F.2d 960, 964–65 (8th Cir. 1991) (insurance company and its salesman who sold annuities to plan); Anoka Orthopaedic Assoc., P.A. v. Lechner, 910 F.2d 514, 517 (8th Cir. 1990) (attorney and benefits consultant). B. Definition of Fiduciary Duties Pursuant to 29 U.S.C. § 1104, a fiduciary must discharge his duties (1) for the exclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable expenses of the plan; (2) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; (3) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and (4) in accordance with the documents and instruments governing the plan. Congress included these provisions in order to make the law of trusts applicable to plans and to eliminate “such abuses as self-dealing, imprudent investing, and misappropriation of plan funds.” Boyle v. Anderson, 68 F.3d 1093, 1102 (8th Cir. 1995) (citing Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 15 (1987)). The prudent-person standard in 29 U.S.C. § 1104 is an objective standard that focuses on the fiduciary’s conduct preceding the challenged decision. Roth v. SawyerCleator Lumber Co., 16 F.3d 915, 917 (8th Cir. 1994). 757

Thus the prudent-person standard is not concerned with results; rather, it is a test of how the fiduciary acted viewed from the perspective of the time of the challenged decision and not from the “vantage point of hindsight.” Id. at 918. To say a decision is objectively reasonable requires taking into account everything that the fiduciary should have known at the time of the decision. Id. at 919. A fiduciary may not affirmatively mislead plan participants about material matters regarding their ERISA plan when discussing the plan. Kalda v. Sioux Valley Physician Partners, Inc., 481 F.3d 639, 644 (8th Cir. 2007). A statement is materially misleading if there is a substantial likelihood that it would mislead a reasonable employee in the process of making an adequately informed decision regarding benefits to which the employee might be entitled. Id. Additionally, a fiduciary has a duty to inform when it knows that silence may be harmful, and it cannot remain silent if it knows or should know that the beneficiary is laboring under a material misunderstanding of plan benefits. Id. The duty of loyalty requires a fiduciary to disclose any material information that could adversely affect a participant’s interests. Id. C. Fiduciary Liability in the Context of Health and Disability Claims Fiduciary duties apply to the consideration of health and disability claims. See, e.g., Knieriem v. Group Health Plan, Inc., 434 F.3d 1058, 1061 (8th Cir. 2006) (individual health plan participant was permitted to seek equitable remedies for breach of fiduciary duty in his

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individual capacity, but not a claim for breach of fiduciary duty that essentially sought damages). The Eighth Circuit has held that 29 U.S.C. § 1132(a)(3)(B) permits plan participants and beneficiaries to seek equitable remedies in their individual capacities for a breach of fiduciary duty not specifically covered by the other enforcement provisions of § 1132. Pichoff v. QHG of Springdale, Inc., 556 F.3d 728, 731 (8th Cir. 2009). However, the term “other appropriate equitable relief” is limited to relief that was “typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).” Id. D. Contribution and Indemnity Claims among Fiduciaries The Eighth Circuit does not recognize a right of contribution among ERISA fiduciaries. Travelers Cas. & Sur. Co. of Am. v. IADA Servs., Inc., 497 F.3d 862, 867 (8th Cir. 2007). However, it does permit breach of fiduciary duty claims between fiduciaries. See Harold Ives Trucking Co. v. Spradley & Coker, Inc., 178 F.3d 523 (8th Cir. 1999) (employer permitted to recover monetary damages from its third-party administrator). E. ERISA Claims against Nonfiduciaries A nonfiduciary is not liable for damages under ERISA. Fink v. Union Cent. Life Ins. Co., 94 F.3d 489, 493 (8th Cir. 1996). See also Wilson v. Zoellner, 114 F.3d 713 (8th Cir. 1997) (reversing and remanding for lack of jurisdiction where claim against insurance agent was 759

improperly removed based on ERISA preemption). However, appropriate equitable relief can be obtained from a nonfiduciary “party in interest” pursuant to § 1132(a)(3). Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 241 (2000). Although the Eighth Circuit has not yet addressed such a claim, one district court has held that a claimant may seek restitution under § 502(a)(3) from a nonfiduciary service provider who knowingly participated in a fiduciary’s breach of duty. Clark v. Ameritas Inv. Corp., 408 F. Supp. 2d 819, 831 n.3 (D. Neb. 2005) (citing Harris, 530 U.S. at 241). XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees In Lawrence v. Westerhaus, 749 F.2d 494, 496 (8th Cir. 1984), the Eighth Circuit adopted a five-factor test to determine whether to award attorneys’ fees under 29 U.S.C. § 1132(g). Those factors are (1) the degree of culpability or bad faith of the opposing party, (2) the ability of the opposing party to pay attorneys’ fees, (3) whether an award of attorneys’ fees against the opposing party might have a future deterrent effect under similar circumstances, (4) whether the parties requesting attorneys’ fees sought to benefit all participants and beneficiaries of a plan or to resolve a significant legal question regarding ERISA itself, and (5) the relative merits of the parties’ positions. Id. at 496; Seitz v. Metro. Life Ins. Co., 433 F.3d 647, 652 (8th Cir. 2006). District courts have broad discretion in determining an appropriate attorney fee. Kahle v. Leonard, 563 F.3d 736, 760

743 (8th Cir. 2009). A district court need not consider all of the factors in every case. Christianson v. Poly-Am., Inc. Med. Benefit Plan, 412 F.3d 935, 941 (8th Cir. 2005). The five factors are neither exclusive nor to be mechanically applied. Martin v. Ark. Blue Cross & Blue Shield, 299 F.3d 966, 972 (8th Cir. 2002) (en banc). When considering the second factor (ability to pay), the district court should consider fundamental differences in planfunding mechanisms. Id. “Ordering large fee payments from an employee-funded plan might actually hurt the plan participants by increasing costs, contrary to the statutory purpose of ERISA.” Id. There is no presumption that a prevailing claimant is entitled to an award of attorneys’ fees. Martin, 299 F.3d at 971–72. Where the plan cooperates by expediting the exhaustion of administrative remedies, agrees to a stipulated record for the district court, agrees to a simultaneous briefing schedule, and does not appeal the district court’s adverse ruling, the district court does not abuse its discretion by refusing to award attorneys’ fees to the prevailing claimant. Id. at 973. In Martin, the court suggested that plan participants were better served by rejecting the claimants’ attorneys’ fee request. Id. (“A plan that understands it may avoid attorney fees if it acts appropriately and quickly is more likely to do so.”). B. Fees Awarded to Plan Fiduciaries The Eighth Circuit has upheld attorneys’ fee awards to fiduciaries. See Nielsen v. Trans World Airlines, Inc., 95 F.3d 701, 702–03 (8th Cir. 1996) (affirming attorneys’ fee award to employer where former employees’ brought 761

ERISA action in bad faith); FirsTier Bank, N.A. v. Zeller, 16 F.3d 907, 913 (8th Cir. 1994) (affirming fee award to plan trustee where plan specifically provided for such relief in all lawsuits except those “where it is finally determined that the Trustee has breached its duties”). C. Calculation of Attorneys’ Fees District courts have discretion over determining the appropriate rate and number of hours used to calculate fee awards. Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1330 (8th Cir. 1995). The Supreme Court’s lodestar formula is the starting point for determining the amount of a reasonable fee in ERISA cases. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate). In addition, district courts consider the amount of the recovery and the results obtained by the lawsuit. Griffin v. Jim Jamison, Inc., 188 F.3d 996, 997 (8th Cir. 1999). In cases where a fee award is appropriately made to a prevailing claimant, district courts, in calculating the award, may also consider the number of lawyers who had previously declined to represent the claimant before he or she found counsel to prosecute the case, whether the claimant obtained relief from each of the defendants, and the extent of the relief obtained against any particular defendant. Id. at 997–98. District courts have discretion to decide on a case-by-case basis which factors to give explicit consideration to. Id. A reduced fee is appropriate if the claimant’s relief, however significant, is limited as compared to the whole scope of litigation. Delcastillo v. Odyssey Res. Mgmt., 762

Inc., 431 F.3d 1124 (8th Cir. 2005). Where a claimant prevails on the question of liability but then “waste[s] valuable resources of … an ERISA plan, in litigating monetary remedy questions that should have been settled,” the district court does not abuse its discretion by reducing by half the fee award determined by the lodestar method. Geissal ex rel. Estate of Geissal v. Moore Med. Corp., 338 F.3d 926, 936 (8th Cir. 2003). A prevailing claimant may not recover attorneys’ fees incurred in preadministrative proceedings. Parke v. First Reliance Standard Life Ins. Co., 368 F.3d 999, 1011 (8th Cir. 2004). XII. ERISA Regulations Following an adverse benefit determination, a claimant is entitled to review the materials relevant to his or her claim. Midgett v. Wash. Group Int’l Long Term Dis. Plan, 561 F.3d 887 (8th Cir. 2009). “Under [C.F.R.] § 2560.503-1(h)(2)(iii), a plan only provides a claimant with a full and fair review of a claim and adverse benefit determination if ‘the claims procedures … provide that the claimant shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits.’” Id. The “adverse benefit determination” referred to throughout § 2560.503-1(h) is the plan administrator’s initial denial of a claim for benefits. Id. See also Janssen v. Minneapolis Auto Dealers Ben. Fund, 447 F.3d 1109, 1113 (8th Cir. 2006); Price v. Xerox Corp., 445 F.3d 1054, 1056 (8th Cir. 2006) (citing 29 C.F.R. § 2560.503-1(h)(1)).

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To be “full and fair,” claimants must have at least 180 days after an “adverse benefit determination” to file an administrative appeal. Price, 445 F.3d at 1056 (citing 29 C.F.R. § 2560.503-1(h)(3)(i), (h)(4)). The timing of later internal appeals is governed by § 2560.503-1(i). Id. A claimant is entitled to review the materials relevant to first-level and second-level appeal denials, but this does not require that a claimant be permitted to respond to and rebut these materials. Id. XIII. Cases Interpreting ERISA Statutes of Limitation The characterization of a claim for statute of limitations purposes is a question of federal law. Johnson v. State Mut. Life Assur. Co. of Am., 942 F.2d 1260, 1262 (8th Cir. 1991). Claim accrual is also governed by federal law. Abdel v. U.S. Bancorp., 457 F.3d 877, 880 (8th Cir. 2006). A “proof of claim” accrual clause may be enforceable. Blaske v. Unum Life Ins. Co. of Am., 131 F.3d 763, 764 (8th Cir. 1997). A cause of action for benefits under ERISA accrues when an administrator “formally denie[s] an applicant’s claim for benefits or when there has been a repudiation by the fiduciary which is clear and made known to the beneficiary.” Abdel, 457 F.3d at 880 (quoting Cavegn v. Twin City Pipe Trades Pension Plan, 223 F.3d 827, 829–30 (8th Cir. 2000)). Cf. Weyrauch, 416 F.3d at 721 (under Minnesota law, statute of limitations period for claim for disability benefits does not accrue until disability ends). In practice, the applicable limitations period varies depending on the jurisdiction, type of benefit, and panel considering the case. See Abdel, 457 F.3d at 880 764

(Minnesota’s two-year statute of limitations applies to claim for disability benefits); Weyrauch, 416 F.3d at 720 (Minnesota’s three-year statute of limitations applies to claim for disability benefits); Shaw v. McFarland Clinic, P.C., 363 F.3d 744, 748 (8th Cir. 2004) (Iowa’s general 10-year statute of limitations applies to claims for denial of preauthorization of surgery); Mead v. Intermec Tec. Corp., 271 F.3d 715 (8th Cir. 2001) (Iowa’s two-year statute of limitations applies to claim for short-term disability benefits); Anderson v. John Morrell & Co., 830 F.2d 872, 877 (8th Cir. 1987) (South Dakota’s six-year statute of limitations applies to claim for health benefits); Duchek v. Blue Cross & Blue Shield of Neb., 153 F.3d 648, 650 (8th Cir. 1998) (Nebraska’s five-year statute of limitations applies to claim for medical benefits); MinnKota Ag Prods., Inc. v. Carlson, 684 N.W.2d 60 (N.D. 2004) (North Dakota’s three-year statute of limitations applies to action for breach of fiduciary duty under 29 U.S.C. § 1113); Wilkins v. Hartford Life & Acc. Ins. Co., 299 F.3d 945, 948–49 (8th Cir. 2002) (three-year statute of limitations period applies over Arkansas’s five-year statute of limitations for actions on written contracts because Arkansas law provided for shorter limitations period, three years was reasonable, and the plan expressly adopted the shorter limitation period); Harris v. Epoch Group, L.C., 357 F.3d 822, 825 (8th Cir. 2004) (Missouri’s 10-year statute of limitations applies to claim for disability benefits). Indeed, district courts must consider the most analogous state law statute of limitations. Adamson v. Armco, Inc., 44 F.3d 650, 652 (8th Cir. 1995). However, a contractual limitations period shorter than the applicable state law may be effective.

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Weyrauch v. Cigna Life Ins. Co. of N.Y., 416 F.3d 717, 720 n.2 (8th Cir. 2005). XIV. Subrogation Litigation after Great-West Life v. Knudson Only equitable remedies, such as constructive trust, injunction, and restitution, are available to recover overpayment under ERISA. N. Am. Coal Corp. v. Roth, 395 F.3d 916, 917 (8th Cir. 2005). Legal remedies for recovery of overpayment are not authorized under 29 U.S.C. § 1132(a)(3). Id. at 917–18. The Eighth Circuit follows Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006), with respect to recovery of overpayments. Thus, overpayment claims are proper if the plan documents include a reimbursement provision, and the fiduciary seeks appropriate equitable relief and recovery from a particular share of specifically identified funds. Dillard’s v. Liberty Life Assur. Co. of Bos., 456 F.3d 894, 901 (8th Cir. 2006) (“Liberty seeks a particular share of a specifically identified fund—all overpayments. Accordingly, Liberty’s complaint constitutes a request for equitable relief[.]”). The Eighth Circuit has approved the “make whole” rule to plan claims for reimbursement from employee tort recoveries where the plan has the right to recover or subrogate 100 percent of the benefits paid by the plan on the employee’s behalf. Admin. Comm. of Wal-Mart Stores, Inc. Assocs.’ Health & Welfare Plan v. Shank, 500 F.3d 834, 839–40 (8th Cir. 2007). The doctrine applies even if it results in the employee receiving nothing in

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settlement with a third party after payment of fees, costs, and reimbursement to the plan. Id. XV. Miscellaneous A. Unique Substantive or Procedural Rules for ERISA Benefit Cases The Eighth Circuit has no unique rules for benefit cases. B. Unique Approach to Common Policy-Based Defenses 1. Mental/Nervous Limitation In applying the mental/nervous limitation, courts should consider how laypersons, rather than experts, would define mental illness. Brewer v. Lincoln Nat’l Life Ins. Co., 921 F.2d 150, 154 (8th Cir. 1990). As a result, “regardless of the cause of [the claimant’s] disorder, a disease which manifests itself in terms of mood swings and aberrant behavior is a ‘mental illness’ within the meaning of the policy.” Id. See also Stauch v. Unisys Corp., 24 F.3d 1054, 1056 (8th Cir. 1994) (“depression, fatigue, irritability, sleeplessness, poor appetite and impaired concentration and memory” subject to mental illness limitation in policy); Walke v. Group Long-Term Dis. Ins., 256 F.3d 835, 841 (8th Cir. 2001) (fatigue, anxiety, dizziness, and tachycardia were subject to mental illness limitation). 2. Total Disability versus Residual Disability

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The Eighth Circuit recognizes the distinction between total and residual (or partial) disability benefits in ERISA plans. In McOsker v. Paul Revere Life Ins. Co., the Eighth Circuit enforced a residual disability provision that it viewed as less than clear: It is evident to us that a person who can perform some but not all of his or her important duties has a “Residual Disability” within the meaning of the policy, and that therefore in order to be eligible for total disability payments a person would be required to show that he or she was unable to perform any of those important duties. We believe that it is not otherwise possible to give effect to both parts of the contract. 279 F.3d 586, 588 (8th Cir. 2002). 3. Preexisting-Condition Exclusion Preexisting-condition exclusions are enforceable in ERISA-regulated policies. See, e.g., Wise v. Kind & Knox Gelatin, 429 F.3d 1188, 1191 (8th Cir. 2005) (medical benefits); Davolt v. Exec. Comm. of O’Reilly Auto., 206 F.3d 806 (8th Cir. 2000) (holding that exclusion applied to long-term disability benefits claim regardless of the standard of review); Marshall v. Unum Life Ins. Co., 13 F.3d 282, 284–85 (8th Cir. 1994) (long-term disability benefits). The preexisting-condition exclusion may apply, despite the lack of a clear diagnosis. Id. at 285. 4. Burden of Proof

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Where the plan requires the claimant to provide “proof” of entitlement to benefits, he has the burden of substantiating his claim. Sahulka v. Lucent Techs., Inc., 206 F.3d 763, 768 (8th Cir. 2000). See also Ferrari v. Teachers Ins. & Ann. Ass’n, 278 F.3d at 806 (fault for claimant’s failure to submit documentation that might have affected the administrator’s decision lies with claimant himself); Torres v. Unum Life Ins. Co. of Am., 405 F.3d 670, 678 (8th Cir. 2005) (“UNUM was not required to articulate a theory for Torres’s inability to perform his job, but rather to consider the evidence Torres submitted to determine whether it proved him disabled.”). 5. Prejudgment Interest An award of prejudgment interest is within the discretion of the district court. Leonard v. S.W. Bell Corp. Dis. Income Plan, 408 F.3d 528, 533 (8th Cir. 2005). “Prejudgment interest awards are permitted under ERISA when necessary to afford the plaintiff other appropriate equitable relief under Section 1132(a)(3)(B).” Christianson v. Poly-Am., Inc. Med. Benefit Plan, 412 F.3d 935, 941 (8th Cir. 2005). Prejudgment interest may not be awarded where a claimant fails to submit proof of a disabling condition. Jackson v. Fortis, 245 F.3d 748, 750 (8th Cir. 2001). The district courts were directed to use 28 U.S.C. § 1961 in determining the amount of prejudgment interest. Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1331 (8th Cir. 1995). C. Other Miscellaneous Issues

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The Eighth Circuit offers little authority concerning certification of class actions in ERISA cases. In Parke v. First Reliance Standard Life Ins. Co., 368 F.3d 999 (8th Cir. 2004), a beneficiary sought to certify a class seeking to enjoin an administrator from terminating long-term disability benefits without, as the beneficiary alleged, requesting or receiving evidence that the allegedly disabling condition had improved. The Eighth Circuit affirmed the district court’s denial of class certification, reasoning that the question of whether the administrator breached its obligations to the members of the class required “a case-by-case determination” and that the claimant had an adequate remedy at law. Id. at 1006.

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CHAPTER 9 Ninth Circuit HORACE W. GREEN JASON A. JAMES LINDA M. LAWSON KATHERINE SOMERVELL ALLISON VANA I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan A plan may be created under ERISA without an intentional plan adoption if “from the surrounding circumstances a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits.” Carver v. Westinghouse Hanford Co., 951 F.2d 1083, 1086 (9th Cir. 1991) (quoting Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir. 1982) (en banc)). The Ninth Circuit has held that an ERISA plan exists if the following requirements are met: (1) A “plan, fund or program” (2) established or maintained (3) by an employer or by an employee organization, or both (4) for the purpose of providing

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medical, surgical, hospital care, sickness, accident, disability, death, unemployment, or vacation benefits … (5) to the participants or their beneficiaries. Kanne v. Conn. Gen. Life Ins. Co., 867 F.2d 489, 491–92 (9th Cir. 1988) (quoting Donovan, 688 F.3d at 1371); Steen v. John Hancock Mut. Life Ins. Co., 106 F.3d 904, 917 (9th Cir. 1997). Severance plans are not governed by ERISA because they provide a one-time benefit that does not require ongoing administration. Velarde v. PACE Membership Warehouse, 105 F.3d 1313, 316–17 (9th Cir. 1997); Delaye v. Agripac, Inc., 39 F.3d 235, 237 (9th Cir. 1994). Other exempted plans include employee benefit plans provided by governmental entities or as part of a church plan. 29 U.S.C. § 1003(b)(1-2). There are exceptions to this exemption, though. A plan that covers governmental employees but that is not established or maintained by a governmental entity will not qualify for the ERISA exemption. See Sarraf v. Standard Ins. Co., 102 F.3d 991, 993 (9th Cir. 1996) (finding that Orange County Employees Association plan is governed by ERISA because it was organized by government employees as opposed to a governmental employer, and that ERISA covers benefit funds managed by employee or employer organizations). But see Silvera v. Mut. Life Ins. Co. of N.Y., 884 F.2d 423, 426 (9th Cir. 1989) (finding that a city-managed or -established benefit plan qualifies as a government plan and is exempt from ERISA coverage pursuant to 29 U.S.C. § 1003(b)(1)). B. Definition of “Employee” for ERISA Purposes

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In the context of determining whether individuals designated as independent contractors were in fact common-law employees, the Ninth Circuit noted that “when Congress uses the word ‘employee,’ courts ‘must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning’ of the word.” Vizcaino v. Microsoft Corp., 120 F.3d 1006, 1009 (9th Cir. 1997) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992)). With respect to plans that cover partners or shareholders in addition to employees, the Ninth Circuit has held that while such persons are not “participants” under the plan, they do qualify as “beneficiaries,” thus rendering their claims under the plan subject to ERISA. Peterson v. Am. Life & Health Ins. Co., 48 F.3d 404, 408 (9th Cir. 1995). Where, however, the owner’s plan is for the sole benefit of the owner, is separate and distinct from any plan covering employees, and was not created contemporaneously with the employee plan, the owner’s policies will not be subject to ERISA. LaVenture v. Prudential Ins. Co. of Am., 237 F.3d 1042, 1047 (9th Cir. 2001). More recently, the Supreme Court has held that a working owner of a company who was also the sole shareholder and president could qualify as a “participant” so long as the plan covers one or more employees other than himself and his spouse. Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1, 6 (2004). C. Interpretation of Safe Harbor Regulation Ninth Circuit jurisprudence expressly requires that all four “safe harbor” criteria outlined by the Department of 773

Labor be met in order to exempt a plan from ERISA. Kanne v. Conn. Gen. Life Ins. Co., 867 F.2d 489, 492 (9th Cir. 1988) (quoting 29 C.F.R. § 2510.3-1(j)(1987)); Stuart v. Unum Life Ins. Co. of Am., 217 F.3d 1145, 1153 (9th Cir. 2000). Thus, each of the following factors must be established: (1) no contributions are made by an employer or employee organization; (2) participation in the program is completely voluntary for employees or members; (3) the sole functions of the employer or employee organization with respect to the program are, without enforcing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoff, and to remit them to the insurer; and (4) the employer or employee organization receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding a profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs. See 29 C.F.R. § 2510.3-1(j). D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan Unless all four criteria of the safe harbor requirements are met, the Ninth Circuit considers the employer’s involvement in a group insurance plan significant enough to constitute an “employee benefit plan” subject to ERISA. Kanne, 867 F.2d at 494 (state law claims against insurer were preempted by ERISA where only one of the above-mentioned conditions was not met). See also

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Qualls ex rel. Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839, 844 (9th Cir. 1994); Stuart, 217 F.3d at 1149–51. E. Does the Ninth Circuit Recognize a “List Bill” Exception for Individual Policies? District judges in the Ninth Circuit will consider list billing as one of several factors when evaluating whether an individual policy is part of an ERISA plan, but the mere fact that the premiums are list-billed is not determinative. The key to making this determination is whether the employer “actually absorbed any portion of the cost of [the] premiums,” or if it was “merely a conduit” for premium payments actually made by the insureds. Schwartz v. Provident Life and Acc. Ins. Co., 280 F. Supp. 2d 937, 939–42 (D. Ariz. 2003). This analysis is in conjunction with other factors such as deducting premiums as a business expense, providing administrative support, and meeting with an insurance agent. Id. See also Roehrs v. Minnesota Life, 390 F. Supp. 2d 886, 894–95 (D. Ariz. 2005) (list-billing did not exempt individual policies from ERISA where employer paid entire cost of premium). F. Treatment of Multiple Employer Trusts and Welfare Agreements An employer can establish an ERISA plan by subscribing to a multiple employer trust (MET) or multiple employer welfare arrangement (MEWA). Credit Managers Ass’n v. Kennesaw Life & Acc. Ins., 809 F.2d 617, 625 (9th Cir. 1987). Although the MET or MEWA is not itself an ERISA plan, the employer’s arrangement of a “group775

type insurance program” by subscribing to a MET or MEWA may still establish an ERISA plan at the employer level. Crull v. GEM Ins. Co., 58 F.3d 1386, 1389 (9th Cir. 1995). II. Preemption A. Scope of ERISA Preemption Relying on the landmark Supreme Court decision, Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987), the Ninth Circuit has found that “ERISA preempts state common law tort and contract causes of action asserting improper processing of a claim for benefits under an insured employee benefit plan.” Bast v. Prudential Ins. Co. of Am., 150 F.3d 1003, 1007 (9th Cir. 1998). Thus, under Pilot Life, ERISA preempts state common law claims for relief for breach of the covenant of good faith and fair dealing. See id. at 1007–08. In Kanne v. Conn. Gen. Life Ins. Co., 867 F.2d 489, 493–94 (9th Cir. 1989), the Ninth Circuit held that the private right of action given to beneficiaries under California Insurance Code Section 790.03(h), which “prohibits various ‘unfair insurance practices’ having to do with the processing of claims,” was preempted by ERISA, even assuming Section 790.03(h) was a law regulating insurance under the ERISA savings clause. The Ninth Circuit relied on Pilot Life, which made clear that Congress intended ERISA’s enforcement provisions to be the sole method by which plan beneficiaries and participants could bring actions asserting the improper 776

processing of a claim for benefits. See id. at 494. See also Spain v. Aetna Life Ins. Co., 11 F.3d 129 (9th Cir. 1993) (relying on Pilot Life and Kanne in holding that ERISA preempts a state common law wrongful death cause of action that was based upon the plan administrator’s alleged negligent administration of a claim); Greany v. Western Farm Bureau Life Ins. Co., 973 F.2d 812, 819 (9th Cir. 1992) (relying on cases including Pilot Life and Kanne in holding that Montana’s unfair claims settlement practices statutes did not regulate insurance but were civil enforcement provisions and, therefore, were preempted). In more recent cases, the Ninth Circuit has provided some clarification about the scope of ERISA preemption, noting earlier confusion about the difference between “conflict preemption” and “complete preemption.” See Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944–47 (9th Cir. 2009). However, there may still be some inconsistency in terminology. The phrase “conflict preemption” is at times used in connection with express preemption under Section 514(a) and at times in connection with preemption under Section 502(a). The Ninth Circuit has clarified that “[t]here are two strands of ERISA preemption: (1) ‘express’ preemption under ERISA § 514(a), 29 U.S.C. § 1144(a); and (2) preemption due to a ‘conflict’ with ERISA’s exclusive remedial scheme set forth in [ERISA § 502(a),] 29 U.S.C. § 1132(a).” Fossen v. Blue Cross and Blue Shield of Mt., Inc., 660 F.3d 1102, 1107 (9th Cir. 2011) (citations and additional internal quotation marks omitted), cert. denied, 132 S. Ct. 2780 (2012), cert. denied, 133 S. Ct. 979 (2013). “All of these preemption provisions defeat state777

law causes of action on the merits.” Id. (citations omitted). “Conflict preemption under ERISA § 502(a), however, also confers federal subject matter jurisdiction for claims that nominally arise under state law.” Id. (citing Marin, 581 F.3d at 945). “Ordinarily, federal question jurisdiction does not lie where a defendant contends that a state-law claim is preempted by federal law.” Id. (citations omitted). “But state-law claims may be removed to federal court if the ‘complete preemption’ doctrine applies.” Id. (citations omitted). Each strand of preemption is discussed further below. However, while Fossen referred to “conflict preemption under ERISA § 502(a),” which may confer federal subject matter jurisdiction, Id., Marin (decided two years earlier) referred to “conflict preemption under § 514(a) of ERISA.” See Marin, 581 F.3d at 945 (“The general rule is that a defense of federal preemption of a state-law claim, even conflict preemption under § 514(a) of ERISA, is an insufficient basis for original federal question jurisdiction under § 1331(a) and removal jurisdiction under § 1441(a).”). Marin also noted “the parties’ confusion between complete preemption under § 502(a), which provides a basis for federal question removal jurisdiction, and conflict preemption under § 514(a), which does not.” Id. at 945–46 (also stating that some of the Ninth Circuit’s “more recent decisions have made clear the distinction between complete preemption and conflict preemption”). See also City of Hope Nat’l Med. Ctr. v. AFL Hotel & Rest. Workers’ Health & Welfare Plan, 446 F. App’x 53, 54 (9th Cir. 2011) (unpublished case referring to 29 U.S.C. § 1144(a), “which provides that ERISA shall generally ‘supersede any and all state 778

laws insofar as they may now or hereafter relate to any employee benefit plan,’” as “the ‘conflict preemption’ clause of ERISA”). As discussed further below, the Ninth Circuit has distilled a two-part test for “complete preemption” under Section 502(a), which provides a basis for removal jurisdiction based upon a federal question. The two-part test is derived from Aetna Health Inc. v. Davila, 542 U.S. 200 (2004). See, e.g., Fossen, 660 F.3d at 1107–08; Marin, 581 F.3d at 946. See also Marin, 581 F.3d at 945 (stating that complete preemption is “really a jurisdictional rather than a preemption doctrine,” because it “confers exclusive federal jurisdiction in certain instances where Congress intended the scope of a federal law to be so broad as to entirely replace any state-law claim.”) (citation and internal quotation marks omitted). 1. Express Preemption With respect to the first “strand” of ERISA preemption, express preemption under ERISA Section 514(a), Fossen, 660 F.3d at 1107, ERISA preempts state laws that “relate to any employee benefit plan….” 29 U.S.C. § 1144(a). A state law “relates to” an employee benefit plan if it “refers to” or has an impermissible “connection with” an ERISA plan, a two-part inquiry. See Ca. Div. of Labor Standards Enforcement v. Dillingham Construction, N.A., Inc., 519 U.S. 316, 324–25 (1997). In N.Y.S. Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995), the Supreme Court “recognized that the two-part inquiry it had adopted 779

to interpret § 514(a) did not provide much additional guidance in cases hinging on a law’s ‘connection with’ an employee benefit plan.” Golden Gate Rest. Ass’n v. City and County of San Francisco, 546 F.3d 639, 654 (9th Cir. 2008), cert. denied, 130 S. Ct. 3497 (2010) (citing Travelers, 514 U.S. at 656). The Supreme Court reasoned that it had to “go beyond the unhelpful text and the frustrating difficulty of defining [Section 514(a)’s] key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.” Travelers, 514 U.S. at 656. The Ninth Circuit has read Travelers “as narrowing the Court’s interpretation of the scope of § 514(a).” Golden Gate, 546 F.3d at 654. Similarly, in an earlier case, Az. State Carpenters Pension Trust Fund v. Citibank, 125 F.3d 715, 723 (9th Cir. 1997), the Ninth Circuit recognized that there were limits to ERISA’s preemptive sweep. Relying on Travelers, the Ninth Circuit formulated a test emphasizing three areas in which Congress intended for ERISA to preempt state laws. Id. ERISA preempts state laws that (1) “mandate employee benefit structures or their administration[,]” (2) “bind employers or plan administrators to particular choices or preclude uniform administrative practice[,]” and (3) provide “alternate enforcement mechanisms for employees to obtain ERISA plan benefits.” Id. (quoting Coyne & Delany Co. v. Selmon, 98 F.3d 1457, 1468 (4th Cir. 1996) (citing and quoting Travelers, 514 U.S. at 658)). The Ninth Circuit concluded that state laws are not preempted if they “fall outside [of these] three areas …, arise from state laws of general application, do not depend upon 780

ERISA, and do not affect the relationships between the principal ERISA participants.” Az. State Carpenters, 125 F.3d. at 724. In a later decision that same year, the Ninth Circuit used a “relationship” test to determine the limits of ERISA preemption, while also finding that the state law claims were not preempted under Arizona State Carpenters. See Geweke Ford v. St. Joseph’s Omni Preferred Care Inc., 130 F.3d 1355 (9th Cir. 1997). The relationship test maintains that when state laws infringe upon an ERISA relationship, they are preempted. ERISA relationships do not include those that are common to all other commercial entities, such as the relationship between the plan and its own employees or its insurers and creditors. Id. at 1358. In Geweke Ford, an employer brought suit against its third-party administrator and excess liability insurance company for failure to perform their contractual duties. Id. at 1357. The Ninth Circuit held that contract law, not ERISA, affected the relationship between the plaintiff and the third-party administrator. Id. at 1359. Likewise, the relationship between the plaintiff and the excess liability insurer was like that of any commercial entity and, thus, not preempted by ERISA. Id. The Ninth Circuit later stated that it has “not arrived upon a single, precise rule that universally determines whether ERISA preempts a state law.” Rutledge v. Seyfarth, Shaw, Fairweather & Geraldson, 201 F.3d 1212, 1217 (9th Cir. 2000), amended, 208 F.3d 1170 (9th Cir. 2000), abrogated on other grounds as stated in Fossen v. Blue Cross and Blue Shield of Mt., Inc., 660 F.3d 1102, 1111–12 (9th Cir. 2011). Rather, in cases that include 781

Arizona State Carpenters and Geweke Ford, the Ninth Circuit formulated “several different, though compatible” tests in an effort to follow the Supreme Court in maintaining broad preemption as mandated by ERISA while not intruding upon areas that have traditionally been governed by state law. See Rutledge, 201 F.3d at 1217–19. “[U]nder each test, a core factor leading to the conclusion that a state law claim is preempted is that the claim bears on an ERISA-regulated relationship.” Id. at 1219. But see Dishman v. Unum Life Ins. Co. of Am., 269 F.3d 974, 981 n.15 (9th Cir. 2001) (citing Rutledge but declining to apply any of the “different, though compatible, tests” that the Ninth Circuit had formulated because “the Supreme Court’s recent cases have eschewed such multifactor tests in favor of a more holistic analysis guided by congressional intent,” and the tests “are of marginal utility” when the “question boils down to whether state tort law ‘relates to’ an ERISA plan”). The effect of these tests, and of the application of Supreme Court precedent such as Travelers and Dillingham, has been a narrowing of the scope of ERISA’s preemption. For example, in Golden Gate, the Ninth Circuit held that Section 514(a) of ERISA did not preempt the employer spending requirements of a San Francisco ordinance, requiring covered employers to make minimum health care expenditures on behalf of covered employees. Applying the two-part inquiry to determine whether the ordinance “relate[s] to” an ERISA plan, the Ninth Circuit found, in part, that there was no impermissible “reference to” an ERISA plan since the employers did not need to have an ERISA plan at all; and if they did have such a 782

plan, they did not need to make any changes to it. Golden Gate, 546 F.3d at 659. “Where a law is fully functional even in the absence of a single ERISA plan … it does not make an impermissible reference to ERISA plans.” Id. (citation omitted). Less than one year later, the Ninth Circuit cited to principles set forth in Travelers, Dillingham, and Rutledge in finding no express preemption. In Paulsen v. CNF Inc., 559 F.3d 1061 (9th Cir. 2009), the plaintiffs (former employees of a company that underwent reorganization, including a spin-off that created a new company), sued, in part, the actuarial company involved in the spin-off, alleging professional negligence in valuing the plan liabilities to be transferred at spin-off and in repeatedly certifying after spin-off that the new plan was adequately funded. See id. at 1065–66. In addressing the “reference to” preemption inquiry, the Ninth Circuit stated: “To determine whether a law has a forbidden ‘reference to’ ERISA plans, we ask whether (1) the law ‘acts immediately and exclusively upon ERISA plans,’ or (2) ‘the existence of ERISA plans is essential to the law’s operation.’” Id. at 1082 (quoting Golden Gate, 546 F.3d at 657 (citing and quoting Dillingham, 519 U.S. at 325)). The court then found that the employees’ state law negligence claims were not preempted under the “reference to” prong of the preemption test. Id. The claims were based on common law negligence principles and California Civil Code §§ 1708 and 1714(a). Those laws did not act “immediately and exclusively” on ERISA plans, and the existence of an ERISA plan was not essential to their operation. Id. The court employed a “relationship test” in analyzing the “connection with” 783

inquiry, finding that the professional negligence claims did not encroach on ERISA-regulated relationships. The negligence claims did not interfere with relationships between the plans and a participant, between the plans and the employers, or between the employers and their employees. Id. at 1082–83. Finally, the Ninth Circuit also stated that the negligence claims “would likely be conflict preempted” if the employees were suing for benefits based on the plan language, which they were not. Id. at 1084. See also Regional Care Servs. Corp. v. Companion Life Ins. Co., 869 F. Supp. 2d 1079, 1086 (D. Ariz. 2012) (referencing relationship test in finding that ERISA preemption does not apply to a contract dispute between a self-insured employer and its reinsurer under a stop-loss policy). Other cases within the Ninth Circuit also demonstrate a narrowing of the scope of express preemption subsequent to Travelers. See, e.g., Nagrone v. Davis, 368 F. App’x 743 (9th Cir. 2010) (unpublished decision) (applying relationship test and finding that ERISA did not preempt a state law claim by participants in an employee stock ownership plan alleging breach of corporate duties owed to corporation; the relationship between the corporation and defendants did not encroach upon an ERISA regulated relationship); Oregon Columbia Brick Masons Joint Apprenticeship Training Comm. v. Gardner, 448 F.3d 1082 (9th Cir. 2006) (following Travelers and Dillingham in finding that the “needs” requirement of certain Oregon statutory law, which in effect limited the number of state-recognized apprenticeship training programs in a given area, was not preempted by ERISA).

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On the other hand, other recent cases have found preemption and some continue to reference the broad scope of ERISA preemption. See, e.g., Fossen, 660 F.3d at 1108 (stating that ERISA § 514(a)’s “broad preemption provision is tempered by a savings clause in § 514(b)”); Wise v. Verizon Communications, Inc., 600 F.3d 1180, 1190–91 (9th Cir. 2010) (finding that plaintiff’s “state law theories of fraud, misrepresentation, and negligence all depend on the existence of an ERISA-covered plan to demonstrate that Wise suffered damages: the loss of insurance benefits. Because Wise must allege the existence of an ERISA plan to state her claims under Washington law, the claims are preempted”); Saylor v. Unum Life Ins. Co. of Am., 2011 WL 2883320, at *3 (C.D. Cal. 2011) (“Given the Supreme Court’s instruction that Section 514(a) is to be construed broadly, it is clear that Plaintiff’s [negligent misrepresentation] claim ‘relates to’ Adesta’s employee benefit plan.”) Cavanaugh v. Providence Health Plan, 699 F. Supp. 2d 1209, 1221–23 (D. Or. 2010) (ERISA preempted claims based on Oregon statutes that purportedly preclude defendant from seeking a lien or reimbursement under the plan on an amount the beneficiary recovered in other litigation; claims “refer to” an ERISA plan because they ask the court to preclude defendant from seeking reimbursement or a lien under the plan, and had a “connection to” an ERISA plan because they sought to bind an ERISA plan administrator to “particular choices” for seeking reimbursement or a lien); Bucholz v. Liberty Mut. Ins. Co., 2010 WL 4272461 (D. Or. 2010) (ERISA preempted breach of contract and conversion claims with respect to COBRA continuation coverage; claims “relate to” an

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ERISA plan as they are premised on the existence of such a plan). 2. Interpretation of “Savings Clause” Pursuant to Miller Even if a state law “relate[s] to” an ERISA plan, “ERISA’s preemption provision contains a savings clause that excludes from preemption any state law that regulates insurance.” Townsend v. Thomas Reuters Group Disability Income Ins. Plan, 807 F. Supp. 2d 924, 927 (C.D. Cal. 2011) (citing 29 U.S.C. § 1144(b)(2)(A)). See also 29 U.S.C. § 1144(b)(2)(A) (providing that, with certain exceptions, “nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance….”). A state law must satisfy two requirements to be deemed a law which “regulates insurance” under the savings clause. “First, the state law must be specifically directed toward entities engaged in insurance…. Second, … the state law must substantially affect the risk pooling arrangement between the insurer and the insured.” Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 341–42 (2003) (internal citations omitted). A California appellate court has held that California Health and Safety Code Section 1371.4, a provision of the Knox-Keene Health Care Service Plan Act of 1975, was saved from preemption. Coast Plaza Doctors Hosp. v. Blue Cross of Ca., 173 Cal. App. 4th 1179 (2009). Under that provision, a health care service plan is required to reimburse a provider for the cost of emergency care to a plan enrollee. See id. at 1182. The court found the first prong of the Miller test satisfied. Section 1371.4 is 786

specifically directed toward the insurance industry because it imposes conditions on the right of insurers to conduct business in California. Id. at 1187. Under the second prong, the statute substantially affects the risk pooling arrangement between insurers and insureds because it requires the insurer to pay for emergency services rendered until the insured is stabilized, which dictates the conditions under which the insurer must pay for the risk it has assumed (i.e., the risk that the insured may need emergency care). Id. at 1188. Moreover, the statute expands the number of providers from whom an insured may receive services because it prohibits an insurer from requiring authorization before a provider renders emergency care. Id. The statute also alters the scope of permissible bargains between the insurer and insured by telling them what bargains are acceptable and unacceptable (i.e., they cannot enter into a bargain whereby the insurer only pays for emergency services from an in-network provider). Id. at 1188–89. See also id. at 1189 (noting that under ERISA’s “deemer clause,” “a state law that regulates ‘self-funded’ ERISA plans, even if it regulates insurance within the meaning of the saving clause, is not ‘saved’ from preemption”; however, the ERISA plan at issue was not self-funded). But cf. Cleghorn v. Blue Shield of Ca., 408 F.3d 1222, 1226–27 & n.6 (9th Cir. 2005) (court did not decide whether Section 1371.4(c) was saved from preemption because state law unfair competition and consumer legal remedies act claims alleging that defendant violated that provision in denying plan benefits were preempted under ERISA Section 502(a)).

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In Standard Ins. Co. v. Morrison, 584 F.3d 837 (9th Cir. 2009), the Ninth Circuit addressed whether the Montana Insurance Commissioner’s practice of disapproving insurance policies with clauses vesting discretion in insurers ran afoul of ERISA. No one disputed that the Commissioner’s practice “relates to” an ERISA plan. Therefore, that practice was preempted unless preserved by the savings clause. See id. at 841–42. The court applied the two-part test set forth in Miller. In applying the first prong, the court found that the Commissioner’s practice of disapproving insurance forms containing discretionary clauses “is specific to the insurance industry” and “addresses an insurance-specific problem, because discretionary clauses generally do not exist outside of insurance plans.” Id. at 843. In addressing the second prong, the Ninth Circuit stated, “[t]he requirement that insurance regulations substantially affect risk pooling ensures that the regulations are targeted at insurance practices, not merely at insurance companies.” Id. at 844. In finding this prong met, the Ninth Circuit determined that the Commissioner’s practice narrowed the scope of permissible bargains between insurers and insureds. Moreover, “[b]y removing the benefit of a deferential standard of review from insurers, it is likely that the Commissioner’s practice will lead to a greater number of claims being paid. More losses will thus be covered, increasing the benefit of risk pooling for consumers.” Id. at 844–45. Therefore, the Commissioner’s practice was “saved from preemption under 29 U.S.C. § 1144(a) by the savings clause in section 1144(b).” Id. at 845. See also Murray v. Anderson Bjornstad Kane Jacobs, Inc., 2011 WL 617384 (W.D. Wash. 2011) (relying in part on Morrison in finding that Washington state regulation 788

prohibiting disability insurance policies from containing discretionary clauses was saved from preemption); Landree v. The Prudential Ins. Co. of Am., 833 F. Supp. 2d 1266, 1273–74 (W.D. Wash. 2011) (addressing same regulation at issue in Murray and agreeing with Murray that “ERISA does not preempt the Regulation because the Regulation satisfies the two-part test laid out in [Miller]”) (reconsideration granted in part on other grounds, regarding retroactive application of the regulation, in 2011 WL 3438860 (W.D. Wash. 2011)). On the other hand, district courts within the Ninth Circuit have found that ERISA preempts purported state law standards for defining disability, and those purported standards were not saved from ERISA preemption. For example, in Smith v. Hartford Life & Acc. Ins. Co., 2013 WL 394185 (N.D. Cal. 2013), the plaintiff argued that the “any occupation” definition of disability in the relevant group policy did not apply; rather a “less broad” standard set forth in Erreca v. W. States Life Ins. Co., 19 Cal. 2d 388 (1942), applied. The district court rejected this argument. “The Erreca standard … does not apply in ERISA cases because it is preempted.” Smith, 2013 WL 394185, at *17. The Smith court cited the Miller test for determining whether a state law falls under ERISA’s savings clause, but found that the Erreca “standard” did not qualify for the “savings clause exception.” “In enacting the enforcement provisions of ERISA, 29 U.S.C. § 1132, Congress clearly expressed an intent that those provisions be the exclusive vehicle for actions by ERISAplan participants and beneficiaries asserting improper processing of claims for benefits, and that varying state 789

law causes of action for claims within the scope of 29 U.S.C. § 1132 would pose an obstacle to the purposes and objectives of Congress.” Id. at *18 (citing Pilot Life, 481 U.S. at 52; and Travelers, 514 U.S. at 657). “Accordingly, the Ninth Circuit has held that state laws of insurance policy interpretation do not qualify for the saving[s] clause exception and are preempted.” Id. (citation and internal quotation marks omitted). “For this reason, courts in this Circuit have found that the Erreca standard does not apply in ERISA cases.” Id. (citations omitted). Smith found that “the California law standard of ‘total disability’ that is found in Erreca is preempted.” Id. at *19. See also Ramos v. United of Omaha Life Ins. Co., 2013 WL 60985, at *7 (N.D. Cal. 2013) (“[T]he court finds that California’s definition of ‘total disability’ is not applicable to an ERISA disability insurance policy.”); Brady v. United of Omaha Life Ins. Co., 2012 WL 3583033, at *5–7 (N.D. Cal. 2012) (rejecting argument that ERISA’s savings clause saved “California’s definition of ‘total disability’ from being preempted”); Kaufman v. Unum Life Ins. Co. of Am., 834 F. Supp. 2d 1186, 1191 (D. Nev. 2011) (rejecting plaintiff’s argument that state law interpreting “total disability” applied). B. Conflict or Complete Preemption “Even if a state law is saved from express preemption under § 1144(a) because it ‘regulates insurance,’ it can be preempted under § 1132(a).” Glaubach v. Regence Blueshield, 2006 WL 711523, at *1 (9th Cir. 2006) (citing Aetna Health Inc. v. Davila, 542 U.S. 200, 216–17 (2004)). Cf. Turnipseed v. Educ. Mgmt. LLC’s Employee Disability Plan, 2010 WL 140384, at *3 (N.D. Cal. 2010) 790

(“Where a state law is preempted under section 502(a), the savings clause will not save the law from preemption.”); see also Davila, 542 U.S. at 209 (“[A]ny state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted.”); Cleghorn v. Blue Shield of Ca., 408 F.3d 1222, 1225 (9th Cir. 2005) (citing Davila and stating that “[a] state cause of action that would fall within the scope of [§ 502(a)’s] scheme of remedies is preempted as conflicting with the intended exclusivity of the ERISA remedial scheme, even if those causes of action would not necessarily be preempted by section 514(a).”). Recent decisions within the Ninth Circuit have discussed conflict preemption based upon ERISA Section 502(a), 29 U.S.C. § 1132(a), apart from the two-step “complete preemption” analysis the Ninth Circuit has distilled under Davila in determining whether federal jurisdiction exists. ERISA Section 502(a) “prescribes ‘a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans.’” Hill v. Opus Corp., 841 F. Supp. 2d 1070, 1080 (C.D. Cal. 2011) (quoting Pilot Life, 481 U.S. at 54). “[A]ny state law claim that ‘would fall within the scope of [ERISA’s] scheme of remedies is preempted as conflicting with the intended exclusivity of the ERISA remedial scheme.’” Id. at 1085 (quoting Paulsen v. CNF Inc., 559 F.3d 1061, 1084 (9th Cir. 2009) (alterations added by Hill court)). “ERISA’s exclusive enforcement provision outlines a participant’s possible 791

claims, which include (1) an action to recover benefits due under the plan, ERISA § 502(a)(1)(B); (2) an action for breach of fiduciary duties, ERISA § 502(a)(2); and (3) a suit to enjoin violations of ERISA or the Plan, or to obtain other equitable relief.” Id. (citing and quoting Paulsen, 559 F.3d at 1085) (internal quotation marks and additional citation omitted). After citing Davila, 542 U.S. at 209, the Hill court stated that if the plaintiff’s claim “can be characterized as a claim to recover benefits due … under the terms of the plan as allowed by [§ 502(a)(1)(B)], the claim [is] likely … conflict preempted because ERISA would provide both a cause of action and an enforcement remedy.” Hill, 841 F. Supp. 2d at 1085 (citing and quoting Paulsen) (citation and internal quotation marks omitted). In Hill, the district court held that state law claims for intentional interference with contract, inducing breach of contract, violations of California’s Unfair Competition Law, unjust enrichment, and declaratory relief were preempted, “since all unequivocally seek the return of benefits plaintiffs claim are due under the plans.” Id. at 1081, 1085–86. See also Cleghorn, 408 F.3d at 1226 (holding that state law claims were preempted where “the factual basis of the complaint … was the denial of reimbursement of plan benefits”); Turnipseed, 2010 WL 140384, at *3–4 (§ 502(a) preempted plaintiff’s claim for prejudgment interest under Cal. Ins. Code § 10111.2 because allowing plaintiff to proceed with such a claim “would effectively impose a mandatory prejudgment interest rate of 10% on successful ERISA claims, expanding the scope of ERISA damages and supplementing the ERISA enforcement remedy”). 792

The Ninth Circuit has observed that a court need not consider whether a state statute “relates to” an ERISA plan under ERISA Section 514(a) when addressing preemption under Section 502(a). Cleghorn, 408 F.3d at 1226. See also Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 946 (9th Cir. 2009) (citing Cleghorn in discussing the distinction between preemption under § 514(a) and § 502(a)). Further, preemption under Section 502(a) “is not affected by [the savings clause] exception”; therefore, when a state law is preempted under Section 502(a), the court “need not decide” whether it is saved from preemption “as a state regulation of insurance.” Cleghorn, 408 F.3d at 1226–27 & n.6. The Ninth Circuit has also relied on Davila in applying a “two-prong test for complete preemption” to determine if federal removal jurisdiction exists. See Pierce v. Wells Fargo Bank, N.A., 380 F. App’x 635, 636 (9th Cir. 2010) (unpublished decision); see also Marin, 581 F.3d at 945–46. A state law claim is completely preempted by Section 502(a) if “(1) an individual, at some point in time, could have brought the claim under ERISA § 502(a)(1)(B), and (2) where there is no other independent legal duty that is implicated by a defendant’s actions.” Fossen, 660 F.3d at 1107–08 (citing and quoting Marin, 581 F.3d at 946) (additional citation and internal quotation marks omitted). Application of the second Davila prong “requires a practical, rather than a formalistic, analysis” because a claimant “simply cannot obtain relief by dressing up an ERISA benefits claim in the garb of a state law tort.” Id. at 1110–11 (citations and internal quotation marks 793

omitted). Both prongs of the Davila test must be satisfied for Section 502(a) to preempt a state law cause of action. Id. at 1108. Moreover, the complete preemption doctrine is not limited to ERISA Section 502(a)(1)(B); it “applies to the other subparts of § 502(a) as well.” Id. In Fossen, the plaintiffs sought restitution of premiums allegedly overpaid in violation of Montana’s HIPAA statute. After the defendant removed the case to federal court based on complete preemption, the district court denied the plaintiffs’ motion to remand. See Id. at 1105–06. On appeal, the Ninth Circuit noted that “[f]ederal HIPAA, which is part of ERISA (as amended), contains a provision similar to the Montana HIPAA statute raised in the complaint.” Id. at 1106. In applying the Davila complete preemption test, the Ninth Circuit first found that the plaintiffs’ suit for return of premiums could have been brought under ERISA. Id. at 1109. The second Davila prong was met where the state HIPAA cause of action was “identical to and expressly dependent upon ERISA.” Id. at 1111–13 (also noting that the state statute “by its very terms, applies only to ERISA plans”). Thus, the state HIPAA claim was completely preempted. Id. at 1111. C. Preemption of Managed Care Claims The Ninth Circuit has found that ERISA does not preempt state law claims brought by medical providers against a health care plan for breach of their provider agreements. Blue Cross of Ca. v. Anesthesia Care Assocs. Med. Group, Inc., 187 F.3d 1045, 1047, 1054 (9th Cir. 1999). See also id. at 1050 (holding that “the Providers’ claims 794

[relating to fee schedule changes], which arise from the terms of their provider agreements and could not be asserted by their patient-assignors, are not claims for benefits under the terms of ERISA plans….”). Ten years later, the Ninth Circuit found Blue Cross to be “analytically similar” to the case before it: state law claims by a hospital against an employer and a healthcare plan administrator and its CEO, after the administrator refused to pay additional money it had allegedly orally agreed to pay for medical services to a plan participant. See Marin, 581 F.3d at 943, 948. In Marin, the Ninth Circuit found that the first Davila prong was not satisfied where the obligation to pay additional money did not stem from the ERISA plan, and the hospital therefore was not suing as an assignee of a plan participant or beneficiary under Section 502(a)(1)(B). “Rather, the asserted obligation to make the additional payment stems from the alleged oral contract” between the hospital and administrator. Id. at 948. The second Davila prong was not satisfied because the hospital’s state law claims did not rely on, and were independent of, any duty under an ERISA plan. Id. at 949–50 (“[T]he Hospital’s state-law claims based on its alleged oral contract with [the plan administrator] were based on an independent legal duty”). Therefore, the hospital’s claims were not completely preempted and there was no federal question removal jurisdiction. Id. at 951. Addressing the defendants’ argument that the state action was preempted because it “relates to” an ERISA plan, the Ninth Circuit explained that this is the test for “conflict preemption under § 514(a),” not complete preemption under § 502(a)(1)(B). Id. at 949. “Defendants are free to assert in 795

state court a defense of conflict preemption under § 514(a), but they cannot rely on that defense to establish federal question jurisdiction.” Id. Cf. Windisch v. Hometown Health Plan, Inc., 2010 WL 786518, at *3–5 (D. Nev. 2010) (finding that § 514 did not preempt a physician’s claims for breach of contract, bad faith, and consumer fraud, which were based on alleged unlawful performance under a primary care physician agreement once coverage under ERISA plans had been determined). Generally, “ERISA preempts the state law claims of a provider suing as an assignee of a beneficiary’s rights to benefits under an ERISA plan.” Coast Plaza Doctors Hosp. v. Ark. Blue Cross and Blue Shield, 2011 WL 3756052, at *2 (C.D. Cal. 2011) (quoting Blue Cross, 187 F.3d at 1051) (internal quotation marks and additional citation omitted). “However, the fact that a medical provider has received an assignment and can potentially bring an ERISA suit provides no basis to conclude that the mere fact of assignment converts the Providers’ [nonERISA] claims into claims to recover benefits under the terms of an ERISA plan.” Id. at *3 (citations and internal quotation marks omitted) (finding no complete preemption even though there was no dispute that the ERISA beneficiaries assigned their rights to the plaintiff; finding that the plaintiff “implicated an independent legal relationship” such that the second Davila prong was not satisfied). See also Sharp Surgery Center v. SHPS, Inc., 2011 WL 686121, at *3 (C.D. Cal. 2011) (finding first prong of Davila not met where provider was “not suing as an assignee of a plan participant or beneficiary under § 502(a)(1)(B),” but was instead “suing based on a separate and independent legal obligation arising from” its 796

contracts with the defendant third party administrator of an ERISA plan). On the other hand, the Ninth Circuit has found complete preemption where an individual ERISA health care plan participant whose claim for medical benefits was denied sued for reimbursement of the cost of the emergency medical care he received. See Cleghorn v. Blue Shield of Ca., 408 F.3d 1222 (9th Cir. 2005); see also id. at 1225 (“When Cleghorn sought benefits under the plan and did not receive them, he did not pursue his ERISA remedy but instead brought the present state-law claims. These are precisely the kind of claims that the Supreme Court in Davila held to be pre-empted.”); Coast Plaza, 2011 WL 3756052, at *3–4 (distinguishing Cleghorn as involving “an individual plaintiff whose claim for medical benefits under an ERISA plan was denied,” rather than a plaintiff having an independent legal relationship with the defendant). In the context of negligence claims brought by plan participants, the Ninth Circuit has distinguished between medical decisions made in the course of treatment (not preempted) and administrative decisions (preempted). “If a claim involves a medical decision made in the course of treatment, ERISA does not preempt it; but if a claim involves an administrative decision made in the course of administering an ERISA plan, ERISA preempts it.” Bui v. American Tel. & Tel. Co., Inc., 310 F.3d 1143,1149 (9th Cir. 2002). See also Insco v. Aetna Health & Life Ins. Co., 673 F. Supp. 2d 1180, 1187–89 (D. Nev. 2009) (discussing Bui in finding no express preemption; “[A] state law claim based on Aetna’s allegedly negligent 797

selection and retention of healthcare providers in its Preferred Provider Network is not preempted by ERISA § 514(a), because these choices are made not in conjunction with Aetna’s contractual administration of an ERISA plan, but rather on Aetna’s own accord, regardless of the existence of any ERISA plans.”) D. Preemption of Malpractice Claims The Ninth Circuit has held that “ERISA’s preemption clause, 29 U.S.C. § 1144, does not preempt actions involving allegations of negligence in the provision of medical care, even if the patient procures the care through an ERISA plan.” Bui, 310 F.3d at 1147. In Bui, a plan participant’s widow sued her husband’s employer and an emergency medical services provider hired by the employer alleging, in part, negligence for failing to evacuate her husband from Saudi Arabia for emergency surgery. The Ninth Circuit found that summary judgment based on preemption was inappropriate as to some of the negligence claims. “Medical malpractice is one traditional field of state regulation that several circuits have concluded Congress did not intend to preempt.” Id. Among other things, the court noted the “absurd” result if ERISA preempted medical malpractice claims: physicians would be subjected to state standards when treating nonERISA patients and another standard when treating ERISA patients. Id. at 1148–49. The Bui court distinguished between treatment and administrative decisions. “If a claim involves a medical decision made in the course of treatment, ERISA does not preempt it; but if a claim involves an administrative 798

decision made in the course of administering an ERISA plan, ERISA preempts it.” Id. at 1149. Thus (with respect to one of the negligence claims), if the failure to evacuate the employee “resulted from an administrative decision, ERISA would preempt [the negligence] claim.” Id. at 1151. On the other hand, if the emergency services provider “was a pure service provider and the failure to evacuate resulted from negligent delay or negligent medical evaluation, ERISA would not preempt this claim.” Id. (finding that a genuine issue of material fact existed as to whether the defendant acted as a “pure service provider”). See also id. at 1153 (“ERISA does not preempt claims of medical malpractice against medical service providers for decisions made in the course of treatment or, in this case, evaluation. That is true even if those medical service providers also serve, at other times, as administrators.”). In Borreani v. Kaiser Foundation Hospitals, 875 F. Supp. 2d 1050, 1052, 1055 (N.D. Cal. 2012), a district court applied the two-part Davila analysis to find that ERISA Section 502 did not completely preempt the plaintiffs’ complaint, which alleged that a managed care consortium withheld critical information from the decedent’s doctors about the safety of certain prescription drugs. First, the court found that the plaintiffs could not have brought their action under Section 502 “because they do not seek to recover benefits, to enforce their rights, or to clarify future opportunities under the plan.” Id. at 1055. “Rather, they simply assert state tort claims arising from defendants’ alleged negligence in maintaining their drug formularies and in educating Kaiser physicians.” Id. Second, the 799

defendants’ action or inaction implicated an independent legal duty, “namely the duty to provide adequate medical treatment.” Id. The Borreani court next relied on Bui in finding no express preemption under ERISA Section 514(a). The plaintiffs contended that the defendants were responsible for improper medical decisions that ultimately caused the plan participant’s death. The court found that such claims should not be preempted because they involve “medical decision[s] made in the course of treatment,” and not “administrative decision[s] made in the course of administering an ERISA plan.” Id. at 1056 (citing and quoting Bui, 310 F.3d at 1149) (internal quotation marks omitted). After discussing Bui, the court found that the plaintiffs did not contend that the decedent “failed to receive promised benefits.” Id. at 1057. They conceded that he received the medical advice promised under the ERISA plan, but alleged that “the advice was negligent and deceptive.” Id. Each of the Kaiser entities “was wearing ‘the hat of a [medical] service provider’ rather than that of an ERISA administrator in providing benefits related to the prescription of [a specific drug].” Id. (citing and quoting Bui, 310 F.3d at 1153) (additional citation omitted). E. State Independent Review Statutes In Fry v. Regence Blueshield, 2008 WL 4223613 (W.D. Wash. 2008), a district court found that Washington’s “external review statute,” RCW 48.43.535 (entitled “Independent review of health care disputes—System for using certified independent review 800

organizations—Rules”), was not preempted by ERISA. The court found that Washington’s statute was “virtually indistinguishable from the state law analyzed in Rush Prudential HMO, Inc. v. Moran[.]” Id. at *1 (citing Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002)). “A state law designed to strip the claim administrator of its unfettered discretion in awarding benefits or interpreting the contract, such as RCW 48.43.535, does not implicate ERISA’s enforcement scheme at all, and is not different from the types of substantive state regulation of insurance contracts [the Supreme Court has] in the past permitted to survive preemption….” Id. (citation and internal quotation marks omitted). The Fry court considered the external review statute in the context of deciding the standard of review to be applied to the claim decision. In contrast to the independent review statutes that create no new cause of action or ultimate form of relief, California Civil Code Section 3428, known as the Managed Health Care Insurance Accountability Act of 1999, affirmatively imposes liability on an MCO that fails to furnish covered benefits. In relevant part, Section 3428 places on an MCO a “duty of ordinary care” to arrange for the provision of necessary medical care to subscribers and enrollees, where such medical care is provided for under a plan. The statute provides, among other things, that the MCO will be liable for all harm caused by the failure to exercise ordinary care: where “(1) [t]he failure to exercise ordinary care resulted in the denial, delay, or modification of the health care 801

service recommended for, or furnished to, a subscriber or enrollee”; and “(2) [t]he subscriber or enrollee suffered substantial harm.” Cal. Civ. Code § 3428(a)(1), (2). The statute further provides that managed care entities are not health care providers under California law. Id. § 3428(c). In enacting this statute, the California legislature attempted to circumvent ERISA preemption by declaring that managed care entities, for the purposes of Section 3428, are “engaged in the business of insurance … as that term is defined for purposes of the McCarran-Ferguson Act….” See 1999 Cal. Legis. Serv. Ch. 536 § 1, 2 (S.B. 21). Whether California Civil Code Section 3428 will withstand preemption under ERISA remains to be seen. There have been no reported cases addressing this issue. F. Equitable Claims and Defenses The Ninth Circuit has held that state law claims of waiver and estoppel are preempted under ERISA. See Crull v. GEM Ins. Co., 58 F.3d 1386, 1390–91 (9th Cir. 1995) (also stating, “on similar facts, we have held that state law claims of estoppel, waiver, breach of contract, quasi estoppel, and bad faith—all claims raised by the Crulls’ complaint—‘relate to’ an [ERISA plan] because they represent attempts to recover benefits allegedly owed under the plan”) (citations omitted); see also Leube v. UMR, 2013 WL 1164414, at *2 (S.D. Cal. 2013) (“To the extent Luebe’s claims for negligent misrepresentation and for promissory estoppel are based on UMR’s failure to pay benefits provided for under the plan, they are 802

preempted by ERISA.”) (citing Aetna Life Ins. Co. v. Bayona, 223 F.3d 1030, 1034 (9th Cir. 2000)) (additional citations omitted). However, in certain cases an ERISA plaintiff may be able to assert a federal equitable estoppel claim. “ERISA preempts state equitable estoppel claims but a party may assert a federal equitable estoppel claim in an ERISA action.” Qualls v. Blue Cross of Ca., Inc., 22 F.3d 839, 845 (9th Cir. 1994) (citing Greany v. Western Farm Bureau Life Ins. Co., 973 F.2d 812 (9th Cir. 1992)). “An ERISA beneficiary may recover benefits under an equitable estoppel theory upon establishing a material misrepresentation, reasonable and detrimental reliance upon the representation and extraordinary circumstances.” Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 1331 (9th Cir. 1996). “The Ninth Circuit has imposed two additional prerequisites on a plaintiff attempting to allege a claim of equitable estoppel in an ERISA action.” Id. “First, the provisions of the plan at issue must be ambiguous such that reasonable persons could disagree as to their meaning or effect.” Id. (citing Greany, 973 F.2d at 821). “Second, representations must be made to the employee involving an oral interpretation of the plan.” Id. (citing Greany, 973 F.2d at 821–22) (additional citation omitted). See also LaMantia v. Voluntary Plan Administrators, Inc., 401 F.3d 1114, 1119 (9th Cir. 2005) (“When a plaintiff seeks to recover benefits under an ERISA plan based on an equitable estoppel theory, the Ninth Circuit requires the plaintiff to satisfy a six-prong test.”) (emphasis omitted) (citing Pisciotta, 91 F.3d at 1331; and Greany, 973 F.2d at 821–22). But see Alaska Trowel Trades Pension Fund v. Lopshire, 103 F.3d 881, 883 (9th Cir. 1996) (rejecting 803

reliance on statements in Greany and another case “that application of equitable estoppel in ERISA actions is limited to cases involving oral representations concerning ambiguous provisions in a trust plan”; the other cases “involved claims for benefits inconsistent with the provisions of a written plan” and equitable estoppel could not be asserted to alter terms of such plans). In Qualls, the plaintiff alleged that Blue Cross misled him into believing that medical benefits would continue following a post-injury settlement with a third party, and should therefore be estopped from failing to pay further benefits arising from the injury. In finding the federal equitable estoppel claim to be meritless, the Ninth Circuit noted, in part, that the plaintiff never provided any evidence that Blue Cross said it would pay for medical care after a third party agreed to pay for that care, or that the plaintiff relied on such statements. Qualls, 22 F.3d at 845–46. See also Poore v. Simpson Paper Co., 566 F.3d 922, 928 (9th Cir. 2009) (finding that retirees who challenged employer’s termination of health benefits offered no argument to counter district court’s conclusion that no “exceptional circumstances” were present, thus equitable estoppel claim failed). Some district courts have also applied federal common law waiver principles in an ERISA case. For example, in Purney v. Reliastar Life Ins. Co., 681 F. Supp. 2d 1262, 1268 (D. Nev. 2010), the district court stated that the Ninth Circuit “has yet to consider whether waiver applies in the ERISA context” but “[m]ost circuit courts that have considered the issue have adopted waiver in ERISA cases.” (citations omitted). The court concluded that 804

because the “Ninth Circuit has recognized the similar equitable principle of estoppel in ERISA cases,” it would join other circuits “in adopting the principle of waiver in the ERISA context as well.” Id. at 1268–69 (citations omitted). The claimant bears the burden of establishing waiver and generally waiver is unavailable if it would expand the scope of coverage under the ERISA plan. See id. at 1269 (citations omitted). In Purney, the plaintiff alleged that the defendant waived its right to deny supplemental life insurance coverage when it accepted premiums from her deceased husband’s employer for such coverage. Id. at 1267–68. The district court denied both parties’ summary judgment motions after finding disputed issues of fact as to whether the insurer knew it was accepting premiums for the employee. See id. at 1269–70 (“Waiver is the voluntary or intentional relinquishment of a known right.”) (citation and internal quotation marks omitted). But see Solis v. Zenith Capital, LLC, 2009 WL 1324051, at *5 (N.D. Cal. 2009) (stating, as to affirmative defense of waiver raised in ERISA case, “Waiver is the intentional relinquishment of a known right with knowledge of its existence and the intent to relinquish it.”) (citation and internal quotation marks omitted). III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? Claimants must exhaust administrative remedies before filing a lawsuit for benefits. Dishman v. Unum Life Ins. Co. of Am., 269 F.3d 974, 984 (9th Cir. 2001). The Ninth Circuit further instructs that, “Federal courts have 805

authority to enforce exhaustion requirements, ‘and as a matter of sound policy they should usually do so.’” Id. at 984 (quoting Amato v. Bernard, 618 F.2d 559, 568 (9th Cir. 1980)); accord Diaz v. United Agric. Emp. Welfare Benefit Plan, 50 F.3d 1478, 1483 (9th Cir. 1995). Therefore, when a suit for ERISA plan benefits is filed before the claims administrator has issued its final administrative appeal decision, the suit is subject to dismissal. Some plans have multiple levels of mandatory appeals that must be exhausted before suit can be filed. The Ninth Circuit has said that exhaustion is required for a variety of reasons, including “to help reduce the number of frivolous lawsuits under ERISA; to promote the consistent treatment of claims for benefits; to provide a non-adversarial method of claims settlement; and to minimize the costs of claims settlement of all concerned.” Mack v. Kuckenmeister, 619 F.3d 1010, 1020 (9th Cir. 2010) (quoting Amato, 618 F.2d at 567). Because the exhaustion requirement is a creation of the federal courts, however, and is not written into the statute, it is a prudential rather than jurisdictional requirement. Mack, 619 F.3d at 1020. B. Exceptions to the Exhaustion Requirement There are three exceptions to the prudential exhaustion doctrine: (1) futility, (2) inadequate remedy, and (3) unreasonable procedures. Noren v. Jefferson Pilot Fin. Ins. Co., 378 F. App’x 696, 698 (9th Cir. 2010); Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 626–27 (9th Cir. 2008) (internal citations omitted). Where 806

the administrative route of appeal is futile or the available remedy inadequate, the Ninth Circuit has found that the district court has discretion to waive the administrative exhaustion requirement. Amato, 618 F.2d at 568. See also Dishman, 269 F.3d at 984 (excusing failure to exhaust administrative remedy because administrator gave inadequate notice of claim denial and appeals procedure). However, “Bare assertions of futility are insufficient to bring a claim within the futility exception, which is designed to avoid the need to pursue an administrative review that is demonstrably doomed to fail.” Diaz, 50 F.3d at 1485 (9th Cir. 1995). This is consistent with the regulations, which instruct that when a plan fails “to establish or follow” prescribed claim procedures, “a claimant shall be deemed to have exhausted the administrative remedies available under the plan” and shall be entitled to pursue remedies. 29 C.F.R. § 2560.503-1(l). C. Consequences of Failure to Make Timely Request for an Administrative Review In general, a failure to exhaust administrative remedies will bar a claimant from bringing a claim in federal court and warrants dismissal of the complaint. See, e.g., Werner v. Liberty Life Assur. Co. of Bos., 336 F. App’x 676, 677–78 (9th Cir. 2009) (not reported) (district court did not err in holding that employee failed to timely exhaust her administrative remedies under the plan); Amato, 618 F.2d at 566–68 (9th Cir. 1980) (affirming district court’s dismissal following claimant’s failure to exhaust administrative remedies).

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D. Does the Ninth Circuit Distinguish between Issue and Claim Exhaustion? In ERISA cases, the Ninth Circuit distinguishes issue exhaustion from generally accepted remedy exhaustion principles. Vaught, 546 F.3d at 630 (citing Sims v. Apfel, 530 U.S. 103, 107 (2000)). In Vaught, the court noted that “no ERISA statute precludes courts from hearing objections not previously raised to the Plan, nor does any ERISA statute or regulation require claimants to identify all issues they wish to have considered on appeal.” Id. It concluded that “issue exhaustion is not applicable in the ERISA context.” Id. at 631. A claimant’s decision to raise a new issue before the district court does not “retroactively erase” a claimant’s prior exhaustion of his administrative remedies. Id. at 632. E. How Many Levels of Review Are Required? The Department of Labor regulations prohibit a plan from imposing more than two levels of review, unless the additional review is entirely voluntary and tolls the limitations period for filing a lawsuit. 29 C.F.R. § 2560.503-1(c)(2)–(3). Absent an exception to exhaustion, courts will require a claimant to exhaust the mandatory levels of review imposed by a plan. Vaught, 546 F.3d 620. A plan’s failure to issue a timely decision on a voluntary appeal does not constitute a procedural violation warranting de novo review. Gonzales v. Unum, 861 F. Supp. 2d 1099, 1109 (S.D. Cal. 2012) (where plan provided for only one level of appeal, its failure to timely

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issue decision on second voluntary level appeal did not result in loss of abuse of discretion standard of review). F. Can a Defendant Waive a Failure-to-Exhaust Defense? At least one district court has held that where a defendant plan administrator did not raise exhaustion of administrative remedies as a defense, the defense is waived. Vazquez v. Cargill, Inc., 509 F. Supp. 2d 903, 908 n5 (C.D. Cal. 2007). The court noted that this position was a corollary to the rule that the court has the discretion to waive the exhaustion requirement in any event. Id. (citing Horan v. Kaiser Steel Ret. Plan, 947 F.2d 1412, 1416 (9th Cir. 1991)). IV. Standard of Review A. Plan Language In order for the abuse of discretion standard to apply, the plan language must unambiguously confer discretion upon the administrator. The Ninth Circuit has stated in no uncertain terms that “unless plan documents unambiguously say in sum or substance that the plan Administrator or fiduciary has authority, power, or discretion to determine eligibility or to construe the terms of the plan, the standard of review will be de novo.” Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207 (9th Cir. 2000). Recently, the Ninth Circuit held that wording “granting the power to interpret plan terms and to make final benefits determinations” is sufficient to confer discretion on the plan administrator. Abatie v. Alta 809

Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006). In contrast, a requirement that the claimant produce “satisfactory proof” is insufficient to confer discretion. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir. 1999). For a grant of discretionary authority to be effective it must be in plan documents; grants contained in the summary plan description alone are not sufficient. Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1158–59 (9th Cir. 2001). B. What Standard of Review Applies? The district court will review the denial de novo unless the plan language grants to the administrator the power to interpret plan terms and make final benefits determinations. If such language is present, the court reviews the decision for abuse of discretion. Abatie, 458 F3d at 963. This is because, where the plan grants the administrator discretionary authority, trust principles make a deferential standard of review appropriate. Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917, 923 (9th Cir. 2012) (citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008)). An exception lies in circumstances where the administrator’s procedural violations are so flagrant as to alter the substantive relationship between the employer and the employee, thereby causing substantive harm to the beneficiary. Gatti v. Reliance Standard Life Ins. Co., 415 F.3d 978, 985 (9th Cir. 2005). In such cases, the court will conduct a de novo review, notwithstanding the grant of discretion. Under the de novo standard of review, the court does not give deference to the administrator’s 810

decision, but instead reviews the evidence and makes its own determination as to the ultimate issue (e.g., whether the plaintiff is disabled under the terms of the policy). Kearney, 175 F.3d at 1095. Under the abuse of discretion standard of review, how a court applies that standard depends on whether the administrator has a conflicting interest. Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 629–30 (9th Cir. 2009). In the absence of a conflict of interest, “judicial review of a plan administrator’s benefits determination involves a straightforward application of the abuse of discretion standard,” and the administrator’s decision “can be upheld if it is ‘grounded on any reasonable basis.’” Id. at 629 (quoting Sznewajis v. Bancorp Amended & Restated Supplemental Benefits Plan, 572 F.3d 727, 734–35 (9th Cir. 2009)). Essentially, a plan administrator’s decision will not be “disturbed if reasonable.” Stephan, 697 F.3d at 929 (quoting Conkright v. Frommert, 559 U.S. 506 (2010)). An administrator abuses its discretion if it “relies on clearly erroneous findings of fact in making benefit determinations.” Taft v. Equitable Life Assur. Soc., 9 F.3d 1469, 1473 (9th Cir. 1993), abrogated on other grounds by Abatie, 458 F.3d 955. See also Boyd v. Bert Bell/Pete Rozelle NFL Players Ret. Fund, 410 F.3d 1173 (9th Cir. 2005). The Ninth Circuit has noted that in the context of ERISA claims the abuse of discretion standard is the same as the “arbitrary and capricious” standard of review. Taft, 9 F.3d at 1471 n.2.

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The Ninth Circuit recently stated that, “This abuse of discretion standard, however, is not the end of the story.” Stephan, 697 F.3d at 929. Instead, “the degree of skepticism” with which the court regards a plan administrator’s decision “varies based upon the extent to which the decision appears to have been affected by a conflict of interest.” Id. (citing Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011)). Therefore, in determining whether the administrator abused its discretion, the court must take into account the nature, extent, and effect of any conflict of interest that may appear in the record, as well as evidence of procedural violations or irregularities. Abatie, 458 F.3d 955. Such evidence may heighten judicial scrutiny. While the court explicitly rejected the “sliding scale” approach, it held that in each instance the district court shall determine how much weight to give to the administrator’s decision, after consideration of the factors cited above. Abatie overruled Atwood v. Newmont Gold Co., 45 F.3d 1317 (9th Cir. 1995), and other cases to the extent they held that claimants were required to produce “material, probative evidence, beyond the mere fact of the apparent conflict, tending to show that the fiduciary’s self-interest caused a breach of the administrator’s fiduciary obligations to the beneficiary” in order to obtain a more favorable standard of review. C. Effect of Conflict of Interest or Procedural Irregularity As noted, the existence of a conflict of interest is a factor to be weighed in determining whether an administrator 812

has abused its discretion. Abatie, 458 F.3d at 962–65 (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989)); Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). Specifically, “[t]he level of skepticism with which a court views a conflicted administrator’s decision may be low if a structural conflict of interest is unaccompanied, for example, by any evidence of malice, of self-dealing, or of a parsimonious claims-granting history.” Abatie, 458 F.3d at 968. Conversely, courts may give less deference to the claims decision where there is evidence of inconsistent reasons for denial (Lang v. Long-Term Disability Plan of Sponsor Applied Remote Technology, Inc., 125 F.3d 797, 799 (9th Cir. 1997)); or where the administrator fails to adequately investigate a claim or to ask the claimant for necessary evidence (Booton v. Lockheed Med. Benefit Plan, 110 F.3d 1461, 1463–64 (9th Cir. 1997)); or where the administrator fails to credit a claimant’s reliable evidence (Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003)); or has repeatedly denied benefits to deserving participants by interpreting plan terms incorrectly or by making decisions against the weight of evidence in the record (Abatie, 458 F.3d at 968–69). Subsequent to the Ninth Circuit’s decision in Abatie, the U.S. Supreme Court set forth a framework, similar to that in Abatie, for the procedure to be followed by a reviewing court where “a plan administrator both evaluates claims for benefits and pays benefits claims.” Glenn, 554 U.S. at 111. The standard of review remains deferential rather than de novo, and a structural conflict is a “factor” to be “taken into account” along with any other relevant factors. Id. at 112–15. The framework set forth in Glenn 813

is consistent with the framework applied in Abatie. The Ninth Circuit notes that Glenn supersedes its own standard of review “to the extent that there is any difference,” Salomaa, 642 F.3d at 674, but its cases interpreting Glenn find no inconsistency between Abatie and Glenn. Id. See also Renfro v. The Funky Door Long Term Disability Plan, 686 F.3d 1044, 1049 (9th Cir. 2012); Leon v. Quintiles Transnational Corp., 300 F. App’x 558, 2008 WL 4927361 (9th Cir. 2008). The Ninth Circuit takes an expansive view in assessing the structural conflict of interest. For example, it described a number of “signs of bias” in a structurally conflicted administrator, and held that because of these signs of bias, the district court should have reviewed the administrator’s decision with far more skepticism than it did and should have concluded that the administrator abused its discretion in terminating a claimant’s benefits. Montour, 588 F.3d at 632–37. The Montour court first took issue with the administrator’s overemphasis on discrete findings in surveillance of the claimant, and on the administrator’s one-sided presentation of those findings to outside reviewers, finding a theme of “presenting evidence of capability in the best possible light, while failing to subject evidence of capability to the same skepticism and rigorous analysis applied to evidence of disability.” Id. at 634. Second, the court noted the administrator’s “failure to present extrinsic evidence of any effort on its part to assure accurate claims assessment, such as utilizing procedures to help ensure a neutral review process.” Id. (internal quotations omitted). Though the court 814

acknowledged that, following Glenn, presenting such information was not required, the administrator was nonetheless on notice of the “potential significance of such evidence in defense of a suit by a claimant challenging an adverse benefits determination.” Id. Third, the court criticized the administrator’s decision to conduct a “pure paper” review, rather than conducting an independent medical examination. Again, the court acknowledged that conducting an independent medical examination was not required, but stated that the administrator’s failure to do so “raises questions about the thoroughness and accuracy of the benefits determination.” Id. Finally, the court addressed the administrator’s “failure to grapple with” a contrary disability determination by the Social Security Administration. Id. at 635. The court took issue with the fact that even though the administrator acknowledged that the SSA had found the claimant to be disabled for purposes of Social Security disability benefits, the administrator did not explain why it reached a different conclusion than the SSA. Id. This, the court explained, was critical because in some respects, the SSA’s standard for determining disability was more stringent than the standard articulated in the plan at issue. Id. The court also criticized the fact that in its decision to the claimant, the administrator only discussed the SSA’s award letter, but did not discuss or mention the opinion by the SSA administrative law judge or the SSA administrative record upon which the SSA’s decision was based. Id. at 637. And the court noted that the administrator, in corresponding with the claimant, did not inform the claimant that the administrator would need 815

(and that the claimant should provide) the entire SSA administrative record and the administrative law judge’s opinion. Id. These factors, weighed together, led the court to the conclusion that the administrator’s conflict of interest improperly motivated its decision to terminate the claimant’s benefits, and constituted an abuse of the administrator’s discretion. Id. In summary, in abuse of discretion cases where the claimant receives a social security award, a claim denial that fails to explain why the administrator’s decision differs from that of the SSA may be considered sufficient evidence of bias to support a conclusion that the administrator abused its discretion. Salomaa, 642 F.3d at 679–80. The court also considers violation of procedural requirements in determining the weight to give to the administrator’s decision. Ordinarily, a procedural violation does not divest the administrator of the discretion granted by the terms of the plan. Gatti v. Reliance Standard Life Ins. Co., 415 F.3d 978, 985 (9th Cir. 2005). However, de novo review is appropriate in cases where the violations are so flagrant as to alter the substantive relationship between employer and employee. Id. For example, the Ninth Circuit held that a substantive violation occurred when an administrator failed to disclose details of the plan to employees and provided no claims procedure. Blau v. Del Monte Corp., 748 F.2d 1348, 1353 (9th Cir. 1984), abrogated on other grounds recognized by Dytrt v. Mountain State Tel. & Tel. Co., 921 F.2d 889, 894 n.4 (9th Cir. 1990). In the absence of such flagrant conduct, procedural irregularities are matters to be weighed in deciding whether an administrator has abused 816

its discretion. Abatie, 458 F.3d at 972 (citing Fought v. Unum Life Ins. Co., 379 F.3d 997 (10th Cir. 2004)). The judge may consider evidence outside the administrative record to determine the extent to which the administrator’s decision was tainted by a conflict of interest. Id. at 972–73; Tremain v. Bell Indus., 196 F.3d 970, 966–77 (9th Cir. 1999). In situations where the administrator has engaged in a procedural irregularity that has affected the administrative review, the court will reconsider the claim denial after providing the claimant the opportunity to submit additional evidence. Abatie, 458 F.3d at 973 (citing VanderKlok v. Provident Life & Acc. Ins. Co., 956 F.2d 610, 617 (6th Cir. 1992)). D. Does MetLife v. Glenn Apply to Self-Funded Plans or TPAs? The Ninth Circuit acknowledges that the Glenn abuse of discretion analysis may apply to review of self-funded plans if the entity making the decision is also the entity deciding claims. Muniz v. Amec Const. Management, Inc., 623 F.3d 1290, 1295 n.2 (9th Cir. 2010). However, the applicability of conflict of interest review depends on the efficacy of any attempt to separate the duties of the administrator and the payor. As a general rule, where an administrator delegates authority to a third party administrator (“TPA”) to decide a claim, there is no conflict of interest because the decisionmaker (the TPA) is not the one paying benefits. Judd v. Qwest Commc’n, No. CV-11-725, 2012 WL 3704703, at *3 (D. Ariz. 2012) (noting no conflict of 817

interest where the plan administrator delegated to the TPA the “exclusive right to exercise discretionary authority” to interpret the plan and determine eligibility.). However, where there is evidence that the administrator directs the TPA’s decisionmaking, the conflict of interest remains. Lesuer v. HCA, Inc., 398 Fed App’x 177, 178 (9th Cir. 2010) (not reported) (noting that conflict of interest existed where emails showed that the administrator was actually involved in the claim decision and helped draft the denial letter). E. What Evidence Is Required to Establish a Conflict of Interest? Can a Conflict Be Implied? The Ninth Circuit has held that “structural conflict of interest” exists where the plan administrator has the “dual role as plan administrator, authorized to determine the amount of benefits owed, and insurer, responsible for paying such benefits.” Stephan, 697 F.3d at 929; Montour, 588 F.3d at 630. Further, in determining the impact of this conflict of interest, a district court must review any “relevant evidence” which suggests a history of biased decisionmaking. Stephan, 697 F.3d at 930. This may include internal memoranda, or evidence that the claim administrator took steps to reduce the impact of a conflict. Id. F. Other Factors Affecting Standard of Review 1. Timeliness

818

An administrator’s failure to timely issue a claims decision may also be sufficient to warrant de novo review. See Jebian v. Hewlett Packard, 349 F.3d 1098, 1108 (9th Cir. 2003). Subsequent case law, however, limits Jebian to its facts, specifically that the plan language included a “deemed denied” clause that cut off the administrator’s discretion. Where the plan fails to comply with ERISA’s procedural guidelines, the claimant is afforded the right to bring suit, but the administrator does not automatically lose discretion otherwise granted under the terms of the plan. Gatti, 415 F.3d at 983. This is consistent with the Ninth Circuit’s prior holding that no substantive remedies are available for procedural violations of ERISA unless the procedural violations rise to a level that “alter[s] the substantive relationship between employer and employee.” Id. at 984–85 (citing Blau, 748 F.2d 1348). The Ninth Circuit has also created a “good faith” exception to the Jebian rule. Where a claim is “deemed denied” under the terms of the plan at issue, an exception to the loss of discretion exists for administrators who are “engaged in a good faith attempt to comply with its deadlines.” LaMantia v. Voluntary Plan Adm’rs, Inc., 401 F.3d 1114, 1122 (9th Cir. 2005). 2. Discretionary Clauses Numerous states within the Ninth Circuit have adopted bans on discretionary clauses though a variety of procedural methods. California was first, with its Department of Insurance issuing a Letter Opinion on 819

February 26, 2004 stating that “Discretionary clauses render the contract ‘fraudulent or unsound insurance’ within the meaning of [California Insurance Code] § 10291.5.” On February 27, 2004, the California Department of Insurance subsequently withdrew approval of forms containing Discretionary Clauses. Courts have generally held that such withdrawal of discretionary language applies prospectively, and does not alter policies currently in force. See, e.g., Lundquist v. Cont’l Cas. Co., 394 F. Supp. 2d 1230, 1247 (C.D. Cal. 2005). Soon thereafter, Hawaii insurance commissioners issued a similar memorandum on December 8, 2004, stating that a discretionary clause “granting to a plan administrator discretionary authority so as to deprive the insured of a de novo appeal is an unfair or deceptive act or practice in the business of insurance and may not be used in health insurance contracts or plans in Hawaii.” http://hawaii.gov/ dcca/ins/commissioners_memo/ commissioners_memorandum_2004/ ins_commissioners_memorandum_13h.pdf (last visited May 9, 2013). In 2009, the Washington State Office of the Insurance Commissioner adopted regulations prohibiting the use of discretionary clauses in certain types of insurance policies. Specifically, it now prohibits the inclusion of discretionary clauses in individual disability insurance policies (Wash. Admin. Code § 284-50-321), group and blanket disability insurance policies (Wash. Admin. Code § 284-96-012), health maintenance organization contracts (Wash. Admin. Code § 284-46-015), and health care services contracts (Wash. Admin. Code § 284-44-015). 820

These regulations became effective August 19, 2009, and have not yet been challenged. The Ninth Circuit took up this issue in 2009 in Standard Ins. Co. v. Morrison, 584 F.3d 837 (9th Cir. 2009). In Morrison, Montana’s Commissioner of Insurance denied an insured’s application for approval of its proposed disability insurance forms because the forms contained discretionary clauses. Id. The insurer sued the commissioner, arguing that the subject was preempted by ERISA. Id. The Ninth Circuit held that ERISA’s saving clause applied to the commissioner’s practice of disapproving of insurance policies with clauses vesting discretion in insurers, id. at 845, and further held that the commissioner’s disapproval of discretionary clauses was not preempted by ERISA’s exclusive remedial scheme. Id. at 849. The Insurance Commissioners for both Oregon and Alaska use a checklist for new policy approvals which prohibit the inclusion of discretionary authority. Finally, Idaho’s administrative code forbids discretionary clauses in health insurance contracts, except for those group contracts offered by or through employers to their employees. Idaho Admin. Code r. 18.01.29.011(01) (2013). V. Rules of Plan Interpretation A. Application of Federal Common Law Federal courts apply federal common law when faced with ERISA insurance policy interpretation issues. 821

Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1125 (9th Cir. 2002). Under federal common law, the Padfield court stated, “we interpret terms in ERISA insurance policies in an ordinary and popular sense as would a person of average intelligence and experience. As we develop federal common law to govern ERISA suits, we may borrow from state law where appropriate, and [be] guided by the policies expressed in ERISA and other federal labor laws.” Id. (internal quotations and citation omitted). B. Application of Contra Proferentem The court may apply contra proferentem, under which ambiguities in a contract are construed against the contract’s drafter, only where the court is reviewing the decision de novo; if the plan gives the administrator discretion to interpret the terms of the plan, application of the principle of contra proferentem is not appropriate. See Winters v. Costco Wholesale Corp., 49 F.3d 550, 554 (9th Cir. 1995). C. Deference Afforded Interpretation of a Plan

to

an

Administrator’s

Deference is given to the administrator’s interpretation only where the plan language expressly confers such discretion. Under the de novo standard the court applies common law and renders its own decision on the appropriate interpretation. See Padfield, 290 F.3d at 1125; Winters, 49 F.3d at 554. D. Other Rules of Plan or Contract Interpretation

822

The Ninth Circuit has applied the ejusdem generis canon of construction in one ERISA case. See Shaver v. Operating Eng’r Local 428 Pension Trust Fund, 332 F.3d 1198, 1202 (9th Cir. 2003). E. Effect of Plan Amendment on Pending Claims, Both Substantive and Procedural The Ninth Circuit has held that the ERISA plan in existence at the time the insurer denies benefits governs the claim. Therefore, if the plan is amended after the employee becomes disabled or files his claim, the amended plan controls disposition of the matter. GroszSalomon, 237 F.3d at 1160–61. In other contexts, the Ninth Circuit has held that so long as it is contemplated in the plan, federal law does not prohibit an employer from altering the package of medical benefits that it provides its employees, but only from interfering with an employee’s use of the benefits provided. See, e.g., Serrato v. John Hancock Mut. Life Ins. Co., 31 F.3d 882, 884 (9th Cir. 1994) (health care benefits not vested under ERISA); Joanou v. Coca-Cola Co., 26 F.3d 96, 98 (9th Cir. 1994) (employers providing employees with ERISA-qualified welfare plans “remain free to unilaterally amend or eliminate such plans without considering the employees’ interests.”). VI. Discovery A. Limitations on Discovery Based on the Standard of Review

823

When reviewing the determination of a plan administrator under the deferential abuse of discretion standard, the Ninth Circuit has held that courts are generally limited to reviewing evidence in the administrative record before the administrator at the time of its decision. Abatie, 458 F.3d at 970. However, the court has discretion to consider evidence outside of the administrative record for the limited purpose of evaluating the nature, extent, and effect of any conflict of interest; a decision on the merits must rest on the administrative record. Id. (citing Doe v. Travelers Ins. Co., 167 F.3d 53, 57 (1st Cir. 1999)). Abatie does not specifically address the issue of what discovery claimants will be allowed to take in order to obtain such evidence. B. Discovery and Conflict of Interest Abatie expressly allows courts to consider evidence from outside the record concerning a potential conflict of interest. Id. The Ninth Circuit has interpreted Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), as consistent with Abatie. Burke v. Pitney Bowes Inc. Long-Term Disability Plan, 544 F.3d 1016, 1024–25 (9th Cir. 2008). However, because plaintiffs no longer have the burden of demonstrating that the potential conflict materially affected the claims decision as was the case before Abatie (see, e.g., Tremain v. Bell Indus., 196 F.3d 970, 976–77 (9th Cir. 1999)), the availability and necessity for discovery into the nature and extent of the conflict remains unsettled. The Glenn court also held that a district court could consider extrinsic evidence of an administrator’s actions 824

taken in an effort “to reduce potential bias and to promote accuracy.” Glenn, 554 U.S. at 117. This includes practices such as “walling off claims administrators from those interested in firm finances,” or “imposing management checks that penalize inaccurate decision making irrespective of whom the inaccuracy benefits.” Id. C. Must Plaintiff Make a Prima Facie Showing in Order to Get Discovery? The Ninth Circuit has rejected any prima facie burden on the plaintiff prior to obtaining conflict of interest discovery: “Going forward, plaintiffs will have the benefit of an abuse of discretion review that always considers the inherent conflict when a plan administrator is also the fiduciary, even in the absence of ‘smoking gun’ evidence.” Abatie, 458 F.3d at 969. D. What Types of Discovery Are Permitted (E.g., Medical Review Vendors, Employee Compensation, Claim Statistics, etc.)? The Ninth Circuit has not expressly addressed the types of discovery authorized to determine the effect of a conflict of interest. District courts in the Ninth Circuit interpreting Abatie have allowed discovery of the following types of extrinsic evidence: in-house documents related to the plaintiff’s type of disability (McCurdy v. Metro. Life Ins. Co., No. S-05-0634-WBS-EFB, 2007 WL 915177, at *4 (E.D. Cal. Mar. 23, 2007)); lump sum payment calculations and the circumstances surrounding the adoption of the lump sum payment instead of an annuity (Starr v. MGM Mirage, No. 2:06-cv-00616-RLH-RJJ, 825

2007 WL 1560335, at *2–3 (D. Nev. May 23, 2007)); and interrogatories from the defendant’s doctors concerning any communications with the defendant off the record (Beckstrand v. Elec. Arts Group, No. 05-cv-0323-AWINEW, 2007 WL 1599769, at *5 (E.D. Cal. June 4, 2007)). Courts have also allowed discovery of statistical information regarding claim approvals associated with certain diagnoses, statistical information pertaining to disability opinions of defendant’s in-house medical personnel, selection of defendant’s in-house medical personnel, and compensation information pertaining to defendant’s in-house medical personnel. Santos v. Quebecor World Long Term Disability Plan, 254 F.R.D. 643, 650 (E.D. Cal. 2009). Some courts within the Ninth Circuit have denied discovery requests pertaining to claims administration personnel’s identity, and their compensation, promotions, bonuses and raises, because such requests are not “narrowly tailored to the issue of conflict of interest.” Id. See also Bartholomew v. Unum Life Ins. Co., 579 F. Supp. 2d 1339, 1340–41 (W.D. Wash. 2008). E. Has the Ninth Circuit Recognized the Fiduciary Exception to Claims of Privilege? The Ninth Circuit has held that “[a]s applied in the ERISA context, the fiduciary duty exception provides that an employer acting in the capacity of ERISA fiduciary is disabled from asserting the attorney-client privilege against plan beneficiaries on matters of plan administration.” Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917, 931 (9th Cir. 2012) (quoting United States 826

v. Mett, 178 F.3d 1058, 1063 (9th Cir. 1999)). It recently determined that justifications for excepting ERISA fiduciaries from attorney-client privilege apply equally to insurance companies acting as ERISA fiduciaries. Stephan, 697 F.3d at 931. Therefore, “The duty of an ERISA fiduciary to disclose all information regarding plan administration applies equally to insurance companies as to trustees.” Id. VII. Evidence A. Is the Scope of Evidence under the Deferential Standard of Review Limited to the Administrative Record? The Ninth Circuit has held that the district court’s determination as to whether an administrator abused its discretion is limited to reviewing the evidence in the administrative record before the administrator at the time of its decision. Abatie, 458 F.3d at 955. B. Evidence Permitted under De Novo Review—In What Circumstances Will the Court Look beyond the Administrative Record? In most circumstances, ERISA cases under de novo review are limited to the administrative record where possible. District courts may look beyond the record “when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.” Friedrich v. Intel Corp., 181 F.3d 1105, 1111 (9th Cir. 1999). See also Muniz v.

827

Amec Const. Mgmt., Inc., 623 F.3d 1290, 1297 (9th Cir. 2010); Kearney, 175 F.3d at 1095. The Ninth Circuit emphasizes, however, that “a district court should not take additional evidence merely because someone at a later time comes up with new evidence that was not presented to the plan administrator. Mongeluzo v. Baxter Travenol, 46 F.3d 938, 944 (9th Cir. 1995). C. What if There Is a Dispute over the Composition of the Administrative Record? If a dispute over an administrative record involves a claimant’s allegation that the administrator failed to obtain information relevant to the determination of the plaintiff’s claim, the Ninth Circuit instructs that “regulations promulgated by the Secretary of Labor authorize, if not require, plan administrators working with an apparently deficient administrative record to inform claimants of the deficiency and to provide them with an opportunity to resolve the problem by furnishing the missing information.” Montour, 588 F.3d at 636 (citing 29 C.F.R. § 2560.503-1(f)(3)–(4), (g)(1)(iii)). Thus, where the administrator is aware that additional information will clarify the insured’s claim, the administrator is obligated to request the information. Id. However, claims by the plaintiff that key documents have been withheld by the administrator will be reviewed on a case by case basis. See Sethi v. Seagate U.S. LLC Group Disability Income Plan, 2012 WL 3834948, at *3 (N.D. Cal. 2012) (rejecting plaintiff’s argument that the administrative record was necessarily incomplete where 828

plaintiff’s only “proof” were “minor and immaterial inconsistencies” in the record); Watts v. MetLife, 2011 WL 1585000 (S.D. Cal. 2011) (noting that the Dictionary of Occupational Titles is publicly available and its absence from the administrative record did not support the finding that the record was incomplete); Volynskaya v. Epicenters Health & Welfare Plan, 2007 WL 3036110 (N.D. Cal. Oct. 16, 2007) (noting that the “peculiar circumstances” of the insurer’s production in litigation of two pages of notes not previously produced as part of the administrative record was a factor that heightened the court’s skepticism under Abatie). D. Evidentiary Determinations

Value

of

Social

Security

The Ninth Circuit has found that eligibility for Social Security disability does not necessarily mean a person is eligible for ERISA disability benefits. Madden v. ITT Long Term Disability Plan for Salaried Emps., 914 F.2d 1279, 1286 (9th Cir. 1990) (stating that “if [this] argument were correct, ERISA fiduciaries would be stripped of all administrative discretion, as they would be required to follow the Department of Health and Human Services’ decisions regarding social security benefits, even where the Plan determines benefits under different standards or the medical evidence presented is to the contrary”). But see Montour, 588 F.3d at 635 (“While ERISA plan administrators are not bound by the SSA’s determination, complete disregard for a contrary conclusion without so much as an explanation raises questions about whether an adverse benefits determination was ‘the product of a 829

principled and deliberative reasoning process.’”) (citation omitted). The Supreme Court overturned the Ninth Circuit’s importation of Social Security’s treating physician rule to ERISA cases. Black & Decker Disability Plan, 538 U.S. at 834 (courts cannot require administrators “automatically to accord special weight to the opinions of a claimant’s physician”). The Ninth Circuit follows this rule, but adds that, while the opinion of a treating physician is not entitled to any special deference under ERISA, “the plan administrator may not arbitrarily ignore credible evidence.” Aluisi v. Unum Life Ins. Co. of Am., 407 F. App’x 126, 129 (9th Cir. 2010). E. Who Bears the Burden of Obtaining Social Security Information? The Ninth Circuit maintains that the plaintiff bears the burden of proving disability under the terms of an ERISA plan. Muniz, 623 F.3d at 1296. But, as discussed above, it also notes that Department of Labor regulations “authorize, if not require” plan administrators to inform claimants if a record appears deficient. Montour, 588 F.3d at 636. Therefore, if a plan administrator is aware of a claimant’s Social Security benefit eligibility decision, the administrator must inform the claimant that he should obtain and submit his Social Security benefit application file in support of his claim. Id. at 637. See also Roush v. Aetna, 2010 WL 2079766, at *14 (D. Ariz. 2010). F. Effect of an IME versus Paper Review

830

A plan administrator’s decision to conduct a “pure paper” review, rather than to hire physicians to conduct an inperson examination, is a factor that the court will consider in its review of an administrator’s conflict of interest. Montour, 588 F.3d at 634. The administrator’s choice to conduct a paper review only “raises questions about the thoroughness and accuracy of the benefits determination.” Id. G. In What Circumstances May an Administrator Require Objective Evidence? The Ninth Circuit distinguishes between conditions that may be verified by objective diagnostic criteria, and conditions such as chronic fatigue syndrome that have no definitive biological markers. It has approved an administrator’s denial of benefits because a claimant failed to provide objective evidence of her impairment, when the impairment was measurable by “various … objective signs and tests.” Leon, 300 Fed App’x at 560–61. But, the Ninth Circuit does not allow a plan administrator to “condition coverage on proof by objective indicators such as blood tests where the condition is recognized yet no such proof is possible.” Salomaa, 642 F.3d at 679. Plan administrators are also “entitled to seek information on how the alleged impairment actually limited the claimant’s functional capacity.” Ross v. Prudential Ins. Co. of Am., 304 F. App’x 502, 503 (9th Cir. 2008) (not reported). Following Black & Decker Disability Plan, 538 U.S. at 834, the Ninth Circuit acknowledges that objective evidence, such as a surveillance video, may 831

contradict an allegation of disabling pain. Aluisi v. Unum Life Ins. Co. of Am., 2010 WL 5393883. It has also remarked, “that a person has a true medical diagnosis does not itself establish disability…. Physicians have various criteria, some objective, some not, for evaluating how severe pain is and whether it is so severe as to be disabling.” Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 882 (9th Cir. 2004), overruled on other grounds, Abatie, 458 F.3d 955 (9th Cir. 2006). However, in evaluating a claimant’s complaints of pain and reduced functionality under these standards, the Ninth Circuit emphasizes that a plan administrator continues to operate under an obligation to “provide a plan participant with adequate notice of reasons for denial.” Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 871 (9th Cir. 2008) (quoting Abatie, 458 F.3d at 974). Under this reasoning, the Ninth Circuit found error in a plan administrator’s failure to consider a claimant’s evidence that her pain was unrelieved by a variety of pain treatments. Saffon, 522 F.3d at 871. Specifically, it rejected a plan administrator’s rationale for rejecting such evidence without clear explanation. Id. VIII. Procedural Aspects of ERISA Practice A. Who Is the Correct Defendant in an ERISA Benefits Case? The Ninth Circuit has held that “potential liability under 29 U.S.C. § 1132(a)(1)(B) is not limited to a benefits plan or the plan administrator.” Cyr v. Reliance Standard Life Ins. Co., 642 F.3d 1202, 1207 (9th Cir. 2011). There it 832

considered that the plan’s insurer was responsible for paying benefit claims and making denial determinations. In such cases, the insurer is the proper “logical defendant.” Id. B. Methods of Adjudication 1. Are ERISA Cases Typically Resolved on Summary Judgment? The Ninth Circuit holds that under the abuse of discretion standard of review, a motion for summary judgment is “merely the conduit to bring the legal question before the district court, and the usual tests of summary judgment, such as whether a dispute of material fact exists, do not apply.” Nolan v. Heald College, 551 F.3d 1148, 1154 (9th Cir. 2009) (quoting Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999)). However, it is important to note that “Bendixen predated Abatie and its requirement that any conflict always be considered, applied an abuse of discretion standard untempered in any way, and did not involve a case where the district court examined evidence outside of the administrative record.” Id. Summary judgment may therefore not be appropriate if there is conflict of interest evidence that must be weighed and considered by the court. If no conflict exists, or if the court will not be considering conflict of interest evidence, summary judgment remains appropriate. De novo cases may be resolved by motion for summary judgment only if there is no genuine issue of material fact in dispute. Tremain, 196 F.3d at 978.

833

2. Does the Circuit Recognize Motions for Judgment on a Stipulated Record? The Ninth Circuit has not squarely addressed review of stipulated records, but, in reviewing for abuse of discretion, as discussed above, district courts routinely review a stipulated administrative record. This is permissible because no question of fact arises. However, any evidence of a conflict of interest may create a question of fact, which defeats summary judgment, and transports the matter to a bench trial, discussed below. C. Are ERISA Trials Appropriate? Under What Circumstances? If a question of fact exists, the court will hold a bench trial on the record. Kearney, 175 F.3d at 1094. The Ninth Circuit clarifies that the trial court judge “will be asking a different question as he reads the evidence [than on summary judgment], not whether there is a genuine issue of material fact, but instead whether [the plaintiff] is disabled within the terms of the policy. In a trial on the record, but not on summary judgment, the judge can evaluate the persuasiveness of conflicting testimony and decide which is more likely true.” Id. “Although Rule 43(a) [of the Federal Rules of Civil Procedure] requires that ‘testimony’ be taken in open court, the record should be regarded as being, in the nature of exhibits, in the nature of documents, which are routinely a basis for findings of fact even though no one reads them aloud.” Id. D. Are Jury Circumstances?

Trials

Permitted

834

under

Any

There is no right to jury trial in actions seeking benefits or other equitable relief. Ingram v. Martin Marietta Long Term Disability Income Plan for Salaried Employees of Transferred GE Operations, 244 F.3d 1109, 1114 (9th Cir. 2001) (citing Thomas, 228 F.3d at 996–97). However, trial by jury is available for breach of fiduciary duty claims brought under 29 U.S.C. § 1132(b). E. Has the Ninth Circuit Developed Any Special Procedures for ERISA Benefits Cases? The Ninth Circuit has not developed any special procedures for ERISA benefits cases. IX. Remedies A. Remedies under ERISA § 502(a)(1)(B) [29 U.S.C. § 1132(a)(1)(B)] Under ERISA § 502(a)(1)(B), a participant in or beneficiary of an ERISA plan may bring a civil action “to recover benefits due him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). According to the Supreme Court, § 502(a)(1)(B) “is relatively straightforward” in that “[if] a participant or beneficiary believes that benefits promised to him under the terms of the plan are not provided, he can bring suit seeking provision of those benefits.” Aetna Health, Inc. v. Davila, 542 U.S. 200, 210 (2004).

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A plaintiff seeking to recover benefits under the terms of an ERISA plan pursuant to § 502(a)(1)(B) in the Ninth Circuit is limited to recovering only those benefits, and cannot seek compensatory, extra-contractual, or punitive damages. Bast v. Prudential Ins. Co. of Am., 150 F.3d 1003, 1009 (9th Cir. 1998). See also Samano v. Kaiser Foundation Health Plan, Inc., 466 F.App’x 592, 594 (9th Cir. 2012). However, prejudgment interest and attorneys’ fees are available to a successful plaintiff in the discretion of the trial court. Blankenship v. Liberty Life Assur. Co. of Boston, 486 F.3d 620, 627–28 (9th Cir. 2007); Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 452–53 (9th Cir. 1980). Plaintiffs may also seek declaratory or injunctive relief under § 502(a)(1)(B) as noted in Davila and the statute itself. See Davila, 542 U.S at 210 (“A participant or beneficiary can also bring suit generically to ‘enforce his rights’ under the plan, or to clarify any of his rights to future benefits.”).1 B. Remedies under ERISA § 502(a)(3) [29 U.S.C. § 1132(a)(3)] Under ERISA § 502(a)(3), a participant, beneficiary, or fiduciary of an ERISA plan may bring a civil action “(A) to enjoin any act or practice which violates any provision of [ERISA] or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of [ERISA] or the terms of the plan.” 29 U.S.C. § 1132(a)(3). Section 502(a)(3) is a “catchall” provision which acts as a “safety net, offering 836

appropriate equitable relief for injuries caused by violations that § 502 does not elsewhere adequately remedy.” Varity Corp. v. Howe, 516 U.S. 489, 512 (1996). In Watkins v. Westinghouse Hanford Co., 12 F.3d 1517 (9th Cir. 1993), the Ninth Circuit interpreted contemporary Supreme Court precedent as allowing only traditional forms of equitable relief under § 502(a)(3), i.e., restitution, mandamus, and injunction. Id. at 1527–28. Subsequently, in Waller v. Blue Cross of California, 32 F.3d 1337 (9th Cir. 1994), the Ninth Circuit found that a claim for constructive trust was an appropriate equitable remedy under ERISA. Id. at 1339. In Bilyeu v. Morgan Stanley Long Term Disability Plan, 683 F.3d 1083 (9th Cir. 2012), cert. denied, 133 S. Ct. 1242 (2013), the Ninth Circuit stated that an equitable lien by agreement was also the sort of equitable relief authorized by ERISA § 502(a)(3). Id. at 1091. However, the Ninth Circuit has remained committed to the notion that compensatory, extra-contractual, and punitive damages are not available under § 502(a)(3). Concha v. London, 62 F.3d 1493, 1504 (9th Cir. 1995); McLeod v. Oregon Lithoprint, Inc., 102 F.3d 376, 378 (9th Cir. 1996); FMC Medical Plan v. Owens, 122 F.3d 1258, 1261 (9th Cir. 1997); Farr v. U.S. West Communications, Inc., 151 F.3d 908, 916 (9th Cir. 1998); Aetna Life Ins. Co. v. Bayona, 223 F.3d 1030, 1033 (9th Cir. 2000); Bilyeu, 683 F.3d at 1097. C. Cases Addressing Cigna Corp. v. Amara In Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), the Supreme Court found that, under appropriate circumstances, the equitable remedies of estoppel, reformation, and surcharge may be available under § 837

502(a)(3). Id. at 1878–80. The Supreme Court’s finding was subsequently categorized as “dictum” by the Ninth Circuit in Skinner v. Northrop Grumman Retirement Plan B., 673 F.3d 1162 (9th Cir. 2012). Nevertheless, the Skinner Court did analyze whether the plaintiffs would be entitled to the remedies of reformation and/or surcharge under § 502(a)(3), implying that such remedies could be available to a plaintiff in the Ninth Circuit. In Skinner, plaintiffs sued the successor corporation to their former employer under ERISA to clarify their rights under the successor corporation’s pension plan, which had replaced their previous employer’s plan. Id. at 1164. The district court granted summary judgment for the defendants, but the Ninth Circuit reversed and remanded the case after finding that an ambiguity existed between the Summary Plan Description (“SPD”) and the terms of the plan master documents that the plan administrator sought to enforce. Id. at 1165. Following remand, the district court again granted summary judgment for defendants and the plaintiffs again appealed. Id. The Ninth Circuit deferred argument until the Supreme Court issued its decision in Amara. Id. Following the Amara decision, plaintiffs argued that they were entitled to seek reformation and surcharge under ERISA § 502(a)(3) on the grounds that the SPD conflicted with the master plan documents. Id. at 1165–66. The Court noted that “reformation is proper only in cases of fraud and mistake,” and went on to analyze the plaintiffs’ claims under those theories. Id. at 1166. The Court found that plaintiffs were not entitled to reformation under a mistake theory because there was no 838

evidence that the Plan contained terms that failed to reflect the drafter’s true intent. Id. The Court also dismissed the plaintiffs’ arguments as to the fraud theory on the grounds that the plaintiffs had not provided evidence that their employer “materially misled its employees,” or that they had relied on any of the alleged misrepresentations. Id. at 1167. On the issue of surcharge, the Court noted that because the employer’s administrative committee may have breached its duty to provide plan participants with an accurate SPD, “the remedy of surcharge could hold the committee liable for benefits it gained through unjust enrichment or for harm caused as the result of its breach.” Id. at 1167. The Court went on to dismiss the unjust enrichment theory on the grounds that there was no evidence the committee gained a benefit by failing to provide an accurate SPD. Id. The Court also rejected the plaintiffs’ argument that they were entitled to compensatory damages for the actual harm caused under their surcharge theory because plaintiffs could not show that the inaccurate SPD caused any harm for which they could be compensated. Id. However, it is worth noting that the Court did not dismiss the plaintiffs’ request for compensatory damages under a surcharge theory out of hand as a matter of law. Thus, the door may be open for plaintiffs to seek compensatory damages under ERISA § 502(a)(3) under the right set of facts in the Ninth Circuit. In Bilyeu v. Morgan Stanley Long Term Disability Plan, 683 F.3d 1083 (9th Cir. 2012), cert. denied, 133 S. Ct. 1242 (2013), the Ninth Circuit relied in part on Amara to find that the defendant insurer could not seek to recover 839

an overpayment on an equitable lien by agreement theory under ERISA § 502(a)(3) from a claimant unless the particular funds sought were identified and could be shown to be in the claimant’s possession. Id. at 1090–97. Specifically, the Ninth Circuit cited Amara’s statement that “traditionally speaking, relief that sought a lien or constructive trust was legal relief, not equitable relief, unless the funds in question were ‘particular funds or property in the defendant’s possession.’” Id. at 1095 (emphasis omitted). X. Fiduciary Liability Claims A. Definition of Fiduciary Under ERISA, a person is a plan fiduciary to the extent he or she (1) exercises discretionary authority or control over plan management or control over management or disposition of plan assets, (2) renders investment advice regarding plan assets for a fee or other compensation or has authority to do so, or (3) has any discretionary authority or responsibility in plan administration. 29 U.S.C. § 1002(21)(A). B. Definition of Fiduciary Duties An ERISA fiduciary has a basic duty to act “solely in the interest” of plan participants and fiduciaries, and for the “exclusive purpose” of providing benefits and defraying reasonable expenses of plan administration. 29 U.S.C. § 1104(a). A fiduciary is required to discharge these duties (1) with the care, skill, and diligence of a prudent person; (2) by diversifying investments to minimize the risk; and 840

(3) in accordance with the plan documents. Id. § 1104(a)(1)(B). C. Fiduciary Liability in the Context of Health and Disability Claims An ERISA plan administrator has a fiduciary duty to provide timely notification to employees of the termination of an employee welfare benefit plan. Peralta v. Hispanic Bus. Inc., 419 F.3d 1064, 1072 (9th Cir. 2005) (administrator breached fiduciary duty in failing to notify employees that long-term disability plan had terminated). D. Can a Claimant Prosecute Both § 1132(a)(1)(B) and § 1132(a)(3) Claims? A claimant cannot prosecute under § 1132(a)(3) when he has adequate remedy under § 1132(a)(1)(B). Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), aff’d, 525 U.S. 299 (1999). Specifically, the Ninth Circuit instructs that equitable relief under § 1132(a)(3) is inappropriate when § 1132(a)(1)(B) provides adequate remedy. Id. (declining to extend application of § 1132(a)(3) “catchall provision” set forth in Varity Corp. v. Howe, 516 U.S. 489, 512 (1996)). E. Contribution and Indemnity Claims among Fiduciaries Unlike some other circuits, the Ninth Circuit does not recognize claims for contribution or indemnity among breaching ERISA fiduciaries. Call v. Sumitomo Bank of Cal., 881 F.2d 626, 632–33 (9th Cir. 1989) (quoting Kim 841

v. Fujikawa, 871 F.2d 1427 (9th Cir. 1989)). However, in certain circumstances, e.g., where the cofiduciary was the one who improperly calculated and paid benefits, an indemnity claim may be proper under 29 U.S.C. § 1132(a)(3). See Younberg v. Bekins Co., 930 F. Supp. 1396 (E.D. Cal. 1996). F. ERISA Claims against Nonfiduciaries A nonfiduciary does not subject itself to liability simply by participating in a breach of trust by fiduciaries. See Batchelor v. Oak Hill Med. Group, 870 F.2d 1446, 1448 (9th Cir. 1989); Nieto v. Ecker, 845 F.2d 868, 871 (9th Cir. 1988). The Ninth Circuit has even rejected an argument to hold a nonfiduciary liable when that individual was a knowing participant in the breach of fiduciary duty. Mertens v. Hewitt Assoc., 948 F.2d 607, 611–12 (9th Cir. 1991). Nonfiduciaries may, however, be liable for equitable relief if they are a “party in interest” and engaged in prohibited conduct. See Call v. Sumitomo Bank of Cal., 881 F.2d 626, 636 (9th Cir. 1989); see also Concha v. London, 62 F.3d 1493, 1504 (9th Cir. 1995) (subject to liability under ERISA § 406). XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees ERISA provides that “the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). In Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 452–53 (9th Cir. 1980), the 842

Ninth Circuit set forth five factors for courts to use as guidelines in exercising their discretion under Section 1132(g): “(1) the degree of the opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of fees; (3) whether an award of fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties’ positions.” The Ninth Circuit has instructed that in applying the Hummell factors, the district court must consider the remedial purposes of ERISA, which are to protect the interests of participants and beneficiaries in employee benefit plans, and this includes affording them effective access to federal courts. See Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th Cir. 1984); McElwaine v. U.S. West, Inc., 176 F.3d 1167, 1172 (9th Cir. 1999). “No one of the Hummell factors … is necessarily decisive, and some may not be pertinent in a given case.” Carpenters S. Ca. Admin. Corp. v. Russell, 726 F.2d 1410, 1416 (9th Cir. 1984). The Hummell factors “reflect a balancing”; it is not required that all five factors support an award of fees. McElwaine, 176 F.3d at 1173. For example, with respect to the first Hummell factor, the Ninth Circuit has stated that “bad faith is not a prerequisite to an ERISA fee award.” Id.; accord Smith, 746 F.2d at 590 (“Although bad faith is a factor that would always justify an award, it is not required.”). See McAfee v. Metro. Life Ins. Co., 625 F. Supp. 2d 956, 843

972–73 (E.D. Cal. 2008) (awarding fees to plaintiff who challenged calculation of his monthly disability benefits; finding that evidence suggesting bad faith on part of defendant was not “wholly persuasive,” thus the first Hummell factor “weighs neither against nor in favor” of an award of attorney’s fees). In cases where an ERISA participant or beneficiary “has had to resort to litigation against a plan to recover wrongfully withheld benefits,” the Ninth Circuit has noted that application of the Hummell factors “must recognize the remedial purpose of ERISA in favor of participants and beneficiaries.” Honolulu Joint Apprenticeship & Training Comm. of United Ass’n Local Union No. 675 v. Foster, 332 F.3d 1234, 1239 (9th Cir. 2003). Thus, the Ninth Circuit has indicated that a successful ERISA participant “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Smith, 746 F.2d at 589 (citations and internal quotation marks omitted). See also McElwaine, 176 F.3d at 1172 (discussing the “special circumstances rule” articulated in Smith); Benson v. Cont’l Cas. Co., 592 F. Supp. 2d 1274, 1278 (C.D. Cal. 2009) (“While the [Hummell] factors are not overwhelmingly in favor of Plaintiff, the Court finds that awarding the fee is proper especially because Plaintiff was successful after several years of contesting Defendants’ denial of her claim and Defendants have failed to show any special circumstances that would make this award unjust.”). The Ninth Circuit has indicated that attorney’s fees may be awarded in some cases after the parties settle their 844

underlying dispute. In Smith, the district court initially dismissed the plaintiff’s action to recover withheld pension benefits. The Ninth Circuit affirmed in part and reversed in part, and the parties then settled upon remand, but could not agree on payment of the plaintiff’s attorney’s fees. The plaintiff then moved for fees, and the district court denied the motion. On appeal, the Ninth Circuit held that the district court abused its discretion by misapplying the Hummell factors. See Smith, 746 F.2d at 588–89. The Ninth Circuit discussed the special circumstances rule and also found that, as there was no bad faith on either side, the first Hummell factor should not have been considered decisive in determining whether to award fees. See id. at 589–91 (also noting with respect to the fifth Hummell factor—the relative merits of the parties’ positions—that the plaintiff “received a portion of what he brought suit to recover” by way of settlement). The Ninth Circuit remanded and instructed the district court to “reconsider the award of fees in light of the remedial purposes of ERISA.” Id. at 591. The Ninth Circuit has also indicated that the district court may have discretion to award attorney’s fees where the result obtained is a brief reinstatement of benefits. See Pannebecker v. Liberty Life Assur. Co. of Boston, 542 F.3d 1213 (9th Cir. 2008). In Pannebecker, the Ninth Circuit agreed with district court that plaintiff was not disabled under the terms of the plan, but reversed the district court’s denial of reinstatement benefits from the time of the defendant’s initial denial of benefits until its decision during an earlier court-ordered remand to not alter the denial. See id. at 1215. As a result of the current appeal, the plaintiff “is entitled to have her benefits 845

reinstated for the short period following the court’s initial remand.” Id. at 1222. Because the plaintiff “achieved some of the benefit that she sought in bringing suit,” the Ninth Circuit remanded to the district court to determine in its discretion whether the plaintiff is entitled to reasonable attorney’s fees and costs. Id. In a 2010 decision, the Supreme Court held that “a fee claimant need not be a ‘prevailing party’ to be eligible for an attorney’s fees award under § 1132(g)(1),” but must show “some degree of success on the merits” before such fees can be awarded. Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2156, 2158–59 (2010). A fee claimant does not satisfy this requirement by achieving “trivial success on the merits” or a “purely procedural victor[y].” Id. at 2158 (alteration in original; citation and internal quotation marks omitted). Rather, a claimant can satisfy this requirement “if the court can fairly call the outcome of the litigation some success on the merits without conducting a lengthy inquir[y] into the question whether a particular party’s success was substantial or occurred on a central issue.” Id. (alteration in original; citation and internal quotation marks omitted). In a footnote, the Supreme Court stated that it had not foreclosed the possibility that once a claimant shows “some degree of success on the merits,” thus becoming eligible for fees under Section 1132(g)(1), a court may consider the five-factor test applied by the Fourth Circuit in Hardt. Id. at 2158 n.8. Those factors mirror the Hummell factors. See Simonia v. Glendale Nissan/Infiniti Disability Plan, 608 F.3d 1118, 1121 (9th Cir. 2010). Further, the Supreme Court reserved the issue of whether remand to a plan administrator, without more, constitutes 846

“some success on the merits” sufficient to make a claimant eligible for an award of fees under Section 1132(g)(1). Hardt, 130 S. Ct. at 2159. One month later, the Ninth Circuit considered an attorney’s fee appeal in light of the Supreme Court’s decision in Hardt. The Ninth Circuit noted that under Hardt, district courts “must now determine whether an ERISA fee claimant has achieved ‘some degree of success on the merits’ before awarding fees under § 1132(g).” Simonia, 608 F.3d at 1119 (citation omitted). However, “the Supreme Court expressly declined to foreclose the possibility that, once a court has determined that a litigant has achieved some degree of success on the merits, it may then evaluate the traditional five factors under [Hummell] before exercising its discretion to grant fees.” Id. (citing Hardt, 130 S. Ct. at 2158 n.8). The Ninth Circuit then held that “after determining a litigant has achieved some degree of success on the merits, district courts must still consider the Hummell factors before exercising their discretion to award fees under § 1132(g)(1).” Id. at 1121. In Simonia, the Ninth Circuit agreed with the district court’s conclusion that fees were inappropriate after applying the Hummell factors. The Ninth Circuit therefore affirmed the denial of fees to the plaintiff without deciding whether he had achieved some degree of success on the merits through the defendant’s voluntary dismissal of a counterclaim seeking an amount it had purportedly overpaid in disability benefits. See id. at 1119, 1121–22 & n.1. After the decisions in Hardt and Simonia, district courts within the Ninth Circuit have denied fees where the 847

claimant failed to establish the threshold requirement of “some degree of success on the merits.” For example, in Jones v. Metro. Life Ins. Co., 845 F. Supp. 2d 1016 (N.D. Cal. 2012), the court awarded some attorney’s fees, but denied the plaintiff’s application for Ninth Circuit attorney’s fees, finding that she had “not shown a sufficient degree of success on the merits at the appellate level to permit an award of attorney fees.” Id. at 1032. On appeal, the Ninth Circuit had affirmed in part and vacated in part an earlier order that granted summary judgment to the defendants. The Ninth Circuit also instructed the plaintiff to file a fee motion. Id. at 1022. In deciding that motion, the district court first found that the Ninth Circuit’s remand to the plan administrator regarding the amount of the plaintiff’s long term disability benefit was, at most, a “trivial success on the merits” because the plaintiff elected to submit that issue to the plan administrator before filing her appeal. Id. at 1033. Second, the district court found that the Ninth Circuit’s holding that the court erred in its application of Federal Rule of Civil Procedure 54, by requiring each party to bear its own fees before the deadline for filing a fee motion expired, was a “purely procedural” victory that could not constitute “success on the merits.” Id. (citing Simonia, 608 F.3d at 1120). See also DeFazio v. Hollister, Inc., 854 F. Supp. 2d 770, 821 (E.D. Cal. 2012) (denying attorney’s fees to plaintiffs who “sought extraordinary damages” but were not entitled to any damages; “Plaintiffs’ proof of defendants’ breaches [of fiduciary duties] may give them some level of moral satisfaction, but their inability to prove any harm or obtain injunctive relief prevented them from achieving ‘some degree of success on the merits.’”). 848

In a recent unpublished decision, the Ninth Circuit held that “a party cannot achieve ‘some success on the merits’ for purposes of an attorney’s fee award by obtaining ‘relief’ that was not sought on a claim pleaded in the complaint.” Kronzer v. Hintz, 2012 WL 6734491, at *3 (9th Cir. 2012) (finding that plaintiff was ineligible for attorney’s fees, even though he obtained financial documents that he sought, where he did not mention financial documents or his later-asserted disclosure violations in his complaint, and did not amend the complaint before the deadline). In affirming the denial of fees, the court also noted that at the time fees were denied, the lawsuit was still ongoing. See id. (explaining that “[a]ttorney’s fees under 29 U.S.C. § 1132(g)(1) require an assessment of whether a party has achieved some degree of success of the merits, which may be difficult to determine until the lawsuit is over and the merits are decided.”). In contrast to the discretionary language in Section 1132(g)(1), Section 1132(g)(2) contains the language “shall award the plan.” That provision governs the availability of attorney’s fees in ERISA actions under Section 1145 to recover delinquent employer contributions to a multiemployer plan. See Hardt, 130 S. Ct. at 2156 (contrasting the language in Section 1132(g)(1) to that in Section 1132(g)(2)). The Ninth Circuit has held that “Section 1132(g)(2) is mandatory and not discretionary.” Northwest Adm’rs, Inc. v. Albertson’s, Inc., 104 F.3d 253, 257 (9th Cir. 1996) (citation and internal quotation marks omitted) (also setting forth requirements to be entitled to a “mandatory award” under Section 1132(g)(2)). 849

B. Fees Awarded to Plan Fiduciaries The Ninth Circuit has held that the Hummell factors apply where either plaintiffs or defendants seek attorney’s fees under 29 U.S.C. § 1132(g)(1). Carpenters S. Ca. Admin. Corp. v. Russell, 726 F.2d 1410, 1416 (9th Cir. 1984). Again, no single Hummell factor is necessarily decisive, and some of the factors may not be pertinent in a given case. Id. See also Epstein v. Unum Life Ins. Co. of Am., 2004 WL 2418310 (C.D. Cal. 2004) (awarding attorney’s fees to defendant Unum in lawsuit challenging denial of disability benefits after concluding that the plaintiff brought the suit in bad faith, the fee award would deter similar groundless suits, and the relative merits of the parties’ positions weighed in the defendant’s favor). However, in Russell, the Ninth Circuit noted that for reasons expressed in Marquardt v. N. Am. Car Corp., 652 F.2d 715, 720–21 (7th Cir. 1981), “the Hummell factors very frequently suggest that attorney’s fees should not be charged against ERISA plaintiffs.” Russell, 726 F.2d at 1416 (noting, for example, that a losing defendant “has necessarily violated ERISA,” whereas a losing plaintiff “may only be in error or unable to prove his case[,]” a losing plaintiff is less likely to be able to pay for fees, and charging fees against the plaintiff likely has little deterrent value). In Russell, the Ninth Circuit vacated a fee award to the employer defendant and remanded to the district court for reconsideration in light of concerns expressed in the Seventh Circuit’s decision in Marquardt. Id. at 1416–17.

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The Ninth Circuit later explained that Marquardt “did not break significant new ground; rather, the Seventh Circuit merely amplified and applied the five point guidelines discussed in Hummell.” Paddack v. Morris, 783 F.2d 844, 847 (9th Cir. 1986) (discussing the Hummell factors and affirming an award of attorney’s fees to the defendant employer). In Paddack, the Ninth Circuit also noted that it had recently “retreated somewhat from Russell’s ‘reconsider in light of Marquardt’ command,” while cautioning that “the Hummell factors very frequently suggest that attorney’s fees should not be charged against ERISA plaintiffs.” Id. (citing and quoting Operating Eng’rs Pension Trust v. Gilliam, 737 F.2d 1501, 1505–06 (9th Cir. 1984); internal quotation marks omitted). See also Gilliam, 737 F.2d at 1505–06 (affirming award of attorney’s fees to defendant; noting that district court, in applying Hummell factors, found that the plaintiffs “had substantial ability to satisfy the fee award” and other factors were also met); cf. Huntsinger v. The Shaw Group, Inc., 2006 WL 572134 (D. Or. 2006) (denying attorney’s fees to prevailing defendant insurer in an action seeking life insurance benefits; finding that fees were inappropriate after evaluating the Hummell factors “and keeping the considerations expressed in Marquardt in mind”). In Estate of Shockley v. Alyeska Pipeline Serv. Co., 130 F.3d 403, 405 (9th Cir. 1997), the Ninth Circuit affirmed an order awarding attorney’s fees to the defendant employer after the district court granted summary judgment for the employer and held that the plaintiff was not entitled to benefits under the retirement plan at issue. However, in awarding only approximately 10 percent of 851

the fees requested, the district court had stated that it had “significantly deferred to what it believes to be the circuit court’s strong signal that it disfavors awards of attorney’s fees against ERISA plaintiffs who seek pension benefits despite the express statutory authority therefor.” Id. at 408 (internal quotation marks omitted). In affirming the judgment of the district court, the Ninth Circuit stated that it would “first disabuse the district court of the suggestion that we favor one side or the other in ERISA fee cases. The statute is clear on its face—the playing field is level.” Id. (also stating that “our analysis in this case must focus only on the Hummell factors, without favoring one side or the other”). In applying the Hummell factors, the Ninth Circuit found that the district court had appropriately taken into account “the possibility of overdeterrence” in awarding less than the full amount requested, and had established an appropriate amount that would not “unduly chill meritorious claims.” Id. (citation and internal quotations marks omitted). Thus, the Ninth Circuit has explained, “we have gone to some lengths to make clear that the availability of fees is not limited to participants and beneficiaries, and have also approved the award of fees or partial fees to prevailing plans.” Honolulu Joint Apprenticeship, 332 F.3d at 1239 (citing Shockley, 130 F.3d at 408, and noting that in cases where plans have sought fees, the Ninth Circuit has referred to a “level playing field”). “Our cases are not inconsistent…. They reflect a recognition of both the remedial purpose of ERISA on behalf of beneficiaries and participants, as well as the clear statutory language that makes fees available to ‘either party.’” Id. at 1240 (citing and quoting 29 U.S.C. § 1132(g)(1)). 852

After Shockley and Honolulu Joint Apprenticeship, several district court decisions within the Ninth Circuit have recognized that the Hummell factors are to be analyzed impartially, but have also emphasized language from earlier Ninth Circuit cases cautioning that the Hummell factors “very frequently” suggest that attorney’s fees should not be charged against an ERISA plaintiff. See, e.g., Mazet v. Halliburton Co. Long-Term Disability Plan, 2009 WL 981019 (D. Ariz. 2009) (denying defendants’ motion for attorney’s fees; finding that the only Hummell factor that supported an award was the plaintiff’s presumed ability to satisfy an award, which the court considered the least persuasive of the factors and the “ability to pay, without more, is clearly insufficient to support an award of fees”); Norwood v. Leland Stanford Jr. Univ., 2009 WL 69354 (N.D. Cal 2009) (denying attorney’s fees to prevailing defendants in lawsuit challenging their denial of long term disability benefits where only the fifth Hummell factor, the relative merits of the parties’ positions, weighed in favor of awarding fees insofar as the plaintiff’s claims were dismissed with prejudice); see also Jackson v. Wilson, Sonsini, Goodrich & Rosati Long Term Disability Plan, 768 F. Supp. 2d 1015, 1021–25 (N.D. Cal. 2011) (denying attorney’s fees to defendants who prevailed on summary judgment; noting, in applying multiple Hummell factors, that plaintiff’s claim was not frivolous and, while she failed to prove her claim on summary judgment, she pointed to sufficient evidence that she had a reasonable basis for believing she could prove her claim). C. Calculation of Attorneys’ Fees

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The Ninth Circuit has adopted a two-step “hybrid lodestar/multiplier approach” to calculate the amount of attorney’s fees awarded under 29 U.S.C. § 1132(g)(1). See Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945 (9th Cir. 2007); Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). “First, a court determines the ‘lodestar’ amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.” Van Gerwen, 214 F.3d at 1045. “The party seeking fees bears the burden of documenting the hours expended in the litigation and must submit evidence supporting those hours and the rates claimed.” Welch, 480 F.3d at 945-46. The district court “should exclude from the lodestar amount hours that are not reasonably expended because they are excessive, redundant, or otherwise unnecessary.” Van Gerwen, 214 F.3d at 1045 (citation and internal quotation marks omitted). “In addition to setting the number of hours, the court must also determine a reasonable hourly rate, considering the experience, skill, and reputation of the attorney requesting fees.” Welch, 480 F.3d at 946 (citation and internal quotation marks omitted). “Second, in rare and exceptional cases, the district court may adjust the lodestar upward or downward using a multiplier based on [factors] not subsumed in the initial lodestar calculation.” Id. The lodestar amount is presumed to be the reasonable fee amount. Van Gerwen, 214 F.3d at 1045. Therefore, a multiplier may be used to adjust the lodestar amount upward or downward only in “rare” and “exceptional” cases supported by “specific evidence” on the record and 854

“detailed findings” by the district court that the lodestar amount is unreasonably low or high. Id. The Ninth Circuit has identified 11 factors relevant to the determination of the amount of attorney’s fees: “(1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) time limitations imposed by the client or the circumstances; (7) the amount involved and the results obtained; (8) the experience, reputation and ability of the attorneys; (9) the ‘undesirability’ of the case; (10) the nature and length of the professional relationship with the client; and (11) awards in similar cases.” Id. at 1045 n.2 (citation omitted). However, the “novelty or complexity of the issues should not be considered at the multiplier stage, and … quality of representation and results obtained are ordinarily subsumed in the lodestar determination and in most cases should not be considered in the multiplier step.” Id. (citing Blum v. Stenson, 465 U.S. 886, 898–901 (1984)). See also Robinson v. Plourde, 717 F. Supp. 2d 1092, 1097 (D. Haw. 2010) (stating that factors 1–5 have been subsumed in the lodestar calculation and a sixth factor noted in an earlier Ninth Circuit decision, whether the fee is fixed or contingent, cannot be considered in the lodestar calculation under later Ninth Circuit precedent). The Ninth Circuit has held that courts may not use an enhancement multiplier to reflect the additional risk of taking a contingency fee case. McElwaine v. US West, Inc., 176 F.3d 1167, 1173–74 and n.9 (9th Cir. 1999) (explaining that prior to Cann v. Carpenters’ Pension 855

Trust Fund for N. Cal., 989 F.2d 313 (9th Cir. 1993), the Ninth Circuit “did allow an enhancement factor for an ERISA contingency fee case”). See also Cann, 989 F.2d at 314 (holding that 29 U.S.C. § 1132(g)(1) does not allow for enhancement for contingency); Van Gerwen, 214 F.3d at 1048. As to the first step of the hybrid lodestar/multiplier approach, the Ninth Circuit has “repeatedly held that the determination of a reasonable hourly rate is not made by reference to the rates actually charged the prevailing party.” Welch, 480 F.3d at 946 (citations and internal quotation marks omitted). “Rather, billing rates should be established by reference to the fees that private attorneys of an ability and reputation comparable to that of prevailing counsel charge their paying clients for legal work of similar complexity.” Id. (citations and internal quotation marks omitted). See also Fleming v. Kemper Nat’l Servs., Inc., 373 F. Supp. 2d 1000, 1007 (N.D. Cal. 2005) (stating that the determination of a reasonable fee is made “by reference to the prevailing market rate in the community for similar services of lawyers of reasonably comparable skill, experience and reputation” (citation and internal quotation marks omitted)). The “relevant community” for purposes of calculating a reasonable hourly rate is generally the community in which the district court sits. See, e.g., Brasley v. Fearless Farris Serv. Stations, Inc., 2010 WL 4867359, at *4 (D. Idaho 2010) (citing Schwarz v. Secretary of Health & Human Servs., 73 F.3d 895, 906 (9th Cir. 1995)). The fee claimant may offer as evidence that a particular hourly rate is reasonable affidavits of her attorney and 856

other attorneys regarding the prevailing fees in the community, and rate determinations in other lawsuits, particularly those that set a rate for the claimant’s attorney. See Welch, 480 F.3d at 947. See also Benson v. Cont’l Cas. Co., 592 F. Supp. 2d 1274, 1279 (C.D. Cal. 2009) (finding that plaintiff submitted a declaration by each lawyer regarding their experience and rates, and affidavits of other attorneys setting forth their customary rates, which supported a finding that the rates requested were reasonable; also noting orders by “sister federal courts” finding that rate requested for an associate was reasonable). However, the district court may decline to award the requested hourly rate when it is not supported by the evidence. See, e.g., Joas v. Reliance Standard Life Ins. Co., 2008 WL 1859998, at *5 (S.D. Cal. 2008) (noting that plaintiff’s attorney, while experienced, “does not have experience with ERISA cases, and declarations submitted indicate that ERISA cases are particularly complex, and benefit from experienced ERISA attorneys”; finding a reasonable market rate for someone with the experience of plaintiff’s attorney to be $50 less per hour than the rate requested); cf. Pepsi Bottling Group, Inc. v. Thomas, 2010 WL 4622520, at *2 (W.D. Wash. 2010) (denying attorney’s fees where counsel for prevailing defendant failed to provide an itemized record of the time spent on each task). Although a contingency cannot be used in order to justify a fee enhancement, the Ninth Circuit has stated that district courts have discretion to compensate the plaintiff’s attorneys for a delay in payment “by either applying the attorneys’ current rates to all hours billed during the course of the litigation or using the attorneys’ 857

historical rates and adding a prime rate enhancement.” Welch, 480 F.3d at 947. However, “in Welch, the court did not hold that it is mandatory for district courts to apply current market rates in calculating attorney fees….” Jones v. Metro. Life Ins. Co., 845 F. Supp. 2d 1016, 1026 (N.D. Cal. 2012) (emphasis in original) (rejecting plaintiff’s contention that Ninth Circuit case law required the court to apply the current market rate to all past time spent on the case; concluding that in setting a lower than requested rate, the court awarded a fee that reflected economic conditions in the district during the time at issue). With respect to the reasonableness of the hours claimed—part of the lodestar determination—courts have found a variety of reductions to be appropriate based upon the facts of the case. See, e.g., Jones, 845 F. Supp. 2d at 1027–29 (finding that plaintiff’s counsel was not entitled to fees for hours spent completing clerical tasks and reducing as excessive the number of hours claimed for tasks including the drafting of a joint case management statement and time spent on plaintiff’s summary judgment motion and oppositions to defendant’s summary judgment motion); Toven v. Metro. Life Ins. Co., 2009 WL 578538, at *3 (C.D. Cal. 2009) (finding a four percent reduction to plaintiff’s claimed hours to be appropriate based upon “somewhat excessive billing for motion practice and conferencing”). Further, the Ninth Circuit has found that the district court may impose a reduction to the requested hours for block billing, but must explain how or why that reduction fairly balances the hours billed in block format. Welch, 480 F.3d at 948 (finding that district court erred in applying a 20 percent reduction to all of plaintiff’s 858

requested hours where “barely more than half” of the hours her attorneys submitted were block billed). Similarly, the district court may reduce the number of hours billed in quarter-hour increments where such billing can be correlated to actual overbilling. Id. at 949 (noting that district court found hours were inflated because “counsel billed a minimum of 15 minutes for numerous phone calls and e-mails that likely took a fraction of the time”). The number of hours a court can use in calculating fees is subject to an additional restriction. Although ERISA requires beneficiaries to exhaust internal administrative procedures before filing a civil action, the Ninth Circuit has held that prevailing parties may not recover attorneys’ fees incurred during these pre-adjudication administrative proceedings. Cann, 989 F.2d at 315–17 (construing 29 U.S.C. § 1132(g)(1), which provides for any award of attorney’s fees “[i]n any action,” as “limiting the award to fees incurred in the litigation in court”). However, fees may be recovered for work performed prior to the filing of a complaint when that work amounted to “reasonable efforts directed toward the filing of the litigation.” Dishman v. Unum Life Ins. Co. of Am., 269 F.3d 974, 987–88 & n.51 (9th Cir. 2001) (internal quotation marks omitted) (also noting that “Cann held that ERISA’s attorneys’ fees provision does not allow fees for the administrative phase of the claims process. However, attorneys’ fees for work done on the lawsuit prior to the filing of the lawsuit are recoverable”). See also Oster v. Standard Ins. Co., 768 F. Supp. 2d 1026, 1037 (N.D. Cal. 2011) (citing Cann in finding that although the plaintiff’s 859

billing records “establish that the internal appeals process involved extensive hours and caused Plaintiff’s counsel to incur significant costs and fees, the Court concludes that controlling Ninth Circuit law prevents Plaintiff from recovering attorneys’ fees incurred in connection with the internal appeals process”); Lowe v. Unum Life Ins. Co. of Am., 2007 WL 4374020, at *1, *3, *5–6 (E.D. Cal. 2007) (holding that work performed during the reassessment of plaintiff’s claim under defendant’s nationwide Regulatory Settlement Agreement was not work performed during litigation and was therefore disallowed; work was performed on a stipulated stay from in-court litigation). Relying on Second Circuit authority, at least one district court has included in the attorney’s fee calculation hours that were related to a court-ordered remand following a substantive ruling by the district court. See McAfee v. Metro. Life Ins. Co., 625 F. Supp. 2d 956, 974 & n.7 (E.D. Cal. 2008), aff’d, 368 F. App’x 771 (9th Cir. 2010) (unpublished decision) (stating without further discussion that defendant’s arguments against award of attorney’s fees were without merit). With respect to the second step of the hybrid lodestar/ multiplier approach, the Ninth Circuit has considered the use of a multiplier to reflect the quality of representation. The Ninth Circuit found that instead of using a multiplier, the quality of representation should have been taken into account when determining the hourly rate for the lodestar calculation. Van Gerwen, 214 F.3d. at 1046. Courts may use multipliers only in rare circumstances where the quality of the attorney’s performance cannot be fully reflected in the hourly rate. See id. at 1046–47. In such cases, courts must explain their reason for using the 860

multiplier. Id. The Ninth Circuit held that the district court abused its discretion by adjusting its attorney’s fee award downward at the multiplier stage to reflect poor quality of representation without providing the required explanation of why the quality of representation was not accurately reflected in the lodestar amount. Id. at 1049. In class action suits where plaintiffs secure a common fund, courts may use either the lodestar method or a percentage-of-the-fund method in calculating fees. Fischel v. Equitable Life Assur. Soc’y of the U.S., 307 F.3d 997, 1006–07 (9th Cir. 2002). Courts have the discretion to decide which method should be applied and may compare the two methods when deciding what amount of fees is reasonable. Id. Although the Ninth Circuit has established a 25 percent benchmark in percentage-of-the-fund cases, this figure may be unreasonable in certain cases and can thus be adjusted upward or downward based on various factors. Id. Additionally, Fischel indicates that in common funds cases, courts may use a contingency multiplier to reflect the risk of nonpayment. Id. at 1008. See also Kanawi v. Bechtel Corp., 2011 WL 782244 (N.D. Cal. 2011). XII. ERISA Regulations Much of the case law in the Ninth Circuit concerning ERISA regulations has focused on the timing and content of the claim denial letter. Although the regulations were revised and the current version of 29 C.F.R. § 2560.503-1 applies only to claims made after 2002, both the previous and current versions require that the denial letter provide 861

specific reasons for the denial and a description of any additional information necessary for the claimant to perfect his or her claim. Compare 29 C.F.R. § 2560.503-1(f) (former version), with 29 C.F.R. § 2560.503-1(g) (current version). In contrast, only former § 2560.503-1(h) provided that a claim would be “deemed denied” if the administrator did not timely issue a decision. In Jebian v. Hewlett Packard Employee Benefits Plan, 349 F.3d 1098 (9th Cir. 2003), the Ninth Circuit examined the effect of the administrator’s failure to issue a decision on the plaintiff’s claim within the timeline set by the pre-2002 regulations. Former 29 C.F.R. § 2560.503-1(h) provided that if the administrator did not issue a decision within sixty days, or request an extension before the expiration of sixty days, the claim would be “deemed denied.” Although the plan granted the administrator sufficient discretion to warrant application of the abuse of discretion standard of review, the Ninth Circuit held that the administrator’s failure to issue a decision before the “deemed denied” deadline rendered the abuse of discretion standard inapplicable: “Deemed denials are not exercises of discretion. They are therefore undeserving of deference under Firestone and a de novo standard of review applies.” Id. at 1105. Subsequent case law, however, limits Jebian to its facts, specifically the fact that the plan language included a “deemed denied” clause that cut off the administrator’s discretion. Where the plan fails to comply with ERISA’s procedural guidelines, the claimant is afforded the right to bring suit, but the administrator does not automatically lose discretion otherwise granted under the terms of the plan. 862

Gatti v. Reliance Standard Life Ins. Co., 415 F.3d 978, 983 (9th Cir. 2005). This is consistent with the Ninth Circuit’s prior holding that no substantive remedies are available for procedural violations of ERISA unless the procedural violations rise to a level that “alter[s] the substantive relationship between employer and employee.” Id. at 984–85 (citing Blau v. Del Monte Corp., 748 F.2d 1348 (9th Cir. 1984)). The Ninth Circuit also created a “good faith” exception to the Jebian rule. Even where a claim is “deemed denied” under the terms of the plan at issue, an exception to the loss of discretion exists for administrators who are “engaged in a good faith attempt to comply with its deadlines.” LaMantia v. Voluntary Plan Administrators, Inc., 401 F.3d 1114, 1122 (9th Cir. 2005). In LaMantia, the court held that the plan’s decision to grant the claimant’s request for additional time to submit information beyond the plan’s “deemed denied” deadlines constituted a basis for granting such a “good faith” exception. Id. at 1123–24. Subsequent cases hold that the need for an independent medical review, or the submission of additional materials with the appeal, may justify taking additional time to make a decision. Horton v. Liberty Life Assur. Co., 2008 U.S. Dist. LEXIS 96840, at *17 (N.D. Cal. 2008). In Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir. 2006), the Ninth Circuit revisited the impact of a failure by the claims administrator to comply with the procedural requirements set forth in the regulations. The Court reaffirmed the holding in Gatti that such violations 863

do not alter the standard of review unless “the violations are so flagrant as to alter the substantive relationship between the employer and the employee, thereby causing the beneficiary substantive harm” Id. at 971. The Court also reaffirmed its holding in Jebian that “we review de novo a claim for benefits when an administrator fails to exercise discretion.” Id. (noting that the administrator in Jebian failed to make a benefits decision within the 60 days specified by the terms of the Plan, which included the “deemed denied” language, and the applicable regulation). Otherwise, procedural irregularities, like conflicts of interest, are matters to be weighed in deciding whether an administrator’s decision was an abuse of discretion. Id. at 972. See also Mazet v. Halliburton Co. LTD Plan, 2008 U.S. Dist. LEXIS 9769, at *4 (D.C. Ariz. 2008) (“Abatie’s description of dicta in [Jebian] does not overrule Gatti’s express limitation of Jebian.”). A procedural irregularity may also require the Court to consider evidence outside of the administrative record, in order to insure that the claimant received a “full and fair hearing” and that the administrative record is fully developed. Abatie, 458 F.3d at 972–73. As noted above, several courts have interpreted the regulations setting forth the level of specificity required in a denial letter. In Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999), the Ninth Circuit concluded that the administrator did not fail to comply with the regulation’s requirement that the denial letter provide the claimant with notice of any additional evidence necessary to perfect his claim. The court noted that the plaintiff’s claim did not fail because there was insufficient evidence; 864

instead, the plaintiff’s claim failed because the administrator reviewed the totality of the evidence in the record and concluded that it did not support the plaintiff’s claimed disability. In Jordan v. Northrop Grumman, 370 F.3d 869, 881 (9th Cir. 2004), the Ninth Circuit noted that the administrator had not failed to comply with the specificity requirement where the evidence the claimant could have produced would have made no difference to the claim determination. Because the purpose of the regulations is to require that the denial letter provide sufficient information to allow the claimant to understand the basis for the administrator’s decision, conclusory statements that do not give reasons for the denial do not satisfy the specificity requirement. Lee v. Cal. Bankers Pension Trust, 154 F.3d 1075 (9th Cir. 1998) (holding that conclusory statements did not satisfy requirement of 29 C.F.R. § 2560.503-1(f)). Ambiguous denial letters are similarly insufficient. In Olive v. American Express LTD Plan, 183 F. Supp. 2d 1191 (C.D. Cal. 2002), the court noted that the denial letter did not clearly state whether the plaintiff’s claim was considered procedurally deficient as a result of missing medical records or substantively deficient because the claimant’s medical condition was not disabling, or both. If additional information is needed, the administrator must ask for it. In Booton v. Lockheed, 110 F.3d 1461 (9th Cir. 1997), the administrator issued its decision on the plaintiff’s claim apparently based solely on information provided in the post-operative report. Although the plan’s physician consultant opined that the patient’s x-rays 865

would be helpful to make a determination as to whether the procedure was medically necessary, the administrator neither requested nor obtained the x-rays. The Ninth Circuit held that the administrator had abused its discretion—and failed to comply with the applicable regulation—by failing to request the information necessary to make its decision. The court stated: “If the plan is unable to make a rational decision on the basis of the materials submitted by the claimant, it must explain what else it needs. If ERISA plan administrators want to enjoy the deference to which they are statutorily entitled, they must comply with these simple, common sense requirements embodied in the regulations and our caselaw.” Id. at 1464. The denial letter must also include a description of any additional material that is necessary to perfect a claim, and must do so in a manner calculated to be understood by the claimant. Saffon v. Wells Fargo & Co. LTD Plan, 522 F.3d 863, 870 (9th Cir. 2008) (citing Booton v. Lockheed, 110 F.3d 1461 (9th Cir. 1997)). In Saffon, the Court held that the denial letter insufficiently explained the basis for the administrator’s decision, id. at 870–71, and that on remand the claimant should be allowed to present evidence on an issue that the claim administrator raised in its denial letter. Id. at 872. In Leeson v. Transamerica Disability Income Plan, 2008 U.S. App. LEXIS 11632 (9th Cir. 2008), the Court held that a denial letter which failed to communicate the existence of two separate plans with differing definitions of disability, and which failed to specify any additional material necessary, constituted a procedural violation sufficiently “flagrant” to mandate de novo review of the claims decision. 866

Where the administrator cites a new reason for denial in the final denial of the appeal, the letter violates ERISA’s procedures. Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 974 (9th Cir. 2006); Harris v. Standard Ins. Co., 2009 U.S. App. LEXIS 6280, at *3 (9th Cir. 2009). An unpublished opinion holds that the expiration of procedural deadlines does not, in and of itself, close the administrative record. Neathery v. Chevron Texaco Group Accident Policy, 2008 U.S. App. LEXIS 26106 (9th Cir. 2008). In Lukas v. United Behavioral Health, 2013 U.S. App. LEXIS 1230 (9th Cir. 2013), the Court held that a conclusory and incomplete explanation of the basis for denial of a claim under a health coverage violated 29 C.F.R. § 2560.503-1(j)(1). The Court further held that a procedural violation is a factor to be weighed in determining whether an administrator has abused its discretion. In Harlick v. Blue Shield of Ca., 686 F.3d 699 (9th Cir. 2012), the Court interpreted the statutory requirements that the denial letter contain a full and fair explanation of the basis for the denial, and a description of any additional material needed to perfect the claim, to preclude the plan administrator from raising the issue of “medical necessity” during the judicial process where it had not been raised during the administrative process. In Kludka v. Qwest Disability Plan, 2011 U.S. App. LEXIS 21447 (9th Cir. 2011), the Court held that the denial letter failed to comply with 29 C.F.R. 867

§ 2560.503-1(g)(1)(iii) because it did not explain what specific information it relied upon in denying the claim, and because it failed to explain why the plan’s decision differed from the decision of the Social Security Administration. In United States v. Eriksen, 2011 U.S. App. LEXIS 4604 (9th Cir. 2011), the Ninth Circuit reviewed the defendants’ convictions for embezzlement or conversion of funds of an employee benefit plan in violation of 18 U.S.C. § 664, and for making false or misleading statements in a plan document in violation of 18 U.S.C. § 1027. The Court found that the Chairman and the President/CEO of a maritime electrical repair company had failed to contribute elective employee contributions into the company’s retirement plan for the period November 1999 to March 2003, instead using the funds to pay company debts and listing the amount on the plan’s books as “receivables.” (Upon receiving a grand jury subpoena from the DOL, the executives resumed forwarding of the employee contributions; by the time the company ceased doing business in 2005, all participants had received their full contributions.) The Court also found that the plan fiduciaries falsely represented in Valuation Reports that the contributions had been made. The Court upheld the convictions, finding that the Defendants’ actions constituted “conversion” and were substantially inconsistent with their fiduciary obligations; and also held that “materiality” is not a requirement for a “false statement” conviction. In Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666 (9th Cir. 2011), the Court held that under 29 868

C.F.R. § 2560.503-1(h)(2)(iii), which requires a plan furnish to the claimant “all documents, records, and other information relevant for benefits to the claimant,” the plan was obligated to provide to the claimant copies of reports that the plan obtained from consulting physicians. In Rippentrop v. E.H. Oftedal & Sons, 2009 U.S. App. LEXIS 27198 (9th Cir. 2009), the Court held that under 29 C.F.R. § 2530.200b-3(a), a plan did not abuse its discretion in applying the “equivalency” method (i.e., using a calculation of hours for which payment is made or due) to determine an employee’s hours of service, even where records of hours actually worked are maintained, as long as the plan document sets forth the equivalency method to be used. In Anderson v. Suburban Teamsters of Northern Illinois Pension Fund Board of Trustees, 588 F.3d 641 (9th Cir. 2009), the Ninth Circuit held that ERISA’s “anti-cutback” provision, 29 U.S.C § 1054(g), which prevents a plan from decreasing a participant’s accrued benefits, does not apply to welfare benefit plans (and therefore did not apply to a disability retirement pension benefit). In Vaughn v. Bay Environmental Management, Inc., 567 F.3d 1021 (9th Cir. 2009), the Ninth Circuit reviewed a breach of fiduciary duty claim brought by a former employee who had received a full distribution of their account balance. The plaintiff alleged that the fiduciary breached its duty by its investment decisions, which resulted in a lower distribution. Defendants alleged that the plaintiff lacked standing under 29 C.F.R. § 2510.3-3(d)(2)(ii)(B), which states that an individual is 869

not a participant covered under an employee benefit plan if the individual has received a lump sum distribution. The Court held that the purpose of this regulation is to clarify whether a plan is subject to ERISA, and does not purport to provide an all purpose definition of “participant.” Accordingly, the Court allowed the plaintiff’s suit to proceed. The Ninth Circuit also holds that, in order for a violation of an ERISA regulation to be actionable, the claimant must demonstrate prejudice (or a “substantive harm”) resulting from the violation. Parker v. BankAmerica Corp., 50 F.3d 757, 769 (9th Cir. 1995).

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XIII. Cases Interpreting ERISA Statutes of Limitation “ERISA does not contain its own statute of limitations for suits to recover benefits under 29 U.S.C. § 1132(a)(1)(B).” Wise v. Verizon Communications, Inc., 600 F.3d 1180, 1184 (9th Cir. 2010). Under Ninth Circuit precedent, “district courts apply the state statute of limitations that is most analogous to an ERISA benefitsrecovery action.” Id. (citing Wetzel v. Lou Ehlers Cadillac Group Long Term Disability Ins. Program, 222 F.3d 643, 646–47 (9th Cir. 2000)). In Wetzel, the Ninth Circuit held that California’s fouryear statute of limitations for suits on written contracts “provides the applicable statute of limitations for an ERISA cause of action based on a claim for benefits under a written contractual policy in California.” See Wetzel, 222 F.3d at 646–48; see also Mogck v. Unum Life Ins. Co. of Am., 292 F.3d 1025, 1028 (9th Cir. 2002) (same). In so holding, Wetzel overruled Nikaido v. Centennial Life Ins. Co., 42 F.3d 557 (9th Cir. 1994), which held that California Insurance Code Section 10350.11 provided the appropriate (three-year) statute of limitations.2 Wetzel, 222 F.3d at 648. In reaching its decision, the Ninth Circuit explained that many California courts have treated policy provisions arising out of the application of Insurance Code Section 10350.11 as contractual limitations periods, operating distinct from the statutory limitations period set by the state legislature. Id. Wetzel concluded that “although Section 10350.11 performs much the same functions as would a statute of limitations, it is not itself a statute of limitations.” Id.

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In Wise, the Ninth Circuit held that only one statute of limitations per state applies to benefits recovery actions under ERISA § 502(a)(1)(B), and applied Washington State’s six-year statute of limitations for written contract claims to the plaintiff’s ERISA claim for benefits. Wise, 600 F.3d at 1187. In reaching its decision, the Ninth Circuit analyzed whether the statute of limitations in ERISA benefits-recovery cases should be determined on a case-by-case basis. The court concluded that “[t]he federal goal of creating predictability for plan sponsors and administrators prevents us from allowing more than one statute of limitations per state to apply.” Id. See also Chuck v. Hewlett Packard Co., 455 F.3d 1026, 1031 (9th Cir. 2006) (Oregon’s six-year statute of limitations for breach of contract claims applied to a case that arose in Oregon); Moses v. American Fed’n of Musicians & Employers’ Pension Fund, 2011 WL 2792350, at *2 (D. Nev. 2011) (applying Nevada’s six-year statute of limitations for a cause of action on a written contract to an ERISA death benefits claim). Under ERISA Section 510, 29 U.S.C. § 1140, it is unlawful for any person to “discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary” for exercising rights to which he is entitled under the plan, or for the purpose of interfering with his attainment of any right to which he may become entitled under the plan. The Ninth Circuit has held that the “most analogous state law claim” to an ERISA Section 510 claim “would be wrongful termination against public policy or retaliatory discharge.” Burrey v. Pacific Gas & Elec. Co., 159 F.3d 388, 396 (9th Cir. 1998) (internal quotation marks 872

omitted) (citing and quoting Felton v. Unisource Corp., 940 F.2d 503, 512 (9th Cir. 1991)). See also Virtusio v. Fin. Indus. Regulatory Auth. Long Term Disability Income Plan, 2012 WL 5389918, at *6–7, *9 (N.D. Cal. 2012) (citing Burrey and other cases in discussing earlier uncertainty about which California statute of limitations governs a wrongful termination case; finding that California’s current two-year statute of limitations for personal injury claims applied and plaintiff’s § 510 claim was time-barred). A. Contractual Limitations Provisions The Ninth Circuit also considers contractual limitations in determining whether an ERISA action is time-barred. “There are two parts to the determination of whether a claimant’s ERISA action is timely filed: we must determine first whether the action is barred by the applicable statute of limitations, and second whether the action is contractually barred by the limitations provision in the policy.” Withrow v. Bache Halsey Stuart Shield, Inc., Salary Protection Plan, 655 F.3d 1032, 1035 (9th Cir. 2011) (citing generally Wetzel v. Lou Ehlers Cadillac Group Long Term Disability Ins. Program, 222 F.3d 643 (9th Cir. 2000)). Recent published Ninth Circuit decisions have not squarely addressed whether an insurer, through a contractual limitations period, may properly shorten the time for bringing an ERISA suit. However, there are cases that at least imply that a shortened limitations period may be permissible.

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In Wetzel, the Ninth Circuit considered a contractual limitation period that was shorter than the relevant statute of limitations. The court first determined that the plaintiff’s lawsuit seeking long term disability benefits was commenced within the applicable four-year “statutory limitations period.” Wetzel, 222 F.3d at 650. “[T]he next inquiry is whether [plaintiff’s] action is contractually barred by the limitations provision in the policy.” Id. The policy provided that an action to recover benefits must be commenced within “three years after the time written proof of loss is required.” Id. (internal quotation marks omitted). Ultimately, in light of a lack of information in the record, the Ninth Circuit remanded to the district court to determine how the contract provisions for claims and proof of loss applied to the plaintiff’s claim. Id. Citing Wetzel for the proposition that the Ninth Circuit “implied that it would allow a shorter statute of limitations for an ERISA claim if one is contained in a policy,” a district court upheld a three-year contractual limitations period in a lawsuit challenging the denial of accidental death benefits. See Sousa v. Unilab Corp. Class II (Non-Exempt) Members Group Benefit Plan, 252 F. Supp. 2d 1046, 1055–57 (E.D. Cal. 2002). The district court found persuasive the reasoning of cases from other jurisdictions that allowed contractual limitations periods shorter than the statute of limitations if the shorter period is reasonable. Id. at 1055. Although Wetzel did not decide whether the relevant contractual limitation period was violated, the Sousa court concluded that the Ninth Circuit “impliedly approved of a contractual three year limitation

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period,” given that the Wetzel court considered the contractual limitation after finding that the action was not barred by the longer statute of limitations. See id. at 1055–56. After also noting that the plaintiffs had not argued that the three year contractual limitation period was unreasonable, id. at 1056, the Sousa court concluded that “the law allows parties to contract for a limitation period less than the standard four year statute of limitations for ERISA actions [in California] provided the contractual period is reasonable.” Id. at 1059–60 (holding that action filed more than three years after claim for accidental death benefits was denied violated the contractual limitations period). In an unpublished decision affirming the district court, the Ninth Circuit found that the plan’s limitations period was not “extended to meet California’s four-year statutory period.” Sousa v. Unilab Corp. Class II (NonExempt) Members Group Benefit Plan, 83 F. App’x 954, 956 (9th Cir. 2003) (citing Wetzel, 222 F.3d at 650). “The California statute of limitations functions as a maximum time to file an action not a minimum required by law.” Id. (internal quotation marks omitted). Cf. Koblentz v. UPS Flexible Employee Benefit Plan, 2013 WL 4525432, at *3–4 (S.D. Cal. 2013) (finding plaintiff’s claims contractually time-barred by a provision requiring any legal action to receive plan benefits to be filed within six months from the date a determination is made under the plan, or should have been made in accordance with the plan’s claim review procedures); McVicker v. Blue Shield of Ca., 2007 WL 3407433, at *5–6 (N.D. Cal. 2007) (finding a two-year contractual limitations period unreasonable).

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In a short term disability case involving a self-funded plan, the Ninth Circuit affirmed dismissal where the lawsuit was filed 20 days after the expiration of a oneyear limitation provision contained in a summary plan description (SPD). See Scharff v. Raytheon Co. Short Term Disability Plan, 581 F.3d 899 (9th Cir. 2009). On appeal, the plaintiff argued that the placement and display of the one-year deadline violated plan participants’ reasonable expectations. Id. at 903. The Ninth Circuit assumed, without deciding, that the “reasonable expectations doctrine” applied to a self-funded benefit plan. Id. at 903–06. Under that doctrine, “the meaning of an insurance policy is determined in accordance with the reasonable expectations” of a “hypothetical reasonable insured.” Id. at 904–05 (citations omitted). The court determined that the SPD “met plan participants’ reasonable expectations, in addition to fulfilling the statutory and regulatory [disclosure] requirements.” Id. at 906. Significantly, in affirming the district court’s dismissal of the lawsuit as untimely under the one-year contractual limitations period, id. at 901, the Ninth Circuit noted that it did not consider two issues that the plaintiff failed to raise on appeal: “whether an insurer may shorten the limitations period for bringing an ERISA suit and whether the contractual limitations period is enforceable[.]” Id. at 903. Shortly after the Ninth Circuit’s decision in Scharff, a district court stated that “[t]he Ninth Circuit has not squarely addressed whether it is appropriate to apply a contractual limitations period in the ERISA context.” Chambers v. Mt. Contractors Ass’n Health Care Trust, 797 F. Supp. 2d 1050, 1055 (D. Mont. 2009). “The 876

Circuit Courts of Appeal that have addressed the issue, however, have either directly concluded that a limitations period in an ERISA benefits plan is enforceable, if it is reasonable, or have effectively enforced such a provision.” Id. (citations omitted) (concluding that the relevant ERISA plan’s three-year limitations period was reasonable and the plaintiff’s action was time-barred). Two years later, in Withrow, the Ninth Circuit clarified the two-part process noted above for determining whether an ERISA action is time-barred. See Withrow, 655 F.3d at 1035. After finding that the lawsuit commenced within the applicable statutory limitations period, the court addressed contractual limitations. The policy contained provisions required by California Insurance Code Sections 10350.7 and 10350.11, which apply to disability policies. Id. at 1038. Specifically, “no legal action may be brought ‘after the expiration of three years … after the time written proof of loss is required to be furnished.’” Id. Further, proof of loss must be provided “in case of claim for loss for which this Policy provides any periodic payment contingent upon continuing loss within 90 days after the termination of the period for which the company is liable.” Id. (internal quotation marks omitted). Finding that Wetzel held that “applicants for long-term disability benefits must meet both ERISA and contractual limitations with regard to the length of the limitation period and the accrual date,” the Withrow court noted that the contract created a shorter limitations period than the applicable statute of limitations (three years instead of four). Id. at 1038–39. The court also noted that it had previously found it difficult to interpret the phrase 877

“termination of the period for which the company is liable” for purposes of determining when a cause of action accrued with respect to the contractual limitations provision. Id. at 1039. However, Withrow did not reach “the thorny issue” of what that phrase means with regard to disputes over whether an applicant is disabled or entitled to benefits at all. Id. Rather, the court agreed “that the language of this [contractual] provision, as mandated by [Cal. Ins. Code] § 10350.7 and § 10350.11, is meaningless as applied to disputes over the proper calculation of the amount of monthly disability benefits, as opposed to disputes over whether an applicant is entitled to benefits at all.” Id. (noting that counsel acknowledged that California’s four-year statute of limitations was the only time bar that applied). B. Accrual of Statute of Limitations The Ninth Circuit has held that “the accrual of an ERISA cause of action is determined by federal, rather than state, law.” Wetzel, 222 F.3d at 649. “[U]nder federal law, an ERISA cause of action accrues either at the time benefits are actually denied … or when the insured has reason to know that the claim has been denied.” Id. (internal and additional citations omitted) (overruling an earlier case, Nikaido v. Centennial Life Ins. Co., 42 F.3d 557 (1994), that had applied a “rolling accrual” rule under which a cause of action accrued each month a claimant was disabled and the insurer failed to pay benefits). “A claimant has a ‘reason to know’ under the second prong of our accrual test when the plan communicates a ‘clear and continuing repudiation of a claimant’s rights under a plan such that the claimant could not have reasonably 878

believed but that his [or her] benefits had been finally denied.’” Wise v. Verizon Communications, Inc., 600 F.3d 1180, 1188 (9th Cir. 2010) (alteration in original) (quoting Chuck v. Hewlett Packard Co., 455 F.3d 1026, 1031 (9th Cir. 2006)). In Wetzel, the Ninth Circuit found that the plaintiff’s cause of action did not accrue at the time of the insurer’s letter informing him that his disability benefits would be limited to 24 months under the policy’s mental-nervous limitation. Wetzel, 222 F.3d at 649–50. Because the letter stated that the decision was based on the status of the plaintiff’s file at the time, and invited the plaintiff to provide additional information, the plaintiff “could have reasonably believed his benefits had not been finally denied, particularly in view of the fact that he was still receiving benefit payments at that time.” Id. at 650 (finding that cause of action did not accrue at any time prior to letter to insured discontinuing benefits). See also Withrow v. Bache Halsey Stuart Shield, Inc., Salary Protection Plan, 655 F.3d 1032 (9th Cir. 2011) (finding that cause of action accrued when insurer upheld its denial of plaintiff’s claim regarding calculation of monthly disability benefit, although the parties communicated over span of approximately 15 years about the amount of benefits); Wise, 600 F.3d at 1188 (finding that cause of action accrued at the earliest on date of final denial letter because only after receiving that letter was plaintiff “informed that no further internal appeals were possible and that her opportunity to submit more medical documentation had ceased”).

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The Ninth Circuit has indicated that a defendant in an ERISA case may be estopped in certain circumstances from asserting a statute of limitations defense. “As a general rule, a defendant will be estopped from setting up a statute-of-limitations defense when its own prior representations or conduct have caused the plaintiff to run afoul of the statute and it is equitable to hold the defendant responsible for that result.” Lamantia v. Voluntary Plan Administrators, Inc., 401 F.3d 1114, 1119 (9th Cir. 2005) (citation and internal quotation marks omitted). “Estoppel may apply not only against a party asserting a statute of limitations defense, but also against a party asserting a contractual limitations defense based on a specified time period in an ERISA disability plan.” Id. (citation omitted). For estoppel to apply, the following conditions must be satisfied: “1) the party to be estopped must be apprised of the facts; 2) the other party must be ignorant of the true state of facts, and the party to be estopped must have acted so that the other party had a right to believe that the party intended its conduct to be acted upon; and 3) the other party relied on the conduct to its prejudice.” Id. (citations and internal quotation marks omitted). In holding that the plan was estopped from relying on either the statutory or contractual limitations, the Ninth Circuit found, in part, that over the course of four years the plan’s claims administrator made several representations to the plaintiff about the status of her internal appeal, which the plaintiff reasonably relied upon, causing her prejudice by her failure to file suit within the limitations periods. See id. at 1120–21. In Chuck v. Hewlett Packard Co., 455 F.3d 1026 (9th Cir. 2006), the Ninth Circuit addressed an issue of first 880

impression: “whether ERISA’s statute of limitations may bar a claim for benefits notwithstanding a plan’s failure to fulfill its disclosure and review obligations under ERISA § 503, 29 U.S.C. § 1133.” Id. at 1029. See also 29 U.S.C. § 1133 (requiring plans to provide adequate notice in writing setting forth the specific reasons that a claim for benefits was denied and provide a reasonable opportunity for a full and fair review by the fiduciary of the decision denying the claim). Chuck held that “a plan’s material violation of § 1133 is a factor that militates strongly against a finding that the statute of limitations has begun to run against a claimant,” but “compelling” circumstances nevertheless indicated that the plaintiff’s claim was time-barred. 455 F.3d at 1029–30. After noting that the Ninth Circuit had previously addressed only whether a plan’s inadequate notice could prevent the triggering of a contractual limitations period, the court discussed distinctions “between statutory and contractual time bars in the ERISA context.” See id. at 1033–36. Because of those distinctions, the court held that “a plan’s violation of § 1133 does not always prevent the triggering of ERISA’s statutory limitations period.” Id. at 1033. “[W]hile a great deal of caution is necessary before finding a claim barred by ERISA’s statute of limitations notwithstanding a plan’s violation of § 1133, an investigation of the facts of each case is necessary to determine whether a plan nevertheless foreclosed a claimant from any reasonable belief that the plan had not finally denied benefits.” Id. at 1036. See also Withrow, 655 F.3d at 1037 (“In Chuck, we made clear that only an ‘unusual combination of circumstances’ would warrant a finding that a claim was time-barred despite a plan’s

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failure to comply with its duties of proper notification and review under ERISA.”). In Chuck, the combination of six factors convinced the Ninth Circuit that the plaintiff “could not have reasonably believed but that his claim had been finally denied,” leading to the conclusion that his claim was time-barred. See Chuck, 455 F.3d at 1037–38. First, the plaintiff had actual notice of the position the plan was going to take regarding the amount of pension benefits owed. Id. at 1037. Second, the plan consistently communicated to the plaintiff that it was taking the position he expected. Id. Third, the plaintiff had actual notice that a lump sum payment, if made, would be his only payment option. Id. Fourth, the plaintiff had actual notice that his acceptance of a lump sum payment would be irrevocable. Id. Fifth, the plaintiff accepted a lump sum payment in the amount set by the plan. Id. Sixth, when the plaintiff raised the issue again with the plan, a plan administrator sent him a letter noting that the plan had paid him and stating unequivocally that no further retirement benefits were payable. Id. Based on those circumstances, the Ninth Circuit found that the plaintiff “had no reasonable basis for believing that the handling of his benefits claim was not final,” and instead his “own actions and understandings play a large role in foreclosing the possibility that he did not have reason to know his claim had been conclusively denied.” Id. at 1038. See also Withrow, 655 F.3d at 1037–38 (discussing and distinguishing the circumstances in Chuck that had warranted a finding that a claim was time-barred).

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Section 413 of ERISA, 29 U.S.C. § 1113, contains a statute of limitations for breach of fiduciary duty claims. Generally, such claims must be brought by the earlier of: (1) six years after (A) the last action that constituted a part of the breach or violation, or (B) if an omission, “the latest date on which the fiduciary could have cured the breach or violation,” or (2) “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation….” See 29 U.S.C. § 1113 (also including an exception for cases of fraud or concealment). The Ninth Circuit has addressed the applicability of a “continuing violation theory” in cases arising under 29 U.S.C. § 1113, as well as 29 U.S.C. § 1132, to which the ERISA statute of limitations (§ 413) does not apply. Under such a theory, “the statute of limitations does not begin to run until the last breach occurs. If the violations are continuing at the time of the filing of the complaint, then the statute has not begun to run.” Pisciotta v. Teledyne Industries, Inc., 91 F.3d 1326, 1332 (9th Cir. 1996). In Phillips v. Alaska Hotel & Restaurant Employees Pension Fund, 944 F.2d 509, 520 (9th Cir. 1991), the Ninth Circuit rejected the continuing violation theory in a case involving ERISA § 413(2), 29 U.S.C. § 1113(2). In determining the date that the statute of limitations began to run, the district court held that each time the trustees decided not to relax pension plan vesting rules, a new breach occurred and the limitation period began anew. See id. at 520. The Ninth Circuit held that this “application of the continuing violation theory founders on the plain language” of § 413(2) which requires that the 883

plaintiff’s knowledge be measured from the “earliest date” on which he knew of the breach. Id. “While the trustees’ conduct may be viewed as a series of breaches, all were of the same character: a failure to amend vesting rules.” Id. “Once a plaintiff knew of one breach, an awareness of later breaches would impart nothing materially new.” Id. (stating that earliest date on which a plaintiff became aware of any breach would start the § 1113(2) limitation period running). Recently, the Ninth Circuit cited Phillips in rejecting a “continuing violation theory” with respect to § 413(1)(A). See Tibble v. Edison Int’l, 711 F.3d 1061, 1068 (9th Cir. 2013), opinion amended on denial of rehearing en banc by 2013 WL 3947717 (9th Cir. 2013). In Tibble, beneficiaries of a defined contribution pension plan argued that the district court erred in determining the timeliness of claims alleging imprudence in plan design from when the decision to include certain investments in the plan was initially made. See id. at 1068. In affirming the district court, the Ninth Circuit held that “the act of designating an investment for inclusion starts the six-year period under section 413(1)(A) for claims asserting imprudence in the design of the plan menu.” Id. The Ninth Circuit also found that “[t]hese particular beneficiaries could not establish changed circumstances engendering a new breach, but the district court was entirely correct to have entertained that possibility.” Id. at 1069 (also stating that the potential for future beneficiaries to succeed in making such a showing “illustrates why our interpretation of section 413(1)(A) will not alter the duty of fiduciaries to exercise prudence on an ongoing basis”). See also Kanawi v. Bechtel Corp., 884

590 F. Supp. 2d 1213, 1225 (N.D. Cal. 2008) (citing Phillips and stating that “[t]here is no ‘continuing violation’ theory to claims subject to ERISA’s limitation period”). The Ninth Circuit has also found that the reasoning of Phillips applied to claims brought under 29 U.S.C. § 1132, challenging a freeze on reimbursement of medical insurance premiums, despite the fact that the ERISA statute of limitations was inapplicable. Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 1332 (9th Cir. 1996). XIV. Subrogation Litigation The Ninth Circuit formerly held that claims for reimbursement by a health insurer were “not cognizable” under ERISA because the relief sought was not properly equitable. FMC Medical Plan v. Owens, 122 F.3d 1258 (9th Cir. 1997); Reynolds Metal Co. v. Ellis, 202 F.3d 1246 (9th Cir. 2000). Immediately after the Supreme Court’s decision in Great-West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204 (2002), the Ninth Circuit held in Westaff v. Arce, 298 F.3d 1164 (9th Cir. 2002), that the plan’s claims for declaratory relief and specific performance were not cognizable under ERISA even though the disputed funds were placed into a joint escrow account pending determination of to whom the money was owed. The Ninth Circuit took this position even further, holding in Providence Health Plan v. McDowell, 361 F.3d 1243 (9th Cir. 2004), that an insurer’s attempt to enforce a plan reimbursement provision was not preempted by ERISA and is appropriately brought as a state-law claim for breach of contract. However, the Ninth 885

Circuit’s longstanding position on this issue was impliedly overruled by the Supreme Court’s decision in Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006). In Sereboff, the Supreme Court held that a plan could bring an ERISA action under 29 USC § 1132(a)(3) for reimbursement under an equitable lien or constructive trust theory where the funds that the plan seeks to recover are specifically identifiable as reimbursable. The Ninth Circuit revisited and clarified this issue in Bilyeu v. Morgan Stanley Long Term Disability Plan, 683 F.3d 1083 (9th Cir. 2012). In Bilyeu, the claims review fiduciary brought a counterclaim against a Plan participant seeking reimbursement of overpaid long term disability benefits. The Court found that a Plan provision under which a participant agreed to reimburse the Plan for any overpayment created by the participant’s subsequent receipt of other disability benefits potentially created an equitable lien by agreement which would be enforceable under (a)(3). The Court held that Sereboff established three criteria for the creation of an enforceable equitable lien by agreement: (1) a promise by the beneficiary to reimburse the fiduciary in the event of a recovery from a third party; (2) the identification of a particular fund, distinct from the beneficiary’s general assets, from which the fiduciary would be reimbursed; (3) the identified funds must be with the possession and control of the beneficiary. In Bilyeu, the beneficiary’s receipt of Social Security funds created the overpayment. Since social security benefits are non-assignable, the Court held that the Plan could not enforce an equitable lien against the beneficiary’s receipt of such benefits. In so holding, the 886

Court emphasized that an equitable lien by agreement may not be enforced against a beneficiary’s general assets; where the property subject to the equitable lien can no longer be traced, the equitable lien cannot be enforced. The Supreme Court further clarified Ninth Circuit law in U.S. Airways v. McCutchen, 133 S. Ct. 1537 (2013). McCutchen involved an employer provided health plan that included a provision for reimbursement of Plan benefits out of any recovery by the participant from a third party “as a result of judgment, settlement, or otherwise.” The participant was injured in an auto accident, and the Plan paid $66,866 of the participant’s medical expenses. The participant sued the driver of the other vehicle; the case settled for $110,000, of which the participant received $66,000 after deduction of attorney’s fees. The Plan filed an action under § 502(a)(3) seeking to enforce an equitable lien in the amount of $66,866. The participant asserted equitable defenses, including the “make whole” doctrine and the “common fund” doctrine. The Court held that equitable principles may not override, vary, or contradict express written Plan terms, so the equitable doctrine of “make whole” relief was not a defense to the reimbursement claim. In so holding, the Court abrogated CGI Technologies and Solutions Inc. v. Rose, 683 F.3d 1113 (9th Cir. 2012), which had held that courts may consider traditional equitable principles notwithstanding the express terms of a plan. However, the Court also held that equitable principles may aid in the interpretation of plan terms, where the Plan does not specifically address a particular issue. Because the Plan did not address the issue of attorney’s fees, the Court held 887

that the “common fund” doctrine (in which a party seeking reimbursement is obligated to contribute to the payment of the attorney’s fees incurred in obtaining the recovery) applied to reduce the amount that the Plan was entitled to recover. Prior to Sereboff, the Ninth Circuit had held that a Plan may not enforce a subrogation lien against a participant’s attorney who neither signed the reimbursement agreement nor agreed to be bound by it. Hotel Employees & Restaurant Employees Int’l Union v. Gentner, 50 F.3d 719 (9th Cir. 1995). In an unpublished opinion, the Court held that Sereboff did not overrule Gentner. AC Houston Lumber Co. Employee Health Plan v. Berg, 2010 U.S. App. LEXIS 26599 (9th Cir. Dec. 29, 2010). Subsequently, in CGI Technologies and Solutions, Inc. v. Rose, 683 F.3d 1113 (9th Cir. 2012), the Court overruled Gentner, citing Harris Trust and Savings Bank v. Salomon Smith Barney, 530 U.S. 238 (2000), for the proposition that “the universe of possible defendants” in an (a)(3) action could include an attorney who was not a signatory to the plan, if the attorney was involved in an unlawful transaction. Id. at 1117. However, under the facts of the case, the Court held that the attorney was not a proper party because of the absence of evidence of an unlawful transaction. (As noted above, CGI Technologies was abrogated on other grounds; the case has been remanded to the Ninth Circuit for further consideration in light of McCutchen.). XV. Miscellaneous

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Awards of pre-judgment interest are within the discretion of the court. Sterio v. HM Life, 2010 U.S. App. LEXIS 4615 (9th Cir. 2010); Blankenship v. Liberty Life Assur. Co., 486 F.3d 620, 627, (9th Cir. 2007); Dishman v. UNUM Life Ins. Co., 269 F.3d 974, 988 (9th Cir. 2001); Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1163–64 (9th Cir. 2001). The decision whether to award pre-judgment interest involves a question of “fairness” to be answered by “balancing the equities.” Landwehr v. Dupree, 72 F.3d 726, 739 (9th Cir. 1995). Generally, the interest rate prescribed for post-judgment interest under 28 U.S.C. § 1961 is appropriate for fixing the rate of pre-judgment interest unless the trial judge finds, on substantial evidence, that the equities of that particular case require a different rate. Blankenship, 486 F.3d at 627–28. “Substantial evidence” is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citing Blanton v. Anzalone, 813 F.3d 1574, 1575 (9th Cir. 1987)). With respect to unique procedural rules, the Ninth Circuit had previously held that in ERISA cases decided under the “abuse of discretion” standard, summary judgment was the conduit for bringing the legal question of entitlement to benefits before the court, and the usual tests of summary judgment, such as whether a genuine dispute of material fact exists, did not apply. Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999). In the wake of Abatie, however, the Court had held that extra-record evidence relating to the conflict of interest issue, submitted in support of a motion for summary judgment, must be 889

viewed in the light most favorable to the non-moving party. Nolan v. Heald College, 551 F.3d 1148, 1155–56 (9th Cir. 2009). As a result, many District Courts are now interpreting summary judgment motions as Rule 52 Motions for judgment. See, e.g., Bardill v. Lincoln National Life Ins. Co., 2011 U.S. Dist. LEXIS 28276, at *11 (N.D. Cal. March 15, 2011) (“[s]ince a court reviewing for an abuse of discretion must review the administrative record and make something ‘akin to a credibility determination’ … the court should set forth findings of fact and conclusions of law pursuant to Federal Rule of Procedure 52”). Other courts have interpreted Rule 52 as requiring a bench trial on the merits followed by findings of fact and conclusions of law, and held that it is therefore inappropriate to treat a motion for summary judgment as being brought pursuant to Rule 52. Franks v. Aetna Life Ins. Co., 2012 U.S. Dist. LEXIS 155519 (N.D. Cal. Oct. 30, 2012). With respect to policy limitations on benefits for disabilities due to “mental disorders” the Ninth Circuit has held that the term “mental disorder” is ambiguous where it does not specify whether a disability is to be classified as “mental” by looking to the cause of the disability or to its symptoms. Patterson v. Hughes Aircraft Co., 11 F.3d 948, 950 (9th Cir. 1993) (holding that the policy was also ambiguous in failing to make clear whether a disability qualifies as a “mental disorder” when it results from a combination of physical and mental factors); Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 940 (9th Cir. 1995) (plan document ambiguous where the terms “mental illness” and “functional nervous disorder” not defined); 890

accord Parker v. Vulcan Materials Co. LTD Plan, 2011 U.S. App. LEXIS 3035 (9th Cir. 2011). The Ninth Circuit has no special rules for ERISA class actions. Notes 1. While a Plaintiff may seek such relief under § 502(a)(1)(B), a request that the Court issue an injunction prohibiting a defendant from terminating his benefits under the Plan until the end of the maximum benefit period is open to attack on the grounds that a plaintiff’s disability may disappear or fade over time, thereby rendering him no longer disabled under the terms of the Plan. See Fowler v. Aetna Life Ins. Co., 2008 WL 4911172, at *1 (N.D. Cal. 2008) (granting the defendant’s motion to strike the plaintiff’s request for “an injunction prohibiting Defendants from terminating her benefit until the end of the maximum benefit period or such other declaration the Court deems proper”). 2. CAL. INS. CODE § 10350.11 provides: Limitation of actions on policy A disability policy shall contain a provision which shall be in the form set forth herein. Legal Actions: No action at law or in equity shall be brought to recover on this policy prior to the expiration of 60 days after written proof of loss has been furnished in accordance with the requirements of this policy. No such action shall be brought after the expiration of three years after 891

the time written proof of loss is required to be furnished.

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CHAPTER 10 Tenth Circuit DAVID N. KELLEY CRISTIN J. MACK SCOTT PETERSEN GILLIAN DALE I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan When interpreting 29 U.S.C. § 1002(1), the Tenth Circuit has set forth five elements to be considered when determining whether a plan exists under ERISA: “(1) A ‘plan, fund, or program’ (2) established or maintained (3) by an employer … (4) for the purpose of providing benefits … (5) to participants or their beneficiaries.” Potts v. CitiFinancial, Inc., 2011 U.S. Dist. LEXIS 139370 (D. Colo. Dec. 2, 2011) (quoting Peckham v. Gem State Mut. of Utah, 964 F.2d 1043, 1047 (10th Cir. 1992); and Donovan v. Dillingham, 688 F.2d 1367, 1371 (11th Cir. 1982)); Gaylor v. John Hancock Mut. Life Ins. Co., 112 F.3d 460, 464 (10th Cir. 1997); Sipma v. Mass. Cas. Ins. Co., 256 F.3d 1006, 1009 (10th Cir. 2001).

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A “plan, fund, or program” under ERISA is established or maintained by an employer if “from the surrounding circumstances a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and the procedures for receiving benefits.” Peckham, 964 F.2d at 1047; Halprin v. Equitable Life Assur. Soc’y, 267 F. Supp. 2d 1030, 1035 (D. Colo. 2003); Hemphill v. Unisys Corp., 855 F. Supp. 1225, 1230 (D. Utah 1994). In Peckham, the Tenth Circuit held that the policy constituted a “plan, fund, or program” covered by ERISA based solely on policy or plan language at issue. Peckham, 964 F.2d at 1047–48. However, where a reasonable person cannot ascertain the intended benefits of the plan, it will not be an ERISAgoverned plan. Siemon v. AT&T Corp., 117 F.3d 1173, 1179 (10th Cir. 1997). “An important factor in determining whether a plan has been established is whether the employer’s purchase of the policy is an expressed intention by the employer to provide benefits on a regular and long-term basis.” Gaylor, 112 F.3d at 464. See also Lettes v. Kinam Gold, Inc., 3 F. App’x 783, 788 (10th Cir. 2001) (a golden parachute agreement was unfunded, contingent on a onetime event that might never happen, and expressly limited to a narrow time period); Averhart v. U.S. WEST Mgmt. Pension Plan, 46 F.3d 1480, 1486 (10th Cir. 1994) (employer’s activities in relation to group insurance policy can be evidence of a plan and, in some instances, may give rise to an estoppel claim). “A formal written plan is not a prerequisite for establishing or maintaining a plan, but ‘[a] decision to extend benefits is not the establishment of a plan or program.’” Lohmann v. Green 894

Bay Packaging, Inc., 1994 U.S. App. LEXIS 31020, *12 (10th Cir. Nov. 7, 1994) (unpublished) (quoting Donovan, 688 F.2d at 1373). B. Definition of “Employee” for ERISA Purposes For the purpose of determining whether an ERISA plan exists, the plan must provide benefits to at least one employee. Sipma v. Mass. Cas. Ins. Co., 256 F.3d 1006, 1010 (10th Cir. 2001) (citing Slamen v. Paul Revere Life Ins. Co., 166 F.3d 1102, 1104 (11th Cir. 1999)). See also 29 C.F.R. § 2510.3-3(b) (excluding from the definition of “employee welfare benefit plan” any plan “under which no employees are participants covered under the plan”). Whether an individual is an employee is a question of fact. Marvel v. United States, 719 F.2d 1507, 1515 (10th Cir. 1983). In Herr v. Heiman, 75 F.3d 1509, 1512–13 (10th Cir. 1996), the court applied a common law 12-factor test to differentiate between employees and independent contractors to determine whether a worker qualifies as an employee for ERISA purposes. The factors are (1) the skill required, (2) the source of the instrumentalities and tools, (3) the location of the work, (4) the duration of the relationship between the parties, (5) whether the hiring party has the right to assign additional projects to the hired party, (6) the extent of the hired party’s discretion over when and how long to work, (7) the method of payment, (8) the hired party’s role in hiring and paying assistants, (9) whether the work is part of the regular business of the hiring party, (10) whether the hiring party is in business, (11) the provision of employee benefits, and (12) the tax treatment of the hired party. Id.

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(citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992)). In Sipma, the court distinguished a shareholder/ employee of a corporation from the corporation itself, holding that a shareholder could also be an employee of the corporation for ERISA purposes. Sipma, 256 F.3d at 1010 (noting that under Colorado common law and common law generally a corporation is treated as a distinct entity from its shareholders). However, where the shareholder is the sole shareholder of the corporation, he cannot be counted as an employee for the purpose of determining whether a plan exists. Id. at 1012. But see Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1, 16 (2004) (“In sum, because the statute’s text is adequately informative, we need not look outside ERISA itself to conclude with security that Congress intended working owners to qualify as plan participants.”). C. Interpretation of Safe Harbor Regulation Plans meeting each of the four “safe harbor” factors of 29 C.F.R. § 2510.3-1(j) are excluded from ERISA coverage. Gaylor, 112 F.3d at 463; Peckham, 964 F.2d at 1045 (“group policies” providing employer-paid single employee medical benefits and also additional family medical coverage if elected and paid for by the employee were determined to be an ERISA plan). However, simply because the plan is not excluded under the safe harbor provisions does not compel the conclusion that it is an ERISA plan. Gaylor, 112 F.3d at 464.

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D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan A plan is “established or maintained” by the employer where it is “part of an employment relationship.” Peckham, 964 F.2d at 1049 (citing Massachusetts v. Morash, 490 U.S. 107 (1989)). The Tenth Circuit has defined this employment relationship as follows: [W]e determine whether the plan is part of an employment relationship by looking at the degree of participation by the employer in the establishment or maintenance of the plan. An employer’s mere purchase of insurance for its employees does not, without more, constitute an ERISA plan. An important factor in determining whether a plan has been established is whether the employer’s purchase of the policy is an expressed intention by the employer to provide benefits on a regular and long-term basis. Sipma, 256 F.3d at 1012 (quoting Gaylor, 112 F.3d at 464). “While merely purchasing insurance is insufficient to establish an ERISA plan, the purchase of a group policy or multiple policies covering a class of employees offers substantial evidence that a plan … has been established.” Id. (internal quotation marks omitted). E. Does the Tenth Circuit Recognize a “List Bill” Exception for Individual Policies? The Tenth Circuit has not considered the issue of a “list bill” in the context of an ERISA plan. However, in Banki v. Provident Indem. Life Ins. Co., 95 F. App’x 268, 271 897

(10th Cir. 2004), a case involving a non-ERISA policy, the Tenth Circuit appeared to agree that an insurance company did not breach its contract by canceling the policy due to failure of one party to pay premiums under a list bill arrangement, and to split late payments between the two individuals insured under the list bill. F. Treatment of Multiple Employer Trusts and Welfare Agreements A multiple employer trust is not itself an employee benefit plan. Peckham, 964 F.2d at 1047 n.4. The employer who subscribes to such a trust must show that it has created a separate employee-benefit plan in connection with the subscription. See id. Multiple employer welfare arrangements that are not fully insured may not be used to escape state insurance regulations that would otherwise be applicable, such as those governing workers’ compensation. Fuller v. Norton, 86 F.3d 1016, 1024 (10th Cir. 1996). G. Treatment of Individual Business Owners In Sipma, 256 F.3d at 1011, the Tenth Circuit looked to federal regulations to determine whether individual business owners are “employees” under ERISA: “For purposes of determining whether an ‘employee benefit plan’ exists, the regulations exclude from the definition of ‘employee’ only: (1) the owner of a business, incorporated or unincorporated, ‘which is wholly owned by the individual or by the individual and his or her spouse,’ and (2) partners in a partnership (and spouses). 29 C.F.R. § 2510.3-3(c) (emphasis added).” The Tenth 898

Circuit noted that the exception on its face is limited to individuals (including spouses) who are sole owners of a business, and does not extend to exclude multiple shareholders from the definition of “employee.” Id. The Tenth Circuit further looked to a Department of Labor opinion interpreting the subsection as applying “‘only where the stock of the corporation is wholly owned by one shareholder and his or her spouse and the shareholder or the shareholder and his or her spouse are the only participants in the plan.’” Id. (quoting Op. Dep’t of Labor 76-67 (May 21, 1976)). Because the company had two shareholders, the claimant was not excluded from the definition of “employee.” Id. See also In re Reinhart, 477 F. App’x 510, 517 (10th Cir. 2012) (“An ERISA ‘employee benefit plan’ cannot exist without employees, and ERISA regulations exclude from the definition of ‘employee’ the owner of a business and his spouse. See 29 CFR § 2510.3-3(c)(1).”). In Pierce v. Capitol Life Ins. Co., 806 P.2d 388, 390 (Colo. App. 1990), the Colorado Court of Appeals likewise relied on the Code of Federal Regulations in determining that an individual business owner is not an employee or a participant for purposes of eligibility in an employee benefit plan: A “participant” is basically defined as any employee who is or may become eligible to receive a benefit from an employee benefit plan. 29 U.S.C. § 1002(7) (1982). The regulations promulgated by the Secretary of Labor, in effect at all relevant times, state that “[a]n individual and his or her spouse shall not be deemed to be employees with respect to a trade or business, 899

whether incorporated or unincorporated, which is wholly owned by the individual or by the individual and his or her spouse….” 29 C.F.R. § 2510.3-3(c) (1) (1989) (emphasis added). Plaintiffs therefore fall within the exclusion from the term “employee.” See Kwatcher v. Mass. Serv. Emps. Pension Fund, 879 F.2d 957 (1st Cir. 1989). Id. The Court of Appeals determined that the plaintiffs, owners of the company and therefore not “employees,” were not able to bring an action under ERISA as “participants.” Id. (citing Peckham, 653 F.2d 424). H. Recognition of De Facto Plan Administrators The Tenth Circuit does not recognize de facto plan administrators. Some circuits, such as the First Circuit, have held that although one party is termed or deemed the administrator, based on a “plethora of evidence indicating [another party] had assumed and controlled the plan administrator’s function of furnishing required information in response to a plan beneficiary’s request,” that other party could be held liable as the “de facto” plan administrator under 29 U.S.C. § 1132(c). Law v. Ernst & Young, 956 F.2d 364, 732–34 (1st Cir. 1992). However, the Tenth Circuit has rejected the argument that the court may look beyond the specific designation in the plan instrument to determine which entity actually controls the plan administration. “[I]n light of the plain language of the statute [the Tenth Circuit] rejected this expansive definition of plan ‘administrator’ advanced by 900

the First Circuit and concluded ‘that because [the other party] was not the administrator designated by the [plan], plaintiff could not assert a § 1132(c) claim against [the other party].’” McKinsey v. Sentry Ins., 986 F.2d 401, 405 (10th Cir. 1993) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 (1989)). The McKinsey decision was again upheld in Lederman v. Analex Corp., 2008 U.S. Dist. LEXIS 56640 (D. Colo. July 23, 2008) (refusing to accept the “de facto” plan administrator argument once again as it pertains to § 1132(c)). The Tenth Circuit has stated, however, that “[u]nder appropriate circumstances, … [a penalty] may be based on information requests … not directed to the plan administrator.” Philippus v. Aetna Life Ins. Co., 2010 U.S. Dist. LEXIS 79055 (D. Colo., June 10, 2010) (citing Wilcott v. Matlack Sys., Inc. Emp. Benefits Trust, 64 F.3d 1458, 1461 (10th Cir. 1995)). However, those cases involve requests that were intended to be addressed by the plan administrator but were referred to another person within the company by mistake. Id. See also Boone v. Leavenworth Anesthesia, Inc., 20 F.3d 1108, 1111 (10th Cir. 1994) (letter sent to counsel who handled plan); McKinsey, 986 F.2d at 404–05 (where personnel regularly answer requests from participants, their actions can be imputed to the plan administrator but that still does not equal a finding of a de facto administrator). II. Preemption A. Scope of ERISA Preemption

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ERISA preempts state laws to the extent that they “relate to” an employee-benefit plan, but saves from preemption any state law that “regulates insurance, banking or securities.” Hancock v. Metro. Life Ins. Co., 590 F.3d 1141, 1148 (10th Cir. 2009). The Tenth Circuit views preemption broadly: “To ensure ‘national uniformity in fiduciary standards for the administration of employee benefit plans,’ ERISA includes an ‘expansive preemption scheme.’” Lewis v. U.F.C.W. Dist. Union Local Two and Employers Pension Fund, 273 F.App’x 765 (10th Cir. 2008) (quoting Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1249 (10th Cir. 2007)). The Tenth Circuit’s approach to determining whether a state law “relates to” an employee benefit plan focuses upon whether the law “affect[s] the relations among the principal ERISA entities, the employer, the plan, the plan fiduciaries and the beneficiaries.” David P. Coldesina, D.D.S., P.C., Emp. Profit Sharing Plan & Trust v. Estate of Simper, 407 F.3d 1126, 1136 (10th Cir. 2005); Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 990 (10th Cir. 1999). “[A]ctions that affect the relations between one or more of these plan entities and an outside party … escape ERISA preemption.” Id. Similarly, “a claim only falls within ERISA’s civil enforcement scheme when it is based solely on legal duties created by ERISA or the plan terms, rather than some other independent source.” Coldesina, 407 F.3d at 1137. In Hansen v. Harper Excavating, Inc., 641 F.3d 1216 (10th Cir. 2011), the court held that where an employee did not have standing to bring his claims under ERISA’s 902

civil enforcement provision because his employer failed to effectively enroll him in its ERISA-governed health insurance plan, his claims against the employer were not preempted by ERISA. The Tenth Circuit draws a substantive distinction between state law claims that are expressly preempted and those that are conflict-preempted. Only state law claims that are the subject of conflict preemption can be removed to federal court based on the “complete preemption” doctrine, under which state laws that would impose remedies in conflict with ERISA are converted to federal claims, even where no federal claim is expressly stated. Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, 36 F.3d 1195, 1205 (10th Cir. 2012). See also Kiker v. Cmty. Health Sys. Prof. Servs. Corp., 484 F.App’x 215, 216 (10th Cir. 2012); Felix v. Lucent Techs., Inc., 387 F.3d 1146 (10th Cir. 2004). Thus, where a plaintiff’s claim is arguably subject to express preemption under 29 U.S.C. § 1144, but is not subject to conflict preemption, a federal district court is without jurisdiction to assess the claim of express preemption, and the action must be remanded to state court. Felix, 387 F.3d at 1158. See also Hansen, 641 F.3d at 1221–22. B. Preemption of Managed Care Claims Managed care decisions denying benefits for various procedures are preempted. See Lind v. Aetna Health, Inc., 466 F.3d 1195 (10th Cir. 2006). Claims for respondeat superior and medical malpractice were preempted by ERISA where they relied on decisions regarding managed care. Cannon v. Group Health Serv. of Okla., 77 F.3d 903

1270 (10th Cir. 1996) (denial of coverage for autologous bone-marrow transplant; claim for wrongful death preempted). C. Preemption of Malpractice Claims Medical malpractice claims do not “relate to” employee benefit plans, and are not preempted. Pacificare of Okla., Inc. v. Burrage, 59 F.3d 151, 153–54 (10th Cir. 1995). However, claims premised upon the denial of certain kinds of care under managed care arrangements are preempted. Lind, 466 F.3d at 1198–99. D. Other Preemption Issues 1. Bad-Faith Breach of Insurance Contract In Allison v. Unum Life Ins. Co. of Am., 381 F.3d 1015 (10th Cir. 2004) the court held that claims under Oklahoma’s bad faith breach of insurance contract were preempted by ERISA. The court cited its holding in Kidneigh v. Unum Life Ins. Co. of Am., 345 F.3d 1182, 1187 (10th Cir. 2003), that Colorado state bad-faith claims are preempted because such claims: (1) are not “specifically directed” at insurers; and (2) do not “substantially affect the risk pooling arrangement” between insurers and insureds. Additionally, the court held that such bad-faith claims would be preempted in any event because they purport to provide remedies in addition to ERISA’s exclusive remedial scheme. Id. at 1185–86. The court’s rationale affirms its prior rulings preempting bad-faith laws in various other states. See Conover v. Aetna US Healthcare, 904

Inc., 320 F.3d 1076 (10th Cir. 2003) (Oklahoma bad-faith law preempted); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227 (10th Cir. 2002) (Wyoming bad-faith law preempted); Kelley v. Sears, Roebuck & Co., 882 F.2d 453 (10th Cir. 1989) (Colorado bad-faith law preempted); Mitchell v. Hartford Life & Accid. Ins. Co., 865 F. Supp. 2d 1142 (D. Utah 2012) (Utah bad-faith law preempted). 2. State Claims Handling Statutes Claims based upon state statutes that would purport to govern the handling, timing, or payment of claims, such as state unfair practices statutes, are also preempted. Kidneigh, 345 F.3d at 1188–89 (Colorado unfair claims practices statute preempted); Moffett, 291 F.3d at 1236 (Wyoming statute, mandating deadline for claim response and imposing attorneys’ fees for violation, preempted); Gaylor, 112 F.3d at 465–66 (Oklahoma statute providing bad-faith remedy preempted); Kelley, 882 F.2d at 456 (claim premised upon Colorado insurance statutes preempted). State laws affecting assignability of benefits may also be preempted. St. Francis Reg’l Med. Ctr. v. Blue Cross & Blue Shield of Kan., Inc., 49 F.3d 1460 (10th Cir. 1995). 3. State Laws Construing Insurance Contracts The Tenth Circuit has found a number of state laws relating to the construction of insurance contracts not to be preempted. State law “notice-prejudice” rules are not preempted, and may require a “choice of laws” analysis to determine which states’ rules to apply. Dang v. Unum Life 905

Ins. Co. of Am., 175 F.3d 1186 (10th Cir. 1999). State law “substantial compliance” doctrines are not preempted. Peckham v. Gem State Mut. of Utah, 964 F.2d 1043 (10th Cir. 1992). See also Klover v. Antero Healthplans, 64 F. Supp. 2d 1003, 1008–10 (D. Colo. 1999). State law rules interpreting accidental-death clauses may not be preempted. Winchester v. Prudential Life Ins. Co. of Am., 975 F.2d 1479 (10th Cir. 1992). In Weeks v. Unum Group, 585 F. Supp. 2d 1305, 1309–10 (D. Utah 2008), the district court ruled that a regulation stating the method by which discretionary clauses may be properly included in insurance contracts was preempted because it did not have a substantial effect on the risk-pooling arrangement between insurers and insureds. 4. Other State Law Claims by Participants “ERISA preempts state laws relating to nearly all private employee benefit plans. § 1144(a).” Jewell v. Life Ins. Co. of N. Am., 508 F.3d 1303, 1308 (10th Cir. 2007). Other than with respect to medical malpractice, state law claims by participants and beneficiaries are preempted because they “relate to” an employee-benefit plan and are not saved from ERISA preemption because they do not regulate insurance. E.g., Kerber v. Qwest Group Life Ins. Plan, 647 F.3d 950 (10th Cir. 2011) (promissory estoppel claims); Pitman v. Blue Cross & Blue Shield of Okla., 24 F.3d 118 (10th Cir. 1994) (tortious breach of contract claim preempted); Kelso v. Gen. Am. Life Ins. Co., 967 F.2d 388 (10th Cir. 1992) (misrepresentation claim preempted); Settles v. Golden Rule Ins. Co., 927 F.2d 505 (10th Cir. 1991) (wrongful-death claim

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preempted); Straub v. W. Union Tel. Co., 851 F.2d 1262 (10th Cir. 1988) (breach of contract and negligent misrepresentation claims preempted); Mein v. Pool Co. Disabled Int’l Emps. Long Term Disability Benefit Plan, 989 F. Supp. 1337 (D. Colo. 1998) (state claims for intentional infliction of emotional distress, intentional interference with property interest, and breach of fiduciary duty preempted). Alternatively, where claims required examination of two compensation packages, including ERISA plan components, to evaluate whether the plaintiff could establish all the elements of his negligent misrepresentation claim, the circumstances were too attenuated from accomplishing ERISA’s objectives to require preemption. Carroll v. Los Alamos Nat’l Sec., LLC, 407 F. App’x 348 (10th Cir. 2011). Also, while some circuits have created a cause of action under federal common-law premised on equitable estoppel in the context of ERISA, the Tenth Circuit has not yet recognized such a claim. Kerber, 647 F.3d at 962. The Tenth Circuit has “left open the possibility that an ERISA estoppel claim might be viable in ‘egregious cases,’ such as where the employer lied, engaged in fraud, or intended to deceive the participants, or where the claim was premised on the employer’s interpretation of an ambiguous provision in the plan.” Id. (citing Averhart v. U.S. WEST Mgmt. Pension Plan, 46 F.3d 1480, 1485 (10th Cir. 1994)). 5. Claims by Health Care Providers Based upon Precertification 907

Claims by employee-benefit plan participants, based upon notions of estoppel, are typically not allowed. Straub, 851 F.2d at 1265–66. However, where a health plan gives erroneous certification of coverage for treatment to a healthcare provider, and the provider relies to its detriment, an estoppel claim by the provider against the plan is not preempted. Hospice of Metro Denver, Inc. v. Group Health Ins. of Okla., Inc., 944 F.2d 752 (10th Cir. 1991). This holding is premised upon the notion that such a claim does not involve relations between principal ERISA entities. Id. at 756. The Tenth Circuit has not decided a case in which the provider had also taken an assignment of benefits from the plan participant (which would place the provider in the shoes of the participant, thereby making the provider a “principal ERISA entity” by assignment). However, one district court in the Tenth Circuit has addressed this issue. In N. Utah Healthcare Corp. v. BC Life & Health Ins. Co., 448 F. Supp. 2d 1288 (D. Utah 2006), a hospital obtained several certifications of coverage before providing substantial medical services. It also obtained an assignment of benefits from the plan participant and, before commencing litigation, attempted to collect from the insurer as an assignee. Once the hospital sued, however, it asserted claims based only on the confirmations of coverage, and did not assert claims as an assignee. The court held that because the hospital had elected to pursue only its claims based on precertification, its assignee status was irrelevant, and allowed the claims consistent with Hospice of Metro Denver N. Utah Healthcare, 448 F. Supp. 2d at 1290–91.

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6. Claims by Employers against Insurers and Service Providers An employer’s claim for negligence or professional malpractice against a services provider relating to the establishment of a plan is not preempted by ERISA. Airparts Co. v. Custom Benefit Servs. of Austin, Inc., 28 F.3d 1062 (10th Cir. 1994). A claim for fraud in connection with the “sale” of a benefit plan to an employer by an insurer was not preempted with respect to conduct occurring before the plan was actually created. Woodworker’s Supply, Inc., 170 F.3d 985. Similarly, a claim of negligent supervision against a service provider was not preempted where the service provider failed to take action that might have prevented the theft of plan assets by another service provider. Coldesina, 407 F.3d at 1137–38. However, a claim against a service provider based solely upon derivative, or vicarious, liability for the actions of an ERISA-governed party would be preempted. Id. at 1138–39. III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? The Tenth Circuit requires plan participants to exhaust their remedies under the relevant employee benefit plan before commencing an action for benefits under ERISA. “[E]xhaustion of administrative (i.e., company- or planprovided) remedies is an implicit prerequisite to seeking judicial relief.” Held v. Mfrs. Hanover Leasing Corp., 912 F.2d 1197, 1206 (10th Cir. 1990); accord Salisbury v. Hartford Life & Accid. Ins. Co., 583 F.3d 1245 (10th Cir. 909

2009) (same). This requirement “derives from the exhaustion doctrine permeating all judicial review of administrative agency action” and “aligns with ERISA’s overall structure of placing primary responsibility for claim resolution on fund trustees.” McGraw v. Prudential Ins. Co. of Am., 137 F.3d 1253, 1263 (10th Cir. 1998) (citing Commc’ns Workers of Am. v. AT&T, 40 F.3d 426, 432 (D.C. Cir. 1994)); 29 U.S.C. § 1133. “Otherwise, premature judicial interference with the interpretation of a plan would impede those internal processes which result in a completed record of decision making for a court to review.” McGraw, 137 F.3d at 1263. Further, “because the exhaustion requirement is not rooted in the particular language of an ERISA plan,” a plan participant cannot rely upon permissive language in a plan to excuse a failure to exhaust administrative remedies. Whitehead v. Okla. Gas & Elec. Co., 187 F.3d 1184, 1190 (10th Cir. 1999) (ERISA exhaustion is a judicial, not a contractual, doctrine). Where a plaintiff fails to exhaust administrative remedies under an ERISA claim, the district court should dismiss the action even if the claimant does not expressly bring claims pursuant to ERISA. Karls v. Texaco, Inc., 139 F. App’x 29, 32–33 (10th Cir. 2005). B. Exceptions to the Exhaustion Requirement Two grounds for avoiding the exhaustion requirement have been recognized within the Tenth Circuit: (1) “when resort to administrative remedies would be futile” and (2) “when the remedy provided is inadequate.” McGraw, 137 F.3d at 1263 (citing Counts v. Am. Gen. Life & Accid. Ins. 910

Co., 111 F.3d 105, 108 (11th Cir. 1997)). See also Lewis v. U.F.C.W. Dist. Union Local Two & Employers Pension Fund, 273 F. App’x 765, 767 (10th Cir. 2008). The futility exception “is limited to those instances where resort to administrative remedies would be clearly useless.” McGraw, 137 F.3d at 1264 (citation and internal quotes omitted). To utilize the futility exception, the claimant must prove that the claim would be denied on appeal, not just that he or she thinks that the appeal is unlikely to result in a different decision. Getting v. Fortis Benefits Ins. Co., 5 F. App’x 833, 836 (10th Cir. 2001) (citing Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir. 1996)). The second exception requires “proof of a lack of access to an internal review procedure.” McGraw, 137 F.3d at 1263. C. What Are the Consequences of a Plaintiff’s Failure to Make a Timely Request for an Administrative Review? In Guerrero v. Lumbermen’s Mut. Cas. Co., 174 F. Supp. 2d 1218, 1221 (D. Kan. 2001), the Court noted: The federal regulations governing ERISA permit a plan administrator to establish time limits within which a request for review of denial of benefits must be filed, see 29 C.F.R. § 2560.503-1(g)(3), and a plaintiff’s failure to abide by such time limits can constitute a failure to exhaust administrative remedies, e.g., Terry v. Bayer Corp., 145 F.3d 28, 40–41 (1st Cir. 1998) (citation omitted). With certain limited exceptions, failure to exhaust administrative remedies will result in the dismissal of an ERISA claim challenging the denial 911

of benefits. Tabron v. Colgate-Palmolive Co., 881 F. Supp. 512, 518 (D. Kan. 1995) (citations omitted). The court affirmed the grant of summary judgment in favor of the defendant due to the plaintiff’s late filing of her second-level administrative appeal. Id. at 1223. While not directly addressing the issue, the Tenth Circuit in Benson v. Bridgestone/Firestone, Inc., 2006 U.S. App. LEXIS 9508, at *3–5 (10th Cir. Apr. 14, 2006), allowed a defendant to raise the issue of a claimant’s failure to exhaust due to the untimely filing of an administrative appeal in the face of an argument that the defense was waived when it was not raised in the initial answer. D. Issue and Claim Exhaustion The Tenth Circuit distinguishes between issue and claim exhaustion; claim exhaustion is required. The Tenth Circuit has “recognized an exhaustion rule for ERISA claims derived not from an explicit statutory directive but from ‘ERISA’s overall structure of placing primary responsibility for claim resolution on fund trustees.’” Forrester v. Metro. Life. Ins. Co., 232 F. App’x 758, 762–63 (10th Cir. 2007) (citing McGraw, 137 F.3d at 1263). “We have, accordingly, applied a rule barring ERISA claims that were not previously pursued administratively (i.e., claim exhaustion). But we have not extended this rule to bar subsidiary arguments urged on judicial review in support of a claim itself fully exhausted in the administrative process (i.e., issue exhaustion).” Id.

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The Tenth Circuit in Forrester considered conflicting approaches on whether issue exhaustion was also required, but, because there were alternative reasons for affirming the judgment, determined to “leave the question of issue exhaustion for another case where its resolution may be necessary to the outcome.” Id. at 762. The Tenth Circuit again declined to decide the issue in Farr v. Hartford Life & Accident Ins. Co., 322 F. App’x 622, 628 (10th Cir. 2009). The Tenth Circuit there noted dicta from a prior decision stating that a claimant may not offer to the district court new grounds outside the administrative record to support an award of benefits, but stated the issue was instead “whether ‘new grounds’ means simply new evidence or whether it includes arguments and theories, which would be tantamount to imposing an issue exhaustion requirement on ERISA plaintiffs.” Id. (citing Flinders v. Workforce Stabilization Plan of Phillips Petroleum Co., 491 F.3d 1180, 1191 (10th Cir. 2007)). While noting this was an “interesting and complex issue,” the Tenth Circuit again determined to leave its resolution to another day as it was not critical to the outcome of the case. Id. It does not appear the Tenth Circuit has yet directly addressed this issue. E. Minimum Number of Levels of Administrative Review The Tenth Circuit has not established a specific number of administrative reviews required for exhaustion under ERISA, and courts in this circuit instead look to the requirements of the plan at issue. IHC Health Servs., Inc. v. FCH1 LLC, 2012 U.S. Dist. LEXIS 168930 (D. Utah Nov. 27, 2012) (“Prior to suing for benefits under an 913

ERISA plan, a plaintiff must first exhaust the administrative remedies available under that plan.”) (citing McGraw, 137 F.3d at 1263). In Getting v. Fortis Benefits Ins. Co., 5 F. App’x 833, 836 (10th Cir. 2001), the court found a failure to exhaust where the plaintiff did not avail herself of a third level of review contained in the relevant benefit plan. F. Can a Defendant Waive a Failure-to-Exhaust Defense? Generally, a defense of lack of subject matter jurisdiction is not waivable. See First State Bank & Trust Co. v. Sand Springs State Bank, 528 F.2d 350, 354 (10th Cir. 1976). The Tenth Circuit has held that generally a district court may waive exhaustion only under “‘two limited circumstances,’ when (1) the administrative process would be futile, or (2) the remedy in the benefit plan is inadequate.” Lane v. Sunoco, Inc., 260 F. App’x 64 (10th Cir. 2008) (quoting McGraw, 137 F.3d at 1263). The Tenth Circuit has rejected a claimant’s effort to argue that an exhaustion defense was waived where it was not raised in the initial response, but was raised prior to discovery. Benson, 2006 U.S. App. LEXIS 9508 at *3–5. The Tenth Circuit has also dismissed an ERISA claim sua sponte due to lack of ripeness, where the claims administrator had re-opened the claim, even though the defense was not raised by the claim administrator. Schwob v. Standard Ins. Co., 37 F. App’x 465, 469–71 (10th Cir. 2002). IV. Standard of Review A. Plan Language 914

The Tenth Circuit has been “comparatively liberal in construing language to trigger the more deferential standard of review under ERISA.” Nance v. Sun Life Assur. Co. of Can., 294 F.3d 1263, 1268 (10th Cir. 2002). It does not require “any magic words, such as ‘discretion,’ ‘deference,’ ‘construe’ or ‘interpret’” in order to find discretionary authority invested in the plan decision maker. Gust v. Coleman Co., 740 F. Supp. 1544, 1550 (D. Kan. 1990), aff’d, 936 F.2d 583 (10th Cir. 1991). Words suggesting that plan decision makers must exercise judgment have consistently been found by the court to convey discretionary authority. In Charter Canyon Treatment Center v. Pool Co., 153 F.3d 1132, 1135 (10th Cir. 1998), the court found it sufficient that the plan decision maker had “the exclusive right to interpret the Medical Plan and to decide all matters arising thereunder.” In Dycus v. Pension Benefit Guar. Corp., 133 F.3d 1367, 1369 (10th Cir. 1998), the phrase “to decide all questions concerning the application or interpretation of the provisions of the plan” was sufficient to grant discretionary authority. Similarly, in Arfsten v. Frontier Airlines, Inc. Ret. Plan for Pilots, 967 F.2d 438, 440 (10th Cir. 1992), discretion was found where the decision makers were authorized “to construe the Plan and to determine all questions of fact that may arise thereunder.” Likewise, in Pratt v. Petroleum Prod. Mgmt., Inc. Emp. Sav. Plan & Trust, 920 F.2d 651, 658 (10th Cir. 1990), discretionary authority was found where the decision maker was empowered to “construe and interpret the Plan in accordance with uniform rules and regulations consistently applied to all Participants, … decide the eligibility of any persons to be covered under 915

the Plan in accordance with the Plan, … [and] determine the right of any person to a benefit, in accordance with the Plan.” In the context of managed care, plan language providing that a physician or other decision maker must exercise judgment as to covered medical care will also convey discretionary authority. In McGraw, 137 F.3d at 1259, the health insurance policy provided that “[t]o be ‘needed,’ the [health] service or supply must be determined by [the administrator] to meet all of these tests …” (emphasis omitted). Likewise, in Chambers v. Family Health Plan Corp., 100 F.3d 818, 825 (10th Cir. 1996), it was enough to confer discretion that a procedure would be considered experimental “in the judgment of the [administrator].” See also McGee v. Equicor-Equitable HCA Corp., 953 F.2d 1192, 1200 (10th Cir. 1992) (arbitrary and capricious standard applied to “the plan physician’s exercise of medical judgment”). Words to the effect that the plan decision maker’s determinations are final have also been found to convey discretionary authority. In Millensifer v. Ret. Plan for Salaried Emp. of Cotter Corp., 968 F.2d 1005, 1010 (10th Cir. 1992), the court found discretionary authority where the plan gave the decision maker the power to construe the plan, to supply any omissions therein, to reconcile and correct any errors or inconsistencies, and to make equitable adjustments for any mistakes or errors made in the administration of the plan; and stated that all such actions or determinations made in good faith were not subject to review by anyone.

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According to the court, the phrase insulating plan decisions from further review “may not be enforceable, but it certainly indicates an intention to vest as much discretion as possible” in the decision maker. Id. at n.2. Likewise, in Winchester, the court found discretionary authority in language stating that the insurer, “as Claims Administrator, determines the benefits for which an individual qualifies under the Benefit Plan,” and that “the insurance company has the exclusive right to interpret the provisions of the Plan, [and] its decision is conclusive and binding.” 975 F.2d at 1483. A recurring issue among the appellate courts is whether the requirement of “proof satisfactory to the decision maker,” or a similar phrase, conveys discretionary authority. In Nance, 294 F.3d at 1267–68, the Tenth Circuit held that such language does convey discretionary authority sufficient to invoke deferential judicial review. Under the Tenth Circuit’s analysis, the plan must actually provide that proof must be satisfactory not just generally, but specifically to the decision maker. Id. “[L]anguage in other plans that requires only submission of satisfactory proof, without reference to who must be satisfied,” does not convey discretionary authority. Id. B. What Standard of Review Applies? 1. “Abuse of Discretion” or “Arbitrary and Capricious” Standard Where plan terms confer discretionary authority upon a plan decision maker to interpret the plan or determine 917

entitlement to benefits, courts employ an abuse of discretion standard of review. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Nevertheless, the burden to establish that the court should review its benefits decision under an arbitrary and capricious standard is on the insurer. LaAsmar v. Phelps Dodge Corp. Life, Accid. Death & Dismemberment & Dependent Life Ins. Plan, 605 F.3d 789, 796 (10th Cir. 2010). The terms “abuse of discretion” and “arbitrary and capricious” are used interchangeably when referring to the standard of review. Chambers, 100 F.3d at 825 n.1. Under this standard the court “will uphold an administrator’s decision so long as it is predicated on a reasoned basis.” Rizzi v. Hartford Life & Accid. Ins. Co., 383 F. App’x 738, 748 (10th Cir. 2010) (quoting Adamson v. Unum Life Ins. Co. of Am., 455 F.3d 1209, 1212 (10th Cir. 2006)). “[T]his standard is a difficult one for a claimant to overcome.” Nance, 294 F.3d at 1269. The plan administrator’s decision may not be set aside if it is “reasonable and made in good faith.” Flinders v. Workforce Stabilization Plan of Phillips Petroleum Co., 491 F.3d 1180, 1189 (10th Cir. 2007); Averhart, 46 F.3d at 1485. An interpretation or decision having “any reasonable basis will be upheld; it need not be the only logical or even the best decision.” Rademacher v. Colo. Ass’n of Soil Conservation Dists. Med. Benefit Plan, 11 F.3d 1567, 1570 (10th Cir. 1993) (emphasis added). See also Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1460 (10th Cir. 1991) (administrator’s decision “need only be sufficiently supported by the facts within [its] knowledge to counter a claim that it was arbitrary or capricious” and the court “will not substitute [its] judgment for the 918

judgment of the [administrator] unless the actions of the [administrator] are not grounded on any reasonable basis”). Perhaps the best summary of the Tenth Circuit’s view of deference under the arbitrary and capricious standard is found in Kimber v. Thiokol Corp., 196 F.3d 1092, 1098 (10th Cir. 1999) (citations omitted): When reviewing under the arbitrary and capricious standard, “[t]he Administrator[‘s] decision need not be the only logical one nor even the best one. It need only be sufficiently supported by facts within [his] knowledge to counter a claim that it was arbitrary or capricious.” … The reviewing court “need only assure that the administrator’s decision fall[s] somewhere on a continuum of reasonableness—even if on the low end.” A claim decision is not arbitrary and capricious if it is supported by substantial evidence. Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992). See also Adamson, 455 F.3d at 1212 (“A lack of substantial evidence often indicates an arbitrary and capricious decision.”). Substantial evidence is of the sort that a reasonable mind could accept as sufficient to support a conclusion. Substantial evidence means more than a scintilla, of course, yet less than a preponderance. The substantiality of the evidence is evaluated against the backdrop of the administrative record as a whole. Adamson, 455 F.3d at 1212 (citing Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1282 (10th Cir. 2002)). 919

“A plan administrator abuses its discretion when it fails to examine a material portion of the relevant evidence.” Williams v. Metro. Life Ins. Co., 459 F. App’x 719, 729 (10th Cir. 2012). “Certain indicia of an arbitrary and capricious denial of benefits include the lack of substantial evidence, mistake of law, bad faith, and conflict of interest by the fiduciary.” Cardoza v. United of Omaha Life Ins. Co., 708 F.3d 1196, 1201–02 (10th Cir. 2013). For example, a claims administrator’s failure to investigate—to request particular evidence—may render a decision arbitrary and capricious. Gaither v. Aetna Life Ins. Co., 388 F.3d 759, 807 (10th Cir. 2004). A fiduciary cannot ignore “readily available information” when (1) the evidence in the record suggests that the information might confirm the beneficiary’s theory of entitlement and (2) the fiduciary has little or no evidence in the record to refute that theory. Id. at 807. Even so, the general rule remains that “nothing in ERISA requires plan administrators to go fishing for evidence favorable to a claim when it has not been brought to their attention that such evidence exists.” Id. at 804. 2. De Novo Standard Where de novo review is required, the courts determine “not whether the fiduciaries’ interpretation of the contract was arbitrary or capricious, but only whether it was correct.” Pratt, 920 F.2d at 658. C. Effect of Conflict of Interest or Procedural Irregularity

920

The Tenth Circuit has “crafted a ‘sliding scale approach’ where the ‘reviewing court will always apply an arbitrary and capricious standard, but [will] decrease the level of deference given … in proportion to the seriousness of the conflict.’” Weber v. GE Group Life Assur. Co., 541 F.3d 1002, 1010 (10th Cir. 2008) (recognizing the direction provided in Metro. Life Ins. Co. v. Glenn, 544 U.S. 105 (2008)). This is essentially the combination of factors method of review, which allows judges to take account of several different case-specific factors, and reach a result by weighing them all together. Holcomb v. Unum Life Ins. Co. of Am., 578 F.3d 1187, 1193 (10th Cir. 2009). A conflict of interest is simply one of these factors. Id. A plan administrator acting in a dual role, i.e., both evaluating and paying claims, has such a conflict of interest. Foster v. PPG Indus., Inc., 693 F.3d 1226, 1233 (10th Cir. 2012). “A conflict is more important when ‘circumstances suggest a higher likelihood that it affected the benefits decision,’ but less so when the conflicted party ‘has taken active steps to reduce potential bias and to promote accuracy.’” Cardoza, 708 F.3d at 1202 (quoting Hancock, 590 F.3d at 1155). The court has identified several non-exclusive factors that could be used to determine whether a conflict existed, including: (1) the plan is self-funded; (2) the company funding the plan appointed and compensated the plan administrator; (3) the plan administrator’s performance reviews or level of compensation were linked to the denial of benefits; and (4) the provision of benefits had a significant economic impact on the company administering the plan. Jones v. Kodak Med. Assistance Plan, 169 F.3d 1287 (10th Cir. 1999). If the plan 921

administrator’s dual role jeopardized his impartiality, his discretionary decisions must be viewed with less deference. Id. at 1291. Alternatively, where the plan administrator “has taken active steps to reduce potential bias and promote accuracy” the Tenth Circuit “will accord the conflict little weight in making [its] determination.” Cardoza, 708 F.3d at 1202–03. D. Other Factors Affecting the Standard of Review In Kellogg v. Metro. Life Ins. Co., 549 F.3d 818, 827 (10th Cir. 2008), although the plan documents granted discretionary authority, the court nevertheless applied a de novo standard of review where the plan administrator failed to respond to the claimant’s request for documentation in violation of 29 C.F.R § 2560.503-1(i)(1)(i). The court also concluded that the plan administrator breached its responsibility to provide claimant with a copy of the latest plan documentation and to issue a decision on the claimant’s appeal. Id. Even where a plan administrator fails to exercise its discretion and render a decision within the requisite administrative review period, the court will apply a “substantial compliance rule” if the delay is (1) “inconsequential” and (2) in the context of an ongoing, good-faith exchange of information between the administrator and the claimant. Id. (citing Finley v. Hewlett-Packard Co. Emp. Benefits Org. Income Prot. Plan, 379 F.3d 1168, 1174 (10th Cir. 2004)). A delay is considered “inconsequential” when the decision maker fully evaluated a claim at initial submission, did not timely dispose of the administrative appeal, but was not at 922

that time faced with any “meaningful new evidence” or “significant new issues.” Finley, 379 F.3d at 1174–75. In that situation the initial denial and rationale can effectively be applied, and an arbitrary and capricious review remains proper. Id. However, where the plan administrator is not in substantial compliance with the deadline, and has not exercised its granted discretion, the court will apply a de novo standard of review. Kellogg, 549 F.3d at 827–28. Another factor affecting the standard of review applies where the claims maker “fails to gather or examine relevant evidence.” Kimber, 196 F.3d at 1097. Even so, the claimant ultimately bears the burden to produce evidence in support of his or her claim, and where a “plan participant fails to bring evidence to the attention of the administrator, the participant cannot complain of the administrator’s failure to consider this evidence.” Sandoval, 967 F.2d at 381. Deference is reduced only where a decision maker had evidence but failed to consider it, or where the decision maker completely fails to obtain any relevant medical records. E.g., McGraw, 137 F.3d at 1262–63. Deference may be reduced based upon “a plan’s inconsistencies in handling an applicant’s claims” Kimber, 196 F.3d at 1097, failure to provide an adequate claim-review procedure, or failure to provide notice to a claimant of his or her appeal rights. Sage v. Automation, Inc. Pension Plan & Trust, 845 F.2d 885, 893–95 (10th Cir. 1988) (finding that deficiencies did not justify overturning decision unfavorable to claimants; “[n]ot

923

every procedural defect will upset the decision of plan representatives”). V. Rules of Plan Interpretation A. Application of Federal Common Law As a matter of federal common law, the Tenth Circuit has applied “standard tenets of contract construction” to interpret ERISA plan documents. Pirkheim v. First Unum Life Ins., 229 F.3d 1008, 1010 (10th Cir. 2000). See also Member Servs. Life Ins. Co. v. Am. Nat’l Bank & Trust Co. of Sapulpa, 130 F.3d 950, 954 (10th Cir. 1997); Chiles v. Ceridian Corp., 95 F.3d 1505, 1515 (10th Cir. 1996). Thus, in interpreting plan terms, “the court examines the plan documents as a whole and, if they are unambiguous, construes them as a matter of law.” Admin. Comm. of Wal-Mart Assocs. Health & Welfare Plan v. Willard, 393 F.3d 1119, 1123 (10th Cir. 2004). See also Weber v. GE Group Life Assur. Co., 541 F.3d 1002, 1011 (10th Cir. 2008); Allison v. Bank One-Denver, 289 F.3d 1223, 1233, amended on denial of reh’g, (10th Cir. 2002); Pirkheim, 229 F.3d at 1010 n.2; Chiles, 95 F.3d at 1511. If plan terms are ambiguous, the court may look at extrinsic evidence to interpret the plan. Capital Cities/ ABC, Inc. v. Ratcliff, 141 F.3d 1405, 1411 (10th Cir. 1998). In so doing, the objective is to ascertain and carry out the true intentions of the party based on the manner in which a reasonable person in the position of a general plan participant, and not the litigating participant, would have understood the contract terms. Wal-Mart, 393 F.3d at 1123; McGee, 953 F.2d at 1202.

924

In a de novo review case, when the evidence is equivocal regarding the parties’ intent on type of health coverage to be provided under a new ERISA benefits plan, the Tenth Circuit has construed ambiguity in favor of the beneficiaries. See, e.g., Deboard v. Sunshine Mining & Ref. Co., 208 F.3d 1228, 1243 (10th Cir. 2000). B. Application of Contra Proferentem The doctrine of contra proferentem, which construes all ambiguities against the drafter, does not apply in a case involving the arbitrary and capricious standard of review. Kimber, 196 F.3d at 1100. See also Lefler v. United HealthCare of Utah, Inc., 72 F. App’x 818, 826 (10th Cir. 2003); Scruggs v. ExxonMobil Pension Plan, 585 F.3d 1356, 1366 (10th Cir. 2009). The Tenth Circuit will, however, apply the doctrine of contra proferentem when reviewing an ambiguous plan de novo. Miller, 502 F.3d at 1253. C. Deference Afforded Interpretation of a Plan

to

an

Administrator’s

Under the arbitrary and capricious standard of review, deference to determine eligibility or interpret terms of the plan will be given to the plan administrator. WagnerHarding v. Farmland Indus. Inc. Emp. Ret. Plan, 26 F. App’x 811, 815 (10th Cir. 2001) (plan gave authority to determine eligibility for benefits and construe terms of plan); Arfsten, 967 F.2d at 440–41 (decisions of retirement board were due deference where plan authorized them to construe plan and determine all questions of fact that might arise 925

thereunder); Adamson, 455 F.3d at 1212 (administrator’s “decision will be upheld so long as it is predicated on a reasoned basis…. [T]here is no requirement that the basis relied upon be the only logical one or even the superlative one.”); Caldwell, 287 F.3d at 1282 (“Indicia of arbitrary and capricious decisions include lack of substantial evidence, mistake of law, bad faith, and conflict of interest by the fiduciary.”); Trujillo v. Cyprus Amax Minerals Co. Ret. Plan Comm., 203 F.3d 733, 736 (10th Cir. 2000) (“Under this standard of review, we will not set aside a benefit committee’s decision if it was based on a reasonable interpretation of the plan’s terms and was made in good faith”); Kimber, 196 F.3d at 1098 (when reviewing under the arbitrary and capricious standard, “[t]he Administrator decision need not be the only logical one nor even the best one. It need only be sufficiently supported by facts within [his] knowledge to counter a claim that it was arbitrary or capricious. The decision will be upheld unless it is not grounded on any reasonable basis.” (internal citations and quotation marks omitted)). However, when the plan administrator or fiduciary operates under a conflict of interest, courts weigh such conflicts of interest as a factor in their review. Holcomb, 578 F.3d at 1192–93. In the analysis, “any one factor will act as a tiebreaker when the other factors are closely balanced, the degree of closeness necessary depending upon the tiebreaking factor’s inherent or case-specific importance.” Hancock, 590 F.3d at 1155 (internal quotations omitted) (quoting Glenn, 554 U.S. at 116). “A conflict is more important when circumstances suggest a higher likelihood that it affected the benefits decision, but less so when the conflicted party has taken active steps to 926

reduce potential bias and to promote accuracy.” Id. (internal quotations omitted) (quoting Glenn, 554 U.S. at 116). D. Other Rules of Plan or Contract Interpretation 1. Summary Plan Descriptions In this process of plan interpretation, a summary plan description (SPD) is considered part of the plan documents, which must be considered as a whole. Chiles, 95 F.3d at 1511. For purposes of determining whether terms are ambiguous, the relative clarity of an SPD is viewed against the special obligation imposed by 29 U.S.C. § 1022(a) (requiring that an SPD be written in a manner clearly calculated to be understood by the average plan participant) and § 1022(b) (requiring inclusion in SPD of “circumstances which may result in disqualification, ineligibility or denial or loss of benefits” and “the remedies available under the plan for the redress of claims which are denied in whole or in part”). Haymond v. Eighth Dist. Elec. Benefit Fund, 36 F. App’x 369, 372–73 (10th Cir. 2002). “[A]n SPD is intended to be a document easily interpreted by a layman; an employee should not be required to adopt the skills of a lawyer and parse specific undefined words throughout the entire document to determine whether they are consistently used in the same context.” Id. (internal quotation marks omitted) (quoting Chiles, 95 F.3d at 1517–18). Thus considered, an SPD establishing two separate limitations periods was found ambiguous, and the fund, as drafter of the SPD, was made to “bear the consequences of this inaccuracy.” Id. 927

On the same principles, terms of the SPD were held to control over conflicting terms of the plan, based on the view that SPDs best reflect expectations of the parties to an ERISA plan. Chiles, 95 F.3d at 1515 (“Because the SPD best reflects the expectations of the parties to the plan, the terms of the SPD control the terms of the plan itself.”); Semtner v. Group Health Serv. of Okla., Inc., 129 F.3d 1390, 1393 (10th Cir. 1997) (“When the summary plan description and the plan language differ, the summary plan description is binding.”). 2. Impact of Plan Amendments No plan amendment can operate to deprive a beneficiary of a vested pension benefit. Chiles, 95 F.3d at 1510. However, since disability welfare benefit plans are exempt from vesting requirements that ERISA imposes on pension benefits, a plan administrator generally remains able to amend terms prospectively. Welch v. Unum Life Ins. Co. of Am., 382 F.3d 1078, 1083 (10th Cir. 2004); Pitman v. Blue Cross & Blue Shield of Okla., 217 F.3d 1291, 1297 n.6 (10th Cir. 2000). Benefits under a welfare benefit plan vest, if at all, under the terms of the plan itself. Member Servs. Life Ins., 130 F.3d at 954. In making this assessment, the court will apply general principles of contract interpretation. Id. Thus, if the plan so provides, a plan sponsor retains the discretionary right to change benefits of all long-term disability plan participants, including those who had already qualified for long-term disability benefits. Chiles, 95 F.3d at 1512–13. But see Member Servs., 130 F.3d at 954–56 (under a medical insurance policy, benefits had vested after medical expenses were both incurred and paid, and 928

subsequent amendments purporting to exclude such expenses were ineffective). VI. Discovery A. Limitations on Discovery Discovery for the purpose of supplementing the administrative record regarding benefit eligibility is precluded. Murphy v. Deloitte & Touche Group Ins. Plan, 619 F.3d 1151, 1159 (10th Cir. 2010). Because the courts’ review of an administrator’s decision is restricted to the administrative record, and because Rule 26 of the Federal Rules of Civil Procedure permits discovery only where it “appears reasonably calculated to lead to the discovery of admissible evidence,” discovery beyond the administrative record is generally inappropriate. Murphy, 619 F.3d at 1157; Woolsey, 934 F.2d at 1460. Nevertheless, limited discovery is allowable where the discovery is relevant to the administrator’s conflict of interest or a procedural irregularity. Cardoza, 708 F.3d at 1202. Even for this purpose, however, discovery may not be available. In Williams, where an employer established a self-funded plan, but employed a third-party administrator to evaluate claims, “any conflict of interest is more attenuated than in other ERISA cases, and the rationale for considering extra-record evidence of bias … is diminished.” Williams, 459 F. App’x at 728. B. Discovery and Conflict of Interest

929

A party may conduct limited discovery if it is relevant to an administrator’s conflict of interest. Cardoza, 708 F.3d at 1201-02. In applying Rule 26 to discovery requests, district courts must exercise their discretion bearing in mind “both the need for a fair and informed resolution of the claim and the need for a speedy, inexpensive, and efficient resolution of the claim.” Murphy, 619 F.3d at 1161. In fact, in Wolberg v. AT&T Broadband Pension Plan, 123 F.App’x 840, 846 n.3 (10th Cir. 2005), the court criticized the plaintiff for failing to seek discovery that could have proven the seriousness of the conflict of interest, thereby implying that such discovery may be available. Murphy, 619 F.3d at 1160. In any event, “[t]he party moving to supplement the record or engage in extrarecord discovery bears the burden of showing its propriety.” Id. VII. Evidence A. Scope of Evidence under Standards of Review 1. Arbitrary and Capricious Review Under the arbitrary and capricious standard of review, the court’s review is limited to evidence and arguments that were presented during the claim and appeal process. See, e.g., DeGrado v. Jefferson Pilot Fin. Ins. Co., 451 F.3d 1161, 1169 (10th Cir. 2006); Chambers v. Family Health Plan Corp., 100 F.3d 818, 823–24 (10th Cir. 1996); Sandoval, 967 F.2d at 380 (“In effect, a curtain falls when the fiduciary completes its review, and for purposes of 930

determining if substantial evidence supported the decision, the district court must evaluate the record as it was at the time of the decision.”). The Tenth Circuit has noted that important policy reasons underlie this limited scope of review: “A primary goal of ERISA was to provide a method for workers and beneficiaries to resolve disputes over benefits inexpensively and expeditiously. Permitting or requiring district courts to consider evidence from both parties that was not presented to the plan administrator would seriously impair the achievement of that goal.” Sandoval, 967 F.2d at 380. “If a plan participant fails to bring evidence to the attention of the administrator, the participant cannot complain of the administrator’s failure to consider this evidence.” Id. at 381. However, following Glenn, the Tenth Circuit clarified that the prohibition on consideration of materials outside the administrative record applies “where the extra-record materials sought to be introduced relate to a claimant’s eligibility for benefits.” Murphy, 619 F.3d at 1162. By contrast, “this general restriction does not conclusively prohibit a district court from considering extra-record materials related to an administrator’s dual role conflict of interest.” Id. The Tenth Circuit therefore held that discovery related to the scope and impact of a conflict of interest might, at times, be appropriate. Taking heed of Glenn’s direction not to create special evidentiary rules, the Tenth Circuit in Murphy held that discovery requests seeking information related to a dual role conflict of interest should be governed by Federal Rule of Civil Procedure 26(b), like any other discovery 931

request. Id. The Tenth Circuit emphasized that “neither a claimant nor an administrator should be allowed to use discovery to engage in unnecessarily broad discovery that slows the efficient resolution of an ERISA claim,” and observed that “discovery related to a conflict of interest may often prove inappropriate.” Id. at 1162–63. The Tenth Circuit noted that several factors might militate against broad discovery: First, while a district court must always bear in mind that ERISA seeks a fair and informed resolution of claims, ERISA also seeks to ensure a speedy, inexpensive, and efficient resolution of those claims. And while discovery may, at times, be necessary to allow a claimant to ascertain and argue the seriousness of an administrator’s conflict, Rule 26(b), although broad, has never been a license to engage in an unwieldy, burdensome, and speculative fishing expedition. The party moving to supplement the record or engage in extra-record discovery bears the burden of showing its propriety. Second, in determining whether a discovery request is overly costly or burdensome in light of its benefits, the district court will need to consider the necessity of discovery. For example, the benefit of allowing detailed discovery related to the administrator’s financial interest in the claim will often be outweighed by its burdens and costs because the inherent dual role conflict makes that financial interest obvious or the substantive evidence supporting denial of a claim is so one-sided that the result would not change even giving full weight to the alleged conflict. Similarly, a district 932

court may be able to evaluate the effect of a conflict of interest on an administrator by examining the thoroughness of the administrator’s review, which can be evaluated based on the administrative record. And, without further discovery, a district court may allocate significant weight to a conflict of interest where the record reveals a lack of thoroughness. Murphy, 619 F.3d at 1163–64 (internal citations omitted). These are just some of the factors a district court may consider, and it retains substantial discretion to handle discovery requests under ERISA and will be overturned only for abuse of that discretion. Id. at 1164. 2. De Novo Review Administrative Record

and

Evidence

beyond

the

In a case involving de novo review, the evidence is also generally limited to the administrative record. Hall v. Unum Life Ins. Co. of Am., 300 F.3d 1197, 1201 (10th Cir. 2002). The court may allow supplementation of the claim record “when circumstances clearly establish that additional evidence is necessary to conduct an adequate … review of the benefit decision.” But the Tenth Circuit has emphasized, “it is the unusual case in which the district court should allow supplementation of the record.” Id. Such exceptional circumstances may include claims that require consideration of complex medical questions or issues regarding the credibility of medical experts; the availability of very limited administrative review procedures with little or no evidentiary record; the necessity of evidence regarding interpretation of 933

the terms of the plan rather than specific historical facts; instances where the payor and the administrator are the same entity and the court is concerned about impartiality; claims which would have been insurance contract claims prior to ERISA; and circumstances in which there is additional evidence that the claimant could not have presented in the administrative process. Id. at 1203 (quoting Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1027 (4th Cir. 1993)). However, the district court retains discretion to reject extra-record evidence even in the few circumstances where such evidence may be appropriate. The party seeking to supplement the record bears the burden of establishing how the evidence is necessary to the de novo review, and the court will not admit any extra-record evidence unless the party seeking its admission first “demonstrate[s] that it could not have been submitted to the plan administrator at the time the challenged decision was made.” Id. Applying these standards, Hall held that “conflict of interest” evidence was inadmissible where the plaintiff failed to show how particular additional evidence would be relevant to the conflict or would address a particular shortcoming in the record or decision-making process purportedly caused by the conflict. Id. at 1206. In contrast, the trial court had not erred in admitting evidence of surgeries the plaintiff underwent after her administrative claim had closed because (1) the plaintiff had been unable to submit such evidence to the administrator prior to its final decision and (2) the plaintiff’s willingness to undergo such surgeries

934

corroborated her claim of severe, unrelenting, disabling pain. Id. at 1205–07. In Jewell, 508 F.3d at 1309, the Tenth Circuit took the opportunity to “again emphasize that ERISA policy strongly disfavors expanding the record beyond that which was available to the plan administrator. Supplemental evidence should not be used to take a second bite at the apple, but only when necessary to enable the court to understand and evaluate the decision under review.” B. Evidentiary Determinations

Value

of

Social

Security

Claimants commonly offer favorable Social Security determinations in support of their disability claims. In an unpublished decision, the Tenth Circuit stated that a Social Security finding of disability does not “compel” a plan administrator to grant disability benefits. WagnerHarding v. Farmland Indus. Inc. Emp. Ret. Plan, 26 F. App’x 811, 817 (10th Cir. 2001). The court refused to give the Social Security process such effect because “those proceedings are entirely different and separate from a claim under ERISA, with different parties, different evidentiary standards, and different bodies of law governing their outcomes.” Id. See also Meraou v. Williams Co. Long Term Disability Plan, 221 F. App’x 696, 706 (10th Cir. 2007) (“The determination of disability under the Social Security regime cannot be equated with the determination of disability under the ERISA regime.”).

935

The court reached a different result in Wilcott v. Matlack, Inc., 64 F.3d 1458 (10th Cir. 1995), which affirmed a district court’s reliance on a participant’s Social Security award as “conclusive proof” of total disability. However, in Wilcott, this effect arose simply from terms of the plan, which read, “Notwithstanding the above [provisions regarding substantiation of total disability], the awarding of a primary Social Security Disability Benefit will be accepted by the Trust as proof of total disability and the continuation of such Social Security Disability Benefit will be accepted as proof of a continuing total disability.” Id. at 1461. In Glenn, the U.S. Supreme Court approved the district court’s consideration of a multitude of factors in overturning a disability denial, including the fact that the plan administrator had encouraged the claimant to seek Social Security disability status but ignored the Social Security Administration’s findings in making its disability determination. Following this ruling, the Tenth Circuit in another unpublished opinion faulted an insurer for rejecting, in conclusory fashion, a Social Security decision without any discussion of how the rationale for the Social Security Administration’s decision, or the evidence it considered, differed from the insurer’s criteria or the medical documentation it considered. See Brown v. Hartford Life Ins. Co., 301 F. App’x 772, 776 (10th Cir. 2008). The Tenth Circuit held that “[a] reviewing court should have factored the inconsistency created by [the insurer’s] instructing [the claimant] to apply for [Social Security disability] and reaping the benefits of his successful determination, then summarily rejecting the evidentiary value of that determination almost without 936

comment, into its determination of whether [the insurer] acted arbitrarily and capriciously in denying benefits.” Id. (citing Glenn, 554 U.S. at 118). Following Glenn, it appears courts will require insurers to at least consider favorable Social Security determinations and explain why a different result is appropriate under the plan language. See, e.g., Torrey v. Qwest Commc’ns Co., LLC, 2011 U.S. Dist. LEXIS 25587, at *19 (D. Colo. Feb. 28, 2011) (without securing and considering the Social Security Administration’s decision, the third-party administrator made its decision without adequate evidence); Clark v. Prudential Ins. Co. of Am., 2010 U.S. Dist. LEXIS 103977, at *28 (W.D. Okla. Sept. 29, 2010) (“[A] Social Security determination of disability is a factor that should be at least considered by the plan administrator in reaching its decision.”); Eye v. Metro. Life Ins. Co., 202 F. Supp. 2d 1204, 1211 (D. Kan. 2002) (“Although the standards between the two disability benefits are different and an award of Social Security disability benefits does not dispose of the issue of benefits under the Plan, MetLife should have considered this fact when it made its determination.”). But see Sparkman v. Prudential Ins. Co. of Am., 427 F. Supp. 2d 1117, 1125 (D. Utah 2006) (plaintiff “fail[ed] to provide any evidence that the Social Security Administration’s disability determination in any way mirrors the relevant definition of ‘total disability’ under his policy”). By contrast, when a Social Security decision is “based in large part” on evidence of a different impairment than that upon which the plaintiff sought plan benefits, the trial 937

court does not err by refusing to consider it as part of a de novo review. Gilbertson v. Allied Signal, Inc., 172 F. App’x 857, 862 (10th Cir. 2006). C. Third-Party Review The Tenth Circuit encourages, but does not require, thirdparty review of claims determinations. In Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997, 1015 (10th Cir. 2004), abrogated on other grounds, Glenn, 554 U.S. at 116, the Tenth Circuit faulted an insurer for failing to undertake any independent evaluation or investigation of a claim, despite its conflict of interest as insurer and claims administrator. The Tenth Circuit noted that “while not required, independent medical examinations are often helpful” and found that “where a conflict of interest may impede the plan administrator’s impartiality, the administrator best promotes the purposes of ERISA by obtaining an independent evaluation.” Id. Although Fought used the term “independent medical examination,” later cases seem to find third-party review of medical records sufficient to satisfy the preference for independent review of claims decisions. See, e.g., Loughray v. Hartford Group Life Ins. Co., 366 F. App’x 913, 924 (10th Cir. 2010) (insurer’s conflict of interest warranted only little weight in review as insurer employed the services of an independent medical examiner who reviewed records but did not personally examine claimant); Stevens v. Metro. Life Ins., 2006 U.S. Dist. LEXIS 76504, at *15–17 (D. Colo. Oct. 20, 2006) (rejecting argument that denial was not reasonable because insurer selected doctors who conducted only a 938

paper review of file and not an independent medical examination); Smith v. Metro. Life Ins. Co., 344 F. Supp. 2d 696, 703 (D. Colo. 2004) (file review satisfies preference for independent evaluation under Fought). In Stevens, the district court found no authority “that generally prohibits the commonplace practice of doctors arriving at professional opinions after reviewing medical files. In such file reviews, doctors are fully able to evaluate medical information, balance the objective data against the subjective opinions of the treating physicians, and render an expert opinion without direct consultation. It is reasonable, therefore, for an administrator to rely on its doctors’ assessments of the file and to save the plan the financial burden of conducting repetitive tests and examinations.” Stevens, 2006 U.S. Dist. LEXIS 76504, at *16 (citations omitted). D. Requirement of Objective Evidence In Loughray, 366 F. App’x at 923–24, the Tenth Circuit found the insurer did not abuse its discretion in terminating disability benefits where the claimant failed to provide objective evidence of a disabling condition. In that case, the plan at issue specifically required the claimant to provide “objective medical findings” to support the existence and the extent of her disability. Id. at 924. Reports detailing the claimant’s subjective complaints and visits to several doctors were insufficient to satisfy this requirement. Id. The Tenth Circuit has recognized that certain conditions supported only by subjective complaints without any available objective testing present a problem 939

for reviewing courts. Gilbert v. Astrue, 231 F. App’x 778 (10th Cir. 2007) (fibromyalgia presents a “conundrum” for insurers and courts evaluating disability claims because, among other things, no objective test exists to identify the disease) (citing Welch, 382 F.3d at 1087). Nevertheless, the Tenth Circuit in Rizzi, 383 F. App’x at 752–53, upheld a disability denial on a claim supported only by subjective complaints of disabling pain, finding “the lack of any tangible evidence of it is important,” and noting “[o]bjective medical testing revealed no cause for her condition or confirmation of her limitations.” In that case, the denial decision was supported by statements from the claimant’s treating physicians that she should have been functioning at a higher level, the lack of physical symptoms of decreased function associated with an inability to mobilize or use her extremities, and surveillance evidence. The Tenth Circuit concluded: “A plan administrator need not ignore reliable medical evidence in deference to subjective reports; nor is it unreasonable to expect some supporting evidence to buttress a claim of disability.” Earlier, the Tenth Circuit held that an insurer did not act arbitrarily by finding no objective evidence of total disability, despite the existence of a letter and two reports from a treating physician. Kimber, 196 F.3d at 1099. The Tenth Circuit noted that a rational plan administrator could find these documents insufficient because they contained only conclusory statements of disability, without any reference to supporting data. See also Meraou, 221 F. App’x at 705 (“Denial of benefits is permissible when the allegedly disabling condition has been established only by the claimant’s subjective 940

complaints, and the claimant has failed to supply requested information that would allow the administrator to determine the ongoing effect of the condition.”). VIII. Procedural Aspects of ERISA Practice A. Methods of Adjudication Motions rather than trial typically resolve ERISA benefits claims that involve the arbitrary and capricious standard of review. See, e.g., Hickman v. Gem Ins. Co., 299 F.3d 1208 (10th Cir. 2002) (affirming summary judgment for HMO on class actions claims for denied benefits); Nance, 294 F.3d at 1275 (affirming summary judgment for administrator in case involving arbitrary and capricious review of decision to deny benefits). In Cardoza, the Tenth Circuit held “where both parties move for summary judgment and stipulate that no trial is necessary, ‘summary judgment is merely a vehicle for deciding the case; the factual determination of eligibility for benefits is decided solely on the administrative record, and the nonmoving party is not entitled to the usual inferences in its favor.’” Cardoza, 708 F.3d at 1201. In Carter v. Cent. States, SE & SW Areas Pension Plan, 656 F.2d 575 (10th Cir. 1981), the court stated that if a plaintiff can present evidence of factors not considered by the trustees which should have been, and which raise a material issue of fact, summary judgment should be foregone in favor of a trial. This case has neither been followed by any other court nor overruled by the Tenth Circuit.

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B. Reported ERISA Trials Benefit claims as well as claims for breaches of fiduciary duty and other statutory violations are generally equitable in nature and therefore no right to a jury trial exists. Graham v. Hartford Life & Accid. Ins. Co., 589 F.3d 1345, 1355–57 (10th Cir. 2009) (reaffirming that claims for benefits under 29 U.S.C. § 1132(a)(1)(B) are equitable in nature and do not provide for a Seventh Amendment right to jury trial); Adams v. Cyprus Amax Minerals Co., 149 F.3d 1156 (10th Cir. 1998) (no jury trial for 29 U.S.C. § 1132(a)(1)(B) claim); Bonnell v. Bank of Am., 284 F. Supp. 2d 1284, 1289 (D. Kan. 2003); Conover v. Aetna US Healthcare, Inc., 167 F. Supp. 2d 1317, 1322 (N. D. Okla. 2001), aff’d, 320 F.3d 1076 (10th Cir. 2003). On the other hand, when a court applies a de novo standard of review, it may proceed in a manner similar to that of a bench trial under Rule 52 of the Federal Rules of Civil Procedure. See, e.g., Hall, 300 F.3d at 1200. In Hall, the trial court denied the defendant’s “motion for judgment on the administrative record” on the plaintiff’s ERISA § 1132 claim. Id. at 1200. The court proceeded to a bench trial and in the process allowed presentation of evidence including “enormous amounts of testimony and evidentiary materials outside of the administrative record, including depositions, Hall’s medical records, and the testimony of several witnesses.” Id. at 1204. While Hall does not typify the scope of evidence that should be allowed at trial of an ERISA claim under de novo review, it demonstrates that the trial court may proceed to a bench trial if it considers evidence outside of the administrative record necessary to 942

conduct that review. See Ray v. Unum Life Ins. Co. of Am., 224 F. App’x 772 (10th Cir. 2007) (unpublished opinion) (affirming trial court’s grant of benefits after it held a de novo review bench trial). Trials on other ERISA claims are not as restricted. See, e.g., Greene v. Safeway Stores, Inc., 98 F.3d 554, 556 (10th Cir. 1996) (trial court allowed concurrent presentation of evidence on the plaintiff’s claims under § 510 of ERISA and under the Age Discrimination in Employment Act). See also Hockett v. Sun Co., 109 F.3d 1515, 1518 (10th Cir. 1997) (fiduciary duty trial); Erschick v. United Mo. Bank of Kan. City, 948 F.2d 660 (10th Cir. 1991) (same). C. Special Procedures for ERISA Benefit Cases The Tenth Circuit has not established special procedures for ERISA benefit cases. It has articulated circumstances under which district courts should remand claims before engaging in final judicial review. In Rekstad v. U.S. Bancorp, 451 F.3d 1114 (10th Cir. 2006), the decision maker refused to consider certain nonmedical affidavits from the claimant’s family and friends regarding her claimed inability to work. The court found it arbitrary and capricious for the decision maker to fail to consider this evidence. Id. at 1121. Rather than simply reverse the decision, however, the court reasoned it was unable to determine whether substantial evidence supported a denial decision and, accordingly, ordered a remand to the decision maker so it could consider this evidence, reasoning, “This is not a 943

case where it is so clear-cut that it was unreasonable … to deny benefits.” Id.; Dove v. Prudential Ins. Co. of Am., 364 F. App’x 461, 465–66 (10th Cir. 2010) (concluding remand was appropriate because the court was “not convinced that Prudential would reach the same conclusion” after conducting a proper review). But see Rasenack ex rel. Tribolet v. AIG Life Ins. Co., 585 F.3d 1311, 1327 (10th Cir. 2009) (concluding remand was not appropriate where the claim fiduciary failed to respond timely, thus deeming the claim denied and exposing the claim decision to de novo review by the district court). In DeGrado, remand was ordered where the decision maker “fail[ed] to make adequate findings or to explain adequately the grounds of its decision.” 451 F.3d at at 1175 (citation omitted). However, where “but for the plan administrator’s arbitrary and capricious conduct, the claimant would have continued to receive benefits,” or where “there was no evidence in the record to support termination or denial of benefits,” simple reversal would be appropriate. Id. at 1175–76. IX Remedies A. Remedies under § 502(a)(1)(B) [29 U.S.C. § 1132(a)(1)(B)] Section 502(a)(1)(B) affords legal relief, in that it allows a participant or beneficiary “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms

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of the plan.” Section 502(a)(1)(B) is both a standing requirement and a subject matter jurisdictional requirement. Chastain v. AT&T, 558 F.3d 1177, 1181 (10th Cir. 2009). Only plaintiffs who are properly considered “participants” or “beneficiaries” have standing to sue under ERISA § 502(a)(1); the “but for” standing doctrine has been rejected in its entirety by the Tenth Circuit. Id. at 1183. This section does not authorize a court to change or modify any terms of a retirement plan that it believes to be inequitable. Cigna Corp. v. Amara, 131 S. Ct. 1866, 1876–78 (2011). And a summary plan description cannot itself constitute the terms of a retirement plan, but is merely a communication about a synopsis of the plan. See id. at 1878. B Remedies under § 502(a)(3) [29 U.S.C. § 1132(a)(3)] Section 502(a)(3), in contrast, affords equitable relief, in that it allows a participant, beneficiary, or fiduciary either “to enjoin any act or practice which violates any provision of this title or the terms of the plan” or “to obtain other appropriate equitable relief” that will either “redress such violations” or “enforce any provisions of this title or the terms of the plan.” Following the statute, the Tenth Circuit recognizes that the usual remedy for breach of fiduciary duty pursuant to 29 U.S.C. § 1109 is to make the breaching fiduciary personally liable to the plan for the losses resulting from the breach and to restore to the plan any profits the fiduciary made through the use of the plan’s assets. Reich v. Stangl, 73 F.3d 1027, 1029 (10th Cir. 1996). 945

The Supreme Court has defined the “appropriate equitable relief” available to a prevailing party under 29 U.S.C. § 1132(a)(3) to include categories of relief typically available in equity, such as injunction, mandamus, and restitution. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 209–21 (2002); see Callery v. U.S. Life Ins. Co., 392 F.3d 401, 404 (10th Cir. 2004); Millsap v. McDonnell Douglas Corp., 368 F.3d 1246, 1251 (10th Cir. 2004). Rescission or other equitable relief may also be an appropriate remedy for fiduciary breach under § 1132(a)(2). See Gorman v. Carpenters’ & Millwrights’ Health Benefit Trust Fund, 410 F.3d 1194, 1201 (10th Cir. 2005); Eaves v. Penn, 587 F.2d 453, 462 (10th Cir. 1978) (approving the “alternative remedy of restoring plan participants to the position in which they would have occupied but for the breach of trust”) (citing Restatement (Second) of Trusts § 205, cmt. a)). Neither compensatory damages nor extracontractual damages are authorized by this remedial provision. LaFoy v. HMO Colo., 988 F.2d 97, 101 (10th Cir. 1993) (concluding compensatory and other forms of extracontractual damages are not allowed). Recently, however, the Supreme Court identified still other categories of equitable relief available to claimants under section 502(a)(3). See generally Amara, 131 S. Ct. at 1879–82. Those remedies, which the Court reasoned were akin to traditional equitable remedies, include: (1) reformation of the plan’s terms, under which a claimant must show that fraudulent suppressions, omissions, or insertions materially affected the substance of the plan, but a claimant cannot seek reformation if its negligence in its understanding of the plan fell below a standard of 946

reasonable prudence such that it violated a legal duty, see id. at 1881; (2) estoppel, under which a claimant must show detrimental reliance, i.e., that the defendant’s statement prejudicially influenced the claimant’s conduct, see id.; and (3) surcharge, under which a claimant must show by a preponderance of the evidence that the defendant was “analogous to a trustee” and that he or she sustained “actual harm,” whether through detrimental reliance or through the loss of a right protected by ERISA, see id. at 1880, 1881. For any equitable remedy available under section 502(a)(3), the consideration for proving causation is that “any requirement of harm must come from the law of equity.” Id. at 1881. C Tenth Circuit Decisions Addressing CIGNA Corp. v. Amara The Tenth Circuit has not yet had occasion to address any of the additional substantive equitable remedies the Court identified in Amara, apart from the recognition that a claimant must at least show actual harm to be entitled to certain forms of injunctive relief and that “the need to show reliance depends on the remedy sought.” Tomlinson v. El Paso Corp., 653 F.3d 1281, 1295 (10th Cir. 2011). Nevertheless, the Tenth Circuit has “interpret[ed] Amara as presenting either of two fairly simple propositions, given the factual context of that case: (1) the terms of the SPD are not enforceable when they conflict with governing plan documents, or (2) the SPD cannot create terms that are not also authorized by, or reflected in, governing plan documents.” Eugene S. v. Horizon Blue 947

Cross Blue Shield of N.J., 663 F.3d 1224, 1131 (10th Cir. 2011). The Tenth Circuit also has reasoned that procedural requirements in a summary plan description that do not contradict the terms of the plan, such as PIN and address change requirements, can still be enforced against a claimant. Foster v. PPG Indus., 693 F.3d 1226, 1235 n.4 (10th Cir. 2012). X. Fiduciary Liability Claims A. Definitions of Fiduciary 29 U.S.C. § 1002(21)(A) defines a fiduciary as follows: a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. In applying this definition, courts must conduct a functional analysis, and “regardless of status or title, parties are only fiduciaries to the extent they are performing one of the functions identified in the definition.” Coldesina, 407 F.3d at 1132 (citing Varity Corp. v. Howe, 516 U.S. 489, 498 (1996)). ERISA also contemplates “named fiduciaries” who are named in the 948

plan instrument or who are identified as a fiduciary with respect to the plan by the employer or employee organization. Maez v. Mountain States Tel. & Tel., 54 F.3d 1488, 1498 (10th Cir. 1995) (quoting 29 U.S.C. § 1102(a)(2)). “Plan management or administration confers fiduciary status only to the extent the party exercises discretionary authority or control. Discretion exists where a party has the power of free decision or individual choice.” Coldesina, 407 F.3d at 1132 (citations and internal quotations omitted). Excluded from activities warranting fiduciary status are nondiscretionary or ministerial functions that do not require individual decision making. See id. Such functions include inherently ministerial tasks, such as clerical services, but also include “tasks that might otherwise require discretion but which are performed within the confines of plan policies and procedures.” Id. See also Wesson v. Jane Phillips Med. Ctr. & Affiliates Emp. Group Healthcare Plan, 822 F. Supp. 2d 1170, 1174 (N.D. Okla. 2011). B. Definition of Fiduciary Duties ERISA plan administrators have a “fiduciary duty to act ‘solely in the interest of the participants and beneficiaries’ for purposes of providing benefits and administering the plan.” Horn v. Cendant Operations, Inc., 69 F. App’x 421, 427 (10th Cir. 2003) (quoting 29 U.S.C. § 1104(a)(1)(A)). See also Fulghum v. Embarq Corp., 2013 U.S. Dist. LEXIS 20930 (D. Kan. Feb. 14, 2013). A plan administrator is “required to conduct its duties ‘with the care, skill, prudence, and diligence under the 949

circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.’” Horn, 69 F. App’x at 427 (quoting 29 U.S.C. § 1104(a)(1)(B)). “Congress, in enacting ERISA, did not explicitly enumerate all the powers and duties of trustees and other fiduciaries. Rather, Congress invoked the common law of trusts to define the general scope of their authority and responsibility.” Ershick v. United Mo. Bank, N.A., 948 F.2d 660, 666 (10th Cir. 1991) (citation omitted). Moreover, Under the common law, trustees are understood to have such powers as are necessary or appropriate for carrying out the purposes of the trust. In exercising their powers, however, ERISA fiduciaries are required to interpret their plans “in accordance with the documents governing the plan insofar as such documents and instructions are consistent with ERISA § 1104(a)(1).” Id. (quoting Pratt v. Petroleum Prod. Mgmt. Emp. Sav. Plan & Trust, 920 F.2d 651, 657 (10th Cir. 1990)). Fiduciary duties can extend beyond a fiduciary’s termination. Allison v. Bank One-Denver, 289 F.3d 1223, 1239 (10th Cir. 2002). C. Fiduciary Liability in the Context of Health and Disability Claims

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In the Tenth Circuit, claims for benefits under 29 U.S.C. § 1132(a)(1)(B) are generally appropriate only against the plan administrator or a plan fiduciary. Moore v. Berg Enters., Inc., 1999 U.S. App. LEXIS 30481, at *10–11 (10th Cir. Nov. 23, 1999) (unpublished).1 In Varity, 516 U.S. at 515, the Supreme Court held that an individual claim for benefits can be brought pursuant to 29 U.S.C. § 1132(a)(3), but cautioned that “where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be ‘appropriate.’” Following Varity, the Tenth Circuit has held that claims for benefits should not be brought in the guise of a breach of fiduciary duty claim under 29 U.S.C. § 1132(a)(3) where the claimant can state a claim for relief pursuant to 29 U.S.C. § 1129(a)(1)(B). Lefler v. United HealthCare of Utah, Inc., 72 F. App’x 818, 826 (10th Cir. 2003) (“We agree with the district court that consideration of a claim under 29 U.S.C. § 1132(a)(3) is improper when the Class, as here, states a cognizable claim under 29 U.S.C. § 1132(a)(1)(B)….”); Mein v. Pool Co. Disabled Int’l Emp. Long Term Disability Benefit Plan, 989 F. Supp. 1337, 1351 (D. Colo. 1998); Holbrooks v. Sun Life Assur. Co., 2012 U.S. Dist. LEXIS 87931, at *2 (D. Kan. June 26, 2012). Claims seeking individual benefits for breach of fiduciary duty under 29 U.S.C. § 1109 are not allowed, because that section authorizes relief only on behalf of a plan. Walter v. Int’l Ass’n of Mack Pension Fund, 949 F.2d 310, 317 (10th Cir. 1991). See Donoho v. Blue Cross & Blue Shield of Kan., Inc., 2012 U.S. Dist. LEXIS 951

103718, at *24 n.44 (D. Kan. July 26, 2012); Moore v. Berg Enters., Inc., 3 F. Supp. 2d 1245, 1248 (D. Utah 1998) (“[A plaintiff] cannot obtain relief pursuant to § 1104(a) inasmuch as he seeks to recover benefits for himself only and that section provides only for plan wide relief”), aff’d, 1999 U.S. App. LEXIS 30481. A causal connection between the breach and the loss is a necessary element to a breach of fiduciary duty claim. Allison, 289 F.3d at 1239; see Holdeman v. Devine, 572 F.3d 1190, 1193 (10th Cir. 2009). D. Contribution and Indemnity Claims among Fiduciaries An agreement to indemnify a fiduciary with respect to negligent acts is valid and enforceable. Allison, 289 F.3d at 1239–42. Indemnification as to intentional acts is not available. Id. E. ERISA Claims against Nonfiduciaries In Harris Trust & Savings Bank v. Salomon Smith Barney, 530 U.S. 238, 241 (2000), the Supreme Court held that an action pursuant to 29 U.S.C. § 1132(a)(3) can be brought against a nonfiduciary “party in interest.” Although there are no Tenth Circuit cases applying this ruling, several years earlier the Tenth Circuit held the Secretary of Labor could bring an equitable action against a nonfiduciary “party in interest” pursuant to 29 U.S.C. §§ 1106 and 1132(a)(5) for participating in an alleged breach of fiduciary duty. Reich, 73 F.3d at 1031. XI. Attorney Fees 952

A. Criteria for Awarding Attorney Fees The Tenth Circuit has stated, “Courts should not grant attorney fees under ERISA as a ‘matter of course,’ but reasonable fee awards are discretionary in nature.” Ray, 224 F. App’x at 787; Gordon v. U.S. Steel Corp., 724 F.2d 106, 108 (10th Cir. 1983). Traditionally, the Tenth Circuit has reviewed a decision to award fees upon consideration of five factors: (1) the degree of the opposing party’s culpability or bad faith; (2) the ability of the opposing party to satisfy an award of fees and costs; (3) whether an award of fees and costs against the opposing party would deter others from acting under similar circumstances; (4) whether the party requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties’ positions. Gordon, 724 F.2d at 109; Thorpe v. Ret. Plan of Pillsbury Co., 80 F.3d 439, 445 (10th Cir. 1996). These factors are not necessarily exhaustive or exclusive, and other factors might be considered where appropriate. Moothart v. Bell, 21 F.3d 1499, 1507 (10th Cir. 1994). Moreover, the district court’s resolution of the attorney fees issue does not necessarily have to take all of the above-enumerated factors into account. See Rademacher v. Colo. Ass’n of Soil Conservation Dists. Med. Benefit Plan, 11 F.3d 1567, 1572 (10th Cir. 1993); McGee, 953 F.2d at 1209 n.17 (while courts need not consider each factor, no single factor should be held dispositive).

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Recently, however, in Hardt v. Reliance Standard Life Insurance Co., the Supreme Court concluded a fee claimant under 29 U.S.C. § 1132(g) did not need to be a “prevailing party” to seek fees under ERISA. 130 S. Ct. 2149, 2156 (2010). Rather, to be eligible for fees, the fee claimant must show only “some degree of success on the merits.” Id. at 2159. The Tenth Circuit has acknowledged the Supreme Court’s new rule. Cardoza v. United of Omaha Life Ins. Co., 708 F.3d 1196, 1207 (10th Cir. 2013). Nevertheless, the Tenth Circuit reasoned its fivefactor test still guided the district court’s determination of a claimant’s entitlement to attorney fees, which strongly suggests a district court still must apply the Tenth Circuit’s five Gordon factors in the conventional manner, so long as it first determines a claimant has achieved some degree of success on the merits. See id.; see also Denver Health & Hosp. Auth. v. Beverage Distribs., 2012 U.S. Dist. LEXIS 155384, at *9 (D. Colo. Oct. 30, 2012) (Gordon five-factor test still applies); Tomlinson v. El Paso Corp., 2011 U.S. Dist. LEXIS 37310 (D. Colo. Mar. 30, 2011). The district court must explain its decision to award fees. Pratt v. Petroleum Prod. Mgmt., Inc. Emp. Sav. Plan & Trust, 920 F.2d 651, 664 (10th Cir. 1990). Its failure to do so will normally result in a remand of the fee issue. Id. If a reduction in fees based upon duplicative or unnecessary efforts is warranted, the district court should explain such basis. Bartlett v. Martin Marietta Operations Support, Inc. Life Ins. Plan, 38 F.3d 514, 519 (10th Cir. 1994). B. Fees Awarded to Plan Fiduciaries 954

The Tenth Circuit has traditionally applied the same nonexclusive five-factor test outlined in Gordon to prevailing defendants just as with prevailing plaintiffs. See Gordon, 724 F.2d at 109 (affirming denial of fees to “prevailing defendant” after application of five-factor test). Yet “only rarely and reluctantly have courts awarded fees under this test against unsuccessful plaintiffs.” Herring v. Oak Park Bank, 1997 U.S. Dist. LEXIS 11427, at *6 (D. Kan. July 3, 1997); Goletto v. W.H. Braum, Inc., 2000 U.S. Dist. LEXIS 4642, at *4 (D. Kan. Mar. 29, 2000). The reason for this is that applying the five-factor test seldom results in an assessment of fees against the plaintiff. Goletto, 2000 U.S. Dist. LEXIS 4642, at *4; Buchanan v. Reliance Standard Life Ins. Co., 1998 U.S. Dist. LEXIS 12957, at *6 (D. Kan. July 6, 1998) (“[A] court will seldom abuse its discretion by refusing to award attorneys’ fees and costs to a defendant”). C. Calculation of Attorneys’ Fees To determine the amount of a fee award under ERISA, the district court “arrives at a lodestar figure by multiplying the hours counsel reasonably spent on the litigation by a reasonable hourly rate and then determines whether the lodestar figure is subject to upward or downward adjustment.” Boilermaker-Blacksmith Nat’l Pension Fund v. Ace Polyethylene Bag Co., 2002 U.S. Dist. LEXIS 3993, at *2 (D. Kan. Mar. 7, 2002). The burden is on the party seeking an award of fees to show that the hours claimed are reasonable. Id. See Wright v. Twin City Fire Ins. Co., 2013 U.S. Dist. LEXIS 18722, at 955

*16 (D. Colo. Feb. 12, 2013). The reasonable hourly rate “is calculated by examining the prevailing market rates of the relevant community,” and thus, “in setting a rate of compensation for the hours reasonably expended, the Court should consider what lawyers of comparable skill or experience practicing in the area in which the litigation occurs would charge for their time.” LaSelle v. Pub. Serv. Co. of Colo., 988 F. Supp. 1348, 1351 (D. Colo. 1997). The lawyer’s customary rate charged to clients is a relevant, but not conclusive, factor. Id. Nevertheless, “[t]he party seeking an award of fees should submit specific evidence supporting the hours worked and rates claimed.” Cross v. Qwest Disability Plan, 2010 U.S. Dist. LEXIS 139158, at *9 (D. Colo. Dec. 30, 2010). A reduction may be made to the lodestar amount to account for work on claims or issues as to which the party seeking fees did not succeed. Deboard v. Sunshine Mining & Ref. Co., 208 F.3d 1228, 1244–45 (10th Cir. 2000). Reductions may be made to the lodestar amount based upon duplicative work. LaSelle, 988 F. Supp. at 1353. Fees for work on the prelitigation “administrative phase” of a benefits claim are generally not recoverable. Id. at 1352. XII. ERISA Regulations A. Interpretation of ERISA Regulations on Claims Procedure In November of 2000, the Department of Labor modified ERISA regulations on claims procedure. The revised regulations, which apply to claims filed after January 1, 956

2002, establish shorter time frames for benefits determinations than those contained in the earlier version of the regulations. See 29 C.F.R. § 2560.503-1(f)(3). Appeals of claims filed before the effective date are governed by the old regulations. However, many cases decided on claims filed prior to January 1, 2002, may form a basis for interpreting current regulations. Common areas of litigation in the Tenth Circuit are the notice and “full and fair review” requirements of 29 U.S.C. § 1133 and the accompanying claims procedure regulations at 29 C.F.R. § 2560.503-1. “[R]eceiving a full and fair review requires knowing what evidence the decision maker relied upon, having an opportunity to address the accuracy and reliability of the evidence, and having the decision maker consider the evidence presented by both parties prior to reaching and rendering his decision.” Sandoval, 967 F.2d at 382 (citation and internal quotes omitted); Sage v. Automation, Inc. Pension Plan & Trust, 845 F.2d 885, 893–94 (10th Cir. 1988). See also Redding v. AT&T Corp., 1997 U.S. App. LEXIS 23037, at *18–19 (10th Cir. 1997) (approving the proposition that “the opportunity to submit documentary evidence, consideration of evidence submitted, and explanation of evidence relied upon satisfied full and fair review requirements of 29 U.S.C. § 1133(2)”) (citing Brown v. Ret. Comm. of Briggs & Stratton Ret. Plan, 797 F.2d 521, 533 (7th Cir. 1986)). The Tenth Circuit discussed the regulatory requirements in Spradley v. Owens-Illinois Hourly Emps. Welfare Benefit Plan, 686 F.3d 1135 (10th Cir. 2012): 957

A plan administrator is required by statute to provide a claimant with the specific reasons for a claim denial. The Department of Labor’s implementing regulations further explain that the notice of a claim denial must contain, inter alia, the specific reason or reasons for the adverse determination and reference to the specific plan provisions on which the determination is based. These regulations further the overall purpose of the internal review process: to minimize the number of frivolous lawsuits; promote consistent treatment of claims; provide a nonadversarial dispute resolution process; and decrease the cost and time of claims settlement. Those goals are undermined where plan administrators have available sufficient information to assert a basis for denial of benefits, but choose to hold that basis in reserve rather than communicate it to the beneficiary. Such conduct prevents ERISA plan administrators and beneficiaries from having a full and meaningful dialogue regarding the denial of benefits. Thus, the federal courts will consider only those rationales that were specifically articulated in the administrative record as the basis for denying a claim. The reason for this rule is apparent: we will not permit ERISA claimants denied the timely and specific explanation to which the law entitles them to be sandbagged by after-the-fact plan interpretations devised for purposes of litigation. A plan administrator may not treat the administrative process as a trial run and offer a post hoc rationale in district court. Id. at 1140–41 (Citations and internal quotations omitted).

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ERISA regulations do not require an insurer to provide copies of all additional medical evidence it obtains during the pendency of an appeal, and instead “require[] only that copies of the relevant documents be made available in a reasonable and timely fashion to the claimant.” Forrester v. Metro. Life Ins. Co., 2005 U.S. Dist. LEXIS 32984, at *34–38 (D. Kan. Dec. 8, 2005). “Substantial compliance with the requirements of § 1133 is sufficient.” Hickman, 299 F.3d at 1215 (citing Sage, 845 F.2d at 893, 895). If a court determines that the entity responsible for providing the full and fair review has violated one of the regulation’s requirements, the court must nevertheless determine whether the violation caused a “substantive violation” of the requirements or caused the claimant a “substantive harm.” Id. “In other words, if after judicial review, it appears the administrator or fiduciary was correct in its decision, the court will uphold that decision even in light of a violation of Section 1133.” Id. If the court determines a substantive violation or harm to have occurred, the general procedure in the Tenth Circuit is to remand the matter back to the decision maker with instructions to remedy the violation of the regulations. Caldwell, 287 F.3d at 1288; Stegelmeier v. Doug Andrus Distrib. Inc., 2004 U.S. Dist. LEXIS 29222, at *35 (D. Utah Jan. 12, 2004). “A remand for further action is unnecessary only if the evidence clearly shows that the administrator’s actions were arbitrary and capricious, or the case is so clear cut that it would be unreasonable for the plan administrator to deny the application for benefits on any 959

ground.” Caldwell, 287 F.3d at 1289 (citations and internal quotations omitted). B. Impact of Procedural Violations on Substantive Determinations Procedural defects in the claims process do not necessarily require reversal of a plan’s determination. Sage, 845 F.2d at 895 (citations omitted). “So long as the claimant has an opportunity to be heard, a plan determination that is not otherwise arbitrary and capricious will be upheld despite procedural irregularities.” Macklin v. Ret. Plan for Emps. of Kan. Gas & Elec. Co., 1996 U.S. App. LEXIS 26461, at *11 (10th Cir. Oct. 9, 1996) (citing Sage, 845 F.2d at 895). As described in Standard of Review, section IV, supra, where a claim is “deemed denied” by virtue of a claim decision maker’s failure to render a determination within the deadlines prescribed by ERISA claim regulations, the court may impose the de novo standard of review, notwithstanding a grant of discretionary authority to the decision maker. In Rasenack, 585 F.3d at 1316, the Tenth Circuit held that the 2002 amendments to the ERISA regulations did not alter this conclusion. However, the court found that the 2002 amendments “called into question the continuing validity of the substantial compliance test we have used to avoid creating a rule that would automatically permit de novo review for every violation of the deadlines.” Id. Finding there was not substantial compliance in that case, the court declined to decide “whether a minor violation of the deadlines or

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other procedural irregularities would entitle the claimant to de novo review under the 2002 amendments.” Id. Similarly, LaAsmar, 605 F.3d at 799-800, left open the possibility that the substantial compliance exception might survive the 2002 amendments. The court in LaAsmar noted that prior to the amendments, it had “declined to apply ‘a hair-trigger rule’ requiring de novo review whenever the plan administrator, vested with discretion, failed in any respect to comply with the procedures mandated by this regulation.” Id. at 799 (citing Finley v. Hewlett-Packard Co. Emp. Benefits Org. Income Prot. Plan, 379 F.3d 1168, 1173 (10th Cir. 2004)). Instead, the court would apply the deferential standard of review if the administrator’s decision was in “substantial compliance” with ERISA deadlines, taking into account whether the procedural irregularity was inconsequential and “in the context of an on-going, good-faith exchange of information between the administrator and the claimant.” Id. at 800 (citing Finley, 379 F.3d at 1174). The Tenth Circuit again declined to decide whether the “substantial compliance” rule applied after the revision of the applicable regulation, as it found there was not substantial compliance. Id. See also Kohut v. Hartford Life & Accid. Ins. Co., 710 F. Supp. 2d 1139, 1146 (D. Colo. 2008) (delay of 74 days in deciding appeal was inconsequential in light of the exchange of information between insurer and claimant, and particularly in the absence of any evidence suggesting insurer acted in bad faith, or that its delay prejudiced claimant). XIII. Cases Interpreting Statute of Limitations in ERISA Cases 961

Breach of fiduciary duty claims are subject to either a sixor three-year statute of limitations pursuant to 29 U.S.C. § 1113. Midgley v. Rayrock Mines, Inc., 374 F. Supp. 2d 1039, 1043 (D.N.M. 2005). See Russell v. Chase Inv. Servs. Corp., 2010 U.S. Dist. LEXIS 6872, at *11–12 (N.D. Okla. Jan. 28, 2010). If the plaintiff had actual knowledge of the alleged breach or violation, the threeyear statute of limitations applies. Midgley, 374 F. Supp. 2d at 1043. ERISA has no statute of limitations that governs benefit claims under § 1132. Salisbury, 583 F.3d at 1247; Wright v. Sw. Bell Tel. Co., 925 F.2d 1288, 1290 (10th Cir. 1991); Trs. of Wyo. Laborers Health & Welfare Plan v. Morgen & Oswood Const. Co. of Wyo., 850 F.2d 613 (10th Cir. 1988), overruled in part on other grounds by NLRB v. Viola Indus.-Elevator Div., 979 F.2d 1384, 1394 (10th Cir. 1992). See Moore, 1999 U.S. App. LEXIS 30481, at *6. Courts therefore look to the “most closely analogous” state statute of limitations. Salisbury, 583 F.3d at 1247. See, e.g., Held, 912 F.2d at 1201 & n.4. If the plan itself contains a limitations period, the contractual limitations period will be upheld if it is reasonable. Salisbury, 583 F.3d at 1247–48. This is so even if the contractual limitations period is less than the otherwise applicable state statute. Moore, 3 F. Supp. 2d at 1247. See Young v. United Parcel Servs., 416 F. App’x 734, 738 (10th Cir. 2011) (unpublished) (where plan expressly incorporates summary plan description, contractual limitations period in summary plan description is considered to be part of plan itself).

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Which statute of limitations to apply and when the limitations period begins to run varies based on the specific ERISA cause of action involved, the applicable state, and even whether the applicable plan is insured or self-funded. See Wright, 925 F.2d at 1291 (applying different Oklahoma state statutes of limitation to two separate ERISA claims); Kerry v. Southwire Co. & Affiliates Emp. Benefit Plan, 324 F. Supp. 2d 1225, 1227–28 (D. Utah 2004) (rejecting Utah insurance code three-year statute of limitations in favor of six-year contract statute of limitations because the applicable plan was self-funded); see also Woods v. Halliburton Co., 49 F. App’x 827, 829-30 (10th Cir. 2002) (unpublished) (applying Oklahoma two-year statute of limitations for discrimination claims to a claim under 29 U.S.C. § 1140); Lang v. Aetna Life Ins. Co., 196 F.3d 1102, 1104–05 (10th Cir. 1999) (applying Utah insurance code three-year statute of limitations for claim brought to recover payments allegedly due under insured disability plan); Kennedy v. Colo. RS, LLC, 872 F. Supp. 2d 1146, 1151–52 (D. Colo. 2012) (rejecting six-month state statute of limitations for certain employment discrimination claims in favor of general two-year state statute of limitations, because state anti-discrimination act containing six-month statute was not state’s exclusive remedy for employment discrimination claims). “When Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so…. Characterization of the nature of the claim for the purpose of determining the applicable statute of limitations is, 963

therefore, a question of federal law.” Morgen, 850 F.2d at 618 (citations omitted) (internal quotation marks omitted). This analysis may also involve an initial choice-of-law question of which state’s law should apply. Held, 912 F.2d at 1199–1200. XIV. Subrogation Litigation As of the drafting of this section, the Tenth Circuit has not addressed subrogation in the ERISA context since the April 16, 2013 Supreme Court decision in U.S. Airways, Inc. v. McCutchen, 133 S. Ct. 1537 (2013). In U.S. Airways, the Court held that because the terms of an ERISA plan govern a plan administrator’s action to enforce an equitable lien agreement, a subrogation claim is not limited by equitable principles such as the “makewhole doctrine,” “double recovery rule,” “unjust enrichment,” or other common equitable defenses. Id. at 1545–46. Instead, the language of the plan provides the extent of recovery available. Id. However, where the plan is silent as to the costs of recovery, including attorney fees, “the common-fund doctrine provides the best indication of the parties’ intent.” Id. at 1550. The U.S. Airways decision does not change the Tenth Circuit’s holding in Willard, 393 F.3d 1119. The court held that a plan’s subrogation claim against a participant who recovered money from a third-party tortfeasor was proper where the plan sought to recover funds “(1) that are specifically identifiable, (2) that belong in good conscience to the plan, and (3) that are within the possession and control of the defendant beneficiary.” Id. at 1122. The first factor is satisfied where funds were 964

placed in a reserve bank account and the funds had not been dissipated, or where settlement proceeds are placed in a trust account by the beneficiary’s law firm. Id. at 1122. Next, the funds “belong in good conscience to the plan” where the plan contains express, unambiguous reimbursement provisions. Id. at 1123. Language giving administrators the right to “recover or subrogate” and giving “first priority with respect to its right to reduction, reimbursement, and subrogation” is sufficient to find that the funds belonged to the plan. Id. Finally, for a reimbursement claim to be considered equitable, the funds must be in the plan participant’s or beneficiary’s possession. Id. at 1124. Where funds were placed in the court’s registry by the parties’ agreement, this was sufficient control to satisfy the third prong. Id. at 1124–25. The court addressed a different subrogation issue in Gorman v. Carpenters’ & Millwrights’ Health Benefit Trust Fund, 410 F.3d 1194 (10th Cir. 2005), where it declined to enforce an ERISA plan administrator’s requirement that the participant execute a subrogation agreement requiring him to file a third-party action at his own expense (and giving the plan priority over payment of attorney fees) prior to paying any benefits. The court ruled that at the time benefits vested the participant only had an obligation to cooperate with the plan’s subrogation and refund rights, and that the plan’s terms did not require him to file a third-party action at his own expense. Id. at 1201. Therefore, the plan administrator abused its discretion by attempting to broaden its subrogation rights by imposing new requirements on the participant as a condition to receiving benefits. Id. at 1200. The district 965

court properly rescinded the subrogation agreement, and thereby restored the parties to the positions they would have been in had the plan not acted arbitrarily and capriciously. Id. XV. Miscellaneous A. Burden of Proof on Insurer for Exclusionary Clauses An insurer bears the burden of proving a claim falls within the terms of an exclusionary clause. Rasenack, 585 F.3d at 1319. Further, “[e]xclusions must be interpreted narrowly,” Fought, 379 F.3d at 1011, which would include a preexisting condition exclusion. Unless plan language requires otherwise, the courts will analyze whether the condition allegedly requiring exclusion is in fact the proximate cause of the disability or medical care involved. Id. at 1011–12. “Medical necessity,” as that term is used in health plans, may not be interpreted to require that a particular treatment or procedure will actually result in improvement of a condition. It is enough that the treatment or procedure will maintain the patient’s condition, or prevent deterioration. McGraw, 137 F.3d at 1259–60. B. Ambiguities Construed against Drafter The Tenth Circuit applies the doctrine of contra proferentem and construes all ambiguities against the drafter where it reviews a denial of benefits de novo. 966

LaAsmar, 605 F.3d at 805. See also Miller, 502 F.3d at 1253–54. “Ambiguity exists when a plan provision is reasonably susceptible to more than one meaning, or where there is uncertainty as to the meaning of the term.” Willard, 393 F.3d at 1123. The reasoning given by the Tenth Circuit for construing ambiguities against the drafter is that “ERISA imposes upon providers a fiduciary duty similar to the one trustees owe beneficiaries. Just as a trustee must conduct his dealings with a beneficiary with the utmost degree of honesty and transparency, an ERISA provider is required to clearly delineate the scope of its obligations.” LaAsmar, 605 F.3d at 805 (quoting Rasenack, 585 F.3d at 1318–19). Furthermore, “[a]pplying the doctrine of contra proferentem and ‘[s]trictly construing ambiguous terms presents ERISA providers with a clear alternative: draft plans that reasonable people can understand or pay for ambiguity.’” Id. (quoting Rasenack, 585 F.3d at 1320). Also, where ambiguity is found, “then it is proper for a reviewing court to consider extrinsic evidence to assist it in resolving the issue.” Kerber, 572 F.3d at 1149. However, where a plan administrator retains discretion, the doctrine of contra proferentem is not applicable. Scruggs, 585 F.3d at 1366; Miller, 502 F.3d at 1253; Kimber, 196 F.3d at 1100. C. No Right to Jury Trials Under ERISA, benefit claims as well as claims for breaches of fiduciary duty and other statutory violations are equitable in nature, so no right to a jury trial exists. Graham, 589 F.3d at 1355; Adams, 149 F.3d at 1162 (no 967

jury trial for section 1132(a)(1)(B) claim); Bonnell, 284 F. Supp. 2d at 1289; Conover, 167 F. Supp. 2d at 1322. See also Millsap, 368 F.3d at 1260 (rejecting ERISA back pay claim because “[s]ection 502(a)(3), by its terms, only allows for equitable relief”). D. Availability of Prejudgment Interest In the Tenth Circuit, an award of prejudgment interest in an ERISA case is within the trial court’s discretion. LaAsmar, 605 F.3d at 816. E. Risk of Relapse as Basis for Disability Claim The Tenth Circuit has not yet had the occasion to consider whether a risk of relapse can serve as a basis for a disability claim. District courts within the Tenth Circuit have only recently considered cases in which risk of relapse was an issue. In Rall v. Aetna Life Ins. Co., 2013 U.S. Dist. LEXIS 58617 (D. Colo. Apr. 24, 2013), the district court considered whether the risk of relapse for major depressive disorder due to extreme stress in the workplace could support a claim for long term disability benefits. In Rall, the plaintiff served as a customer service representative until suffering an “incident of explosive outburst” at work. The plaintiff applied for long term disability benefits, claiming that he was unpredictable around others when under stress and incapable of returning to work in customer service. In reviewing the plaintiff’s claim, Aetna requested information and forms from the plaintiff, including medical release authorizations. The plaintiff either failed to provide the requested information or did so in an untimely manner. 968

After reviewing the medical evidence from the plaintiff’s physicians and conducting a peer-to-peer review, Aetna ultimately determined that there was insufficient medical evidence to support the plaintiff’s disability. The Court determined that Aetna’s denial “was predicated on a reasoned basis” and upheld the denial determination. Id. at *34. Notes 1. The Tenth Circuit has been less than careful in its use of labels for ERISA claims handlers. It is not uncommon for the Tenth Circuit to refer to the entity that both makes the claims determination and also pays the claim as the “plan administrator” instead of the more appropriate “claims administrator.” See, e.g., Fought, 379 F.3d at 999 (referring to insurance company that administered claims and paid benefits as “plan administrator”).

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CHAPTER 11 Eleventh Circuit RUSSELL BUHITE KENTON J. COPPAGE ANTHONY H. PELLE AARON E. POHLMANN I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan The Eleventh Circuit has held that there are five elements necessary to establish the existence of an employee welfare benefit plan under ERISA: “(1) a plan, fund, or program (2) [that has been] established or maintained (3) by an employer … (4) for the purpose of providing … benefits … (5) to participants or their beneficiaries.” Moorman v. UnumProvident Corp., 464 F.3d 1260, 1269 (11th Cir. 2006) (quoting Donovan v. Dillingham, 688 F.2d 1367, 1371 (11th Cir. 1982) (en banc)). See also 29 U.S.C. § 1002(1). At a minimum, a “plan, fund, or program” under ERISA “implies the existence of intended benefits, intended beneficiaries, a source of financing, and a procedure to apply for and collect benefits.” Donovan, 688 F.2d at

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1371. Thus, a “plan, fund, or program” exists “if from the surrounding circumstances a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits.” Williams v. Wright, 927 F.2d 1540, 1543 (11th Cir. 1991) (quoting Donovan, 688 F.2d at 1373). The “established or maintained” requirement “is designed to ensure that the plan is part of an employment relationship….” Anderson v. UnumProvident Corp., 369 F.3d 1257, 1263 (11th Cir. 2004). Whether the plan is part of an employment relationship is determined by “the degree of participation by the employer in the establishment or maintenance of the plan.” Id. A plan is “established” when there is “some degree of implementation by the employer going beyond a mere intent to confer a benefit.” Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1214 (11th Cir. 1999) (citing Whitt v. Sherman Int’l Corp., 147 F.3d 1325, 1331 (11th Cir. 1998)). Even if an employer “did not originally establish the Plan, ERISA would still apply if [the employer] subsequently maintained the … [p]lan.” Anderson, 369 F.3d at 1265. The Eleventh Circuit has identified seven factors that “may be relevant” in determining whether an employee benefit plan has been “established” or “maintained” by an employer: “(1) the employer’s representations in internally distributed documents; (2) the employer’s oral representations; (3) the employer’s establishment of a fund to pay benefits; (4) actual payment of benefits; (5) the employer’s deliberate failure to correct known perceptions of a plan’s existence; (6) the reasonable 971

understanding of employees; and (7) the employer’s intent.” Id. (citing Butero, 174 F.3d at 1215). See also Moorman, 464 F.3d at 1269. Importantly, however, the intent of the employer to establish or maintain the plan “is not dispositive … because ERISA can apply ‘regardless of the intent of the plan administrators and fiduciaries’ if the plan ‘satisfies the statutory definition.’” Moorman, 464 F.3d at 1271 (quoting Anderson, 369 F.3d at 1264). While acknowledging that ERISA “excludes public employees covered by government health plans from [the statute’s] employee benefit plan provisions,” the Eleventh Circuit has not yet addressed the scope of the “governmental plan” exemption. Brett v. Jefferson Cnty., Ga., 123 F.3d 1429, 1434–35 (11th Cir. 1997); 29 U.S.C. § 1002(32). District courts in the circuit are divided on whether plans established and maintained by regional hospital authorities are “governmental plans.” Compare Germaine v. Unum Life Ins. Co. of Am., 2004 WL 2624873, at *8 (N.D. Ga. Sept. 23, 2004) (a hospital authority, under Georgia law, is not a county, a municipal corporation, or a political subdivision of the state when it acts as an employer), with Williams-Mason v. Reliance Standard Life Ins. Co., 2006 WL 1687760, at *4 (S.D. Ga. June 16, 2006) (hospital authorities, under Georgia law, are “instrumentalities” of the state). B. Definition of “Employee” for ERISA Purposes An insurance policy that provides benefits only to a business owner, but not to at least one employee, is not governed by ERISA. Slamen v. Paul Revere Life Ins. Co., 166 F.3d 1102, 1104 (11th Cir. 1999). A plan falls within 972

the ambit of ERISA only if it “covers ERISA participants because of their employee status in an employment relationship, and an employer or employee organization is the person that establishes or maintains the plan, fund, or program.” Id. (quoting Donovan, 688 F.2d at 1373). “Thus, in order to establish an ERISA employee welfare benefit plan, the plan must provide benefits to at least one employee, not including an employee who is also the owner of the business in question.” Id. An employee’s status as a shareholder of a corporation does not make him an “owner” of that business so as to “preclude him from being a beneficiary under [an] ERISA plan.” Engelhardt v. Paul Revere Life Ins. Co., 139 F.3d 1346, 1351 (11th Cir. 1998). Once a plan has been established by the inclusion of at least one employee as a plan participant, “a sole shareholder is a ‘beneficiary,’ within the meaning of [ERISA], when he is entitled to benefits from a benefits plan which otherwise qualifies as an ERISA plan.” Gilbert v. Alta Health & Life Ins. Co., 276 F.3d 1292, 1302 (11th Cir. 1998). In Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1, 6 (2004), the Supreme Court held that the sole shareholder of a professional corporation could qualify as a “participant” of an ERISA plan if “the plan covers one or more employees other than the business owner and his or her spouse.” The Court expressly did not decide whether, as the Eleventh Circuit and some other circuits have held, “working owners may qualify as ‘beneficiaries’ of ERISA-sheltered employee benefit plans.” Id. at 11 n.2.

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C. Interpretation of Safe Harbor Regulation The Department of Labor’s “safe harbor” regulation provides that group insurance offered to workers through their place of employment is not an ERISA plan if the insurance program satisfies four criteria: “(1) No contributions are made by an employer or employee organization; (2) Participation [in] the program is completely voluntary for employees …; (3) The sole functions of the employer … with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer … receives no consideration in the form of cash or otherwise in connection with the program….” Butero, 174 F.3d at 1213 (quoting 29 C.F.R. § 2510.3-1(j)). “All four regulatory requirements must be satisfied in order [for] an insurance plan to qualify for the safe harbor exemption.” Cowart v. Metro. Life Ins. Co., 444 F. Supp. 2d 1282, 1290 (M.D. Ga. 2006). “In conducting its inquiry, the Court must focus on how an objectively reasonable employee would view the totality of the circumstances.” Stern v. Provident Life & Accid. Ins. Co., 295 F. Supp. 2d 1321, 1325 (M.D. Fla. 2003). With respect to element (3), the safe harbor regulation “explicitly obliges the employer who seeks its safe harbor to refrain from any functions other than permitting the insurer to publicize the program and collecting premiums.” Butero, 174 F.3d at 1213. Thus, “only one nonlisted employer function would disqualify [a] plan under the safe harbor exception.” Moorman, 464 F.3d at 974

1268. Actions constituting endorsement of the plan may include deciding on eligibility terms under the plan, identifying the plan in an employee handbook as part of the employer’s benefits, maintaining claim forms, and assisting with the submission of claims. Id. at 1268–69. D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan No single act by the employer in itself is determinative, but as noted above, several factors may be relevant in determining whether a plan has been established or maintained. Anderson, 369 F.3d at 1263 (citing Butero, 174 F.3d at 1215). The Eleventh Circuit has noted that some courts have concluded that identifying the plan in a company’s employee handbook “alone is enough to trigger ERISA governance.” Moorman, 464 F.3d at 1269 (citing Cockey v. Life Ins. Co. of N. Am., 804 F. Supp. 1571, 1575 (S.D. Ga. 1992)). With respect to element (3) of the so-called Butero factors, by applying for coverage “on behalf of its employees, and deciding on key terms in the plan agreement, [the employer makes] the plan ‘a benefit closely tied to the employer-employee relationship.’” Id. at 1270 (quoting Anderson, 369 F.3d at 1265). Moreover, an employer may be “involved in the payment process” by maintaining a supply of claim forms and facilitating the payment of benefits. Id. (quoting Anderson, 369 F.3d at 1266). With respect to the understanding of employees, it is not simply a “subjective understanding” but “rather the 975

viewpoint of the objectively reasonable employee that is the primary consideration in this analysis.” Id. The determination of the employer’s intent “does not turn on whether [the employer] intended the plan to be governed by ERISA, but rather on whether [the employer] intended to establish or maintain a plan to provide benefits to its employees as part of the employment relationship.” Anderson, 369 F.3d at 1257. “This factor is not dispositive, however, because ERISA can apply ‘regardless of the intent of the plan administrators and fiduciaries’ if the plan ‘satisfies the statutory definition.’” Moorman, 464 F.3d at 1271 (quoting Anderson, 369 F.3d at 1264). “[T]here is no requirement that the employer play any role in administering the plan in order for it to be deemed an ERISA employee welfare benefit plan.” Randol v. Mid-West Nat’l Life Ins. Co. of Tenn., 987 F.2d 1547, 1550 n.5 (11th Cir. 1993). “Thus, a commercially purchased insurance policy under which the procedures for receiving benefits are all dictated by the insurance carrier can constitute a plan for ERISA purposes.” Id. (citing Donovan, 688 F.2d at 1374). The disjunctive “established or maintained” dictates that if a plan was not “established” by an employer, it nevertheless may qualify as an ERISA plan if it is “maintained” by an employer. Anderson, 369 F.3d at 1265; Randol, 987 F.2d at 1551 n.6. For example, if the employer “began to involve itself more in the payment of benefits, changed the critical terms of the policy, or performed all the administrative functions associated with the maintenance of the plan, those would be actions on the part of the employer which could ‘maintain,’ rather than establish the plan as an 976

employee welfare benefits plan.” Anderson, 369 F.3d at 1265. Standing alone, the decision by an employer to purchase insurance coverage for employees, the requirement that all employees be covered, or the payment of the premiums by the employer does not conclusively establish the plan. Stefansson v. Equitable Life Assur. Soc’y of the U.S., 2005 WL 2277486, at *8 (M.D. Ga. Sept. 19, 2005). The purchase of insurance by an employer constitutes “substantial evidence” of the existence of a plan, however, even if this does not by itself “conclusively establish” a plan. Donovan, 688 F.2d at 1373. A number of district courts within the Eleventh Circuit have found individual policies to be governed by ERISA where they are established or maintained by an employer. Crooms v. Provident Life & Acc. Ins. Co., 484 F. Supp. 2d 1286 (N.D. Ga. 2007); Cowart v. Metro. Life Ins. Co., 444 F. Supp. 2d 1282 (M.D. Ga. 2006). See also Gowen v. Assurity Life Ins. Co., 2013 WL 1192580 (S.D. Ga. Mar. 22, 2013). “[T]he requirement that there exist an identifiable class of beneficiaries is satisfied even if the benefit in question is conferred on only a single person.” Randol, 987 F.2d at 1550 n. 4. Finally, the distribution of a lump-sum payment that requires no “ongoing administrative process for processing claims,” may be deemed to not constitute a plan governed by ERISA. Avera v. Airline Pilots Ass’n Intern., 436 F. App’x 969, 979 (11th Cir. 2011) (citing Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987)). 977

E. Treatment of Multiple Employer Trusts and Welfare Agreements The Eleventh Circuit has acknowledged that an employer or employee organization that subscribes to a multiple employer trust to provide health insurance to its employees or members may be said to have established or maintained an ERISA plan. See Randol, 987 F.2d at 1551; Donovan, 688 F.2d at 1375. F. De Facto Plan Administrators The de facto plan administrator doctrine was adopted by the Eleventh Circuit in Rosen v. TRW, Inc., 979 F.2d 191 (11th Cir. 1992). Agreeing with the reasoning of the First Circuit’s decision in Law v. Ernst & Young, 956 F.2d 364 (1st Cir. 1992), the court held that “if a company is administering the plan, then it can be held liable for ERISA violations, regardless of the provisions of the plan document.” Rosen, 979 F.2d at 193–94. “Proof of who is the plan administrator may come from the plan document, but can also come from the factual circumstances surrounding the administration of the plan, even if these factual circumstances contradict the designation in the plan document.” Hamilton v. Allen-Bradley Co., 244 F.3d 819, 824 (11th Cir. 2001). See also Lockhart v. Blue Cross Blue Shield of Tenn., 503 F. App’x 926, 928 (11th Cir. 2013) (“A plan administrator is either ‘the person so specifically designated by the terms of the instrument under which the plan is operated,’ … or a company acting as a plan administrator….”); Garren v. John Hancock Mut. Ins. Co., 114 F.3d 186, 187 (11th Cir. 1997) (“The proper party defendant in an action concerning ERISA 978

benefits is the party that controls administration of the plan.”). The Eleventh Circuit suggested limits to the de facto administrator doctrine and declined to apply it to a thirdparty claims administrator in Oliver v. Coca-Cola Co., 497 F.3d 1181 (11th Cir. 2007), vacated in part on other grounds, 506 F.3d 1316 (2007), aff’d in part and remanded in part, 546 F.3d 1353 (2008). The earlier cases, the court wrote, were “distinguishable from the instant case in a significant respect: Hamilton, Garren, and Rosen applied the de facto administrator doctrine to employers, not to third-party administrators.” Id. at 1194. II. Preemption A. Scope of ERISA Preemption The Eleventh Circuit has followed the U.S. Supreme Court’s decisions in Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987), Unum Life Ins. Co. of Am. v. Ward, 526 U.S. 358 (1999), and Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003), in holding that many different kinds of causes of action are preempted by ERISA. Regardless of whether Pilot Life, Ward, or Miller apply, the Eleventh Circuit follows Perkins v. Time Ins. Co., 898 F.2d 470 (5th Cir. 1990), for the proposition that claims are not preempted by ERISA when the state law claim is brought against a non-ERISA entity, such as an independent insurance agent or agency. In Morstein v. Nat’l Ins. Servs., Inc., 93 979

F.3d 715 (11th Cir. 1996), claims were brought against an insurance agent and his agency for fraudulent inducement and negligence. The insurance agent and agency were not ERISA entities, which were identified as the employer, the plan, the plan fiduciaries, and the beneficiaries under the plan. Therefore, the Eleventh Circuit concluded that the claims were not preempted, “as they do not have a sufficient connection with the plan to ‘relate to’ the plan.” Id. at 724. See also Gowen v. Assurity Life Ins. Co., 2013 WL 1192580 (S.D. Ga. March 22, 2013) (claims against insurance agent not preempted); Lordmann Enters. v. Equicor, Inc., 32 F.3d 1529 (11th Cir. 1994) (negligent misrepresentation claim against a health insurer by a home health agency not preempted); Skilstaf Inc. v. Adminitron, Inc., 66 F. Supp. 2d 1210 (M.D. Ala. 1999) (employer’s state law claims against a third-party administrator not preempted (citing Morstein)). But see Jones v. LMR Int’l, Inc., 367 F. Supp. 2d 1346 (M.D. Ala. 2005) (Skilstaf distinguished because claims were claimrelated). Soon after Pilot Life, the Eleventh Circuit determined that Florida’s bad-faith statute, Florida Statute § 624.155, was preempted because it regulated insurance as a matter of common sense and because it did not meet all of the McCarran-Ferguson factors required to be saved from preemption. Anschultz v. Conn. Gen. Life Ins. Co., 850 F.2d 1467 (11th Cir. 1988). See also Swerhun v. Guardian Life Ins. Co. of Am., 979 F.2d 195 (11th Cir. 1992). Lower courts in the Eleventh Circuit continue to rely on Pilot Life to preempt statutory bad-faith laws, even 980

though they are specifically directed to the insurance industry, because these statutes are rooted in the common law of contract and tort. Walker v. S. Co. Servs., Inc., 279 F.3d 1289 (11th Cir. 2002); Gilbert v. Alta Health & Life Ins. Co., 276 F.3d 1292 (11th Cir. 2001). B. Preemption of Managed Care Claims The Eleventh Circuit has followed the U.S. Supreme Court’s decision in Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), effectively mooting most managed care issues that might arise. As discussed in Borrero v. United Healthcare of New York, Inc., “[t]he Supreme Court set out a two-part test for complete preemption under ERISA’s remedies provision in Davila. A state law claim is completely preempted by ERISA, and therefore removable to federal court, if two conditions are met: the claimant must have been able to, at some point in time, bring his claim under ERISA § 502(a)(1)(B), and there must be ‘no other independent legal duty that is implicated by a defendant’s actions.’ We adopted this framework for ERISA preemption analysis in Connecticut State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1345 (11th Cir. 2009).” 610 F.3d 1296, 1301 (11th Cir. 2010) (quoting Davila, 542 U.S. at 210). C. Preemption of Malpractice Claims Although Davila specifically dealt with claims against insurers for negligently handling coverage decisions, it has been used as a basis for vacating pre-Davila decisions 981

denying complete preemption of medical malpractice claims. For example, in Land v. CIGNA, 339 F.3d 1286 (11th Cir. 2003), the court initially vacated and remanded to the district court its denial of the insured’s motion to remand and the granting of the HMO’s motion to dismiss. The Eleventh Circuit held that the insured’s claim for failure to diagnose and authorize proper care causing the loss of his finger was a mixed decision of eligibility and treatment but that such a claim was not within the scope of ERISA’s civil enforcement provisions. However, Davila was decided while a petition for writ of certiorari was pending. The Supreme Court, 542 U.S. 200 (2004), vacated and remanded. Upon instructions from the U.S. Supreme Court and based on its decision in Davila, the Eleventh Circuit held that a plaintiff’s state law malpractice claims were preempted by ERISA. Land v. CIGNA Healthcare of Fla., 381 F.3d 1274 (11th Cir. 2004). The court stated: “After carefully reviewing Davila we find that Land’s state law malpractice claim against his health maintenance organization (‘HMO’) was preempted” and was thus removable to federal court. Id. at 1276. D. Preemption of Equitable Claims and Defenses Courts in the Eleventh Circuit have addressed the preemption of equitable claims in ERISA matters on numerous occasions and, in most instances, have found that such claims are preempted. Congress provided the exclusive cause of action for recovery of benefits under an ERISA plan in the civil enforcement section of the statute. See Hall v. Blue Cross/Blue Shield of Ala., 134 F.3d 1063 (11th Cir. 1998). Accordingly, when state law 982

claims implicate ERISA’s preemption clause and fall within the scope of the ERISA civil enforcement section, they are converted into federal claims. Id. at 1065. Whenever a state law claim involves alleged conduct that is intertwined with the refusal to pay benefits under an ERISA plan, the Eleventh Circuit has found that the claims “relate to” the ERISA plan so as to preempt such claims. Id. See also Variety Children’s Hosp., Inc. v. Century Med. Health Plan, Inc., 57 F.3d 1040, 1042 (11th Cir. 1995). 1. Promissory Estoppel Claims Claims based on common law promissory estoppel often arise in ERISA benefit actions. Where such claims are inextricably intertwined with the claim for benefits under an ERISA benefit claim, they are preempted. See, e.g., Variety Children’s Hosp., 57 F.3d at 1043 (promissory estoppel claim that essentially questions whether a particular treatment is covered under a plan is preempted); Kulik v. Metro. Life Ins. Co., 1998 WL 404383 (M.D. Fla. 1998) (promissory estoppel and negligent misrepresentation claims preempted). However, where a third-party health care provider brings a promissory estoppel claim not as an assignee of a participant but based on an independent promise to pay made by the plan, some courts have permitted such claims to proceed on the grounds that the plaintiff is not an ERISA entity. See Variety Children’s Hosp. v. Blue Cross/Blue Shield of Fla., 942 F. Supp. 562, 567 (S.D. Fla. 1996) (Variety I) (citing Lordmann Enters., Inc. v. Equicor, Inc., 32 F.3d 1529 (11th Cir. 1994)). 983

2. Equitable Estoppel Claims Claimants relying on a theory of equitable estoppel under federal common law in the Eleventh Circuit have been allowed to litigate such claims outside of ERISA preemption only if a set of stringent factors is satisfied. Courts have recognized this narrow doctrine when (1) the provisions of the plan at issue are ambiguous and (2) representations are made that constitute an oral interpretation of the ambiguity. Glass v. United of Omaha Life Ins. Co., 33 F.3d 1341, 1346 (11th Cir. 1994); Kane v. Aetna Life Ins. Co., 893 F.2d 1283, 1285 (11th Cir. 1990). In Kane, the court permitted an equitable estoppel claim to proceed where it found that policy language relating to whether an infant would be covered for health benefits was ambiguous and that oral representations by Aetna employees caused the participant to undergo enormous medical expenses that were subsequently denied. Kane, 893 F.2d at 1285. The court explained that terms are ambiguous if “reasonable persons could disagree as to their meaning and effect.” Id. It then determined that because the plan language was ambiguous, Aetna’s representations were interpretations of the plan’s language rather than modifications. Therefore, the equitable estoppel claim was not preempted by ERISA. Id. However, estoppel is not available either for oral modifications of plan language (as opposed to interpretations) or when the written plan is clear and unambiguous. See Alday v. Container Corp., 906 F.2d 660, 666 (11th Cir. 1990); Nachwalter v. Christie, 805 F.2d 956 (11th Cir. 1986). In Nachwalter, the court held 984

that to allow oral modification of plan terms based on estoppel would be inconsistent with the statutory requirement that ERISA plans be “maintained” in writing. 805 F.2d at 960. 3. Waiver Claims With regard to waiver, as opposed to estoppel, the Eleventh Circuit has followed the Seventh Circuit and declined to recognize in the ERISA context claims based on waiver that are in the nature of a “something for nothing” claim. In this type of claim, the participant attempts to hold the carrier to the terms of misleading representations to a participant for no other reason than that it made them. Glass, 33 F.3d at 1348 (where there is no evidence of reliance, or unjust enrichment with knowledge of relinquishment of known right by carrier, waiver is inappropriate). The Glass court, however, left open the possibility that a viable waiver claim could be stated in the ERISA context if all of the proper federal common law requirements for such a claim are present. In Glass, United enrolled the participant in the life plan and accepted premiums for a period of time without realizing that he was ineligible due to the number of hours he worked. United investigated the problem and, once it became aware, immediately raised the eligibility issue. It then tried to return the premiums. In rejecting the waiver claim, the court held that there was no evidence that United tried to enrich itself at the expense of an ineligible premiums participant and that it did not knowingly and intentionally waive the eligibility requirements. Id. at 1348–49. See also Martinez-Claib, M.D. v. Bus. Men’s Assur. Co. of Am., 349 F. App’x 522 (11th Cir. 2009) 985

(insurer did not waive arguments not raised in denial letter where it did not intentionally give up the right to make the arguments and did not unjustly benefit from its conduct). E. Other Preemption Issues Issues of preemption also affect jurisdictional and procedural aspects of an ERISA case. Whether a complaint initially filed in state court can be removed (and then potentially dismissed) notwithstanding the well-pleaded complaint rule depends on whether the claims asserted at the time of the removal are “super preempted” or “defensively preempted.” Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207 (11th Cir. 1999). In Butero, the court established a four-part test for determining ERISA super preemption: (1) a relevant ERISA plan exists, under which (2) a plaintiff with standing is suing (3) an ERISA entity for (4) “compensatory relief akin to that available under [29 U.S.C.] § 1132(a); often this will be a claim for benefits due under a plan.” Id. at 1212. See also Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337 (11th Cir. Fla. 2009); Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267 (11th Cir. Ga. 2005). Whereas super or complete preemption is a matter of federal jurisdiction, defensive preemption provides only an affirmative defense to state law claims. In Ervast v. Flexible Products Co., 346 F.3d 1007 (11th Cir. 2003), the court analyzed the plaintiff’s claim alleging breach of fiduciary duty and negligence resulting from the employer’s failure to disclose material information that 986

would have affected the plaintiff’s decision to liquidate his account in the employee stock ownership plan. The court ruled that these claims failed the “akin to that available under § 1132(a)” prong of the Butero test and remanded to state court so the ERISA preemption defense could be considered as an affirmative defense, rather than as a basis for federal jurisdiction. See also Engelhardt v. Paul Revere Life Ins. Co., 139 F.3d 1346 (11th Cir. 1998). In AutoNation, Inc. v. United Healthcare Ins. Co., 423 F. Supp. 2d 1265 (S.D. Fla. 2006), the court dismissed based on conflict preemption two state law counts by a plan sponsor/employer against a claim administrator for breach of contract and professional negligence, but allowed breach of fiduciary claims to remain. See also Bertoni v. Stock Bldg. Supply, 989 So. 2d 670 (Fla. Dist. Ct. App. 2008). In Jones v. LMR Int’l, Inc., 457 F.3d 1174 (11th Cir. 2006), the court upheld dismissal of state law claims on preemption grounds on a terminated plan, and included preemption of claims against a non-ERISA entity because to not preempt them might affect the claims against the ERISA entities. See Evans v. Infirmary Health Servs., Inc., 634 F. Supp. 2d 1276, 1283 (S.D. Ala. 2009) (remand granted where former employee’s claim was for severance which was not for benefits under her ERISA plan); Nat’l Renal Alliance, LLC v. Blue Cross & Blue Shield of Ga., Inc., 598 F. Supp. 2d 1344, 1357 (N.D. Ga. 2009) (restating the Butero four-part preemption test). III. Exhaustion of Administrative Remedies

987

A. Is Exhaustion an Absolute Requirement? The Eleventh Circuit has “repeatedly held that plaintiffs must exhaust their administrative remedies under a covered benefits plan prior to bringing an ERISA claim in federal court.” Variety Children’s Hosp., Inc. v. Century Med. Health Plan, Inc., 57 F.3d 1040, 1042 (11th Cir. 1995). See also Fla. Health Sciences Ctr., Inc. v. Total Plastics, Inc., 496 F. App’x 6, 10 (11th Cir. 2012) (“We have long maintained that participants in an ERISA plan … must exhaust their administrative remedies….”). Further, a plaintiff’s complaint must allege exhaustion, recite facts showing that administrative remedies have been exhausted, or plead impossibility of exhaustion. Variety Children’s Hosp., 57 F.3d at 1042; Byrd v. MacPapers, Inc., 961 F.2d 157, 160–61 (11th Cir. 1992). See also Herman v. Hartford Life & Acc. Ins. Co., 2013 WL 530836 (11th Cir. Feb. 13, 2013). “The exhaustion requirement applies equally to claims for benefits and claims for violations of ERISA itself.” Lanfear v. Home Depot, Inc., 536 F.3d 1217, 1224 (11th Cir. 2008) (quoting Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1328 (11th Cir. 2006)). Mere requests for information about a plan administrator’s decision do not constitute an administrative appeal for purposes of the exhaustion requirement. Am. Dental Ass’n v. WellPoint Health Networks, Inc., 494 F. App’x 43, 46 (11th Cir. 2012). The Eleventh Circuit has recognized these “compelling considerations” for the exhaustion requirement: (1) reduction of the number of frivolous lawsuits, (2) minimization of the cost of resolving disputes, (3) 988

enhancement of the administrators’ “ability to carry out their fiduciary duties expertly and efficiently by preventing premature judicial intervention in the decision making process,” and (4) availability of “prior fully considered actions” by the administrator to assist the courts. Bickley, 461 F.3d at 1330; Mason v. Cont’l Group, Inc., 763 F.2d 1219, 1227 (11th Cir. 1985). Moreover, the exhaustion requirement is consistent with congressional intent that plans “provide intrafund review procedures.” Mason, 763 F.2d at 1227. B. Exceptions to the Exhaustion Requirement The Eleventh Circuit “strictly enforce[s] an exhaustion requirement on plaintiffs bringing ERISA claims in federal court with certain caveats reserved for exceptional circumstances.” Perrino v. S. Bell Tel. & Tel. Co., 209 F.3d 1309, 1315 (11th Cir. 2000). Nonetheless, a district court has discretion “‘to excuse the exhaustion requirement when resort to administrative remedies would be futile or the remedy inadequate,’ … or where a claimant is denied ‘meaningful access’ to the administrative review scheme in place.” Bickley, 461 F.3d at 1328. The futility exception does not apply simply because the same parties who made the original benefits decision, or who allegedly breached their fiduciary duty, would be the decision makers in the administrative proceeding. Lanfear, 536 F.3d at 1224. Rather, “the futility exception protects participants who are denied meaningful access to administrative procedures, not those whose claims would be heard by an interested party.” Id. Thus, in Curry v. 989

Contract Fabricators, Inc. Profit Sharing Plan, 891 F.2d 842 (11th Cir. 1990), the Eleventh Circuit “found that exhaustion was futile because plan administrators had denied a participant meaningful access to administrative proceedings by repeatedly ignoring requests for documents supporting the denial of benefits,” but in Springer v. Wal-Mart Assocs. Group Health Plan, 908 F.2d 897 (11th Cir. 1990), the court ruled that a claimant “may not invoke the futility exception to avoid recourse to an administrative procedure on the ground that the reviewer is ‘basically the same entity as the initial internal decider and … both deciders have an interest in holding costs down.’” Lanfear, 536 F.3d at 1224–25 (citing Curry, 891 F.2d at 844; and Springer, 908 F.2d at 901). In the specific context of a disability claim, however, the Eleventh Circuit concluded that a district court did not abuse its discretion by excusing the plaintiff, on grounds of futility, from exhausting administrative remedies as to his claim under an “any occupation” definition of disability “where those same decision makers had already denied benefits under the ‘own occupation’ standard.” Oliver v. Coca-Cola Co., 497 F.3d 1181, 1201 (11th Cir. 2007), vacated in part on other grounds, 506 F.3d 1316 (2007), aff’d in part and remanded in part, 546 F.3d 1353 (2008). The Eleventh Circuit has reiterated that “if nothing indicates that a plan administrator would have afforded a claimant less than an adequate legal remedy, a claimant who does not first attempt to use administrative remedies waives the futility argument.” Fla. Health Sciences Ctr., 496 F. App’x at 12. “Mere speculation is not enough to 990

fulfill the futility exception to the requirement of exhaustion of administrative remedies.” Am. Dental Ass’n, 494 F. App’x at 47 (noting that the plaintiff had failed to initiate the administrative review process, leaving the court “to speculate as to whether [the administrator] would have conducted a thorough and adequate review”). In Counts v. Am. Gen. Life & Acc. Ins. Co., 111 F.3d 105, 108 (11th Cir. 1997), the Eleventh Circuit declined to create an additional exception to the exhaustion requirement where a benefits termination letter did not comply with the notice requirements of ERISA. The court held that “the consequence of an inadequate benefits termination letter is that the normal time limits for administrative appeal may not be enforced against the claimant…. Thus, the usual remedy is not excusal from the exhaustion requirement, but remand to the plan administrator for an out-of-time appeal.” Id. Similarly, in Perrino, the court declined to recognize a new exception to the exhaustion doctrine based on “noncompliance with ERISA’s technical requirements,” where the administrative scheme would have been available to plaintiffs if they had invoked it. 209 F.3d at 1316–17. The court held that “the exhaustion requirement … should not be excused for technical violations of ERISA that do not deny plaintiffs meaningful access to an administrative remedy procedure through which they may receive an adequate remedy.” Id. See also Fla. Health Sciences Ctr., 496 F. App’x at 12 (an administrator’s “failure to follow designated procedures in providing a claimant notice of a benefits denial does not excuse 991

exhaustion of administrative remedies but rather requires the district court to remand to the plan administrator ‘for an out-of-time administrative appeal’”) (quoting Counts, 111 F.3d at 108). Conversely, in Watts v. BellSouth Telecom., Inc., 316 F.3d 1203, 1204 (11th Cir. 2003), the court created an additional exception to the exhaustion requirement where the plaintiff’s failure to exhaust her administrative remedies was the result of language in the summary plan description that the plaintiff “reasonably interpreted as meaning that she could go straight to court with her claim.” Id. at 1204. See also McCay v. Drummond Co., Inc., 2013 WL 616923 (11th Cir. Feb. 20, 2013) (recognizing exception described in Watts). In McCay, the Eleventh Circuit noted its “disinclination toward expansion of the exceptions to exhaustion.” 2013 WL 616923, at *3. The court in that case declined to embrace a claim that a participant’s failure to timely appeal resulted from his depression, noting that the participant had not cited “to any Eleventh Circuit case in which ERISA exhaustion requirements were excused based on a theory of mental incapacity.” Id. Were it to accept such an argument, the court continued, the participant “would bear the heavy burden under the equitable tolling doctrine, of showing that ‘extraordinary circumstances exist[ed]’ to prevent him from appealing on time.” Id. (quoting Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006)). C. Consequences of Failure to Timely Seek an Administrative Review 992

The Eleventh Circuit has “held a number of times that a claimant’s failure to exhaust the administrative remedies that an ERISA plan provides for challenging the denial of a benefits claim ordinarily bars her from pursuing that claim in court.” Watts, 316 F.3d at 1204. Thus, “[o]rdinarily, if a plan participant failed to take advantage of an available administrative appeal by pursuing it in compliance with a reasonable filing deadline, … that bars federal court review of her claim.” Id. at 1206. See also Claxton v. Conn. Gen. Life Ins. Co., 700 F. Supp. 2d 1322, 1330 (S.D. Ga. 2010) (dismissing case with prejudice where 180-day time period for appeal had expired). The Eleventh Circuit has upheld the grant of summary judgment in favor of the defendant when the plaintiff failed to exhaust. See, e.g., Perrino, 209 F.3d at 1319; Counts, 111 F.3d at 109; Mason, 763 F.2d at 1227. In Springer, the court remanded the case with instructions to dismiss the lawsuit for failure to exhaust. 908 F.2d at 902. In Variety Children’s Hospital, the court upheld the district’s decision to dismiss the case without prejudice subject to the plaintiff’s exhaustion of administrative remedies. 57 F.3d at 1042. D. Application to Claims for Breach of Fiduciary Duty “Exhaustion of administrative remedies is required prior to bringing an ERISA breach of fiduciary duty claim.” Fuller v. Suntrust Banks, Inc., 2012 WL 1432306, at *3 (N.D. Ga. Mar. 20, 2012) (citing Springer, 908 F.2d 897, 899 (11th Cir. 1990)). See also Newberry v. Graphic Packaging Int’l, Inc., 2012 WL 252834, at *3 (M.D. Ga. 993

Jan. 26, 2012) (citing Lanfear, 536 F.3d at 1223–24). In Lanfear, the Eleventh Circuit held that former employees of Home Depot failed to exhaust their administrative remedies before bringing suit against Home Depot for breach of fiduciary duty in connection with the diminution of value of a defined contribution retirement plan. 536 F.3d at 1219. However, the district court had dismissed the plaintiffs’ complaint with prejudice, finding that they did not qualify as plan participants, and therefore “lacked statutory standing to sue for breach of fiduciary duty.” Id. at 1221. The Eleventh Circuit reversed the dismissal with prejudice, finding that the plaintiffs had standing, and remanded to the district court to consider the plaintiffs’ motion for a stay of the proceedings pending their pursuit of administrative remedies. Id. at 1225. In Bickley, the Eleventh Circuit upheld the dismissal of a class action alleging breach of fiduciary duties for failure to exhaust administrative remedies. 461 F.3d at 1330. The plaintiffs sued the third-party administrator of their employer’s self-funded prescription drug benefits plan without first exhausting the administrative remedies provided by the plan. The named plaintiff in Bickley argued on appeal: (1) “that the district court should have excused his failure to exhaust the administrative remedies because an administrative remedy was not available for his claims of breach of fiduciary duty,” (2) “that the administrative scheme set out in the Plan was limited solely to claims for benefits,” and (3) “that the Plan explicitly provided that a participant who alleges violations of fiduciary duty may file suit in federal court.” Id. at 1329. 994

With regard to the argument that the plan provided that participants could file suit in federal court, the Eleventh Circuit held that “[t]his Plan language … merely recites plan participants’ general rights under ERISA and does not excuse a participant from satisfying the exhaustion requirement.” Id. Further, the court found the argument that administrative remedies were limited to claims for benefits unpersuasive, because the plan contained language advising participants to contact the employer/ plan administrator, which had discretion to “resolve all interpretive, equitable and other questions that shall arise in the operation and administration of this Plan.” Id. Thus, had the plaintiffs followed the proper procedure, the employer/plan administrator could have responded to their claims, and indeed would have had a duty under the plan to consider pursuing a breach of fiduciary duty claim on the plan’s behalf. Id. at 1329–30. E. Issue versus Claim Exhaustion The Eleventh Circuit has not addressed whether the exhaustion defense applies to issues as well as to claims. Relying on case law from other circuits, one district court in the Eleventh Circuit has held that “[s]ection 502(a) of ERISA does not require either issue or theory exhaustion; it only requires claims exhaustion.” Lieberman v. United Healthcare Ins. Co., 2010 WL 903260, at *3 (S.D. Fla. Mar 10, 2010) (quoting Wolf v. Nat’l Shopmen Pension Fund, 728 F.2d 182, 186 (3d Cir. 1984); and Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 632 (9th Cir. 2008)). F. Levels of Administrative Review Required 995

A number of district courts within the Eleventh Circuit have enforced the exhaustion requirement as to a second level of appeal, where mandated by the plan. See, e.g., Blaikie v. Rsight, Inc., 2011 WL 5834751, at *2 (M.D. Fla. Nov. 21, 2011) (“Plaintiff failed to exhaust these administrative remedies by not timely requesting a Level II appeal.”); Lenoir v. Bellsouth Telecomms., Inc., 2006 WL 2982879, at *5 (N.D. Ga. Oct. 17, 2006) (“Plaintiff did make an appeal to the Union Vice President but she did not appeal the Vice President’s decision to the President or Executive Board.”). In Hall v. United of Omaha Life Ins. Co., 741 F. Supp. 2d 1348, 1354 (N.D. Ga. 2010), the court held that a participant failed to exhaust the plan’s administrative remedies where he refused to undergo an independent medical examination requested by the insurer. “Interpreting [the] plan to allow for an IME during the appeal process is also consistent with the purpose of the exhaustion requirement,” the court reasoned. Id. at 1355. G. Waiver The Eleventh Circuit has held in an unpublished opinion that the exhaustion defense is not an affirmative defense, but rather is a “jurisdictional defense that may be raised at any time.” Herman, 2013 WL 530836, at * 2. Because a participant or beneficiary suing for benefits in the Eleventh Circuit must plead exhaustion of administrative remedies in the complaint, the defense of failure to exhaust is not an “affirmative defense” under prior Eleventh Circuit case law. Id. (citing In re Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th Cir. 1988) (“A

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defense which points out a defect in the plaintiff’s prima facie case is not an affirmative defense.”)). Prior to that decision, at least one district court in the Eleventh Circuit had stated that the exhaustion requirement is “ordinarily an affirmative defense.” In re Managed Care Litig., 595 F. Supp. 2d 1349, 1353 (S.D. Fla. 2008) (citing Paese v. Hartford Life & Acc. Ins. Co., 449 F.3d 435, 446 (2d Cir. 2006)). IV. Standard of Review Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), using Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 105–15 (1989), as its guide, modified three of the Eleventh Circuit’s unique analytical elements applicable to a claim administrator’s denial or termination of ERISA benefits. Glenn confirmed that where a claim administrator decides whether to pay the claim from its own assets, the claim administrator has a conflict of interest. Prior Eleventh Circuit cases held that such a conflict shifted the burden of proof to the claim administrator to prove that the conflict did not influence its decision. Under Glenn, the burden of proof does not shift; it is the participant’s burden to prove that the conflict influenced the claim decision. Glenn also held that the conflict is but one factor in determining whether the claim decision was arbitrary and capricious. Finally, prior Eleventh Circuit cases held that where there was a conflict, the scrutiny applied to the claim administrator’s benefits decision was to be “heightened” 997

when considering whether it was arbitrary and capricious. Glenn eliminated that higher burden, leaving two standards of review: de novo and “arbitrary and capricious.” Post-Glenn, the Eleventh Circuit has articulated the following test to review an administrator’s decision to terminate or deny benefits: 1. Apply the de novo standard to determine whether the claim administrator’s benefitsdenial decision is “wrong” (i.e., the court disagrees with the administrator’s decision); if it is not, then end the inquiry and affirm the decision. 2. If the administrator’s decision is “de novo wrong,” then determine whether it was vested with discretionary authority in reviewing claims; if not, end the inquiry and reverse the decision. 3. If the administrator’s decision is “de novo wrong” and it was vested with discretion in reviewing claims, then determine whether “reasonable” grounds supported it (hence, review the decision under the more deferential arbitrary and capricious standard). 4. If no reasonable grounds exist, then end the inquiry and reverse the administrator’s decision. If reasonable grounds do exist, then determine whether he operated under a conflict of interest. 5. If there is no conflict of interest, then end the inquiry and affirm the decision. If there is a 998

conflict, then the reviewing court must consider the conflict as being a factor in determining whether the plan administrator has acted arbitrarily and capriciously. Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1195 (11th Cir. 2010). Each of these steps is discussed below. Step 1. “Wrong” is the label used to describe the court’s disagreement with the claim administrator’s decision, after a de novo review of the plan documents and the administrative record. Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227, 1231–32 (11th Cir. 2006); Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241, 1246 (11th Cir. 2008). As articulated in Sejdic v. Group Long-Term Dis. Plan for Employees of Homeside Lending, Inc., 348 F. Supp. 2d 1313, 1318 (M.D. Fla. 2004), “a decision is legally ‘wrong’ when the court, after conducting a de novo review of the entire administrative record, disagrees with the administrator’s interpretation of the Plan.” If the trial court agrees with the claim administrator (that is, that the decision was not “wrong”), judicial labor is completed and judgment is entered in favor of the claim administrator. Step 2. The existence of discretion in an ERISA plan affects the level of scrutiny applied to the benefits decision. Courts must look to all of the plan documents to determine whether the plan affords sufficient discretion in deciding whether to apply a deferential standard of review. Cagle v. Bruner, 112 F.3d 1510, 1517 (11th Cir.

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1997). In one case, the court found that a grant of discretion in the summary plan description was insufficient unless it also was set out in the group policy. Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d 1276, 1283–84 (11th Cir. 2003) (applying de novo review, notwithstanding an unambiguous grant of discretion contained in the summary plan description, where the group policy had not been amended to contain the discretionary language, despite specific procedures that would have allowed the amendment). But see Curran v. Kemper Nat’l Servs., Inc., 2005 WL 894840 (11th Cir. Mar. 16, 2005) (declining to follow Shaw). The language must clearly, unambiguously, and expressly provide discretion to avoid the default de novo review. Kirwan v. Marriott Corp., 10 F.3d 784, 788 (11th Cir. 1994). Compare Guy v. Se. Iron Workers’ Welfare Fund, 877 F.2d 37, 38–39 (11th Cir. 1989) (applying the deferential standard of review where the plan afforded the administrator “full and exclusive authority to determine all questions of coverage and eligibility” and “full power to construe the provisions”), with Baker v. Big Star Div. of the Grand Union Co., 893 F.2d 288, 292 (11th Cir. 1989) (applying the de novo standard of review where the plan conferred upon the administrator only the authority to make initial eligibility determinations “according to the terms of the plan,” but not final decisions on appeal). See also Curran, 2005 WL 894840, at *3 (“We have held that this type of language, requiring that proof be satisfactory or acceptable to the administrator, is sufficient to convey discretion and to apply the arbitrary and capricious standard of review.”); Sorrels v. Sun Life Assur. Co. of Can., 85 F. Supp. 2d 1221, 1229–30 (S.D. Ala. 2000) 1000

(plan’s use of the term “satisfactory” in the proof of claim requirements “contemplate[d] a review of the submitted evidence for evaluation by defendant, and clearly, such a review and evaluation require[d] the exercise of discretion”); Morency v. Rudnick & Wolfe Staff Group Long Term Dis. Ins. Plan, 2001 WL 737531, at *2–3 (M.D. Fla. Jan. 31, 2001) (same). If the plan is found to grant discretion to the claim administrator to decide claim issues, the trial court sits more as an appellate tribunal than as a trial court. Smorto v. 3DI Techs., Inc., 393 F. Supp. 2d 1304, 1313 (M.D. Fla. 2005). “[The district court] does not take evidence, but, rather, evaluates the reasonableness of an administrative determination in light of the record compiled before the plan fiduciary.” Crume v. Metro. Life Ins. Co., 417 F. Supp. 2d 1258 (M.D. Fla. 2006) (citing Leahy v. Raytheon Co., 315 F.3d 11, 17–18 (1st Cir. 2002)), quoted with approval in Curran, 2005 WL 894840 (11th Cir. Mar. 16, 2005) (unpublished per curiam opinion). When making this assessment, the court’s inquiry is limited to the facts known to the claim administrator when the decision was made. Lee v. Blue Cross & Blue Shield of Ga., 10 F.3d 1547, 1550 (11th Cir. 1994). Step 3. If the trial court concludes that the claim decision was “wrong” and the plan provides for discretion, the court must then determine whether its decision was also “arbitrary and capricious.” Firestone, 489 U.S. at 115; Doyle v. Liberty Life Assur. Co. of Bos., 542 F.3d 1352, 1360 (11th Cir. 2008).

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The “arbitrary and capricious” standard means that the trial court will affirm if the administrator’s decision is reasonable given the available evidence, even though the trial court might not have made the same decision if it had been the original decision maker. Everson v. Liberty Mut. Assur. Co., 2009 WL 73140, at *10 (N.D. Ga. Jan. 2, 2009). See also Franklin v. Hartford Life Ins. Co., 2008 WL 5110836, at *3 (M.D. Fla. Nov. 25, 2008) (citing HCA Health Servs. of Ga., Inc. v. Emp’rs Health Ins. Co., 240 F.3d 982, 992 (11th Cir. 2001)); Everson, 2009 WL 73140, at *10. The burden of proof of showing that a claim administrator’s decision was “arbitrary and capricious” rests with the participant. Doyle, 542 F.3d at 1360. Steps 4 and 5. If the claim administrator not only made the claim decision but was also responsible for paying the claim from its own assets, the claim administrator has a conflict of interest. In Glenn, the claim administrator was not the employer but an insurance company paying the claim. A participant can attempt to prove that such a conflict improperly influenced the claim decision, and, if so, the decision was not reasonable. If the claim administrator’s decision was reasonable, and therefore not “arbitrary and capricious,” it will be upheld. Doyle, 542 F.3d at 1359–60. V. Rules of Plan Interpretation A. Application of Federal Common Law

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Courts have the authority “to develop a body of federal common law to govern issues in ERISA actions not covered by the act itself.” Kane v. Aetna Life Ins. Co., 893 F.2d 1283, 1285 (11th Cir. 1990). In some circumstances, it may be necessary to refer to state law to determine a proper plan interpretation. For example, ERISA provides no guidelines for determining the proper application of an accidental death policy where there may be a relevant state law that includes a presumption against suicide. Although ERISA requires a claimant to prove entitlement, the court in Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038 (11th Cir. 1998), permitted incorporation of the presumption against suicide and an affirmative presumption of accidental death into federal common law. See also Acree v. Hartford Life & Acc. Ins. Co., 2013 WL 140097 (M.D. Ga. Jan. 10, 2013) (affirming negative presumption against suicide and presumption of accidental death as part of federal common law). Also, in Kobold v. Aetna U.S. Healthcare, 258 F. Supp. 2d 1317 (M.D. Fla. 2003), the court invoked federal common law to establish a possible agency relationship between the group health insurer and the employer, depending on whether plaintiff could establish the requisite factual basis. See also Tyler v. AIG Life Ins. Co., 2008 WL 874857, at *4 (11th Cir. Apr. 2, 2008); Maynard v. Merrill Lynch & Co., 2008 WL 4790670 (M.D. Fla. Oct. 28, 2008). These courts stated that a rule should become part of ERISA’s common law where it would further ERISA’s scheme and goals, which are (1) protection of the interest of employees and their beneficiaries in employee benefit plans; and (2) uniformity in the administration of 1003

employee benefit plans. Buce v. Allianz Life Ins. Co., 247 F.3d 1133 (11th Cir. 2001); Tyler v. AIG Life Ins. Co., 273 F. App’x 778 (11th Cir. 2008). B. Application of Contra Proferentem The Eleventh Circuit applies the rule of contra proferentem to resolve ambiguities against insurers in insurance contracts regulated by ERISA. Lee v. Blue Cross/Blue Shield of Ala., 10 F.3d 1547 (11th Cir. 1994). However, this rule is applied only at that part of the multipart analysis where it is determined whether the claim decision was de novo right or wrong. The court does not apply this rule at the stage of the analysis that determines whether the decision was arbitrary or capricious, for to do so would emasculate that concept. See also HCA Health Servs. of Ga., Inc. v. Emp’rs Health Ins. Co., 240 F.3d 982, 993 (11th Cir. 2001); White v. Coca-Cola Co., 542 F.3d 848, 857 (11th Cir. 2008). C. Other Rules of Plan or Contract Interpretation An anti-assignment clause in the plan document precludes a claim by the health care provider suing as the participant’s assignee. Physicians Multispecialty Group v. Health Care Plan of Horton Homes, Inc., 371 F.3d 1291 (11th Cir. 2004). See also In re Managed Care Litig., 2009 WL 742678 (S.D. Fla. 2009). VI. Discovery A. Limitations on Discovery

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After Brown v. Blue Cross & Blue Shield of Ala., 898 F.2d 1556 (11th Cir. 1990), established a framework for heightened arbitrary and capricious review of a claim decision where a claim fiduciary pays the benefits out of its own pocket, the issue as to the scope of discovery in ERISA cases depended largely upon the standard of review chosen by the court in light of plan documents and the role of the ERISA fiduciary. Litigants faced with developing proof on a number of analytical steps, such as whether a conflict of interest actually existed, and whether it affected the decision, sought discovery on these issues. With the decision reached in Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), the analytical framework has changed but it remains unclear whether the scope of permitted discovery in the Eleventh Circuit in ERISA benefit cases has broadened or lessened. B. Discovery and Conflict of Interest Following the Brown framework, courts in this circuit have allowed discovery bearing on the effect of the conflict on the claim decision. See Miller v. Bank of Am. Corp., 401 F. Supp. 2d 1372, 1379 (N.D. Ga. 2005) (in heightened review case, plaintiff was entitled to conduct discovery to obtain information that might enable him to refute any evidence that carrier’s interpretation of the plan was not tainted by self-interest). In Miller, the court permitted discovery into the carrier’s routine practice for deciding claims, but not the particulars of individual claims. Id. As a result of these decisions, it was not uncommon to see experienced ERISA litigators in this circuit serving discovery requesting not merely the claim file and the summary plan description, but copies of 1005

telephone messages, e-mails, treatises, medical summaries, dictionaries, periodicals, and other texts used with regard to the claim. It is also quite common to see interrogatories or requests for admissions to the defendant aimed at establishing whether the claim decision maker operated under an apparent conflict of interest based upon paying benefits out of its own assets. Aimed at determining this issue, litigants question whether the plan was or was not funded by stop-loss insurance or another policy, whether it was reimbursed by the employer for claims, whether a trust fund was established by the employer, whether any premium rebates were given to an employer based upon loss history, or more basically, whether anyone other than the insurer played any role in making the decision to deny benefits. See Mazzacoli v. Cont’l Cas. Co., 322 F. Supp. 2d 1376, 1380 (M.D. Fla. 2004) (permitting discovery beyond record on issue of extent of employer’s delegation of fiduciary responsibilities and the claim-handling process). The Supreme Court’s decision in Glenn, because of its rejection of the heightened scrutiny approach to analysis of a conflicted claim fiduciary’s decision, as well as the burden-shifting framework announced in Brown, has led some courts to conclude that the scope of discovery has narrowed in such cases whereas other courts have interpreted it as permitting broader discovery. Although it announced a “totality of circumstances” approach in such cases, the Glenn decision itself did not address the scope of discovery. It held that a conflict is but one factor to consider in evaluating whether a conflicted claim fiduciary has abused its discretion. Glenn, 544 U.S. at 108. The Court did provide some guidance in stating that 1006

the conflict might have “great importance” if the facts of the case demonstrate that the conflict affected the claim decision, including circumstances whether an “insurance company administrator has a history of biased claim administration.” Id. at 117. Cases in the Eleventh Circuit discussing the scope of permissible discovery in an ERISA case arguably involving a conflict of interest post-Glenn are slowly growing in number. In Adams v. Hartford Life & Acc. Ins. Co., 589 F. Supp. 2d 1366 (N.D. Ga. 2008), the court permitted discovery beyond the administrative record to the extent that facts known to the administrator at the time of denial were not contained in the official record. Relying on Eleventh Circuit precedent pre-Glenn, the court determined that such discovery could pertain to (1) whether the administrator fulfilled his or her fiduciary duties, (2) whether the proper procedures were followed in compiling the record, (3) whether the record was complete, and (4) whether the administrator had a conflict of interest. Id. at 1367. The court then noted, citing Glenn, that if a conflict was found, the plaintiff could conduct discovery into the “surrounding circumstances to determine whether such a conflict affected the benefits decision.” Nevertheless, the court refused to “delineate the parameters of the plaintiff’s discovery.” Id. at 1368. See also Tarigo v. Aetna Life Ins. Co., 2012 U.S. Dist LEXIS 183800 (S.D. Fla. 2012) (allowing discovery beyond the administrative record as to whether conflict affected decision making). In Wells v. Unum Life Ins. Co., 593 F. Supp. 2d 1303 (N.D. Ga. 2008), on the other hand, the court barred 1007

additional discovery beyond the administrative record where the plan clearly granted discretionary authority to the claim fiduciary. Citing Doyle v. Liberty Life Assur. Co. of Bos., 542 F.3d 1352, 1360 (11th Cir. 2008), which found that Glenn implicitly overruled the Brown decision’s heightened scrutiny review, the court in Wells rejected plaintiff’s attempt to take depositions or written discovery aimed at obtaining documents outside of the administrative record. Id. at 1306. Because a potential conflict of interest was “only one factor in the court’s analysis” the court refused to allow discovery beyond the record. While it is hard to reconcile Wells with Adams in determining the proper scope of discovery, it is equally difficult to argue that the breadth of discovery permitted by courts in the Eleventh Circuit in cases pre-Glenn had much to do with the burden-shifting approach in the heightened arbitrary and capricious standard announced in Brown. One might even argue that placing the burden squarely on the plaintiff to establish that the conflict affected the claim decision warrants broader discovery post-Glenn. Decisions in this circuit pre-Glenn that allowed discovery as to whether benefits came out of the fiduciary’s own pocket, and even as to the claim payment history, may have continuing validity as relating to the evidence to be considered by the court in determining whether the conflict affected the claim decision. In Blankenship v. Metro. Life Ins. Co., 686 F. Supp. 2d 1227 (N.D. Ala. 2009), the court acknowledged a “growing number of cases that recognize limited discovery to bring to light evidence not in the 1008

administrative record, such as procedural defects, special or repeated relationships between experts and administrators, the amount of compensation paid to employed consultants, statistical records reflecting the percentages of claims granted and denied, etc.” and commented that “[s]uch evidence could be very helpful to a court charged with the great responsibility imposed upon it by Glenn.” Id. at 1233. The court “invited” the plaintiff to seek discovery beyond the administrative record, but the plaintiff declined, leading the court to appreciably state that it had been “spared any need to conduct an evidentiary inquiry beyond the evidence now before it.” Id. at 1234. In Allen v. Life Ins. Co. of Am., 267 F.R.D. 407 (N.D. Ga. 2009), the court observed that district courts in the Eleventh Circuit have “split on whether Glenn expands the scope of discovery where there is a question about a plan administrator’s conflict of interest.” Id. at 412. The court followed Mattox v. Life Ins. Co. of Am., 625 F. Supp. 2d 1304 (N.D. Ga. 2008), and allowed discovery so that the parties could “collect any documents and other evidence that would help the court determine the nature, extent, and effect on the decision making process of LINA’s conflict of interest.” Allen, 267 F.R.D. at 412 (quoting Mattox, 625 F. Supp. 2d at 1309). In Mattox, the court emphasized that “any allowed discovery must focus on evidence that is relevant to the self-interest issues in the decisionmaking process.” Id. Similarly, in Branch v. Life Ins. Co. of N. Am., 2009 U.S. Dist. LEXIS 105273 (M.D. Ga. 2009), the court rejected LINA’s argument that the court should not permit conflict 1009

discovery because a Northern District of Georgia court had found that the conflict factor should be given little weight. In Branch, the court allowed discovery as to LINA’s policies and procedures, including depositions. Id. at *13. See also Howard v. Hartford Life & Acc. Ins. Co., 2012 U.S. Dist. LEXIS 104430 (M.D. Fla. 2012) (approving magistrate’s ruling permitting discovery of “internal rules, manuals, guidelines, procedures, protocols regarding defendant’s processing, investigation, and/or determination of its disability claims from January 1, 2005 through January 1, 2008” and permitting a 30(b)(6) deposition). C. Discovery Regarding Other Issues Discovery may also be permitted in this circuit on preliminary issues such as standing to sue, and whether or not the ERISA safe harbor provision applies. In Kobold v. Aetna U.S. Healthcare, Inc., 258 F. Supp. 2d 1317 (M.D. Fla. 2003), the court noted that discovery would be permitted bearing upon whether the plaintiff could bring an action as someone who was or could become eligible to receive a plan benefit. See Willett v. Blue Cross & Blue Shield of Ala., 953 F.2d 1335, 1342 (11th Cir. 1992). In Kobold, the plaintiff was an employee of ADP but the fiduciary apparently failed to process his application for benefits. The plaintiff claimed standing as someone who would have received benefits had the application been processed correctly. Therefore, the court concluded that “if, through discovery, plaintiff is able to show that he met his obligation under the plan by applying for benefits on two occasions, he will satisfy the second prong of the test … [for standing].” 258 F. Supp. 2d at 1322. 1010

Limited discovery relating to the district court’s jurisdiction has been used frequently in determining whether the safe harbor provision (29 C.F.R. § 2510.3-1(j)) applies. In Wilson v. Coman, 284 F. Supp. 2d 1319 (M.D. Ala. 2003), the court permitted six weeks of discovery on issues relating to the court’s jurisdiction prior to deciding a motion to remand based upon the ERISA safe harbor provision. Id. at 1322. Typically such discovery would include depositions of alleged plan sponsor representatives and requests for production or admissions as to documents disseminated to employees. Id. at 1323 n.3. See also Gray v. N.Y. Life Ins. Co., 879 F. Supp. 99, 100 (N.D. Ala. 1995). The court may also deem it necessary to stay consideration of a pending motion to remand a case to state court on safe harbor grounds so as to allow discovery on the factors set forth in 29 C.F.R. § 2510.3-1(j). See Thomas v. Burlington, 763 F. Supp. 1570, 1576 (S.D. Fla. 1991). In cases alleging breach of fiduciary duty, parties have been permitted to conduct discovery on who operated as an ERISA fiduciary regarding the plan. Kobold, 258 F. Supp. 2d at 1322. Depositions have also been taken in such cases on the issue of whether the fiduciary fulfilled its obligations. See Hamilton v. Allen-Bradley Co., 244 F.3d 819, 827 n.1 (11th Cir. 2001); Useden v. Acker, 947 F.2d 1563, 1572 (11th Cir. 1991); Byars v. Coca-Cola Co., 2004 WL 1595399, at *9 (N.D. Ga. 2004); Dairy Fresh Corp. v. Poole, 108 F. Supp. 2d 1344, 1352 (S.D. Ala. 2000); Justice v. Bankers Tr. Co., 607 F. Supp. 527, 533 (N.D. Ala. 1985); Donovan v. Nellis, 528 F. Supp. 538, 542 (N.D. Fla. 1981). Discovery likewise has been allowed in such a case to 1011

enable the claimant to develop evidence as to the amount of accrued benefits and on the issue of attorneys’ fees following a finding of breach. Chambers v. Kaleidoscope, Inc. Profit Sharing Plan & Trust, 650 F. Supp. 359, 378 (N.D. Ga. 1986). D. Fiduciary Exception to Privilege Finally, although the Eleventh Circuit has not expressly ruled on the issue, district courts in the circuit have applied the fiduciary exception to the attorney-client and work-product privileges in ERISA cases. In Maltby v. Absolut Spirits Co., 2009 WL 800142 (S.D. Fla. 2009), the court examined whether the full and fair review requirement mandated disclosure of a significant amount of materials from the file materials in a case involving a declaration of rights as to future retirement plan benefits. The fiduciary exception to the attorney-client privilege provides that an employer acting in the capacity of an ERISA fiduciary may not assert the privilege against plan beneficiaries on matters of plan administration. Id. at *3. The claimant is entitled under full and fair review to receive all documents relevant to the claim administration. After holding that ample authority supported application of the fiduciary exception in the ERISA context, it ordered an in camera review for purposes of determining its application. Id. at *4. See also Harvey v. Standard Ins. Co., 275 F.R.D. 629, 632 (M.D. Ala. 2011) (following other district courts in Circuit and noting application of the exception in the Second, Fourth, Fifth, Seventh, Ninth Circuits). The Harvey opinion provides a rather detailed examination of cases from other jurisdictions as to the origins and parameters of the 1012

fiduciary exception in the ERISA context and should prove useful to litigants in future cases where the issue arises. Harvey, 275 F.R.D. at 632–34. VII. Evidence A. Scope of Evidence under Standards of Review In the Eleventh Circuit, the evidence that may be considered by the district court in reviewing a denial of ERISA benefits is determined by the applicable standard of review. Post-Glenn, the Eleventh Circuit has eliminated the “heightened” arbitrary and capricious standard of review, and it now applies either the de novo standard or the deferential arbitrary and capricious standard. 1. De Novo Standard of Review “‘[A] district court conducting a de novo review of an Administrator’s benefits determination is not limited to the facts available to the Administrator at the time of the determination,’ but instead can consider evidence regarding an individual’s disability which was in existence at the time the plan administrator’s decision was made, even though this evidence was not made available to the administrator.” Anderson v. Unum Life Ins. Co. of Am., 414 F. Supp. 2d 1079, 1100 (M.D. Ala. 2006) (quoting Kirwan v. Marriott Corp., 10 F.3d 784, 789 & n.31 (11th Cir. 1994)). See also Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d 1276, 1284 n.6 (11th Cir. 2003) (“As a rule, de novo review permits the parties to put before the

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district court evidence beyond that which was presented to the administrator at the time the denial decision was made.”). Indeed, in Moon v. Am. Home Assur. Co., 888 F.2d 86, 89 (11th Cir. 1989), the Eleventh Circuit held that the “contention that a court conducting a de novo review must examine only such facts as were available to the plan administrator at the time of the benefits denial is contrary to the concept of a de novo review.” 2. Arbitrary and Capricious Standard of Review Although the Eleventh Circuit has abandoned the “heightened” arbitrary and capricious standard of review in the wake of Glenn, the court continues to apply the first five steps of the analytical framework set forth in Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132 (11th Cir. 2004). See section IV, supra. In its first discussion of Glenn, the Eleventh Circuit noted in White v. Coca-Cola Co., 542 F.3d 848 (11th Cir. 2008), that “the Supreme Court cast doubt on the sixth step” of the Williams analysis, but that “although Glenn affects the sixth step of Williams, Glenn does not alter our analysis unless [the administrator] operated under a conflict of interest.” Id. at 854. See also Creel v. Wachovia Corp., 2009 WL 179584 (11th Cir. Jan. 27, 2009) (assuming that the first five Williams steps remain intact); Brannon v. BellSouth Telecomms., Inc., 2009 WL 567234 (11th Cir. Mar. 6, 2009) (same); Lee v. BellSouth Telecomms., Inc., 2009 WL 596006 (11th Cir. Mar. 10, 2009) (same). In Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1196 (11th Cir. 2010), the court confirmed that “the Williams methodology remains intact except for the sixth step.” 1014

District courts within the Eleventh Circuit recognize a clear distinction between the “de novo” review employed by courts as the first step of the Williams analysis and a true de novo standard of review with respect to admissible evidence. Further, in Eldridge v. Wachovia Corp. LongTerm Dis. Plan, 2007 WL 117712 (11th Cir. Jan. 18, 2007), the Eleventh Circuit’s application of the first Williams step indicated that “de novo” review at the first step of the analysis is limited to the administrative record. Although the Eleventh Circuit’s use of the term “de novo” may be somewhat confusing, it has been explained as follows: “De novo” has two different interpretations in ERISA case law. When using “De novo” as a standard of review, courts in [the Eleventh Circuit] are not limited to the administrative record…. “De novo” may also mean that the court reviews the denial based upon the administrative record without deference or any presumption of correctness…. In determining whether a claims administrator’s decision is “wrong,” courts in this circuit may only consider the administrative record. Accordingly, the use of the term de novo in determining whether a claims administrator’s decision is “wrong,” apparently means in this circuit that the court reviews the denial without deference or any presumption of correctness based upon the administrative record alone, without considering any extrinsic evidence. Hawkins v. Arctic Slope Reg’l Corp., 344 F. Supp. 2d 1331, 1335 (M.D. Fla. 2002) (citations omitted).

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In Parness v. Metro. Life Ins. Co., 291 F. Supp. 2d 1347 (S.D. Fla. 2003), the plaintiff argued that under the initial “de novo” step, the court could consider evidence outside the administrative record. Id. at 1356. The court disagreed, reasoning that in contrast with de novo review, it was inappropriate under the then-existing heightened arbitrary and capricious standard for the court to consider “evidence outside the administrative record which was not reviewed by [claim administrator] at the time it made its decision to deny [the plaintiff’s] benefits and substitute[e] its own judgment based upon that new evidence.” Id. at 1357; accord Tookes v. Metro. Life Ins. Co., 2006 WL 870313, at *12 n.8 (N.D. Ga. Mar. 31, 2006) (“Even in conducting this de novo step in the ‘heightened’ arbitrary and capricious analysis, the Court limits itself to the administrative record.”). In Richards v. Hartford Life & Acc. Ins. Co., 153 F. App’x 694 (11th Cir. 2005), the Eleventh Circuit upheld judgment for the defendant at the first step of the Williams analysis, and expressly stated that “[i]n ERISA cases, review is confined to the evidence that was before the administrator when the claim for benefits was denied,” such that the district court did not err when it refused to consider extrinsic evidence offered by the plaintiff to buttress her claim. Id. at 697 n.1. Similarly, in Eldridge, the court discussed the series of steps in the Williams analysis, noted that each step resulted in either progression to the next step or the end of the inquiry, and expressly stated that “the record is restricted to ‘the facts as known to the administrator at the time the decision was made.’” 2007 WL 117712, at *1 (quoting Jett v. Blue

1016

Cross & Blue Shield of Ala., Inc., 890 F.2d 1137, 1139 (11th Cir. 1989)). When applying a deferential standard of review, the Eleventh Circuit has long held that district courts must “look only to the facts known to the administrator at the time the decision was made to deny … coverage.” Lee v. Blue Cross/Blue Shield of Ala., 10 F.3d 1547, 1550 (11th Cir. 1994). See also Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1326 (11th Cir. 2001) (“[w]hether a claim decision is arbitrary and capricious requires a determination ‘whether there was a reasonable basis for [Reliance’s] decision based upon the facts known to the administrator at the time the decision was made.’”). In Jett v. Blue Cross & Blue Shield of Ala., Inc., for example, the Eleventh Circuit agreed that the district court “improperly fail[ed] to limit its consideration to the evidence that was before the [administrator] at the time [it] denied coverage.” 890 F.2d 1137, 1139 (11th Cir. 1989). Thus, “[p]ursuant to … arbitrary and capricious standard of review, the Court confines it[s] review to the administrative record as it existed at the time the administrator denied the claim for benefits.” Richards v. Hartford Life & Acc. Ins. Co., 356 F. Supp. 2d 1278, 1285 (S.D. Fla. 2004), aff’d, 153 F. App’x 694, 697 n.1 (11th Cir. 2005) (rejecting plaintiff’s contention that district court erred in refusing to consider extra-record evidence). See also Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241, 1246 (11th Cir. 2008) (“The court must consider, based on the record before the administrator at

1017

the time its decision was made, whether the court would reach the same decision as the administrator.”). Since Glenn, the Eleventh Circuit reiterated in an unpublished opinion that “Our case law is settled that we are limited to only those documents that were before the administrator” when applying the arbitrary and capricious standard of review. Townsend v. Delta Family-Care Disability & Survivorship Plan, 295 F. App’x 971, 976 (11th Cir. Oct. 8, 2008). Therefore, the court held that “the district court properly sustained [the administrator’s] objection to [the claimant’s] submission of documents outside the administrative record.” Id. Some district courts within the Eleventh Circuit have continued to hold that their task is to decide “whether, based on the ‘record before the administrator at the time the decision was made,’ the court would have reached the same conclusion as the administrator.” Richey v. Hartford Life & Acc. Ins. Co., 2009 WL 1010057, at *1 (M.D. Fla. Apr. 15, 2009) (quoting Glazer, 524 F.3d at 1246)). See also Bell v. Shenandoah Life Ins. Co., 589 F. Supp. 2d 1368, 1374 (M.D. Ga. 2008) (“[T]he Court ‘must consider based on the record before the administrator at the time [the] decision was made, whether [it] would reach the same decision as the administrator.’”) (quoting Glazer, 524 F.3d at 1246). This is because “[a]dmission of evidence not considered by the plan administrator is ‘ruled out’ on deferential review.” Wells v. Unum Life Ins. Co. of Am., 593 F. Supp. 2d 1303, 1305 (N.D. Ga. 2008). Thus as one district court explained:

1018

First, the Court should determine whether the administrator was vested with discretion under the terms of the policy. While this is generally left until later in the process, see Williams …, it is important from the very beginning because it affects the evidence the Court can consider. If the administrator had discretion, the Court may only consider the evidence the administrator was aware of at the time [of] the decision when determining whether the decision was de novo wrong. Scippio v. Fla. Combined Life Ins. Co., 585 F. Supp. 2d 1317, 1328 (N.D. Fla. 2008) (citing Glazer, 524 F.3d 1241 (footnote omitted)). Notwithstanding the foregoing line of cases, which suggest that evidence outside the administrative record is not admissible in ERISA benefits cases, the Eleventh Circuit stated in Doyle v. Liberty Life Assur. Co. of Bos., 542 F.3d 1352, 1363 n.5 (11th Cir. 2008), that there may be cases in which extra-record evidence could be considered. In a footnote, the court in Doyle stated that there were no procedural issues with respect to the Rule 56 motion for summary judgment and that “the case for both parties was bottomed on the administrative record.” Id. The court went on to state in dicta that “[i]t seems preferable in a case like this for the district court to determine by conference or stipulation whether either party desires to present evidence beyond the administrative record, and if not, take the case under submission and enter findings of fact and conclusions of law.” Id.

1019

Perhaps this is based on language in Glenn that hinted that evidence outside the record be admissible on the issue of whether the conflict of interest influenced the adverse benefits determination. Specifically, the Court in Glenn cited secondary authorities and stated in dicta that The conflict of interest at issue here, for example, should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration…. It should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy, for example, by walling off claims administrators from those interested in firm finances, or by impos ing management checks that penalize inaccurate decision-making irrespective of whom the inaccuracy benefits…. Glenn, 554 U.S. at 117 (citations omitted). B. Other Evidence beyond the Administrative Record Where a court in an ERISA case finds that the plan language at issue is ambiguous, the issue is one of contract interpretation and extrinsic evidence going to the issue of intent is admissible to resolve the ambiguity. See Adams v. Thiokol Corp., 231 F.3d 837, 844 (11th Cir. 2000) (heightened arbitrary and capricious review case).

1020

C. Evidentiary Determinations

Value

of

Social

Security

This circuit has held that Social Security benefits determinations may be considered in the course of the court’s review of the plan administrator’s denial of benefits. See Whatley v. CNA Ins. Co., 189 F.3d 1310, 1314 (11th Cir. 1999); Kirwan v. Marriott Corp., 10 F.3d 784, 789 (11th Cir. 1994). The court will not apply any particular weight to the decision but will likely analyze the administrator’s consideration of the Social Security determination in arriving at its decision to deny benefits. See Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1452 n.5 (11th Cir. 1997). D. Treating Physician Rule Following Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825–28 (2003), the Eleventh Circuit held in Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d 1276, 1287 (11th Cir. 2003), that it was error for the district court to give “special weight to the opinions of [plaintiff’s] treating physicians.” See also Jett v. Blue Cross & Blue Shield of Ala., Inc., 890 F.2d 1137, 1140 (11th Cir. 1989) (rejecting the treating physician rule in ERISA cases). VIII. ERISA Procedural Issues A. Methods of Adjudication Counsel for ERISA participants and beneficiaries, as well as defense counsel in benefits cases, typically make use of Federal Rule of Civil Procedure 56 summary judgment 1021

motions in order to resolve the cases short of a bench trial or, at a minimum, to resolve important legal issues such as the standard of review applicable in the case and the admissibility of evidence. However, the prevalence of summary judgments granted in this circuit varies somewhat with the applicable standard of review. In cases governed by the “arbitrary and capricious” standard of review, where the plan document has conferred discretion on the administrator to determine entitlement to benefits or to construe plan terms, the courts have been more willing to entertain summary judgment as an expedient way of resolving the case. HCA Health Servs. of Ga. v. Employers’ Health Ins. Co., 240 F.3d 982 (11th Cir. 2001); Lee v. Blue Cross & Blue Shield, 10 F.3d 1537 (11th Cir. 1994); Seales v. Amoco Corp., 82 F. Supp. 2d 1312 (M.D. Ala. 2000) (summary judgment granted in breach of fiduciary duty claim analyzed under arbitrary and capricious standard); Hert v. Prudential Ins. Co., 650 F. Supp. 2d 1180, 1190 (S.D. Fla. 2009) (on summary judgment, court inquires whether evidence viewed in light most favorable to the nonmoving party could support rational determination that plan administrator acted arbitrarily). In these cases, the court often will review a stipulated administrative record along with the parties’ briefs and make a ruling without the necessity of a hearing or a bench trial. In such cases, courts generally will not introduce any additional evidence so it makes sense for the litigants and the court to address the issues on summary judgment. Prior to Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), courts in the Eleventh Circuit frequently disposed 1022

of ERISA benefit cases on summary judgment once the administrative record as supplemented by any additional evidence as to the effect of a conflict was considered. In Moody v. Skaliy, 2007 WL 1496691 (N.D. Ga. 2007), the court rendered a decision in a heightened arbitrary and capricious standard case on summary judgment. See also Cowart v. Metro. Life Ins. Co., 444 F. Supp. 2d 1282 (M.D. Ga. 2006); Santini v. Cytec Ind., Inc., 537 F. Supp. 2d 1230 (S.D. Ala. 2008) (summary judgment appropriate in severance dispute analyzed under heightened scrutiny standard). After Glenn, it remains to be seen whether summary judgment will be more prevalent in cases involving a demonstrable conflict in light of the Court’s rejection of any burden-shifting or heightened scrutiny analysis. One recent district court clearly entertained summary judgment practice in a conflict case. See Howard v. Hartford Life & Acc. Ins. Co., 2011 U.S. Dist. LEXIS 29118 (M.D. Fla. 2011). In cases governed by the de novo standard of review, it is not uncommon for counsel to file motions for summary judgment in this circuit, but summary judgment is more difficult to obtain. See Kirwan v. Marriott Corp., 10 F.3d 784, 788 (11th Cir. 1994); Whatley v. CNA Ins. Co., 189 F.3d 1310 (11th Cir. 1999); Moon v. Am. Home Assur. Co., 888 F.2d 86 (11th Cir. 1989). Because the court is not required to limit its review in such cases to the record before the administrator, and may consider facts developed through discovery and other documentation found relevant, it is more likely that the court could find an issue of fact preventing summary judgment. Kirwan, 1023

10 F.3d at 790; Moon, 888 F.2d at 89. See also Zorn v. Principal Life Ins. Co., 2010 U.S. Dist. LEXIS 84721 (S.D. Ga. 2010) (utilizing Federal Rule of Civil Procedure 52, but permitting trial on the papers “resembling summary judgment”). Thus, while summary judgment practice is very common in ERISA benefits litigation in the Eleventh Circuit, the success of such motions often will depend on the appropriate standard of review. Even if a court does find an issue of fact for trial, it is not uncommon for the judge to at least determine the appropriate standard of review to be applied at the bench trial. Summary judgment motions remain an important tool, therefore, to litigants in this circuit, not only for narrowing the issues but also for purposes of a potential settlement short of a bench trial. B. No Right to Jury Trial The Eleventh Circuit has consistently held that there is no right to a jury trial in ERISA benefits cases. See Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d 1276 (11th Cir. 2003); Blake v. UnionMutual Stock Life Ins. Co., 906 F.2d 1525, 1526 (11th Cir. 1990); Chilton v. Savannah Foods & Ind., Inc., 814 F.2d 620, 623 (11th Cir. 1987); Howard v. Parisian, 807 F.2d 1560 (11th Cir. 1987). While there have been some attempts to get around these rulings, to date no litigants have been successful and these holdings are uniformly followed despite some contrary rulings from other circuits. C. Admissibility of Evidence 1024

The evidence that will be admissible in an ERISA trial in the Eleventh Circuit also depends upon the standard of review to be applied by the court to the benefits decision. A district court in this circuit conducting a de novo review of an administrative denial of benefits is not limited to the facts available at the time of the administrator’s determination and it may consider facts developed in discovery and expert testimony. See Kirwan, 10 F.3d at 789; Moon, 888 F.2d at 89 (on summary judgment, court reviewed affidavits and Social Security claim materials as well as medical records); GIW Ind., Inc. v. Trevor, Steward, Burton & Jacobsen, 895 F.2d 729, 731 (11th Cir. 1990) (one-day bench trial included expert testimony); Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321 (11th Cir. 2001) (trial court admitted expert, lay, and medical testimony); Zorn, 2010 U.S. Dist. LEXIS 84721 (permitting post-record evidence to be admitted in a de novo case). In an arbitrary and capricious standard case, however, the evidence that the court may consider for purposes of reviewing the decision to deny benefits or interpret plan terms is limited to the administrative record and only those facts presented to the administrator at the time of the claim. Jett v. Blue Cross & Blue Shield, 10 F.3d 1547 (11th Cir. 1994); Brown v. BellSouth Telecomms., Inc., 73 F. Supp. 2d 1308 (M.D. Fla. 1999); Stvartak v. Eastman Kodak Co., 945 F. Supp. 1532, 1534 (M.D. Fla. 1996); Daniels v. Hartford Life & Acc. Ins. Co., 898 F. Supp. 909, 912 (N.D. Ga. 1995). Heretofore, in cases decided under the former “heightened scrutiny” applicable where a conflict exists due to benefits 1025

being paid out of the funds of the claim fiduciary (often an insurance company), courts would first review the entire administrative record and the disputed plan terms to determine whether the decision to deny benefits was right or wrong. See HCA Health Servs. of Ga. v. Emp’rs Health Ins. Co., 240 F.3d 982, 993 (11th Cir. 2001). The court generally would not review evidence beyond the administrative record or permit additional testimony at trial unless there remained some issue as to whether there is in fact a conflict of interest and whether the defendant can remove the “taint” of the apparent conflict of interest. Id. In such a case, the court would permit the defendant to present evidence as to the funding of the plan, the lack of any claim denial incentives (or conversely the plaintiff may introduce countering evidence), the decision’s benefit to the plan as a whole, or statistical evidence tending to negate the influence of any conflict in the determination of the claim. Brown v. Blue Cross & Blue Shield of Ala., 898 F.2d 1556, 1568–69 (11th Cir. 1990); HCA Health, 240 F.3d at 1005. The weight of such evidence at trial was open to question, however, because typically once a court determined that there was a conflict of interest it was more inclined to find in favor of the participant or beneficiary and against the plan insurer without getting into a detailed analysis of the evidence introduced to purge the taint of an asserted conflict. See HCA Health, 240 F.3d at 1005; Lake v. Unum Life Ins. Co., 50 F. Supp. 2d 1243, 1256 (M.D. Ala. 1999) (court analyzed stated reasons for claims decision in denial letters on issue of “taint of self interest”); Brown v. BellSouth Telecomms., Inc., 73 F. Supp. 2d 1308, 1324 (M.D. Fla. 1999) (primarily analyzing reasons for defendant’s decision on “taint” 1026

issue); Calhoun v. Complete Health, Inc., 860 F. Supp. 1494 (S.D. Ala. 1994) (rejecting administrator’s proof of consistent plan interpretation as evidence that determination was not infected by self-interest). If the carrier purged the taint of self-interest, the court would then examine whether the “wrong” claim decision was nevertheless “reasonable.” Id. at 994. After Glenn, however, in which the Court rejected heightened scrutiny in favor of an examination of conflict as one factor to consider in evaluating whether a conflicted claim fiduciary abused its discretion, the admissible evidence in such a case in this circuit is still unclear. The Supreme Court did provide some guidance as to addressing the conflict, stating that the conflict might have “great importance” if the facts of the case demonstrate that the conflict affected the claim decision, including circumstances whether an “insurance company administrator has a history of biased claim administration.” Id. This suggests that some evidence of the alleged effects of a conflict, perhaps information concerning claim denial incentives or a history of denials, would be admitted into evidence to supplement the administrative record. As noted elsewhere in this chapter, the district court cases in this circuit addressing discovery are split. Compare Wells v. Unum Life Ins. Co., 593 F. Supp. 2d 1303 (N.D. Ga. 2008) (in which the court barred extra-record discovery even in the face of an apparent conflict because a potential conflict of interest was “only one factor in the court’s analysis”), with Adams v. Hartford Life & Acc. Ins. Co., 589 F. Supp. 2d 1366 (N.D. Ga. 2008) (allowing extra-record discovery as to the “surrounding circumstances to determine whether 1027

such a conflict affected the benefits decision”). If such discovery is permitted it seems likely that the court would permit the introduction of evidence derived therefrom and then address it to determine whether it affected the claim decision to a sufficient degree to cause the decision to be overturned as an abuse of discretion. What is clear after Glenn is that this circuit will no longer apply the burdenshifting order of proof announced in Brown v. Blue Cross & Blue Shield of Ala., 898 F.2d 1556 (11th Cir. 1990). D. Ambiguous Plan Language and Extrinsic Evidence Where a court in an ERISA case finds that the plan language at issue is ambiguous, the issue is one of contract interpretation, and extrinsic evidence going to the issue of intent is admissible to resolve the ambiguity. See Adams v. Thiokol Corp., 231 F.3d 837, 844 (11th Cir. 2000) (heightened arbitrary and capricious review case); Stewart v. KHD Deutz, 980 F.2d 698, 702 (11th Cir. 1993) (appeal of decision on denial of preliminary injunction as to right to modify plan terms). E. Social Security Determinations This circuit has held that Social Security benefits determinations may be considered in the course of the court’s review of the plan administrator’s denial of benefits. See Kirwan, 10 F.3d at 789; Whatley, 189 F.3d at 1314. The court will not apply any particular weight to the decision but may analyze the administrator’s consideration of the Social Security determination in arriving at its decision to

1028

deny benefits. See Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1452 n.5 (11th Cir. 1997). F. Reported Trials A number of ERISA benefits cases have proceeded to bench trial in the district courts in the Eleventh Circuit. See Wimbush-Bowles v. GTE Serv. Corp., 2004 WL 392918 (11th Cir. 2004); Ogden v. Blue Bell Creameries U.S.A., Inc., 348 F.3d 1284 (11th Cir. 2003); Buce v. Allianz Life Ins. Co., 247 F.3d 1133 (11th Cir. 2001); Smith v. Am. Int’l Life Assur. Co., 50 F.3d 956 (11th Cir. 1995); GIW Ind., Inc v. Trevor, Steward, Burton & Jacobsen, Inc., 895 F.2d 729 (11th Cir. 1990). Typically, such a bench trial merely involves the presentation of trial briefs by the respective lawyers to the court along with a stipulated administrative record regarding the claim denial and testimony if the matter is reviewed de novo. See Alford v. Blue Cross & Blue Shield of Ala., 910 F. Supp. 560, 561 (N.D. Ala. 1995). The “trial” in an arbitrary and capricious case would ordinarily consist of a hearing before a judge where each lawyer would present arguments from the trial brief and as to the law and interpretation of the facts in the administrative record. See Schindler v. Metro. Life Ins. Co., 141 F. Supp. 2d 1073, 1075 (M.D. Fla. 2001). However, sometimes courts in the circuit allow live testimony as to certain issues even in an arbitrary and capricious case. See Lipsey v. Union Underwear Pension Plan, 146 F. App’x. 326 (11th Cir. 2005). Trials often resemble a hearing on a motion for summary judgment, as typically all of the materials have previously been presented to the court, with the difference being that the court is not reviewing to determine whether 1029

there exists an issue of fact and one side is entitled to judgment as a matter of law based upon the lack of any issue of fact under the Rule 56 analysis. After bench trial, many district courts ask the parties to submit posttrial briefs with proposed findings of fact and conclusions of law. See Newell v. Prudential Ins. Co., 904 F.2d 644, 648 (11th Cir. 1990); Herman v. Reinecke Agency, 37 F. Supp. 2d 1338, 1339 (M.D. Fla. 1998). The court’s determination is thus governed by the appropriate standard of review applicable to the case. G. ERISA Class Actions The Eleventh Circuit has certified a number of class actions in ERISA cases and has appeared to analyze these types of cases no differently than any other putative class claims. In Piazza v. Ebsco Indus., Inc., 273 F.3d 1341 (11th Cir. 2001), the court addressed the appropriateness of class certification in an ERISA action brought by a former employee and participant in the plan against the employer, directors, and certain trustees and fiduciaries of the plan complaining of the employer’s stock buyback. Citing traditional class action case law, the court addressed the requirements for class action certification: numerosity, commonality, typicality, and adequacy of representation. The court ultimately found that a former employee whose professional malpractice claims against accountants who allegedly undervalued the employer’s stock, which the ERISA plan sold back to the employer, could not be an adequate class representative for other employees alleging malpractice. The court also found that the class representative did not have standing to assert claims 1030

relating to conduct before he became an employee with regard to the ERISA breach of fiduciary duty claims and did not have standing to raise a claim for alleged breaches occurring after his retirement. Significantly, the defendants contended that because Piazza was not individually injured by the plan’s 1994 sale of the Ebsco stock, his only ERISA claim was “for appropriate relief” to the plan for alleged breaches of fiduciary duty. Because such a claim was brought on behalf of the plan itself only, any recovery will benefit the plan and, indirectly, the members of the class. Defendants argued that allowing individuals to opt out of the class action and pursue their own suits under ERISA § 502(a)(2) would require the defendants to defend against multiple suits, each asserting what is actually one claim belonging to the plan. Therefore, defendants argued, the requirements of Federal Rule of Civil Procedure 23(b)(1) were met because “inconsistent or varying adjudications with respect to individual members of the class” on the claim would “establish incompatible standards of conduct” for them. The court agreed and found that the district court had abused its discretion to certify the § 502(a)(2) claim under Rule 23(b)(3). In Hudson v. Delta Air Lines, Inc., 90 F.3d 451 (11th Cir. 1996), certain retirees brought a class action against the airline based on alleged ERISA violations and a pendant breach of contract claim. The Eleventh Circuit reviewed the district court’s denial of the motion for class certification and dismissal of pendant state claims for lack of jurisdiction on the interlocutory appeal. The court upheld the district court’s denial of class certification by 1031

agreeing that commonality was not satisfied with regard to allegations that the employer misled retirees as the claims were not susceptible to class-wide proof. The court in Specialty Cabinets & Fixtures Inc. v. Am. Equitable Life Ins. Co., 140 F.R.D. 474 (S.D. Ga. 1991), conditionally certified a class action brought by beneficiaries who sought to recover unpaid benefits and for damages for breach of fiduciary duties, for settlement purposes only. The court concluded that all four factors for class certification had been met. In Jones v. Am. Gen. Life & Acc. Ins. Co., 213 F.R.D. 689 (S.D. Ga. 2002), the court certified class claims by a retiree on behalf of a class seeking to enjoin a successor employer from canceling life insurance for retirees. The court certified the injunctive class with respect to a breach of contract claim regarding the termination of life insurance coverage but refused to certify the injunctive class with respect to promissory estoppel claims. H. Proper Party Defendant The Eleventh Circuit has held that the proper party defendant in an ERISA benefits case is the party that controls administration of the plan. See Garren v. John Hancock Mut. Life Ins. Co., 114 F.3d 186, 187 (11th Cir. 1997) (per curiam). In Oliver v. Coca Cola Co., 497 F.3d 1181 (11th Cir. 2007), the court found that a third-party claims administrator was not a plan administrator and thus not a proper party defendant when the plan administrator retained discretion to make final claims decisions and the service provider merely made ministerial claims decisions. Id. at 1195. 1032

In Hamilton v. Allen-Bradley Co., 244 F.3d 819 (11th Cir. 2001), the court held that the plan document is not dispositive with respect to the identity of the plan administrator, and that it is necessary to examine “the factual circumstances surrounding the administration of the plan, even if these factual circumstances contradict the designation in the plan document.” Id. at 824. In Rosen v. TRW, Inc., 979 F.2d 191 (11th Cir. 1992), the court reversed a dismissal, for failure to state a claim, of a complaint against an employer not named in the plan document as an administrator, and permitted the plaintiff to pursue “the claim that the company was the de facto plan administrator and the committee was an inactive entity.” Id. at 193–94. Thus, this circuit has applied a de facto plan administrator approach to hold employers, on occasion, to be proper party defendants. IX. Remedies In Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), a class of CIGNA employees alleged that CIGNA did not give them proper notice of changes to a defined pension benefit plan, claiming that communications describing the conversion were intentionally misleading. Id. at 1870–71. The class asserted that CIGNA changed the plan to provide less generous benefits, and violated ERISA with communications to employees that, inter alia, the changes would “significantly enhance” the retirement program. Id. at 1871–74. The district court found that CIGNA failed to disclose detrimental features of the new plan, and that CIGNA’s “descriptions of the plan were incomplete and inaccurate,” and “intentionally misled its employees.” Id. at 1874. 1033

Invoking § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(3), the district court ordered and the Second Circuit affirmed (1) that the terms of the plan be reformed, (2) that CIGNA enforce the plan as reformed, and (3) that CIGNA pay retired beneficiaries money owed under the plan as reformed. Id. at 1879–80. The Supreme Court held that § 502(a)(1)(B) did not authorize this relief, but § 502(a)(3) did, because the remedies “resemble[d] traditional forms of equitable relief,” namely, reformation, estoppel, and surcharge. Id. A few district courts in the Eleventh Circuit have addressed the scope of available remedies under ERISA in light of Amara. In Guididas v. Cmty. Nat’l Bank Corp., 2012 WL 5974984 (M.D. Fla. Nov. 5, 2012), a plan fiduciary sought to obtain “contribution and indemnification” under section 502(a)(3) from alleged cofiduciaries. The court held that the claim was not cognizable under 502(a)(3), noting that although “[a] fiduciary’s right to contribution and indemnification from co-fiduciaries falls squarely within traditional equitable relief,” section 502(a)(3) “refers to violations of ERISA or enforcement of a plan’s terms, not to the equitable remedies available to a breaching fiduciary against another fiduciary.” Id. at *2. The court nevertheless allowed the claim to proceed, holding that “rights to contribution and indemnity from co-fiduciaries under ERISA are properly permitted pursuant to federal common law based upon traditional trust law, the cornerstone of ERISA’s foundation.” Id. at *6.

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In Schwade v. Total Plastics, Inc., 837 F. Supp. 2d 1255 (M.D. Fla. 2011), the court discussed the circuit split engendered by Zurich Am. Ins. Co. v. O’Hara, 604 F.3d 1232 (11th Cir. 2010), and U.S. Airways, Inc. v. McCutchen, 663 F.3d 671 (3d Cir. 2011) [see infra section XIV], and recently resolved by the Supreme Court in U.S. Airways v. McCutchen, 133 S. Ct. 1537 (2013). The court rejected the Third Circuit’s view in McCutchen that Amara and other Supreme Court authority authorized “broad power to alter the terms of the plan in favor of a beneficiary based on an amorphous notion of fairness.” Schwade, 837 F. Supp. 2d at 1277. Rather, the court stated that Amara “allows a court to remedy a plan’s fraud against beneficiaries, but says nothing more.” Id. In Fitch v. Unum Life Ins. Co. of Am., 2012 WL 6610748 (N.D. Ala. Dec. 19, 2012), the court addressed whether a group life insurance beneficiary could seek reformation of an ERISA plan under § 502(a)(3), where the insured had failed to convert his group coverage to individual insurance within the time period mandated by the plan. A co-worker attempted to send the insured a conversion form, but sent it to the incorrect email address. After his employment ended, the insured participant failed to convert the insurance and his group coverage terminated. The beneficiary’s claim for benefits was denied by Unum, and the beneficiary brought suit against Unum seeking, inter alia, equitable reformation of the plan’s conversion provisions. Citing Amara, the court noted that the “traditional equitable remedy” of reformation allows a court to rewrite the terms of a written contract so that it conforms to the 1035

parties’ actual agreement, and that the court may then enforce the reformed agreement as written. Id. at *8. The court emphasized that contract reformation is available when (1) a valid contract exists, and (2) because of a mutual mistake between the parties or a unilateral mistake by the party seeking reformation coupled with the inequitable conduct of the other party, the contract is not an expression of the parties’ true agreement. Id. at *9. The court held that the plaintiff failed to satisfy the second prong, because the insured knew he had to convert his coverage but failed to do so and further, because Unum engaged in no “inequitable conduct.” Id. The failure to send the conversion form to the correct email address was committed by a co-worker at the insured’s employer, not Unum, whose “only responsibility under the plan [was] to examine claims and pay the meritorious ones.” Id. X. Fiduciary Liability Claims A. Definition of Fiduciary 1. Employers Unlike other circuits where an employer is not allowed to be designated as a co-plan administrator for the purposes of ERISA liability, in the Eleventh Circuit an employer will be regarded as a fiduciary, even if it is not designated as such in the plan document, if it exercises “sufficient decisional control over the claim process.” In Hamilton v. Allen-Bradley Co., 244 F.3d 819 (11th Cir. 2001), summary judgment for the employer was vacated and remanded for further determinations because the facts supported a fiduciary duty claim against a party who 1036

acted as a co-administrator of the plan. The court’s determination was based on the fact that the employer had effectively acted as a gatekeeper to the claims made on the insured disability plan by fielding eligibility questions from participants and processing their claims. Employees could not file a benefit claim directly with Unum, the insurer of the plan, but were required to go through the employer’s human resources department when they sought to apply for disability benefits. The court determined that under these circumstances, the employer was deemed accountable for fiduciary responsibility under ERISA and could be held liable if a trier of fact found its actions to have been wrongful. ERISA, however, does not prevent an employer from acting in accordance with its interests as employer when not administering the plan or investing its assets. In Phillips v. Amoco Oil Co., 799 F.2d 1464 (11th Cir. 1986), the court held that the defendant employer was not acting in its ERISA fiduciary capacity when it negotiated an agreement to sell its business operations, even if such sale affected contingent and nonvested future retirement benefits of its employees. Relevant to that determination was the fact that the sale agreement had no effect on the vested retirement benefits earned under the plan and the defendant had continued to fulfill its obligations in that regard. ERISA fiduciary status is not omnipresent in a person who serves in multiple capacities. In the Eleventh Circuit, people assume fiduciary status under ERISA only when and to the extent that they function in their capacity as 1037

plan fiduciaries, not when they conduct business that is not regulated by ERISA. In Local Union 2134, United Mine Workers of America v. Powhatan Fuel, Inc., 828 F.2d 710, 713–14 (11th Cir. 1987), the court vacated judgment entered against the president of the corporate plan sponsor after determining that the defendant had served in two distinct roles. The court concluded that the defendant’s decision to pay business expenses instead of health insurance premiums, in an attempt to keep the corporation from financial collapse, was a business decision made in his capacity as president of the corporation, not as fiduciary of an ERISA plan. The court did not dismiss the fiduciary claim, however, and remanded it for fact determinations as to whether this defendant had made misrepresentations regarding the status of the health plan. See also Gelles v. Skrotsky, 983 F. Supp. 1398 (M.D. Fla. 1997), aff’d, 189 F.3d 484 (11th Cir. 1999) (where defendants’ decisions, which affected the plan, were found not to be in breach of their fiduciary duties to the plan because they were business decisions performed in that capacity). Fiduciary status has been conferred to an employer as a basis for standing to bring an ERISA action against other cofiduciaries even when the employer has delegated most of the administration functions and discretion over claims determination to other entities. In Hope Center, Inc. v. Well America Group, Inc., 196 F. Supp. 2d 1243, 1247–48 (S.D. Fla. 2002), the court found that the plaintiff employer exercised enough discretionary authority over the plan so as to characterize it as a fiduciary, permitting it to sue under 29 U.S.C. § 1132(a)(2) and (3) for losses caused to the plan due to 1038

unpaid health benefit claims. In that case, the employer submitted evidence to establish that it exercised its fiduciary duty by (1) engaging the services provided by the defendant, the Well America Group (WAG), for the administration of the plan; (2) permitting WAG to appoint a third-party claims administrator; (3) exercising its right to terminate the plan for cause; (4) providing employees with forms and information about the plan; (5) assisting employees who were experiencing problems with their coverage under the plan; (6) maintaining a file of all unpaid claims and calling medical providers on behalf of plan beneficiaries; (7) employing efforts on behalf of the plan beneficiaries to obtain claims itemizations from the medical providers and forwarding them to WAG for processing; and (8) terminating the plan upon learning that WAG was under investigation by the State of Florida. Even when an employer holds fiduciary status in regard to the plan and to its participants, it will not be considered a fiduciary with respect to other cofiduciaries, such as the insurance carrier covering the plan benefit. See First Nat’l Life Ins. Co. v. Sunshine-Jr. Food Stores, Inc., 960 F.2d 1546 (11th Cir. 1992) (court declined to find the defendant plan sponsor an ERISA fiduciary as to the claimant insurer when simply processing claims). 2. Corporate Officers No ERISA fiduciary status will be conferred on a corporate officer who is not involved in or responsible for the management or administration of an employee benefit plan. See Smith v. Delta Air Lines Inc., 422 F. Supp. 2d 1310, 1326 (N.D. Ga. 2006) (where fiduciary breach 1039

claims were dismissed against the members of the administrative committee, even though it was a named fiduciary in the plan documents, because they exercised no discretion on investment decisions over the plan assets). But in dicta, this court stated that it was possible for fiduciary liability to attach to corporate officers who fail to disclose material information regarding the financial health of the company or who appoint imprudent members to the committee that oversees the investment decisions concerning plan assets. In Local Union 2134, 828 F.2d 710 at 712–13, the court dismissed an ERISA fiduciary claim against the secretarytreasurer of the corporate plan sponsor after determining that his duties in such capacity were “purely ministerial.” The court based its determination on the fact that this particular defendant had no authority or control over the disbursement of funds toward the health plan. Further, corporate officers will not be held personally liable for unpaid employer contributions unless the plan agreement contains “clear contractual language or a clearly shared intent of the parties” in that regard. In ITPE Pension Fund v. Hall, 334 F.3d 1011, 1013 (11th Cir. 2003), an ERISA plan brought a fiduciary claim against the general manager and the president of the employer, seeking to hold them personally liable for unpaid contributions to a retirement fund. The defendants argued that they could not be held liable for breach of fiduciary duty over the claimed contributions because, since the contributions were unpaid, they were not yet “held” or “acquired” by the fund, and therefore could not be considered assets of the fund. The court found that 1040

fiduciary liability could not be imposed on these officers under ERISA if the unpaid employer contributions could not be deemed to be “assets” of the fund within the meaning of 29 U.S.C. § 1002(21)(A). 3. Insurers Insurers can be conferred fiduciary status either by designation in the plan document or by their actions in the administration of plan benefits. However, an insurer will not be regarded as an ERISA fiduciary for merely selling its products to a plan. See Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267, 1278 (11th Cir. 2005) (involving life insurance policies purchased from the defendant through a “wealth-op deferred compensation agreement” entered into by the plaintiffs with their employer). In the Eleventh Circuit, an insurer can be assessed fiduciary liability for breaches incurred by other parties, such as the employer or a third-party administrator, if the insurer had knowledge of the breach and failed to take reasonable steps to remedy it, or otherwise took affirmative action to conceal the breach. In Willett v. Blue Cross & Blue Shield, 953 F.2d 1335 (11th Cir. 1992), the court held that the plan’s insurer could be held liable for the employer’s failure to inform participants that their health coverage had lapsed due to nonpayment of premiums, even though the main responsibility for this notification had been delegated to the employer. In that case, the court vacated judgment and remanded the case for the trier of fact to determine whether the insurer could have been imputed knowledge of the breach, as there was 1041

conflicting evidence suggesting that the insurer had received multiple calls from participants and medical providers inquiring about coverage after the lapse date and the insurer had then misrepresented the availability of coverage. Notwithstanding the above, in the Eleventh Circuit an insurance company will not be deemed an ERISA “fiduciary” if its function is limited to the performance of administrative functions and claims processing within a framework of rules established by an employer, especially when the claims processor has not been granted the authority to review benefits denials and make the ultimate decisions regarding eligibility. See Baker v. Big Star Div. of the Grand Union Co., 893 F.2d 288, 290 (11th Cir. 1989) (citing Howard v. Parisian, Inc., 807 F.2d 1560, 1564–65 (11th Cir. 1987)). 4. Third-Party Plan Administrators A plan administrator who merely performs claims processing, investigatory, and record-keeping duties is not a fiduciary under ERISA. In Baker, 893 F.2d at 290, the court declined to confer fiduciary status on Connecticut General, a plan administrator who processed claims and disbursed benefit payments pursuant to plan terms under an administrative services agreement with Grand Union. Relevant to the court’s decision was the fact that Connecticut General did not contract to provide Grand Union with insurance benefits for Grand Union employees and that Grand Union reserved the right to review any and all claim denials. Based on these facts, the court concluded that Grand Union did no more than 1042

“rent” the claims processing department of Connecticut General to review claims and determine the amount payable in accordance with the terms and conditions of the plan. However, a third-party claims administrator will hold ERISA fiduciary status if it exercises discretion in the allocation of available funds, if its actions serve to conceal the plan’s financial distress, or if the administrator makes disbursements of benefits that exceed those contemplated in the terms of the plan. See Autonation Inc. v. United Healthcare Ins. Co., 423 F. Supp. 2d 1265, 1272–73 (S.D. Fla. 2006) (fiduciary breach claim was sustained against insurer, which served as plan administrator to self-funded health plan, because it paid out more benefits than afforded by the plan). See also Hope Ctr., Inc. v. Well Am. Group, Inc., 196 F. Supp. 2d 1243, 1248 (S.D. Fla. 2002) (where the court found SMA, a third-party claims administrator, to have been a fiduciary to the plan because it exercised discretion in its decision to pay administrative fees before paying benefit claims and it did not promptly notify plan participants and beneficiaries of the financial problems affecting the plan). 5. Banks The Eleventh Circuit Court acknowledges that a bank, like any other organization, could conceivably assume ERISA fiduciary status if it exercises discretionary power over a plan’s assets. However, the court has followed the approach adopted by the Ninth Circuit to hold that no such liability will attach to an entity that assumes 1043

discretionary authority or control over plan assets if that discretion is sufficiently limited by a preexisting framework of policies, practices, and procedures. In Useden v. Acker, 947 F.2d 1563, 1574–75 (11th Cir. 1991), the court affirmed summary judgment for the defendant bank determining that the powers it had exercised as a secured commercial lender over the assets of an ERISA profit-sharing plan did not give rise to the amount and nature of discretionary control under which fiduciary responsibility is premised. In that case, the defendant bank had issued a short-term loan to the plan. The plan defaulted on the loan and consequently, the bank acquired and sold the plan assets that had been pledged to guarantee the loan. The court noted that although the rights given to the bank under the loan agreement created an “authority” over the plan assets, they were remedies typical of arm’s-length commercial loan agreements and were limited by a fixed framework—the statutory and common law, the terms of the loan, and the dictates of banking industry custom. 6. Legal Counsel The Eleventh Circuit court has also been reluctant to extend fiduciary status under ERISA to attorneys who provide legal services to the plan or to its participants. The standard adopted in this circuit inquires whether the attorney has “departed from the usual functions of a law firm or otherwise (has) effectively or realistically controlled the Plan.” Id. at 1577–78. Usden also involved ERISA fiduciary claims against a law firm that served as outside counsel to the plan on an as-requested basis. The court rejected the plaintiff’s contention that Greenberg, 1044

Traurig had acted outside the usual professional function of attorneys by providing business and financial advice in regard to a loan taken out by the plan. The court further held that the commingling of legal advice with incidental business observations, especially when this advice is proffered to businesspersons of some sophistication, will not automatically confer fiduciary status on attorneys and thus expose them to ERISA liability. The court supported its conclusion by reasoning that ERISA does not contemplate an allocation of liability that will deter consultants such as attorneys from assisting plans. The Useden rationale was upheld in a case brought against the attorney of a plan participant who handled a personal injury case. In Chapman v. Klemick, 3 F.3d 1508, 1510–11 (11th Cir. 1993), an ERISA plan sought to impose fiduciary liability on an attorney who had obtained an insurance settlement for an accident involving a plan participant. The plan had obtained from the participant a subrogation agreement to recover the medical benefits disbursed by the plan in relation to the participant’s treatment of injuries arising from the accident. The plan was unsuccessful in collecting its subrogation claim from the attorney holding the settlement funds through an ERISA action since the court determined that the attorney could not be conferred fiduciary status under the Useden standard. In reaching that conclusion, the court reflected on the fact that the attorney had rendered professional services, not to the plan, but to an individual beneficiary, in connection with a matter unrelated to the plan. 7. Investment Advisors 1045

Investment advisors with authority to manage the funds of a plan will be held accountable for the fiduciary duties established by ERISA. In GIW Industries, Inc. v. Trevor, Stewart, Burton & Jacobsen, Inc., 895 F.2d 729, 731 (11th Cir. 1990), the court imposed fiduciary liability on the investment manager hired by the plan sponsor to strategize and adopt an investment plan for the retirement fund. Relevant, although not dispositive to the ruling, was the fact that the plan sponsor had delegated to the defendant sole authority over the investment of the retirement fund. .

8. Plan Participants Plan participants cannot be deemed fiduciaries, even if designated as such, if they do not meet the definitional standard for an ERISA fiduciary. In Herman v. NationsBank Trust Co., 126 F.3d 1354, 1367–68 (11th Cir. 1997), the court held that the participants of the Polaroid ESOP plan could not be considered ERISA fiduciaries with regard to the disposition of unallocated shares because they did not knowingly exercise control over these plan assets. That case involved an action brought by the Secretary of Labor against the plan trustee, NationsBank, for failing to exercise independent judgment in responding to competing tender offers for ESOP’s shares. The bank’s defense was based on the contention that the disposition of the unallocated shares was directed by the participants by virtue of a mirror voting provision, where their action or inaction regarding stocks offered would control the disposition of unallocated shares with respect to tender offers. In rejecting NationsBank’s contention that the plan participants were the fiduciaries responsible 1046

for the manner in which unallocated shares were disposed of, the court stated that ESOP participants are not fiduciaries with regard to unallocated shares when they are not given notice that their action or inaction with regard to their allocated shares will control the disposition of the unallocated shares. The implication of the notice that NationsBank had sent to the Polaroid participants was that they controlled only their allocated shares and it in no way informed them that they could be held liable to the plan for their individual choices. B. Fiduciary Duties Defined The Eleventh Circuit has defined fiduciary liability under ERISA as an obligation to the plan and its beneficiaries to act prudently and unselfishly in regard to the administration of assets of the plan. See Iron Workers Local No. 272 v. Bowen, 695 F.2d 531 (11th Cir. 1983). Five threshold elements are necessary to impose fiduciary liability under ERISA in the Eleventh Circuit. First, the conduct charged must arise from an explicit duty, under the terms of the plan or the statutory provisions. The court is adamant against finding implied duties from the statute. See Henderson v. Transamerica Occidental Life Ins. Co., 263 F.3d 1171 (11th Cir. 2001); ITPE Pension Fund v. Hall, 334 F.3d 1011, 1013 (11th Cir. 2003); Barnes v. Lacy, 927 F.2d 539 (11th Cir. 1991). Second, the duty must be owed to the plan or to its beneficiaries, not to other fiduciaries. See First Nat’l Life Ins. Co. v. SunshineJr. Food Stores, Inc., 960 F.2d 1546 (11th Cir. 1992). Third, the action upon which the fiduciary action is premised must be wrongful or negligent. See Hamilton v. 1047

Allen-Bradley Co., 244 F.3d 819 (11th Cir. 2001); Willett v. Blue Cross & Blue Shield, 953 F.2d 1335 (11th Cir. 1992). Fourth, the fiduciary breach must cause a detriment to the plan’s assets or impair the rights of a beneficiary under the terms of the plan or the statute. See ITPE Pension Fund, 334 F.3d 1011; Chapman v. Klemick, 3 F.3d 1508 (11th Cir. 1993). The person charged should have actual or constructive knowledge of its fiduciary status, being aware of its potential liability and of its power to exercise discretion over the plan’s assets. See Herman v. NationsBank Trust Co., 126 F.3d 1354 (11th Cir. 1997). In regard to the discretion element, the court has pronounced that in order for a fiduciary to have the power of decision or choice, the person must know that he can decide an issue and be aware of the choices he has. A person cannot exercise the power of choice or individual judgment unless he is aware of his ability to do so. To “exercise” is to “make effective in action,” and a person must have knowledge of his authority or power to control in order to exercise control. In order for a fiduciary to exercise discretion, the fiduciary must engage in conscious decision making or knowledgeable control over assets. See Herman, 126 F.3d at 1365. An ERISA participant has a right to accurate information, and a plan administrator’s withholding of information may give rise to a cause of action for breach of fiduciary duty. See Jones v. Am. Gen. Life & Accid. Ins. Co., 370 F.3d 1065, 1071–72 (11th Cir. 2004) (reinstating a fiduciary duty claim against an employer who 1048

misrepresented to employees the extent of their life insurance coverage under an ERISA plan). A fiduciary will not be held liable for misrepresentation if it makes no untrue statements to its participants. In Barnes v. Lacy, 927 F.2d 539, 543 (11th Cir. 1991), the court reversed judgment entered against the employer imposing fiduciary liability for alleged misrepresentations regarding the amendment of an early retirement plan. In that case, a number of participants complained that the plan sponsor amended the plan to offer a second and more beneficial offer for early retirement to its participants. The claimants alleged that the employer had breached its fiduciary duties by misrepresenting, at the time of inception of the plan, that it was “a one-time offer” and by failing to notify its intention to amend the plan in the future to provide additional offers. The court held that no fiduciary liability could attach to the employer when there was no evidence in the record to maintain that any of its statements were untrue at the time they were made. The court noted in its opinion that the lower court placed an unreasonable burden upon the employer to predict future and unintended events. No fiduciary liability can attach when the plan sponsor complies with the disclosure rules mandated by Congress in the statute. In Barnes, 927 F.2d at 543, the court rejected the contention that the plan sponsor was liable for failing to notify participants that it was intending to reserve a right to amend the plan, because such reservation had been published in the summary plan document. The court held that no additional notification

1049

was necessary to comply with responsibilities prescribed by the statute.

the

fiduciary

An employer does not incur in fiduciary breach for failing to disclose in its plan description the possibility that sale of the business might result in the loss of future benefits. In Phillips v. Amoco Oil, 799 F.2d 1464, 1471–72 (11th Cir. 1986), the court found that the employer had complied with the disclosure requirements under ERISA by notifying employees in the plan document that terminated employees would not be entitled to full benefits. Since a “terminated employee” was defined in the plan summary as one who had not retired from the company, then it was logical to conclude that any event causing an employee to leave the company prior to retirement would result in the receipt of less than full benefits. Fiduciaries may be held liable for amendments to the plan if such action is taken for the sole benefit of a party other than the plan and is carried out without careful and impartial investigation as to the repercussions of the amendment or the consideration of alternative means to achieve the professed objective. In Deak v. Masters, Mates & Pilots Pension Plans, 821 F.2d 572, 581 (11th Cir. 1987), the court affirmed judgment for the plan participants who brought a class action suit against the trustees of a plan since the evidence did not show that the amendment they had promulgated was “rationally related to the financial integrity of the Plan” and instead operated to unjustifiably discriminate among plan participants.

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A fiduciary will be held liable for impeding the prosecution of an ERISA claim on behalf of the plan if it has no legitimate justification for its action. In Iron Workers Local No. 272 v. Bowen, 695 F.2d 531, 534 (11th Cir. 1983), the court found that three management trustees of the plan sponsor had breached their fiduciary duties under ERISA by refusing to authorize a suit containing charges of willful misconduct against them and effectively deadlocking the board. The court noted that the defendants did not conduct an independent investigation into the allegations of misconduct and their refusal to vote in favor of the legal action occurred even after their own attorney had advised them that a suit without allegations of fraud or conspiracy would be a nullity due to the indemnity provisions of the trust agreement. Even a fiduciary who passively acts to allow other cofiduciaries to prevent the prosecution of an action to be pursued for the benefit of the plan can be subject to personal liability under ERISA. In Iron Workers Local No. 272, id. at 535, the court found that a trustee who had not voted to block the lawsuit had also breached his fiduciary duties because he had participated in the meetings concerning the motion to file a suit that would have included himself as a defendant, and if he had stepped down from the board, the lawsuit would have not been blocked. Further, the failure to comply with an arbitrator’s directive is automatically deemed a breach of fiduciary duty under ERISA, unless the directive was ambiguous. Id.

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An ERISA fiduciary may also serve as an officer, employee, agent, or other representative of a union or employer, as long as exercise of the multiple functions do not cause him or her to violate the general fiduciary duties required under ERISA. In Evans v. Bexley, 750 F.2d 1498, 1499 (11th Cir. 1985), the court found that a trustee of an employee benefit plan did not violate ERISA by merely serving in a position with an employee organization that requires him to represent such entity in the collective bargaining negotiations that determine the funding of the plan. In reaching this determination, the court noted that in those negotiations, the bargaining representative represents either the employer or the employees, and to require him to consider only the best interests of the plan at the negotiation table would be to require him to breach the trust of his constituents. An investment manager may be found liable for the losses sustained by the plan’s assets if they are the result of a negligent investment strategy. In GIW Indus., Inc. v. Trevor, Stewart, Burton & Jacobsen, Inc., 895 F.2d 729, 731–32 (11th Cir. 1990), the plan’s investment manager was found to have incurred in fiduciary breach for failing to investigate the particular cash flow requirements of the fund he was hired to manage. Due to this oversight, the investment strategy adopted by the defendant limited the fund’s liquidity and the plan’s ability to pay the necessary amount of retirement benefits to participants. The lack of adequate liquidity in the investments made by the defendant impaired the plan’s ability to pay out benefits and forced it to take a loss in the fund’s value by having to prematurely sell long-term investments. Relevant to the 1052

liability determination was the fact that the investment manager had at its disposition information on the plan’s historical cash flow needs that would have allowed it to determine what the anticipated withdrawal patterns of the fund would be. Yet the defendant never obtained this information, nor read relevant plan documents prior to investing the fund’s assets. C. Fiduciary Liability in the Health and Disability Context In addition to misrepresentations, a fiduciary can be found liable in relation to the administration of an ERISA plan for withholding claim forms and delaying the forwarding of information and/or forms to the insurers covering the benefits. In Hamilton v. Allen-Bradley Co., 244 F.3d 819, 827 (11th Cir. 2001), the claimant employee lost her disability coverage under the plan policy because her claim was untimely filed. She claimed that her loss was caused by the employer’s representation that she was not eligible for this coverage, its concealment of the insurance company information, and its delay in providing her with the necessary forms to file the claim. The participant was not allowed to contact the insurer directly, but had to process her claim through her employer’s human resources department. The employer disputed the allegations, but acknowledged it had no evidence to show when the participant had requested the claim forms and when they had been provided to her. The circuit court determined that the employer could be held liable for fiduciary breach if the trier of fact was to find that the claimant’s allegations were true and that the employer’s actions were wrongful. 1053

A fiduciary is not liable, however, for failing to provide forms or information that have not been properly requested according to 29 U.S.C. § 1024(b)(4). In Hamilton, 244 F.3d at 827, the court noted that the employer could not be held liable for failing to provide the participant claim forms that were not requested in writing. Fiduciary liability will attach to a plan administrator that causes undue delay in the processing of a claim, in the appeals process, or in the payment of benefits. In Flint v. ABB, Inc., 337 F.3d 1326, 1331 (11th Cir. 2003), the court did not find fiduciary breach because the evidence showed that the defendant had followed the appeal process according to the plan’s provisions and ERISA regulations and had determined to reinstate disability benefits to the participant retroactively. When the terms of the plan or group policy insuring the plan benefits requires provision of evidence to establish the continuation of a disability, the plan fiduciaries are under no obligation to give the participant or beneficiary advance notice before suspending the payment of benefits due to noncompliance with the evidence requirement, unless the plan provides otherwise. See Flint, 337 F.3d at 1331 n.3 (where the court declined to find the plan administrator liable for having suspended long-term disability coverage without previous notice to the participant when he failed to provide proof of continued disability). In Autonation Inc. v. United Healthcare Ins. Co., 423 F. Supp. 2d 1265, 1272–73 (S.D. Fla. 2006), the court 1054

validated the plan sponsor’s fiduciary liability claim against the plan administrator that paid out benefits in excess of the plan’s terms. The Eleventh Circuit imposes on ERISA fiduciaries an affirmative obligation to notify plan participants and beneficiaries of a plan’s financial problems that are apparent to them. In Hope Center, Inc. v. Well America Group, Inc., 196 F. Supp. 2d 1243, 1249 (S.D. Fla. 2002), the claims administrator defendant was found to have incurred in fiduciary breach because it had been aware of the plan’s financial troubles since February 2000 but failed to notify this jeopardy to participants and beneficiaries until June 2002. See also McNeese v. Health Plan Mktg., Inc., 647 F. Supp. 981, 985–86 (N.D. Ala. 1986) (failure to notify participants of employer’s delinquent contributions to pension fund); Chambers v. Kaleidoscope, Inc. Profit Sharing Plan & Trust, 650 F. Supp. 359, 377 (N.D. Ga. 1986) (same). Following the decision in Evans v. Bexley, 750 F.2d 1498, 1499 (11th Cir. 1985), the court in Local Union 2134 v. Powhatan Fuel, Inc., 828 F.2d 710, 714 (11th Cir. 1987), determined that the defendant’s decision to pay company bills other than the insurance premiums to maintain the employees’ health plan was not a fiduciary breach since the decision was not made in its capacity as fiduciary of the health plan, but as president of the corporation. A plan administrator does not breach a fiduciary duty by having its own employee make determinations as to the medical necessity of benefits claimed. In Newell v. Prudential Ins. Co. of Am., 904 F.2d 644, 649–50 (11th 1055

Cir. 1990), the court held that Prudential did not violate ERISA as a matter of law by allowing a medical doctor employed by the insurer to make decisions concerning medical necessity of inpatient care. The court recognized that both the doctor employee and the insurer were considered fiduciaries of the plan under which the claimant was insured, but rejected the argument that this coverage procedure constituted a prohibitive transaction involving an impermissible conflict of interest. The Eleventh Circuit allows an ERISA fiduciary to delegate to another party some or all of its fiduciary responsibilities, but cautions that such delegation is not absolute and the delegating fiduciary does not shield itself from liability arising out of a fiduciary breach under 29 U.S.C. § 1105(a) and (c)(2). Liability under those circumstances depends on the cofiduciary’s knowledge of the breach and its disposition to take timely and reasonable remedial action to counter the breach. Liability may also be independently imposed on the delegating fiduciary for concealment of the breach. In Willett v. Blue Cross & Blue Shield, 953 F.2d 1335, 1341–42 (11th Cir. 1992), the court held that the plan’s health insurer could be held liable for the employer’s failure to inform participants of the lapse in coverage, despite the fact that the main responsibility for this notification had been delegated to the employer. The court concluded that even if the employer bore the primary responsibility in regard to the notification of a lapse of coverage to the plan participants, the insurer would also be held liable if it had knowledge of the breach and did not take reasonable steps to remedy it. The insurer could also be found liable for concealment of the 1056

breach if it made affirmative misrepresentations to the plan participants leading them to believe coverage was still in place. An ERISA fiduciary can be charged a civil penalty under 29 U.S.C. § 1132(c) for noncompliance with COBRA provisions as long as the fiduciary is considered the plan administrator. In Vincent v. Wells Fargo Guard Services, Inc., 44 F. Supp. 2d 1302, 1305 (S.D. Fla. 1999), the court determined that it could not hold the defendant employer liable under ERISA 29 U.S.C. § 1132(c) for its one-year delay in notifying the plan administrator of the plaintiff’s termination in employment (or “qualifying event” under COBRA) because the employer was not acting as the administrator of the plan and this civil penalty provision is reserved for plan administrators. However, employers have no affirmative fiduciary obligation to help plan participants with the pursuit of their benefit claims. In Henderson v. Transamerica Occidental Life Ins. Co., 263 F.3d 1171 (11th Cir. 2001), the court declined to find the employer liable for fiduciary breach under ERISA for the plaintiff’s allegation that it did not do enough to help him with his travel accident group insurance claims. Relevant to this decision was the fact that the employer had delegated full authority over the claims determination process to the insurance carrier covering the disputed benefit, had made claim forms available, filled in the employer sections of those forms, forwarded information from the plaintiff to the insurers, and made its own employment and time-keeping records available to those same insurers.

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D. Claims under § 1132(a)(1)(B) and § 1132(a)(3) A fiduciary breach claim premised solely on the wrongful denial of plan benefits will not prevail in the Eleventh Circuit if the claimant can assert a remedy for such conduct under 29 U.S.C. § 1132(a)(1)(B). See Katz v. Comprehensive Plan of Group Ins., 197 F.3d 1084, 1089 (11th Cir. 1999) (where plan beneficiary’s fiduciary claim was dismissed because claimant had an adequate remedy under 29 U.S.C. § 1132(a)(1)(B) to address the merits of her life benefits claim). See also Cook v. Campbell, 2008 WL 2039501 (M.D. Ala. 2008); Kindred Hosp. E., LLC v. Blue Cross & Blue Shield of Fla., Inc., 2007 WL 601749 (M.D. Fla. 2007). However, in a recent decision, the Eleventh Circuit addressed the reach of its ruling in Katz, and cautioned that a plan beneficiary may bring an action under 29 U.S.C. § 1132(a)(3) when the allegations in the complaint cannot sustain a benefit claim under § 1132(a)(1)(B). See Jones v. Am. Gen. Life & Accid. Ins. Co., 370 F.3d 1065, 1073–74 (11th Cir. 2004), reh’g en banc denied, 116 F. App’x 254 (11th Cir. 2004) (where fiduciary claim was allowed, despite the fact that the relief sought was essentially the equivalent to plan benefits, because the claimants conceded that they were not entitled to the disputed life benefits under the terms of the plan). E. Contribution and Indemnity Although the Eleventh Circuit courts have not yet addressed the issue of contribution or indemnification 1058

among cofiduciaries under ERISA, at least one recent district court in the circuit has held that federal common law under ERISA permits such claims. Guididas v. Community Nat’l Bk. Corp., 2012 U.S. Dist. LEXIS 102638 (M.D. Fla. 2012). Noting that the Eleventh Circuit had not yet decided the issue, that other circuits were split, and that the ERISA statute was silent on the point, the court relied upon trust principles and federal common law provided these establish equitable remedies and that “sound policy considerations” weighed in favor of permitting the claims. Id. at *17–18 (“full responsibility should not depend on the fortuity of which fiduciary elects to sue”). At least two other district courts in this circuit have followed the Second Circuit decision in Chemung Canal Trust Co. v. Sovran Bank, 939 F.2d 12, 16 (2d Cir. 1991), in permitting contribution or indemnity against cofiduciaries. See Reich v. Autrey, 1996 U.S. Dist. LEXIS 21487 (M.D. Fla. 1996), and Jones v. Trevor, Stewart Burton & Jacobsen, Inc., 1992 U.S. Dist. LEXIS 14441 (N.D. Ga. 1992). F. Liability of Nonfiduciaries Like other circuits, the Eleventh Circuit court has held that a nonfiduciary may be held liable under ERISA 29 U.S.C. § 1132(a)(5) for benefiting from the participation in an impermissible transaction with an ERISA fiduciary and will be required to disgorge ill-gotten assets from the ERISA plan. See Herman v. S.C. Nat’l Bank, 140 F.3d 1413, 1421 (11th Cir. 1998); Eslava v. Gulf Tele. Co., 2007 WL 1771416 (S.D. Ala. 2007) (noting that 1059

nonfiduciaries may be sued if they knowingly participate in the fiduciary’s breach and recovery is limited to “appropriate equitable relief”).

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XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees The Eleventh Circuit follows established ERISA case law derived from 29 U.S.C. § 1132(g)(1) in allowing reasonable attorneys’ fees and costs to the prevailing party within the discretion of the court. See Freeman v. Cont’l Ins. Co., 996 F.2d 1116, 1119 (11th Cir. 1993). ERISA allows the court to award fees to either party. Dixon v. Seafarers’ Welfare Plan, 878 F.2d 1411, 1412 (11th Cir. 1989). The statute itself does not prescribe the criteria for discretionary fee awards, nor does the legislative history offer guidance. Nachwalter v. Christie, 805 F.2d 956, 961 (11th Cir. 1986). Historically, this circuit has applied a five-factor test in determining whether to award discretionary fees: (1) The degree of the opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of attorneys’ fees; (3) whether an award of attorneys’ fees against the opposing parties would deter other persons acting under similar circumstances; (4) whether the parties requesting attorneys’ fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and (5) the relative merits of the parties’ positions.

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Id. at 961–62; McKnight v. S. Life & Health Ins. Co., 758 F.2d 1566 (11th Cir. 1985); Freeman, 996 F.2d at 1119; Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255 (5th Cir. 1980). No one factor is determinative but the list is provided to guide district courts in the Eleventh Circuit in exercising their discretion in this regard. Bowen, 624 F.2d at 1266. The weight to be given each factor depends upon the circumstances of each case, but together these factors are a nucleus of concerns that a court should address. Freeman, 996 F.2d at 1119. No presumption in favor of awarding fees exists under ERISA. Wright v. Hanna Steel Corp., 270 F.3d 1336, 1344 (11th Cir. 2001). Although the courts may award fees to either party, adherence to ERISA policy “often counsels against charging fees against plan beneficiaries.” Nachwalter, 805 F.2d at 962. Nevertheless, courts in this circuit have, on occasion, awarded fees to the prevailing defendant. See Nelson v. Liberty Life Assur. Co. of Bos., 2005 WL 1181885 (M.D. Fla. 2005). Recently, litigants have challenged the continuing vitality of this five-factor approach following the United States Supreme Court’s decision in Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149 (2010). In that case, the Court addressed whether a claimant was entitled to attorney’s fees after remand, for further development of the record, to the claim administrator who subsequently granted benefits. The Court was asked to decide whether the claimant was the “prevailing party” entitled to fees under ERISA. Noting that the ERISA fee statute does not contain the words “prevailing party,” the Court applied a “some degree of success on the merits” standard and upheld the district court’s decision to grant fees to Hardt. 1062

Concluding that the five-factor test stated above “[bears] no obvious relation to § 1132(g)(1)’s text or to our feeshifting jurisprudence,” the Court stated that application of the test is not required “for channeling a court’s discretion when awarding fees under [the statute].” Id. at 2158. Nevertheless, the Court directed that “[it did not] foreclose the possibility that once a claimant has [shown ‘some degree of success on the merits’], a court may consider … five factors … in deciding whether to award attorney’s fees.” Id. at 2158 n.8. Following the Hardt decision, the Eleventh Circuit has read the case as sanctioning the continuing vitality of the five-factor test. See Cross v. The Quality Mgmt. Gp., LLC., 491 F. App’x 53, 55–56 (11th Cir. 2012) (as long as “some degree of success on the merits” is shown, the court may properly apply the five-factor test in determining entitlement to ERISA fees). District court cases in this circuit have consistently followed this approach since Hardt. See Brooks v. Peer Review Mediation and Arbitration, Inc., 2012 U.S. Dist. LEXIS 158980 (S.D. Fla. 2012); Olds v. Ret. Plan of Int’l Paper Co., 2011 U.S. Dist LEXIS 59329 (S.D. Ala. 2011); Fornell v. Morgan Keegan & Co., Inc., 2013 U.S. Dist LEXIS 24874 (M.D. Fla. 2013). The district court in its fee ruling should set forth findings as to satisfaction of the enumerated factors. Iron Workers, 624 F.2d at 1266. Appellate review of the decision is for abuse of discretion. Wright v. Hanna Steel Corp., 270 F.3d 1336 (11th Cir. 2001). However, so long as the court takes these factors into account, it does not abuse its discretion if it 1063

does not enumerate each and every one in its decision. Byars v. Coca-Cola Co., 517 F.3d 1256, 1268 (11th Cir. 2008). The “bad faith” element of the test has been the subject of differing interpretations in the courts. Nevertheless, it has been the most often cited and determinative factor in these decisions with most fee denials turning on lack of the carrier’s bad faith. See First Nat’l Life Ins. Co. v. Sunshine-Jr. Food Stores, Inc., 960 F.2d 1546, 1554 (11th Cir. 1992); Florence Nightingale Nursing Servs., Inc. v. Blue Cross/Blue Shield of Ala., 41 F.3d 1476, 1485 (11th Cir. 1995); Freeman v. Cont’l Ins. Co., 996 F.2d 1116, 1120 (11th Cir. 1993). It has been held, however, that a showing of bad faith is not required for an award of fees if the balance of the other factors warrants them. See Wright, 270 F.3d at 1345 (11th Cir. 2001). The Eleventh Circuit has recognized the importance of this factor but has found bad faith under circumstances that diverge slightly from those recognized in other circuits. Error should not be equated with bad faith. Dixon v. Seafarers’ Welfare Plan, 878 F.2d 1411 (11th Cir. 1989). In National Cos. Health Plan v. St. Joseph’s Hospital, 929 F.2d 1558 (11th Cir. 1991), the court found bad faith sufficient to justify an award of fees when the defendant had previously interpreted its own plan and promised the plaintiff certain benefits but later changed its position to deny the plaintiff the promised benefits. In Curry v. Contract Fabricators, Inc. Profit Sharing Plan, 891 F.2d 842 (11th Cir. 1991), the court found bad faith where the plan misrepresented facts regarding a waiting period for benefits and then later retaliated against the 1064

claimant for accepting a job with a competitor by fraudulently denying him benefits. Id. at 849. Repeated failure to pay claims after a settlement agreement and contempt hearing was found to constitute bad faith supporting a fee award in Tyler v. Ploof Truck Lines, Inc., 1999 WL 961262 (M.D. Ala. 1999). In Bishop v. Osborn Transportation, Inc., 687 F. Supp. 1526 (N.D. Ala. 1988), the court found bad faith supporting the award of fees where Osborn intentionally altered an employee’s discharge date so as to avoid paying benefits. Id. at 1529. One court found culpable conduct supporting an award when the claim fiduciary relied upon a paper review of disability and disregarded treating physician reports of disability. Blankenship v. SmithKline Beecham Corp., 2004 WL 3554969 (S.D. Fla. 2004). By contrast, in Florence Nightingale Nursing Services Inc. v. Blue Cross/Blue Shield of Ala., 41 F.3d 1476, 1485 (11th Cir. 1995), the court denied fees when it declined to find bad faith due to what it deemed as the administrator’s “arguable basis for its decision” (plausibility of defendant’s position negated any finding of bad faith). See also Hogarth v. Life Ins. Co. of N. Am., 898 F. Supp. 891 (S.D. Fla. 1995) (no bad faith where defendant’s delays were due in part to lack of cooperation by insured’s physician). Equating “bad faith” with “culpable conduct,” meaning “blameable” or “at fault,” at least one court has held that this factor is not met merely because the losing party has taken a position that did not prevail in litigation. See Hoover v. Bank of Am. Corp., 2005 WL 1074290 (M.D. Fla. 2005), report and recommendation adopted by 2005 WL 1073919 (M.D. Fla. 2005). By contrast, in Wright v. Hanna Steel Corp., 270 F.3d 1336 1065

(11th Cir. 2001), the court affirmed fees even in the absence of a finding of bad faith in a case where the district court found that the defendant had acted carelessly in providing COBRA notices and in retroactively canceling insurance coverage for the claimant without notice. Id. at 1344. Regarding the “ability to pay” factor, this circuit requires that the party seeking fees offer specific proof of the opposing party’s ability to satisfy the attorneys’ fees award. See Dixon v. Seafarers’ Welfare Plan, 878 F.2d 1411 (11th Cir. 1989) (absence of any evidence of either party’s ability to satisfy award of attorneys’ fees found to constitute sufficient grounds for upholding denial of fee award). In Tyler, 1999 WL 961262, the court found this prong satisfied when the plaintiff submitted an affidavit that defendant’s operation included 600 drivers, 650 tractors, and over 1,800 trailers and nine office locations. Often, however, this issue is not in dispute when a corporate defendant is involved. See, e.g., Montgomery v. Metro. Life Ins. Co., 2006 WL 1455684 (N.D. Ga. 2006). The next factor requires consideration of the deterrent effect of an award. The fee applicant must generally present direct evidence to support deterrence of the conduct at issue. The circuit has found the factor satisfied where it could be argued that the award of fees would encourage an employer to furnish accurate summary plans. McKnight, 758 F.2d at 1572. When the award of attorneys’ fees was found to be the only way to impose damages for bad-faith conduct, in the absence of state insurance bad-faith law in the ERISA 1066

context, a district court in this circuit concluded that such an award would serve as a deterrent. Tyler, 1999 WL 961262. Similarly, in Bishop, 687 F. Supp. 1526, the court found that because Eleventh Circuit ERISA case law prohibited the award of punitive damages, the best way to deter future culpable conduct was to award fees. Id. at 1529. In Clarke v. Unum Life Ins. Co., 14 F. Supp. 2d 1351 (S.D. Ga. 1998), the court agreed with plaintiff that awarding fees would deter others from denying untimely claims without investigating the reasons for the denial. Id. at 1358. The circuit has noted that plaintiff must “seek to resolve a significant legal question regarding ERISA or seek directly to benefit all beneficiaries under the plan” to satisfy the “benefit to the plan” prong of the test. Dixon v. Seafarers’ Welfare Plan, 878 F.2d 1411 (11th Cir. 1989); Freeman v. Cont’l Ins. Co., 996 F.2d 116, 119 (11th Cir. 1993). If, on the other hand, the plaintiff merely seeks individual benefits so as to protect his own interests, this prong is not satisfied. Dixon, 878 F.2d at 1413. In Clarke, 14 F. Supp. 2d at 1358, the court found that plaintiff raised a unique issue in regard to the administration of ERISA plans: the legal suffering of mental illnesses as an excuse for untimely notice. Therefore, the fourth prong was satisfied by resolution of what the courts concluded was a “significant legal question.” As to the relative merits of the parties’ positions, where there appears to be no bad faith and all other factors are neutral, courts have considered this factor at least 1067

“especially helpful.” Smith v. Miller Brewing Co. Health Benefits Program, 860 F. Supp. 855, 857 (M.D. Ga. 1994). However, it has been suggested that when the decision depends entirely on the relative merits of the parties’ arguments, a party’s position must be extremely weak to justify an award of attorneys’ fees based on this factor alone. See Plumbers & Steamfitters Local 150 v. Vertex Const., 932 F.2d 1443, 1453 (11th Cir. 1991); First Nat’l Life Ins. Co. v. Sunshine-Jr. Food Stores, Inc., 960 F.2d 1546, 1554 (11th Cir. 1992). At least one district court in the circuit has observed that “this factor turns on the degree of disparity and the merits of the parties’ positions; that is, whether the losing party’s position was so insubstantial that equity should compensate the winning party with an award of attorney’s fees.” See Blank v. Bethlehem Steel Corp., 738 F. Supp. 1380, 1383 (M.D. Fla. 1990). In an unusual decision, Smith v. Miller Brewing Co. Health Benefits Program, 860 F. Supp. 855 (M.D. Ga. 1994), after evaluating the Iron Workers factors and concluding that the fee decision involved close questions, the court awarded fees but reduced the amount available to account for the relative merits of the parties’ positions. Id. at 857. B. Fees Awarded to Plan Fiduciaries Where the claimant is a fiduciary, the court should also consider the additional factor of whether the party would violate fiduciary duties by not bringing suit. Iron Workers, 624 F.2d at 1266. However, legal fees are not awardable to a breaching fiduciary, even if the actions taken were in good faith and did not cause loss to the

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plan. Martin v. Walton, 773 F. Supp. 1524 (S.D. Fla. 1991). C. Settling Parties and Fees On rare occasions, courts in this circuit have even awarded ERISA attorney’s fees to settling plaintiffs. See Sabina v. Am. Gen. Life Ins. Co., 856 F. Supp. 651, 656 (S.D. Fla. 1992) (after an injunction was entered the defendant agreed to settle by paying the extended benefits sought in the complaint and the court retained jurisdiction as to fees); see also Thomas v. CSX Corp., 2005 WL 2756214 (M.D. Fla. 2005) (whereby settlement plaintiff ultimately received the short-term benefits he sought). D. Prelitigation Fees In Kahane v. Unum Life Ins. Co., 2009 WL 805817 (11th Cir. 2009), the court joined other circuits holding that 29 U.S.C. § 1132(g) does not permit the recovery of fees for prelitigation administrative proceedings. Citing courts in the Fourth, Sixth, and Eighth Circuits, the court reasoned that Congress, in requiring the exhaustion of administrative remedies, intended to limit costs and fees and encourage the informal resolution of disputes prior to incurring the expense inherent in involvement of counsel. If prelitigation fees were recoverable, the court held, it would undermine this congressional intent by necessitating the involvement of counsel as a matter of course. Id. at *5. At least one court in this circuit has held that although prelitigation fees are not recoverable, some pre-suit attorney time related to evaluating the claim for suit, conferring with the client as to whether to proceed 1069

with suit, and preparing the complaint is compensable if it is demonstrated that these activities were a necessary part of the action itself. Lynker v. Johnson & Johnson Pension Comm., 2007 WL 403162, at *2 (M.D. Fla. 2007). Query whether the Hardt decision, upholding fees awarded to a claimant who obtained “some degree of success on the merits” after remand to the plan administrator, opens the door for pre-litigation fees. The Supreme Court did not directly address, however, the reasonableness of the amount of the fees, or even which fees were recoverable, in part because Reliance did not preserve the issue of the reasonableness of the amount of the fees. 130 S. Ct. 2149, 2159 n. 9. E. Calculation of Attorneys’ Fees Regarding the amount of proper attorneys’ fees, the Eleventh Circuit will follow the lodestar approach in determining a reasonable fee awardable on ERISA matters by multiplying the number of hours reasonably expended on the cases by a reasonable hourly rate. See Loranger v. Stierheim, 3 F.3d 356 (11th Cir. 1993). In such issues, the applicant bears the burden of proof. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). Thus, the applicant must also show that the requested hourly rate is in accordance with the prevailing market rates. Id. A downward adjustment from the lodestar is appropriate only if the prevailing party was only partially successful. Resolution Trust Corp. v. Hallmark Bldrs., Inc., 996 F.2d 1144 (11th Cir. 1993).

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The award of a contingency fee multiplier in ERISA matters has been specifically rejected by the Eleventh Circuit. See Murphy v. Reliance Standard Life Ins. Co., 247 F.3d 1313 (11th Cir. 2001). F. Class-Action Fees On at least one occasion, a district court in the Eleventh Circuit has addressed the application for attorneys’ fees in an ERISA class-action case involving a common fund. After the court reiterated that the starting point in setting attorneys’ fees under the lodestar method is to determine the lodestar figure, which is the number of hours reasonably expended on litigation multiplied by the reasonable hourly rate, the court examined whether the fee should be adjusted upward or downward. The court determined that an attorneys’ fee award in an ERISA class action that resulted in a tentative settlement with the creation of a common fund was subject to enhancement by 67 percent to represent the contingent nature of class counsel’s fee. Bowen v. S. Trust Bank of Ala., 760 F. Supp. 889, 899 (M.D. Ala. 1991). The continuing validity of the decision is subject to question following the Eleventh Circuit’s rejection of the award of a multiplier in ERISA matters in Murphy, 247 F.3d 1313. See Solutia Inc. v. Forsberg, 221 F. Supp. 2d 1280 (N.D. Fla. 2002) (no multiplier given employer/defendant’s previous agreement to pay reasonable attorneys’ fees of retiree/ plaintiff and recent prohibition of multipliers based on contingencies in ERISA cases). Nevertheless, it is likely that the Eleventh Circuit would approve the recovery of ERISA attorneys’ fees (without a multiplier) in a classaction case upon application and the appropriate set of 1071

facts triggering the factors set forth in the Iron Workers decision. XII. ERISA Regulations 29 C.F.R. § 2510.3-1 (2005)—Employee Benefit Plan Defined: In Slamen v. Paul Revere Life Ins. Co., 166 F.3d 1102 (11th Cir. 1999), the insured successfully appealed the district court’s denial of his motion to remand after the conclusion of the bench trial. The Eleventh Circuit reversed the denial of the motion to remand on the basis that there was no ERISA plan where the insured was the sole shareholder and there were no others covered. The court held that in order to establish an ERISA employee welfare benefit plan, the plan must provide benefits to at least one employee, not including an employee who is also the owner of the business in question. See Williams v. Wright, 927 F.2d 1540 (11th Cir. 1991). In Gilbert v. Alta Health & Life Ins. Co., 276 F.3d 1292 (11th Cir. 2001), the court held that a sole shareholder is a beneficiary within the meaning of 29 U.S.C. § 1002(8) when he is entitled to benefits from a benefits plan that otherwise qualifies as an ERISA plan. The court found that there was an ERISA plan because it covered employees besides the sole shareholder and his wife. Therefore, an ERISA plan existed of which he could be a beneficiary. Id. at 1303.

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29 C.F.R. § 2510.3-1(b)(2) (2005)—Payroll Practices: In Stern v. IBM Corp., 326 F.3d 1367 (11th Cir. 2003), the court determined that IBM’s “payroll practice” of compensating, from its general assets, employees who were physically or mentally unable to perform their duties or otherwise absent for medical reasons, was not an “employee benefit welfare plan.” Therefore, it reversed an order of the district court denying remand and granting summary judgment to IBM. 29 C.F.R. § 2510.3-1(j) (2005)—Safe Harbor: In Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207 (11th Cir. 1999), the court determined that a life insurance policy was not excepted from the definition of “employee welfare benefit plan” under ERISA’s safe harbor regulation where the employer did more than simply permit the insurer to publicize the program and collect premiums; in addition, the employer picked the insurer, decided on key terms such as portability and amount of coverage, deemed certain employees ineligible to participate, incorporated policy terms into a selfdescribed summary plan description for its cafeteria plan, and retained power to alter compensation reduction for tax purposes. However, the court held that a plan not protected by the safe harbor regulation is not necessarily an ERISA plan. The requirements of Donovan v. Dillingham, 688 F.2d 1367 (11th Cir. 1982), must still be satisfied. See also Johnson v. UnumProvident, 363 F. App’x 1 (11th Cir. 2009); Anderson v. UnumProvident Corp., 369 F.3d 1257 (11th Cir. 2004). Failure to 1073

satisfy any one of the four safe harbor provisions closes the exemption and exposes a group insurance program, if it otherwise qualifies, to ERISA. Belknap v. Hartford Life Ins. Co., 389 F. Supp. 2d 1320 (M.D. Fla. 2005); May v. Lakeland Reg’l Med. Ctr., 2010 WL 376088 (M.D. Fla. Jan. 25, 2010). In Smith v. Jefferson Pilot Life Ins. Co., 14 F.3d 562 (11th Cir. 1994), and in Glass v. United of Omaha, 33 F.3d 1341 (11th Cir. 1994), the court determined that a type of coverage could not be severed from the benefits package that was otherwise an ERISA plan in order to try to qualify for safe harbor protection. In Smith, the insured argued that the coverage for dependents for which the insured fully paid could come within the safe harbor provision and, in Glass, the insured argued that the life insurance element of the benefits package could be severed from the rest of the benefits in order to avoid ERISA preemption. The court rejected both arguments. 29 C.F.R. § 2560.503-1(b)(2) & (f) (2005)—Notice of Claim Procedure & Denial of Benefits: In Perrino v. S. Bell Tel. & Tel. Co., 209 F.3d 1309 (11th Cir. 2000), the insured argued that he should not be barred from pursuing his claim because the employer failed to comply with the ERISA regulations requiring that the claims and appeal procedure be clearly set forth. The court required the insured to exhaust administrative remedies, finding that the insurer’s noncompliance was “exceedingly technical.” Id. at 1317. 1074

In Counts v. Am. Gen. Life & Acc. Ins. Co., 111 F.3d 105 (11th Cir. 1997), the court also required the insured to exhaust administrative remedies where a letter terminating disability benefits was not technically in compliance with the ERISA regulations because the letter “substantially complied” with the requirements that the reasons for termination be sufficiently clear to permit effective review. See Martinez-Claib v. Bus. Men’s Assur. Co. of Am., 2008 WL 899294, at *5 (M.D. Fla. Mar. 31, 2008) (discussing Counts). 29 C.F.R. § 2560.503-1(f)(3) (2002)—Timeliness of Denial of Disability Claims: In 2000, the Department of Labor modified ERISA regulations on claims procedure. The revised regulations, which apply to claims filed after January 1, 2002, establish shorter time frames for benefits determinations than those contained in the earlier version of the regulations. A number of cases have addressed the issue of the appropriate standard of review when, under the 2002 regulation, participants have attempted to use a late appeal response or other ERISA regulation violation to change the standard to de novo. See Brucks v. Coca-Cola Co., 391 F. Supp. 2d 1193 (N.D. Ga. 2005); Stefansson v. Equitable Life Assur. Soc’y of the U.S., 2005 WL 2277486 (M.D. Ga. Sept. 19, 2005); Hamall-Desai v. Fortis, 370 F. Supp. 2d 1283 (N.D. Ga. 2004); Segar v. Reliastar Life, 2005 WL 2249905 (N.D. Fla. Sept. 14, 2005).

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29 C.F.R. § 2560.503-1(g)(1)(iv)(2002)—Denial Letters: In DiSanto v. Wells Fargo & Co., 2007 WL 2460732 (M.D. Fla. Aug. 24, 2007), the court refused to apply the de novo standard of review even though it found that the administrator was not in substantial compliance with the requirement of specificity in the denial letters. 29 C.F.R. § 2560.503-1(h)(iii) (2002)—Providing Documents: In Maxwell v. Blue Cross Blue Shield Healthcare Plan of Ga., 2009 WL 734115 (N.D. Ga. Mar. 18, 2009), the court found that the insurer, as claims administrator, was not a de facto plan administrator and was not liable for failing to provide plan documents to the participant under the monetary penalty provisions of 29 U.S.C. § 1132(c). See also Rucker v. Empire Healthchoice Assur., Inc., 2010 WL 2330300 (M.D. Fla. June 9, 2010). In Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241, 1245 (11th Cir. 2008), the circuit court held that the regulation does not require the insurer to provide documents received by it during the claim process until after its decision has been made and communicated. 29 C.F.R. § 2560.503-1(m)(iii) (2002)—Evidence of Compliance with Safeguards: In Marajh v. Broadspire Servs., Inc., 2009 WL 1140063 (S.D. Fla. Apr. 28, 2009), the court distinguished between written administrative safeguards and written evidence of compliance with those safeguards in a particular case. A detailed denial letter can be 1076

written evidence of compliance and the regulations do not require the administrator to otherwise create such evidence. XIII. Cases Interpreting ERISA Statutes of Limitation In the context of an ERISA claim, the Eleventh Circuit has adopted the rule that a cause of action does not become an enforceable demand until a claim is denied. Thus, under ERISA, a cause of action does not accrue until an application for benefits is denied. Paris v. Profit Sharing Plan for Emps. of Howard B. Wolf Inc., 637 F.2d 357 (5th Cir. 1981) (binding in the Eleventh Circuit as stated in Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981)). Like those in most other circuits, courts in the Eleventh Circuit borrow the forum state’s statute of limitations for the most closely analogous action if it is not inconsistent with federal law or policy to do so and there is not a more closely analogous federal statute of limitations. Cummings v. Washington Mutual, 650 F.3d 1386 (11th Cir. 2011); Harrison v. Digital Health Plan, 183 F.3d 1235 (11th Cir. 1999); Northlake Reg’l Med. Ctr. v. Waffle House Sys. Emp. Benefit Plan, 160 F.3d 1301 (11th Cir. 1998). Federal courts have almost uniformly held that a suit for ERISA benefits pursuant to 29 U.S.C. § 1132(a)(1)(B) is most analogous to breach of contract claims for statute of limitations purposes. Harrison, 183 F.3d at 1240. In Florida, a § 1132(a)(1)(B) claim was held not barred based on that state’s five-year statute of limitations for 1077

bringing an action based on breach of contract. Hoover v. Bank of Am. Corp., 286 F. Supp. 2d 1326 (M.D. Fla. 2003); Ehmann v. Cont’l Cas. Co., 2009 WL 482286 (M.D. Fla. 2009). In Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347 (11th Cir. 1998), the court held that a fiduciary’s action to enforce a reimbursement provision pursuant to § 1132(a)(3) is most closely analogous to a simple contract action brought under Alabama law and applied its six-year statute of limitations for simple contract actions. The Eleventh Circuit also enforces contractual limitations periods where reasonable. See, e.g., Fetterhoff v. Liberty Life Assur. Co., 282 F. App’x 740, 744 (11th Cir. 2008) (“where the parties have contractually agreed upon a limitations period, borrowing a state’s statute of limitations is unnecessary”); see also Bennett v. Metro. Life Ins. Co., 383 F. App’x 870 (11th Cir. 2010) (enforcing three year contractual period); Northlake Reg’l Med. Ctr., 160 F.3d at 1303 (enforcing 90-day contractual limitation period). XIV. Subrogation and Reimbursement Litigation Under ERISA, a plan fiduciary may bring an action to obtain “appropriate equitable relief” to enforce the terms of the plan. 29 U.S.C. § 1132(a)(3). The U.S. Supreme Court first analyzed the above-quoted language in Mertens v. Hewitt Assocs., 508 U.S. 248, 255–59 (1993). The Court rejected a broad interpretation of the phrase “appropriate equitable relief,” instead reading “equitable relief” to include only “those categories of relief that were typically available in equity (such as injunction, 1078

mandamus, and restitution, but not compensatory damages).” Id. The Court further narrowed the definition of “appropriate equitable relief” in Great-West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002). In that case, a woman who had been injured in a car accident received medical benefits from her husband’s employer’s health and welfare plan. The woman subsequently settled a tort claim arising out of the accident, and her portion of the settlement was paid into a special needs trust. The insurer of the benefit plan sought full reimbursement from the settlement funds pursuant to the terms of the plan. When the woman refused to pay, the insurer sued her under ERISA § 502(a)(3) to enforce the plan, seeking, inter alia, restitution, which it characterized as a form of equitable relief. The Court held that “for restitution to lie in equity, the action generally must seek not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant’s possession.” Id. at 214. Because the insurer of the benefit plan sued the woman for funds not in her possession (they were in the special needs trust), the Court characterized the claim as legal, rather than equitable, and therefore unavailable under § 502(a)(3). After Knudson, several circuit courts and the district courts within the Eleventh Circuit were divided as to whether a fiduciary could ever use § 502(a)(3) to recover money from a plan participant or beneficiary who refused to honor subrogation and reimbursement provisions. See Sereboff v. Mid Atl. Med. Servs., Inc., 547 U.S. 536 (2006) (discussing the split); 1079

Eldridge v. Wachovia Corp. Long-Term Dis. Plan, 383 F. Supp. 2d 1367, 1372 (N.D. Ga. 2005) (same). The U.S. Supreme Court granted certiorari in Sereboff to resolve the conflict. Sereboff was factually and procedurally similar to Knudson with one exception—the disputed funds were in the possession of the beneficiary. The Court acknowledged that the plan “alleged breach of contract and sought money,” but the Court stressed that the plan “sought its recovery through a constructive trust or equitable lien on a specifically identified fund, not from the [plaintiff’s] assets generally, as would be the case with a contract action at law.” Sereboff, 547 U.S. at 363. Based on this distinction, the Court held that when a plan seeks restitution from a beneficiary who is in possession of particular, identifiable funds, such a suit sounds in equity and is cognizable under § 502(a)(3). Since Sereboff was decided, the Eleventh Circuit has issued several opinions involving a fiduciary’s right to enforce reimbursement and subrogation provisions under ERISA. In Popowski v. Parrott, 461 F.3d 1367 (11th Cir. 2006), the Eleventh Circuit emphasized that even if the beneficiary is in possession of the disputed funds, the suit sounds in equity only if the pertinent plan provision “specifies both the fund … out of which reimbursement is due to the plan and the portion due the plan.” Id. at 1373. In Popowski, fiduciaries of two employee benefits plans brought separate actions under § 502(a)(3) against beneficiaries, seeking reimbursement of

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medical expenses paid on behalf of beneficiaries who subsequently settled with third-party tortfeasors. The Eleventh Circuit held that the claim in the first action was cognizable under § 502(a)(3). Id. The court held that the claim in the second action was not valid under § 502(a)(3), however, reasoning the reimbursement provision failed to specify that recovery must come from any identifiable fund and failed to limit recovery to any portion thereof. Id. at 1374. In Admin. Comm. for the Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan v. Horton, 513 F.3d 1223 (11th Cir. 2008), the Eleventh Circuit held that “a benefit plan could use § 502(a)(3) to recover a specifically identified fund in the possession of a third party, such as a trustee or conservator, by suing the third party directly.” Id. at 1227. The court noted that if the benefit plan had “solely sued parties not in possession of the disputed funds, the claim would have failed under Knudson because it merely would have sought to impose personal liability on those parties.” Id. As a corollary, at least one district court has granted a motion to add third parties in possession of funds sought to be recouped. Popowski v. Parrott, 2008 WL 4372006, at *4–5 (N.D. Ga. Sept. 19, 2008). In White v. Coca-Cola Co., 542 F.3d 848 (11th Cir. 2008), the Eleventh Circuit decided a case in which plan participants brought a putative class action against their employer, Coca-Cola, as the plan administrator, challenging Coca-Cola’s decision to offset their long-term disability benefits by the amount of Social Security disability benefits received. The court held that an ERISA plan could recoup an overpayment of benefits by 1081

withholding future benefits, provided the plan authorizes such action. Id. at 858. In reaching its conclusion, the court rejected the participants’ argument that Coca-Cola could not “seek a legal remedy under section 502(a)(3) of ERISA,” noting that “Coca-Cola ha[d] not sought judicial relief.” Id. In White, the court also rejected the plan participants’ argument that Coca-Cola could not “recover any overpayment from their Social Security benefits, which they allege[d were] protected from claims under federal law,” reasoning simply that “Coca-Cola is withholding future benefits under the plan.” Id. See also Herman v. Metro. Life Ins. Co., 2008 WL 5246319 (M.D. Fla. 2008) (any prohibition against “execution, levy, attachment, garnishment, or other legal process” on Social Security disability benefits, in accordance with 42 U.S.C. § 407, “is not triggered by this kind of reimbursement provision because the insurance company seeks the amount it overpaid the claimant rather than any of the claimant’s Social Security benefits”). In Zurich Am. Ins. Co. v. O’Hara, 604 F.3d 1232 (11th Cir. 2010), the court upheld summary judgment to Zurich, rejecting the plan participant’s arguments that reimbursement of plan benefits from personal injury settlement funds should not be permitted because it would make the participant less than whole. The plan expressly contracted around the “make whole doctrine,” and the court emphasized that reimbursement of plan assets “inures to the benefit of all participants and beneficiaries by reducing the total cost of the Plan.” Id. at 1238. The court observed that if plan assets were not recovered, “the 1082

cost of those benefits would be defrayed by other plan members and beneficiaries in the form of higher premium payments.” Id. Moreover, “[b]ecause maintaining the financial viability of self-funded ERISA plans is often unfeasible in the absence of reimbursement and subrogation provisions like the one at issue in this case … denying Zurich its right to reimbursement would harm other plan members and beneficiaries by reducing the funds available to pay those claims.” Id. Subsequent cases in the Third and Ninth Circuits, U.S. Airways, Inc. v. McCutchen, 663 F.3d 671 (3d Cir. 2011), and CGI Techs. & Solutions v. Rose, 683 F.3d 1113 (9th Cir. 2012), disagreed with O’Hara, finding that “equitable principles” such as unjust enrichment and the common law “make whole” and “common fund” doctrines can curtail reimbursement recoveries, notwithstanding express plan language disclaiming their application. The Supreme Court granted certiorari to resolve the circuit split, and ultimately agreed with O’Hara, reversed McCutchen and abrogated Rose. See U.S. Airways v. McCutchen, 133 S. Ct. 1537, 1546–48 (2013) (an “equitable lien by agreement … both arises from and serves to carry out a contract’s provisions. So enforcing the lien … means declining to apply rules—even if they would be ‘equitable’ in a contract’s absence—at odds with the parties’ expressed commitments…. [P]rinciples of unjust enrichment give way when a court enforces an equitable lien by agreement. The agreement itself becomes the measure of the parties’ equities; so if a contract abrogates the common-fund doctrine, the insurer is not unjustly enriched by claiming the benefit of its bargain.”). 1083

Notwithstanding the subrogation or reimbursement provisions of an ERISA plan, “the federal common law make whole doctrine precludes [a plan administrator] from off-setting its monthly disability benefits” to account for a participant’s tort recovery unless the participant has been made whole. Smith v. Life Ins. Co. of N. Am., 466 F. Supp. 2d 1275, 1286 (N.D. Ga. 2006). See also Guy v. Se. Iron Workers’ Welfare Fund, 877 F.2d 37, 39 (11th Cir. 1989) (under the make-whole doctrine, “an insured who has settled with a third-party tortfeasor is liable to the insurer-subrogee only for the excess received over the total amount of his whole loss”). However, “the makewhole doctrine is a default rule that applies only in the absence of specific and unambiguous [plan] language precluding it.” O’Hara, 604 F.3d at 1236 (quoting Cagle v. Bruner, 112 F.3d 1510, 1520 (11th Cir. 1997)). The Supreme Court generally agreed with this approach in McCutchen, holding that courts may “properly take[] account of background legal rules—the doctrines that typically or traditionally have governed a given situation when no agreement states otherwise.” McCutchen, 133 S. Ct. at 1549. District courts within the Eleventh Circuit have held that state law claims brought to enforce reimbursement and subrogation provisions in plans governed by ERISA are preempted by ERISA, 29 U.S.C. § 1144. Herman v. Metro. Life Ins. Co., 2008 WL 5246319, at *3 (M.D. Fla. Dec. 16, 2008); Int’l Painters & Allied Trades Indus. Pension Fund v. Aragones, 2008 WL 2415025, at *2 n.4 (M.D. Fla. June 12, 2008). The district courts are split, however, as to whether a federal common law claim of unjust enrichment is cognizable in the ERISA context. 1084

Compare Herman, 2008 WL 5246319 (not cognizable), and Eldridge, 383 F. Supp. 2d 1367 (same), with Unum Life Ins. Co. v. O’Brien, 2004 WL 2283559 (M.D. Fla. Oct. 4, 2004) (cognizable), and Fick v. Metro. Life Ins. Co., 347 F. Supp. 2d 1271 (S.D. Fla. 2004) (same). In AirTran Airways, Inc. v. Elem, 771 F. Supp. 2d 1344 (N.D. Ga. 2011), AirTran brought suit against Elem, a former employee and plan participant, and her personal injury attorney under ERISA § 502(a)(3) for reimbursement of over $131,000 in self-funded health plan benefits. The benefits were paid to cover medical treatment expenses incurred due to injuries Elem sustained in a motor vehicle accident. Elem filed a personal injury lawsuit against the responsible driver that was settled for $500,000; the settlement funds were distributed to Elem and her attorney without reimbursing the plan, although AirTran had provided Elem and her attorney with notice of the plan’s subrogation and reimbursement rights. AirTran alleged that Elem and her attorney were unjustly enriched. The defendant attorney filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that he was not a plan fiduciary and therefore was not subject to suit under ERISA. He further argued that he “innocently” possessed settlement funds as an attorney fee that should not be subject to the plan’s reimbursement provisions. The court denied the attorney’s motion to dismiss, noting that unlike other sections of ERISA, § 502(a)(3) does not 1085

limit the defendants against whom a plan fiduciary may proceed to obtain equitable relief. Thus, in Harris Trust & Savings Bank v. Salomon Smith Barney, Inc., 530 U.S. 238 (2000), the Supreme Court expressly held that a nonfiduciary can be a proper defendant under § 502(a)(3). The court noted that the Fifth and Sixth Circuits had extended the rationale of Harris Trust to attorneys of plan participants who hold settlement funds that should be reimbursed to the plan. See Longaberger Co. v. Kolt, 586 F.3d 459 (6th Cir. 2009); Bombardier Aerospace Emp. Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, 354 F.3d 348 (5th Cir. 2003). Following these authorities, the court held that counsel for an ERISA plan beneficiary may be subject to suit under § 502(a)(3) if (1) funds rightfully belonging to a plan were wrongfully transferred; (2) the attorney had “actual or constructive knowledge” of the circumstances that rendered the transfer wrongful; and (3) the plan seeks appropriate equitable relief, such as restitution or imposition of a constructive trust. AirTran alleged that (1) settlement funds rightfully belonging to the plan under its subrogation and reimbursement provisions were wrongfully transferred to the attorney; (2) the attorney had actual knowledge of the plan’s subrogation and reimbursement rights and therefore knew that any transfer of settlement funds to the attorney was wrongful; and (3) AirTran was entitled to equitable relief via imposition of a constructive trust or equitable lien or through a theory of unjust enrichment. Thus, the court held that each of the § 502(a)(3) elements were satisfied and the attorney was susceptible to suit.

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The court rejected the attorney’s argument that he merely “innocently possess[ed] funds paid as compensation for legal services rendered,” noting that AirTran attached letters to its complaint showing that the attorney was expressly informed of the subrogation and reimbursement rights of the plan. The court further observed that Harris Trust did not require the attorney himself to engage in any wrongdoing. Rather, all that was required was that the attorney “had knowledge of the wrongful transfer” of funds owed to the plan, which AirTran alleged in its complaint. The district court in Elem ultimately granted summary judgment to AirTran, and awarded attorney’s fees in the amount of $145,723.28, holding that the attorney’s arguments against reimbursing the plan were in “bad faith” and were “wholly unreasonable.” AirTran Airways, Inc. v. Elem, 2013 U.S. Dist. LEXIS 53967 (N.D. Ga. Mar. 26, 2013). Prejudgment interest may be awarded to a plan fiduciary who recoups benefits under § 1132(a)(3). See Aragones, 2008 WL 2415025, at *8 & n.10. But see Culp, Inc. v. Cain, 414 F. Supp. 2d 1118, 1132 (M.D. Ala. 2006). XV. Miscellaneous A. How Does the Eleventh Circuit Award and Calculate Prejudgment Interest? In general, the Eleventh Circuit considers “[t]he award of an amount of prejudgment interest in an ERISA case [to be] a matter ‘committed to the sound discretion of the trial 1087

court.’” Smith v. Am. Int’l Life Assur. Co., 50 F.3d 956, 958 (11th Cir. 1995) (affirming award of prejudgment interest based on Georgia’s postjudgment interest rate of 12 percent) (quoting Nightingale v. Blue Cross/Blue Shield of Ala., 41 F.3d 1476, 1484 (11th Cir. 1995) (affirming award of prejudgment interest at the rate of 18 percent under Alabama statute requiring insurer to pay if claim is denied for invalid reason)). Most recently, the Eleventh Circuit held that the district court did not abuse its discretion in denying the participant’s claim for prejudgment interest on an award of disability benefits. Byars v. Coca-Cola Co., 517 F.3d 1256, 1270 (11th Cir. 2008). The court’s holding was without citation to authority, but purported to be based on the facts that the interest sought exceeded the benefits awarded and that the participant bore “some fault for the extended period of time required to litigate this case to judgment.” Id. In Green v. Holland, 480 F.3d 1216 (11th Cir. 2007), and Flint v. ABB, Inc., 337 F.3d 1326 (11th Cir. 2003), the court provided a more in-depth analysis of a participant’s ability to recover prejudgment interest under ERISA § 502(a)(1)(B) and (a)(3). A few principles can be extrapolated from these cases, and from the district court cases construing them. First, the Eleventh Circuit has made clear that in the absence of a plan provision providing for payment of prejudgment interest on accrued benefits payable under an ERISA plan, interest is not recoverable under § 502(a)(1)(B) if a plan participant brings an independent action to recover prejudgment interest (i.e., if the plan participant brings an action that does not also involve a 1088

claim for benefits payable under the ERISA plan). Green, 480 F.3d at 1222–23; Flint, 337 F.3d at 1329–30. This is based on the court’s “reluctan[ce] to infer an implied cause of action from § 502(a)(1)(B),” under which a participant may bring a civil action “to recover benefits due to him under the terms of this plan,” and the court’s observation that “no circuit has recognized a claim for interest under § 502(a)(1)(B) of ERISA.” Flint, 337 at 1329. See also Green, 480 F.3d at 1223. Second, although the rationale of Flint suggests a per se prohibition on the recovery of prejudgment interest under § 502(a)(1)(B), the Eleventh Circuit, in dicta, has suggested otherwise. In Green, the court noted that “Flint only addressed the narrow question of whether a claimant could bring a stand alone cause of action for interest under § 502(a)(1)(B) in the absence of any plan provision providing for interest.” Green, 470 F.3d at 1223 n.4. The court stated that “the Flint decision leaves open the prospect of an ERISA claimant litigating and recovering an award of benefits that are due and unpaid under § 502(a)(1)(B) and receiving, as part of that benefits award, interest on those benefits from the time they were due.” Id. (discussing with approval Cheal v. Life Ins. Co. of Am., 330 F. Supp. 2d 1347, 1352 (N.D. Ga. 2004), in which the district court limited Flint to the facts of that case and found that a claimant who is successful in recovering a judgment for benefits “may be able to recover prejudgment interest at the discretion of the Court” under § 502(a)(1)(B)). Since Flint was decided, district courts within the Eleventh Circuit also have awarded prejudgment interest 1089

to plan participants in ERISA cases. See Burroughs v. BellSouth Telecomms., Inc., 446 F. Supp. 2d 1294 (N.D. Ala. 2006) (awarding disability benefits and prejudgment interest at a rate of six percent per annum, relying on Oliver v. Coca-Cola Co., 397 F. Supp. 2d 1327 (N.D. Ala. 2005), rev’d in part on other grounds, 497 F.3d 1181 (11th Cir. 2007)), vacated and remanded on other grounds, 248 F. App’x 64 (11th Cir. 2007); Oliver, 397 F. Supp. 2d at 1330–31 (awarding disability benefits and prejudgment interest at a rate of 10 percent, relying on the “well reasoned opinion” of Cheal). Third, in addressing whether prejudgment interest is recoverable under § 502(a)(3)(B), the Eleventh Circuit has observed that, under the plain language of the statute, “the relief sought must be equitable in nature, and the claim for relief must be predicated on either a violation of ERISA or … a plan provision.” Green, 480 F.3d at 1224. The court has noted that the Supreme Court’s decision in Great-West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204 (2002), “raises the question whether § 502(a)(3) ever allows an award of interest for delayed benefits or whether such a claim is an impermissible attempt to dress an essentially legal claim in the language of equity.” Flint, 337 F.3d at 1331. The court has not reached that question, however, because the court, in both Flint and Green, found no violation of ERISA or a plan provision. Green, 480 F.3d at 1226; Flint, 337 F.3d at 1331. Based on the reasoning of the Eighth and Third Circuits, the district court in Cheal stated in dicta “that it would be possible [after Knudson] for a plaintiff to state a claim under § 502(a)(3) to recover interest for breach [of] 1090

fiduciary duty.” Cheal, 330 F. Supp. 2d at 1354–55 (discussing Skretvedt v. E.I. DuPont de Nemours, 372 F.3d 193 (3d Cir. 2004), and Parke v. First Reliance Standard Life Ins. Co., 368 F.3d 999 (8th Cir. 2004)). The court declined to award prejudgment interest to Cheal under § 502(a)(3), however, because the court already had determined that Cheal could recover prejudgment interest under § 502(a)(1)(B). Id. at 1355–56 (“An ERISA plaintiff who has an adequate remedy under § 502(a)(1)(B) cannot alternatively plead and proceed under § 502(a)(3).”). The court suggested, however, that prejudgment interest could be recovered under § 502(a)(3) in cases “such as Flint, where the plaintiff has already received benefits and seeks to recover solely for interest.” Id. at 1356. B. ERISA Class Actions The Eleventh Circuit has certified a number of class actions in ERISA cases and has appeared to analyze these types of cases no differently than any other putative class claims. In Piazza v. Ebsco Industries, Inc., 273 F.3d 1341 (11th Cir. 2001), the court addressed the appropriateness of class certification in an ERISA action brought by a former employee and participant in the plan against the employer, directors, and certain trustees and fiduciaries of the plan complaining of the employer’s stock buyback. Citing traditional class-action case law, the court addressed the requirements for class-action certification: numerosity, commonality, typicality, and adequacy of representation. The court ultimately found that a former employee whose professional malpractice claims against accountants who allegedly undervalued the 1091

employer’s stock, which the ERISA plan sold back to the employer, could not be an adequate class representative for other employees alleging malpractice. The court also found that the class representative did not have standing to assert claims relating to conduct before he became an employee with regard to the ERISA breach of fiduciary duty claims and did not have standing to raise a claim for alleged breaches occurring after his retirement. Significantly, the defendants contended that because Piazza was not individually injured by the plan’s 1994 sale of the Ebsco stock, his only ERISA claim was “for appropriate relief” to the plan for alleged breaches of fiduciary duty. Because such a claim was brought on behalf of the plan itself only, any recovery will benefit the plan and, indirectly, the members of the class. Defendants argued that allowing individuals to opt out of the class action and pursue their own suits under 29 U.S.C. § 1132(a)(2) would require the defendants to defend against multiple suits, each asserting what is actually one claim belonging to the plan. Therefore, defendants argued that the requirements of Federal Rule of Civil Procedure 23(b)(1) were met because “inconsistent or varying adjudications with respect to individual members of the class” on the claim would “establish incompatible standards of conduct” for them. The court agreed and found that the district court had abused its discretion to certify the § 1132(a)(2) claim under Rule 23(b)(3). In Hudson v. Delta Air Lines Inc., 90 F.3d 451 (11th Cir. 1996), certain retirees brought a class action against the airline based on alleged ERISA violations and a pendant breach of contract claim. The Eleventh Circuit reviewed 1092

the district court’s denial of the motion for class certification and dismissal of pendant state claims for lack of jurisdiction on the interlocutory appeal. The court upheld the district court’s denial of class certification by agreeing that commonality was not satisfied with regard to allegations that the employer misled retirees as the claims were not susceptible to class-wide proof. The court in Specialty Cabinets & Fixtures Inc. v. Am. Equitable Life Ins. Co., 140 F.R.D. 474 (S.D. Ga. 1991), conditionally certified a class action brought by beneficiaries who sought to recover unpaid benefits and for damages for breach of fiduciary duties for settlement purposes only. The court concluded that all four factors for class certification had been met. In Jones v. Am. Gen. Life & Acc. Ins. Co., 213 F.R.D. 689 (S.D. Ga. 2002), the court certified class claims by a retiree on behalf of a class seeking to enjoin a successor employer from canceling life insurance for retirees. The court certified the injunctive class with respect to a breach of conduct claim regarding the termination of life insurance coverage but refused to certify the injunctive class with respect to promissory estoppel claims. C. Removal of ERISA Cases Courts in the Eleventh Circuit typically approve removal of ERISA matters as a matter of course and have found that benefit actions are an exception to the well-pleaded complaint rule for removal. Whitt v. Sherman Int’l Corp., 147 F.3d 1325, 1329–30 (11th Cir. 1998). Notes 1093

1. See also Krasny v. Aetna Life Ins. Co. d/b/a Aetna Healthcare, 147 F. Supp. 2d 1300 (M.D. Fla. 2001) (complete preemption applied to claim that involved both treatment and coverage); Garrison v. Ne. Ga. Med. Ctr., 66 F. Supp. 2d 1336 (N.D. Ga. 1999) (complete preemption applied to claim that cesarean section was denied due to economic factors).

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CHAPTER 12 D.C. Circuit MEREDITH GAGE GLENN MERTEN WILL E. WILDER I. What Constitutes an ERISA Plan? A. Determining the Existence of an Employee Welfare Benefit Plan Not every grant of an employee benefit is governed by ERISA. The statute’s focus is “on the administrative integrity of the benefit plans—which presumes that some type of administrative activity is taking place,” and applies only “with respect to benefits whose provision by nature requires an ongoing administrative program to meet the employer’s obligation.” Young v. Wash. Gas Light Co., 206 F.3d 1200, 1203 (D.C. Cir. 2000) (quoting Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11, 15 (1987)) (decided in context of a corporate restructuring plan, which included a retirement incentive program that provided for a one-time, lump-sum payment triggered by a single event and required no ongoing administration of the benefit). “[W]hether a benefit is regulated by ERISA turns on the nature and extent of the administrative obligations that the benefit imposes on the employer.” Id. 1095

(quoting with favor, Belanger v. Wyman-Gordon Co., 71 F.3d 451, 454 (1st Cir. 1995) (“[A]n employee benefit may be considered a plan for purposes of ERISA only if it involves the undertaking of continuing administrative and financial obligations by the employer to the behoof of employees or their beneficiaries.”)). Is the existence of an ERISA plan jurisdictional or, instead, is it a substantive element of a plaintiff’s claim for relief? The district court in Gray v. Am. Acad. of Achievement, 2005 U.S. Dist. LEXIS 4646 (D.D.C. Mar. 21, 2005), held that “[t]o create federal jurisdiction under ERISA, a plaintiff must allege facts that show the establishment of a plan of the type covered by ERISA.” Id. at *3 (citing Young v. Wash. Gas Light Co., 206 F.3d 1200 (D.C. Cir. 2000)). In Gray, a “split dollar” insurance policy and its surrounding agreements—which obligated the defendant employer to pay lump sums, premiums, and deficit contributions during and after plaintiff’s employment, but did not require ongoing administrative obligations (particularly none of a discretionary nature)—were found not to amount to an ERISA plan. The district court therefore dismissed the complaint “on jurisdictional grounds.” Id. at *1. Although the case was appealed, it was voluntarily dismissed before the D.C. Circuit could address the relevant jurisdictional issue. See Gray v. Am. Acad. of Achievement, 2006 U.S. App. LEXIS 9327 (D.C. Cir. Apr. 5, 2006) (ordering supplemental briefs addressing the impact on Young of Arbaugh v. Y & H Corp., 546 U.S. 500 (Feb. 22, 2006)). B. Definition of “Employee” for ERISA Purposes 1096

ERISA defines “employee” as “any individual employed by an employer.” 29 U.S.C. § 1002(6) (1999). Noting that this definition is “completely circular and explains nothing” the U.S. Supreme Court adopted in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992), a common law agency test for determining who qualifies as an “employee” under ERISA. Pre-Darden law in the D.C. Circuit had followed that same approach. See Holt v. Winpisinger, 811 F.2d 1532, 1538 (D.C. Cir. 1987) (holding that “one must look to common law rules of agency to determine employee status”). In Holt, the court relied on the Restatement (Second) of Agency § 220(2) (1958), which lists ten factors to be considered when differentiating between an employee and an independent contractor: A. the extent of control which, by the agreement, the master may exercise over the details of the work; B. whether or not the one employed is engaged in a distinct occupation or business; C. the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; D. the skill required in the particular occupation; E. whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; 1097

F. the length of time for which the person is employed; G. the method of payment, whether by the time or by the job; H. whether or not the work is a part of the regular business of the employer; I. whether or not the parties believe they are creating the relation of master and servant; and J. whether the principal is or is not a business. Id. at 1540 n.54. Of the 10 factors, the Holt court found “the right of one party to control not only the result to be achieved by the other, but also the means and manner of performing the task assigned, [to be] the most critical factor in ascertaining whether an employment relationship exists.” Id. at 1539. In Mayeske v. Int’l Assoc. of Fire Fighters, 905 F.2d 1548, 1553 (D.C. Cir. 1990), the court confirmed that Holt sets the “standard for distinguishing between employees and independent contractors,” but noted that Cmty. for Creative NonViolence v. Reid, 490 U.S. 730 (1989), influenced its approach to the Holt common law test. Unlike Holt, which held that the “control over details” factor is the most critical factor, Mayeske acknowledged that the “Reid Court’s analysis makes clear that ‘the hiring party’s right to control the manner and means by which the product is accomplished’ deserves separate analysis but ‘is not dispositive.’” Mayeske, 905 F.2d at 1554 (quoting Reid, 490 U.S. at 751–52). Reid involved a copyright dispute 1098

between a sculptor who had prepared a commissioned work and the commissioning organization. The sculptor’s claim to copyright ownership depended on whether the sculptor was an employee of the commissioning organization. After applying the same common law test outlined in Holt, the court concluded that the sculptor was an independent contractor. The court found that the sculptor did not control the details of his work, but determined that the other factors outweighed this finding. C. Interpretation of Safe Harbor Regulation To date, no reported D.C. Circuit cases have addressed the “safe harbor” regulation. D. Amount of Employer Involvement Required to Sustain an Employee Welfare Benefit Plan ERISA does not specifically state what constitutes a “plan” within the meaning of the statute. However, the Supreme Court has made clear that ERISA does not govern every grant of an employee benefit. The Court noted that ERISA’s focus was “on the administrative integrity of benefit plans—which presumes that some type of administrative activity is taking place,” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 15 (1987), and it concluded that the statute applies only “with respect to benefits whose provision by nature requires an ongoing administrative program to meet the employer’s obligation.” Id. at 11. Accordingly, “whether a benefit is regulated by ERISA turns on the nature and extent of the administrative obligations that the benefit imposes on the employer.” Young v. Wash. Gas Light Co., 206 F.3d 1200, 1099

1203 (D.C. Cir. 2000). In Young, after applying the test set forth in Fort Halifax Packing, the court concluded that the Washington Gas “Voluntary Separation Pay Window Program” was not a qualified plan under ERISA because the administrative responsibilities imposed upon Washington Gas were “not the kinds of administrative decisions that require ERISA’s protection.” Id. at 1204. “Washington Gas was only required to make the straightforward factual determination of whether the employee had met each of the conditions specified in the Program, such as the requirements that the employee submit an election form and meet certain length-ofservice criteria, and then to calculate the amount of the separation payment by multiplying the employee’s base pay rate by fifty-two.” Id. The court acknowledged that the program also required Washington Gas to perform one discretionary act, but concluded that “the exercise of this limited discretionary right … did not create a need for an ongoing administration benefit; therefore, it did not bring the Program under ERISA.” Id. E. Treatment of Multiple Employer Trusts and Welfare Agreements The D.C. Circuit has not addressed the treatment of multiple employer trusts and welfare agreements. F. Treatment of Individual Business Owners To date, no reported D.C. Circuit cases have specifically addressed the treatment of individual business owners; the Supreme Court’s ruling in Raymond B. Yates, M.D., P.C. 1100

Profit Sharing Plan v. Hendon, 541 U.S. 1 (2004), controls. G. De Facto Plan Administrators ERISA defines an “administrator” as “the person specifically so designated by the terms of the instrument under which the plan is operated,” or “if an administrator is not so designated, the plan sponsor.” 29 U.S.C. § 1002(16)(A)(i), (ii). To date, courts in the D.C. Circuit have not recognized de facto plan administrators. See Wright v. Metro. Life Ins. Co., 618 F. Supp. 2d 43, 60 (D.D.C. 2009) (noting that the plaintiff has not cited “any binding legal authority in this jurisdiction which indicates that the responsibilities of the Plan administrator may be imposed upon a fiduciary under the Plan beyond what the law already requires”); Davis v. Liberty Mut. Ins. Co., 871 F.2d 1134, 1138 (D.C. Cir. 1989) (declining to recognize the defendant as a plan administrator where the defendant was not designated by the plan as an administrator). II. Preemption A. Scope of ERISA Preemption ERISA provides broadly for the preemption of “all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title,” 29 U.S.C. § 1144(a), subject to certain exceptions. See Greater Wash. Bd. of Trade v. Dist. of Columbia, 948 F.2d 1317, 1321–22 (D.C. Cir. 1991) (ERISA establishes as an area of exclusive federal concern the subject of every state law that “relates to” an employee benefit plan 1101

governed by ERISA), aff’d, 506 U.S. 125 (1992). “State law” in this context includes common law as well as statutory law. Nat’l Rehab. Hosp. v. Manpower Int’l, Inc., 3 F. Supp. 2d 1457, 1459 n.4 (D.D.C. 1998). “[E]ven general common law causes of action, such as breach of contract, which were not specifically intended to apply to benefit plans covered by ERISA, will nonetheless be preempted insofar as they affect ERISA-protected rights.” Bd. of Trs. of the Hotel & Rest. Emps. Local 25 v. Madison Hotel, Inc., 97 F.3d 1479, 1486–87 (D.C. Cir. 1996). See also James v. Int’l Painters & Allied Trades Ind. Pension Plan, 710 F. Supp. 2d 16, 31–32 (D.D.C. 2010); Moore v. Blue Cross & Blue Shield of the Nat’l Capital Area, 70 F. Supp. 2d 9, 18–19 (D.D.C. 1999); Psychiatric Inst. of Wash., D.C., Inc. v. Conn. Gen. Life Ins. Co., 780 F. Supp. 24, 28–29 (D.D.C. 1992). ERISA’s preemption of District of Columbia statutory law was analyzed in Pharm. Care Mgmt. Ass’n v. Dist. of Columbia, 613 F.3d 179 (D.C. Cir. 2010), holding that ERISA preempted certain provisions of Title II of the District of Columbia’s Access Rx Act of 2004, D.C. Code §§ 48–831 et seq. The District’s Access Rx Act regulates the relationship between pharmaceutical benefit management companies (PBMs) and various “covered entities,” including ERISA health plans, government agencies, and insurance companies. PBMs process claims for pharmaceutical drug benefits for hundreds of millions of Americans. Although the Act did not impose restrictions on plans, plan fiduciaries, or plan sponsors, it nevertheless regulated PBMs by imposing fiduciary duties on them and requiring disclosure of certain financial information. Observing that sections of 1102

the Act intruded on the administration of prescription drug benefit plans (including ERISA plans) by imposing mandates on PBMs, which administer such plans for their customers, the court of appeals reasoned that those sections thereby improperly intrude on areas of express ERISA concern, such as the avoidance of inconsistent state-by-state requirements for the administration of ERISA plans. The court concluded that by managing the relationship between an ERISA plan and third-party service providers instrumental to the administration of the plan (the PBMs), sections of the Act improperly injected state regulation into an area exclusively controlled by ERISA. Id. at 185–86. However, because other sections of the act challenged by plaintiffs imposed only “voluntary” restrictions upon benefit plans (in the sense that a plan could waive these restrictions in its contract with a PBM), the court of appeals held that these other sections were not preempted by ERISA. Id. at 186–89. An exception from ERISA preemption is found in the savings clause for “any law of any State which regulates insurance, banking, or securities.” 29 U.S.C. § 1144(b)(2)(A). In Kentucky Ass’n of Health Plans v. Miller, 538 U.S. 329 (2003), the Supreme Court concluded that for a state law to be deemed a “law … which regulates insurance” under § 1142(b)(2)(A), the law must satisfy two requirements: (1) the state law must be “specifically directed toward entities engaged in insurance,” and (2) the state law must “substantially affect the risk pooling arrangement between the insurer and the insured.” Id. at 341–42.

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Federal courts within the District of Columbia have yet to address whether a state law “regulates insurance” for purposes of § 1144(b)(2)(A) under the new framework set out in Miller. Prior cases from the District of Columbia courts had employed the Supreme Court’s pre-Miller approach to savings clause questions, which borrowed three factors from the McCarran-Ferguson Act to decide if a law “regulated insurance.” O’Connor v. Unum Life Ins. Co. of Am., 146 F.3d 959 (D.C. Cir. 1998) (employing the “McCarran-Ferguson Act factors” to find that the law at issue fell under the savings clause and was not preempted). The district court acknowledges the “tenuous and peripheral” exception to ERISA preemption: “Certain ‘state actions may affect employee benefit plans in too tenuous, remote or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.’” Nat’l Rehab. Hosp. v. Manpower Int’l, Inc., 3 F. Supp. 2d 1457, 1459 (D.D.C. 1998) (quoting Shaw v. Delta Airlines, Inc., 463 U.S. 85, 100 (1983)). In the absence of guidance from the D.C. Circuit, the district court in the Manpower case adopted the reasoning of the Fifth and Eighth Circuits in concluding that ERISA did not preempt a state law contract action against an ERISA plan administrator and an ERISA claims processor where the action was based on incorrect verifications of coverage for a nonparticipant in the plan. Id. at 1459–60 (citing Mem’l Hosp. Sys., 904 F.2d 236 (5th Cir. 1990) (two-factor test: preemption only where (1) state law claims address areas of exclusive federal concern, such as right to receive benefits under terms of an ERISA plan and (2) claims directly affect 1104

relationship among traditional ERISA entities, i.e., employer, plan, fiduciaries, participants, and beneficiaries); and Home Health, Inc. v. Prudential Ins. Co. of Am., 101 F.3d 600 (8th Cir. 1997) (seven-factor test: whether state law (1) contradicts ERISA, (2) affects relations between traditional ERISA entities, (3) affects the structure of ERISA plans, (4) affects the administration of ERISA plans, (5) economically affects ERISA plans, (6) could be preempted consistently with other ERISA provisions and the policy behind ERISA, and (7) is an exercise of traditional state power)). An earlier district court decision distinguished between claims for wrong-doing by ERISA plan personnel or its contractors in the course of administering the plan, which are preempted by ERISA, and claims for wrongdoing in the nature of fraud in the inducement committed not by the plan but by third parties such as the employer and the insurance carrier, which ERISA does not preempt. Johnson v. Antioch Univ., 1992 U.S. Dist. LEXIS 4931 (D.D.C. 1992). In Johnson, a former university employee alleged five common law claims against her former employer and the insurer of the university’s long-term disability benefits plan for misrepresenting the coverage available in light of her preexisting medical condition. Guided by the two-factor analysis set out in Sommer Drug Stores v. Corrigan Enterprises, Inc., 793 F.2d 1456, 1467–68 (5th Cir. 1986), the district court held that claims alleging breach of fiduciary duty and breach of contract were sufficiently related to the relevant employee benefit plan to be preempted by ERISA § 514(a), but that claims alleging misrepresentation, gross negligence, and promissory estoppel were not preempted as they were 1105

within the exercise of traditional state authority and their resolution would not affect relations among the principal ERISA entities (employer, plan, fiduciaries, and beneficiaries). Johnson, at *10–13. But see Olivo v. Elky, 2009 U.S. Dist. LEXIS 73728, at *8–12 (D.D.C. Aug. 20, 2009) (holding that ERISA preempts common law claim for negligent failure of plan fiduciaries to give notice of eligibility for participation in ERISA-defined contribution pension plan and observing that district court has declined to follow Johnson in more recent cases). ERISA’s preemptive shadow will fall over state law claims even where the allegations of the complaint fail to state ERISA claims for plan benefits, breach of fiduciary duty, or violation of specific ERISA provisions. Under the so-called “complete preemption” doctrine, a state law claim will be preempted when the state law claim “duplicates, supplements, or supplants the ERISA civil enforcement remedy.” Stewart v. Nat’l Educ. Ass’n, 404 F. Supp. 2d 122, 136–39 (D.D.C. 2005) (dismissing on preemption grounds state law claims for breach of contract, breach of fiduciary duty, tortious interference with contractual relations, failure of express trust, and unjust enrichment). Additionally, if a state law creates a separate vehicle to assert a claim of benefits outside of, or in addition to, ERISA’s remedial scheme—thereby, creating an enforcement mechanism for the rights provided by ERISA—such law may be subject to complete preemption under ERISA. See Pharm. Care Mgmt. Ass’n, 613 F.3d at 190 (citing Aetna Health Inc. v. Davila, 542 U.S. 200, 217–18 (2004)). Complete preemption is a defense to

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a state cause of action, and provides a ground for a state court to dismiss the action. An action originally commenced in the D.C. Superior Court and subsequently removed to the district court alleging discriminatory termination under the D.C. Human Rights Act and common law tort claims, but seeking damages valued in part based on the loss of ERISA-related health, life, and disability benefits, was not preempted by ERISA. Schultz v. Nat’l Coal. of Hispanic Mental Health & Human Servs. Orgs., 678 F. Supp. 936 (D.D.C. 1988) (remanding to Superior Court). The district court held that ERISA does not preempt claims to recover the value of fringe benefits lost when employment is improperly terminated. In dicta, the court observed that ERISA would preempt claims for ERISA benefits per se, or for improper processing of ERISA benefits, or for a termination effected to avoid providing ERISA-covered benefits, or to keep such benefits from vesting, “or for some other reason whose impropriety is directly connected to the ERISA-covered plan.” Id. at 937–38. B. Preemption of Managed Care and Malpractice Claims A common law medical malpractice claim is not preempted by ERISA if the only connection of the claim to an ERISA plan is the defendant physician’s employment by a health maintenance organization to which the plaintiff subscribed. Edelen v. Osterman, 943 F. Supp. 75 (D.D.C. 1996) (remanding removed action to state court). In the absence of D.C. Circuit guidance, Edelen relied on cases from the Third, Tenth, and Seventh 1107

Circuits and the district of Maryland. Edelen distinguished between claims alleging negligent health care by an HMO physician (not preempted by ERISA) and claims alleging an improper denial of plan benefits by an HMO itself, such as a refusal to precertify a subscriber for surgery or in-patient hospital care (preempted by ERISA). C. Other Preemption Issues Where an initial ERISA-based lawsuit is settled by written agreement, subsequent claims for breach of the settlement agreement are preempted by ERISA, particularly where enforcement of the settlement will require the adjudication of substantive federal law issues over which federal courts have exclusive jurisdiction under ERISA. Bd. of Trs. of the Hotel & Rest. Emps. Local 25 v. Madison Hotel, Inc., 97 F.3d 1479 (D.C. Cir. 1996) (fiduciaries’ action for breach of agreement settling earlier claim against hotel-employer to recover delinquent contributions to ERISA employee benefit funds). ERISA does not divest a Railway Labor Act arbitration panel of its exclusive jurisdiction to interpret collectively bargained agreements. Air Line Pilots Ass’n, Int’l v. Nw. Airlines, Inc., 444 F. Supp. 1138 (D.D.C. 1978). As suggested by Varity Corp. v. Howe, 516 U.S. 489 (1996), one ERISA claim may preempt another. In Varity, the Supreme Court held that ERISA § 502(a)(3) authorizes some individualized claims for breach of fiduciary duty when a plaintiff’s injury would not find adequate relief in another part of ERISA § 502, id. at 512, 1108

but that where ERISA elsewhere provides adequate relief for a beneficiary’s injury, it would not be appropriate to afford further equitable relief under ERISA § 502(a)(3). Id. at 515. The D.C. Circuit has not addressed whether a plaintiff may proceed with claims under both ERISA § 502(a)(1)(B) and (a)(3), but the district court follows the majority of circuits that have decided this issue, which have held that a breach of fiduciary duty claim cannot stand where a plaintiff has an adequate remedy through a claim for benefits under § 502(a)(1)(B). Wright v. Metro. Life Ins. Co., 618 F. Supp. 2d 43, 54–56 (D.D.C. 2009) (following majority of circuits); Clark v. Feder Semo & Bard, P.C., 527 F. Supp. 2d 112, 116–17 (D.D.C. 2007) (following two other district court cases, Crummett v. Metro. Life Ins. Co., 2007 WL 2071704 at *3 (D.D.C. July 16, 2007), and Hurley v. Life Ins. Co. of N. Am., 2005 U.S. Dist. LEXIS 43038 at *32 (D.D.C. July 7, 2005)). III. Exhaustion of Administrative Remedies A. Is Exhaustion an Absolute Requirement? It is well established that, barring exceptional circumstances, plaintiffs seeking a determination of rights under their pension plans pursuant to ERISA must exhaust available remedies under their ERISA-governed plans before they may bring suit in federal court. Because ERISA itself does not specifically require the exhaustion of remedies available under pension plans, courts have applied this requirement as a matter of judicial discretion. Much like the exhaustion doctrine in the context of judicial review of administrative agency action, the exhaustion requirement in the ERISA context serves 1109

several important purposes. By preventing premature judicial interference with a pension plan’s decisionmaking processes, the exhaustion requirement enables plan administrators to apply their expertise and exercise their discretion to manage the plan’s funds, correct errors, make considered interpretations of plan provisions, and assemble a factual record that will assist the court reviewing the administrators’ actions. Indeed, the exhaustion requirement may render subsequent judicial review unnecessary in many ERISA cases because a plan’s own remedial procedures will resolve many claims. Commc’ns Workers of Am. v. Am. Tel. & Tel. Co., 40 F.3d 426, 428, 431–32 (D.C. Cir. 1994). See also Boivin v. US Airways, Inc., 2006 U.S. App. LEXIS 10875 (D.C. Cir. May 2, 2006) (ERISA pension benefits case). Similarly, administrative remedies must be exhausted before the denial of long-term disability benefits under a welfare benefit plan can be challenged under ERISA. Hunter v. Metro. Life Ins. Co., 251 F. Supp. 2d 107, 110–11 (D.D.C. 2003) (following the rationale expressed in Commc’ns Workers of Am.). In Hunter, the claimant filed suit prior to the completion of the plan administrator’s review process. Hunter’s concise explanation of why administrative remedies had not been exhausted is informative: Plaintiff’s argument suggests a misunderstanding of both the exhaustion requirement and the communications she received from MetLife. MetLife’s notice of the termination of LTD benefits beginning on September 6 was the initial determination of the claim. It does not reflect a determination based on a review 1110

and, therefore, is not sufficient to exhaust the administrative remedies provided by the Plan. Moreover, the November 7, 2001, letter from MetLife is not a rejection of the claim after completion of a review but an interim notice that LTD benefits could not be reinstated, based on the information submitted, without such a review. The letter confirms that the claim was referred for an “independent review” at that time. Plaintiff was not advised of the results of this review until April 5, 2002. Thus, the review process provided for in the Plan was not exhausted when plaintiff filed suit on January 23, 2002. Further, even to date plaintiff has failed to exhaust administrative remedies. Rather, she pursued an opportunity for further appeal as provided for in MetLife’s April 5 letter, and as part of this appeal, she submitted 4,000 additional documents. This appeal process, however, has not been completed because plaintiff refused to have an [independent medical examination]. This amounts to a failure to exhaust. Id. at 111–12 (emphasis in original; record references omitted). The exhaustion of remedies requirement is not limited to denials of claims for benefits. It also applies to decisions terminating coverage under a benefits plan. Cox v. Graphic Commc’ns Conf. of the Int’l Bhd. of Teamsters, 603 F. Supp. 2d 23, 28–32 (D.D.C. 2009) (employer’s notice terminating employee’s coverage under health benefits plan subject to exhaustion of remedies requirement).

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Exhaustion of administrative remedies is not required for a claim under ERISA § 510 alleging breach of the statute’s substantive guarantees (e.g., wrongful termination), but exhaustion is required as to a claim under § 503 for breach of entitlement to plan benefits. Garvin v. Am. Ass’n of Retired Persons, 1992 U.S. Dist. LEXIS 2013, at *9–12 (D.D.C. 1992) (holding as to § 510 claims, dictum as to § 503 claims). B. Exceptions to the Exhaustion Requirement The general rule in the District of Columbia is that the exhaustion requirement may be waived in only the most exceptional circumstances. The court has recognized a discretionary exception to the exhaustion requirement where resort to administrative remedies would be futile because of the certainty of an adverse decision. The futility exception is quite restricted and has been applied only when resort to administrative remedies is clearly useless. Commc’ns Workers of Am. v. Am. Tel. & Tel. Co., 40 F.3d 426, 432 (D.C. Cir. 1994) (ERISA pension plan); Hunter v. Metro. Life Ins. Co., 251 F. Supp. 2d 107, 111 n.4 (D.D.C. 2003) (ERISA welfare benefit plan). For cases involving a statutory violation of ERISA, the U.S. District Court for the District of Columbia found that the exhaustion requirement did not apply. Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d 18, 22–23 (D.D.C. 2000) (relying upon Zipf v. Am. Tel. & Tel. Co., 799 F.2d 889, 891 (3d Cir. 1986), and Amaro v. Cont’l Can Co., 724 F.2d 747, 752 (9th Cir. 1984)). See also Greer v. Graphic Commc’ns Int’l Union Officers, 941 F. Supp. 1, 3 (D.D.C. 1996) (same); Garvin v. Am. Ass’n of 1112

Retired Persons, 1992 U.S. Dist. LEXIS 2013, at *11 (D.D.C 1992) (same); Rauh v. Coyne, 744 F. Supp. 1186 (D.D.C. 1990), amended, No. 88-0833 (HHG), 1990 WL 426782 (D.D.C. Oct. 2, 1990) (same). The court reached this decision based on the lack of indication in ERISA’s statutory language and the legislative history that Congress intended the exhaustion requirement to apply to these claims. See Coleman, 94 F. Supp. 2d at 22 n.5. A very limited futility exception to the exhaustion-ofremedies requirement is recognized when an unfavorable administrative decision is certain; but a highly likely adverse decision will not meet the D.C. Circuit’s strict futility standard. Cox v. Graphic Commc’ns Conference of the Int’l Bhd. of Teamsters, 603 F. Supp. 2d 23, 30–32 (D.D.C. 2009). Filing an administrative appeal must be shown to be “clearly useless.” Id. (citing Hunter v. Metro. Life Ins. Co., 251 F. Supp. 2d 107, 111 n.4 (D.D.C. 2003)). Close relationships between company officers and plan administrators are unavailing to establish futility. Id. at 31 (citing Commc’ns Workers of Am. v. Am. Tel. & Tel. Co., 40 F.3d 426, 433 (D.C. Cir. 1994)). Exhaustion is not required, however, when efforts to obtain information on administrative appeals from the plan administrator prove fruitless. Jeffries v. Greater Se. Cmty. Hosp. Group Term Life Ins. Plan, 2005 U.S. Dist. LEXIS 38824, at *9–10 (D.D.C. Dec. 30, 2005) (“plaintiffs had no reason to believe that further appeals to administrative remedies would be fruitful”). C. Consequences of Failure to Make a Timely Request for an Administrative Review

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When a disability claimant commences an ERISA-based action without giving the insurer a chance to complete its review of a claim denial, the claimant cannot establish either that she was denied a fair opportunity for review of the claim or that the insurer’s processing of the claim denial prejudiced her. Heller v. Fortis Benefits Ins. Co., 142 F.3d 487, 493 (D.C. Cir. 1998) (claimant filed ERISA-based action two days after insurer offered, in writing and by telephone, to treat documents sent by claimant in response to the insurer’s claim denial as an appeal of insurer’s benefits determination). A claim for denial of long-term disability benefits under a welfare benefit plan will be dismissed without prejudice in order to allow the plaintiff to exhaust the available administrative remedies, unless the opportunity for pursuing administrative remedies has been foreclosed, making dismissal with prejudice appropriate. Hunter v. Metro. Life Ins. Co., 251 F. Supp. 2d 107, 112 n.10 (D.D.C. 2003). Section 503 of ERISA requires that every employee benefit plan provide adequate notice in writing to any participant whose claim for benefits under the plan is denied, and afford a reasonable opportunity to any participant whose claim has been denied for a full and fair review by the appropriate fiduciary. 29 USC § 1133. Plans must establish policies and procedures for handling claims that comply with ERISA and the regulations proscribed by the Department of Labor. If a plan adheres to notice requirements under ERISA and the DOL regulations, a claimant’s failure to timely request an administrative review could result in automatic denial of 1114

their claim. See White v. Aetna Life Ins. Co., 210 F.3d 412, 417 (D.C. Cir. 2000) (opining that a plan administrator’s denial of a claim based on failure to timely appeal would be upheld if the plan administrator had substantially complied with ERISA § 503 and its related regulations). With respect to an administrative review of a denied claim, the D.C. Circuit has adopted the “substantial compliance” test to determine whether denial notices have complied with Section 503 and its regulations. Id. at 414. The determination is made on a case-by-case basis, assessing the information provided by the insurer in the context of the beneficiary’s claim. Id. If the plan failed to comply with Section 503 and its regulations, the applicable time periods for requesting an administrative review under the terms of the plan may be tolled. Id. at 416. D. Issue versus Claim Exhaustion To date, there are no reported D.C. Circuit cases that distinguish between issue and claim exhaustion. E. Minimum Number of Levels of Administrative Review No D.C. Circuit case has expressly decided how many levels of administrative review a claimant may be required to exhaust. The issue is addressed in the regulation issued by the U.S. Department of Labor under ERISA § 503, which is discussed more fully below. F. Can a Defendant Waive a Failure-to-Exhaust Defense? 1115

In the ERISA context, the D.C. Circuit has not addressed this issue. However, in other contexts, the D.C. Circuit has found that a defendant can waive a failure-to-exhaust defense. See, e.g., Bowden v. U.S., 106 F.3d 433, 438–39 (D.C. Cir. 1997). IV. Standard of Review A. Plan Language The standard of review turns on whether the ERISA benefit plan confers discretionary authority on the plan fiduciary. “[A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111, 115 (1989). To determine whether an ERISA benefit plan confers discretion, the court first reviews the plan documents themselves: “It … need only appear on the face of the plan documents that the fiduciary has been given [the] power to construe disputed or doubtful terms—or to resolve disputes over benefits eligibility—in which case the trustee’s interpretation will not be disturbed if reasonable.” Block v. Pitney Bowes, Inc., 952 F.2d 1450, 1453–54 (D.C. Cir. 1992) (quoting De Nobel v. Vitro Corp., 885 F.2d 1180, 1187 (4th Cir. 1989) (internal quotations omitted)). The district court in Moore v. Blue Cross & Blue Shield of the Nat’l Capital Area followed Block:

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The D.C. Circuit has declared that there are no special words of art required to invoke the deferential standard of review; rather, the Court should focus on the character of the authority exercised by the administrator under the plan. It need only appear on the face of the plan documents that the fiduciary has been given the power to construe disputed or ambiguous terms or to resolve disputes over benefits eligibility. Therefore, language giving the administrator power “to interpret or construe” the plan or “to make final and binding” decisions, triggers deferential review. Moore v. Blue Cross & Blue Shield of the Nat’l Capital Area, 70 F. Supp. 2d 9, 20 (D.D.C. 1999) (citing Block, 952 F.2d at 1452–54). Some authority holds that a court may consider a plan’s summary plan description in analyzing whether the plan confers discretion. Pettaway v. Teachers Ins. & Ann. Ass’n of Am., 699 F. Supp. 2d 185, 200 (D.D.C. 2010). But see Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011) (“[w]e cannot agree that the terms of statutorily required plan summaries (or summaries of plan modifications) necessarily may be enforced (under § 502(a)(1)(B)) as the terms of the plan itself”). No “magic word or language” is required to grant discretionary authority, and the court may read several plan provisions together to identify the requisite empowering language. Wright v. Metro. Life Ins. Co., 618 F. Supp. 2d 43, 54 (D.D.C. 2009). In Wright, the court rejected the plaintiff’s position that no proper delegation occurred because the plan did not “delegate any discretionary authority to MetLife by name.” Id. at 52. In 1117

so finding, the court relied on plan provisions (1) setting out the claims procedure and identifying MetLife as the entity responsible for receiving claims, reviewing claims, and determining eligibility; (2) stating that MetLife “in its discretion has authority to interpret the terms, conditions, and provisions of the entire contract;” and (3) providing that the “Plan, the Plan administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits” and that “any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless it can be shown that interpretation or determination was arbitrary or capricious.” Id. at 53–54. The mere authority to deny a claim, however, does not by itself confer discretion to determine eligibility for benefits. Mobley v. Cont’l Cas. Co., 383 F. Supp. 2d 80, 85 (D.D.C. 2005), reconsideration denied, 405 F. Supp. 2d 42 (D.D.C. 2005). Use of the word “discretion” will not by itself result in deferential review, but will do so if it truly reflects the character of the authority granted to the plan administrator. In Buford v. Unum Life Ins. Co. of Am., 290 F. Supp. 2d 92 (D.D.C. 2003), the employee welfare benefit plan stated: “When making a benefit determination under the policy, UNUM has discretionary authority to determine [the insured’s] eligibility for benefits and to interpret the terms and provisions of the policy.” The district court observed that “[i]n determining whether a plan grants discretionary authority to the administrator or fiduciary, … a reviewing court must focus on more than whether the word ‘discretion’ is invoked in the plan language; instead, ‘what counts … is 1118

the character of the authority exercised by the administrators under the plan.’” Id. at 97 (quoting Block, F.2d at 1453–54). A benefits plan requiring the insured to “submit proof of disability” does not confer discretion on the plan administrator to determine eligibility for benefits within the meaning of Firestone, and the insurer’s classification of a disability (bipolar disorder) as mental rather than physical is therefore subject to de novo review. On such review, the parties are free to supplement the existing record by, among other things, submitting current medical evidence regarding bipolar disorder. Fitts v. Fed. Nat’l Mort. Ass’n, 236 F.3d 1, 4–6 (D.C. Cir. 2001) (distinguishing, with evident disfavor, case upholding deferential review based on plan language requiring insured to submit “satisfactory” proof of eligibility for benefits), rev’g 77 F. Supp. 2d 9 (D.D.C. 1999). The Fitts court rejected the disability insurer’s argument that the insurance policy, which required submissions of proof of disability, necessarily gave the insurer discretion because it must evaluate the legitimacy of the proof submitted. Virtually all insurance policies require proof of eligibility for benefits, and if this requirement sufficed to confer discretion, then, reasoned the court, Firestone’s exception would swallow its rule and render the standard of review deferential in almost every case. Id. at 5. The Fitts court also rejected the insurer’s alternative argument that the benefits plan in question technically 1119

designated Fannie Mae’s benefit plans committee as the plan administrator, which was to “be afforded the maximum deference allowed by law” in all of its “decisions, interpretations [and] determinations,” and that the committee could delegate its authority to outside consultants and companies, including matters involving discretion. The court found no evidence that the committee had delegated any discretionary authority to the insurer. Furthermore, no decision or determination by Fannie Mae was in issue, and the parties agreed that Fannie Mae had exercised no discretion with regard to the eligibility determination. Id. at 5–6. The Fitts court noted that “the de novo standard might theoretically permit this court [i.e., the D.C. Circuit] to perform the necessary review,” but declined to do so, pointing to the intensely factual nature of the underlying classification dispute, and remanded the case to the district court. Id. at 6 (noting fact issues on whether existing record establishes that bipolar disorder is physical, whether current medical research supports claimant, whether there is a current medical consensus on nature of bipolar disorder, and whether certain of claimant’s evidence is admissible). In a case decided after Fitts, the district court determined that the result would be the same under either standard of review and therefore declined to decide whether a benefit plan requiring the claimant to submit “due proof” of loss was sufficient to invoke deferential review under the arbitrary and capricious standard. Craighill v. Cont’l Cas. Co., 2003 U.S. Dist. LEXIS 19222, at *9–11 (D.D.C. 2003).

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Plan language requiring “due written proof of loss” is more problematic. The requirement of some proof of eligibility does not by itself confer discretion, but the requirement of “due” proof of loss may leave an ambiguity on the face of the policy about whether the plan intended to confer discretion on the administrator, which ambiguity will be resolved against the plan administrator. Mobley v. Cont’l Cas. Co., 383 F. Supp. 2d 80, 85–88 (D.D.C. 2005) (applying de novo review and observing that D.C. Circuit has not considered whether the words “due written proof” are alone sufficient to confer discretion and that results in other circuits are mixed), reconsideration denied, 405 F. Supp. 2d 42 (D.D.C. 2005). B. What Standard of Review Applies? “Courts clearly have the authority to construe the language of the contract de novo where the denial of benefits does not involve any discretionary authority on the part of the plan administrator. However, when a fiduciary exercises discretionary powers to deny benefits or construe the terms of a plan, a deferential standard of review must be employed.” Moore v. Blue Cross & Blue Shield of the Nat’l Capital Area, 70 F. Supp. 2d 9, 20 (D.D.C. 1999) (citing Firestone, 489 U.S. at 111, 115; and Germany v. Operating Eng’rs Trust Fund of Wash., D.C., 789 F. Supp. 1165, 1167 (D.D.C. 1992)). Where the deferential standard applies, a plan administrator’s decision is not an abuse of discretion if it is reasonable: When applied to the fiduciary responsibilities of ERISA trustees, [the deferential] standard requires a 1121

choice between reasonable alternatives, or a reasonable interpretation of the plan…. However, it is for the trustees, not the courts, to chose [sic] between two reasonable alternatives…. The courts may substitute their judgment for that of the trustee only if the trustee’s actions are not grounded on any reasonable basis. Block, 952 F.2d at 1454 (citations and internal quotations omitted). The District of Columbia district court interprets Firestone as establishing de novo review as the presumed standard of review, emphasizing that “[a] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority.” Doley v. Prudential Ins. Co. of Am., 2008 U.S. Dist. LEXIS 5054, at *3–4 (D.D.C. Jan. 8, 2008) (emphasis added) (quoting Firestone, 489 U.S. at 115). This interpretation casts the burden on the party asserting the deferential standard of review to come forth with evidence of plan language expressly conferring the necessary discretionary authority. Where the evidence is in equipoise, the burden fails, and the standard of review is de novo. Id. On deferential review, “[a] decision will be found to be reasonable if it is the result of a deliberate, principled reasoning process and if it is supported by substantial evidence…. Substantial evidence means more than a scintilla but less than a preponderance…. In taking into account the potential conflict of interest in this case, the 1122

Court will also consider in its review whether [the insurer’s] decision strayed outside the bounds of reasonableness to become an abuse of discretion.” Buford, 290 F. Supp. 2d at 99–100 (citations and internal quotation marks omitted). The plan must “provide a final, fully considered, and reasoned explanation for the court to evaluate.” Clark v. Feder Semo & Bard, P.C., 697 F. Supp. 2d 24, 30 (D.D.C. 2010) (quoting Commc’ns Workers of Am. v. AT&T, 40 F.3d 426, 433 (D.C. Cir. 1994), motion for reconsideration denied in relevant part by Clark v. Feder Semo & Bard, P.C., 736 F. Supp. 2d 222 (D.D.C. 2010)). C. Effect of Conflict of Interest or Procedural Irregularity The D.C. Circuit has yet to address how to apply the standard of review when there is a potential or actual conflict of interest. The district court, however, has observed that the mere presence of a conflict of interest does not automatically activate de novo review, and that no court has shown a willingness to reverse a plan administrator’s decision without some evidence that selfinterested behavior affected the administrator’s decision. In obeisance to Firestone, the district court, while recognizing the presence of a potential conflict of interest, will review the insurer’s decision for abuse of discretion, bearing in mind any inconsistency the plaintiff points out as a factor in determining whether there was an abuse of discretion. Buford, 290 F. Supp. 2d at 98; Hamilton v. AIG Life Ins. Co., 182 F. Supp. 2d 39, 44 & n.3 (D.D.C. 2002).

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As of this writing, no court in the D.C. Circuit has yet had occasion to address the effect of a conflict of interest on application of the abuse of discretion standard of review in light of the rule enunciated in Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). The district court has recognized Glenn in observing that the question of whether a conflict of interest played a role in a benefits determination “is an additional factor the Court must consider in analyzing whether defendants have interpreted or applied the [plan terms] correctly.” Pettaway v. Teachers Ins. & Ann. Ass’n of Am., 699 F. Supp. 2d 185, 205 (D.D.C. 2010); Wright, 618 F. Supp. 2d at 43, 58 (considering in light of Glenn whether the inherent conflict of interest should affect the court’s determination). However, the court in both Pettaway and Wright gave no weight to the conflict resulting from the administrator’s dual roles as administrator of claims and payer of benefits given that neither plaintiff offered any evidence that the conflict actually affected the decision to deny the plaintiff’s benefits. Pettaway, 699 F. Supp. 2d at 206; Wright, 618 F. Supp. 2d at 58. No case in the D.C. Circuit has opined on the question of whether Glenn applies to self-funded plans or third-party administrators. Prior to Glenn, the district court had noted three different approaches among the circuit courts in dealing with the presence of a conflict of interest. Hamilton, 182 F. Supp. 2d at 43 n.3 (noting “sliding scale,” “presumptively void,” and refusal to apply any form of heightened review in absence of evidence of actual conflict of interest as three approaches). In declining to alter the level of deference given to the insurance 1124

company’s eligibility determination, the Hamilton court found unconvincing the plaintiffs’ two arguments for dramatically decreasing the deference shown to the insurer in determining whether it abused its discretion. Id. at 46 (citing and quoting Fitts v. Fed. Nat’l Mort. Ass’n, 77 F. Supp. 2d 9, 20 n.6 (D.D.C. 1999), rev’d on other grounds, 236 F.3d 1 (D.C. Cir. 2001) (“The potential conflict of interest, however, does not call for abrogation of the arbitrary and capricious standard, where, as here, the challenged decision would have been reasonable if made by a decision maker with no conflict of interest.”)). One argument made in Hamilton for decreasing the level of deference was that the insurer consistently denied claims of the sort in question (autoerotic asphyxiation), demonstrating that the insurer was self-interestedly committed to denying such claims regardless of their merits. This argument was unconvincing because the consistent denial of autoerotic asphyxiation claims was based on the insurer’s belief that the policy-based exception from coverage for intentionally self-inflicted injury barred payment of autoerotic asphyxiation claims. The district court observed that “[i]f language is added so as to exclude certain claims, then a consistent policy of denial based on that contract language is properly characterized as adherence to the contracts’ terms rather than as self-dealing behavior.” Id. at 44–45 (citing Brown v. Blue Cross & Blue Shield of Ala., 898 F.2d 1556, 1568 (11th Cir. 1990) (noting that “uniformity of construction” and the “internal consistency of a plan under the fiduciary’s interpretation” are evidence that the plan administrator’s decision was not an abuse of discretion)). Other evidence that the insurer’s decision was not an 1125

abuse of discretion was that the decision was made after twice obtaining an outside legal opinion on the deniability of plaintiffs’ claim and after obtaining the opinion of an independent forensic expert in order to evaluate the validity of the contentions of the plaintiffs’ expert. Id. at 45 (citing Hightshue v. AIG Life Ins. Co., 135 F.3d 1144, 1148 (7th Cir. 1998) (finding that reliance on outside experts is evidence of good-faith behavior by a conflicted insurance company)). The Hamilton plaintiffs’ second argument was that the insurer’s internal reversal of its initial determination to pay the claim demonstrated that the superior officer, who made the reversal, wanted to deny the claim regardless of its merits. After observing that an insurer’s inconsistent treatment of the same facts suggests a commitment to denying benefits despite facts indicating benefits should be granted, the district court found that the insurer did not consider the same set of facts in an inconsistent fashion, but rather considered two different sets of facts at two different times. Id. at 45 (“It is not self-dealing behavior for an insurance company to change its mind on the basis of new information.”). The court also recognized that “there is a significant difference between an internal disagreement among employees over the merits of a claim prior to any final claims decision … and an insurance company’s decision to reverse its previous final decision to award benefits.” Id. at n.5. A conflict of interest can be implied from the circumstances. In Hamilton, 182 F. Supp. 2d at 43 n.3, the district court followed Fitts, 77 F. Supp. 2d at 20, in observing that administrators of insurance plans operate 1126

under a conflict between their role as fiduciaries, which requires them to act in the best interests of their policyholders, and their status as insurance companies paying benefits out of their own pockets, which gives them an incentive to deny policyholder claims. Hamilton, 182 F. Supp. 2d at 43–44. See also Moore v. Blue Cross & Blue Shield of the Nat’l Capital Area, 70 F. Supp. 2d 9, 20 n.5 (D.D.C. 1999) (observing that the conflict of interest factor must be weighed “where … the Plan administers itself … by dispensing benefits it must also pay for”). D. Other Factors Affecting Standard of Review In applying the deferential standard of review, courts in the D.C. Circuit follow the four-factor test introduced in Donovan v. Carlough, 576 F. Supp. 245, 249 (D.D.C. 1983), aff’d, 753 F.2d 166 (D.C. Cir. 1985). See also Germany v. Operating Eng’rs Trust Fund of Wash., D.C., 789 F. Supp. 1165, 1167–68 (D.D.C. 1992) (applying the four Carlough factors); Ret. & Sec. Program for Emps. of Nat’l Rural Coop. Ass’n v. Oglethorpe Power Corp. Ret. Income Plan, 712 F. Supp. 223, 227 (D.D.C. 1989) (finding the Carlough factors consistent with the Supreme Court’s holding in Bruch); Foltz v. U.S. News & World Report, 663 F. Supp. 1494, 1514 (D.D.C. 1987) (applying the four Carlough factors). The four Carlough factors are (1) whether the plan administrator’s interpretation is contrary to the language of the plan, (2) whether the plan administrator’s interpretation is consistent with the plan’s purposes, (3) whether the interpretation is consistent with the specific purpose of determining eligibility for the benefit in question, and (4) whether the interpretation is 1127

consistent with prior interpretations by the plan administrator and whether the claimant had notice of the plan administrator’s interpretation. The application of these factors is not formulaic. The weight given to each will vary according to the context of the case. Costantino v. Wash. Post Multi-Option Benefits Plan, 404 F. Supp. 2d 31, 42 (D.D.C. 2005). If deferential review is allowed because a plan sponsor has discretionary authority to determine eligibility for benefits or to construe the terms of the plan, then the same standard of review will apply if the plan clearly allows the plan sponsor to delegate its discretionary authority to a third-party plan administrator and there is evidence that such a delegation has actually been made. Id. at 38–41. Any deference owed to discretionary decisions of plan officials does not extend to decisions that discriminate among plan participants in violation of the plain terms of the plan. Wagener v. SBS Pen. Benefit Plan—Nonbargained Program, 407 F.3d 395, 396, 402–03 (D.C. Cir. 2005) (“An interpretation of the Plan that rests on impermissible discrimination is clearly unreasonable and, therefore, it fails whether we apply de novo review or a deferential standard of review.”). It is not necessary to determine the appropriate standard of review when ERISA fiduciaries fail to comply with formal plan procedures or make a plan interpretation that plainly contradicts the plan’s language. Such conduct is unlawful under either standard of review. Wagener, 407 F.3d at 403 (declining to decide which standard of review to apply to a committee’s employee benefit plan 1128

interpretation that “fails whether we apply de novo review or a deferential standard of review”). “[E]ven under a deferential standard of review, Plan fiduciaries cannot claim deference for an interpretation of the Plan … that contradicts the Plan’s plain language.” Id. at 405. See also Overby v. Nat’l Ass’n of Letter Carriers, 601 F. Supp. 2d 101, 107–08 (D.D.C. 2009) (declining to determine applicable standard of review where plan trustees failed to follow plan amendment procedures). No case in the D.C. Circuit has opined on the question of whether state bans on discretionary clauses are preempted. V. Rules of Plan Interpretation A. Application of Federal Common Law After a bench trial, the district court made the following observations in upholding a claim of federal common law estoppel against an ERISA health plan administrator: “ERISA, of course, preempts plaintiffs’ state law promissory estoppel claim, but preemption does not mean that all common law concepts are automatically inapplicable in an ERISA context. To the contrary, Congress expected that a federal common law of rights and obligations under ERISA-regulated plans would develop…. Federal courts have the authority to apply common law principles in order to deal with rights and obligations under ERISA that are not governed by the act itself…. Although the [plaintiffs’] state-law promissory estoppel claim as such may be preempted by ERISA, they have proved a state of facts working an estoppel as a 1129

matter of federal common law governing actions preempted but not specifically addressed by ERISA.” Moore v. Blue Cross & Blue Shield of the Nat’l Capital Area, 70 F. Supp. 2d 9, 26–27 (D.D.C. 1999) (citations and internal quotations omitted). The Moore court also noted that once it is determined that the state law claims are preempted, the court may recharacterize the state law claims as ones arising under ERISA. Id. at 27 n.15 (citing Psychiatric Inst. of Wash., D.C., Inc., 780 F. Supp. at 31); Murphy v. Wal-Mart, 928 F. Supp. 700, 707 (E.D. Tex. 1996)). The court also noted that a majority of federal circuits that have addressed the issue have approved, at least under certain circumstances, the use of estoppel in ERISA cases. Id. at 27 n.16. The district court identified five elements of an equitable estoppel claim: (1) the party to be estopped misrepresented material facts; (2) the party to be estopped had actual or constructive knowledge of the true facts; (3) the party to be estopped intended that the misrepresentation be acted upon or had reason to believe that the party asserting estoppel would rely on it; (4) the party asserting the estoppel did not know, nor should have known, the true facts; and (5) the party asserting the estoppel reasonably and detrimentally relied on the misrepresentation. Id. at 31. Commenting on the scope of an ERISA fiduciary’s responsibility to disclose material information to beneficiaries, the district court observed: “Refraining from imparting misinformation is only part of the fiduciary’s duty. Once [the plaintiff] presented his predicament, [the fiduciary] was required to do more than 1130

simply not misinform, [it] also had an affirmative obligation to inform—to provide complete and correct material information on [plaintiff’s] status and options.” Id. at 32 (quoting Eddy v. Colonial Life Ins. Co. of Am., 919 F.2d 747, 751 (D.C. Cir. 1990)). The Moore court’s rationale for recognizing a federal common law action for estoppel under ERISA was that it prevents both the detriment to the insured who relied on the misleading representation and the unjust enrichment of the party to be estopped. The claim also effectuates Congress’s intent to promote the interest of employees and their beneficiaries in employee benefit plans. Id. at 27. The court observed that any distinction between the doctrines of promissory estoppel and equitable estoppel “is not significant for purposes of whether the estoppel principles are appropriately part of the federal common law applicable to ERISA actions.” Id. at 27 n.17. While estoppel cannot be used to enlarge or extend the coverage specified in an ERISA plan, estoppel is appropriate when the provisions of the plan are ambiguous and representations are made involving an oral interpretation of the ambiguous provisions. When these conditions are met, there is no conflict with the requirement that ERISA benefit plans be maintained pursuant to a written instrument (see 29 U.S.C. § 1102(a)(1)), as an oral interpretation of an ambiguous plan provision does not modify or extend coverage that is not otherwise conferred by the written instrument. Moore, 70 F. Supp. 2d at 27 nn.17 & 18. In the district court’s view, a claim alleging the failure of an express trust or a resulting trust has no support in 1131

the federal common law of ERISA. The court reasoned that although the source of ERISA’s fiduciary rules is the common law, “Congress, when it enacted ERISA, made even more exacting requirements than those found in the common law of trusts relating to employee benefit trust funds.” Stewart v. Nat’l Educ. Ass’n, 404 F. Supp. 2d 122, 134–35 & n.7 (D.D.C. 2005). B. Application of Contra Proferentem In the ERISA context, the doctrine of contra proferentem applies, which is that ambiguous terms in an insurance contract will ordinarily be construed against the insurer. See Craighill v. Cont’l Cas. Co., 2003 U.S. Dist. LEXIS 19222 at n.5 (D.D.C. 2003). The doctrine was recently applied in a long-running case about whether bipolar disorder falls within a disability plan’s two-year limitation of benefits for “mental illness.” Fitts v. Unum Life Ins. Co. of Am., 2006 U.S. Dist. LEXIS 9235 (D.D.C. Feb. 23, 2006), vacated and remanded on other grounds, 520 F.3d 499 (D.C. Cir. 2008). Significantly, while the D.C. Circuit has not yet determined whether contra proferentem applies in the ERISA context, the district court embraced its applicability based on an earlier district court case and “the vast majority of circuit courts that have found the doctrine applicable in ERISA cases” as a matter of federal common law. Id. at *10 n.5 (citing Germany v. Operating Eng’rs Trust Fund, 789 F. Supp. 1165, 1169–70 (D.D.C. 1992), and cases from the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits). The Fitts court evaluated the conflicting definitions of “mental illness” offered by the parties as well as the three-way 1132

split among the courts for defining the term (symptombased analysis, cause-based analysis, and treatment-based analysis) and held that the term is ambiguous because of the lack of consensus and the prevalence of different definitions. Id. at *12–25. Applying the rule of contra proferentem required construing the ambiguous term “strictly against [the insurer] and in a manner that is reasonable and most favorable to [the claimant].” Id. at *24. C. Deference Afforded Interpretation of a Plan

to

an

Administrator’s

In the scheme of ERISA, a benefit plan that confers discretionary authority on the plan fiduciary with regard to eligibility benefits “may only have its decisions judicially reviewed under the arbitrary and capricious standard.” Sampson v. Citibank, 53 F. Supp. 2d 13, 16 (D.D.C. 1999). Review under the arbitrary and capricious standard is “deferential and limited to deciding whether it was reasonable.” Id. This means that the “Court must not overturn a decision found to be reasonable, even if an alternative decision could have been considered reasonable.” Id. at 16–17 (citing Block, 952 F.2d at 1452). D. Other Rules of Plan or Contract Interpretation ERISA’s requirement that terms in benefits plans “be written in a manner calculated to be understood by the average plan participant,” 29 U.S.C. § 1022(a)(1), means that those terms “should be given the meaning normally attributed to them by a person of average intelligence and experience.” Hamilton v. AIG Life Ins. Co., 182 F. Supp. 1133

2d 39, 49 (D.D.C. 2002) (evaluating whether partial strangulation accompanying autoerotic asphyxiation is an “injury”). While an expert’s definition of a contract term is not controlling, the court can rely on expert opinion as a way of determining a term’s ordinary meaning. Fitts, 2006 U.S. Dist. LEXIS 9235, at *9 (citing Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 536 (9th Cir. 1990)). When interpreting an employee benefit plan, the summary plan description should be considered part of the plan documents. See Brubaker v. Metro. Life Ins. Co., 2005 U.S. Dist. LEXIS 39816, at *7 (D.D.C. Sept. 26, 2005); Guyther v. DOL Fed. Credit Union, 193 F. Supp. 2d 127, 130 (D.D.C. 2002) (noting that summary plan descriptions “often control over conflicting language in plan agreements anyway because (it is thought) employees actually read the summaries”). Where a discrepancy arises between the summary plan description and the plan, the language of the summary plan description governs in ERISA disputes. See Brubaker, 2005 U.S. Dist. LEXIS 39816, at *7–8; Whiteman v. Graphic Commc’ns Int’l Union Supp’l Ret. & Dis. Fund, 871 F. Supp. 465, 466–67 (D.D.C. 1994) (citing cases from the Fourth, Fifth, Sixth, and Eleventh Circuits). Unless a plaintiff shows that an employer controls the administration of an ERISA plan or exercises some discretion or plays some role in the determination of the plaintiff’s claim, that employer is not a proper party to a suit arising under

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ERISA. Hunter v. Metro. Life Ins. Co., 251 F. Supp. 2d 107, 112–13 (D.D.C. 2003); Craighill, 2003 U.S. Dist. LEXIS 19222, at *8–9. Employers and plan sponsors do not act in a fiduciary capacity when they modify, adapt, or amend plans. Hartline v. Sheet Metal Workers’ Nat’l Pension Fund, 286 F.3d 598 (D.C. Cir. 2002) (per curiam) (changes to plan affected determination of benefits); Sys. Council EM-3 v. AT&T Corp., 159 F.3d 1376, 1379–80 (D.C. Cir. 1998) (changes split pension and welfare plans into two and reallocated assets between plans). A proposed plan amendment not implemented in accordance with a plan’s amendment procedure is ineffective and does not amend a plan. Overby v. Nat’l Ass’n of Letter Carriers, 601 F. Supp. 2d 101, 108 (D.D.C. 2009) (citing, inter alia, Inter-Modal Rail Emps. Ass’n v. Atchison, Topeka & Santa Fe Ry. Co., 520 U.S. 510, 516 (1997)). VI. Discovery A. Limitations on Discovery Entitlement to discovery depends directly on the standard of review. At least in cases where the deferential standard applies, the rule is clear: no discovery is permissible where the discovery probes into the plan administrator’s factual determinations. Hunter v. Metro. Life Ins. Co., 2002 U.S. Dist. LEXIS 26615 (D.D.C. 2002) (parties agreed deferential standard applied). In Hunter, the claimant sought discovery in the form of depositions, 1135

production of documents, and answers to interrogatories, all designed to determine the basis for the insurer’s denial of benefits. Id. at *2. Noting that the D.C. Circuit has not addressed the issue, the district court followed the rationale of Perlman v. Swiss Bank Corp. Comp. Dis. Protection Plan, 195 F.3d 975, 981–82 (7th Cir. 1999), to conclude that “where review is limited to the arbitrary and capricious standard, the discovery that plaintiff seeks here is not justified.” 2002 U.S. Dist. LEXIS 26615, at *4. In the absence of any showing that the discovery sought by the claimant related to the administrator’s interpretation of the policy (as opposed to the administrator’s factual determinations), the district court did not have occasion to consider whether to follow the distinction to this effect made in Southern Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98 (5th Cir. 1993), but appeared to disfavor it. There are limited exceptions, however, such as where discovery is needed to determine whether the administrative record is complete. Doe v. MAMSI Life & Health Ins. Co., 448 F. Supp. 2d 179, 183–84 (D.D.C. 2006). When a conflict of interest is shown, such as when a plan fiduciary plays a dual role as payor and administrator, limited discovery is also allowable to reveal the nature, extent, and effect on the decisionmaking process of the conflict of interest. Crummett v. Metro. Life Ins. Co., 2007 U.S. Dist. LEXIS 50956, at *14 (D.D.C. July 16, 2007). Likewise, where reasonable doubts are raised regarding the completeness of the record or procedural irregularities are identified in the processing of a claim, an ERISA claimant may also seek limited discovery regarding these questions. Id. at *14–15. These exceptions to the general presumption against discovery 1136

are narrow, and the court will subject any discovery requests brought to its attention to searching scrutiny. Id. at *15. Limited discovery will also be allowed where it will shed light on allegations throwing into question the applicable standard of review. Wagener v. SBC Pen. Benefit Plan—Nonbargained Program, 247 F.R.D. 184, 186–89 (D.D.C. 2008) (limited discovery allowed to explore amended complaint’s allegations that plan sponsor usurped plan administrator’s authority to make benefits decisions, which, if proved, would forfeit deferential review). The rule is much less clear where review is de novo, and the D.C. Circuit has not yet had occasion to comment on the question. Reluctantly venturing a generalization, the district court in Fitts v. Fed. Nat’l Mort. Ass’n, 204 F.R.D. 1, 3 (D.D.C. 2001), observed that courts have not allowed the same kind of discovery in ERISA cases as in non-ERISA cases, and that in ERISA cases “courts have searched for a close connection between the information sought and the issues presented.” In Fitts, objections to an ERISA claimant’s discovery requests were sustained on relevance and burdensomeness grounds. The claimant sought three broad categories of discovery from her former employer (Fannie Mae) and from the ERISA plan administrator (an insurance company): (1) documents explaining how they derived the physical versus nonphysical disorder classification on which they relied in denying her claim for long-term disability benefits, (2) documents explaining how they 1137

applied the physical/nonphysical distinction in handling other claims for long-term disability benefits, and (3) documents from legal proceedings involving the physical/ nonphysical distinction. Id. at 2. The district court aptly summarized its task as follows: “I must weigh the possibility that a damaging admission by [the insurance company] is contained in their files is only theoretical and that it may have precious little probative force, even if found, against the cost and expense involved in searching for it. Ultimately, I must also allow for the emerging consensus among the courts that discovery in ERISA cases should be less than what is ordinarily required.” Id. at 5. As to relevance, the discovery demands were objectionable even under the standard of Rule 26(a) of the Federal Rules of Civil Procedure. The Fitts court reasoned that a decision by the insurer to pay benefits on a nonphysical disorder claim in another case “casts no light whatsoever on the scientific validity of [the insurance company’s conclusion in the present case] that plaintiff’s bipolar disorder fits within the exclusion of the Fannie Mae policy.” Id. at 4. Likewise, the opinion of a claimant’s expert witness in another case “has absolutely nothing to do with the scientific validity of the specific conclusion reached by [the insurance company’s] physicians in this case” that bipolar disorder is a mental illness. Id. The district court acknowledged that a contrary conclusion by the same insurer in another case about whether bipolar disorder is a mental illness within the policy exclusion might possibly be relevant and would be admissible as a nonhearsay admission by a party opponent. But such a statement was likely to have little 1138

probative value and could therefore be excluded from evidence under Rule 403 of the Federal Rules of Evidence, and could also be excluded as collateral if establishing its probative value required (as was likely) a detailed examination of its source in the other case. Id. As to burdensomeness, the court was satisfied by the insurance company’s showing that the identification of responsive documents would require the manual examination of nearly 60,000 active long-term disability policies, up to 86,000 open long-term disability claim files, and 2,400 lawsuit files, many of which were in the physical possession of the insurance company’s outside counsel. Id. at 3, 5. The theoretical possibility that there might be a probative and damaging admission somewhere in this vast quantity of documents did not justify the expense and time it would take to find it. Id. at 5 (“That there is a needle in a haystack does not make searching the haystack worthwhile.”). In another ERISA case under de novo review, the District Court for the District of Columbia considered several motions to compel discovery related to an insurance company defendant’s handling of a benefits claim. Hurley v. Life Ins. Co. of N. Am., Civ. No. 04-252, 2006 WL 1883406 (D.D.C. Jul. 9, 2006). The court proceeded similarly as it did in Fitts, analyzing both the relevancy and reasonableness of each discovery request. The court ultimately granted the plaintiff’s requests for (1) internal correspondence of the defendant insurance company related to the claim, (2) documents showing defendant’s past interpretation of similar cases, and (3) 1139

documents associated with the defendant’s corporate relationship with its parent company. Id. at *5–9. The court denied the plaintiff’s request for discovery related to the “accuracy and adequacy” of defendant’s investigation of the claim, finding that such information would not be “relevant or necessary” to an adequate de novo review of the claim. Id. at *7–8. Like several other courts, the District Court for the District of Columbia has held that an attorney advising a plan fiduciary about matters of plan administration represents the trust’s beneficiaries, not the fiduciary personally. Wash.-Balt. Newspaper Guild, Local 35 v. Wash. Star Co., 543 F. Supp. 906 (D.D.C. 1982). Thus, communications regarding plan fiduciaries and counsel regarding plan administration are discoverable in litigation brought by participants or beneficiaries. Id. at 909. However, when an employer who is also a plan fiduciary seeks counsel solely in its capacity as employer, such communications are protected. Everett v. USAir Group, Inc., 165 F.R.D. 1 (D.D.C. 1995) (when an employer seeks legal counsel solely in its role as employer regarding issues other than plan administration, the employer is the client and may assert attorney-client privilege). B. Discovery and Conflict of Interest Discovery (by way of document requests, interrogatories, requests for admissions, and a Rule 30(b)(6) deposition) into the internal practices of the insurance company administrator of an ERISA employee benefit plan is available to prove a conflict of interest in a case involving 1140

denial of long-term disability benefits. Pulliam v. Cont’l Cas. Co., 2003 U.S. Dist. LEXIS 10010 (D.D.C. 2003). Based on cases from the Third, Eighth, and Ninth Circuits and the district of Oregon, discovery was deemed relevant to the issue of the appropriate standard of review. The district court’s rulings were shaped by two Ninth Circuit authorities holding that a plan administrator’s failure to follow its internal procedures for denying benefits claims and the existence of procedural irregularities are evidence of a conflict of interest. Id. at *8 (citing Hensley v. Nw. Permanente Ret. Plan & Trust, 258 F.3d 986, 996 (9th Cir. 2001); and Friedrich v. Intel Corp., 181 F.3d 1105, 1110 (9th Cir. 1999)). The particular relevancy rulings in Pulliam are worth noting. Documents containing information about incentive-type compensation (including bonuses) for which claim reviewers and supervisors were eligible beginning from the month the claimant suffered a disabling stroke were deemed relevant to the conflict of interest issue; but information about non-incentive-type compensation was deemed not relevant. Premium invoices and premium adjustment reports identifying the plan participants were deemed relevant; bills and premium payments for the plan were not. Documents relating to policies and procedures for handling claims and for evaluating oral statements were deemed relevant. An interrogatory seeking the identity and role of all individuals involved in the appeal of the claim denial was deemed relevant. So were interrogatories seeking facts supporting the insurer’s contention that the plaintiff was not employed by the employer or covered under the policy on the relevant date. 1141

So were interrogatories seeking information underlying the insurer’s contention that the claimant was not disabled. Also relevant was Rule 30(b)(6) deposition testimony regarding all persons involved in processing the plaintiff’s claim (including members of the appeals committee) and their respective roles and functions, their education and training in processing long-term disability insurance claims, their incentive-based financial compensation, and the criteria for obtaining each type of incentive-based compensation (particularly any criteria related to claims savings, i.e., denials, terminations, or reductions in payout). Their respective caseloads and nonincentive-based compensation were deemed not relevant. Id. at *11–23. VII. Evidence A. Scope of Evidence under Standards of Review “Courts review ERISA-plan benefit decisions on the evidence presented to the plan administrators, not on a record later made in another forum.” Heller v. Fortis Benefits Ins. Co., 142 F.3d 487, 493 (D.C. Cir. 1998) (quoting Block v. Pitney Bowes, Inc., 952 F.2d 1450, 1455 (D.C. Cir. 1992)). On de novo review, a relevant inquiry is whether resolution is appropriate by summary judgment under Federal Rule of Civil Procedure 56, which turns on whether there is a genuine issue as to any material fact, or by the making of findings of fact and conclusions of law under Federal Rule of Civil Procedure 52. See Mobley v. Cont’l Cas. Co., 383 F. Supp. 2d 80, 88–89 (D.D.C. 2005), reconsideration denied, 405 F. Supp. 2d 42 (D.D.C. 2005). Courts will also consider whether the 1142

record presented is “an accurate compilation of what was before [the plan administrator] at the time of the decision under review.” Id. at 88 n.4. In this connection, Mobley cited numerous issues relating to the content and comprehensibility of the administrative record. Id. at 88 & n.4 (no “formal administrative record” lodged with the court; no proffer that exhibits attached to motion for summary judgment composed the entirety of evidence before plan administrator at time of decision on claim for benefits under review; some documents illegible; some documents referred to conversations, raising question whether administrator considered conversations as well as memoranda thereof). The U.S District Court for the District of Columbia has found, in one case, that discovery requests that sought information beyond the administrative record were beyond the scope of permissible discovery in a case subject to deferential review. See Doe v. MAMSI Life & Health Ins. Co., 484 F. Supp. 2d 179, 184 (D.D.C. 2006). The D.C. Circuit, however, has not had occasion to comment on whether evidence on deferential review is limited to the administrative record. On de novo review in a case involving a dispute over the proper classification of bipolar disorder (mental illness versus physical disability), the parties were free to supplement the existing record by, among other things, submitting current medical evidence regarding bipolar disorder. Fitts v. Fed. Nat’l Mort. Ass’n, 236 F.3d 1, 6 (D.C. Cir. 2001). On remand, however, the district court recognized a split among the circuits as to the scope of de novo review on the merits of ERISA cases. Fitts v. Fed. Nat’l Mort. 1143

Ass’n, 204 F.R.D. 1, 3 n.2 (D.D.C. 2001) (denying motion to compel discovery) (citing Luby v. Teamsters Health, Welfare & Pension Trust Funds, 944 F.2d 1176, 1183–85 (3d Cir. 1991) (court free to limit de novo review to record or to receive further evidence to enable full exercise of informed and independent judgment); Miller v. Metro. Life Ins. Co., 925 F.2d 979 (6th Cir. 1991) (evidence not presented to plan administrator not to be considered on de novo review); Donatelli v. Home Ins. Co., 992 F.2d 763, 765 (8th Cir. 1993) (on de novo review, evidence not presented to plan administrator can be introduced on good cause shown); and Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993) (de novo standard allows examination of evidence not before administrator where necessary for adequate review by district court)). B. Evidentiary Determinations

Value

of

Social

Security

Block v. Pitney Bowes, Inc., 952 F.2d 1450 (1992), is the only D.C. Circuit case to address the evidentiary value of Social Security determinations. In Block, the court afforded no weight to the Social Security Administration’s benefit award. The court reasoned that because the Social Security award relied at least in part on medical information never submitted to the plan committee, the Social Security determination should be afforded no weight because “courts review ERISA-plan benefit decisions on the evidence presented to the plan administrators, not on the record later made in another forum.” Id. at 1455. No court in the D.C. Circuit has

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opined on the issue of which party bears the burden of obtaining Social Security information. C. Other Evidentiary Issues 1. Denial Notices The D.C. Circuit has adopted the “substantial compliance” test to determine whether denial notices comply with 29 U.S.C. § 1133 and the corresponding Department of Labor regulation. Technical noncompliance will be excused as long as the notice substantially complies with the statute and regulation. In assessing whether a notice substantially complies, the circuit court considers not just the notice itself, but all communications between the insurer and the claimant, making the substantial compliance determination on a case-by-case basis and assessing the information provided by the insurer in the context of the beneficiary’s claim. White v. Aetna Life Ins. Co., 210 F.3d 412, 414 (D.C. Cir. 2000) (citing Heller v. Fortis Benefits Ins. Co., 142 F.3d 487, 493 (D.C. Cir. 1998)). The consequence of an inadequate benefits denial letter is that the normal time limits for administrative appeal may not be enforced against the claimant. Id. at 416 (quoting Counts v. Am. Gen. Life & Acc. Ins. Co., 111 F.3d 105, 108 (11th Cir. 1997)). Lack of prejudice from the notice’s deficiencies is no justification for refusal to consider a beneficiary’s claim. Id. at 418. In White, the circuit court declined to consider whether the insurer’s failure to communicate an important reason for denying a claim has any consequence beyond estopping the insurer from relying on that reason in considering a claimant’s appeal, 1145

as the insurer did not raise the point until oral argument. Id. at 419. The circuit court also admonished that “[i]n view of Heller and the decision we reach today, it would be in the best interest of all concerned for insurers to disclose in writing all information required by the regulations.” Id. (emphasis in original). 2. Federal Common Law: Remedies ERISA allows a remedy in restitution where there has been an unjust enrichment. Awards of restitution will be reviewed only for abuse of discretion. Heller v. Fortis Benefits Ins. Co., 142 F.3d 487, 494–95 (D.C. Cir. 1998). Unjust enrichment and quasi-contract encompass three elements: the plaintiff must show that (1) he had a reasonable expectation of payment, (2) the defendant should reasonably have expected to pay, and (3) society’s reasonable expectations of person and property would be defeated by nonpayment. Id. at 495 (quoting Provident Life & Accid. Ins. Co. v. Waller, 906 F.2d 985, 993–94 (4th Cir. 1990)). Even though a benefits plan did not expressly provide for restitution, neither did the plan expressly prohibit such recovery; and the insurer’s written notice that its payment of benefits could not be deemed an admission of liability effectively notified the claimant that the insurer expected reimbursement of benefits for which the claimant was not eligible. Id. Following Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 144 (1985), and cases from the Fourth, Fifth, Seventh, and Eleventh Circuits, the district court has held that there is no private right of action by an ERISA plan beneficiary for extra-contractual compensatory or 1146

punitive damages. Moore v. Blue Cross & Blue Shield of the Nat’l Capital Area, 70 F. Supp. 2d 9, 37–38 (D.D.C. 1999). 3. Objective Medical Evidence In Pettaway v. Teachers Ins. & Ann. Ass’n of Am., 699 F. Supp. 2d 185, 202–03 (D.D.C. 2010), the district court rejected the plaintiff’s argument that the defendants wrongfully requested that she provide “objective medical documentation” to prove her claim when the policy required only that she show “proof of Total Disability.” The court reasoned that “it is understandable that the Policy does not use the exact phrase ‘objective medical documentation,’ because the Policy identifies examples of the types of medical ‘proof’ a participant can submit to objectively demonstrate disability.” Id. at 202. Were objective medical evidence not required, reviewing the validity of long-term disability claims “would be meaningless because plan administrators would be forced to accept as adequate all substantive claims of participants.” Id. 4. IME v. Paper Review To date, there are no reported D.C. Circuit cases that specifically address the effect of an independent medical evaluation (IME) versus a paper review with respect to benefit claims. However, the U.S District Court for the District of Columbia has noted that ERISA does not require a plan administrator to obtain an IME, and that a plan administrator is entitled to rely on a paper review of a claimant’s medical records. See Marcin v. Reliance 1147

Standard Life Ins. Co., 895 F. Supp. 2d 105, 120 n. 7 (D.D.C. 2012). VIII. Procedural Aspects of ERISA Practice A. Methods of Adjudication ERISA cases in the D.C. Circuit are often resolved on summary judgment. See Chao v. Day, 436 F.3d 234 (D.C. Cir. 2006) (affirming grant of summary judgment on the basis that the relevant ERISA plan’s insurance broker breached his fiduciary duties); Francis v. Rodman Local 201 Pension Fund, 367 F.3d 937 (D.C. Cir. 2004) (affirming grant of summary judgment for pension fund in claim for benefits case); Allied Pilots Ass’n v. Pension Benefit Guar. Corp., 334 F.3d 93 (D.C. Cir. 2003) (affirming grant of summary judgment to government in action for injunction to stop termination of retirement plan or reinstate plan if already terminated); Fuller v. AFLCIO, 328 F.3d 672 (D.C. Cir. 2003) (affirming summary judgment for plan trustees in claim for denial of benefits); Bd. of Trs. of the Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794 (D.C. Cir. 1998) (affirming in part and denying in part the district court’s ruling on fees and costs recoverable by the trustees after the district court awarded summary judgment to the trustees in an action for delinquent contributions); Heller v. Fortis Benefits Ins. Co., 142 F.3d 487 (D.C. Cir. 1998) (affirming the grant of summary judgment for insurer as to both the denial of benefits and restitution of erroneously paid benefits); May v. Shuttle, Inc., 129 F.3d 165 (D.C. Cir. 1997) (affirming grant of summary judgment as to ERISA claim for interference with pension rights); Andes v. Ford Motor 1148

Co., 70 F.3d 1332 (D.C. Cir. 1995) (affirming grant of summary judgment to defendant in action claiming that decision of defendant to sell subsidiary, and resulting loss of early retirement benefits, constituted a violation of ERISA); see also Wright v. Metro. Life Ins. Co., 618 F. Supp. 2d 43 (D.D.C. 2009) (on cross-motions for summary judgment, decision in favor of defendants on plaintiff’s claims of breach of fiduciary duty, wrongful denial of benefits, and failure to disclose plan document); Hamilton v. AIG Life Ins. Co., 182 F. Supp. 2d 39 (D.D.C. 2002) (granting administrator’s motion for summary judgment on claim for denial of benefits). When warranted, however, the D.C. Circuit Court of Appeals has not been hesitant to reverse grants of summary judgment. See, e.g., Fitts v. Fed. Nat’l Mort. Ass’n, 236 F.3d 1 (D.C. Cir. 2001) (reversing grant of summary judgment as to ERISA claims involving eligibility for and denial of benefits); White v. Aetna Life Ins. Co., 210 F.3d 412 (D.C. Cir. 2000) (reversing grant of summary judgment for plan administrator on claim for denial of benefits on grounds that administrator failed to comply with ERISA notice requirements); O’Connor v. Unum Life Ins. Co. of Am., 146 F.3d 959 (D.C. Cir. 1998) (reversing grant of summary judgment for insurer on claim for failure to pay benefits); Commc’ns Workers of Am. v. Am. Tel. & Tel. Co., 40 F.3d 426 (D.C. Cir. 1994) (reversing grant of summary judgment for plaintiffs on grounds that plaintiffs did not exhaust administrative remedies).

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In ERISA actions, parties often bring cross-motions for summary judgment. See Allied Pilots Ass’n v. Pen. Benefit Guar. Corp., 334 F.3d 93 (D.C. Cir. 2003) (cross-motions for summary judgment; defendants’ motion granted); Fuller v. AFLCIO, 328 F.3d 672 (D.C. Cir. 2003) (cross-motions for summary judgment on claim for benefits; defendants’ motion granted); United Steel v. Pen. Benefit Guar. Corp., 707 F.3d 319 (D.C. Cir. 2013) (cross-motions for summary judgment; defendant’s motion granted). Under such circumstances, district courts do not limit their award of summary judgment for defendants, but may, in appropriate circumstances, grant summary judgment to ERISA plaintiffs. See Flynn v. R.C. Tile, 353 F.3d 953 (D.C. Cir. 2004) (affirming grant of summary judgment for trustee plaintiffs in action to recover unpaid contributions to fund from unincorporated entity); Holland v. Freeman United Coal Mining Co., 574 F. Supp. 2d 116 (D.D.C. 2008) (summary judgment granted in favor of plaintiffs on their delinquent contribution claim); Buford v. Unum Life Ins. Co. of Am., 290 F. Supp. 2d 93 (D.D.C. 2003) (cross-motions for summary judgment on claim for benefits; defendant’s motion granted); Nat’l Shopmen Pen. Fund v. Burtman Iron Works, Inc., 148 F. Supp. 2d 60 (D.D.C. 2001) (granting in part and denying in part plaintiffs’ motion for summary judgment on claim for past-due contributions). B. Reported ERISA Trials Bench trials are the appropriate trial mechanism for ERISA claims in the District of Columbia. There have been several reported ERISA bench trials, where courts were presented with evidence to resolve disputed issues of 1150

fact and make decisions as to the legal merits of the pending claims. See Overby v. Nat’l Ass’n of Letter Carriers, 601 F. Supp. 2d 101 (D.D.C. 2009) (after bench trial, judgment in favor of plaintiff on claim that ERISAgoverned plan was not properly amended according to its terms), aff’d, 595 F.3d 1290 (D.C. Cir. 2010); Barry v. West, 503 F. Supp. 2d 313 (D.D.C. 2007) (three-day bench trial resulting in judgment for defendant because plaintiff had not met his burden of proving that the defendant’s alleged breach of fiduciary duty caused a loss to the plan); Teamsters Local 639—Emp’rs Pension Trust v. United Parcel Serv., Inc., 752 F. Supp. 500 (D.D.C. 1990) (after trial, district court held that trust failed to show underpayment of contributions); Ret. & Sec. Program for Emps. of Nat’l Rural Elec. Coop. Ass’n v. Oglethorpe Power Corp. Ret. Inc. Plan, 712 F. Supp. 223 (D.D.C. 1989) (judgment for plaintiff after bench trial in declaratory judgment action); see also Foltz v. U.S. News & World Report, Inc., 865 F.2d 364 (D.C. Cir. 1989) (affirming the judgment of the district court for defendants after a bench trial); Holt v. Winpisinger, 811 F.2d 1532 (D.C. Cir. 1987) (reversing the judgment of the district court after a bench trial as to plaintiff’s eligibility). C. Special Procedures for ERISA Benefit Cases The D.C. Circuit offers no special procedures for ERISA benefit cases. IX. Remedies A. Claims for Benefits

1151

ERISA § 502(a)(1)(B) authorizes a plan participant or beneficiary to bring a claim seeking to “recover benefits due … under the terms of [the] plan,” to enforce rights under the plan, or to clarify the right to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). See Carabillo v. Ullico Inc., 198 F. App’x 1, 2006 WL 2522205 (D.C. Cir. Aug. 4, 2006); Fuller v. American Fed. of Labor, 328 F.3d 372, 673 (D.C. Cir. 2003); Fitts v. Fed. Nat’l Mortgage Ass’n, 236 F.3d 1, 4–6 (D.C. Cir. 2001). B. Breach of Fiduciary Duty When an ERISA fiduciary breaches any of its fiduciary duties to the plan, the fiduciary may be subject to a claim for relief under ERISA § 502(a)(2), which permits a civil claim “for appropriate relief under section 409.” 29 U.S.C. § 1132(a)(2). Except when a fiduciary breach occurs within the context of defined contributed plans, the scope of remedies recoverable in breach of fiduciary duty cases brought pursuant to § 502(a)(2) is limited, such that a fiduciary may only be held personally liable to the plan, rather than its individual participants. See 29 U.S.C. § 1109(a); Fink v. Nat’l Sav. & Trust Co., 772 F.2d 951, 955 (D.C. Cir. 1985); see also Clark v. Feder Semo & Bard, P.C., 736 F. Supp. 2d 222, 226–27 (D.D.C. 2010) (recognizing that the Supreme Court’s decision in LaRue v. DeWolff, Boberg & Assocs., 552 U.S. 248 (2008), permits individual defined contribution plan participants to seek individualized relief when alleging breach of fiduciary duty claims, but noting that the availability of such individualized relief does not extend to defined benefit plan participants). When plans recover for 1152

breaches of fiduciary duty, the remedies available to it range from monetary relief, based on either losses incurred by the plan because of the fiduciary’s breach or profits earned by the fiduciary as a result of the breach, to equitable or remedial relief, as deemed appropriate by the court. See 29 U.S.C. § 1109(a). The D.C. Circuit interprets § 409(a) as providing “broad authority under [ERISA] to fashion remedies for redressing any breach and for protecting the interests of participants and beneficiaries.” Crawford v. La Boucherie Bernard Ltd., 815 F.2d 117, 119 (D.C. Cir. 1987). Although monetary relief for a breach of fiduciary duty can only be awarded to a plan, an individual plan participant and/or beneficiary may be able to obtain “appropriate equitable relief” against a fiduciary by way of ERISA § 502(a)(3). Individual equitable relief is permissible under § 502(a)(3) for a breach of fiduciary duty, so long as the requested relief is subject to the limitations set forth in Great-West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204 (2002), and Sereboff v. Mid Atlantic Medical Serv., Inc., 547 U.S. 356 (2006). Like “the majority of circuits,” however, the District Court for the District of Columbia has held that a breach of fiduciary duty claim seeking relief under § 502(a)(3) cannot stand where the claimant has an adequate remedy through a § 502(a)(1)(B) denial of benefits claim. Clark v. Feder Semo & Bard, P.C., 527 F. Supp. 2d 112, 116 (D.D.C. 2007). See also Wright v. Metro. Life Ins. Co., 618 F. Supp. 2d 43, 55–56 (D.D.C. 2009) (Clark I). “Where plaintiffs are not merely repackaging a benefits claims [sic], it is entirely appropriate to bring simultaneous § 502(a)(3) and § 502(a)(1)(B) claims to 1153

address two separate and distinct injuries that are based in whole or in part on different facts.” Soland v. George Washington Univ., No. 10-cv-2034 (RLW), 2013 WL 66219, at *5 (D.D.C. Jan 7, 2013). In CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011), the Supreme Court held that § 1132(a)(1)(B) did not provide authority for the district court to rewrite the terms of a plan. Id. at 1876–78. Under § 1132(a)(3), however, the district court could award “appropriate equitable relief,” including relief “typically available in equity.” Id. at 1878 (citations omitted). Traditional equitable relief includes reformation, estoppel, and “‘compensation’ for a loss resulting from a trustee’s breach of duty, or to prevent a trustee’s unjust enrichment.” Id. at 1879–80. Although the DC Circuit has not yet addressed the issues raised in Amara, several decisions issued by the United States District Court for the District of Columbia are instructive. In Virtue v. Int’l Bhd. of Teamsters Ret. & Family Protection Plan, 886 F. Supp. 2d 32 (D.D.C. 2012), the district court held that the two-step relief sought by plaintiff—“Step 1: invalidate the Amendment. Step 2: order the Plan Administrator to enforce the newly revised plan.”—tracked the Supreme Court’s holding in Amara, and should be permitted. Id. at 35–36. In Clark v. Feder, Semo & Bard, P.C., 808 F. Supp. 2d 219 (D.D.C. 2011), the plaintiff asserted a § 1132(a)(1)(B) claim for improper denial of benefits, but maintained that “she should also be allowed to proceed under section 1132(a)(3)” because the plan potentially “lacked assets, and would therefore leave [her] without an 1154

‘adequate remedy’ under § 1132(a)(1)(B).” Id. at 225 (citation omitted). Citing Amara extensively in denying the defendants’ motion for summary judgment, the district court held that the plaintiff could proceed under either § 1132(a)(1)(B) or § 1132(a)(3), but not both. After a bench trial, however, the Clark court found that under Amara, the plaintiff failed to demonstrate the harm required for her § 1132(a)(3) claim. Clark v. Feder, Semo & Bard, P.C., 895 F. Supp. 2d 7, 40–44. Finally, in Soland, the district court noted that Amara “suggests that estoppel is appropriate equitable relief under § 502(a)(3).” 2013 WL 66219, at *5 n.1. X. Fiduciary Liability Claims A. Definition of Fiduciary Whether an individual or entity is a fiduciary under ERISA is dependent on the function(s) they perform with respect to the plan. See Hunter v. Metro. Life Ins. Co., 251 F. Supp. 2d 107, 112 (D.D.C. 2003) (“In ERISA, Congress took a functional approach toward defining who would be treated as a fiduciary” (quoting Brink v. DeLasio, 496 F. Supp. 1350, 1374 (D. Md. 1980), aff’d in part, rev’d in part on other grounds, 667 F.2d 420 (4th Cir. 1981))). The D.C. Circuit has held that a person or entity is a fiduciary under ERISA to the extent he or she exercises any discretionary authority or discretionary control over the management of a plan or exercises authority or control over plan assets. See Chao v. Day, 436 F.3d 234, 235 (D.C. Cir. 2006); 29 U.S.C. § 1002(21)(A). The D.C. Circuit views the legislature’s 1155

inclusion of a disjunctive clause in ERISA’s definition of a fiduciary (§ 1003(21)(A)) as creating two different circumstances by which an individual or entity may be a fiduciary to an ERISA plan. Id. at 235–36. Specifically, in the D.C. Circuit a person or entity can be an ERISA fiduciary by either having discretion over a plan’s management or having control over plan assets. Id. at 235–36. However, just because an individual or entity is a fiduciary because he, she, or it has discretion over the management of an ERISA plan does not necessarily mean that he, she, or it is a fiduciary for every facet of the plan. The scope of a fiduciary’s role is limited to how that individual or entity functions within the plan. Sys. Council EM-3 v. AT&T Corp., 159 F.3d 1376, 1379 (D.C. Cir. 1998). See also Hartline v. Sheet Metal Workers’ Nat’l Pension Fund, 134 F. Supp. 2d 1, 10 (D.D.C. 2000) (“[A] party ‘is subject to ERISA’s fiduciary standards only when it acts in a fiduciary capacity’.” (quoting Sys. Council EM-3, 159 F.3d at 1379)). Further, when an individual or entity performs incidental, purely ministerial, nondiscretionary, or “settlor” functions for a plan, that individual or entity is not a fiduciary and not subject to ERISA’s fiduciary duties with respect to those nonfiduciary functions. Eaton v. D’Amato, 581 F. Supp. 743, 745 (D.D.C. 1980). See also In re Ullico Inc. Litig., 605 F. Supp. 2d 210 (D.D.C. 2009) (when an employer or other plan sponsor undertakes to adopt, modify, or terminate a plan, it is doing so as a plan settlor and is not acting as an ERISA fiduciary); Adams v. Pen. Benefit Guar. Corp., 332 F. Supp. 2d 231, 237 (D.D.C. 2004) (same). 1156

The D.C. Circuit and the District Court for the District of Columbia have confirmed that the following actions, among others, constitute fiduciary functions under ERISA: managing and utilizing plan assets, administering plan investments, and granting or denying plan benefits. See Sys. Council EM-3, 159 F.3d at 1380; Hunter v. Metro. Life Ins. Co., 251 F. Supp. 2d 107, 112–13 (D.D.C. 2003). Each of these functions may require a party to make a discretionary determination with respect to plan management and/or give the fiduciary control over plan assets. B. Definition of Fiduciary Duties The fiduciary duties and responsibilities enumerated in ERISA § 404 have been interpreted by the D.C. Circuit as incomplete and subject to judicial supplementation pursuant to federal common law trust principles. Eddy v. Colonial Life Ins. Co. of Am., 919 F.2d 747, 750 (D.C. Cir. 1990). “ERISA requires a [plan] fiduciary to act ‘solely in the interest’ of a plan’s participants and beneficiaries, and to discharge his duties ‘with the care, skill, prudence, and diligence … that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character….’” Fink v. Nat’l Sav. & Trust Co., 772 F.2d 951, 955 (D.C. Cir. 1985) (quoting 29 U.S.C. § 1104(a)(1)(B)). See also Stewart v. Nat’l Educ. Ass’n, 404 F. Supp. 2d 122, 132 (D.D.C. 2005); Chao v. Trust Fund Advisors, No. Civ. A. 02-559(GK), 2004 WL 444029, at *2 (D.D.C. 2004) (“Under ERISA, a fiduciary is held to the prudent person standard of care….”).

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Generally, a fiduciary may be held accountable for a breach of fiduciary duty for “materially mislead[ing] those to whom the duties of loyalty and prudence … are owed.” Eddy, at 750 (quoting Berlin v. Mich. Bell Tel. Co., 858 F.2d 1154, 1163 (6th Cir. 1988)). In order for an ERISA plaintiff to successfully establish a claim for breach of fiduciary duty based upon a fiduciary’s alleged failure to disclose, the claimant must show that the fiduciary possessed material information not known to the claimant and that the fiduciary failed to disclose such information. See Barry v. Trs. of the Int’l Ass’n Full-Time Salaried Officers & Emps. of Outside Local Unions & Dist. Counsel’s (Iron Workers) Pension Plan, 404 F. Supp. 2d 145, 154 (D.D.C. 2005). Additionally, the claimant must establish that the relevant ERISA-governed plan suffered a loss as a result of the fiduciary’s alleged breach of duty. Barry v. West, 503 F. Supp. 2d 313, 326 (D.D.C. 2007) (stating that § 409(a) “has consistently been read as creating a causation requirement—that is, there must be a causal connection between the breach of fiduciary duty and the ‘loss’ suffered by the ERISA plan”). Finally, where one fiduciary observes that a cofiduciary has breached its fiduciary duties, it has an obligation to take actions to investigate and remedy the cofiduciary’s breach. See Stephens v. US Airways Group, 555 F. Supp. 2d 112, 119 (D.D.C. 2008); see also Harris v. Koenig, 602 F. Supp. 2d 39, 54–55, 62 (D.D.C. 2009) (“Under ERISA Section 405(a)(3), a co-fiduciary is liable for [another] fiduciary’s breach of fiduciary duty when: ‘(1) the co-fiduciary has actual knowledge of the other fiduciary’s breach; (2) the co-fiduciary failed to make 1158

reasonable efforts to remedy the other fiduciary’s breach; and (3) damages resulted therefrom.’” (quoting In re Sprint Corp. ERISA Litig., 388 F. Supp. 2d 1207, 1220 (D. Kan. 2004))). C. Fiduciary Liability in the Context of Health and Disability Claims Under ERISA, fiduciaries owe the same general standards of loyalty and prudence regardless of whether an ERISA plan is a health and disability plan or a pension plan. See Eaton v. D’Amato, 581 F. Supp. 743, 747–48 (D.D.C. 1980) (after determining that defendants were fiduciaries for plaintiff’s welfare and pension plans, the court analyzed defendants’ potential liability under ERISA § 409(a)). The D.C. Circuit has not specifically discussed whether an ERISA fiduciary owes any additional fiduciary duties in the context of health and disability plans. D. Contribution and Indemnity Claims among Fiduciaries With respect to the scope of one’s liability for breaching ERISA’s fiduciary duties, the District Court for the District of Columbia rejects the theories of indemnification and contribution. In Int’l Bhd. of Painters & Allied Trades Union & Ind. Pen. Plan v. Duval, 1994 WL 903314 (D.D.C. 1994), the court adopted the position that because Congress created a comprehensive remedial scheme for breaches of ERISA’s fiduciary duties and since Congress was undoubtedly aware that the issues of indemnification and contribution would arise among 1159

ERISA fiduciaries, the fact that Congress remained silent on the issue is evidence that no such rights are appropriate. Id. at *3. E. ERISA Claims against Nonfiduciaries A breach of fiduciary duty claim may be asserted against cofiduciaries and nonfiduciaries. When such a claim is asserted against nonfiduciaries, they may be liable for “appropriate equitable relief” upon a showing that they “knowingly participate[d] in a breach trust.” Fink, 772 F.2d at 958 (emphasis added). See also Clark v. Feder Semo & Bard, P.C., 634 F. Supp. 2d 99, 106 (D.D.C. 2009) (Nonfiduciaries who knowingly participate in a breach of trust are subject to “‘appropriate equitable relief,’ not money damages.”); Barry, 404 F. Supp. 2d at 156–57 (D.D.C. 2005) (in order for a nonfiduciary to be subjected to liability under ERISA § 502(a)(3), a claimant “must establish that the [nonfiduciary] had ‘actual and constructive knowledge of the circumstances that rendered the transaction unlawful’.” (quoting Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 251 (2000))). XI. Attorneys’ Fees A. Criteria for Awarding Attorneys’ Fees Consistent with all other circuit courts of appeals, the Court of Appeals for the District of Columbia follows the following five-factor test for determining whether a party in an ERISA § 502 action should be awarded attorneys’ fees: 1160

1. The losing party’s culpability or bad faith; 2. The losing party’s ability to satisfy a fee award; 3. The deterrent effect of such an award; 4. The value of the victory to plan participants and beneficiaries, and the significance of the legal issue involved; and 5. The relative merits of the parties’ positions. Eddy v. Colonial Life Ins. Co., 59 F.3d 201, 206 (D.C. Cir. 1995) (quoting Hummell v. S.E. Rykoff & Co., 634 F.2d 406, 453 (9th Cir. 1980)) (citing Eaves v. Penn, 587 F.2d 453, 464 (10th Cir. 1978)). However, this five-factor test is “neither exclusive nor quantitative, thereby affording leeway to the district courts to evaluate and augment them on a case-by-case basis.” Eddy, 59 F.3d at 206. See also Finks v. Life Ins. Co. of N. Am., No. Civ. A. 08-1272 (ESH)(AK), 2009 WL 2230899, at *2–6 (D.D.C. July 24, 2009); Risteen v. Youth for Understanding, No. Civ. A. 02-0709(JDB), 2003 WL 22011766, at *2 (D.D.C. Aug. 19, 2003); Stephens v. US Airways Grp., Inc., 644 F.3d 437, 441–42 (D.C. Cir.). The D.C. Court of Appeals has rejected the presumption that prevailing plaintiff plan participants are entitled to fee awards. Eddy, 59 F.3d at 206. In practice, however, the district court has been quite willing to award attorneys’ fees to such prevailing plaintiffs. See Eddy v. Colonial Life Ins. Co., 844 F. Supp. 790 (D.D.C. 1994), remanded, 59 F.3d 201 (D.C. Cir. 1995). To date, neither the D.C. Circuit nor the district court has addressed whether the Supreme Court’s decision in Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010),

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changes the D.C. Circuit’s standard for awarding attorneys’ fees pursuant to ERISA § 502(g). The district court’s discretion in awarding fees is given broad deference on appeal to the Court of Appeals for the D.C. Circuit. See Bd. of Trs. of the Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 798 (D.C. Cir. 1998) (“Clearly the district court is most familiar with the interstices of the litigation, and we accord its decisions considerable deference”). Appellate review of attorneys’ fees decisions “is confined to correcting errors of law and remedying abuses of discretion.” Id. Finally, although the D.C. Circuit has not addressed the issue, a recent district court decision held that attorneys’ fees awarded pursuant to ERISA § 502 may encompass only litigation-related attorneys’ fees, rather than attorneys’ fees incurred as a result of a prelitigation administrative review proceeding. Finks, 2009 WL 2230899, at *7–8. B. Fees Awarded to Plan Fiduciaries In the nondelinquent contribution context, the District Court for the District of Columbia has been reluctant to grant fee awards to prevailing fiduciaries. See Buford v. Unum Life Ins. Co., 290 F. Supp. 2d 92 (D.D.C. 2003) (attorneys’ fee award to employer not appropriate where participant did not bring disability claim in bad faith, there was no need to deter plaintiffs in similar situations from bringing suit against insurers, and the relative merits of the parties’ positions did not so clearly favor insurer that award of fees and costs was warranted). 1162

In the delinquent contribution context, awards of attorneys’ fees are regularly made to fiduciaries seeking overdue contributions. See, e.g., Fanning v. Langenfelder Marine, Inc., 703 F. Supp. 2d 23, 26 (D.D.C. 2010) (“ERISA requires the ‘reasonable attorney’s fees and costs’ be awarded to prevailing plan fiduciaries in enforcement actions” (citing 29 U.S.C. § 1132(g)(2)(D))); Flynn v. Thibodeaux Masonry, Inc., 2004 WL 722651 (D.D.C. 2004) (piercing corporate veil to hold controlling shareholder personally liable for corporation’s ERISA liability from its failure to contribute to pension fund); Nat’l Stabilization Agreement of the Sheet Metal Indus. v. Commercial Roofing & Sheet Metal, 655 F.2d 1218 (D.C. Cir. 1981) (fee award under ERISA § 502(g)(2) to trustees of joint labor-management trust fund for delinquent contribution action against employer); Int’l Painters & Allied Trades Indus. Pension Fund v. R.W. Amrine Drywall Co., Inc., 239 F. Supp. 2d 26 (D.D.C. 2002) (same). C. Calculation of Attorneys’ Fees The method of calculating a reasonable attorneys’ fee award under ERISA § 502(g) in the D.C. Circuit is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the “lodestar” amount. Bd. of Trs. of the Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). This lodestar amount may then be adjusted by a multiplier “in certain ‘rare’ and ‘exceptional’ cases.” Id. A party awarded fees is entitled to the market value of the services, rather than the actual rate that may have been charged, if different. Id. at 800–01 (“The party must both 1163

‘offer evidence to demonstrate [her] attorney’s experience, skill, reputation, and the complexity of the case’ and ‘produce data concerning the prevailing market rates in the relevant community for attorneys of reasonably comparable skill, experience, and reputation.’”) (citation omitted). “In setting the market rate, the district court should consider what rate would be commensurate with the attorney’s skill and experience, and with the quality of the attorney’s work.” Id. at 801. XII. ERISA Regulations ERISA and its corresponding regulations set certain minimum requirements for the claims procedures plans are required to follow in processing benefits claims brought by participants and beneficiaries. See ERISA § 503; 29 C.F.R. § 2560.503-1. Plan administrators are required to provide procedures for processing benefit claims made by participants and beneficiaries, including initial consideration of claims, notification of the plan’s benefit determination, and internal plan appeal and review procedures. Failure by a plan to adhere to those procedures may serve as a basis for successfully challenging a denial of benefits. Conversely, failure by a participant to exhaust these procedures may preclude the participant from pursuing claims in court. (See section III, Exhaustion of Administrative Remedies, supra.) The regulations regarding claims procedures were revised effective January 1, 2002, and apply to benefit claims filed after that date. The previous regulations apply to claims filed prior to 2002, and cases decided pursuant to the previous regulations may form a basis for interpreting current regulations. The revised 1164

regulations establish shorter time frames, additional disclosure requirements, and new standards for making claims decisions. 29 C.F.R. § 560.503-1. The Department of Labor has published guidance in a question-and-answer format available at http://www.dol.gov/ebsa/faqs/ faq_claims_proc_reg.html. At least one district court in the D.C. Circuit has held that the disclosure requirements in the regulations must be strictly applied. In Hurley v. Life Ins. Co. of N. Am., Civil Action No. 04-252, 2006 WL 1883406 (D.D.C. July 9, 2006), the court held that providing all documents “collected, reviewed, and/or relied upon” in the course of a benefits determination does not satisfy the regulation’s requirement to disclose all documents “submitted, considered or generated” in connection with the determination. Id. at *5. The court noted that the regulation requires disclosure of all relevant information, “without regard to whether such document, record or other information was relied upon in making the benefit determination[,]” and ordered defendants to produce all “e-mails, notes, internal memorandum, or other documents that were generated during Defendants’ review or decisionmaking process[.]” Id. at *5–6. In 2003, the Supreme Court confirmed in Black & Decker Dis. Plan v. Nord, 538 U.S. 822 (2003), that the regulations regarding claims procedures do not require deference to the opinions of treating physicians. Id. at 831. In doing so, the Court rejected the claimant’s attempt to incorporate the “treating physician rule” applicable to Social Security disability determinations into ERISA disability claims. Id. at 829. The Court noted that while 1165

the regulations governing Social Security disability claims expressly provide for deference to the treating physician, the ERISA regulations, which were revised more than nine years after the Social Security Administration instituted the treating physician rule, include no such requirement. Id. at 831. See also Mobley v. Cont’l Cas. Co., 405 F. Supp. 2d 42, 47–48 (D.D.C. 2005) (refusing to accord deference to the claimant’s treating physician); Pettaway v. Teachers Ins. & Ann. Ass’n of Am., 644 F.3d 427, 435 (D.C. Cir. 2011) (same). In Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), the Supreme Court noted that the ERISA regulations governing claims procedures “apply equally to health benefit plans and other plans, and do not draw distinctions between medical and nonmedical benefits determinations. Indeed, the regulations strongly imply that benefits determinations involving medical judgments are, just as much as any other benefits determinations, actions by plan fiduciaries.” Id. at 220. The D.C. Circuit, like other circuits, has adopted the “substantial compliance” test when determining whether a denial notice has complied with ERISA § 503 and the claims-procedures regulations. See White v. Aetna Life Ins. Co., 210 F.3d 412, 414 (D.C. Cir. 2000) (deciding whether the insurer satisfied the requirements of 29 C.F.R. § 2560.503-1(f) (citing Heller, 142 F.3d at 493)); Block v. Pitney Bowes Inc., 705 F. Supp. 20, 24 (D.D.C. 1989) (29 C.F.R. § 2560.503-1(f) requires the employer to state the reasons for its actions), aff’d, 952 F.2d 1450 (D.C. Cir. 1992). In

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determining whether there has been substantial compliance, the court will consider “not just the notice itself, but all communications between the insurance company and the claimant.” White, 210 F.3d at 418 (citing Heller, 142 F.3d at 493). Courts make this determination on a case-by-case basis and assess the information provided by the insurer in the context of the beneficiary’s claim. Id. (citations omitted). In White, the court held that insurers must substantially comply with the statutory and regulatory requirement that “insurance companies [are] to give claimants specific reasons for denying benefits, to cite relevant plan provisions, to specify additional information needed, and to describe how to appeal.” Id. at 418. See also Heller, 142 F.3d at 492–93 (must follow Department of Labor regulations for claims handling and the time limits contained therein). The court further advised insurance companies that “they could avoid expensive litigation for themselves and claimants and conserve judicial resources by strictly complying with the Labor Department’s regulations.” White, 210 F.3d at 419. The district court has interpreted the Department of Labor’s bulletins and regulations relating to fiduciary duty and found that investment advisors and corporate entities can be fiduciaries under ERISA. See Bell v. Exec. Comm. of United Food & Comm. Workers Pen. Plan for Emps., 191 F. Supp. 2d 10, 14 (D.D.C. 2002) (citations omitted). The district court, relying in part on ERISA’s regulations, has determined that partners, as beneficiaries, have standing to sue under ERISA. See Krooth & Altman v. N. Am. Life Assur. Co., 134 F. Supp. 2d 96, 100 (D.D.C. 2001). In reaching this finding, the court found 1167

that even though the partners were not participants of the ERISA plan, they were “beneficiaries” of the plan with standing to bring suit. The district court also has examined the proper application of the Department of Labor’s regulations regarding the scope of a plan fiduciary’s investment duties. Chao v. Trust Fund Advisors, Civil Action No. 02-559(GK), 2004 WL 444029 (D.D.C. Jan. 20, 2004). In Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1 (2004), the Supreme Court resolved a circuit split regarding whether a working owner may qualify as a participant in an employee benefit plan covered by ERISA. The Court, correcting the Sixth Circuit’s interpretation of Department of Labor regulation 29 C.F.R. § 2510.3-3, held that the regulation imposes no barrier to working owner participation in an ERISA plan. Id. at 18–23. In Central Laborers’ Pension Fund v. Heinz, 541 U.S. 739 (2004), the Court also noted that Internal Revenue Service regulations regarding the anti-cutback rule apply with equal force to similar ERISA provisions. In Stewart v. Nat’l Ed. Ass’n, 404 F. Supp. 2d 122 (D.D.C. 2005), aff’d, 471 F.3d 169 (D.C. Cir. 2006), the district court relied on, and the D.C. Circuit acknowledged, a Department of Labor advisory opinion regarding the proper treatment of the proceeds of demutualization. In addition, in Risteen v. Youth for Understanding, Inc., 245 F. Supp. 2d 1 (D.D.C. 2002), the district court examined the regulations governing COBRA continuation coverage.

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The district court has also interpreted regulations applying to the Pension Benefit Guaranty Corporation (PBGC), denying a preliminary injunction requiring the PBGC to immediately correct benefit calculations that participants claimed were in error. See Boivin v. US Airways, Inc., 297 F. Supp. 2d 110, 112–13 (D.D.C. 2003). On appeal, the D.C. Circuit declined to reach the merits of the dispute, holding instead that pursuant to PBGC regulations, the plan participants had failed to exhaust their administrative remedies. Boivin v. US Airways, Inc., 446 F.3d 148 (D.C. Cir. 2006). In addition, the district court reviewed PBGC regulations regarding withdrawal liability and common control in I.A.M. Nat’l Pen. Fund v. TMR Realty Co., Inc., 431 F. Supp. 2d 1, 11–14 (D.D.C. 2006). In another case involving the PBGC, the district court stated that Congress implicitly granted the PBGC authority to “promulgate regulations to restricting benefit increases attributable to plan amendments on an amendment-by-amendment basis.” Brown v. Pen. Benefit Guar. Corp., 821 F. Supp. 26, 29 (D.D.C. 1993). Noting that the regulations were not at issue, the district court recognized the authority of the PBGC to interpret any conflicting policies that may arise. See id. at 31–32 (citations omitted). In the year before Brown, the D.C. Circuit addressed the PBGC’s construction of ERISA’s provision regarding the scope of guarantee of benefits that were “nonforfeitable.” Page v. Pen. Benefit Guar. Corp., 968 F.2d 1310 (D.C. Cir. 1992). The court reversed the district court’s decision that PBGC’s interpretation was based on the plain meaning of ERISA and found instead that its decision that participants did not qualify for 1169

guaranteed benefits was not “a reasonable accommodation of the policies underlying ERISA.” Id. at 1317 (quoting Rettig v. Pen. Benefit Guar. Corp., 744 F.2d 133, 156 (D.C. Cir. 1984)). The D.C. Circuit has recognized the PBGC’s authority to make factual determinations and the deference courts owe to such determinations under the Administrative Procedure Act. United Steel v. Pen. Benefit Guar. Corp., 707 F.3d 319, 323–24 (2013) (“In the administrative context, we generally review an agency’s application of an undisputed legal standard to a particular set of facts under a deferential standard.”) (citation omitted). XIII. Cases Interpreting ERISA Statutes of Limitation The applicable statute of limitations for an ERISA claim depends upon the nature of the claim. ERISA § 413 provides a limitations period for suits alleging a breach of fiduciary duty. 29 U.S.C. § 1113. Actions for nonfiduciary duty claims, such as those under §§ 502(a)(1)(B), 502(a)(3), or 510, are subject to the most analogous state limitations period. If a case is transferred pursuant to 28 U.S.C. § 1404(a), the statute of limitations of the transferor state will continue to apply. In re UMWA Emp. Benefit Plans Litig., 854 F. Supp. 914 (D.D.C. 1994). For fiduciary breach claims, there is a general six-year statute of limitations from when the breach or violation occurred; if defendant can show that the plaintiff had actual knowledge, the plaintiff must bring the claim in three years from the date of actual knowledge. See Larson 1170

v. Northrop Corp., Civil Action No. 88-899, 1992 WL 249790, at *3 (D.D.C. Mar. 30, 1992), aff’d, 21 F.3d 1164 (D.C. Cir. 1994). If, however, the plaintiff can show fraudulent concealment, then the plaintiff has six years from the date the breach or violation was discovered. Id. The D.C. Circuit rejected the argument that the discovery rule applies to non-fraud-based breach of fiduciary duty claims, finding “[that] the limitations period in § 1113(1)(A) is six years—double that in § 1113(2) where the statute of limitations is triggered by actual knowledge of the breach or violation—suggests a judgment by Congress that when six years has passed after a breach or violation, and no fraud or concealment occurs, the value of repose will trump other interests, such as a plaintiff’s right to seek a remedy.” Larson v. Northrop Corp., 21 F.3d 1164, 1172 (D.C. Cir. 1994). When a plaintiff seeks to establish fraudulent concealment under § 1113, in addition to satisfying the requirements of Rule 9(b) of the Federal Rules of Civil Procedure, he or she must show “‘(1) that defendants engaged in a course of conduct designed to conceal evidence of their alleged wrong-doing and that (2) [the plaintiffs] were not on actual or constructive notice of that evidence, despite (3) their exercise of diligence.’” Id. (quoting Foltz v. U.S. News & World Report, Inc., 663 F. Supp. 1494, 1537 (D.D.C. 1987), aff’d, 865 F.2d 364 (D.C. Cir. 1989)). In order to satisfy the first element, a plaintiff must demonstrate that the defendant engaged in “active concealment,” undertaking “some ‘trick or contrivance’ to ‘exclude suspicion and prevent inquiry.’ Such concealment must rise to something ‘more than merely a failure to disclose.’” Id. at 1174 (quoting 1171

Schaefer v. Ark. Med. Soc’y, 853 F.2d 1487, 1491 (8th Cir. 1988) (citation omitted)). Courts apply the most analogous state statute of limitations to nonfiduciary claims, such as actions brought under §§ 502(a)(1)(B), 502(a)(3), and 510. See Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 341 (D.C. Cir. 1991); Zarate v. Metro. Wash. Renaldialysis Ctr. of Cap. Hill, Civil Action No. 86-3546, 1987 WL 13957, at *1 (D.D.C. Jul. 1, 1987). Claims brought under § 502(a)(1)(B) challenge the denial of benefits and have been characterized as analogous to a breach of contract action. See Connors, 935 F.2d at 341 (applying the District of Columbia’s three-year statute of limitations for breach of contract actions); Zarate, 1987 WL 13957, at *1 (same); see also In re United Mine Workers of Am. Emp. Ben. Plans Litig., 854 F. Supp. 914, 915–16 (D.D.C. 1994) (for ERISA delinquency actions brought under § 515, “the state statute of limitations selected is typically the limitations period for contract claims”). Claims brought under § 502(a)(3) seek equitable relief to enforce the terms of the plan in question and to enjoin violations of the plan. ERISA § 510 provides for an independent cause of action against employers who interfere with an employee’s ERISA rights, and ensures plan participants and beneficiaries the right to claim plan benefits without interference or fear of reprisal. Section 510 claims often are characterized as wrongful discharge or employment discrimination claims. Walker v. Pharm. Research & Mfrs. of Am., 439 F. Supp. 2d 103, 108 (D.D.C. 2006). Wrongful discharge claims are subject to a three-year statute of limitations in the District of Columbia, while a one-year limitations period applies to employment 1172

discrimination claims. Id. In Watts v. Parking Mgmt., 210 F. App’x 13 (D.C. Cir. 2006), the D.C. Circuit held that a claim for employment discrimination under the District of Columbia Human Rights Act (DCHRA) is most analogous to a § 510 claim, and applied the DCHRA’s one-year limitations period. See also Cox v. Graphic Commc’ns Conf. of the Int’l Bhd. of Teamsters, 603 F. Supp. 2d 23, 33–34 (D.D.C. 2009) (holding that “the DCHRA is the statute that is the closest analogue” to a § 510 claim); Kamen v. Int’l Bhd. of Elec. Workers, 505 F. Supp. 2d 66 (D.D.C. 2007) (where the same facts gave rise to ERISA and DCHRA claims, the court refused to toll the one-year statute of limitations borrowed from the DCHRA during the pendency of plaintiff’s administrative action before the District of Columbia Office of Human Rights because exhaustion of DCHRA administrative remedies is not required prior to judicial review). When a plaintiff contests a denial of benefits under the plan, the limitations period will normally begin at when the denial occurs because that is when the plaintiff experienced injury. Connors, 935 F.2d at 342 (noting that the “limitations period commenced at the time of injury, even if the plaintiff protests that she did not in fact become aware of the injury when it occurred”). In addition, the statute of limitations can begin to run “when the fiduciary clearly and unequivocally repudiates the beneficiary’s benefits claim.” Walker, 439 F. Supp. 2d at 107. Although the D.C. Circuit has not discussed repudiation as a trigger for accrual of ERISA claims, the court in Walker noted that the repudiation concept is consistent with the law of trusts, which is used to construe 1173

ERISA. Id. at *3 n.4 (holding that the statute of limitations on a benefits claim “begins to run when the beneficiary first learns that she is considered an independent contractor and is therefore not entitled to benefits, regardless of whether she later files a formal claim for benefits”). In determining when a claim begins to accrue, courts will examine federal law. See Connors, 935 F.2d at 341. In Connors, the court applied the discovery rule, which the court determined was “consistent with Congress’ intent in ERISA to provide ‘broad remedies’ and ‘to remove jurisdictional and procedural obstacles which in the past appear to have hampered effective … recovery of benefits due to participants.’” Id. at 343 (quoting S. Rep. No. 127, 93d Cong., 1st Sess., at 35 (1973), 1974 U.S.C.C.A.N. 4639, 4871). See also Flynn v. Pulaski Constr. Co., Civil Action No. 02-02336, 2006 WL 47304, at *9–10 (D.D.C. Jan. 6, 2006) (applying the discovery rule and holding that “the claim accrues when the Plaintiffs discovered, or ‘with due diligence should have discovered the injury’”); Trs. of the United Ass’n FullTime Salaried Officers & Emps. of Local Unions, Dist. Councils, State & Provincial Ass’n. Pen. Plan v. Steamfitters Local Union 395, 641 F. Supp. 444, 446 (D.D.C. 1986) (applying fraudulent concealment doctrine to claim brought under § 502 that was subject to D.C.’s three-year statute of limitations for breach of contract actions). The District Court for the District of Columbia follows the majority of circuits by equitably tolling the applicable statute of limitations during the pendency of a plaintiff’s administrative appeal. Pettaway v. Teachers Ins. & Ann. Ass’n, 547 F. Supp. 2d 1, 4–7 (D.D.C. 2008) 1174

(holding that though the plaintiff’s claim accrued when she learned that her benefits were terminated, the applicable statute of limitations for her ERISA claim was tolled while she pursued administrative remedies under the plan), aff’d, 644 F.3d 427 (D.C. Cir. 2011). In Kifafi v. Hilton Hotels Ret. Plan, 228 F.R.D. 382 (D.D.C. 2005), aff’d, 701 F.3d 718 (D.C. Cir. 2012), the defendant invoked the statute of limitations to argue that the district court should have dismissed the claims of plan participants who received benefits more than three years before plaintiff filed suit. The parties stipulated both to the three-year limitations period and that the discovery rule was the appropriate standard for determining when the limitations period began. The district court held, and the Court of Appeals affirmed, that repudiation of a right to additional benefits “can trigger the statute of limitations if it is clear and made known to the plan beneficiary.” Kifafi, 701 F.3d at 729. In Kifafi, payments of backloaded benefits to plan participants did not constitute a repudiation of those participants’ right to additional benefits so that they should have “discovered” the backloading scheme, so those participants could be included in the class. Id. XIV. ERISA Subrogation Litigation In Primax Recoveries, Inc. v. Lee, 260 F. Supp. 2d 43 (D.D.C. 2003), the District Court for the District of Columbia denied the insured’s motion to dismiss the plan administrator’s ERISA claim for a medical expense reimbursement that the insured recovered from a thirdparty tortfeasor. Defendant Lee suffered personal injuries 1175

in an automobile accident that required medical treatment over a period of two and a half years with a total cost of $90,000. Id. at 45. Lee and the third-party tortfeasor settled their lawsuit for $450,000. After the settlement, the plan brought an action against Lee pursuant to § 502(a)(3) of ERISA, claiming that the plan was entitled to reimbursement based on the reimbursement clause contained in Lee’s health plan. The plaintiff contended that any benefits the defendant received were conditioned upon the plan’s right of reimbursement and that the defendant breached this contractual provision when she did not reimburse the plan. In its complaint, the plan expressly stated that it sought restitution and characterized the relief as equitable. The defendant relied on Knudson in arguing that the plaintiff’s subrogation claim was legal in nature and thus ERISA did not confer subject matter jurisdiction upon the court. Id. at 47. The defendant further argued that the plaintiff’s reimbursement claim was an action to impose personal liability on defendant for a sum of money, which should be precluded under Knudson’s interpretation of ERISA. Id. at 48. The plaintiff argued that the relief sought was “money or property belonging in good conscience to the plaintiff [that can] clearly be traced to particular funds or property in the defendant’s possession.” Id. (quoting Knudson, 534 U.S. at 213). The district court held that it “[could not] conclude that the funds sought are so far dispersed that they no longer are traceable to defendant” when the funds were being held in trust by defendant’s prior attorney. Id. The court relied on post-Knudson cases and denied the motion to dismiss, because the plaintiff’s claim “seem[ed] to be a claim for restitution in equity (not 1176

in law).” Id. (citing IBEW-NECA Sw. Health & Benefit Fund v. Douthitt, 211 F. Supp. 2d 812 (N.D. Tex. 2002); Bauer v. Gylten, Nos. A3-00-161 and A3-02-27, 2002 WL 664034 (D.N.D. Apr. 22, 2002); Great-West Life & Ann. Ins. Co. v. Brown, 192 F. Supp. 2d 1376 (M.D. Ga. 2002); and Health Cost Controls of Ill., Inc. v. Washington, 187 F.3d 703, 710 (7th Cir. 1999)). In Sereboff v. Mid Atlantic Medical Services, 547 U.S. 356 (2006), the Supreme Court clarified its opinion in Knudson and vindicated the district court’s decision in Primax. The Court reiterated that Knudson did not bar all restitution claims under § 502(a)(3), but only those that sought legal relief under the guise of restitution. Id. at 362. The Court further held that a restitution claim seeking “specifically identifiable funds” was appropriate under § 502(a)(3). Id. at 362–63. In Moore v. Capitalcare, Inc., 461 F.3d 1 (D.C. Cir. 2006), the D.C. Circuit analyzed the Supreme Court’s holding in Sereboff in the context of a subrogation claim brought pursuant to a federal common law make-whole theory. During the appeal the appellants dropped their challenge to an equitable lien issued by the lower court pursuant to § 502(a)(3) because “the Sereboff Court has made the decision that, where the fund is identifiable, the remedy is equitable.” Id. at 8. However, notwithstanding this fact, plaintiffs attempted to have the lien reversed on the basis that the injured plaintiff had not been made whole by a prior settlement. The Court held that based on the applicable plan language, which “unambiguously establishe[d] a plan priority to any third party recovery the beneficiary obtains 1177

regardless of whether the beneficiary has been made whole by the recovery,” it need not decide whether to adopt the make-whole doctrine as a default rule in the D.C. Circuit. Id. at 10. In reaching this conclusion, the Court recognized that there is a split among the circuits on this issue. XV. Miscellaneous For ERISA cases in the D.C. Circuit, an award of prejudgment interest is presumptively appropriate but not required. Moore, 461 F.3d at 12–13. The D.C. Circuit has recognized three bases for the presumption: (1) to deny prejudgment interest would allow a fiduciary to be unjustly enriched by wrongfully withholding benefits; (2) prejudgment interest serves to compensate a beneficiary for the loss of the benefits withheld; and (3) prejudgment interest promotes prompt settlement. Id. at 13. The presumption should only be overcome where “exceptional circumstances—a claimant’s bad faith, dilatoriness or frivolous claim—make the award unfair.” Id. The court in Moore held that where a fiduciary obtains an equitable lien on funds through subrogation, the fiduciary is presumptively entitled to prejudgment interest. Id. The amount of interest is discretionary and “to be determined in light of the equities.” Murchison v. Inter-City Mort. Corp. Profit Sharing & Pen. Plans, 503 F. Supp. 2d 184, 191 (D.D.C. 2007). In determining whether an illness has been properly categorized as a mental or physical disorder, the D.C. Circuit has recognized that there is disagreement among the circuits and thus far has avoided settling on an 1178

approach. Fitts v. Unum Life Ins. Co., 520 F.3d 499, 294–95 (D.C. Cir. 2008) (explaining that some circuits reject cause-based interpretations of illness because to do so would eliminate the distinction between mental and physical disorders (Fifth Circuit) or would conflict with the layperson’s method of classification (Eighth Circuit), while the Seventh, Ninth and Eleventh Circuits hold that it is appropriate to look at the cause of an illness when determining whether it is physical or mental). In Fitts, the D.C. Circuit reversed the district court’s decision to grant partial summary judgment to the plaintiff, holding that there was a genuine issue of material fact as to the possible causes of the plaintiff’s bipolar disorder, without reaching the larger question of the propriety of a causebased interpretation. Id. In Doe v. Provident Life & Acc. Ins. Co., 247 F.R.D. 218 (D.D.C. 2008), the plaintiff filed an action in federal court based on breach of contract claims stemming from the defendant’s denial of disability benefits and the defendant’s assertion of ERISA preemption as an affirmative defense. Before the preemption issue was resolved, the defendant sought an independent medical examination of the plaintiff. Id. at 221–22. The district court found that the plaintiff could not use the possibility that his claims would be preempted by ERISA, which would likely limit judicial review to the administrative record, to avoid the examination. Id. The District Court for the District of Columbia has certified as class actions a number of ERISA class actions. See, e.g., Kifafi v. Hilton Hotel Ret. Plan, 228 F.R.D. 382 (D.D.C. 2005), aff’d, 701 F.3d 718 (D.C. 1179

Cir.). To date the D.C. Circuit has not expressed whether or not it finds ERISA actions particularly suitable for class treatment.

1180

TABLE OF CASES Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir. 2006), 353, 354, 355, 357, 360, 361,362, 364, 379, 380, 391 Abdel v. U.S. Bancorp., 457 F.3d 877 (8th Cir. 2006), 331, 332 Abena v. Metro. Life Ins. Co., 544 F.3d 880 (7th Cir. 2008), 305 Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40 (3d Cir. 1993), 116, 121 Aboul-Fetouh v. Employee Benefits Committee, 245 F.3d 465 (5th Cir. 2001), 236 Abromitis v. Cont’l Cas. Co., 114 F. App’x 57, 2004 WL 2491367 (4th Cir. 2004), 167 AC Houston Lumber Co. Employee Health Plan v. Berg, 2010 U.S. App. LEXIS 26599 (9th Cir. Dec. 29, 2010), 390 Access Mediquip, L.L.C. v. United Healthcare Ins. Co., 662 F.3d 376 (5th Cir. 2011), 212 Ackerman v. Fortis Benefits Ins. Co., 254 F. Supp. 2d 792 (S.D. Ohio 2003)

1181

Acord v. Montelone, 2013 U.S. Dist. LEXIS 10962 (N.D. W. Va. 2013), 203 Acosta v. Bank of La., 88 F. App’x 688 (5th Cir. 2004), 231 Acree v. Hartford Life & Acc. Ins. Co., 2013 WL 140097 (M.D. Ga. Jan. 10, 2013), 446 ACS Recovery Services, Inc. v. Griffin, 2013 WL 1890258 (5th Cir. May 7, 2013), 676 F.3d 512 (5th Cir. 2012), 234 Acuna v. Conn. Gen. Life Ins. Co., 572 F. Supp. 2d 713 (E.D. Tex. 2008), 207 Adam v. Joy Mfg. Co., 651 F. Supp. 1301 (D.N.H. 1987), 41 Adams v. Brink’s Co., 420 F. Supp. 2d 523 (W.D. Va. 2006), 183 Adams v. Cyprus Amax Minerals Co., 149 F.3d 1156 (10th Cir. 1998), 416, 428 Adams v. Freedom Forge Corp., 204 F.3d 475 (3d Cir. 2000), 129, 130 Adams v. Hartford Life & Acc. Ins. Co., 589 F. Supp. 2d 1366 (N.D. Ga. 2008), 448, 449, 458 Adams v. Pen. Benefit Guar. Corp., 332 F. Supp. 2d 231 (D.D.C. 2004), 520

1182

Adams v. Thiokol Corp., 231 F.3d 837 (11th Cir. 2000), 455, 458 Adams v. Unum Life Ins. Co. of Am., 2005 U.S. Dist. LEXIS 32098 (S.D. Tex. 2005), 223, 224 Adamson v. Armco, Inc., 44 F.3d 650 (8th Cir. 1995), 332 Adamson v. Unum Life Ins. Co. of Am., 455 F.3d 1209 (10th Cir. 2006), 405, 406, 409 Adler v. Unicare Life & Health Ins. Co., 2003 WL 22928653 (S.D.N.Y. Dec. 10, 2003), 57 Admin. Comm. for the Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan v. Horton, 513 F.3d 1223 (11th Cir. 2008), 483 Admin. Comm. of Wal-Mart Assocs. Health & Welfare Plan v. Willard, 393 F.3d 1119 (10th Cir. 2004), 408, 427, 428 Admin. Comm. of Wal-Mart Stores, Inc. Assocs.’ Health & Welfare Plan v. Shank, 500 F.3d 834 (8th Cir. 2007), 332 Administrative Committee of the Wal-Mart Stores, Inc. Associates’ Health & Welfare Plan v. Varco, 338 F.3d 680 (7th Cir. 2003), 283 Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), 8, 9, 10, 44, 46, 59, 60, 61, 103, 104, 126, 153, 155, 163, 209,

1183

211, 212, 245, 282, 299, 339, 344, 345, 346, 347, 348, 365, 366, 436, 437, 497, 524 Aetna Life Ins. Co. v. Bayona, 223 F.3d 1030 (9th Cir. 2000), 350, 366 Aetna Life Ins. Co. v. Borges, 869 F.2d 142 (2d Cir. 1989), 60 Agosto v. Academia Sagrado Corazon, 739 F. Supp. 2d 90 (D.P.R. 2010), 11, 34 Agrawal v. Paul Revere Life Ins. Co., 205 F.3d 297 (6th Cir. 2000), 238 Air Line Pilots Ass’n, Int’l v. Nw. Airlines, Inc., 444 F. Supp. 1138 (D.D.C. 1978), 497 Airparts Co. v. Custom Benefit Servs. of Austin, Inc., 28 F.3d 1062 (10th Cir. 1994), 400 AirTran Airways, Inc. v. Elem, 771 F. Supp. 2d 1344 (N.D. Ga. 2011), 484 AirTran Airways, Inc. v. Elem, 2013 U.S. Dist. LEXIS 53967 (N.D. Ga. Mar. 26, 2013), 485 Alaska Trowel Trades Pension Fund v. Lopshire, 103 F.3d 881 (9th Cir. 1996), 350 Albert v. Life Ins. Co. of N. Am., 156 F. App’x 649 (5th Cir. 2005), 222–223, 224

1184

Alday v. Container Corp., 906 F.2d 660 (11th Cir. 1990), 438 Alexander v. Bosch Auto. Sys., Inc., 232 Fed. App’x 491 (6th Cir. 2007), 268 Alexander v. Fujitsu Bus. Commc’n Sys., Inc., 818 F. Supp. 462 (D.N.H. 1993), 11 Alfano v. CIGNA Life Ins. Co. of N.Y., 2009 WL 222351 (S.D.N.Y. Jan. 30, 2009), 73 Alford v. Blue Cross & Blue Shield of Ala., 910 F. Supp. 560 (N.D. Ala. 1995), 459 Algren v. Pirelli Armstrong Tire Corp., 197 F.3d 915 (8th Cir. 1999), 313 Allen v. Adage, Inc., 967 F.2d 695 (1st Cir. 1992), 20 Allen v. Life Ins. Co. of Am., 267 F.R.D. 407 (N.D. Ga. 2009), 449 Allen v. Unum Life Ins. Co. of Am., 289 F. Supp. 2d 745 (W.D. Va. 2003), 200 Alley v. Resolution Trust Corp., 984 F.2d 1201 (D.C. Cir. 1993), 101 Allied Pilots Ass’n v. Pension Benefit Guar. Corp., 334 F.3d 93 (D.C. Cir. 2003), 516

1185

Allison v. Bank One-Denver, 289 F.3d 1223 (10th Cir. 2002), 408, 420, 421 Allison v. Cont’l Cas. Ins. Co., 953 F. Supp. 127 (E.D. Va. 1996), 180 Allison v. UNUM, 2005 U.S. Dist. LEXIS 3465 (E.D.N.Y. 2005), 77 Allison v. Unum Life Ins. Co. of Am., 381 F.3d 1015 (10th Cir. 2004), 398 Alton Mem’l v. Metro. Life Ins. Co., 656 F.2d 245 (7th Cir. 1981), 301 Altshuler v. Animal Hospitals, Ltd., 901 F. Supp. 2d 269 (D. Mass. 2012), 7 Aluisi v. Unum Life Ins. Co. of Am., 407 F. App’x 126 (9th Cir. 2010), 363 Aluisi v. Unum Life Ins. Co. of Am., 2010 WL 5393883 (9th Cir. Dec. 10, 2010), 364 Alves v. Harvard Pilgrim Health Care, Inc., 204 F. Supp. 2d 198 (D. Mass. 2002), 35, 44 Am. Council of Life Insurers v. Ross, 558 F.3d 600 (6th Cir. 2009), 244, 246 Am. Dental Ass’n v. WellPoint Health Networks, Inc., 494 F. App’x 43 (11th Cir. 2012), 440, 441

1186

Am. Med. Ass’n. v. United Healthcare Corp., 2002 WL 31413668 (S.D.N.Y. 2002), 79, 81–82 Am. Med. Sec., Inc. v. Bartlett, 111 F.3d 358 (4th Cir. 1997), 155 Amaro v. Cont’l Can Co., 724 F.2d 747 (9th Cir. 1984), 499 Amato v. Bernard, 618 F.2d 559 (9th Cir. 1980), 351, 352 Ames v. Am. Nat’l Can Co., 170 F.3d 751 (7th Cir. 1999), 283, 300 Aminoff v. Ally & Gargano Inc., 20 Empl. Benefits Cas. (BNA) 2172, 1996 U.S. Dist. LEXIS 17372 (S.D.N.Y. 1996), 84 Amschwand v. Spherion Corp., 505 F.3d 342 (5th Cir. 2007), 226 Anderson v. Consol. Rail Corp., 297 F.3d 242 (3d Cir. 2002), 139 Anderson v. Cytec Indus., Inc., 619 F.3d 505 (5th Cir. 2010), 215 Anderson v. John Morrell & Co., 830 F.2d 872 (8th Cir. 1987), 332 Anderson v. Mrs. Grissom’s Salads, Inc., No. 99–5207, 2000 U.S. App. LEXIS 14511 (6th Cir. June 19, 2000), 274

1187

Anderson v. Operative Plasterers’ & Cement Masons’ Int’l. Assoc., 991 F.2d 356 (7th Cir. 1993), 295 Anderson v. Reliance Standard Life Ins. Co., 2012 WL 32568 (D. Md. 2012), 169 Anderson v. Reliance Std. Life Ins. Co., 2013 U.S. Dist. LEXIS 41009 (D. Md. 2013), 198 Anderson v. Sara Lee Corp., 348 F. Supp. 2d 618 (W.D.N.C. 2004), 172 Anderson v. Suburban Teamsters of Northern Illinois Pension Fund Board of Trustees, 588 F.3d 641 (9th Cir. 2009), 381 Anderson v. Unum Life Ins. Co. of Am., 414 F. Supp. 2d 1079 (M.D. Ala. 2006), 451 Anderson v. UnumProvident Corp., 369 F.3d 1257 (11th Cir. 2004), 431, 432, 433, 434, 479 Andes v. Ford Motor Co., 70 F.3d 1332 (D.C. Cir. 1995), 516 Andochick v. Byrd, 709 F.3d 296 (4th Cir. 2013), 151, 156 Anita Founds., Inc. v. ILGWU Nat’l Ret. Fund, 902 F.2d 185 (2d Cir. 1990), 85 Ankney v. Metro. Life Ins. Co., 438 F. Supp. 2d 566 (D. Md. 2006), 177

1188

Anoka Orthopaedic Assoc., P.A. v. Lechner, 910 F.2d 514 (8th Cir. 1990), 328 Anschultz v. Conn. Gen. Life Ins. Co., 850 F.2d 1467 (11th Cir. 1988), 436 Anstett v. Eagle-Pitcher Indus., Inc., 203 F.3d 501 (7th Cir. 2000), 290 Anthony v. Jet Direct Aviation, Inc., 725 F. Supp. 2d 249 (D. Mass. 2010), 33, 36 Anthuis v. Colt Indus. Operating Corp., 971 F.2d 999 (3d Cir. 1992), 135 Anweiler v. Am. Elec. Power Serv. Corp., 3 F.3d 986 (7th Cir. 1993), 299–300 AOL Time Warner, Inc. Secs. & “ERISA” Litig., 2005 WL 563166 (S.D.N.Y. 2005), 83 Arana v. Ochsner Health Plan, 338 F.3d 433 (5th Cir. 2003), 209, 210 Arbor Health Care Co. v. Sutphen Corp., No. 98-3497, 1999 WL 282667 (6th Cir. Apr. 30, 1999), 239, 240 Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 369 F.3d 91 (2d Cir. 2004), 86 Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006), 442 Arditi v. Lighthouse Int’l, 676 F.3d 294 (2d Cir. 2012), 60

1189

Ardolino v. Metro. Life Ins. Co., 2001 WL 34563168 (D. Mass. July 2, 2001), 22, 23 Arfsten v. Frontier Airlines, Inc. Ret. Plan for Pilots, 967 F.2d 438 (10th Cir. 1992), 404, 408–409 Armistead v. Vernitron Corp., 944 F.2d 1287 (6th Cir. 1991), 271 Arnold v. F.A. Richard & Assocs., Inc., 2000 WL 1875905 (E.D. La. 2000), 223 Arnold v. Metro. Life Ins. Co., 2005 U.S. Dist. LEXIS 23240 (W.D. Va. 2005), 197 Arnone v. CA, Inc., 2009 WL 362304 (S.D.N.Y. Feb. 13, 2009), 75 Arvie v. Century Tel. Enters., Inc., 452 So. 2d 392 (La. App. 3d Cir. 1984), 230 Aschermann v. Aetna Life Ins. Co., 689 F.3d 726 (7th Cir. 2012), 284, 289 Atkins v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, 694 F.3d 557 (5th Cir. 2012), 216 Atkins v. Prudential Ins. Co., 404 F. App’x 82 (8th Cir. 2010), 318, 322 Atl. Health Benefits Trust v. Googins, 2 F.3d 1 (2d Cir. 1993), 58

1190

Atl. Health Care Benefits Trust v. Foster, 809 F. Supp. 365 (M.D. Pa. 1992), 102 AT&T, Inc. v. Flores, 332 F. App’x 391 (5th Cir. 2009), 234 Atwood v. Burlington Industries Equity Inc., 1994 WL 698314 (M.D.N.C. 1994), 189 Atwood v. Newmont Gold Co., 45 F.3d 1317 (9th Cir. 1995), 355 Auto Owners Ins. Co. v. Thorn Apple Valley, Inc., 31 F.3d 371 (6th Cir. 1994), 252 AutoNation, Inc. v. United Healthcare Ins. Co., 423 F. Supp. 2d 1265 (S.D. Fla. 2006), 439, 465, 471 Avera v. Airline Pilots Ass’n Intern., 436 F. App’x 969 (11th Cir. 2011), 435 Averhart v. U.S. WEST Mgmt. Pension Plan, 46 F.3d 1480 (10th Cir. 1994), 394, 400, 405 Az. State Carpenters Pension Trust Fund v. Citibank, 125 F.3d 715 (9th Cir. 1997), 339, 340

Babcock v. Hartmarx Corp., 182 F.3d 336 (5th Cir. 1999), 231 Back v. Dancka Corp., 335 F.3d 790 (8th Cir. 2003), 314

1191

Bagden v. Equitable Life Assurance Soc’y of the U.S., No. 99-66, 1999 WL 305518 (E.D. Pa. Feb. 5, 1999), 100 Bair v. Life Ins. Co. of N. Am., No. 09-0549, 2011 WL 4860006 (E.D. Pa. Oct. 13, 2011), 121, 122 Baker, In re, 114 F.3d 636 (7th Cir. 1997), 280 Baker v. Big Star Div. of the Grand Union Co., 893 F.2d 288 (11th Cir. 1989), 445, 465 Baker v. Hartford Life Ins. Co., 440 F. App’x 66 (3d Cir. 2011), 113, 124 Baker v. Kingsley, 387 F.3d 649 (7th Cir. 2004), 300 Baker v. Metro. Life Ins. Co., 364 F.3d 624 (5th Cir. 2004), 216, 217 Baker v. Provident Life & Accid. Ins. Co., 171 F.3d 939 (4th Cir. 1999), 163, 164 Balas v. PNC Fin. Servs. Grp., Inc., No. 2:10-cv-0249, 2012 WL 681711 (W.D. Pa. Feb. 29, 2012), 122, 124 Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69 (3d Cir. 2011), 113, 115 Balestracci v. NSTAR Elec. & Gas Corp., 449 F.3d 224 (1st Cir. 2006), 2, 20 Ball v. Standard Ins. Co., 2011 U.S. Dist. LEXIS 19146 (N.D. Ill. Feb. 23, 2011), 290

1192

Ballard v. Leone, No. 11-cv-779, 2012 U.S. Dist. LEXIS 25306 (D. Md. Feb. 28, 2012), 146 Balmert v. Reliance Standard Life Ins. Co., 601 F.3d 497 (6th Cir. 2010), 259–260, 275 Bank of America Corp. Securities, Derivative, and Employee Retirement Income Sec. Act (ERISA) Litigation, In re, 756 F. Supp. 2d 330 (S.D.N.Y. 2010), 83 Bank of La. v. Aetna U.S. Healthcare Inc., 468 F.3d 237 (5th Cir. 2006), 210–211, 211 Banki v. Provident Indem. Life Ins. Co., 95 F. App’x 268 (10th Cir. 2004), 395 Banks v. Jockey Int’l Inc., 996 F. Supp. 576 (N.D. Miss. 1998), 230 Bannistor v. Ullman, 287 F.3d 394 (5th Cir. 2002), 225 Baptist Mem’l Hosp.-DeSoto, Inc. v. Crane Auto., Inc., 2007 WL 405051 (N.D. Miss. 2007), 224–225, 229 Baradell v. Bd. of Social Servs., 970 F. Supp. 489 (W.D. Va. 1997), 195 Barber v. Sun Life and Health Ins. Co., 894 F. Supp. 2d 174 (D. Conn. 2012), 76 Barber v. Unum Life Ins. Co. of Am., 383 F.3d 134 (3d Cir. 2004), 103, 104, 105

1193

Bard v. Boston Shipping Assn., 471 F.3d 229 (1st Cir. 2006), 12, 19, 27, 45, 46, 47 Bardill v. Lincoln National Life Ins. Co., 2011 U.S. Dist. LEXIS 28276 (N.D. Cal. March 15, 2011), 391 Barhan v. Ry-Ron, Inc., 121 F.3d 198 (5th Cir. 1997), 224 Barker v. Ceridian Corp., 122 F.3d 628 (8th Cir. 1997), 320 Barkin v. Patient Advocates, LLC, 493 F. Supp. 2d 119 (D. Me. 2007), 30 Barnes v. Lacy, 927 F.2d 539 (11th Cir. 1991), 468 Barnhart v. Unum Life Ins. Co. of Am., 179 F.3d 583 (8th Cir. 1999), 321 Barrett v. Life Ins. Co. of N. Am., 868 F. Supp. 2d 779 (N.D. Ill. 2012), 305 Barringer-Willis v. Healthsource N.C. Inc., 14 F. Supp. 2d. 780 (E.D.N.C. 1998), 148 Barron v. Unum Life Ins. Co. of Am., 260 F.3d 310 (4th Cir. 2001), 186 Barrs v. Lockheed Martin Corp., 287 F.3d 202 (1st Cir. 2002), 34, 35, 44 Barry v. Trs. of the Int’l Ass’n Full-Time Salaried Officers & Emps. of Outside Local Unions & Dist.

1194

Counsel’s (Iron Workers) Pension Plan, 404 F. Supp. 2d 145 (D.D.C. 2005), 520, 521 Barry v. West, 503 F. Supp. 2d 313 (D.D.C. 2007), 517, 521 Bartel v. Sun Life Assur. Co. of Canada, 536 F. Supp. 2d 623 (D. Md. 2008), 168 Bartholomew v. Unum Life Ins. Co., 579 F. Supp. 2d 1339 (W.D. Wash. 2008), 361 Bartlett v. Martin Marietta Operations Support, Inc. Life Ins. Plan, 38 F.3d 514 (10th Cir. 1994), 422 Bast v. Prudential Ins. Co. of Am., 150 F.3d 1003 (9th Cir. 1998), 337–338, 365–366 Batchelor v. Oak Hill Med. Group, 870 F.2d 1446 (9th Cir. 1989), 368 Battoni v. IBEW Local Union No. 102 Emp. Pension Plan, 594 F.3d 230 (3d Cir. 2010), 125 Bauer v. Gylten, Nos. A3-00-161 and A3-02-27, 2002 WL 664034 (D.N.D. Apr. 22, 2002), 529 Bauer v. Summit Bancorp, 325 F.3d 155 (3d Cir. 2003), 98, 113 Bauhaus USA, Inc. v. Copeland, 292 F.3d 439 (5th Cir. 2002), 231, 232, 233, 234

1195

Bausch & Lomb, Inc. ERISA Litig., In re, 2008 U.S. Dist. LEXIS 106269 Empl. Benefits Cas. (BNA) 1977 (W.D.N.Y. Dec. 12, 2008), 58 Baxter v. C.A. Muer Corp., 941 F.2d 451 (6th Cir. 1991), 247, 248 Bayer v. Fluor Corp., 682 F. Supp. 2d 484 (E.D. Pa. 2010), 139 Bd. of Trs. of the Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794 (D.C. Cir. 1998), 516, 522, 523 Bd. of Trs. of the Hotel & Rest. Emps. Local 25 v. Madison Hotel, Inc., 97 F.3d 1479 (D.C. Cir. 1996), 494, 497 Beach v. Commonwealth Edison Co., 382 F.3d 656 (7th Cir. 2004), 300 Beamon v. Assurant Employee Benefits, No. 1:12-CV-463, 2013 WL 227692 (W.D. Mich. Jan. 22, 2013), 248 Beattie v. Prudential Ins. Co. of Am., 2011 WL 2413458 (D. Mass. June 8, 2011), 24 Beck v. Pace Int’l Union, 551 U.S. 96 (2007), 40 Becker v. Chrysler LLC Health Care Benefits Plan, 691 F.3d 879 (7th Cir. 2012), 291 Beckstrand v. Elec. Arts Group, No. 05-cv-0323-AWINEW, 2007 WL 1599769 (E.D. Cal. June 4, 2007), 361

1196

Beddall v. State St. Bank & Trust Co., 137 F.3d 12 (1st Cir. 1998), 5, 18, 32, 33, 34, 40 Bedrick v. Travelers Ins. Co., 93 F.3d 149 (4th Cir. 1996), 167, 168, 184 Belanger v. Healthsource of Me., 66 F. Supp. 2d 70 (D. Me. 1999), 12 Belanger v. Wyman-Gordon Co., 71 F.3d 451 (1st Cir. 1995), 491 Belknap v. Hartford Life Ins. Co., 389 F. Supp. 2d 1320 (M.D. Fla. 2005), 479 Bell v. Exec. Comm. of United Food & Comm. Workers Pen. Plan for Emps., 191 F. Supp. 2d 10 (D.D.C. 2002), 525 Bell v. Shenandoah Life Ins. Co., 589 F. Supp. 2d 1368 (M.D. Ga. 2008), 454 Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822 (5th Cir. 1996), 221–222 Belrose v. Hartford Life & Accid. Ins. Co., 478 Fed. App’x 21 (4th Cir. 2012), 196 Bender v. Newell Window Furnishings, Inc., 681 F.3d 253 (6th Cir. 2012), 262, 276 Bendixen v. Standard Ins. Co., 185 F.3d 939 (9th Cir. 1999), 364, 391

1197

Benefit Retirement Plan of Lin Television Corp., 861 F. Supp. 2d 41 (D. R.I. 2012), 24 Benham v. Disability Portion of Life & Disability Plan, 6 Fed. App’x 280 (6th Cir. 2001), 241 Bennett v. Conrail Matched Sav. Plan, 168 F.3d 671 (3d Cir. 1999), 129 Bennett v. Kemper Nat. Servs., Inc., 514 F.3d 547 (6th Cir. 2008), 259 Bennett v. Metro. Life Ins. Co., 383 F. App’x 870 (11th Cir. 2010), 481 Bennett v. Unum Life Ins. Co. of Am., 321 F. Supp. 2d 925 (E.D. Tenn. 2004), 255, 256 Benson v. Bridgestone/Firestone, Inc., 2006 U.S. App. LEXIS 9508 (10th Cir. Apr. 14, 2006), 402 Benson v. Cont’l Cas. Co., 592 F. Supp. 2d 1274 (C.D. Cal. 2009), 370, 375 Berger Transfer & Storage v. Cent. States, S.E. & S.W. Areas Pension Fund, 85 F.3d 1374 (8th Cir. 1996), 310 Berger v. Edgewater Steel Co., 911 F.2d 911 (3d Cir. 1990), 106, 107 Berlin v. Mich. Bell Tel. Co., 858 F.2d 1154 (6th Cir. 1988), 267, 520

1198

Bernards v. United of Omaha Life Ins. Co., 987 F.2d 486 (8th Cir. 1993), 323 Bernstein v. Capital-Care, Inc., 70 F.3d 783 (4th Cir. 1995), 166, 171 Berry v. Ciba-Geigy Corp., 761 F.2d 1003 (4th Cir. 1985), 162, 171, 179, 180, 181 Bertoni v. Stock Bldg. Supply, 989 So. 2d 670 (Fla. Dist. Ct. App. 2008), 439 Best v. Cyrus, 310 F.3d 932 (6th Cir. 2002), 268 Bickley v. Caremark RX, Inc., 461 F.3d 1325 (11th Cir. 2006), 440, 442 Bidlack v. Wheelabrator Corp., 993 F.2d 603 (7th Cir.), 292 Bidwell v. University Med. Ctr., Inc., 685 F.3d 613 (6th Cir. 2012), 263, 265 Bidwill v. Garvey, 943 F.2d 498 (4th Cir. 1991), 184 Biggers v. Wittek Indus., Inc., 4 F.3d 291 (4th Cir. 1993), 179, 180 Billinger v. Bell Atl., 240 F. Supp. 2d 274 (S.D.N.Y. 2003), 72 Bilyeu v. Morgan Stanley Long Term Disability Plan, 683 F.3d 1083 (9th Cir. 2012), 366, 367, 389

1199

Bird v. GTX, Inc., No. 2:08-CV-02582, 2010 WL 883738 (W.D. Tenn. March 4, 2010), 248 Birdsell v. UPS of Am., Inc., 94 F.3d 1130 (8th Cir. 1996), 316, 323 Bishop v. Osborn Transportation, Inc., 687 F. Supp. 1526 (N.D. Ala. 1988), 475, 476 Bixler v. Cent. Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir. 1993), 132, 133 Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003), 44, 174, 175, 259, 260, 355, 363, 364, 455, 524 Black v. Long Term Dis. Ins., 2009 U.S. App. LEXIS 20762 (7th Cir. 2009), 295 Blackshear v. Reliance Standard Life Ins. Co., 509 F.3d 634 (4th Cir. 2007), 165 Blaikie v. Rsight, Inc., 2011 WL 5834751 (M.D. Fla. Nov. 21, 2011), 443 Blajei v. Sedgwick Claims Mgmt. Servs., 721 F. Supp. 2d 584 (E.D. Mich. 2010), 274 Blake v. UnionMutual Stock Life Ins. Co., 906 F.2d 1525 (11th Cir. 1990), 456–457 Bland v. Fiatallis N. Am., Inc., 401 F.3d 779 (7th Cir. 2005), 258

1200

Blank v. Bethlehem Steel Corp., 738 F. Supp. 1380 (M.D. Fla. 1990), 477 Blankenship v. Liberty Life Assur. Co. of Boston, 486 F.3d 620 (9th Cir. 2007), 366, 390 Blankenship v. Metro Life Ins. Co., 686 F. Supp. 2d 1227 (N.D. Ala. 2009), 449 Blankenship v. SmithKline Beecham Corp., 2004 WL 3554969 (S.D. Fla. 2004), 475 Blankton v. Anzalone, 813 F.3d 1574 (9th Cir. 1987), 390 Blaske v. Unum Life Ins. Co. of Am., 131 F.3d 763 (8th Cir. 1997), 331 Blatt v. Marshall & Lassman, 812 F.2d at 812 (2d Cir. 1987), 80, 81 Blau v. Del Monte Corp., 748 F.2d 1348 (9th Cir. 1984), 356, 358, 378 Bldg. Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392 (6th Cir. 1995), 272 Blessing v. Deere & Co., 985 F. Supp. 899 (S.D. Iowa. 1997), 321 Blickenstaff v. R.R. Donnelley & Sons Co., 378 F.3d 669 (7th Cir. 2004), 286

1201

Block v. Pitney Bowes, Inc., 952 F.2d 1450 (D.C. Cir. 1992), 501, 504, 509, 513, 514, 524 Bloemker v. Laborers’ Local 265 Pension Fund, 605 F.3d 436 (6th Cir. 2010), 254 Blossom v. Bank of N.H., 2004 WL 1588307 (D.N.H. July 16, 2004), 40, 43 Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347 (11th Cir. 1998), 481 Blue Cross of Ca. v. Anesthesia Care Assocs. Med. Group, Inc., 187 F.3d 1045 (9th Cir. 1999), 346, 347 Blum v. Stenson, 465 U.S. 886 (1984), 375 Bluman v. Plan Adm’r & Trustees for CNA’s Integrated Disability Program, 491 F. App’x 312 (3d Cir. 2012), 110, 111 Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9 (1st Cir. 2003), 29 Boby v. PNC Bank Corp. & Affiliates LTD Plan, No. 11-848, 2012 WL 3886916 (W.D. Pa. Sept. 6, 2012), 124 Boggs v. Boggs, 520 U.S. 833 (1997), 7, 209 Boilermaker-Blacksmith Nat’l Pension Fund v. Ace Polyethylene Bag Co., 2002 U.S. Dist. LEXIS 3993 (D. Kan. Mar. 7, 2002), 423

1202

Boivin v. US Airways, Inc., 297 F. Supp. 2d 110 (D.D.C. 2003), 525 Boivin v. US Airways, Inc., 446 F.3d 148 (D.C. Cir. 2006), 526 Boivin v. US Airways, Inc., 2006 U.S. App. LEXIS 10875 (D.C. Cir. May 2, 2006), 498 Bolone v. TRW Sterling Plant Pension Plan, 130 Fed. App’x 761 (6th Cir. 2005), 274 Bombardier Aerospace Emp. Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, 354 F.3d 348 (5th Cir. 2003), 227, 231, 233, 234, 485 Bona v. Barasch, 2003 WL 1395932 (S.D.N.Y. 2003), 93 Bonanno v. Blue Cross & Blue Shield of Mass., 2011 WL 4899902 (D. Mass. Oct. 14, 2011), 14 Bonnell v. Bank of Am., 284 F. Supp. 2d 1284 (D. Kan. 2003), 416, 428 Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981), 481 Boone v. Leavenworth Anesthesia, Inc., 20 F.3d 1108 (10th Cir. 1994), 397 Booth v. Wal-Mart Stores, Inc. Assoc. Health & Welfare Plan, 201 F.3d 335 (4th Cir. 2000), 161, 167, 168, 169, 178

1203

Booton v. Lockheed Med. Benefit Plan, 110 F.3d 1461 (9th Cir. 1997), 355, 380 Borreani v. Kaiser Foundation Hospitals, 875 F. Supp. 2d 1050 (N.D. Cal. 2012), 348, 349 Borrero v. United Healthcare of New York, Inc., 610 F.3d 1296 (11th Cir. 2010), 436 Boucher v. Williams, 13 F. Supp. 2d 84 (D. Me. 1998), 33 Bourgeois v. Pension Plan for Emps. of Santa Fe Int’l Corps., 215 F.3d 475 (5th Cir. 2000), 213, 214 Bova v. Am. Cyanamid Co., 662 F. Supp. 483 (S.D. Ohio 1987), 268 Bowden v. U.S., 106 F.3d 433 (D.C. Cir. 1997), 501 Bowen v. S. Trust Bank of Ala., 760 F. Supp. 889 (M.D. Ala. 1991), 478 Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574 (7th Cir. 2000), 284, 302 Bowles v. Quantum Chem. Co., 266 F.3d 622 (7th Cir. 2002), 290 Bowling v. PBG Long-Term Disability Plan, 584 F. Supp. 2d 797 (D. Md. 2008), 191 Boyd v. Bert Bell/Pete Rozelle NFL Players Ret. Fund, 410 F.3d 1173 (9th Cir. 2005), 354

1204

Boyd v. Coventry Health Care Inc., 828 F. Supp. 2d 809 (D. Md. 2011), 185 Boyd v. Metro. Life Ins. Co., 636 F.3d 138 (4th Cir. 2011), 166 Boyd v. Tr. of the United Mine Workers Health & Ret. Funds, 873 F.2d 57 (4th Cir. 1989), 160 Boyle v. Anderson, 68 F.3d 1093 (8th Cir. 1995), 328 Boyson v. Dartmouth Hitchcock Clinic, 2010 WL 1838322 (D.N.H. 2010), 45 BP Corp. N. Am. Inc. Savings Plan Inv. Oversight Cmte. v. Northern Trust Investments NA, 692 F. Supp. 2d 890 (N.D. Ill. 2010), 301 Brady v. United of Omaha Life Ins. Co., 2012 WL 3583033 (N.D. Cal. 2012), 344 Branch v. Life Ins. Co. of N. Am., 2009 U.S. Dist. LEXIS 105273 (M.D. Ga. 2009), 450 Brandon v. Travelers Ins. Co., 18 F.3d 1321 (5th Cir. 1994), 219 Brannon v. BellSouth Telecomms., Inc., 2009 WL 567234 (11th Cir. Mar. 6, 2009), 452 Brant v. Principal Life & Dis. Ins. Co., 6 Fed App’x 533 (8th Cir. 2001), 325

1205

Brasley v. Fearless Farris Serv. Stations, Inc., 2010 WL 4867359 (D. Idaho 2010), 375 Brenner v. Metro. Life Ins. Co., 2013 WL 1337367 (D. Mass. Mar. 29, 2013), 9 Brett v. Jefferson Cnty., Ga., 123 F.3d 1429 (11th Cir. 1997), 432 Brewer v. Lincoln Nat’l Life Ins. Co., 921 F.2d 150 (8th Cir. 1990), 252, 319, 320, 333 Brewster v. Dukakis, 3 F.3d 488 (1st Cir. 1993), 39 Brien v. Metro. Life Ins. Co., 2012 WL 4370677 (D. Mass. Sept. 21, 2012), 21 Briggs v. Marriott Int’l, Inc., 368 F. Supp. 2d 461 (D. Md. 2005), 170 Brigham v. Sun Life of Canada, 317 F.3d 72 (1st Cir. 2003), 13, 14 Brink v. DeLasio, 496 F. Supp. 1350 (D. Md. 1980), 519 Briscoe v. Fine, 444 F.3d 478 (6th Cir. 2006), 242, 243, 265, 266, 272 Broadnax Mills, Inc. v. Blue Cross & Blue Shield of Va., 867 F. Supp. 398 (E.D. Va. 1994), 183 Brock v. Hendershott, 840 F.2d 339 (6th Cir. 1998), 270

1206

Brodish v. Federal Express Corp., 384 F. Supp. 2d 827 (D. Md. 2005), 172 Brodziak v. Runyon, 145 F.3d 194 (4th Cir. 1998), 191, 192 Broga v. Northeast Utils., 315 F. Supp. 2d 212 (D. Conn. 2004), 81 Brogan v. Holland, 105 F.3d 158 (4th Cir. 1997), 161, 193, 199 Brooks v. Metro. Life Ins. Co., 526 F. Supp. 2d 534 (D. Md. 2007), 169, 194 Brooks v. Peer Review Mediation and Arbitration, Inc., 2012 U.S. Dist. LEXIS 158980 (S.D. Fla. 2012), 474 Brown v. BellSouth Telecomms., Inc., 73 F. Supp. 2d 1308 (M.D. Fla. 1999), 457, 458 Brown v. Blue Cross & Blue Shield of Ala., 898 F.2d 1556 (11th Cir. 1990), 447, 448, 449, 457, 458, 505 Brown v. Cont’l Airlines, Inc., 647 F.3d 221 (5th Cir. 2011), 215 Brown v. Cont’l Baking Co., 891 F. Supp. 238 (E.D. Pa. 1995), 107 Brown v. Hartford Life Ins. Co., 301 F. App’x 772 (10th Cir. 2008), 414

1207

Brown v. Independence Blue Cross, No. 08-1355, 2008 WL 2805600 (E.D. Pa. July 21, 2008), 98 Brown v. J. Kaz, Inc., 581 F.3d 175 (3d Cir. 2009), 98 Brown v. J.B. Hunt Trans. Servs., Inc., 586 F.3d 1079 (8th Cir. 2009), 311, 313, 314, 325 Brown v. Owens Corning Inv. Review Comm., 622 F.3d 564 (6th Cir. 2010), 276 Brown v. Paul Revere Life Ins. Co., No. 01-1931, 2002 WL 1019021 (E.D. Pa. May 20, 2002), 99 Brown v. Pen. Benefit Guar. Corp., 821 F. Supp. 26 (D.D.C. 1993), 526 Brown v. Ret. Comm. of Briggs & Stratton Ret. Plan, 797 F.2d 521 (7th Cir. 1986), 89, 424 Brown v. Seitz Foods, Inc., 140 F.3d 1198 (8th Cir. 1998), 316, 322, 323 Brown v. Weiner, No. Civ. A. 04-cv-3442, 2005 WL 2989748 (E.D. Pa. July 6, 2005), 105 Browning v. Tiger’s Eye Benefits Consulting, Inc., 2009 U.S. App. LEXIS 3927 (4th Cir. 2009), 195 Brubaker v. Metro. Life Ins. Co., 2005 U.S. Dist. LEXIS 39816 (D.D.C. Sept. 26, 2005), 509

1208

Brucks v. Coca-Cola Co., 391 F. Supp. 2d 1193 (N.D. Ga. 2005), 480 Bruno v. AT&T Mobility LLC, No. 10-404, 2011 WL 2181962 (W.D. Pa. June 3, 2011), 115 Bryner v. E.I. DuPont de Nemours & Co., 2013 U.S. Dist. LEXIS 46951 (E.D. Va. 2013), 192 Brytus v. Spang & Co., 203 F.3d 238 (3d Cir. 2000), 136 B-T Dissolution, Inc. v. Provident Life & Accid. Ins. Co., 101 F. Supp. 2d 930 (S.D. Ohio 2000), 273 Buce v. Allianz Life Ins. Co., 247 F.3d 1133 (11th Cir. 2001), 447, 459 Buchanan v. Reliance Standard Life Ins. Co., 1998 U.S. Dist. LEXIS 12957 (D. Kan. July 6, 1998), 422 Bucholz v. Liberty Mut. Ins. Co., 2010 WL 4272461 (D. Or. 2010), 342 Buford v. Unum Life Ins. Co. of Am., 290 F. Supp. 2d 92 (D.D.C. 2003), 502, 504, 517, 522–523 Bui v. American Tel. & Tel. Co., Inc., 310 F.3d 1143 (9th Cir. 2002), 348, 349 Bukuvalas v. Cigna Corp., No. 10-0710, 2010 WL 5055811 (D.N.J. Dec. 3, 2010), 104

1209

Bullard v. Life Ins. Co. of N. Am., 2011 U.S. Dist. LEXIS 47 (S.D. Tex. 2011), 222 Burchill v. Unum Life Ins. Co. of Am., 327 F. Supp. 2d 41 (D. Me. 2004), 26 Burgio v. Prudential Life Ins. Co. of Am., 253 F.R.D. 219 (E.D.N.Y. 2008), 69 Burk v. Broadspire Servs., Inc., 342 F. App’x 732 (3d Cir. 2009), 122 Burke v. Kodak Ret. Income Plan, 336 F.3d 103 (2d Cir. 2003), 88, 89 Burke v. McDonald, 572 F.3d 51 (1st Cir. 2009), 39 Burke v. Pitney Bowes Inc. Long-Term Disability Plan, 544 F.3d 1016 (9th Cir. 2008), 360 Burke v. PricewaterhouseCoopers LLP Long Term Disability Plan, 537 F. Supp. 2d 546 (S.D.N.Y. 2008), 63, 90, 91 Burke v. PricewaterhouseCoopers LLP Long Term Disability Plan, 572 F.3d 76 (2d Cir. 2009), 63, 66, 91 Burkhart v. Metro. Life Ins. Co., 2003 WL 21655486 (E.D. Va. 2003), 168 Burns v. Am. United Life Ins. Co., 2006 U.S. Dist. LEXIS 2006 (S.D. Ill. April 17, 2006), 293

1210

Burns v. Unum Group, 2010 WL 5173806 (E.D. Mich. 2010), 273 Burrey v. Pacific Gas & Elec. Co., 159 F.3d 388 (9th Cir. 1998), 383 Burroughs v. BellSouth Telecomms., Inc., 446 F. Supp. 2d 1294 (N.D. Ala. 2006), 487 Burstein v. Ret. Plan, Allegheny Health, 334 F.3d 365 (3d Cir. 2003), 130 Bush v. RMS, Inc., No. 08-1133, 2008 WL 1808307 (D.N.J. Apr. 21, 2008), 126 Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207 (11th Cir. 1999), 432, 433, 434, 439, 479 Buttram v. Cent. States, S.E. & S.W. Areas Health & Welfare Fund, 76 F.3d 896 (8th Cir. 1996), 318 Byard v. QualMed Plans for Health, Inc., 966 F. Supp. 354 (E.D. Pa. 1997), 99, 101 Byars v. Coca-Cola Co., 517 F.3d 1256 (11th Cir. 2008), 475, 486 Byars v. Coca-Cola Co., 2004 WL 1595399 (N.D. Ga. 2004), 450 Bynum v. CIGNA Healthcare of N.C., Inc., 287 F.3d 305 (4th Cir. 2002), 164, 179

1211

Byrd v. MacPapers, Inc., 961 F.2d 157 (11th Cir. 1992), 440 Byrd v. Prudential Ins. Co. of Am., 2010 WL 5155570 (M.D. Tenn. 2010), 275

Ca. Div. of Labor Standards Enforcement v. Dillingham Construction, 519 U.S. 316 (1997), 312, 339, 340, 341 Caffey v. Unum Life Ins. Co., 302 F.3d 576 (6th Cir. 2003), 242 Cagle v. Bruner, 112 F.3d 1510 (11th Cir. 1997), 445, 484 Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316 (1997), 244 Calamia v. Spivey, 632 F.2d 1235 (5th Cir. 1980), 224 Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276 (10th Cir. 2002), 406, 409, 424–425 Calhoun v. Complete Health, Inc., 860 F. Supp. 1494 (S.D. Ala. 1994), 458 Call v. Ameritech Mgmt. Pension Plan, 475 F.3d 816 (7th Cir. 2007), 291, 292 Call v. Sumitomo Bank of Cal., 881 F.2d 626 (9th Cir. 1989), 368, 369

1212

Callery v. U.S. Life Ins. Co., 392 F.3d 401 (10th Cir. 2004), 418 Calvert v. Firstar Fin., Inc., 409 F.3d 286 (6th Cir. 2005), 255–256, 259, 260 Campbell, In re, 116 F. Supp. 2d 937, 941 (M.D. Tenn. 2000), 261–262 Campo v. Oxford Health Plans, Inc., No. 06-4332, 2007 WL 1827220 (D.N.J. June 26, 2007), 103 Cann v. Carpenters’ Pension Trust Fund for N. Cal., 989 F.2d 313 (9th Cir. 1993), 375, 377 Cannon v. Group Health Serv. of Okla., 77 F.3d 1270 (10th Cir. 1996), 398 Cannon v. Unum Life Ins. Co. of Am., 219 F.R.D. 211 (D. Me. 2004), 23, 46 Capital Cities/ABC, Inc. v. Ratcliff, 141 F.3d 1405 (10th Cir. 1998), 408 Capone v. Aetna Life Ins. Co., 592 F.3d 1189 (11th Cir. 2010), 444, 452 Capriccioso v. Henry Ford Health Sys., 2000 U.S. App. LEXIS 17535 (6th Cir. July 17, 2000), 273 Carabillo v. Ullico Inc., 198 F. App’x 1, 2006 WL 2522205 (D.C. Cir. Aug. 4, 2006), 518

1213

Caradonna v. Compaq Computer Corp., 2000 WL 1507454 (D.N.H. 2000), 43 Carbonell v. Northwestern Mut. Life Ins. Co., 905 F. Supp. 308 (E.D.N.C. 1995), 148 Carden v. Aetna Life Ins. Co., 559 F.3d 256 (4th Cir. 2009), 161, 164 Cardoza v. United of Omaha Life Ins. Co., 708 F.3d 1196 (10th Cir. 2013), 406, 407, 410, 416, 422 Carducci v. Aetna U.S. Healthcare, 247 F. Supp. 2d 596 (D.N.J. 2003), 107 Carey v. Int’l Bhd. of Elec. Workers Local 373 Pension Plan, 201 F.3d 44 (2d Cir. 1999), 90 Carlo v. Reed Rolled Thread Die Co., 49 F.3d 790 (1st Cir. 1995), 6, 7 Carlson v. Principal Fin. Group, 320 F.3d 301 (2d Cir. 2003), 82 Carolina Care Plan Inc. v. McKenzie, 467 F.3d 383 (4th Cir. 2006), 190 Carpenter v. Aetna Life Ins. Co., 638 F. Supp. 2d 325 (N.D.N.Y. July 31, 2009), 91 Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136 (1st Cir. 2000), 6, 7, 8

1214

Carpenters S. Ca. Admin. Corp. v. Russell, 726 F.2d 1410 (9th Cir. 1984), 369, 372 Carr v. Anheuser-Busch Cos., Inc., 495 F. App’x 757 (8th Cir. 2012), 322 Carrasquillo v. Pharmacia Corp., 466 F.3d 13 (1st Cir. 2006), 6, 7 Carroll Cnty. Gen. Hosp. v. Rosen, 174 F. Supp. 2d 384 (Md. 2001), 204 Carroll v. Los Alamos Nat’l Sec., LLC, 407 F. App’x 348 (10th Cir. 2011), 400 Carter v. Cent. States, SE & SW Areas Pension Plan, 656 F.2d 575 (10th Cir. 1981), 416 Carter v. Times-World Corp., 1997 U.S. Dist. LEXIS 10743 (W.D. Va. 1997), 195 Carter v. U.S. Life Ins. Co., No. 07-143, 2007 WL 709331 (D.N.J. Mar. 5, 2007), 107 Carver v. Westinghouse Hanford Co., 951 F.2d 1083 (9th Cir. 1991), 335 Casey v. First Unum Life Ins. Co., 2004 U.S. Dist. LEXIS 5304 (N.D.N.Y. 2004), 74 Casey v. Uddeholm Corp., 32 F.3d 1094 (7th Cir. 1994), 294, 295

1215

Cash v. Wal-Mart Group Health Plan, 107 F.3d 637 (8th Cir. 1997), 316, 320, 322 Casselman v. Am. Family Life Ins. Co. of Columbus, 143 F. App’x 507 (4th Cir. 2005), 146 Cassidy v. Akzo Nobel Salt, Inc., 308 F.3d 613 (6th Cir. 2002), 252 Cataldo v. United States Steel Corp., 676 F.3d 542 (6th Cir. 2012), 254, 267, 276 Cathey v. Dow Chem. Co. Med. Care Program, 907 F.2d 554 (5th Cir. 1990), 214 Catledge v. Aetna Life Ins. Co., 594 F. Supp. 2d 610 (D.S.C. 2009), 161, 170 Cavanaugh v. Providence Health Plan, 699 F. Supp. 2d 1209 (D. Or. 2010), 342 Cavegn v. Twin City Pipe Trades Pension Plan, 223 F.3d 827 (8th Cir. 2000), 331 Cecchanecchio v. Cont’l Cas. Co., 50 F. App’x 66 (3d Cir. 2002), 114 Cecchanecchio v. Cont’l Cas. Co., No. 00-4925, 2001 WL 43783 (E.D. Pa. Jan. 19, 2001), 100 Central Laborers’ Pension Fund v. Heinz, 541 U.S. 739 (2004), 525

1216

Central States, S.E. & S.W. Areas Pension Fund v. SCOFBP, LLC, 668 F.3d 873 (7th Cir. 2011), 281 Central States, S.E. and S.W. Areas Pension Fund v. Waste Mgmt. of Mich., Inc., 674 F.3d 630 (7th Cir. 2012), 293 Cerasoli v. Xomed, Inc., 47 F. Supp. 2d 401 (W.D.N.Y. 1999), 80 Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494 (3d Cir. 2006), 140 CGI Technologies and Solutions Inc. v. Rose, 683 F.3d 1113 (9th Cir. 2012), 390, 484 Chaaban v. Criscito, No. 08-1567, 2013 WL 1737689 (D.N.J. Apr. 3, 2013), 137 Chacko v. Saber, Inc., 473 F.3d 604 (5th Cir. 2006), 221 Chaffin v. NiSource, Inc., 703 F. Supp. 2d 579 (S.D. W. Va. 2010), 172, 173 Chailland v. Brown & Root Inc., 45 F.3d 947 (5th Cir. 1995), 213 Chambers v. Family Health Plan Corp., 100 F.3d 818 (10th Cir. 1996), 404, 411 Chambers v. Kaleidoscope, Inc. Profit Sharing Plan & Trust, 650 F. Supp. 359 (N.D. Ga. 1986), 451, 471

1217

Chambers v. Mt. Contractors Ass’n Health Care Trust, 797 F. Supp. 2d 1050 (D. Mont. 2009), 384 Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869 (2d Cir. 1987), 83, 84, 85 Champion v. Black & Decker (U.S.) Inc., 550 F.3d 353 (4th Cir. 2008), 161, 162, 168, 169, 172 Chao v. Community Trust Co., No. 07-1432, 2008 WL 4792419 (E.D. Pa. Oct. 31, 2008), 102 Chao v. Day, 436 F.3d 234 (D.C. Cir. 2006), 516, 519 Chao v. Malkani, 452 F.3d 290 (4th Cir. 2006), 188 Chao v. Trust Fund Advisors, Civil Action No. 02-559(GK), 2004 WL 444029 (D.D.C. Jan. 20, 2004), 520, 525 Chapman v. Choicecare Long Island Long Term Disability Income Plan, 2005 U.S. App. LEXIS 29193 (2d Cir. 2005), 84, 85 Chapman v. Choicecare Long Island Long Term Disability Plan, 288 F.3d 506 (2d Cir. 2002), 64, 72 Chapman v. Health Works Med. Grp. of W. Va., Inc., 170 F. Supp. 2d 635 (N.D.W. Va. 2001), 151 Chapman v. Klemick, 3 F.3d 1508 (11th Cir. 1993), 466, 468

1218

Charles H. Ponstein HMO La., Inc., In re, 2009 U.S. Dist. LEXIS 39754 (E.D. La. 2009), 231 Charles v. First Unum Life Ins. Co., 2004 U.S. Dist. LEXIS 9307 (W.D.N.Y. 2004), 75 Charlton Mem’l Hosp. v. Foxboro Co., 818 F. Supp. 456 (D. Mass. 1993), 31 Charter Canyon Treatment Center v. Pool Co., 153 F.3d 1132 (10th Cir. 1998), 404 Charters v. John Hancock Life Ins. Co., 583 F. Supp. 2d 189 (D. Mass. 2008), 36 Chase v. Prudential Ins. Co. of Am., 43 Empl. Benefits Cas. (BNA) 2873 (E.D.N.Y. Mar. 13, 2008), 58 Chastain v. AT&T, 558 F.3d 1177 (10th Cir. 2009), 418 Chatterton v. CUNA Mut. Ins. Soc’ty, No. 3:07-0167, 2007 U.S. Dist. LEXIS 86567 (S.D. W. Va. Nov. 26, 2007), 145 Cheal v. Life Ins. Co. of Am., 330 F. Supp. 2d 1347 (N.D. Ga. 2004), 487 Chemung Canal Trust Co. v. Sovran Bank/Maryland, 939 F.2d 12 (2d Cir. 1991), 188, 473 Cherepinsky v. Sears Roebuck & Co., 455 F. Supp. 2d 470 (D.S.C. 2006), 180

1219

Cherochak v. Unum Life Ins. Co. of Am., 586 F. Supp. 2d 522 (D.S.C. 2008), 195, 196, 197 Cherry v. Auburn Gear, Inc., 441 F.3d 476 (7th Cir. 2006), 292 Cherry v. Bio-Medical Applications of Pa., 397 F. Supp. 2d 609 (E.D. Pa. 2005), 109, 115 Chicago Truck Drivers v. Local 710, 2005 WL 525427 (N.D. Ill. 2005), 281 Chiera v. John Hancock Mut. Life Ins. Co., 3 Fed. App’x 384 (6th Cir. 2001), 261 Childers v. Medstar Health, 289 F. Supp. 2d 714 (D. Md. 2003), 191 Children’s Hosp. Med. Ctr. of Akron v. Grace Mgmt. Servs. Employment Benefit Plan, 2006 U.S. Dist. LEXIS 62567 (N.D. Ohio Sept. 1, 2006), 274 Chiles v. Ceridian Corp., 95 F.3d 1505 (10th Cir. 1996), 408, 409, 410 Chilton v. Savannah Foods & Ind., Inc., 814 F.2d 620 (11th Cir. 1987), 457 Chorosevic v. MetLife Choices, 600 F.3d 934 (8th Cir. 2010), 314, 315

1220

Chorosevic v. MetLife Choices, No. 4:05-CV-2394 (CAS), 2008 U.S. Dist. LEXIS 98318 (E.D. Mo. Dec. 4, 2008), 323 Chorosevic v. MetLife Choices, No. 4:05-CV-2394 (CAS), 2009 WL 723357 (E.D. Mo. Mar. 17, 2009), 315 Christensen v. Northrop Grumman Corp., 1997 U.S. App. LEXIS 28565 (4th Cir. 1997), 196 Christianson v. Poly-Am., Inc. Med. Benefit Plan, 412 F.3d 935 (8th Cir. 2005), 330, 334 Chronister v. Baptist Health, 442 F.3d 648 (8th Cir. 2006), 324 Chronister v. Unum Ins. Co. of Am., 563 F.3d 773 (8th Cir. 2009), 317, 322 Chuck v. Hewlett Packard Co., 455 F.3d 1026 (9th Cir. 2006), 382, 385, 386, 387 Ciaramitaro v. Unum Life Ins. Co. of Am., No. 12-1859, 2013 U.S. App. LEXIS 6968 (6th Cir. Apr. 4, 2013), 261, 270, 271 Cicio v. Does, 321 F.3d 83 (2d Cir. 2003), 59, 60, 61, 62 Cicio v. Does, 385 F.3d 156 (2d Cir. 2004) (Cicio II), 60 Cicio v. Does, 2004 U.S. LEXIS 4579 (U.S. 2004), 59

1221

CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011), 14, 32, 33, 43, 79, 80, 109, 110, 127–128, 130, 132, 181, 182, 218, 220, 226, 264, 265, 299, 326, 327, 366–367, 418, 419, 461, 462, 502, 518, 519 Cintron-Serrano v. Bristol-Myers Squibb, P.R., Inc., 497 F. Supp. 2d 272 (D.P.R. 2007), 30 Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349 (5th Cir. 2009), 216 Citizens Ins. Co. of Am. v. MidMichigan Health ConnectCare Network Plan, 449 F.3d 688 (6th Cir. 2006), 252 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), 17 City of Hope Nat’l Med. Ctr. v. AFL Hotel & Rest. Workers’ Health & Welfare Plan, 446 F. App’x 53 (9th Cir. 2011), 339 Clair v. Harris Trust & Savings Bank, 190 F.3d 495 (7th Cir. 1999), 300 Clapp v. Citibank, N.A., 262 F.2d 820 (8th Cir. 2001), 316, 317, 319 Clark v. Ameritas Inv. Corp., 408 F. Supp. 2d 819 (D. Neb. 2005), 329 Clark v. Feder Semo & Bard, P.C., 527 F. Supp. 2d 112 (D.D.C. 2007), 498, 518

1222

Clark v. Feder Semo & Bard, P.C., 634 F. Supp. 2d 99 (D.D.C. 2009), 521 Clark v. Feder Semo & Bard, P.C., 697 F. Supp. 2d 24 (D.D.C. 2010), 504 Clark v. Feder Semo & Bard, P.C., 736 F. Supp. 2d 222 (D.D.C. 2010), 504, 518 Clark v. Feder, Semo & Bard, P.C., 808 F. Supp. 2d 219 (D.D.C. 2011), 519 Clark v. Feder, Semo & Bard, P.C., 895 F. Supp. 2d 7, 519 Clark v. Hartford Life & Accident Ins. Co., No. 06-0945, 2006 WL 3359651 (E.D. Pa. Nov. 17, 2006), 105, 106 Clark v. Metro. Life Ins. Co., 369 F. Supp. 2d 770 (E.D. Va. 2005), 194 Clark v. Metro Life Ins. Co., 384 F. Supp. 2d 894 (E.D. Va. 2005), 192 Clark v. Prudential Ins. Co. of Am., 2010 U.S. Dist. LEXIS 103977 (W.D. Okla. Sept. 29, 2010), 414 Clark v. Unum Life Ins. Co. of Am., 799 F. Supp. 2d 527 (D. Md. 2011), 169, 170 Clarke v. Unum Life Ins. Co., 14 F. Supp. 2d 1351 (S.D. Ga. 1998), 476

1223

Claxton v. Conn. Gen. Life Ins. Co., 700 F. Supp. 2d 1322 (S.D. Ga. 2010), 442 Cleghorn v. Blue Shield of Ca., 408 F.3d 1222 (9th Cir. 2005), 343, 344, 345, 347 Cler v. Ill. Educ. Ass’n, 423 F.3d 726 (7th Cir. 2005), 279 Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), 493 Coast Plaza Doctors Hosp. v. Ark. Blue Cross and Blue Shield, 2011 WL 3756052 (C.D. Cal. 2011), 347 Coast Plaza Doctors Hosp. v. Blue Cross of Ca., 173 Cal. App. 4th 1179 (2009), 342 Cockey v. Life Ins. Co. of N. Am., 804 F. Supp. 1571 (S.D. Ga. 1992), 433–434 Coffman v. Metro. Life Ins. Co., 204 F.R.D. 296 (S.D. W. Va. 2001), 170 Cohen v. Baker, 845 F. Supp. 289 (E.D. Pa. 1994), 133 Cohen v. Prudential Ins. Co., No. 08-5319, 2009 WL 2488911 (E.D. Pa. Aug. 12, 2009), 131 Cohen v. Standard Ins. Co., 155 F. Supp. 2d 346 (E.D. Pa. 2001), 114 Cole v. Aetna Life Ins. Co., 2012 WL 252731 (D.S.C. 2012), 171

1224

Cole v. Central States Se. & Sw., 101 Fed. App’x 840, 2004 WL 1335920 (1st Cir. 2004), 45 Coleman v. Nationwide Life Ins. Co., 969 F.2d 54 (4th Cir. 1992), 149, 181, 182, 187 Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d 18 (D.D.C. 2000), 499 Coleman v. Provident Life & Accid. Ins. Co., 2011 U.S. Dist. LEXIS 54426 (D. Md. May 20, 2011), 179 Coles v. LaSalle Partners Inc. Disability Plan, 287 F. Supp. 2d 896 (N.D. Ill. 2003), 297 Colleton Regional Hospital v. MRS Medical Review Systems, Inc., 866 F. Supp. 891 (D.S.C. 1994), 189 Collins v. Cont’l Cas. Co., 87 F. App’x 605 (8th Cir. 2004), 324 Collinsworth v. AIG Life Ins. Co., 267 F. App’x 346 (5th Cir. 2008), 228 Colonial Life & Acc. Ins. Co. v. Medley, 572 F.3d 22 (1st. Cir. 2009), 41 Colonias v. Hoffman-La Roche, Inc., No. 11-5275, 2012 WL 1067742 (D.N.J. Mar. 29, 2012), 122 Commc’ns Workers of Am. v. AT&T, 40 F.3d 426 (D.C. Cir. 1994), 401, 498, 499, 500, 504, 516

1225

Concha v. London, 62 F.3d 1493 (9th Cir. 1995), 366, 369 Confer v. Custom Eng’g Co., 952 F.2d 34 (3d Cir. 1991), 115, 129 Conkright v. Frommert, 559 U.S. 506 (2010), 90, 114, 354 Connecticut State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337 (11th Cir. 2009), 436, 439 Connell v. Trs. of the Pension Fund of the Union Workers Dist. Council of N. N.J., 118 F.3d 154 (3d Cir. 1997), 139 Connors v. Conn. Gen. Life Ins. Co., 272 F.3d 127 (2d Cir. 2001), 74 Connors v. Conn. Gen. Life Ins. Co., 2000 U.S. Dist. LEXIS 12962 (S.D.N.Y. Sept. 8, 2000), 76 Connors v. Hallmark & Son Coal Co., 935 F.2d 336 (D.C. Cir. 1991), 527, 528 Conover v. Aetna US Healthcare, Inc., 167 F. Supp. 2d 1317 (N. D. Okla. 2001), 416, 428 Conover v. Aetna US Healthcare, Inc., 320 F.3d 1076 (10th Cir. 2003), 399 Conrad v. The Wachovia Grp. Long Term Disability Plan, 462 F. App’x 192 (3d Cir. 2012), 125

1226

Consol. Beef Ind., Inc. v. N.Y. Life Ins. Co., 949 F.2d 960 (8th Cir. 1991), 328 Constellation Energy Group, In re, 738 F. Supp. 2d 602 (D. Md. 2010), 184 Contrast Hackett v. Standard Ins. Co., 559 F.3d 825 (8th Cir. 2009), 317 Conway v. Paul Revere Life Ins. Co., 2002 U.S. Dist. LEXIS 23656 (W.D.N.C. 2002), 199 Cook v. Campbell, 2008 WL 2039501 (M.D. Ala. 2008), 472 Cook v. Liberty Life Assur. Co., 320 F.3d 11 (1st Cir. 2003), 29 Cook v. Liberty Life Assur. Co. of Bos., 334 F.3d 122 (1st Cir. 2003), 38 Cook v. N.Y. Times Co. Long Term Disability Plan, 2004 WL 203111 (S.D.N.Y. 2004), 89, 90 Cooke v. Lynn Sand & Stone Co., 70 F.3d 201 (1st Cir. 1995), 13, 47 Coomer v. Bethesda Hosp., Inc., 370 F.3d 499 (6th Cir. 2004), 247 Coop. Benefit Adm’rs, Inc. v. Ogden, 367 F.3d 323 (5th Cir. 2004), 214, 234

1227

Cooper v. Kossan, 993 F. Supp. 375 (E.D. Va. 1998), 188 Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157 (6th Cir. 2007), 260 Cooperative Benefit Administrators v. Ogden, 367 F.3d 323 (5th Cir. 2004), 231 Copus v. Life Ins. Co. of N. Am., 2008 U.S. Dist. LEXIS 55099 (N.D. Tex. 2008), 222 Corcoran v. United Health Care, Inc., 965 F.2d 1321 (5th Cir. 1992), 211 Corp. Health Ins. Inc. v. Tex. Dep’t of Ins., 215 F.3d 526 (5th Cir. 2000), 209 Corry v. Liberty Life Assur. Co. of Bos., 499 F.3d 389 (5th Cir. 2007), 215 Costantino v. TRW, Inc., 13 F.3d 969 (6th Cir. 1994), 247 Costantino v. Wash. Post Multi-Option Benefits Plan, 404 F. Supp. 2d 31 (D.D.C. 2005), 506 Cotter v. E. Conf. of Teamsters Ret. Plan, 898 F.2d 424 (4th Cir. 1990), 196, 197 Cotter v. Prudential Financial, 238 F.R.D. 567 (N.D. W. Va. 2006), 167 Cottillion v. United Refining Co., 279 F.R.D. 290 (W.D. Pa. 2011), 142

1228

Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267 (11th Cir. Ga. 2005), 439, 465 Cottrill v. Sparrow, Johnson & Ursillo, Inc., 74 F.3d 20 (1st Cir. 1996), 34 Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220 (1st Cir. 1996), 37, 38 Council EM-3 v. AT&T Corp., 159 F.3d 1376 (D.C. Cir. 1998), 520 Counts v. Am. Gen. Life & Accid. Ins. Co., 111 F.3d 105 (11th Cir. 1997), 401, 441, 442, 480, 514 Cowart v. Metro. Life Ins. Co., 444 F. Supp. 2d 1282 (M.D. Ga. 2006), 433, 434, 456 Cox v. Graphic Commc’ns Conf. of the Int’l Bhd. of Teamsters, 603 F. Supp. 2d 23 (D.D.C. 2009), 499, 500, 527 Cox v. Keystone Carbon Co., 861 F.2d 390 (3d Cir. 1988), 105 Cox v. Keystone Carbon Co., 894 F.2d 647 (3d Cir. 1990), 105, 126 Cox v. Standard Ins. Co., 585 F.3d 295 (6th Cir. 2009), 250 Coyne & Delany Co. v. Blue Cross & Blue Shield of Va., Inc., 102 F.3d 712 (4th Cir. 1996), 186, 187

1229

Coyne & Delany Co. v. Selman, 98 F.3d 1457 (4th Cir. 1996), 150, 154, 182, 186, 242, 340 Cozzie v. Metro. Life Ins. Co., 140 F.3d 1104 (7th Cir. 1998), 286 Craft v. Northbrook Life Ins. Co., 813 F. Supp. 464 (S.D. Miss. 1993), 230 Craighill v. Cont’l Cas. Co., 2003 U.S. Dist. LEXIS 19222 (D.D.C. 2003), 503, 508, 510 Craine v. Hartford Life & Accid. Ins. Co., 2011 U.S. Dist. LEXIS 32547 (M.D.N.C. Mar. 25, 2011), 194 Craine v. Hartford Life & Accid. Ins. Co., 2011 WL 1130591 (M.D.N.C. 2011), 172 Crawford v. La Boucherie Bernard Ltd., 815 F.2d 117 (D.C. Cir. 1987), 518 Credit Managers Ass’n v. Kennesaw Life & Acc. Ins., 809 F.2d 617 (9th Cir. 1987), 337 Creel v. Wachovia Corp., 2009 WL 179584 (11th Cir. Jan. 27, 2009), 452 Crespo v. Unum Life Ins. Co. of Am., 294 F. Supp. 2d 980 (N.D. Ill. 2003), 297, 298 Cress v. Ga.-Pac., LLC, 2008 WL 3895796 (W.D. Va. 2008), 170

1230

Critchlow v. First Unum Life Ins. Co., 377 F. Supp. 2d 337 (W.D.N.Y. 2005), 86, 87 Critchlow v. First Unum Life Ins. Co., 378 F.3d 246 (2d Cir. 2004), 67 Critchlow v. First Unum Life Ins. Co. of Am., 198 F. Supp. 2d 318 (W.D.N.Y. 2002), 71 Critchlow v. First Unum Life Ins. Co. of Am., 340 F.3d 130 (2d Cir. 2003), 71 Crocco v. Xerox Corp., 137 F.3d 105 (2d Cir. 1998), 58, 72 Cromwell v. Equicor—Equitable HCA Corp., 944 F.2d 1272 (6th Cir. 1991), 242, 243 Cronin v. Zurich Am. Ins. Co., 189 F. Supp. 2d 29 (S.D.N.Y. 2002), 57 Crooms v. Provident Life & Acc. Ins. Co., 484 F. Supp. 2d 1286 (N.D. Ga. 2007), 434 Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258 (5th Cir. 2011), 222, 223, 224 Cross v. Bragg, 329 F. App’x 443 (4th Cir. 2009), 196, 197 Cross v. Qwest Disability Plan, 2010 U.S. Dist. LEXIS 139158 (D. Colo. Dec. 30, 2010), 423

1231

Crouch v. Siemens Short-Term Disability Plan, 662 F. Supp. 2d 553 (S.D. W. Va. 2009), 175 Crowell v. Shell Oil Co., 541 F.3d 295 (5th Cir. 2008), 213, 214, 216 Crull v. GEM Ins. Co., 58 F.3d 1386 (9th Cir. 1995), 337, 350 Crume v. Metro. Life Ins. Co., 417 F. Supp. 2d 1258 (M.D. Fla. 2006), 446 Crummett v. Metro. Life Ins. Co., 2007 U.S. Dist. LEXIS 50956 (D.D.C. July 16, 2007), 510 Crummett v. Metro. Life Ins. Co., 2007 WL 2071704 (D.D.C. July 16, 2007), 498 Cruthis v. Metro. Life Ins. Co., 356 F.3d 816 (7th Cir. 2004), 306 Cruz v. Bristol-Myers Squibb Co., 699 F.3d 563 (1st Cir. 2012), 10 Ctr. for Special Procedures v. Conn. Gen. Life Ins. Co., No. 09-6566, 2010 WL 5068164 (D.N.J. Dec. 6, 2010), 103 Culp, Inc. v. Cain, 414 F. Supp. 2d 1118 (M.D. Ala. 2006), 486 Cummings v. Washington Mutual, 650 F.3d 1386 (11th Cir. 2011), 481

1232

Cuoco v. Nynex, Inc., 722 F. Supp. 884 (D. Mass. 1989), 42 Curcio v. Hartford Fin. Servs. Group, 469 F. Supp. 2d 18 (D. Conn. 2007), 60 Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226 (3d Cir. 1994), 105, 114, 128, 129, 132 Curley v. Sedgwick Claims Management Services, Inc., 2013 WL 135525 (5th Cir. 2013), 223 Curran v. Kemper Nat’l Servs., Inc., 2005 WL 894840 (11th Cir. Mar. 16, 2005), 445, 446 Curry v. Contract Fabricators, Inc. Profit Sharing Plan, 891 F.2d 842 (11th Cir. 1990), 440, 475 Curtis v. Hartford Life & Acc. Ins. Co., 2012 U.S. Dist. LEXIS 5423 (N.D. Ill. Jan. 18, 2012), 290 Curtis v. Timberlake, 436 F.3d 709 (7th Cir. 2005), 284 Cusson v. Liberty Life Assur. Co. of Bos., 592 F.3d 215 (1st Cir. 2010), 18, 28 Custer v. Murphy Oil USA Inc., 503 F.3d 415 (5th Cir. 2007), 221 Custer v. Pan Am. Life Ins. Co., 12 F.3d 410 (4th Cir. 1993), 145, 146, 149, 182

1233

Custer v. Sweeney, 89 F.3d 1156 (4th Cir. 1996), 154, 182 Cuthie v. Fleet Reserve Ass’n, 743 F. Supp. 2d 486 (D. Md. 2010), 184, 202 Cypress Fairbanks Med. Ctr., Inc. v. Pan-Am. Life Ins. Co., 110 F.3d 280 (5th Cir. 1997), 212 Cyr v. Reliance Standard Life Ins. Co., 642 F.3d 1202 (9th Cir. 2011), 364

D & H Therapy Assoc., LLC v. Boston Mut. Life. Ins. Co., 650 F. Supp. 2d 143 (D.R.I. 2009), 46 D & H Therapy Associates, LLC v. Boston Mut. Life Ins. Co., 640 F.3d 27 (1st Cir. 2011), 21, 30–31 Dabertin v. HCR Manor Care, Inc., 373 F.3d 822 (7th Cir. 2004), 286, 291 Dade v. Sherwin-Williams Co., 128 F.3d 1135 (7th Cir. 1997), 300 Daft v. Advest, Inc., 658 F.3d 583 (6th Cir. 2011), 263, 264 Daill v. Sheet Metal Workers’ Local 73, 100 F.3d 62 (7th Cir. 1996), 304

1234

Daimler-Chrysler Corp. v. Cox, 447 F.3d 967 (6th Cir. 2006), 246 Dairy Fresh Corp. v. Poole, 108 F. Supp. 2d 1344 (S.D. Ala. 2000), 450 Dall v. Chinet Co., 33 F. Supp. 2d 26 (D. Me. 1998), 33, 44 Dallas Cnty. Hosp. Dist. v. Associates’ Health & Welfare Plan, 293 F.3d 282 (5th Cir. 2002), 218 Dam v. Life Ins. Co. of N. Am., 206 F. App’x 626 (8th Cir. 2006), 310 Dameron v. Sinai Hosp. of Balt., Inc., 815 F.2d 975 (4th Cir. 1987), 196 D’Amico v. CBS Corp., 297 F.3d 287 (3d Cir. 2002), 106 Danca v. Private Health Care Systems, Inc., 185 F.3d 1 (1st Cir. 1999), 8 Dandridge v. Raytheon Co., No. 08-4793, 2010 WL 376598 (D.N.J. 2010), 119, 121 Dang v. Unum Life Ins. Co. of Am., 175 F.3d 1186 (10th Cir. 1999), 399 Daniel v. Eaton Corp., 839 F.2d 263 (6th Cir. 1988), 261 Daniel v. UnumProvident Corp., 261 F. App’x 316 (2d Cir. 2008), 70

1235

Daniels v. Bursey, 313 F. Supp. 2d 790 (N.D. Ill. 2004), 301 Daniels v. Bursey, 329 F. Supp. 2d 975 (N.D. Ill. 2004), 301 Daniels v. Hartford Life & Acc. Ins. Co., 898 F. Supp. 909 (N.D. Ga. 1995), 457 Danz v. Life Ins. Co. of N. Am., 215 F. Supp. 2d 645 (D. Md. 2002), 179 DaPonte v. Manfredi Motors, Inc., 157 Fed. App’x 328, 2005 U.S. App. LEXIS 19948, 35 Empl. Benefits Cas. (BNA) 2589 (2d Cir. 2005), 60 Darcangelo v. Verizon Commc’ns, Inc., 292 F.3d 181 (4th Cir. 2002), 150, 187 Darrell v. Life Ins. Co. of N. Am., 597 F.3d 929 (8th Cir. 2010), 324 Davenport v. Harry N. Abrams, Inc., 249 F.3d 130 (2d Cir. 2001), 63 Davey v. Life Ins. Co. of N. Am., 2006 WL 1644690 (D.N.H. June 14, 2006), 46 David P. Coldesina, D.D.S., P.C., Emp. Profit Sharing Plan & Trust v. Estate of Simper, 407 F.3d 1126 (10th Cir. 2005), 397, 398, 401, 419, 420 David v. Alphin, 704 F.3d 327 (4th Cir. 2013), 185, 195

1236

Davidson v. Kemper Nat’l Servs., Inc., 231 F. Supp. 2d 446 (W.D. Va. 2002), 190 Davidson v. Prudential Ins. Co. of Am., 953 F.2d 1093 (8th Cir. 1992), 321 Davis v. Kentucky Fin. Cos. Ret. Plan, 887 F.2d 689 (6th Cir. 1989), 250 Davis v. Liberty Mut. Ins. Co., 871 F.2d 1134 (D.C. Cir. 1989), 494 Davis v. Unum Life Ins. Co., 444 F.3d 569 (7th Cir. 2006), 286, 288, 296 Davolt v. Exec. Comm. of O’Reilly Auto., 206 F.3d 806 (8th Cir. 2000), 333 Dawkins v. Owens Corning Hourly Employees’ Retirement Plan, 2007 WL 2903955 (D.S.C. 2007), 180 De Jesus Nazario v. Morris Rodriguez, 554 F.3d 196 (1st Cir. 2009), 39 De Lisle v. Sun Life Assur. Co. of Can., 558 F.3d 440 (6th Cir. 2009), 250 De Nobel v. Vitro Corp., 885 F.2d 1180 (4th Cir. 1989), 160, 161, 501 Deak v. Masters, Mates & Pilots Pension Plans, 821 F.2d 572 (11th Cir. 1987), 469

1237

Deal v. Prudential Ins. Co. of Am., 263 F. Supp. 2d 1138 (N.D. Ill. 2003), 298 Dean v. DaimlerChrysler Life, Disability & Health Care Benefits Program, 2010 WL 38953634 (D. Md. 2010), 169 Deboard v. Sunshine Mining & Ref. Co., 208 F.3d 1228 (10th Cir. 2000), 408, 423 DeFazio v. Hollister Inc., 854 F. Supp. 2d 770 (E.D. Cal. 2012), 371–372 DeFelice v. American Int’l Life Assur. Co. of New York, 112 F.3d 61 (2d Cir. 1997), 70, 76–77, 78 DeGrado v. Jefferson Pilot Fin. Ins. Co., 451 F.3d 1161 (10th Cir. 2006), 411, 417 Deibler v. United Food & Comm. Workers’ Local Union 23, 973 F.2d 206 (3d Cir. 1992), 97 Del Rio v. Toledo Edison Co., 130 Fed. App’x 746 (6th Cir. 2005), 268 Delaye v. Agripac, Inc., 39 F.3d 235 (9th Cir. 1994), 336 Delcastillo v. Odyssey Res. Mgmt., Inc., 431 F.3d 1124 (8th Cir. 2005), 331 Delgado v. Citigroup Inc., 2008 WL 548801 (S.D. Tex. 2008), 208

1238

Dellavalle v. Prudential Ins. Co. of Am., No. 05-0273, 2006 WL 83449 (E.D. Pa. Jan. 10, 2006), 108 Delso v. Tr. of Ret. Plan for Hourly Employees of Merck & Co., Inc., No. 04-3009, 2006 WL 3000199 (D.N.J. Oct. 20, 2006), 120, 121 Demars v. Cigna Corp., 173 F.3d 443 (1st Cir. 1999), 2, 42 Demirovic v. Building Service 32 B-J Pension Fund, 467 F.3d 208 (2d Cir. 2006), 88 Denmark v. Liberty Assur. Co., 2005 WL 3008684 (D. Mass. Nov. 10, 2005), 45 Denmark v. Liberty Life Assur. Co., 566 F.3d 1 (1st Cir. 2009) (Denmark II), 17, 18, 23, 24, 26, 27, 31 Denmark v. Liberty Life Assur. Co. of Bos., 481 F.3d 16 (1st Cir. 2007) (Denmark I), 17–18 Dennard v. Richards Group, 681 F.2d 306 (5th Cir. 1982), 228 Dennison v. MONY Life Retirement Income Sec. Plan, 710 F.3d 741 (7th Cir. 2013), 291, 293, 294 Denton v. First Nat’l Bank of Waco, 765 F.2d 1295 (5th Cir. 1985), 213, 214 Denver Health & Hosp. Auth. v. Beverage Distribs., 2012 U.S. Dist. LEXIS 155384 (D. Colo. Oct. 30, 2012), 422

1239

Denver v. Verizon Claims Review Comm., No. 09-902, 2010 U.S. LEXIS 78687 (D. Md. Aug. 2, 2010), 162 Denzler v. Questech, Inc., 80 F.3d 97 (4th Cir. 1996), 191, 192 DePace v. Matsushita Elec. Corp., 257 F. Supp. 2d 543 (E.D.N.Y. 2003), 64 Desilva v. N. Shore-Long Island Jewish Health Sys., 2011 U.S. Dist. LEXIS 27138 (E.D.N.Y. Mar. 16, 2011), 64 Desrosiers v. Hartford Life & Acc. Ins. Co., 354 F. Supp. 2d 119 (D.R.I. 2005), 42 Desrosiers v. Hartford Life & Acc. Ins. Co., 515 F.3d 87 (1st Cir. 2008), 29 Devine v. Am. Benefits Corp., 27 F. Supp. 2d 669 (S.D. W. Va. 1998), 191 Devito v. Aetna, Inc., 536 F. Supp. 2d 523 (D.N.J. 2008), 107 DeVito v. Pension Plan of Local 819, 975 F. Supp. 258 (S.D.N.Y. 1997), 91 Devlin v. Empire Blue Cross & Blue Shield, 274 F.3d 76 (2d Cir. 2001), 78, 82 Devlin v. Transp. Comm’ns Int’l Union, 175 F.3d 121 (2d Cir. 1999), 56

1240

Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, 36 F.3d 1195 (10th Cir. 2012), 398 Dewitt v. State Farm Ins. Cos. Ret. Plan, 905 F.2d 798 (4th Cir. 1990), 199 Diak v. Dwyer, Costello & Knox, 33 F.3d 809 (7th Cir. 1994), 280 Dial v. NFL Player Supp. Disability Plan, 174 F.3d 606 (5th Cir. 1999), 215 Diaz v. Prudential Ins. Co. of Am., 422 F.3d 630 (7th Cir. 2005), 285 Diaz v. Prudential Ins. Co., of Am., 499 F.3d 640 (7th Cir. 2007), 295, 296, 297 Diaz v. Seafarers Int’l Union, 13 F.3d 454 (1st Cir. 1994), 13, 32 Diaz v. United Agric. Emp. Welfare Benefit Plan, 50 F.3d 1478 (9th Cir. 1995), 351–352 Dickens v. Aetna Life Ins. Co., 677 F.3d 228 (4th Cir. 2012), 178 Dickens v. Aetna Life Ins. Co., 2011 U.S. Dist. LEXIS 32595 (S.D. W. Va. 2011), 190 Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270 (2d Cir. 1992), 92

1241

Difatta v. Baxter Intl., Inc., 2013 U.S. Dist. LEXIS 6360 (N.D. Ill. Jan. 15, 2013), 290 DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442 (3d Cir. 2003), 105 DiFelice v. U.S. Airways, Inc., 436 F. Supp. 2d 756 (E.D. Va. 2006), 178, 185 DiFelice v. U.S. Airways, Inc., 497 F.3d 410 (4th Cir. 2007), 183, 184 DiGregorio v. PricewaterhouseCoopers, 1774566 (D. Mass. Aug. 9, 2004), 40

2004

WL

Dillard’s v. Liberty Life Assur. Co. of Bos., 456 F.3d 894 (8th Cir. 2006), 332 DiMaria v. First Unum Life Ins. Co., 2003 WL 21018819 (S.D.N.Y. May 6, 2003), 57 Dinote v. United of Omaha Life Ins. Co., 331 F. Supp. 2d 341 (E.D. Pa. 2004), 124 D’Iorio v. Winebow, Inc., 920 F. Supp. 2d 313 (E.D.N.Y. 2013), 68 D’Iorio v. Winebow, Inc., 2013 WL 416313 (January 18, 2013), 80 DiSanto v. Wells Fargo & Co., 2007 WL 2460732 (M.D. Fla. Aug. 24, 2007), 480

1242

Dishman v. Unum Life Ins. Co. of Am., 269 F.3d 974 (9th Cir. 2001), 340, 351, 352, 377, 390 Dixon v. Seafarers’ Welfare Plan, 878 F.2d 1411 (11th Cir. 1989), 473, 475, 476 Dobson v. Hartford Fin. Servs., 196 F. Supp. 2d 152, 165–74 (D. Conn. 2002), 78–79 Dobson v. Hartford Life & Accid. Ins. Co., 2006 WL 861021 (D. Conn. Mar. 31, 2006), 94 Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869 (7th Cir. 1997), 305 Doe v. Blue Cross Blue Shield of Md., Inc., 173 F. Supp. 2d 398 (D. Md. 2001), 202 Doe v. Grp. Hospitalization & Med. Servs., 3 F.3d 80 (4th Cir. 1993), 165 Doe v. Hartford Life & Accid. Ins. Co., No. 05-2512, 2008 WL 5400984 (D.N.J. Dec. 23, 2008), 114 Doe v. Hartford Life Ins. Co., No. 05-2512, 2008 WL 5400984 (D.N.J. Dec. 23, 2008), 111 Doe v. MAMSI Life & Health Ins. Co., 448 F. Supp. 2d 179 (D.D.C. 2006), 510, 513 Doe v. Provident Life & Acc. Ins. Co., 247 F.R.D. 218 (D.D.C. 2008), 530

1243

Doe v. Raytheon Co., 2002 WL 1608279 (D. Mass. July 19, 2002), 38 Doe v. Travelers Ins. Co., 167 F.3d 53 (1st Cir. 1999), 14, 15, 16, 22, 23, 26, 31, 45, 360 Doley v. Prudential Ins. Co. of Am., 2008 U.S. Dist. LEXIS 5054 (D.D.C. Jan. 8, 2008), 504 Dolfi v. Disability Reins. Mgmt. Servs., Inc., 584 F. Supp. 2d 709 (M.D. Pa. 2008), 124 Donaho v. FMC Corp., 74 F.3d 894 (8th Cir. 1996), 316, 320 Donatelli v. Home Ins. Co., 992 F.2d 763 (8th Cir. 1993), 317, 323, 514 Donnell v. Metro. Life Ins. Co., 165 F. App’x 288, 2006 WL 297314 (4th Cir. 2006), 167, 168 Donoho v. Blue Cross & Blue Shield of Kan., Inc., 2012 U.S. Dist. LEXIS 103718 (D. Kan. July 26, 2012), 421 Donovan v. Bierwirth, 680 F.2d 263 (2d Cir.), 267, 268 Donovan v. Carlough, 576 F. Supp. 245 (D.D.C. 1983), 506 Donovan v. Cunningham, 716 F.2d 1455 (5th Cir. 1983), 229

1244

Donovan v. Dillingham, 688 F.2d 1367 (11th Cir. 1982), 1, 55, 97, 205, 241, 279, 309, 335, 393, 394, 431, 432, 434, 435, 479 Donovan v. Eaton Corp., 462 F.3d 321 (4th Cir. 2006), 199 Donovan v. Mercer, 747 F.2d 304 (5th Cir. 1984), 225 Donovan v. Nellis, 528 F. Supp. 538 (N.D. Fla. 1981), 450 Donovan v. Robbins, 752 F.2d 1170 (7th Cir. 1985), 301 Doskey v. Unum Life Ins. Co. of Am., 2006 U.S. Dist. LEXIS 10319 (N.D. Ohio Feb. 17, 2006), 273 Dougherty v. Ind. Bell Tel. Co., 440 F.3d 910 (7th Cir. 2006), 288 Dove v. Prudential Ins. Co. of Am., 364 F. App’x 461 (10th Cir. 2010), 417 Dowdy v. Hartford Life & Acc. Ins. Co., 458 F. Supp. 2d 289 (N.D. Miss. 2006), 224 Doyle v. Liberty Life Assur. Co. of Bos., 542 F.3d 1352 (11th Cir. 2008), 446, 449, 454 Doyle v. Nationwide Ins. Co., 240 F. Supp. 2d 328 (E.D. Pa. 2003), 138

1245

Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181 (1st Cir. 1998), 14, 15, 16, 27 Dozier v. Sun Life Assur. of Can., 466 F.3d 532 (6th Cir. 2006), 248 Drinkwater v. Metro. Life Ins. Co., 846 F.2d 821 (1st Cir. 1988), 10, 11, 12 Drolet v. Healthsource, Inc., 968 F. Supp. 757 (D.N.H. 1997), 43 Duchek v. Blue Cross & Blue Shield of Neb., 153 F.3d 648 (8th Cir. 1998), 332 Dudley Supermarket, Inc. v. Transamerica Life Ins. and Annuity Co., 302 F.3d 1 (1st Cir. 2002), 42 Duffie v. Deere & Co., 111 F.3d 70 (8th Cir. 1997), 324 Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir. 1995), 104 Duncan v. Santaniello, 900 F. Supp. 547 (D. Mass. 1995), 35 Dunlap v. Ormet Corp., 2009 WL 763382 (N.D. W. Va. 2009), 187 Dunnigan v. Metro. Life Ins. Co., 214 F.R.D. 125 (S.D.N.Y. 2003), 94

1246

Dunnigan v. Metro. Life Ins. Co., 277 F.3d 223 (2d Cir. 2002), 78 Dupell v. Aetna Life Ins. Co., 2013 WL 271792 (N.D. W. Va. 2013), 175 DuPerry v. Life Ins. Co. of N. Am., 632 F.3d 860 (4th Cir. 2011), 176, 177, 200 Dupont v. Sklarsky, No. 08-1724, 2009 WL 776947 (D.N.J. Mar. 20, 2009), 139 Durakovic v. Building Service 32 BJ Pension Fund, 609 F.3d 133 (2d Cir. 2010), 66, 72 Durand v. Hanover Ins. Group, 560 F.3d 436 (6th Cir. 2009), 248 Durbin v. Columbia Energy Group Pension Plan, No. 12-3910, 2013 U.S. App. LEXIS 7891 (6th Cir. Apr. 17, 2013), 263 Durham v. Prud’l Life Ins. Co., 890 F. Supp. 2d 390 (S.D.N.Y. 2012), 69 Dutka v. AIG Life Ins. Co., 573 F.3d 210 (5th Cir. 2009), 215 Dwyer v. Metro. Life Ins. Co., 4 F. App’x 133, 2001 U.S. App. LEXIS 1541 (4th Cir. 2001), 199 Dwyer v. Metro. Life Ins. Co., 2001 WL 94749 (4th Cir. 2001), 181

1247

Dycus v. Pension Benefit Guar. Corp., 133 F.3d 1367 (10th Cir. 1998), 404 Dye v. Assoc. First Capital Corp. Long-term Disability Plan 504, 243 F. App’x 808 (5th Cir. 2007), 230 Dytrt v. Mountain State Tel. & Tel. Co., 921 F.2d 889 (9th Cir. 1990), 357

Eastover Mining Co. v. Williams, 338 F.3d 501 (6th Cir. 2003), 260 Eaton v. D’Amato, 581 F. Supp. 743 (D.D.C. 1980), 520, 521 Eaves v. Penn, 587 F.2d 453 (10th Cir. 1978), 418 Eckelkamp v. Beste, 315 F.3d 863 (8th Cir. 2002), 312 Ed Miniat, Inc. v. Globe Life Ins. Group, 805 F.2d 732 (7th Cir. 1986), 279, 281 Eddy v. Colonial Life Ins. Co., 59 F.3d 201 (D.C. Cir. 1995), 522 Eddy v. Colonial Life Ins. Co., 844 F. Supp. 790 (D.D.C. 1994), 522 Eddy v. Colonial Life Ins. Co. of Am., 919 F.2d 747 (D.C. Cir. 1990), 508, 520

1248

Edelen v. Osterman, 943 F. Supp. 75 (D.D.C. 1996), 497 Edes v. Verizon Commc’ns, Inc., 417 F.3d 133 (1st Cir. 2005), 3 Edmonds v. Hughes Aircraft Co., 1998 U.S. App. LEXIS 9419 (4th Cir. 1998), 199 Edwards v. Briggs & Stratton Retirement Plan, 639 F.3d 355 (7th Cir. 2011), 284 Edwards v. Life Ins. Co. of N. Am., 2009 WL 693139 (E.D. Tenn. Mar. 13, 2009), 275 Egelhoff v. Egelhoff, 532 U.S. 141 (2001), 103 Ehas v. Life Ins. Co. of North America, 2012 U.S. Dist. LEXIS 169151 (N.D. Ill. Nov. 29, 2012), 290 Ehmann v. Cont’l Cas. Co., 2009 WL 482286 (M.D. Fla. 2009), 481 ELCO Mech. Contractors, Inc. v. Builders Supply Ass’n of W. Va., 832 F. Supp. 1054 (S.D.W. Va. 1993), 146, 147 Eldridge v. Wachovia Corp. Long-Term Dis. Plan, 383 F. Supp. 2d 1367 (N.D. Ga. 2005), 482 Eldridge v. Wachovia Corp. Long-Term Dis. Plan, 2007 WL 117712 (11th Cir. Jan. 18, 2007), 452, 453

1249

Elec. Workers Pension Trust Fund of Local #58 v. Brennan Elec. Contractors, Inc., No. 08-cv-13057, 2010 U.S. Dist. LEXIS 29007 (E.D. Mich. Mar. 26, 2010), 238 Elliott v. Metro Life Ins. Co., 473 F.3d 613 (6th Cir. 2006), 254, 264 Elliott v. Sara Lee Corp., 190 F.3d 601 (4th Cir. 1999), 171, 173, 174, 175, 178, 180–181 Ellis v. Liberty Life Assur. Co., 394 F.3d 262 (5th Cir. 2004), 211, 218 Ellis v. Metro. Life Ins. Co., 126 F.3d 228 (4th Cir. 1997), 160–161, 162, 174, 193, 199 Ellis v. Metro. Life Ins. Co., 919 F. Supp. 936 (E.D. Va. 1996), 180 Ellison v. Shenango, Inc. Pension Bd., 956 F.2d 1268 (3d Cir. 1992), 135–136 Elmore v. Cone Mills Corp., 23 F.3d 855 (4th Cir. 1994), 151, 183 Elswick v. Life Ins. Co. of N. Am., 2007 WL 2745358 (S.D. W. Va. 2007), 173 Engelhardt v. Paul Revere Life Ins. Co., 139 F.3d 1346 (11th Cir. 1998), 239, 432, 439 Engers v. AT&T, 428 F. Supp. 2d 213 (D.N.J. 2006), 106, 107, 108

1250

Engers v. AT&T, Inc., No. 10-2752, 2011 WL 2507089 (3d Cir. June 22, 2011), 131 Engler v. Cendant Corp. & Int’l Bus. Machs. Corp., 2006 WL 1408583 (E.D.N.Y. 2003), 80, 81 Eppard v. Builders Transp. Inc., No. 92-02-C, 1993 U.S. Dist. LEXIS 1683 (W.D. Va. Feb. 4, 1993), 153 Epright v. Envtl. Res. Mgmt., 81 F.3d 335 (3d Cir. 1996), 115 Epstein v. Unum Life Ins. Co. of Am., 2004 WL 2418310 (C.D. Cal. 2004), 372 Erbe v. Billeter, No. 06-113, 2007 WL 2905890 (W.D. Pa. Sept. 28, 2007), 103, 129 Erbe v. Conn. Gen. Life Ins. Co., 695 F. Supp. 2d 232 (W.D. Pa. 2010), 114 Erreca v. W. States Life Ins. Co., 19 Cal. 2d 388 (1942), 344 Erschick v. United Mo. Bank of Kan. City, 948 F.2d 660 (10th Cir. 1991), 417, 420 Ervast v. Flexible Products Co., 346 F.3d 1007 (11th Cir. 2003), 439 Eslava v. Gulf Tele. Co., 2007 WL 1771416 (S.D. Ala. 2007), 473

1251

Estate of Blanco v. Prudential Ins. Co. of Am., 606 F.3d 399 (7th Cir. 2010), 295 Estate of Bratton v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 215 F.3d 516 (5th Cir. 2000), 222, 224, 226 Estate of Jajuga v. Prudential Ins. Co. of Am., 742 F. Supp. 2d 176 (D. Mass. 2010), 26 Estate of Schwing v. Lilly Health Plan, 562 F.3d 522 (3d Cir. 2009), 110–111, 112, 116 Estate of Shockley v. Alyeska Pipeline Serv. Co., 130 F.3d 403 (9th Cir. 1997), 373, 374 Estate of Weeks v. Advance Stores Co., 99 F. App’x 470, 2004 WL 1191792 (4th Cir. 2004), 182 Estrella v. Hartford Life & Acc. Ins. Co., 271 F.R.D. 8 (D. Mass. 2010), 24 Eubanks v. Prudential Ins. Co. of Am., 336 F. Supp. 2d 521 (M.D.N.C. 2004), 178 Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1224 (10th Cir. 2011), 419 Evans v. Akers, 534 F.3d 65 (1st Cir. 2008), 32, 43 Evans v. Bexley, 750 F.2d 1498 (11th Cir. 1985), 470, 471

1252

Evans v. Eaton Corp. Long-Term Disability Plan, 514 F.3d 315 (4th Cir. 2008), 174 Evans v. Emp. Benefit Plan, Camp Dressler & McKee, Inc., No. 07-3552, 2009 WL 418628 (3d Cir. Feb. 20, 2009), 110, 111, 124 Evans v. Employee Benefit Plan, Camp Dressler & McKee, Inc., 311 F. App’x 556 (3d Cir. 2009), 113 Evans v. Infirmary Health Servs., Inc., 634 F. Supp. 2d 1276 (S.D. Ala. 2009), 439 Evans v. Sterling Chemicals, Inc., 660 F.3d 862 (5th Cir. 2011), 221 Evans v. UnumProvident Corp., 434 F.3d 866 (6th Cir. 2006), 250 Everett v. USAir Group, Inc., 165 F.R.D. 1 (D.D.C. 1995), 512 Everson v. Liberty Mut. Assur. Co., 2009 WL 73140 (N.D. Ga. Jan. 2, 2009), 446 Exec. Benefit Plan Participants v. New Valley Corp., 89 F.3d 143 (3d Cir. 1996), 115 Exeter Hosp. v. New England Homes, Inc., 2011 WL 3862146 (D.N.H. Sept. 1, 2011), 11 Eye v. Metro. Life Ins. Co., 202 F. Supp. 2d 1204 (D. Kan. 2002), 414

1253

Ezratty v. Puerto Rico, 648 F.2d 770 (1st Cir. 1981), 11

Fabyanic v. Hartford Life & Acc. Ins. Co., No. 02:08-cv-0400, 2009 WL 775404 (E.D. Pa. Mar. 18, 2009), 117, 121 Fahringer v. Paul Revere Life Ins. Co., 317 F. Supp. 2d 504 (D.N.J. 2003), 109, 124 Fair v. Giant of Md., 2006 U.S. Dist. LEXIS 5758 (D. Md. 2006), 203 Fairbaugh v. Life Ins. Co. of North America, 872 F. Supp. 2d 174 (D. Conn. 2012), 87 Faircloth v. Lundy Packing Co., 91 F.3d 648 (4th Cir. 1996), 184, 188 Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410 (6th Cir. 1998), 247, 277 Fallo v. Piccadilly Cafeterias, Inc., 141 F.3d 580 (5th Cir. 1998), 218 Fama v. Design Assist. Corp., No. 12-2474, 2013 WL 1443463 (3d Cir. Apr. 10, 2013), 135 Fanase v. Liberty Life Assur. Co., 2011 U.S. Dist. LEXIS 48416 (N.D. W. Va. May 5, 2011), 179

1254

Fanney v. Trigon Ins. Co., 11 F. Supp. 2d 829 (E.D. Va. 1998), 204 Fanning v. Langenfelder Marine, Inc., 703 F. Supp. 2d 23 (D.D.C. 2010), 523 Farina v. Temple Univ. Health Sys. Long Term Disability Plan, No. 08-2473, 2009 WL 1172705 (E.D. Pa. Apr. 28, 2009), 116 Farley v. Ark. Blue Cross & Blue Shield, 147 F.3d 774 (8th Cir. 1998), 322 Farr v. Hartford Life & Accident Ins. Co., 322 F. App’x 622 (10th Cir. 2009), 402 Farr v. U.S. West Communications, Inc., 151 F.3d 908 (9th Cir. 1998), 366 Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076 (1st Cir. 1989), 20 Faulman v. Security Mut. Fin. Life Ins. Co., No. 04-5083, 2006 WL 2482926 (D.N.J. Aug. 28, 2006), 102 Fausek v. White, 965 F.2d 126 (6th Cir. 1992), 257 Favre v. Prudential Ins. Co. of Am., 2006 WL 449204 (N.D. Ind. 2006), 290 Fay v. Oxford Health Plan, 287 F.3d 96 (2d Cir. 2002), 67, 73

1255

Fedderwitz v. Metro. Life Ins. Co., 2007 WL 2846365 (S.D.N.Y. Sept. 27, 2007), 93 Feder v. Paul Revere Life Ins. Co., 228 F.3d 518 (4th Cir. 2000), 159, 160 Fehn v. Group Long Term Disability Plan for Emps. of J.P. Morgan Chase Bank, 2008 WL 2754069 (S.D.N.Y. June 30, 2008), 94 Feigenbaum v. Merrill Lynch & Co., 308 F. App’x 585 (3d Cir. 2009), 110 Feigenbaum v. Summit Health Admin., Inc., No. 01-cv-0805, 2008 WL 2386168 (D.N.J. June 9, 2008)., 105 Feinstein v. Saint Luke’s Hosp., No. 10-4050, 2012 WL 4364641 (E.D. Pa. Sept. 25, 2012), 136 Feldman’s Medical Center Pharmacy, Inc. v. CareFirst Inc., 823 F. Supp. 2d 307 (D. Md. 2011), 180 Feldman’s Medical Center Pharmacy, Inc. v. CareFirst Inc., 2012 WL 4514526 (D. Md. 2012), 190 Felix v. Lucent Techs., Inc., 387 F.3d 1146 (10th Cir. 2004), 398 Felton v. Unisource Corp., 940 F.2d 503 (9th Cir. 1991), 383

1256

Fenton v. John Hancock Mut. Life Ins. Co., 400 F.3d 83 (1st Cir. 2005), 13, 14 Ferrari v. Teachers Ins. & Ann. Ass’n, 278 F.3d 801 (8th Cir. 2002), 323, 333–334 Ferraro v. Unum Life Ins. Co. of Am., 765 F. Supp. 2d 53 (D. Me. 2011), 3, 4 Ferry v. Prudential Ins. Co. of Am., 2011 WL 322000 (D. Me. Jan. 30, 2011), 24 Fershtadt v. Verizon Comm’ns, Inc., 550 F. Supp. 2d 447 (S.D.N.Y. 2008), 77 Fershtadt v. Verizon Comm’ns Inc., 2010 U.S. Dist. LEXIS 13937 (S.D.N.Y. Feb. 9, 2010), 66 Fetterhoff v. Liberty Life Assur. Co., 282 F. App’x 740 (11th Cir. 2008), 481 Fick v. Metro. Life Ins. Co., 347 F. Supp. 2d 1271 (S.D. Fla. 2004), 484 Fields v. Thompson Printing Co., 363 F.3d 259 (3d Cir. 2004), 135 Filiatrault v. Comverse Tech., Inc., 275 F.3d 131 (1st Cir. 2001), 19 Fink v. Dakotacare, 324 F.3d 685 (8th Cir. 2003), 312

1257

Fink v. Nat’l Sav. & Trust Co., 772 F.2d 951 (D.C. Cir. 1985), 518, 520, 521 Fink v. Union Cent. Life Ins. Co., 94 F.3d 489 (8th Cir. 1996), 329 Finks v. Life Ins. Co. of N. Am., No. Civ. A. 08-1272 (ESH)(AK), 2009 WL 2230899 (D.D.C. July 24, 2009), 522 Finley v. Hewlett-Packard Co. Emp. Benefits Org. Income Prot. Plan, 379 F.3d 1168 (10th Cir. 2004), 407, 425 Finley v. Special Agents Mut. Benefit Ass’n, Inc., 957 F.2d 617 (8th Cir. 1992), 320 Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), 13, 17, 19, 109, 122, 133, 216, 249, 355, 397, 405, 444, 446, 501, 502, 503, 504, 506 Firmin v. Life Ins. Co. of N. Am., 684 F.3d 533 (5th Cir. 2012), 208, 218 First Nat’l Life Ins. Co. v. Sunshine-Jr. Food Stores, Inc., 960 F.2d 1546 (11th Cir. 1992), 464, 468, 475, 476 First State Bank & Trust Co. v. Sand Springs State Bank, 528 F.2d 350 (10th Cir. 1976), 403 First Unum Life Ins. Co. v. Alleyne, 2009 WL 235543 (E.D.N.Y. Jan. 30, 2009), 93

1258

First Unum Life Ins. Co. v. Wulah, 2007 WL 3342470 (S.D.N.Y. Oct. 8, 2007), 93 FirsTier Bank, N.A. v. Zeller, 16 F.3d 907 (8th Cir. 1994), 327–328, 330 Fischel v. Equitable Life Assur. Soc’y of the U.S., 307 F.3d 997 (9th Cir. 2002), 377, 378 Fisher v. Metro. Life Ins. Co., 895 F.2d 1073 (5th Cir. 1990), 208 Fitch v. Unum Life Ins. Co. of Am., 2012 WL 6610748 (N.D. Ala. Dec. 19, 2012), 462 Fitts v. Fed. Nat’l Mort. Ass’n, 77 F. Supp. 2d 9 (D.D.C. 1999) 505, 506 Fitts v. Fed. Nat’l Mort. Ass’n, 204 F.R.D. 1 (D.D.C. 2001), 511, 512, 514 Fitts v. Fed. Nat’l Mort. Ass’n, 236 F.3d 1 (D.C. Cir. 2001), 502, 503, 514, 516, 518 Fitts v. Unum Life Ins. Co., 520 F.3d 499 (D.C. Cir. 2008), 530 Fitts v. Unum Life Ins. Co. of Am., 2006 U.S. Dist. LEXIS 9235 (D.D.C. Feb. 23, 2006), 508, 509 Fla. Health Sciences Ctr., Inc. v. Total Plastics, Inc., 496 F. App’x 6 (11th Cir. 2012), 439, 441

1259

Flache v. Sun Life Assur. Co., 958 F.2d 730 (6th Cir. 1992), 272 Flanigan v. Gen. Elec. Co., 93 F. Supp. 2d 236 (D. Conn. 2000), 56 Fleming v. Kemper Nat’l Servs., Inc., 373 F. Supp. 2d 1000 (N.D. Cal. 2005), 375 Flinders v. Workforce Stabilization Plan of Phillips Petroleum Co., 491 F.3d 1180 (10th Cir. 2007), 403, 405 Flint v. ABB, Inc., 337 F.3d 1326 (11th Cir. 2003), 471, 486, 487 Florence Nightingale Nursing Servs., Inc. v. Blue Cross/ Blue Shield of Ala., 41 F.3d 1476 (11th Cir. 1995), 475 Flores v. Life Ins. Co. of N. Am., 770 F. Supp. 2d 768 (D. Md. 2011), 190, 192 Flores v. Life Ins. Co. of N. Am., No. L-10-0098, 2011 U.S. Dist. LEXIS 27547 (D. Md. 2011), 149 Flying Tiger Line v. Teamsters Pension Trust Fund, 830 F.2d 1241 (3d Cir. 1987), 102 Flynn v. Pulaski Constr. Co., Civil Action No. 02-02336, 2006 WL 47304 (D.D.C. Jan. 6, 2006), 528 Flynn v. R.C. Tile, 353 F.3d 953 (D.C. Cir. 2004), 517

1260

Flynn v. Thibodeaux Masonry, Inc., 2004 WL 722651 (D.D.C. 2004), 523 FMC Corp. v. Holliday, 498 U.S. 52 (1990), 152 FMC Medical Plan v. Owens, 122 F.3d 1258 (9th Cir. 1997), 366, 389 Fogerty v. Hartford Life & Acc. Ins. Co., No. Civ. 02-655, 2003 WL 22076589 (D. Minn. Sept. 3, 2003), 315, 325 Foltice v. Guardsman Prods., Inc., 98 F.3d 933 (6th Cir. 1996), 271 Foltz v. U.S. News & World Report, Inc., 663 F. Supp. 1494 (D.D.C. 1987), 506, 527 Foltz v. U.S. News & World Report, Inc., 865 F.2d 364 (D.C. Cir. 1989), 517 Fontana v. Div. Grp. Adm’r, Inc., 67 F. App’x 722 (3d Cir. 2003), 139 Forbes v. Lathers, Plasterers & Cabinet Makers Ins. Trust, No. Civ. 050506 (PAM/RLE), 2006 WL 1072030 (D. Minn. Apr. 21, 2006), 310 Ford v. Hartford Life & Acc. Ins. Co., No. 3:08CV281, 2009 U.S Dist. LEXIS 29711 (W.D.N.C. Apr. 8, 2009), 159, 179

1261

Fornell v. Morgan Keegan & Co., Inc., 2013 U.S. Dist LEXIS 24874 (M.D. Fla. 2013), 474 Forrester v. Metro. Life. Ins. Co., 232 F. App’x 758 (10th Cir. 2007), 402 Forrester v. Metro. Life Ins. Co., 2005 U.S. Dist. LEXIS 32984 (D. Kan. Dec. 8, 2005), 424 Forsyth v. Humana, Inc., 114 F.3d 1467 (9th Cir. 1997), 368 Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987), 328, 435, 491, 493 Fortier v. Principal Life Ins. Co., 2008 WL 2323918 (E.D.N.C. 2008), 170 Fortin v. Hartford Life & Acc. Ins. Co., 2011 U.S. Dist. Lexis 137118 (D. Me. Nov. 29, 2011), 24 Fortune v. Long Term Group Disability Plan for Employees of Keyspan Corp., 637 F. Supp. 2d 132 (E.D.N.Y. 2009), 73, 95 Fossen v. Blue Cross and Blue Shield of Mt., Inc., 660 F.3d 1102 (9th Cir. 2011), 339, 340, 342, 346 Foster v. PPG Indus., Inc., 693 F.3d 1226 (10th Cir. 2012), 406, 419 Fotta v. Trs. of United Mine Workers of Am., 319 F.3d 612 (3d Cir.), 132

1262

Fought v. Unum Life Ins. Co., 379 F.3d 997 (10th Cir. 2004), 357, 414, 415, 428, 429 Four-Cnty. Cmty. Servs. v. FIA Adm’rs, Inc., 2003 U.S. Dist. LEXIS 23462 (M.D.N.C. 2003), 203–204 Fowler v. Aetna Life Ins. Co., 2008 WL 4911172 (N.D. Cal. 2008), 391 Fowler v. Williams Cos., 2005 U.S. Dist. LEXIS 5025 (W.D. Wis. 2005), 293 Francis v. Rodman Local 201 Pension Fund, 367 F.3d 937 (D.C. Cir. 2004), 516 Francis v. United Parcel Serv., 288 F. Supp. 2d 882 (S.D. Ohio 2003), 275 Frankenmuth Mut. Ins. Co. v. Wal-Mart Assocs.’ Health & Welfare Plan, 182 F. Supp. 2d 612 (E.D. Mich. 2002), 263 Franklin v. Hartford Life Ins. Co., 2008 WL 5110836 (M.D. Fla. Nov. 25, 2008), 446 Franks v. Aetna Life Ins. Co., 2012 U.S. Dist. LEXIS 155519 (N.D. Cal. Oct. 30, 2012), 391 Franz v. Iolab, Inc., 801 F. Supp. 1537 (E.D. La. 1992), 230 Free v. Briody, 732 F.2d 1331 (7th Cir. 1984), 301

1263

Freeman v. Cont’l Ins. Co., 996 F.2d 1116 (11th Cir. 1993), 473, 474, 475, 476 Frey v. Herr Foods Inc. Employee Welfare Plan, No. 11-1416, 2012 WL 6209896 (E.D. Pa. Dec. 13, 2012), 110 Friedrich v. Intel Corp., 181 F.3d 1105 (9th Cir. 1999), 362, 512 Fritcher v. Health Care Serv. Corp., 301 F.3d 811 (7th Cir. 2002), 302, 306 Frommert v. Conkright, 433 F.3d 254 (2d Cir. 2006), 79 Fry v. Hartford Ins. Co., 2011 WL 1672474 (W.D.N.Y May 3, 2011), 91 Fry v. Regence Blueshield, 2008 WL 4223613 (W.D. Wash. 2008), 349 Frye v. Metro. Life Ins. Co., 2010 U.S. Dist. LEXIS 134565 (S.D. W.Va. Dec. 20, 2010), 196 Frye v. Thompson Steel Co., Inc., 657 F.3d 488 (7th Cir. 2011), 290 Fugarino v. Hartford Life & Acc. Ins. Co., 969 F.2d 178 (6th Cir. 1992), 238, 239, 240 Fulghum v. Embarq Corp., 2013 U.S. Dist. LEXIS 20930 (D. Kan. Feb. 14, 2013), 420

1264

Fulk v. Hartford Life Ins. Co., 839 F. Supp. 1183 (M.D.N.C. 1993), 156 Fuller v. AFLCIO, 328 F.3d 672 (D.C. Cir. 2003), 517 Fuller v. American Fed. of Labor, 328 F.3d 372 (D.C. Cir. 2003), 518 Fuller v. Norton, 86 F.3d 1016 (10th Cir. 1996), 395 Fuller v. Suntrust Banks, Inc., 2012 WL 1432306 (N.D. Ga. Mar. 20, 2012), 442 Fultz v. Liberty Life Assur. Co., No. 05-1542, 2008 WL 1773941 (W.D. Pa. Apr. 16, 2008), 138 Funk v. CIGNA Group Ins., 648 F.3d 182 (3d Cir. 2011), 110 Funkhouser v. Pilgrim’s Pride Corp. Group Benefits Plan, 2008 U.S. Dist. LEXIS 18149 (W.D. Va. 2008), 194

Gaeth v. Hartford Life Ins. Co., 538 F.3d 524 (6th Cir. 2008), 271 Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230 (4th Cir. 2008), 151, 159, 162, 192, 193 Gaines v. Guardian Life Ins. Co. of Am., 2010 WL 1759579 (D. Md. 2010), 172

1265

Gaither v. Aetna Life Ins. Co., 388 F.3d 759 (10th Cir. 2004), 406 Galinsky v. Bank of Am. Corp., No. 09-0060, 2009 WL 1173437 (D.N.J. Apr. 29, 2009), 107 Gallagher v. Reliance Standard Life Ins. Co., 305 F.3d 264 (4th Cir. 2002), 175, 178 Gallegos v. Mount Sinai Med. Ctr., 210 F.3d 803 (7th Cir. 2000), 283, 284, 285 Gallo v. Amoco Corp., 102 F.3d 918 (7th Cir. 1996), 286 Galman v. Prudential Ins. Co. of Am., 254 F.3d 768 (8th Cir. 2001), 315 Gammell v. Prudential Ins. Co. of Am., 502 F. Supp. 2d 167 (D. Mass. 2007), 31 Ganem v. Liberty Life Assur. Co. of Boston, 2012 WL 5464604 (D. Me. Nov. 9, 2012), 22, 24, 27 Gannon v. Aetna Life Ins. Co., 2007 WL 2844869 (S.D.N.Y. September 28, 2007), 74 Gannon v. Metro. Life Ins. Co., 360 F.3d 211 (1st Cir. 2004), 13, 21, 27–28 Ganton Techs., Inc. v. Nat’l Indus. Group Pension Plan, 76 F.3d 462 (2d Cir. 1996), 65

1266

Gardner v. TIMCO Aviation Servs., 2010 U.S. Dist. LEXIS 85633 (M.D.N.C. Aug. 19, 2010), 179 Gardner v. Unum Life Ins. Co., 354 F. App’x 642 (3d Cir. 2009), 118 Garratt v. Knowles, 245 F.3d 941 (7th Cir. 2001), 297 Garren v. John Hancock Mut. Ins. Co., 114 F.3d 186 (11th Cir. 1997), 435, 460 Garrett v. Hewitt Assoc., 2010 U.S. Dist. LEXIS 65544 (N.D. Ohio June 9, 2013), 248 Garrett v. Veterans Mem’l Med. Ctr., 821 F. Supp. 838 (D. Conn. 1993), 56 Garrison v. Ne. Ga. Med. Ctr., 66 F. Supp. 2d 1336 (N.D. Ga. 1999), 489 Garvin v. Am. Ass’n of Retired Persons, 1992 U.S. Dist. LEXIS 2013 (D.D.C. 1992), 499 Gastronomical Workers Union Local 610 & Metro. Hotel Ass’n Pension Fund v. Dorado Beach Hotel Corp., 617 F.3d 54 (1st Cir. 2010), 37 Gatti v. Reliance Standard Life Ins. Co., 415 F.3d 978 (9th Cir. 2005), 354, 356, 358, 378, 379 Gatti v. W. Pa. Teamsters & Employer’s Welfare Fund, No. 07-1178, 2008 WL 794516 (W.D. Pa. Mar. 24, 2008), 107

1267

Gaud-Figueroa v. Metro. Life Ins. Co., 771 F. Supp. 2d 207 (D. Conn. 2011), 95 Gay Officers Action League v. Puerto Rico, 247 F.3d 288 (1st Cir. 2001), 39 Gayle v. Flexible Benefit Plan/United Parcel Serv. Long Term Disability Plan, 318 F. Supp. 2d 328, 330 (D.S.C. 2004), 158 Gayle v. United Parcel Service, 401 F.3d 222 (4th Cir. 2005), 159, 194, 196, 197 Gaylor v. John Hancock Mut. Life Ins. Co., 112 F.3d 460 (10th Cir. 1997), 393, 394, 395, 399 GCIU Employer Ret. Fund v. Chi. Tribune Co., 66 F.3d 862 (7th Cir. 1995), 292 GCO Servs., LLC, 324 B.R. 459 (S.D.N.Y. 2005), 82 GE Group Life Assur. Co. v. Turner, No. 05-342, 2009 WL 150944 (W.D. Pa. Jan. 20, 2009), 141 Gearhart v. Hartford Life Ins. Co., 2010 U.S. Dist. LEXIS 120988 (W.D. Va. Nov. 16, 2010), 193 Gearlds v. Entergy Corp., 709 F.3d 448 (5th Cir. 2013), 219, 226 Geissal ex rel. Estate of Geissal v. Moore Med. Corp., 338 F.3d 926 (8th Cir. 2003), 331

1268

Geller v. Cnty. Line Auto Sales, Inc., 86 F.3d 18 (2d Cir. 1996), 79, 81 Gelles v. Skrotsky, 983 F. Supp. 1398 (M.D. Fla. 1997), 463 Genosky v. Metro. Life Ins. Co., 2012 U.S. Dist. LEXIS 105751 (D. Minn. Apr. 27, 2012), 326 George v. Duke Energy Ret. Cash Balance Plan, 259 F.R.D. 225 (D.S.C. 2009), 184, 201 George v. Duke Energy Ret. Cash Balance Plan, 560 F. Supp. 2d 444 (D.S.C. 2008), 184 Germaine v. Unum Life Ins. Co. of Am., 2004 WL 2624873 (N.D. Ga. Sept. 23, 2004), 432 Germany v. Operating Eng’rs Trust Fund of Wash., D.C., 789 F. Supp. 1165 (D.D.C. 1992), 503, 506, 509 Gernes v. Health & Welfare Plan of Metro. Cabinet, 841 F. Supp. 2d 502 (D. Mass. 2012), 18–19 Gerosa v. Savasta & Co., 329 F.3d 317 (2d Cir. 2003), 58, 59, 62, 92 Gessling v. Group Long Term Dis. Plan for Employees of Sprint/United Mgmt. Co., 2008 U.S. Dist. LEXIS 96623 (S.D. Ind. 2008), 293, 294 Getting v. Fortis Benefits Ins. Co., 5 F. App’x 833 (10th Cir. 2001), 402, 403

1269

Gettings v. Building Laborers Local 310 Fringe Benefits Fund, 349 F.3d 300 (6th Cir. 2003), 271 Geweke Ford v. St. Joseph’s Omni Preferred Care Inc., 130 F.3d 1355 (9th Cir. 1997), 340 Gibbs v. CIGNA Corp., 440 F.3d 571 (2d Cir. 2006), 67 Gibbs v. Gibbs, 210 F.3d 491 (5th Cir. 2000), 224, 227, 228 Gilbert v. Alta Health & Life Ins. Co., 276 F.3d 1292 (11th Cir. 1998), 433, 436, 479 Gilbert v. Astrue, 231 F. App’x 778 (10th Cir. 2007), 415 Gilbert v. Burlington Indus., Inc., 765 F.2d 320 (2d Cir. 1985), 55 Gilbertson v. Allied Signal, Inc., 172 F. App’x 857 (10th Cir. 2006), 414 Gilbertson v. Unum Life Ins. Co. of Am., No. 03-5732, 2005 WL 1484555 (E.D. Pa. June 21, 2005), 104 Giles v. NYLCare Health Plans, Inc., 172 F.3d 332 (5th Cir. 1999), 210 Gill v. Plan Adm’r of Chubb Grp. of Ins. Co. Long Term Disability, No. 06-2926, 2008 WL 2301578 (D.N.J. May 29, 2008), 122, 139

1270

Gindele v. Am. United Life Ins. Co., 2006 U.S. Dist. LEXIS 66750 (E.D. Ky. Sep. 15, 2006), 273 Gismondi v. United Tech. Corp., 408 F.3d 295 (6th Cir. 2005), 256 GIW Ind., Inc. v. Trevor, Steward, Burton & Jacobsen, 895 F.2d 729 (11th Cir. 1990), 457, 459, 467, 470 Glass v. Kellogg Co., 2009 U.S. Dist. LEXIS 72300 (W.D. Mich. 2009), 249 Glass v. United of Omaha Life Ins. Co., 33 F.3d 1341 (11th Cir. 1994), 438, 479 Glaubach v. Regence Blueshield, 2006 WL 7115231 (9th Cir. 2006), 344 Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241 (11th Cir. 2008), 445, 453, 454, 480 Glaziers & Glassworkers v. Newbridge Sec., 93 F.3d 1171 (3d Cir. 1996), 128 Glick v. Coop. Benefit Adm’rs, Inc., 36 F. App’x 224 (8th Cir. 2002), 324 Glista v. Unum Life Ins., 378 F.3d 113 (1st Cir. 2004), 14, 22, 44–45, 45, 46 Glista v. Unum Life Ins. Co. of Am., 2003 WL 22282175 (D. Mass. 2003), 46, 47

1271

Gluck v. Unisys Corp., 960 F.2d 1168 (3d Cir. 1992), 139–140 Gluth v. Federal Home Loan Mortgage Corp. Long-Term Disability Plan, 2013 WL 246897 (E.D. Va. 2013), 175 Gluth v. Wal-Mart Stores, Inc., 117 F.3d 1413 (tbl.), 1997 WL 368625 (4th Cir. 1997), 177, 183 Golas v. Homeview, Inc., 106 F.3d 1 (1st Cir. 1997), 7 Golden Gate Rest. Ass’n v. City and County of San Francisco, 546 F.3d 639 (9th Cir. 2008), 339, 340, 341 Goletto v. W.H. Braum, Inc., 2000 U.S. Dist. LEXIS 4642 (D. Kan. Mar. 29, 2000), 422 Goletz v. Prudential Ins. Co. of Am., 425 F. Supp. 2d 540 (D. Del. 2006), 123 Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654 (1st Cir. 2010), 4, 40 Gomez-Gonzalez v. Rural Opportunities, Inc., 658 F. Supp. 2d 325 (D.P.R. 2009), 36 Gonzales v. Truck Drivers & Helpers Local 355 Ret. Pension Fund, 2013 U.S. Dist. LEXIS 44942 (D. Md. 2013), 193 Gonzales v. Unum, 861 F. Supp. 2d 1099 (S.D. Cal. 2012), 353

1272

Gordon v. U.S. Steel Corp., 724 F.2d 106 (10th Cir. 1983), 421, 422 Gore v. El Paso Energy Corp. Long Term Disability Plan, 477 F.3d 833 (6th Cir. 2007), 264, 268 Gorenstein Enters., Inc. v. Quality Care-USA, Inc., 874 F.2d 431 (7th Cir. 1989), 306, 307 Gorman v. Carpenters’ & Millwrights’ Health Benefit Trust Fund, 410 F.3d 1194 (10th Cir. 2005), 418, 427 Gosselink v. Am. Tel. & Tel., Inc., 272 F.3d 722 (5th Cir. 2001), 215, 216 Gould v. Great-West Life & Annuity Ins. Co., 959 F. Supp. 214 (D.N.J. 1997), 105 Gowen v. Assurity Life Ins. Co., 2013 WL 1192580 (S.D. Ga. Mar. 22, 2013), 434, 436 Grady v. Hartford Life & Acc. Ins. Co., 2009 WL 700875 (D. Me. 2009), 46 Graham v. Hartford Life & Accid. Ins. Co., 589 F.3d 1345 (10th Cir. 2009), 416, 428 Grasselino v. First Unum Life Ins. Co., No. 08-cv-635, 2008 WL 5416403 (D.N.J. Dec. 22, 2008), 139 Gray v. Am. Acad. of Achievement, 2005 U.S. Dist. LEXIS 4646 (D.D.C. Mar. 21, 2005), 491, 492

1273

Gray v. Am. Acad. of Achievement, 2006 U.S. App. LEXIS 9327 (D.C. Cir. Apr. 5, 2006), 492 Gray v. Briggs, 1998 WL 386177 (S.D.N.Y. July 7, 1998), 64 Gray v. New England Tel. & Tel. Co., 792 F.2d 251 (1st Cir. 1986), 37, 38 Gray v. N.Y. Life Ins. Co., 879 F. Supp. 99 (N.D. Ala. 1995), 450 Greany v. Western Farm Bureau Life Ins. Co., 973 F.2d 812 (9th Cir. 1992), 338, 350 Great West Life & Annuity Ins. Co. v. Info. Systems & Networks Corp., 523 F.3d 266 (4th Cir. 2008), 150 Greater Wash. Bd. of Trade v. Dist. of Columbia, 948 F.2d 1317 (D.C. Cir. 1991), 494 Great-West Life & Ann. Ins. Co. v. Brown, 192 F. Supp. 2d 1376 (M.D. Ga. 2002), 529 Great-West Life & Ann. Ins. Co. v. Knudson, 534 U.S. 204 (2002), 77, 78, 92, 93, 140, 197, 231, 232, 233, 264, 269, 327, 332, 389, 418, 482, 483, 487, 518, 529 Green v. ExxonMobil Corp., 413 F. Supp. 2d 103 (D. R.I. 2006), 34 Green v. Holland, 480 F.3d 1216 (11th Cir. 2007), 486, 487

1274

Green v. William Mason & Co., 976 F. Supp. 298 (D.N.J. 1997), 133 Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996), 417 Greenwald v. Liberty Life Assur. Co. of Bos., 2013 U.S. Dist. LEXIS 38652 (D. Neb. Mar. 20, 2013), 326 Greer v. Graphic Commc’ns Int’l Union Officers, 941 F. Supp. 1 (D.D.C. 1996), 499 Gregg v. Transp. Workers of Am. Int’l, 343 F.3d 833 (6th Cir. 2003), 267 Gregorovich v. E.I. DuPont de Nemours, 602 F. Supp. 2d 511 (D. Del. 2009), 139 Gregory v. Metro. Life Ins. Co., 2009 WL 790512 (D. Vt. Mar. 20, 2009), 79 Gresham v. Lumberman’s Mut. Cas. Co., 404 F.3d 253 (4th Cir. 2005), 153 Grevera v. Microsoft Corp., 2013 U.S. Dist. LEXIS 16022 (W.D.N.C. 2013), 179 Gridley v. Cleveland Pneumatic Corp., 924 F.2d 1310 (3d Cir. 1991), 105 Griffin v. Jim Jamison, Inc., 188 F.3d 996 (8th Cir. 1999), 330

1275

Griggs v. E.I. DuPont de Nemours & Co., 237 F.3d 371 (4th Cir. 2001), 184, 187 Griggs v. E.I. DuPont de Nemours & Co., 385 F.3d 440 (4th Cir. 2004), 187 Grimo v. Blue Cross/Blue Shield of Vt., 34 F.3d 148 (2d Cir. 1994), 55, 56, 57, 75 Grindstaff v. Green, 133 F.3d 416 (6th Cir. 1998), 261 Grisham v. Life Ins. Co. of N. Am., No. 1:06-cv-251, 2007 U.S. Dist. LEXIS 79310 (E.D. Tenn. Oct. 25, 2007), 250 Gritzer v. CBS, Inc., 275 F.3d 291 (3d Cir. 2002), 115 Grose v. Sun Life Assur. Co. of Can., 568 F. Supp. 2d 652 (W.D. Va. 2008), 163–164 Gross v. Sun Life, __ F.3d __, 2013 WL 4305006 (1st Cir. Aug. 16, 2013), 2, 4, 13, 14 Gross v. Sun Life Assur. Co. of Can., 2012 WL 29061 (D. Mass. January 6, 2012), 26 Grossmuller v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 715 F.3d 853 (3d Cir. 1983), 137 Grosso v. Aetna Life Ins. Co., 2013 WL 949494 (D. Me. Mar. 11, 2013), 24

1276

Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154 (9th Cir. 2001), 353, 359, 390 Groves v. Metro. Life Ins. Co., 438 F.3d 872 (8th Cir. 2006), 316 Groves v. Modified Ret. Plan, 803 F.2d 109 (3d Cir. 1986), 138 Gruber v. Hubbard Bert Karle Weber, Inc., 159 F.3d 780 (3d Cir. 1998), 97, 102 Grumbine v. Teamsters Pension Trust Fund of Phila. & Vicinity, 638 F. Supp. 1284 (E.D. Pa. 1986), 107 Grun v. Pneumo Abex Corp., 163 F.3d 411 (7th Cir. 1998), 290 Gualandi v. Adams, 385 F.3d 236 (2d Cir. 2004), 56 Guardian Life Ins. Co. v. Finch, 395 F.3d 238 (5th Cir. 2004), 219 Guardsmark, Inc. v. Blue Cross & Blue Shield of Tenn., 169 F. Supp. 2d 794 (W.D. Tenn. 2001), 267, 268 Guerra-Delgado v. Popular, Inc., 2012 WL 1069703 (D.P.R. Mar. 29, 2012), 4–5, 33, 34 Guerrero v. Lumbermen’s Mut. Cas. Co., 174 F. Supp. 2d 1218 (D. Kan. 2001), 402

1277

Guididas v. Cmty. Nat’l Bank Corp., 2012 WL 5974984 (M.D. Fla. Nov. 5, 2012), 461 Guididas v. Community Nat’l Bk. Corp., 2012 U.S. Dist. LEXIS 102638 (M.D. Fla. 2012), 473 Guilbert v. Gardner, 480 F.3d 140 (2d Cir. 2007), 56 Gunnells v. Healthplan Services, 348 F.3d 417 (4th Cir. 2003), 200, 201 Gust v. Coleman Co., 740 F. Supp. 1544 (D. Kan. 1990), 403 Gutta v. Standard Select Trust Ins. Plans, 530 F.3d 614 (7th Cir. 2008), 285, 305 Guy v. Se. Iron Workers’ Welfare Fund, 877 F.2d 37 (11th Cir. 1989), 445, 484 Guyan Int’l, Inc. v. Professional Benefits Adm’rs, Inc., 689 F.3d 793 (6th Cir. 2012), 266 Guyther v. DOL Fed. Credit Union, 193 F. Supp. 2d 127 (D.D.C. 2002), 509

Hackett v. Standard Ins. Co., 559 F.3d 825 (8th Cir. 2009), 318, 325 Hackett v. Xerox Corp. Long-Term Dis. Income Plan, 315 F.3d 771 (7th Cir. 2003), 286, 291, 298

1278

Hagen v. VPA, Inc., 428 F. Supp. 2d 708 (W.D. Mich. 2006), 247, 248 Hager v. NationsBank N.A., 167 F.3d 245 (5th Cir. 1999), 213 Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300 (3d Cir. 2008), 136, 139 Haidle v. Chippenham Hosp. Inc., 855 F. Supp. 127 (E.D. Va. 1994), 183 Haines v. Reliance Standard Life Ins. Co., 2010 U.S. Dist. LEXIS 104625 (N.D. Ill. Sept. 9, 2010), 290 Haisley v. Sedgwick Claims Mgmt. Services, Inc., 776 F. Supp. 2d 33 (W.D. Pa. 2011), 114 Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008), 216 Hall v. Baptist Health Care Sys., Inc., 2007 WL 3119275 (W.D. Ky. Oct. 22, 2007), 275 Hall v. Blue Cross/Blue Shield of Ala., 134 F.3d 1063 (11th Cir. 1998), 437 Hall v. Group Sickness & Accid. Ins. Plan, 2005 U.S. Dist. LEXIS 40700 (E.D. Mich. Aug. 19, 2005), 273 Hall v. Life Ins. Co. of N. Am., 317 F.3d 773 (7th Cir. 2003), 291

1279

Hall v. Metro. Life Ins. Co., 259 Fed. App’x 589 (4th Cir. 2007), 193, 195 Hall v. National Gypsum Co., 105 F.3d 225 (5th Cir. 1997), 213, 230, 231 Hall v. Standard Ins. Co., 381 F. Supp. 2d 526 (W.D. Va. 2005), 145, 146 Hall v. Tyco Int’l Ltd., 223 F.R.D. 219 (M.D.N.C. 2004), 158 Hall v. United of Omaha Life Ins. Co., 741 F. Supp. 2d 1348 (N.D. Ga. 2010), 443 Hall v. Unum Life Ins. Co. of Am., 300 F.3d 1197 (10th Cir. 2002), 412, 416, 417 Halliburton Co. Benefits Comm. v. Graves, 463 F.3d 360 (5th Cir. 2006), 221 Halpin v. W.W. Grainger, Inc., 962 F.2d 685 (7th Cir. 1992), 89, 304 Halprin v. Equitable Life Assur. Soc’y, 267 F. Supp. 2d 1030 (D. Colo. 2003), 393 Hamall-Desai v. Fortis, 370 F. Supp. 2d 1283 (N.D. Ga. 2004), 480 Hamilton v. AIG Life Ins. Co., 182 F. Supp. 2d 39 (D.D.C. 2002), 504, 505, 506, 509, 516

1280

Hamilton v. Allen-Bradley Co., 244 F.3d 819 (11th Cir. 2001), 435, 450, 461, 462, 468, 470 Hamilton v. Carell, 243 F.3d 992 (6th Cir. 2001), 265 Hammond v. Fidelity & Guar. Life Ins. Co., 965 F.2d 428 (7th Cir. 1992), 290, 291–292 Hampton Indus. Inc. v. Sparrow, 981 F.2d 726 (4th Cir. 1992), 155 Hancock v. Metro. Life Ins. Co., 590 F.3d 1141 (10th Cir. 2009), 397, 406, 409 Hann v. Reliance Standard Life Ins. Co., No. 09-cv-2496, 2011 WL 1344502 (M.D. Pa. Apr. 8, 2011), 135 Hannington v. Sun Life & Health Ins. Co., 711 F.3d 226 (1st Cir. 2013), 19 Hansen v. Cont’l Ins. Co., 940 F.2d 971 (5th Cir. 1991), 206, 207, 218, 220 Hansen v. Harper Excavating, Inc., 641 F.3d 1216 (10th Cir. 2011), 398 Harbison v. Hartford Life & Accid. Ins. Co., 2007 WL 1665300 (S.D. Ohio June 5, 2007), 274 Harden v. Am. Express Fin. Corp., 384 F.3d 498 (8th Cir. 2004), 318, 324

1281

Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149 (2010), 158, 190, 228, 302, 303, 370, 371, 372, 422, 474, 477 Hardt v. Reliance Standard Life Ins. Co., 336 F. App’x 332 (4th Cir. 2009), 190 Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010), 37, 83, 134, 270, 522 Harlick v. Blue Shield of Ca., 686 F.3d 699 (9th Cir. 2012), 380 Harms v. Cavenham Forest Indus., Inc., 984 F.2d 686 (5th Cir. 1993), 227 Harold Ives Trucking Co. v. Spradley & Coker, Inc., 178 F.3d 523 (8th Cir. 1999), 329 Harris Methodist Ft. Worth v. Sales Support Servs., Inc. Emp. Healthcare Plan, 426 F.3d 330 (5th Cir. 2005), 230 Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238 (2000), 82, 227, 270, 301, 329, 390, 421, 485, 521 Harris Trust & Savings Bank v. Provident Life & Acc. Ins. Co., 57 F.3d 608 (7th Cir. 1995), 303 Harris v. Ark. Book Co., 794 F.2d 358 (8th Cir. 1986), 309

1282

Harris v. Epoch Group, L.C., 357 F.3d 822 (8th Cir. 2004), 332 Harris v. Harvard Pilgrim Health Care, 208 F.3d 274 (1st Cir. 2000), 6 Harris v. Koenig, 602 F. Supp. 2d 39 (D.D.C. 2009), 521 Harris v. Standard Ins. Co., 2009 U.S. App. LEXIS 6280 (9th Cir. 2009), 380 Harrison v. Digital Health Plan, 183 F.3d 1235 (11th Cir. 1999), 481 Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244 (3d Cir. 2002), 106, 107 Harsch v. Eisenberg, 956 F.3d 651 (7th Cir. 1992), 300 Hart v. Equitable Life Assur. Soc’y, 75 F. App’x 51, 2003 U.S. App. LEXIS 19397 (2d Cir. 2003), 81 Hart v. Reynolds & Reynolds Co., 1993 U.S. App. LEXIS 17678 (6th Cir. July 6, 1993), 273 Harte v. Bethlehem Steel Corp., 214 F.3d 446 (3d Cir. 2000), 184 Hartline v. Sheet Metal Workers’ Nat’l Pension Fund, 134 F. Supp. 2d 1 (D.D.C. 2000), 520 Hartline v. Sheet Metal Workers’ Nat’l Pension Fund, 286 F.3d 598 (D.C. Cir. 2002), 510

1283

Harvey v. Astra Merck Inc. Long Term Disability Plan, 348 F. Supp. 2d 536 (M.D.N.C. 2004), 178 Harvey v. Life Ins. Co. of N. Am., 404 F. Supp. 2d 969 (E.D. Ky. 2005), 273 Harvey v. Standard Ins. Co., 275 F.R.D. 629 (M.D. Ala. 2011), 451 Hattem v. Schwarzenegger, 449 F.3d 423 (2d Cir. 2006), 59 Havens v. Cont’l Cas. Co., 186 F. App’x 207 (3d Cir. 2007), 126 Havens v. Cont’l Cas. Co., No. 04-3268, 2005 WL 1353398 (E.D. Pa. June 6, 2005), 126 Hawkins v. Arctic Slope Reg’l Corp., 344 F. Supp. 2d 1331 (M.D. Fla. 2002), 452 Hawkins v. First Union Corp., 326 F.3d 914 (7th Cir. 2003), 296, 306 Haymond v. Eighth Dist. Elec. Benefit Fund, 36 F. App’x 369 (10th Cir. 2002), 409 HCA Health Servs. of Ga., Inc. v. Emp’rs Health Ins. Co., 240 F.3d 982 (11th Cir. 2001), 446, 447, 455, 457, 458 Heady v. Dawn Food Prods., Inc., 2003 U.S. Dist. LEXIS 21634 (W.D. Ky. Nov. 25, 2003), 274

1284

Health Cost Controls of Ill., Inc. v. Washington, 187 F.3d 703 (7th Cir. 1999), 529 Health Cost Controls v. Whalen, No. 1:96-66A, 1996 U.S. Dist. LEXIS 20693 (E.D. Va. Aug. 14, 1996), 153 Healthsouth Rehabilitation Hospital v. Am. Nat’l Red Cross, 101 F.3d 1005 (4th Cir. 1996), 177, 183 Heasley v. Belden & Blake Corp., 2 F.3d 1249 (3d Cir. 1993), 113, 114 Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009), 299 Heim v. Life Ins. Co. of N. Am., No. 10-1567, 2012 WL 947137 (E.D. Pa. Mar. 21, 2012), 123 Heimeshoff v. Hartford Life & Acc. Ins. Co., 2012 WL 171325 (D. Conn. Jan. 20, 2012), 91, 92 Held v. Mfrs. Hanover Leasing Corp., 912 F.2d 1197 (10th Cir. 1990), 401, 426 Helfman v. GE Group Life Assurance Co., 573 F.3d 383 (6th Cir. 2009), 240, 251 Helfrich v. Carle Clinic Ass’n, P.C., 328 F.3d 915 (7th Cir. 2003), 302, 304 Helfrich v. PNC Bank, Ky., Inc., 267 F.3d 477 (6th Cir. 2001), 268, 269

1285

Heller v. Cap Gemini Ernst & Young Welfare Plan, 396 F. Supp. 2d 10 (D. Mass. 2005), 44 Heller v. Fortis Benefits Ins. Co., 142 F.3d 487 (D.C. Cir. 1998), 500, 513, 514, 515, 516, 524, 525 Helton v. AT&T, Inc., 709 F.3d 343 (4th Cir. 2013), 166, 167, 171, 172 Hemphill v. Unisys Corp., 855 F. Supp. 1225 (D. Utah 1994), 393 Henar v. First Unum Life Ins. Co., 2002 U.S. Dist. LEXIS 17585 (S.D.N.Y. 2002), 74 Henderson v. Bodine Aluminum, Inc., 70 F.3d 958 (8th Cir. 1995), 314 Henderson v. Transamerica Occidental Life Ins. Co., 263 F.3d 1171 (11th Cir. 2001), 468, 472 Hendricks v. Edgewater Steel Co., 898 F.2d 385 (3d Cir. 1990), 106 Hensley v. Eckerhart, 461 U.S. 424 (1983), 136, 330 Hensley v. Int’l Business Machines Corp., 123 F. App’x 534, 2004 WL 2857576 (4th Cir. 2004), 176 Hensley v. Nw. Permanente Ret. Plan & Trust, 258 F.3d 986 (9th Cir. 2001), 512

1286

Herman v. Cent. States, Se. & Sw. Areas Pension Fund, 423 F.3d 684 (7th Cir. 2005), 302 Herman v. Hartford Life & Acc. Ins. Co., 2013 WL 530836 (11th Cir. Feb. 13, 2013), 440, 443 Herman v. Metro. Life Ins. Co., 2008 WL 5246319 (M.D. Fla. 2008), 483, 484 Herman v. Nations-Bank Trust Co., 126 F.3d 1354 (11th Cir. 1997), 467, 468 Herman v. Reinecke Agency, 37 F. Supp. 2d 1338 (M.D. Fla. 1998), 459 Herman v. S.C. Nat’l Bank, 140 F.3d 1413 (11th Cir. 1998), 473 Hermann Hosp. v. MEBA Med. & Benefits Plan, 845 F.2d 1286 (5th Cir. 1988) (Hermann I), 212 Hermann Hosp. v. MEBA Med. & Benefits Plan, 959 F.2d 569 (5th Cir. 1992) (Hermann II), 212 Herr v. Heiman, 75 F.3d 1509 (10th Cir. 1996), 394 Herring v. Campbell, 690 F.3d 413 (5th Cir. 2012), 215 Herring v. Oak Park Bank, 1997 U.S. Dist. LEXIS 11427 (D. Kan. July 3, 1997), 422 Hert v. Prudential Ins. Co., 650 F. Supp. 2d 1180 (S.D. Fla. 2009), 455–456

1287

Herzberger v. Standard Ins. Co., 205 F.3d 327 (7th Cir. 2000), 13, 285 Hess v. Hartford Life & Acc. Ins. Co., 274 F.3d 456 (7th Cir. 2001), 287, 291, 298 Hess v. Reg-Ellen Mach. Tool Corp., 423 F.3d 653 (7th Cir. 2005), 291 Hess v. Reg-Ellen Mach. Tool Corp., 502 F.3d 725 (7th Cir. 2007), 284, 285 Hession v. Prudential Ins. Co. of Am., 307 F. App’x 650 (3d Cir. 2008), 123 Hickey v. Digital Equip. Corp., 43 F.3d 941 (4th Cir. 1995), 156, 157, 158 Hickman v. Gem Ins. Co., 299 F.3d 1208 (10th Cir. 2002), 416, 424 High v. E-Sys. Inc. Long Term Disability Income & Death Benefit Plan, 459 F.3d 573 (5th Cir. 2006), 219, 220 Hightshue v. AIG Life Ins. Co., 135 F.3d 1144 (7th Cir. 1998), 287, 505 Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710 (6th Cir. 2005), 247, 264 Hill v. Hartford Life & Accid. Ins. Co., 743 F. Supp. 2d 569 (W.D. Va. 2010), 172, 175

1288

Hill v. Opus Corp., 841 F. Supp. 2d 1070 (C.D. Cal. 2011), 345 Hines v. Mass. Mut. Life Ins. Co., 43 F.3d 207 (5th Cir. 1995), 217 Hines v. Unum Life Ins. Co. of Am., 110 F. Supp. 2d 458 (W.D. Va. 2000), 175, 190 Hobson v. Metro. Life Ins. Co., 574 F.3d 75 (2d Cir. 2009), 66, 68, 71, 72, 88, 92, 95 Hockett v. Sun Co., 109 F.3d 1515 (10th Cir. 1997), 417 Hogan v. Fidelity Investments Inst. Operations, Inc., 2013 WL 1330480 (D. Mass. Mar. 29, 2013), 41 Hogan v. Kraft Foods, 969 F.2d 142 (5th Cir. 1992), 230, 231 Hogan-Cross v. Metro. Life Ins. Co., 568 F. Supp. 2d 410 (E.D.N.Y. 2008), 69 Hogarth v. Life Ins. Co. of N. Am., 898 F. Supp. 891 (S.D. Fla. 1995), 475 Holbrooks v. Sun Life Assur. Co., 2012 U.S. Dist. LEXIS 87931 (D. Kan. June 26, 2012), 421 Holcomb v. Unum Life Ins. Co. of Am., 578 F.3d 1187 (10th Cir. 2009), 406, 409 Holdeman v. Devine, 572 F.3d 1190 (10th Cir. 2009), 421

1289

Holland v. Freeman United Coal Mining Co., 574 F. Supp. 2d 116 (D.D.C. 2008), 517 Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240 (5th Cir. 2009), 215, 216 Holley v. Harper, 2007 U.S. Dist. LEXIS 12432 (S.D. W. Va. 2007), 198 Hollis v. Provident Life & Accid. Ins. Co., 259 F.3d 410 (5th Cir. 2001), 239 Holm v. First UNUM Life Ins. Co., 7 Fed. App’x 40 (2d Cir. 2001), 64 Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758 (7th Cir. 2010), 286, 287, 288, 295, 296, 298 Holt v. Prudential Ins. Co. of Am., No. 05-1529, 2007 WL 1071971 (D.N.J. Apr. 5, 2007), 120 Holt v. Winpisinger, 811 F.2d 1532 (D.C. Cir. 1987), 492, 493, 517 Holtzman v. World Book Co., 174 F. Supp. 2d 251 (E.D. Pa. 2001), 98 Home Health, Inc. v. Prudential Ins. Co. of Am., 101 F.3d 600 (8th Cir. 1997), 496 Honolulu Joint Apprenticeship & Training Comm. of United Ass’n Local Union No. 675 v. Foster, 332 F.3d 1234 (9th Cir. 2003), 369, 373, 374

1290

Hoover v. Bank of Am. Corp., 286 F. Supp. 2d 1326 (M.D. Fla. 2003), 481 Hoover v. Bank of Am. Corp., 2005 WL 1074290 (M.D. Fla. 2005), 475 Hope Center, Inc. v. Well America Group, Inc., 196 F. Supp. 2d 1243 (S.D. Fla. 2002), 463, 465, 471 Horan v. Kaiser Steel Ret. Plan, 947 F.2d 1412 (9th Cir. 1991), 353 Horizon Hematology-Oncology, P.C. v. Blue Cross Blue Shield, 2008 U.S. Dist. LEXIS 6817 (D.S.C. 2008), 203 Horizon v. Transitions Recovery Program, No. 10-3197, 2011 WL 2413173 (D.N.J. Jun. 10, 2011), 104 Horn v. Cendant Operations, Inc., 69 F. App’x 421 (10th Cir. 2003), 420 Hornady Transport LLC v. McLeod Health Services, Inc., 773 F. Supp. 2d 622 (D.S.C. 2011), 187 Horton v. Liberty Life Assur. Co., 2008 U.S. Dist. LEXIS 96840 (N.D. Cal. 2008), 379 Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038 (11th Cir. 1998), 446 Horvath v. Keystone Health Plan East, 333 F.3d 450 (3d Cir. 2003), 131

1291

Hosp. Support Servs., Ltd. v. Kemper Grp., Inc., 889 F.2d 1311 (3d Cir. 1989), 139 Hospice of Metro Denver, Inc. v. Group Health Ins. of Okla., Inc., 944 F.2d 752 (10th Cir. 1991), 400 Hotaling v. Teachers Ins. Annuity Ass’n of Conn., 62 F. Supp. 2d 731 (N.D.N.Y. 1999), 71 Hotel Employees & Restaurant Employees Int’l Union v. Gentner, 50 F.3d 719 (9th Cir. 1995), 390 Hotz v. Blue Cross & Blue Shield, 292 F.3d 57 (1st Cir. 2002), 8, 9, 10 House v. American United Life Ins. Co., 499 F.3d 443 (5th Cir. 2007), 207 House v. Paul Revere Life Ins. Co., 241 F.3d 1045 (8th Cir. 2001), 324 Household Int’l Tax Reduction Plan, In re, 441 F.3d 500 (7th Cir. 2006), 284 Houser v. Alcoa, Inc. Long Term Disability Plan, No. 10-160, 2010 WL 5058310 (W.D. Pa. Dec. 6, 2010), 122 Houser v. Alcoa, Inc., No. 10-160, 2010 WL 5058310 (W.D. Pa. Dec. 6, 2010), 137 Howard v. Coventry Health Care of Iowa, Inc., 293 F.3d 442 (8th Cir. 2002), 312

1292

Howard v. Hartford Life & Acc. Ins. Co., 2012 U.S. Dist. LEXIS 104430 (M.D. Fla. 2012), 450 Howard v. Hartford Life & Acc. Ins. Co., U.S. Dist. LEXIS 29118 (M.D. Fla. 2011), 456 Howard v. Parisian, Inc., 807 F.2d 1560 (11th Cir. 1987), 457, 465 Howley v. Mellon Fin. Corp., 625 F.3d 788 (3d Cir. 2010), 110, 119–120, 125 Hudson v. Delta Air Lines, Inc., 90 F.3d 451 (11th Cir. 1996), 460, 488 Hughes v. 3M Retiree Med. Plan, 281 F.3d 786 (8th Cir. 2002), 321 Hughes v. Bos. Mut. Life Ins. Co., 26 F.3d 264 (1st Cir. 1994), 20 Hughes v. UnumProvident Corp., No. 04-cv-632, 2006 U.S. Dist. LEXIS 1400 (M.D.N.C. Jan. 10, 2006), 146, 196 Hulcher v. United Behavioral Systems, Inc., 919 F. Supp. 879 (E.D. Va. 1995), 180 Hummell v. S.E. Rykoff & Co., 634 F.2d 446 (9th Cir. 1980), 366, 369, 370, 371, 372, 373, 374, 522 Hunter v. Aetna Life Ins. Co., 2012 WL 4325641 (W.D. Va. 2012), 175

1293

Hunter v. Caliber Sys., Inc., 220 F.3d 702 (6th Cir. 2000), 266 Hunter v. Metro. Life Ins. Co., 251 F. Supp. 2d 107 (D.D.C. 2003), 498, 499, 500, 510, 519, 520 Hunter v. Metro. Life Ins. Co., 2002 U.S. Dist. LEXIS 26615 (D.D.C. 2002), 510 Hunter v. Philpott, 373 F.3d 873 (8th Cir. 2004), 311 Huntsinger v. The Shaw Group, Inc., 2006 WL 572134 (D. Or. 2006), 373 Hurley v. Life Ins. Co. of N. Am., 2005 U.S. Dist. LEXIS 43038 (D.D.C. July 7, 2005), 498 Hurley v. Life Ins. Co. of N. Am., Civil Action No. 04-252, 2006 WL 1883406 (D.D.C. July 9, 2006), 512, 524 Hurse v. Hartford Life & Accid. Ins. Co., No. 02-5496, 2003 WL 22233532 (6th Cir. Sept. 26, 2003), 259 Huss v. IBM Medical & Dental Plan, 418 F. App’x 498 (7th Cir. Apr. 13, 2011), 302 Husvar v. Rapoport, 430 F.3d 777 (6th Cir. 2005), 246 Hutchins v. Champion Int’l Corp., 110 F.3d 1341 (8th Cir. 1997), 319, 320, 321

1294

I.A.M. Nat’l Pen. Fund v. TMR Realty Co., Inc., 431 F. Supp. 2d 1 (D.D.C. 2006), 526 IBEW-NECA Sw. Health & Benefit Fund v. Douthitt, 211 F. Supp. 2d 812 (N.D. Tex. 2002), 529 IHC Health Servs., Inc. v. FCH1 LLC, 2012 U.S. Dist. LEXIS 168930 (D. Utah Nov. 27, 2012), 403 ILGWU Nat’l Ret. Fund v. ESI Group, Inc., 2003 U.S. Dist. LEXIS 626 (S.D.N.Y. 2003), 87 Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990), 61, 103 Ingraham v. Prudential Ins. Co. of Am., No. 12-682, 2013 WL 1909304 (W.D. Pa. Mar. 7, 2013), 139 Ingram v. Martin Marietta Long Term Disability Income Plan for Salaried Employees of Transferred GE Operations, 244 F.3d 1109 (9th Cir. 2001), 365 Ingravallo v. Hartford Life and Acc. Ins. Co., 2013 WL 1346283 (E.D.N.Y April 3, 2013), 74 Insco v. Aetna Health & Life Ins. Co., 673 F. Supp. 2d 1180 (D. Nev. 2009), 348 Inter-Modal Rail Emps. Ass’n v. Atchison, Topeka & Santa Fe Ry. Co., 520 U.S. 510 (1997), 510 Int’l Ass’n of Entrepreneurs of Am. Ben. Trust v. Foster, 883 F. Supp. 1050 (E.D. Va. 1995), 147

1295

Int’l Bhd. of Painters & Allied Trades Union & Ind. Pen. Plan v. Duval, 1994 WL 903314 (D.D.C. 1994), 521 Int’l Painters & Allied Trades Indus. Pension Fund v. Aragones, 2008 WL 2415025 (M.D. Fla. June 12, 2008), 484, 486 Int’l Painters & Allied Trades Indus. Pension Fund v. R.W. Amrine Drywall Co., Inc., 239 F. Supp. 2d 26 (D.D.C. 2002), 523 Int’l Res., Inc. v. N.Y. Life Ins. Co., 950 F.2d 294 (6th Cir. 1991), 240–241 Int’l Union, United Auto., Aerospace, & Agr. Implement Workers of Am. v. Park-Ohio Indus. Inc., 661 F. Supp. 1281 (N.D. Ohio 1987), 268 Int’l Union v. Skinner Engine Co., 188 F.3d 130 (3d Cir. 1999), 113, 116 Iron Workers Local 25 Pension Fund, In re, No. 04-cv-4024, 2011 U.S. Dist. LEXIS 34505 (E.D. Mich. Mar. 31, 2011), 262 Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255 (5th Cir. 1980), 228, 474, 477, 478 Iron Workers Local No. 272 v. Bowen, 695 F.2d 531 (11th Cir. 1983), 467, 469 ITPE Pension Fund v. Hall, 334 F.3d 1011 (11th Cir. 2003), 464, 468

1296

I.V. Servs. of Am., Inc. v. Inn Dev. & Mgmt., Inc., 7 F. Supp. 2d 79 (D. Mass. 1998), 45 IV Servs. of Am. Inc. v. Trs. of Am. Consulting Eng’rs Council Trust Fund, 136 F.3d 114 (2d Cir. 1998), 67

Jackson v. Fortis, 245 F.3d 748 (8th Cir. 2001), 334 Jackson v. Prudential Ins. Co. of Am., 530 F.3d 696 (8th Cir. 2009), 323 Jackson v. Wilson, Sonsini, Goodrich & Rosati Long Term Disability Plan, 768 F. Supp. 2d 1015 (N.D. Cal. 2011), 374 Jacobs v. Unum Life Ins. Co., 2006 U.S. Dist. LEXIS 10567 (M.D. Tenn. Feb. 21, 2006), 274 Jaffee v. Redmond, 142 F.3d 409 (7th Cir. 1998), 302 Jakimas v. Hoffmann-LaRoche, Inc., 485 F.3d 770 (3d Cir. 2007), 113 James v. Gen. Motors Corp., 230 F.3d 315 (7th Cir. 2000), 291 James v. Int’l Painters & Allied Trades Ind. Pension Plan, 710 F. Supp. 2d 16 (D.D.C. 2010), 494 James v. Nat’l Bus. Sys., Inc., 924 F.2d 718 (7th Cir. 1991), 279, 280

1297

James v. Pirelli Armstrong Tire Corp., 305 F.3d 439 (6th Cir. 2002), 268 Janeiro v. Urological Surgery Prof’l Ass’n, 457 F.3d 130 (1st Cir. 2006), 16, 31, 37, 38 Janssen v. Minn. Auto Dealers Benefit Fund, 447 F.3d 1109 (8th Cir. 2006), 319, 331 Jass v. Prudential Health Care Plan, 88 F.3d 1482 (7th Cir. 1996), 282 Jebian v. Hewlett Packard, 349 F.3d 1098 (9th Cir. 2003), 357, 358, 378, 379 Jeffries v. Greater Se. Cmty. Hosp. Group Term Life Ins. Plan, 2005 U.S. Dist. LEXIS 38824 (D.D.C. Dec. 30, 2005), 500 Jeffries v. Pension Trust Fund of the Pension of Hospitalization & Benefits Plan, 172 F. Supp. 2d 389 (S.D.N.Y. 2001), 91 Jenkins v. Local 705, Int’l Bhd. of Teamsters Pension Plan, 713 F.2d 247 (7th Cir. 1983), 305 Jenkins v. PriceWaterhouse Long Term Dis. Plan, 564 F.3d 856 (7th Cir. 2009), 286, 287, 295 Jett v. Blue Cross & Blue Shield, 10 F.3d 1547 (11th Cir. 1994), 457

1298

Jett v. Blue Cross & Blue Shield of Ala., Inc., 890 F.2d 1137 (11th Cir. 1989), 453, 455 Jewell v. Life Ins. Co. of N. Am., 508 F.3d 1303 (10th Cir. 2007), 399, 413 Joanou v. Coca-Cola Co., 26 F.3d 96 (9th Cir. 1994), 360 Joas v. Reliance Standard Life Ins. Co., 2008 WL 1859998 (S.D. Cal. 2008), 376 Jobe v. Med. Life Ins. Co., 598 F.3d 478 (8th Cir. 2010), 315 John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86 (1993), 7 John Morrell & Co. v. United Food & Com. Workers Int’l Union, 37 F.3d 1302 (8th Cir. 1994), 320 Johnson v. Antioch Univ., 1992 U.S. Dist. LEXIS 4931 (D.D.C. 1992), 496 Johnson v. Connecticut General Life Ins. Co., 324 Fed. App’x 459 (6th Cir. 2009), 244, 250, 256 Johnson v. Eaton Corp., 970 F.2d 1569 (6th Cir. 1992), 249 Johnson v. Gen. Am. Life Ins. Co., 178 F. Supp. 2d 644 (W.D. Va. 2001), 200

1299

Johnson v. Metro Life Ins. Co., 437 F.3d 809 (8th Cir. 2006), 324 Johnson v. Nanticoke Mem’l Hosp., 700 F. Supp. 2d 670 (D. Del. 2010), 106 Johnson v. State Mut. Life Assur. Co. of Am., 942 F.2d 1260 (8th Cir. 1991), 331 Johnson v. UMWA Health & Ret. Funds, 125 F. App’x 400 (3d Cir. 2005), 116, 118 Johnson v. UnumProvident, 363 F. App’x 1 (11th Cir. 2009), 479 Johnson v. Watts Regulator Co., 63 F.3d 1129 (1st Cir. 1995), 3, 42, 101 Johnston v. Paul Revere Life Ins. Co., 241 F.3d 623 (8th Cir. 2001), 309, 312, 327, 328 Jones v. Am. Gen. Life & Acc. Ins. Co., 213 F.R.D. 689 (S.D. Ga. 2002), 460, 488 Jones v. Am. Gen. Life & Accid. Ins. Co., 370 F.3d 1065 (11th Cir. 2004), 468, 472 Jones v. Ga. Pac. Corp., 90 F.3d 114 (5th Cir. 1996), 218 Jones v. Kodak Med. Assistance Plan, 169 F.3d 1287 (10th Cir. 1999), 407

1300

Jones v. LMR Int’l, Inc., 367 F. Supp. 2d 1346 (M.D. Ala. 2005), 436 Jones v. LMR Int’l, Inc., 457 F.3d 1174 (11th Cir. 2006), 439 Jones v. Metro. Life Ins. Co., 385 F.3d 654 (6th Cir. 2004), 250, 253, 254 Jones v. Metro. Life Ins. Co., 729 F. Supp. 2d 467 (D. Mass. 2010), 30, 45 Jones v. Metro. Life Ins. Co., 845 F. Supp. 2d 1016 (N.D. Cal. 2012), 371, 376 Jones v. Metro. Life Ins. Co., 2003 WL 22952212 (N.D. Tex. 2003), 223 Jones v. Trevor, Stewart Burton & Jacobsen, Inc., 1992 U.S. Dist. LEXIS 14441 (N.D. Ga. 1992), 473 Jones v. Unum Life Ins. Co. of Am., 223 F.3d 130 (2d Cir. 2000), 94 Jones v. Walgreen Co., 2011 WL 2746788 (D. Mass. July 12, 2011), 24 Jones v. Wallgreen Co., 2012 WL 603587 (D. Mass. Feb. 23, 2012), 37, 38 Jordan v. Fed. Express Corp., 116 F.3d 1005 (3d Cir. 1997), 106

1301

Jordan v. Mich. Conf. of Teamsters Welfare Fund, 207 F.3d 854 (6th Cir. 1998), 271 Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869 (9th Cir. 2004), 364, 379 Jordan v. Ret. Comm. of Rensselaer Polytechnic Inst., 46 F.3d 1264 (2d Cir. 1995), 65 Jorgensen v. Prudential Ins. Co. of Am., 852 F. Supp. 255 (D.N.J. 1994), 103 Jorstad v. Conn. Gen. Life Ins. Co., 844 F. Supp. 46 (D. Mass. 1994), 20 Joy Global, Inc., In re, 346 B.R. 659 (D. Del. 2006), 125 Joyce v. RJR Nabisco Holdings Corp., 126 F.3d 166 (3d Cir. 1997), 103 Joyner v. Cont’l Cas. Co., 837 F. Supp. 2d 233 (S.D.N.Y. 2011), 69 Judd v. Qwest Commc’n, No. CV-11-725, 2012 WL 3704703 (D. Ariz. 2012), 357 Judge v. Metro. Life Ins. Co., 710 F.3d 651 (6th Cir. 2013), 250, 251 Juliano v. Health Maint. Org. of N.J., 221 F.3d 279 (2d Cir. 2000), 70, 89

1302

Justice v. Bankers Tr. Co., 607 F. Supp. 527 (N.D. Ala. 1985), 450

1303

Kahane v. Unum Life Ins. Co., 2009 WL 805817 (11th Cir. 2009), 477 Kahle v. Leonard, 563 F.3d 736 (8th Cir. 2009), 330 Kalda v. Sioux Valley Physician Partners, Inc., 481 F.3d 639 (8th Cir. 2007), 328 Kalish v. Liberty Mut., 419 F.3d 501 (6th Cir. 2005), 256 Kamen v. Int’l Bhd. of Elec. Workers, 505 F. Supp. 2d 66 (D.D.C. 2007), 527 Kamler v. H/N Telecomm. Servs., Inc., 305 F.3d 672 (7th Cir. 2002), 290 Kanawi v. Bechtel Corp., 590 F. Supp. 2d 1213 (N.D. Cal. 2008), 388 Kanawi v. Bechtel Corp., 2011 WL 782244 (N.D. Cal. 2011), 378 Kane v. Aetna Life Ins. Co., 893 F.2d 1283 (11th Cir. 1990), 438, 446 Kane v. UPS Pension Plan Board of Trustees, 2012 WL 5869307 (D. Md. 2012), 169 Kanne v. Conn. Gen. Life Ins. Co., 867 F.2d 489 (9th Cir. 1988), 335, 336, 337, 338

1304

Kao v. Aetna Life Ins. Co., 647 F. Supp. 2d 397 (D.N.J. 2009), 138 Kapp v. Trucking Employees of N. Jersey Welfare Fund, Inc.—Pension Fund, 426 F. App’x 126 (3d Cir. 2011), 106 Karls v. Texaco, Inc., 139 F. App’x 29 (10th Cir. 2005), 401 Karr v. Nat’l Asbestos Workers Pension Fund, 150 F.3d 812 (7th Cir. 1998), 294 Katz v. Comprehensive Plan of Group Ins., 197 F.3d 1084 (11th Cir. 1999), 472 Kaufman v. Unum Life Ins. Co. of Am., 834 F. Supp. 2d 1186 (D. Nev. 2011), 344 Kaufmann v. Prudential Ins. Co. of Am., 840 F. Supp. 2d 495 (D.N.H. 2012), 14 Kaus-Rogers v. Unum Life Ins. Co. of Am., 2004 U.S. Dist. LEXIS 9797 (W.D.N.Y. 2004), 75 Kaus-Rogers v. Unum Life Ins. Co. of Am., 2004 WL 1166640 (W.D.N.Y. Apr. 4, 2004), 71 Keach v. U.S. Trust Co., N.A., 244 F. Supp. 2d 968 (C.D. Ill. 2003), 302 Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999), 353, 354, 362, 365, 379

1305

Kelley v. Sears, Roebuck & Co., 882 F.2d 453 (10th Cir. 1989), 399 Kellner v. First Unum Life Ins. Co., 589 F. Supp. 2d 291 (S.D.N.Y. 2008), 94 Kellogg v. Metro. Life Ins. Co., 549 F.3d 818 (10th Cir. 2008), 407 Kelly v. Reliance Standard Life Ins. Co., 2011 WL 6756932 (D.N.J. Dec. 22, 2011), 123 Kelly-Hicks v. Paul Revere Ins. Co., 1998 U.S. Dist. LEXIS 12530 (W.D.N.C. 1998), 200 Kelso v. Gen. Am. Life Ins. Co., 967 F.2d 388 (10th Cir. 1992), 399 Kendrick v. CNA Ins. Cos., 71 F. Supp. 2d 815 (S.D. Ohio 1999), 245 Kenna v. Hartford Life & Acc. Ins. Co., 2005 WL 2175158 (D.N.H. Sept. 6, 2005), 44 Kennedy v. Colo. RS, LLC, 872 F. Supp. 2d 1146 (D. Colo. 2012), 426 Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588 (2d Cir. 1993), 62–63, 63 Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285 (2009), 151, 156, 166, 187, 219, 321

1306

Kenney v. State St. Corp., 2011 WL 4344452 (D. Mass. Sep. 15, 2011), 33 Kent v. United of Omaha Life Ins. Co., 96 F.3d 803 (6th Cir. 1996), 251 Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003), 104, 151, 211, 244, 246, 342–344, 435, 495 Kentucky Ass’n of Health Plans, Inc. v. Nichols, 227 F.3d 352 (6th Cir. 2000), 243 Kerber v. Qwest Group Life Ins. Plan, 647 F.3d 950 (10th Cir. 2011), 399, 400 Kergosien v. Ocean Energy, Inc., 390 F.3d 346 (5th Cir. 2004), 216 Kern v. Chrysler UAW Pension Plan, No. 11-11970, 2012 U.S. Dist. LEXIS 99498 (E.D. Mich. Mar. 16, 2012), 265 Kern v. Verizon Comm’s., Inc., 381 F. Supp. 2d 532 (N.D. W. Va. 2005), 157 Kerns v. Benefit Trust Life Ins. Co., 992 F.2d 214 (8th Cir. 1993), 328 Kerr v. United Teacher Assocs. Ins. Co., 313 F. Supp. 2d 617 (S.D.W. Va. 2004), 145, 146 Kerry v. Southwire Co. & Affiliates Emp. Benefit Plan, 324 F. Supp. 2d 1225 (D. Utah 2004), 426

1307

Keystone Chapter, Assoc. Builders & Contractors, Inc. v. Foley, 37 F.3d 945 (3d Cir. 1994), 103 Khoury v. Group Health Plan, Inc., 615 F.3d 946 (8th Cir. 2010), 318, 319 Kickham Hanley, P.C. v. Kodak Ret. Ins. Plan, 2009 WL 468266 (2d Cir. Feb. 26, 2009), 84 Kidder v. H&B Marine, Inc., 932 F.2d 347 (5th Cir. 1991), 206, 207 Kidneigh v. Unum Life Ins. Co. of Am., 345 F.3d 1182 (10th Cir. 2003), 398, 399 Kifafi v. Hilton Hotel Ret. Plan, 228 F.R.D. 382 (D.D.C. 2005), 528, 531 Kiker v. Cmty. Health Sys. Prof. Servs. Corp., 484 F. App’x 215 (10th Cir. 2012), 398 Killian v. Concert Health Plan, 680 F.3d 749 (7th Cir. 2012), 299, 300 Killian v. Healthsource Provident Administrators, 152 F.3d 514 (6th Cir. 1998), 251, 255, 258 Killian v. Johnson & Johnson, No. 07-4902, 2009 WL 537666 (D.N.J. June 23, 2009), 119, 135, 137 Kim v. Fujikawa, 871 F.2d 1427 (9th Cir. 1989), 368

1308

Kimber v. Thiokol Corp., 196 F.3d 1092 (10th Cir. 1999), 405, 407, 409, 416, 428 Kindelan v. Disability Mgmt. Alternatives, LLC, 437 F. App’x 5 (1st Cir. 2011), 27 Kindred Hosp. E., LLC v. Blue Cross & Blue Shield of Fla., Inc., 2007 WL 601749 (M.D. Fla. 2007), 472 King v. Marriott Int’l, Inc., 337 F.3d 421 (4th Cir. 2003), 202, 204 Kinsler v. Lincoln Nat’l Life Ins. Co., 660 F. Supp. 2d 830 (M.D. Tenn. 2009), 255, 256, 259 Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243 (2d Cir. 1999), 64, 65 Kirkendall v. Halliburton, Inc., 707 F. 3d 173 (2d Cir. 2013), 63 Kirwan v. Marriott Corp., 10 F.3d 784 (11th Cir. 1994), 445, 451, 455, 456, 457, 459 Kishter v. Principal Life Ins. Co., 186 F. Supp. 2d 438 (S.D.N.Y. 2002), 93 Klassy v. Physicians Plus Ins. Co., 371 F.3d 952 (7th Cir. 2004), 282, 283 Klecher v. Metro. Life Ins. Co., 331 F. Supp. 2d 279 (S.D.N.Y. 2004), 82

1309

Klecher v. Metro. Life Ins. Co., 2003 WL 21314033 (S.D.N.Y. June 6, 2003), 70 Klimowicz v. Unum Life Ins. Co. of Am., 296 F. App’x 248 (3d Cir. 2008), 139 Klimowicz v. Unum Life Ins. Co. of Am., No. 04-2990, 2007 WL 2904195 (D.N.J. Sept. 28, 2007), 103–104 Kling v. Fidelity Mgmt. Trust Co., 323 F. Supp. 2d 132 (D. Mass. 2004), 40 Klinger v. Verizon Comm., Inc., 2007 WL 853833 (E.D. Pa. Mar. 14, 2007), 123 Klosterman v. Western Gen. Mgmt., Inc., 32 F.3d 1119 (7th Cir. 1994), 299 Klover v. Antero Healthplans, 64 F. Supp. 2d 1003 (D. Colo. 1999), 399 Kludka v. Qwest Disability Plan, 2011 U.S. App. LEXIS 21447 (9th Cir. 2011), 380 Kmatz v. Metro. Life Ins. Co., 232 Fed. App’x 451 (6th Cir. 2007), 268 Knieriem v. Group Health Plan, Inc., 434 F.3d 1058 (8th Cir. 2006), 329 Koblentz v. UPS Flexible Employee Benefit Plan, 2013 WL 4525432 (S.D. Cal. 2013), 384

1310

Kobold v. Aetna U.S. Healthcare, 258 F. Supp. 2d 1317 (M.D. Fla. 2003), 447, 450 Kobs v. United Wis. Ins. Co., 400 F.3d 1036 (7th Cir. 2005), 288, 294 Kocsis v. Standard Ins. Co., 142 F. Supp. 2d 241 (D. Conn. 2001), 72 Koehler v. Aetna Health Inc., 683 F.3d 182 (5th Cir. 2012), 214, 218–219 Koenig v. Auto. Data Processing, 156 F. App’x 461 (3d Cir. 2005), 135 Koert v. GE Grp. Life Assurance Co., 231 F. App’x 117 (3d Cir. 2007), 139 Kohrn v. Citigroup, No. 3:04 CV 7553, 2006 U.S. Dist. LEXIS 11691 (N.D. Ohio Mar. 21, 2006), 272 Kohrn v. Plans Adm’r Comm. of Citigroup, No. 3:04-cv-7553, 2006 U.S. Dist. LEXIS 1092 (N.D. Ohio Jan. 13, 2006), 275 Kohut v. Hartford Life & Accid. Ins. Co., 710 F. Supp. 2d 1139 (D. Colo. 2008), 425 Kolbe & Kolbe Health & Welfare Benefit Plan v. Med. College of Wis., Inc., 657 F.3d 496 (7th Cir. 2011), 303 Kolkowski v. Goodrich Corp., 448 F.3d 843 (6th Cir. 2006), 237

1311

Kolling v. Am. Power Conversion Corp., 347 F.3d 11 (1st Cir. 2003), 3 Kollman v. Hewitt Assoc., 487 F.3d 139 (3d Cir. 2007), 103, 105, 133, 134 Kolosky v. Unum Life Ins. Co. of Am., 182 F. App’x 607 (8th Cir. 2006), 319 Koons v. Aventis Pharms., Inc., 367 F.3d 768 (8th Cir. 2004), 323 Korotynska v. Metro. Life Ins. Co., 474 F.3d 101 (4th Cir. 2006), 181, 185 Kosiba v. Merck & Co., 384 F.3d 58 (3d Cir. 2004), 112, 116, 118, 121 Kottmyer v. Maas, 436 F.3d 684 (6th Cir. 2006), 263 Koval v. Washington Cnty. Redevelopment Auth., 574 F.3d 238 (3d Cir. 2009), 100, 101, 113 Krasny v. Aetna Life Ins. Co. d/b/a Aetna Healthcare, 147 F. Supp. 2d 1300 (M.D. Fla. 2001), 489 Krauss v. Oxford Health Plans, 517 F.3d 614 (2d Cir. 2008), 64, 65, 78, 79, 81 Krizek v. Cigna Group Ins., 345 F.3d 91 (2d Cir. 2003), 70

1312

Krodel v. Bayer Corp., 345 F. Supp. 2d 110 (D. Mass. 2004), 46 Krohn v. Huron Mem’l Hosp., 173 F.3d 542 (6th Cir. 1999), 268 Krolnik v. The Prudential Ins. Co. of Am., 570 F.3d 841 (7th Cir. 2009), 293, 295 Kronzer v. Hintz, 2012 WL 6734491 (9th Cir. 2012), 372 Krooth & Altman v. N. Am. Life Assur. Co., 134 F. Supp. 2d 96 (D.D.C. 2001), 525 Kuhl v. Lincoln Nat’l Health Plan of Kansas City, Inc., 999 F.2d 298 (8th Cir. 1993), 313 Kulik v. Metro. Life Ins. Co., 1998 WL 404383 (M.D. Fla. 1998), 437 Kulinski v. Medtronic Bio-Medicus, Inc., 21 F.3d 254 (8th Cir. 1994), 309 Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534 (9th Cir. 1990), 509 Kuper v. Iovenko, 66 F.3d 1447 (6th Cir. 1995), 266, 267, 268 Kuper v. Quantum Chem. Corp., 838 F. Supp. 342 (S.D. Ohio 1993), 266

1313

Kurtek v. Capital Blue Cross, 219 F. App’x 184 (3d Cir. 2007), 104–105 Kurz v. Phila. Elec. Co., 96 F.3d 1544 (3d Cir. 1996), 106, 140 Kurz v. Phila. Elec. Co., 994 F.2d 136 (3d Cir. 1993), 129 K-VA-T Food Stores, Inc. v. Hutchins, 872 F. Supp. 2d 486 (W.D. Va. Jan 20, 2012), 153 Kwatcher v. Mass. Service Employees Pension Fund, 879 F.2d 957 (1st Cir. 1989), 3, 32 Ky. Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003), 9

La. Health Serv. & Indem. Co. v. Rapides Healthcare Sys., 461 F.3d 529 (5th Cir. 2006), 210, 211–212 LaAsmar v. Phelps Dodge Corp. Life, Accid. Death & Dismemberment & Dependent Life Ins. Plan, 605 F.3d 789 (10th Cir. 2010), 405, 425, 428 LaBarge v. Life Ins. Co. of N. Am., 2001 WL 109527 (N.D. Ill. 2001), 298 LaChapelle v. Fechtor, Detwiler & Co., 901 F. Supp. 22 (D. Me. 1995), 41, 42

1314

Lacy v. Fulbright & Jaworski LLP, 405 F.3d 254 (5th Cir. 2005), 217 Ladd v. ITT Corp., 148 F.3d 753 (7th Cir. 1998), 295 Ladouceur v. Credit Lyonnais, 584 F.3d 510 (2d Cir. 2009), 68 Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d 148 (5th Cir. 2009), 217, 222 LaFoy v. HMO Colo., 988 F.2d 97 (10th Cir. 1993), 418 Lake v. Unum Life Ins. Co., 50 F. Supp. 2d 1243 (M.D. Ala. 1999), 458 Lamanna v. Special Agents Mut. Benefits Ass’n, 546 F. Supp. 2d 261 (W.D. Pa. 2008), 124 LaMantia v. Voluntary Plan Administrators, Inc., 401 F.3d 1114 (9th Cir. 2005), 350, 358, 378, 386 Lamberty v. Premier Millwork & Lumber Co., 329 F. Supp. 2d 737 (E.D. Va. 2004), 180 Land v. CIGNA, 339 F.3d 1286 (11th Cir. 2003), 436 Land v. CIGNA Healthcare of Fla., 381 F.3d 1274 (11th Cir. 2004), 437 Landree v. The Prudential Ins. Co. of Am., 833 F. Supp. 2d 1266 (W.D. Wash. 2011), 343

1315

Landwehr v. DuPree, 72 F.3d 726 (9th Cir. 1995), 307, 390 Lane v. Sunoco, Inc., 260 F. App’x 64 (10th Cir. 2008), 403 Lanfear v. Home Depot, Inc., 536 F.3d 1217 (11th Cir. 2008), 440, 442 Lang v. Aetna Life Ins. Co., 196 F.3d 1102 (10th Cir. 1999), 426 Lang v. Long-Term Disability Plan of Sponsor Applied Remote Technology, Inc., 125 F.3d 797 (9th Cir. 1997), 355 Langbecker v. Electronic Data Systems Corp., 476 F.3d 299 (5th Cir. 2007), 236 Langer v. Monarch Life Ins. Co., 879 F.2d 75 (3d Cir. 1989), 115 Langley v. Daimler-Chrysler Corp., 407 F. Supp. 2d 897 (N.D. Ohio 2005), 273 Langley v. DaimlerChrysler Corp., 502 F.3d 475 (6th Cir. 2007), 273 LaRocca v. Borden, Inc., 276 F.3d 22 (1st Cir. 2002), 35 Larsen v. Cigna Healthcare Mid-Atlantic, Inc., 224 F. Supp. 2d 998 (D. Md. 2002), 163

1316

Larson v. Northrop Corp., Civil Action No. 88-899, 1992 WL 249790 (D.D.C. Mar. 30, 1992), 526, 527 Larson v. Old Dominion Freight Line, Inc., 277 F. App’x 318 (4th Cir. 2008), 162, 193 LaRue v. De Wolfe, Boberg & Assocs., Inc., 450 F.3d 570 (4th Cir. 2006), 186 LaRue v. De Wolfe, Boberg & Assocs., Inc., 552 U.S. 248 (2008), 186, 518 LaSelle v. Pub. Serv. Co. of Colo., 988 F. Supp. 1348 (D. Colo. 1997), 423 Laslavic v. Principal Life Ins. Co., No. 11-684, 2013 WL 254450 (W.D. Pa. Jan. 23, 2013), 125 Lasser v. Reliance Standard Life Ins. Co., 130 F. Supp. 2d 616 (D. N.J. 2001), 125 Lasser v. Reliance Standard Life Ins. Co., 146 F. Supp. 2d 619 (D.N.J. 2001), 125, 126 Lasser v. Reliance Standard Life Ins. Co., 344 F.3d 381 (3d Cir. 2003), 114, 123 Laub v. Aetna Life Ins. Co., 549 F. Supp. 2d 571 (S.D.N.Y. 2008), 90 Lauder v. First Unum Life Ins. Co., 284 F.3d 375 (2d Cir. 2001), 84

1317

Laurenzano v. Blue Cross & Blue Shield of Mass., Inc. Ret. Income Trust, 134 F. Supp. 2d 189 (D. Mass. 2001), 11 LaVenture v. Prudential Ins. Co. of Am., 237 F.3d 1042 (9th Cir. 2001), 336 Law v. Ernst & Young, 956 F.2d 364 (1st Cir. 1992), 4, 397, 435 Lawrence v. Cont’l Cas. Co., 1998 U.S. Dist. LEXIS 15108 (M.D.N.C. 1998), 180 Lawrence v. Westerhaus, 749 F.2d 494 (8th Cir. 1984), 329 Lawson v. Altria Ret. Plan, 2012 U.S. Dist. LEXIS 119100 (E.D. Va. 2012), 195 Layes v. Mead Corp., 132 F.3d 1246 (8th Cir. 1998), 325 Lazorko v. Pa. Hosp., 237 F.3d 242 (3d Cir. 2000), 104 Leahy v. Raytheon Co., 315 F.3d 11 (1st Cir. 2002), 14, 16, 446 Leckey v. Stefano, 263 F.3d 267 (3d Cir. 2001), 99 Lederman v. Analex Corp., 2008 U.S. Dist. LEXIS 56640 (D. Colo. July 23, 2008), 397 Lee v. BellSouth Telecomms., Inc., 2009 WL 596006 (11th Cir. Mar. 10, 2009), 452

1318

Lee v. Blue Cross & Blue Shield of Ga., 10 F.3d 1547 (11th Cir. 1994), 446, 447, 453, 455 Lee v. Burkhart, 991 F.2d 1004 (2d Cir. 1993), 83 Lee v. Cal. Bankers Pension Trust, 154 F.3d 1075 (9th Cir. 1998), 379 Leeson v. Transamerica Disability Income Plan, 2008 U.S. App. LEXIS 11632 (9th Cir. 2008), 380 LeFebre v. Westinghouse Electric Corp., 747 F.2d 197 (4th Cir. 1984), 175 Lefkowitz v. Arcadia Trading Co., 996 F.2d 600 (2d Cir. 1993), 57 Lefler v. United HealthCare of Utah, Inc., 72 F. App’x 818 (10th Cir. 2003), 408, 421 Leger v. Tribune Co. Long Term Dis. Plan, 557 F.3d 823 (7th Cir. 2009), 288, 296, 301 Lehman v. Exec. Cabinet Salary Continuation Plan, 241 F. Supp. 2d 845 (S.D. Ohio 2003), 263 Lehmann v. Brown, 230 F.3d 916 (7th Cir. 2000), 283 Leipzig v. AIG Life Ins. Co., 362 F.3d 406 (7th Cir. 2004), 287, 296, 306 Leister v. Dovetail, Inc., 546 F.3d 875 (7th Cir. 2008), 297, 304

1319

Lemons v. Reliance Standard Life Ins. Co., No. 05-2378, 2011 WL 4017988 (E.D. Pa. Sept. 9, 2011), 135 Lennon v. Metro. Life Ins. Co., 504 F.3d 617 (6th Cir. 2007), 253 Lenoir v. Bellsouth Telecomms., Inc., 2006 WL 2982879 (N.D. Ga. Oct. 17, 2006), 443 Leon v. Quintiles Transnational Corp., 300 F. App’x 558, 2008 WL 4927361 (9th Cir. 2008), 355, 363 Leonard v. Educators Mut. Life Ins. Co., 620 F. Supp. 2d 654 (E.D. Pa. 2007), 99 Leonard v. S.W. Bell Corp. Dis. Income Plan, 408 F.3d 528 (8th Cir. 2005), 334 Leonelli v. Pennwalt Corp., 887 F.2d 1195 (2d Cir. 1989), 72 Lesuer v. HCA, Inc., 398 Fed App’x 177 (9th Cir. 2010), 357 LeTourneau Lifelike Orthotics & Prosthetics, Inc. v. WalMart Stores, Inc., 298 F.3d 348 (5th Cir. 2002), 224 Lettes v. Kinam Gold, Inc., 3 F. App’x 783 (10th Cir. 2001), 394 Leube v. UMR, 2013 WL 1164414 (S.D. Cal. 2013), 350

1320

Leuthner v. Blue Cross & Blue Shield of Ne. Pa., 454 F.3d 120 (3d Cir. 2006), 129 Levin v. Credit Suisse, Inc., 2013 WL 1296312 (S.D.N.Y. March 19, 2013), 80, 81 Levine v. United Healthcare Corp., 402 F.3d 156 (3d Cir. 2005), 103 Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321 (11th Cir. 2001), 453, 457 Lewis v. Bank of Am., 343 F.3d 540 (5th Cir. 2003), 210 Lewis v. U.F.C.W. Dist. Union Local Two & Employers Pension Fund, 273 F. App’x 765 (10th Cir. 2008), 397, 401 Leyda v. Allied Signal, Inc., 322 F.3d 199 (2d Cir. 2003), 84 Libbey-Owens-Ford Co. v. Blue Cross & Blue Shield Mut., 982 F.2d 1031 (6th Cir. 1993), 240, 251, 261, 266, 268 Lickteig v. Bus. Men’s Assur. Co. of Am., 61 F.3d 579 (8th Cir. 1995), 317 Lieberman v. United Healthcare Ins. Co., 2010 WL 903260 (S.D. Fla. Mar 10, 2010), 443 Lifecare Management Services, LLC v. Ins. Management Admin. Inc., 703 F.3d 835 (5th Cir. 2013), 228

1321

Lincoln Gen. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 425 F. Supp. 2d 738 (E.D. Va. 2006), 196 Lind v. Aetna Health, Inc., 466 F.3d 1195 (10th Cir. 2006), 398 Linda v. Rice Lake Area School Dist., 417 F.3d 704 (7th Cir. 2005), 303 Lindemann v. Mobile Oil Corp., 79 F.3d 647 (7th Cir. 1996), 247, 248, 402 Lipker v AK Steel Corp., 698 F.3d 923 (6th Cir. 2012), 265 Lippard v. UnumProvident Corp., 261 F. Supp. 2d 368 (M.D.N.C. 2003), 196 Lipsett v. Blanco, 975 F.2d 934 (1st Cir. 1992), 39 Lipsey v. Union Underwear Pension Plan, 146 F. App’x 326 (11th Cir. 2005), 459 Liss v. Fidelity Employer Servs., LLC, No. 11-2124, 2013 U.S. App. LEXIS 4082 (6th Cir. Feb. 26, 2013), 258 Liston v. Unum Corp. Officer Severance Plan, 330 F.3d 19 (1st Cir. 2003), 12, 21, 22, 25, 26 Livick v. Gillette Co., 524 F.3d 24 (1st Cir. 2008), 33, 34, 35

1322

Livik v. The Gillette Co., 524 F.3d 24 (1st Cir. 2008), 40 Ljubisavljevic v. Nat’l City Corp., No. C-1-05-202, 2007 WL 1577759 (S.D. Ohio May 30, 2007), 241 Local 6-0682 Int’l Union of Paper v. Nat’l Indus. Group Pension Plan, 342 F.3d 606 (6th Cir. 2003), 252 Local Union 2134, United Mine Workers of America v. Powhatan Fuel, Inc., 828 F.2d 710 (11th Cir. 1987), 463, 464, 471 Locher v. Unum Life Ins. Co. of Am., 389 F.3d 288 (2d Cir. 2004), 70, 76 Locher v. Unum Life Ins. Co. of Am., 2002 WL 362769 (S.D.N.Y. Mar. 7, 2002), 75 Lockhart v. Blue Cross Blue Shield of Tenn., 503 F. App’x 926 (11th Cir. 2013), 435 Lockhart v. United Mine Workers of Am. 1974 Pension Trust, 5 F.3d 74 (4th Cir. 1993), 161 Lodge v. Shell Oil Co., 747 F.2d 16 (1st Cir. 1984), 38 Lohmann v. Green Bay Packaging, Inc., 1994 U.S. App. LEXIS 31020 (10th Cir. Nov. 7, 1994), 394 Lone Star OB/GYN Assocs. v. Aetna Health Inc., 579 F.3d 525 (5th Cir. 2009), 212 Long Island Lighting Co., In re, 129 F.3d 268 (2d Cir. 1997), 257

1323

Longaberger Co. v. Kolt, 586 F.3d 459 (6th Cir. 2009), 269, 276, 277, 485 Lopez v. Premium Auto Acceptance Corp., 389 F.3d 504 (5th Cir. 2004), 230 LoPresti v. Terwilliger, 126 F.3d 34 (2d Cir. 1997), 75 Loranger v. Stierheim, 3 F.3d 356 (11th Cir. 1993), 478 Lordmann Enters. v. Equicor, Inc., 32 F.3d 1529 (11th Cir. 1994), 436, 437 Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598 (6th Cir. 2007), 268 Loren v. Blue Cross & Blue Shield of Mich., 2006 U.S. Dist. LEXIS 53784 (E.D. Mich. Aug. 3, 2006), 272 Loughray v. Hartford Group Life Ins. Co., 366 F. App’x 913 (10th Cir. 2010), 415 Love v. Dell Inc., 551 F.3d 333 (5th Cir. 2008), 217 Love v. Nat’l City Corp. Welfare Benefits Plan, 574 3d 392 (7th Cir. 2009), 296, 298 Lovern v. Gen. Motors Corp., 121 F.3d 160 (4th Cir. 1997), 204 Loving v. Pirelli Cable Corp., 11 F. Supp. 2d 480 (E.D. Pa. 1998), 136

1324

Lowe v. McGraw-Hill Cos., Inc., 361 F.3d 335 (7th Cir. 2004), 302 Lowe v. Unum Life Ins. Co. of Am., 2007 WL 4374020 (E.D. Cal. 2007), 377 Lowell v. Drummond, Woodsum & MacMahon Emp. Med. Plan, 2004 WL 437478 (D. Me. Mar. 4, 2004), 23 Luby v. Teamsters Health, Welfare & Pension Trust Funds, 944 F.2d 1176 (3d Cir. 1991), 118, 121, 122, 514 Lucaskevge v. Mollenberg, 11 Empl. Benefits Cas. (BNA) 1355 (W.D.N.Y. 1989), 84, 85 Lucent Death Benefits Litig., In re, 541 F.3d 250 (3d Cir. 2008), 115, 116 Luckenbaugh v. Ebenx, No. 06-1919, 2007 WL 846570 (M.D. Pa. Mar. 19, 2007), 107 Lukas v. United Behavioral Health, 2013 U.S. App. LEXIS 1230 (9th Cir. 2013), 380 Lumbermens Mut. Cas. Co. of Ill. v. Timms & Howard, Inc., 108 F.2d 497 (2d Cir. 1939), 77 Lumpkin v. Envirodyne Indus., 933 F.2d 449 (7th Cir. 1991), 301 Lundquist v. Cont’l Cas. Co., 394 F. Supp. 2d 1230 (C.D. Cal. 2005), 358

1325

Luppino v. Sedgwick Claims Mgmt., No. 08-cv-5315, 2010 WL 1999316 (D.N.J. May 19, 2010), 105, 114 Lutz v. Philips Elecs. N. Am. Corp., 347 F. App’x 773 (3d Cir. 2009), 140 Lynd v. Reliance Standard Life Insurance Company, 94 F.3d 979 (5th Cir. 1996), 235 Lynker v. Johnson & Johnson Pension Comm., 2007 WL 403162 (M.D. Fla. 2007), 477 Lynn v. Berg Mech., Inc., 582 So. 2d 902 (La. App. 2d Cir. 1991), 230

Mack v. Kuckenmeister, 619 F.3d 1010 (9th Cir. 2010), 352 MacKay v. Rayonier, Inc., 25 F. Supp. 2d 47 (D. Conn. 1998), 64 Macklin v. Ret. Plan for Emps. of Kan. Gas & Elec. Co., 1996 U.S. App. LEXIS 26461 (10th Cir. Oct. 9, 1996), 425 MacLachlan v. ExxonMobil Corp., 350 F.3d 472 (5th Cir. 2003), 216 Madden v. ITT Long Term Disability Plan for Salaried Emps., 914 F.2d 1279 (9th Cir. 1990), 362

1326

Madera v. Marsh, USA, Inc., 426 F.3d 56 (1st Cir. 2005), 11, 45 Madonia v. Blue Cross & Blue Shield of Va., 11 F.3d 444 (4th Cir. 1993), 143, 144, 148, 149 Maez v. Mountain States Tel. & Tel., 54 F.3d 1488 (10th Cir. 1995), 419 Maher v. Mass. Gen. Hosp. Long Term Dis. Plan, 665 F.3d 289 (1st Cir. 2011), 14 Maher v. Strachan Shipping Co., 68 F.3d 951 (5th Cir. 1995), 231 Maida v. Life Ins. Co. of N.A., 949 F. Supp. 1087 (S.D.N.Y. 1997), 68 Maine Ed. Ass’n Benefits Trust v. Cioppa, 842 F. Supp. 2d 373 (D. Me. 2012), 10 Mainieri & Iarolo v. Bd. of Trs. of the Operating Eng’rs Local 825 Pension Plan, No. 07-1133, 2008 WL 4224924 (D.N.J. Sept. 10, 2008), 119, 120 Majeski v. Metro. Life Ins. Co., 590 F.3d 478 (7th Cir. 2009), 288, 296, 298 Majka v. Prudential Ins. Co. of Am., 171 F. Supp. 2d 410 (D.N.J. 2001), 108 Makar v. Health Care Corp., 872 F.2d 80 (4th Cir. 1989), 156, 157, 158

1327

Malik v. Philip Morris, USA, Inc., 2006 U.S. Dist. LEXIS 41046 (E.D. Va. 2006), 195 Mallon v. Trust Co. of N.J. Severance Pay Plan, 282 F. App’x 991 (3d Cir. 2008), 124 Maltby v. Absolut Spirits Co., 2009 WL 800142 (S.D. Fla. 2009), 451 Managed Care Litig., In re, 595 F. Supp. 2d 1349 (S.D. Fla. 2008), 444 Managed Care Litig., In re, 2009 WL 742678 (S.D. Fla. 2009), 447 Manginaro v. Welfare Fund of Local 771, 21 F. Supp. 2d 284 (S.D.N.Y. 1998), 90 Maniace v. Commerce Bank of Kansas City, 40 F.3d 264 (8th Cir. 1994), 327 Maniatty v. UnumProvident Corp., 218 F. Supp. 2d 500 (S.D.N.Y. 2002), 95 Manning v. Am. Republic Ins. Co., 604 F.3d 1030 (8th Cir. 2010), 318, 324 Manning v. Hayes, 212 F.3d 866 (5th Cir. 2001), 219 Mansker v. TMG Life Ins. Co., 54 F.3d 1322 (8th Cir. 1995), 319, 320, 330, 334

1328

Marajh v. Broadspire Servs., Inc., 2009 WL 1140063 (S.D. Fla. Apr. 28, 2009), 480–481 Marantz v. Permanent Medical Group Inc. Long Term Dis. Plan, 2006 U.S. Dist. LEXIS 87258 (N.D. Ill. 2006), 293 Marantz v. Permanente Med. Group, Inc. Long Term Dis. Plan, 687 F.3d 320 (7th Cir. 2012), 304, 306 Marcin v. Reliance Standard Life Ins. Co., 895 F. Supp. 2d 105 (D.D.C. 2012), 516 Marciniak v. Prudential Fin. Ins. Co. of Am., 184 F. App’x 266 (3d Cir. 2006), 121 Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941 (9th Cir. 2009), 338, 345, 346 Marks v. Indep. Blue Cross, 71 F. Supp. 2d 432 (E.D. Pa. 1999), 133 Marks v. Newcourt Credit Group, 342 F.3d 444 (6th Cir. 2003), 242, 243, 254, 263, 274 Marks v. Watters, 322 F.3d 316 (4th Cir. 2003), 154, 185 Marquardt v. N. Am. Car Corp., 652 F.2d 715 (7th Cir. 1981), 372, 373 Marquette Gen. Hosp. v. Goodman Forest Ind., 315 F.3d 629 (6th Cir. 2002), 250, 253

1329

Marrs v. Motorola, Inc., 577 F.3d 783 (7th Cir. 2007), 288 Marshall v. Unum Life Ins. Co., 13 F.3d 282 (8th Cir. 1994), 333 Martellacci v. Guardian Life Ins. Co. of Am., No. 08-2541, 2009 WL 440289 (E.D. Pa. Feb. 19, 2009), 103 Martin v. Ark. Blue Cross & Blue Shield, 299 F.3d 966 (8th Cir. 2002), 330 Martin v. Blue Cross & Blue Shield of Va., Inc., 115 F.3d 1201 (4th Cir. 1997), 190 Martin v. Feilen, 965 F.2d 660 (8th Cir. 1992), 328 Martin v. Walton, 773 F. Supp. 1524 (S.D. Fla. 1991), 477 Martinez v. Schlumberger, 338 F.3d 407 (5th Cir. 2003), 225 Martinez-Claib, M.D. v. Bus. Men’s Assur. Co. of Am., 349 F. App’x 522 (11th Cir. 2009), 438 Martinez-Claib v. Bus. Men’s Assur. Co. of Am., 2008 WL 899294 (M.D. Fla. Mar. 31, 2008), 480 Martucci v. Hartford Life Ins. Co., 863 F. Supp. 2d 269 (S.D.N.Y. 2012), 66, 95

1330

Marvel v. United States, 719 F.2d 1507 (10th Cir. 1983), 394 Masella v. Blue Cross & Blue Shield of Conn., Inc., 936 F.2d 98 (2d Cir. 1991), 65, 70 Mason v. Cont’l Group, Inc., 763 F.2d 1219 (11th Cir. 1985), 440, 442 Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985), 132, 163, 226, 263, 515 Massachusetts v. Morash, 490 U.S. 107 (1989), 395 Massey v. Helman, 196 F.3d 727 (7th Cir. 2000), 285 Mathews v. Sears Pension Plan, 144 F.3d 461 (7th Cir. 1998), 298 Matinchek v. John Alden Life Ins. Co., 93 F.3d 96 (3d Cir. 1996), 99 Matschiner v. Hartford Life & Acc. Ins. Co., 622 F.3d 885 (8th Cir. 2010), 321 Mattox v. Life Ins. Co. of Am., 625 F. Supp. 2d 1304 (N.D. Ga. 2008), 449 Maune v. I.B.E.W., Local No. 1, Health & Welfare Fund, 83 F.3d 959 (8th Cir. 1996), 321, 323 Maxwell v. Ameritech Corp., Inc., 7 F. Supp. 2d 905 (E.D. Mich. 1998), 255

1331

Maxwell v. Blue Cross Blue Shield Healthcare Plan of Ga., 2009 WL 734115 (N.D. Ga. Mar. 18, 2009), 480 May v. Lakeland Reg’l Med. Ctr., 2010 WL 376088 (M.D. Fla. Jan. 25, 2010), 479 May v. Nat’l Bank of Commerce, 390 F. Supp. 2d 674 (W.D. Tenn. 2004), 269 May v. Shuttle, Inc., 129 F.3d 165 (D.C. Cir. 1997), 516 Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420 (5th Cir. 2004), 211 Mayeske v. Int’l Assoc. of Fire Fighters, 905 F.2d 1548 (D.C. Cir. 1990), 493 Maynard v. Merrill Lynch & Co., 2008 WL 4790670 (M.D. Fla. Oct. 28, 2008), 447 Mazet v. Halliburton Co. Long-Term Disability Plan, 2009 WL 981019 (D. Ariz. 2009), 374 Mazet v. Halliburton Co. LTD Plan, 2008 U.S. Dist. LEXIS 9769 (D.C. Ariz. 2008), 379 Mazur v. Hartford Life & Acc. Co., No. 06-1045, 2007 WL 4233400 (W.D. Pa. Nov. 28, 2007), 137 Mazzacoli v. Cont’l Cas. Co. 332 F. Supp. 2d 1376 (M.D. Fla. 2004), 448

1332

McAfee v. Metro. Life Ins. Co., 625 F. Supp. 2d 956 (E.D. Cal. 2008), 369, 377 McAteer v. Silverleaf Resorts Inc., 514 F.3d 411 (5th Cir. 2008), 210 McBride v. Hartford Life & Acc. Ins. Co., No. 05-6172, 2006 WL 279113 (E.D. Pa. Feb. 3, 2006), 105 McCall v. Burlington N./Santa Fe Co., 237 F.3d 506 (5th Cir. 2000), 220 McCann v. Unum Provident, No. 11-3241, 2013 WL 396182 (D.N.J. Jan. 31, 2013), 99 McCartha v. Nat’l City Corp., 419 F.3d 437 (6th Cir. 2005), 274 McCaughan v. Bayer Corp., No. 04-1401, 2007 WL 906267 (W.D. Pa. Mar. 22, 2007), 129 McCauley v. First Unum Life Ins. Co., 551 F.3d 126 (2d Cir. 2008), 66 McCay v. Drummond Co., Inc., 2013 WL 616923 (11th Cir. Feb. 20, 2013), 441 McClelland v. Gronwaldt, 155 F.3d 507 (5th Cir. 1998), 210 McClure v. Zoecon, Inc., 936 F.2d 777 (5th Cir. 1991), 230

1333

McCoy v. Bd. of Trs. of the Laborers’ Int’l Union, 188 F. Supp. 2d 461 (D.N.J. 2002), 108 McCoy v. Mass. Inst. of Tech., 950 F.2d 13 (1st Cir. 1991), 41 McCravy v. Metro. Life Ins. Co., 650 F.3d 414 (4th Cir. 2011), 181, 182 McCravy v. Metro. Life Ins. Co., 690 F.3d 176 (4th Cir. 2012), 166, 181, 185 McCready v. Standard Ins. Co., 417 F. Supp. 2d 684 (D. Md. 2006), 175 McCurdy v. Metro. Life Ins. Co., No. S-05-0634-WBSEFB, 2007 WL 915177 (E.D. Cal. Mar. 23, 2007), 361 McDannold v. Star Bank, N.A., 261 F.3d 478 (6th Cir. 2001), 269–270 McDonald v. Pension Plan of NYSA-ILA Pension Trust Fund, 2002 WL 1974054 (S.D.N.Y. Aug. 27, 2002), 87 McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, 2006 U.S. App. LEXIS 13965 (2d Cir. 2006), 86 McDonough v. Aetna Life Ins. Co., 2010 U.S. Dist. LEXIS 35237 (W.D. Va. Apr. 8, 2010), 179

1334

McDonough v. Horizon Blue Cross Blue Shield of N.J., Inc., No. 09-571, 2011 WL 4455994 (D.N.J. Sept. 23, 2011), 126 McDougall v. Pioneer Ranch Ltd. Partnership, 494 F.3d 571 (7th Cir. 2007), 298 McElroy v. SmithKline Beecham Health & Welfare Benefits Trust Plan, 340 F.3d 139 (3d Cir. 2003), 114, 138 McElwaine v. U.S. West, Inc., 176 F.3d 1167 (9th Cir. 1999), 369, 370, 375 McFadden v. R & R Engine & Mach. Co., 102 F. Supp. 2d 458 (N.D. Ohio 2000), 269 McGahey v. Harvard Univ. Flexible Benefits Plan, 685 F. Supp. 2d 168 (D. Mass. 2009), 27, 28, 38, 39 McGarrah v. Hartford Life Ins. Co., 234 F.3d 1026 (8th Cir. 2000), 318 McGee v. Equicor-Equitable HCA Corp., 953 F.2d 1192 (10th Cir. 1992), 404, 408, 422 McGowin v. ManPower Int’l, Inc., 363 F.3d 556 (5th Cir. 2004), 213, 214 McGraw v. Prudential Ins. Co. of Am., 137 F.3d 1253 (10th Cir. 1998), 401, 402, 403, 404, 407, 428

1335

McIntyre v. Aetna Life Ins. Co., 581 F. Supp. 2d 749 (W.D. Va. 2008), 190 McKeehan v. Cigna Life Ins. Co., 344 F.3d 789 (8th Cir. 2003), 315 McKeldin v. Reliance Standard Life Ins. Co., 254 F. App’x 964, 2007 WL 3022526 (4th Cir. 2007), 168 McKinsey v. Sentry Ins., 986 F.2d 401 (10th Cir. 1993), 397 McKnight v. S. Life & Health Ins. Co., 758 F.2d 1566 (11th Cir. 1985), 474, 476 McLemore v. Regions Bank, 682 F.3d 414 (6th Cir. 2012), 270, 272 McLendon v. Cont’l Group, Inc., No. 83-1340, 1986 WL 11789 (D.N.J. 1986), 133 McLeod v. Hartford Life & Acc. Ins. Co., 372 F.3d 618 (3d Cir. 2004), 114 McLeod v. Oregon Lithoprint, Inc., 102 F.3d 376 (9th Cir. 1996), 366 McMahan v. New England Mutual Life Ins. Co., 888 F.2d 426 (6th Cir. 1989), 252 McMahon v. Digital Equip. Corp., 162 F.3d 28 (1st Cir. 1998), 6, 9, 41

1336

McMahon v. McDowell, 794 F.2d 100 (3d Cir. 1986), 131–132 McMurtry v. Wiseman, 445 F. Supp. 2d 756 (W.D. Ky. 2006), 243 McNeese v. Health Plan Mktg., Inc., 647 F. Supp. 981 (N.D. Ala. 1986), 471 McOsker v. Paul Revere Life Ins. Co., 279 F.3d 586 (8th Cir. 2002), 333 McPherson v. Emps.’ Pension Plan of Am. Re-Ins. Co., 33 F.3d 253 (3d Cir. 1994), 136 McRae v. Rogosin Converters, Inc., 301 F. Supp. 2d 471 (M.D.N.C. 2004), 177 McVicker v. Blue Shield of Ca., 2007 WL 3407433 (N.D. Cal. 2007), 384 MDPhysicians & Assoc., Inc. v. State Bd. of Ins., 957 F.2d 178 (5th Cir. 1992), 208 Me. Coast Mem’l Hosp. v. Sargent, 369 F. Supp. 2d 61 (D. Me. 2005), 30 Mead v. Arthur Anderson LLP, 309 F. Supp. 2d 596 (S.D.N.Y. 2004), 82 Mead v. Intermec Tec. Corp., 271 F.3d 715 (8th Cir. 2001), 332

1337

Meade v. Pension Appeal & Review Comm., 966 F.2d 190 (6th Cir. 1992), 276 Med. Univ. Hosp. Authority/Med. Ctr. of the Med. Univ. of S.C. v. Oceana Resorts, LLC, No. 2:11-cv-1522, 2012 U.S. Dist. LEXIS 27897 (D.S.C. Mar. 2, 2012), 153 Medina v. Metro. Life Ins. Co., 588 F.3d 41 (1st Cir. 2009), 10, 11, 12 Medina v. Triple-S Vida, Inc., 832 F. Supp. 2d 117 (D. Puerto Rico 2011), 31 Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211 (5th Cir. 1999), 215 Mein v. Carus Corp., 241 F.3d 581 (7th Cir. 2001), 297 Mein v. Pool Co. Disabled Int’l Emps. Long Term Disability Benefit Plan, 989 F. Supp. 1337 (D. Colo. 1998), 400, 421 Mello v. Sara Lee Corp., 431 F.3d 440 (5th Cir. 2005), 219 Melluish v. Provident Life & Accid. Ins. Co., 2001 U.S. Dist. LEXIS 4595 (W.D. Mich. Feb. 26, 2001), 274 Member Servs. Life Ins. Co. v. Am. Nat’l Bank & Trust Co. of Sapulpa, 130 F.3d 950 (10th Cir. 1997), 408, 410 Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236 (5th Cir. 1990), 205, 207, 229, 496

1338

Menz v. Procter & Gamble Health Care Plan, 520 F.3d 865 (8th Cir. 2008), 315, 326 Meraou v. Williams Co. Long Term Disability Plan, 221 F. App’x 696 (10th Cir. 2007), 413, 416 Meredith v. Time Ins. Co., 980 F.2d 352 (5th Cir. 1993), 205, 206, 208 Merigan v. Liberty Life Assur. Co. of Boston, 826 F. Supp. 2d 388 (D. Mass. 2011), 14, 43–44 Merrimon v. Unum Life Ins. Co. of Am., 845 F. Supp. 2d 310 (D. Me. 2012), 33 Mers v. Marriott Int’l Group Accidental Death & Dismemberment Plan, 144 F.3d 1014 (7th Cir. 1998), 287 Mertens v. Hewitt Assoc., 948 F.2d 607 (9th Cir. 1991), 369 Mertens v. Hewitt Assocs., 508 U.S. 248 (1993), 92, 187, 266, 482 Messer v. Prudential Ins. Co. of Am., 2013 U.S. Dist. LEXIS 45663 (W.D.N.C. 2013), 193 Metoyer v. Am. Int’l Life Assur. of N.Y., 296 F. Supp. 2d 745 (S.D. Tex. 2003), 207 Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), 14, 17–19, 22, 23, 26, 28, 65, 69, 70, 110–111, 112, 119, 120, 122, 123, 161, 164, 168, 169, 170, 176, 216, 222, 250,

1339

255, 256, 288, 289, 293, 295, 317, 318, 322, 323, 325, 354, 355, 356, 357, 360, 406, 409, 411, 413, 414, 444, 446, 447, 448, 449, 451, 452, 453, 454, 455, 456, 458, 504–505 Metro. Life Ins. Co. v. Johnson, 297 F.3d 558 (7th Cir. 2002), 283 Metro. Life Ins. Co. v. Price, 501 F.3d 271 (3d Cir. 2007), 106 Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987), 281 Metropolitan Life Insurance Co. v. Leich-Brannan, 812 F. Supp. 2d 729 (E.D. Va. 2011), 191 Meyer v. Berkshire Life Ins. Co., 250 F. Supp. 2d 544 (D. Md. 2003), 178, 189 Meyer v. Ins. Co. of Am., 1998 WL 709854 (S.D.N.Y. 1998), 76 Miami Valley Hosp. v. Cmty. Ins. Co., No. 3:05-cv-297, 2006 WL 2252669 (S.D. Ohio Aug. 7, 2006), 243 Mich. Affiliated Healthcare Sys., Inc. v. Lansing Gen. Hosp., 139 F.3d 546 (6th Cir. 1998), 267 Mich. United Food & Commercial Workers Union v. Muir Co., 992 F.2d 594 (6th Cir. 1993), 276 Michaels v. Equitable Life Assurance Soc’y, 305 F. App’x 896 (3d Cir. 2009), 110

1340

Michigan Affiliated Healthcare Sys., Inc. v. CC Sys. Corp. of Mich., 139 F.3d 546 (6th Cir. 1998), 261 Mick v. Ravenswood Aluminum Corp., 178 F.R.D. 90 (S.D. W. Va. 1998), 201 Mid Atlantic Medical Services, LLC v. Sereboff, 407 F.3d 212 (4th Cir. 2005), 191 Midgett v. Wash. Group Int’l Long Term Dis. Plan, 561 F.3d 889 (8th Cir. 2009), 314, 331 Midgley v. Rayrock Mines, Inc., 374 F. Supp. 2d 1039 (D.N.M. 2005), 426 Mikrut v. Unum Life Ins. Co. of Am., 2006 U.S. Dist. LEXIS 92265 (D. Conn. Dec. 20, 2006), 72 Miles v. N.Y. State Teamsters Conference Pension & Ret. Fund Emp. Pension Benefit Plan, 698 F.2d 593 (2d Cir. 1983), 90 Miles v. Principal Life Ins. Co., 720 F.3d 472 (2d. Cir. 2013), 68 Militello v. Cent. States, 681 (7th Cir. 2004), 287 Millensifer v. Ret. Plan for Salaried Emp. of Cotter Corp., 968 F.2d 1005 (10th Cir. 1992), 404 Miller v. Am. Airlines, Inc., 632 F.3d 837 (3d Cir. 2011), 110, 111–112, 124, 137, 138

1341

Miller v. Ameritech Long Term Disability Plan, 584 F. Supp. 2d 1106 (C.D. Ill. 2008), 304 Miller v. Bank of Am. Corp., 401 F. Supp. 1372 (N.D. Ga. 2005), 448 Miller v. Fortis Benefits Ins. Co., 475 F.3d 516 (3d Cir. 2007), 140 Miller v. Mellon Long Term Disability Plan, 721 F. Supp. 2d 415 (W.D. Pa. 2010), 126 Miller v. Mellon Long Term Disability Plan, No. 09-1166, 2010 WL 2595568 (W.D. Pa. June 25, 2010), 131 Miller v. Mellon Long Term Disability Plan, No. 09-1166, 2011 WL 4345813 (W.D. Pa. Sept. 15, 2011), 122 Miller v. Metro. Life Ins. Co., 925 F.2d 979 (6th Cir. 1991), 247, 514 Miller v. Monumental Life Ins. Co., 502 F.3d 1245 (10th Cir. 2007), 397, 408, 428 Miller v. PPG Indus. Inc., 278 F. Supp. 2d 826 (W.D. Ky. 2003), 273 Miller v. Taylor Insulation Co., 39 F.3d 755 (7th Cir. 1994), 280

1342

Miller v. United Welfare Fund, 72 F.3d 1066 (2d Cir. 1995), 68, 70, 74, 76, 83, 84 Millsap v. McDonnell Douglas Corp., 368 F.3d 1246 (10th Cir. 2004), 418, 428 Milofsky v. Am. Airlines, Inc., 442 F.3d 311 (5th Cir. 2006), 213 Milone v. Exclusive Healthcare, Inc., 244 F.3d 615 (8th Cir. 2001), 321 Minn-Kota Ag Prods., Inc. v. Carlson, 684 N.W.2d 60 (N.D. 2004), 332 Mirabile v. Life Ins. Co. of N. Am., 293 F. App’x 213 (4th Cir. 2008), 196, 197 Mitchell v. Dialysis Clinic, Inc., 18 Fed. App’x 349 (6th Cir. 2001), 253 Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3d Cir. 1997), 116, 121, 124, 125 Mitchell v. Fortis Benefits Ins. Co., 163 F. App’x 183, 2005 WL 1793641 (4th Cir. 2005), 192 Mitchell v. Hartford Life & Accid. Ins. Co., 865 F. Supp. 2d 1142 (D. Utah 2012), 399 Mitchell v. Shearson Lehman Bros., Inc., 1997 WL 277381 (S.D.N.Y. 1997), 90

1343

Mitzel v. Anthem Life Ins. Co., 351 Fed. App’x 74 (6th Cir. 2009), 251, 253 Mobley v. Cont’l Cas. Co., 383 F. Supp. 2d 80 (D.D.C. 2005), 502, 503, 513 Mobley v. Cont’l Cas. Co., 405 F. Supp. 2d 42 (D.D.C. 2005), 524 Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227 (10th Cir. 2002), 399 Mogck v. Unum Life Ins. Co. of Am., 292 F.3d 1025 (9th Cir. 2002), 382 Moller v. El Campo Aluminum Co., 97 F.3d 85 (5th Cir. 1996), 223 Monast v. Johnson & Johnson, 2009 WL 2973309 (D. Mass. Sept. 14, 2009), 24 Mondry v. Am. Family Mut. Ins. Co., 557 F.3d 781 (7th Cir. 2009), 300 Mongeluzo v. Baxter Travenol, 46 F.3d 938 (9th Cir. 1995), 362, 391 Monkelis v. Mobay Chem., 827 F.2d 935 (3d Cir. 1987), 136 Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321 (2d Cir. 2011), 60

1344

Montemayor v. Corp. Health Ins. Inc., 536 U.S. 935 (2002), 209 Montgomery v. Metro. Life Ins. Co., 2006 WL 1455684 (N.D. Ga. 2006), 476 Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623 (9th Cir. 2009), 354, 355, 356, 357, 362, 363 Montrose Med. Grp. Participating Sav. Plan v. Bulger, 243 F.3d 773 (3d Cir. 2001), 140 Moody v. Skaliy, 2007 WL 1496691 (N.D. Ga. 2007), 456 Moon v. Am. Home Assur. Co., 888 F.2d 86 (11th Cir. 1989), 452, 456, 457 Moon v. BWX Technologies, 2013 WL 3462692 (W.D. Va. 2013), 183 Moon v. BWX Technology, Inc., 2012 WL 5992209 (4th Cir. 2012), 181 Moon v. BWX Techs., Inc., 742 F. Supp. 2d 827 (W.D. Va. 2010), 204 Moon v. Unum Provident Corp., 461 F.3d 639 (6th Cir. 2006), 271 Moore v. Berg Enters., Inc., 3 F. Supp. 2d 1245 (D. Utah 1998), 421

1345

Moore v. Berg Enters., Inc., 1999 U.S. App. LEXIS 30481 (10th Cir. Nov. 23, 1999), 420, 426 Moore v. Blue Cross & Blue Shield of the Nat’l Capital Area, 70 F. Supp. 2d 9 (D.D.C. 1999), 494, 501, 503, 506, 507, 508, 515 Moore v. Capitalcare, Inc., 461 F.3d 1 (D.C. Cir. 2006), 529, 530 Moore v. INA Life Ins. Co., 66 F. Supp. 2d 378 (E.D.N.Y. 1999), 76 Moore v. Lafayette Life Ins. Co., 458 F.3d 416 (6th Cir. 2006), 238, 254, 255, 256, 260, 261, 266–267, 271, 272 Moore v. Life Ins. Co. of N. Am., 278 F. App’x 238, 2008 WL 2076376 (4th Cir. 2008), 169 Moore v. Life Ins. Co. of N. Am., 708 F. Supp. 2d 597 (N.D. W. Va. 2010), 169 Moore v. Unum Provident Corp., 116 F. App’x 416, 2004 WL 2538211 (4th Cir. 2004), 174 Moorman v. UnumProvident Corp., 464 F.3d 1260 (11th Cir. 2006), 431, 432, 433, 434 Moothart v. Bell, 21 F.3d 1499 (10th Cir. 1994), 422 Morais v. Cent. Beverage Corp. Union Emps. Supp. Ret. Plan, 167 F.3d 709 (1st Cir. 1999), 10, 19

1346

Morales-Alejandro v. Med. Card Sys., Inc., 486 F.3d 693 (1st Cir. 2007), 22, 30 Morency v. Rudnick & Wolfe Staff Group Long Term Dis. Ins. Plan, 2001 WL 737531 (M.D. Fla. Jan. 31, 2001), 445 Morgan v. Unum Life Ins. Co. of Am., 346 F.3d 1173 (8th Cir. 2003), 318 Morganthaler v. First Unum Life Ins. Co., 2006 WL 2463656 (S.D.N.Y. Aug. 22, 2006), 89 Moriarty v. Svec, 429 F.3d 710 (7th Cir. 2005), 302, 303 Morin v. Nu-Way Plastering, Inc., 2005 U.S. Dist. LEXIS 37867 (E.D.N.Y. 2005), 86, 87 Morningred v. Delta Family-Care & Survivorship Plan, C.A. No. 10-272-MPT, 2011 WL 1195771 (D. Del. Mar. 29, 2011), 108 Morris v. Paul Revere Ins. Grp., 986 F. Supp. 872 (D.N.J. 1997), 122 Morrison v. Marsh & McLennan Cos., Inc., 326 F. Supp. 2d 883 (E.D. Mich. 2004), 275 Morrison v. Regions Fin. Corp., No. 10-2843-STA-tmp, 2013 U.S. Dist. LEXIS 57921 (W.D. Tenn. Apr. 23, 2013), 253

1347

Morstein v. Nat’l Ins. Servs., Inc., 93 F.3d 715 (11th Cir. 1996), 436 Morton v. Smith, 91 F.3d 867 (7th Cir. 1996), 20 Moses v. American Fed’n of Musicians & Employers’ Pension Fund, 2011 WL 2792350 (D. Nev. 2011), 382 Moss v. Unum Life Ins. Co., 495 Fed. App’x 583 (6th Cir. 2012), 254, 255, 257 Mote v. Aetna Life Ins. Co., 435 F. Supp. 2d 827 (N.D. Ill. 2006), 305 Muccino v. Long Term Dis. Income Plan for Choices Eligible Employees of Johnson & Johnson, No. 11-3641, 2012 WL 2119152 (D.N.J. June 11, 2012), 117, 120, 121 Muller v. First Unum Life Ins. Co., 341 F.3d 119 (2d Cir. 2003), 74, 76, 77 Muller v. First Unum Life Ins. Co. of Am., 166 F. Supp. 2d 706 (N.D.N.Y. 2001), 71 Mullins v. AT&T Corp., 290 F. App’x 642, 2008 WL 4073848 (4th Cir. 2008), 169 Mullins v. AT&T Corp., 2011 WL 1491223 (4th Cir. 2011), 172 Mullins v. AT&T Corp., Nos. 04-2135, 04-2136, 07-1717, 424 Fed. App’x 217 (4th Cir. 2011), 162

1348

Muniz v. Amec Const. Management, Inc., 623 F.3d 1290 (9th Cir. 2010), 357, 362, 363 Munsey v. Tactical Armor Prods., Inc., 2008 WL 4442550 (E.D. Tenn. Sept. 25, 2008), 272 Murchison v. Inter-City Mort. Corp. Profit Sharing & Pen. Plans, 503 F. Supp. 2d 184 (D.D.C. 2007), 530 Murdock v. Unum Provident Corp., 265 F. Supp. 2d 539 (W.D. Pa. 2002), 99, 101 Murphy v. Deloitte & Touche Group Ins. Plan, 619 F.3d 1151 (10th Cir. 2010), 410, 411, 412 Murphy v. IBM Corp., 23 F.3d 719 (2d Cir. 1994), 65, 67 Murphy v. Inexco Oil Co., 611 F.2d 570 (5th Cir. 1980), 229 Murphy v. Reliance Standard Life Ins. Co., 247 F.3d 1313 (11th Cir. 2001), 478 Murphy v. Wal-Mart, 928 F. Supp. 700 (E.D. Tex. 1996), 507 Murray v. Anderson Bjornstad Kane Jacobs, Inc., 2011 WL 617384 (W.D. Wash. 2011), 343 Murren v. American Nat. Can Co., No. 99-3136, 2000 WL 116067 (E.D. Pa. Jan. 27, 2000), 107

1349

Musmeci v. Schwegmann Giant Super Markets, Inc., 332 F.3d 339 (5th Cir. 2003), 208, 229, 236 Mut. Funds Inv. Litig., In re, 529 F.3d 207 (4th Cir. 2008), 186 Mut. Life Ins. Co. v. Yampol, 706 F. Supp. 596 (N.D. Ill. 1989), 301 Mutual Funds Investment Litigation, In re, 403 F. Supp. 2d 434 (D. Md. 2005), 183, 189 Myers v. Hercules, Inc., 253 F.3d 761 (4th Cir. 2001), 179 Myers v. Iron Workers Dist. Council of S. Ohio & Vicinity Pension Trust, No. 2:04-CV-966, 2005 U.S. Dist. LEXIS 39191 (S.D. Ohio Nov. 7, 2005), 251 Myers v. Prudential Ins. Co. of Am., 581 F. Supp. 2d 904 (E.D. Tenn. 2008), 255, 256, 257 Myers-Garrison v. Johnson & Johnson, 210 F.3d 425 (5th Cir. 2000), 229

N. Am. Coal Corp. v. Roth, 395 F.3d 916 (8th Cir. 2005), 332 N. Utah Healthcare Corp. v. BC Life & Health Ins. Co., 448 F. Supp. 2d 1288 (D. Utah 2006), 400

1350

Nachwalter v. Christie, 805 F.2d 956 (11th Cir. 1986), 438, 473, 474 Nagele v. Elec. Data Sys. Corp., 193 F.R.D. 94 (W.D.N.Y. 2000), 69 Nagrone v. Davis, 368 F. App’x 743 (9th Cir. 2010), 341 Nagy v. De Wese, 705 F. Supp. 2d 456 (E.D. Pa. 2010), 105 Nale v. Ford Motor Co. UAW Ret. Plan, 703 F. Supp. 2d 714 (E.D. Mich. 2010), 275 Nance v. Sun Life Assur. Co. of Can., 294 F.3d 1263 (10th Cir. 2002), 403, 405, 416 Narda v. Rhode Island Hospital Trust National Bank, 744 F. Supp. 685 (D. Md. 1990), 188 National Cos. Health Plan v. St. Joseph’s Hospital, 929 F.2d 1558 (11th Cir. 1991), 475 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992), 98, 144, 206, 238, 280, 310, 336, 394, 492 Nat’l Rehab. Hosp. v. Manpower Int’l, Inc., 3 F. Supp. 2d 1457 (D.D.C. 1998), 494, 495 Nat’l Renal Alliance, LLC v. Blue Cross & Blue Shield of Ga., Inc., 598 F. Supp. 2d 1344 (N.D. Ga. 2009), 439

1351

Nat’l Sec. Sys., Inc. v. Iola, 700 F.3d 65 (3d Cir. 2012), 126 Nat’l Shopmen Pen. Fund v. Burtman Iron Works, Inc., 148 F. Supp. 2d 60 (D.D.C. 2001), 517 Nat’l Stabilization Agreement of the Sheet Metal Indus. v. Commercial Roofing & Sheet Metal, 655 F.2d 1218 (D.C. Cir. 1981), 523 Neathery v. Chevron Texaco Group Accident Policy, 2008 U.S. App. LEXIS 26106 (9th Cir. 2008), 380 Nechis v. Oxford Health Plans, Inc., 421 F.3d 96 (2d Cir. 2005), 92–93 Neely v. Pension Trust Fund, 2003 WL 21143087 (E.D.N.Y. Jan. 16, 2003), 65 Negron-Fuentes v. UPS Supply, 532 F.3d 1 (1st Cir. 2008), 8 Neiheisel v. AK Steel Corp., No. 1:03-cv-868, 2005 U.S. Dist. LEXIS 4639 (S.D. Ohio Feb. 17, 2005), 275 Nelson v. Liberty Life Assur. Co. of Bos., 2005 WL 1181885 (M.D. Fla. 2005), 474 Nelson v. Unum Life Ins. Co. of Am., 232 Fed. App’x 23 (2d Cir. 2007), 62 Nerys v. Building Service 32 B-J Pension Fund, 2007 WL 1032259 (S.D.N.Y. Apr. 2, 2007), 90

1352

Nessell v. Crown Life Ins. Co., 92 F. Supp. 2d 523 (E.D. Va. 2000), 156, 157, 158 Nester v. Allegiance Healthcare Corp., 162 F. Supp. 2d 901 (S.D. Ohio 2001), 263 Nester v. Allegiance Healthcare Corp., 315 F.3d 610 (6th Cir. 2003), 242 Netzel v. Crowley Am. Transp. Co., 2006 U.S. Dist. LEXIS 16603 (E.D. Mich. Feb. 22, 2006), 275 Neuma, Inc. v. AMP, Inc., 259 F.3d 864 (7th Cir. 2001), 290, 297 Neumann v. Prudential Ins. Co. of Am., 367 F. Supp. 2d 969 (E.D. Va. 2005), 176 New England Mut. Life Ins. Co. v. Baig, 166 F.3d 1 (1st Cir. 1999), 2, 42 New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995), 149, 150, 151, 243, 244, 339, 340, 344 Newberry v. Graphic Packaging Int’l, Inc., 2012 WL 252834 (M.D. Ga. Jan. 26, 2012), 442 Newell v. Prudential Ins. Co. of Am., 904 F.2d 644 (11th Cir. 1990), 471 Newman v. Prudential Ins. Co. of Am., 367 F. Supp. 2d 969 (E.D. Va. 2005), 178

1353

Niblo v. UBS Global Asset Mgmt. (Americas) Inc., 2012 WL 995276 (S.D.N.Y. Mar. 21, 2012), 63 Nicholas v. Standard Ins. Co., 48 Fed. App’x 557 (6th Cir. 2002), 239, 273 Nichols v. Prudential Ins. Co. of Am., 406 F.3d 98 (2d Cir. 2005), 63, 66, 88, 90 Nielsen v. Trans World Airlines, Inc., 95 F.3d 701 (8th Cir. 1996), 330 Niethammer v. Prudential Ins. Co. of Am., No. 406-CV-16644 (CDP), 2007 WL 1629886 (E.D. Mo. June 4, 2007), 311 Nieto v. Ecker, 845 F.2d 868 (9th Cir. 1988), 368 Nieves Ayala v. Johnson & Johnson, Inc., 208 F. Supp. 2d 195 (D.P.R. 2002), 11 Nightingale v. Blue Cross/Blue Shield of Ala., 41 F.3d 1476 (11th Cir. 1995), 486 Nikaido v. Centennial Life Ins. Co., 42 F.3d 557 (9th Cir. 1994), 382, 385 NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971), 100 NLRB v. Viola Indus.-Elevator Div., 979 F.2d 1384 (10th Cir. 1992), 426

1354

Noble v. Cumberland River Cool Co., 26 F. Supp. 2d 958 (E.D. Ky. 1998), 272 Nolan v. Heald College, 551 F.3d 1148 (9th Cir. 2009), 364, 391 Noren v. Jefferson Pilot Fin. Ins. Co., 378 F. App’x 696 (9th Cir. 2010), 352 Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292 (11th Cir. 1988), 478 Northcutt v. GM Hourly-Rate Empl. Pension Plan, 467 F.3d 1031 (7th Cir. 2006), 305 Northlake Reg’l Med. Ctr. v. Waffle House Sys. Emp. Benefit Plan, 160 F.3d 1301 (11th Cir. 1998), 481 Northwest Adm’rs, Inc. v. Albertson’s, Inc., 104 F.3d 253 (9th Cir. 1996), 372 Norwood v. Leland Stanford Jr. Univ., 2009 WL 69354 (N.D. Cal 2009), 374 Novick v. Metro. Life Ins. Co., 2011 WL 497458 (S.D.N.Y. Feb. 10, 2011), 91 N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995), 6, 210, 212 N.Y. State Teamster Conf. Pension & Ret. Fund v. UPS, 32 Empl. Benefits Cas. (BNA) 1711, 2004 U.S. Dist. LEXIS 3062 (N.D.N.Y. 2004), 86

1355

N.Y. State Teamsters Council Health & Hosp. Fund v. Centrus Pharmacy Solutions, 235 F. Supp. 2d 123 (N.D.N.Y. 2002), 81 N.Y.S. Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995), 339 NYU Hosps. Ctr.-Tisch v. Local 348 Health & Welfare Fund, 2005 U.S. Dist. LEXIS 256, 34 Empl. Benefits Cas. (BNA) 2339 (S.D.N.Y. 2005), 60

O’Bryan v. Consol Energy, Inc., 477 Fed. App’x 306 (6th Cir. 2012), 260 O’Bryhim v. Reliance Standard Life Ins. Co., 997 F. Supp. 728 (E.D. Va. 1998), 157 O’Callaghan v. SPX Corp., 442 Fed. App’x 180 (6th Cir. 2011), 270, 271 O’Connell v. Unum Provident, No. 04-3499, 2006 WL 288080 (D.N.J. Feb. 6, 2006), 122 O’Connor v. Commonwealth Gas Co., 251 F.3d 262 (1st Cir. 2001), 43 O’Connor v. Unum Life Ins. Co. of Am., 146 F.3d 959 (D.C. Cir. 1998), 495, 516 O’Donnell v. Biolife Plasma Servs., L.P., 384 F. Supp. 2d 971 (S.D. W. Va. 2005), 170

1356

O’Donnell v. MetLife Disability Ins. Co., 2009 WL 884811 (S.D.N.Y. Mar. 31, 2009), 91 Ogden v. Blue Bell Creameries U.S.A., Inc., 348 F.3d 1284 11th Cir. 2003), 459 O’Hara v. Nat’l Union Fire Ins. Co. of Pittsburgh, 642 F.3d 110 (2d Cir. 2011), 73, 76 Olds v. Ret. Plan of Int’l Paper Co., 2011 U.S. Dist LEXIS 59329 (S.D. Ala. 2011), 474 Olive v. American Express LTD Plan, 183 F. Supp. 2d 1191 (C.D. Cal. 2002), 379 Oliver v. Coca-Cola Co., 397 F. Supp. 2d 1327 (N.D. Ala. 2005), 487 Oliver v. Coca-Cola Co., 497 F.3d 1181 (11th Cir. 2007), 435, 441, 460 Oliver v. Sun Life Assur. Co. of Can., 417 F. Supp. 2d 865 (W.D. Ky. 2005), 273 Olivo v. Elky, 2009 U.S. Dist. LEXIS 73728 (D.D.C. Aug. 20, 2009), 496 Olson v. E.F. Hutton & Co., 957 F.2d 622 (8th Cir. 1992), 328 O’Malley v. Sun Life Assur. Co. of Am., No. 04-5540, 2006 WL 182099 (D.N.J. Jan. 23, 2006), 118

1357

O’Meara v. The CIT Group, Inc., No. 07-cv-4429, 2008 WL 907474 (D.N.J. Apr. 1, 2008), 105 Onandaga Cnty. Laborers’ Health & Welfare, Pension, Annuity, & Training Funds v. Maxim Const. Servs. Corp., 2006 U.S. Dist. LEXIS 39698 (N.D.N.Y. 2006), 86 Openshaw v. Cohen, Klingenstein & Marks, Inc., 320 F. Supp. 2d 357 (D. Md. 2004), 187, 188 Operating Eng. Local 139 v. Gustafson Construction, Inc., 258 F.3d 645 (7th Cir. 2001), 298–299 Operating Eng’rs Pension Trust v. Gilliam, 737 F.2d 1501 (9th Cir. 1984), 373 Oregon Columbia Brick Masons Joint Apprenticeship Training Comm. v. Gardner, 448 F.3d 1082 (9th Cir. 2006), 341 Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510 (1st Cir. 2005), 20, 22, 23, 25, 26, 28, 29, 30, 31 Ortega-Candelaria v. Orthobiologics, LLC, 2012 WL 1982401 (D.P.R. June 1, 2012), 26 Orth v. Wisconsin State Employee’s Union, 546 F.3d 868 (7th Cir. 2008), 292, 300 Orvosh v. Program of Grp. Ins. for Salaried Emps. of Volkswagen of Am., Inc., 222 F.3d 123 (3d Cir. 2000), 125

1358

Osborne v. Hartford Life & Accid. Ins. Co., 465 F.3d 296 (6th Cir. 2006), 253 O’Shea v. First Manhattan Co. Thrift Plan & Trust, 55 F.3d 109 (2d Cir. 1995), 65, 68 Oslowski v. Life Ins. Co. of N. Am., 139 F. Supp. 2d 668 (W.D. Pa. 2001), 117 Oster v. Standard Ins. Co., 768 F. Supp. 2d 1026 (N.D. Cal. 2011), 377 O’Sullivan v. Metro. Life Ins. Co. 114 F. Supp. 2d 303 (D.N.J. 2000), 116–117, 120 Otto v. W. Pa. Teamsters & Employers Pen. Fund, 127 F. App’x 17 (3d Cir. 2005), 117–118 Oullette v. Christ Hosp., 942 F. Supp. 1160 (S.D. Ohio 1996), 245 Overby v. Nat’l Ass’n of Letter Carriers, 601 F. Supp. 2d 101 (D.D.C. 2009), 507, 510, 517

Pa. v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986), 229 Pacificare of Okla., Inc. v. Burrage, 59 F.3d 151 (10th Cir. 1995), 398 Paddack v. Morris, 783 F.2d 844 (9th Cir. 1986), 373

1359

Padfield v. AIG Life Ins. Co., 290 F.3d 1121 (9th Cir. 2002), 359 Paese v. Hartford Life & Acc. Ins. Co., 449 F.3d 435 (2d Cir. 2006), 63, 64, 84, 444 Pagan v. NYNEX Pension Plan, 52 F.3d 438 (2d Cir. 1995), 20, 64, 65, 67 Page v. Pen. Benefit Guar. Corp., 968 F.2d 1310 (D.C. Cir. 1992), 526 Pailleret v. Jersey Constr. Inc., No. 09-1325, 2011 WL 1485402 (D.N.J. Apr. 19, 2011), 103 Pain & Surgery Ambulatory Ctr., P.C. v. Conn. Gen. Life Ins. Co., No. 11-cv-5209, 2012 WL 3781516 (D.N.J. Aug. 30, 2012), 113 Painter v. Golden Rule Ins. Co., 121 F.3d 436 (8th Cir. 1997), 313 Painters of Phila. Dist. Council No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146 (3d Cir. 1989), 105 Palmos Del Mar Props., Inc., In re, 932 F. Supp. 36 (D.P.R. 1996), 41 Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 786 (7th Cir. 1996), 281 Pane v. RCA Corp., 868 F.2d 631 (3d Cir. 1989), 103, 105, 126

1360

Pannebecker v. Liberty Life Assur. Co. of Boston, 542 F.3d 1213 (9th Cir. 2008), 370 Panto v. Moore Bus. Forms, Inc., 676 F. Supp. 412 (D.N.H. 1988), 41 Pappas v. Buck Consultants, Inc., 923 F.2d 531 (7th Cir. 1991), 299 Paramore v. Delta Air Lines, Inc., 129 F.3d 1446 (11th Cir. 1997), 455, 459 Parent v. Principal Life Ins. Co., 763 F. Supp. 2d 257 (D. Mass. 2011), 24, 28 Parente v. Bell Atlantic Pa., No. 99-5478, 2000 WL 419981 (E.D. Pa. Apr. 18, 2000), 131 Pari-Fasano v. ITT Hartford Life & Acc. Ins. Co., 230 F.3d 415 (1st Cir. 2000), 14, 15, 16, 27 Paris v. Profit Sharing Plan for Emps. of Howard B. Wolf, Inc., 637 F.2d 357 (5th Cir. 1981), 231, 481 Parke v. First Reliance Standard Life Ins. Co., 368 F.3d 999 (8th Cir. 2004), 331, 334, 487 Parker v. BankAmerica Corp., 50 F.3d 757 (9th Cir. 1995), 382 Parker v. Union Planters Corp., 203 F. Supp. 2d 888 (W.D. Tenn. 2002), 252, 275

1361

Parker v. Vulcan Materials Co. LTD Plan, 2011 U.S. App. LEXIS 3035 (9th Cir. 2011), 391 Parkman v. Prudential Ins. Co., 439 F.3d 767 (8th Cir. 2006), 318 Parness v. Metro. Life Ins. Co., 291 F. Supp. 2d 1347 (S.D. Fla. 2003), 452 Parson v. Union Underwear Co., 2004 U.S. App. LEXIS 7317 (6th Cir. 2004), 249 Pascack Valley Hosp. v. Local 464A UFCW Welfare Reimbursement Plan, 388 F.3d 393 (3d Cir. 2004), 104, 105 Paterson Priori v. Unum Life Ins. Co., 848 F. Supp. 1102 (E.D.N.Y. 1994), 91 Patient Advocates, LLC v. Prysunka, 316 F. Supp. 2d 46 (D. Me. 2004), 43 Patient Care Assoc., L.L.C. v. N.J. Carpenters Health Fund, No. 10-1669, 2012 WL 1299144 (D.N.J. Apr. 16, 2012), 107 Patterson v. Hughes Aircraft Co., 11 F.3d 948 (9th Cir. 1993), 391 Patton v. MFS/Sun Life Fin. Distributors, Inc., 480 F.3d 478 (7th Cir. 2007), 293

1362

Patton v. MSF/Sun Life Fin. Distributors, 2008 U.S. Dist. LEXIS 6246 (S.D. Ind. 2008), 293, 295, 297 Paul Revere Life Ins. Co. v. Bromberg, 382 F.3d 33 (1st Cir. 2004), 2 Paulsen v. CNF Inc., 559 F.3d 1061 (9th Cir. 2009), 341, 345 Pava v. Hartford Life & Acc. Ins. Co., 2005 WL 2039192 (E.D.N.Y. Aug. 24, 2005), 89 Payne v. Blue Cross & Blue Shield, 1992 U.S. App. LEXIS 24357 (4th Cir. 1992), 196 Paysource, Inc. v. Triple Crown Fin. Group, No. Civ. A. 2004-171-WOB, 2005 WL 2095754 (E.D. Ky. Aug. 29, 2005), 243 PBGC v. Wilson N. Jones Mem. Hosp., 374 F.3d 362 (5th Cir. 2004), 229 Pearson v. Hartford Comprehensive Emp. Benefits Servs. Co., 2006 U.S. Dist. LEXIS 41953 (M.D.N.C. 2006), 204 Peck v. Aetna Life Ins. Co., 2005 U.S. Dist. LEXIS 35605 (D. Conn. 2005), 77 Peckham v. Gem State Mut. of Utah, 964 F.2d 1043 (10th Cir. 1992), 393, 395, 396, 399 Pegram v. Herdrich, 530 U.S. 211 (2000), 40, 153, 185–186, 211, 266, 282

1363

Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292 (3d Cir. 2008), 106, 130, 132 Pender v. Bank of Am. Corp., 269 F.R.D. 589, 2010 WL 5071169 (W.D.N.C. 2010), 202, 184 Penny/Ohlman/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692 (6th Cir. 2005), 242, 270, 272 Pension Benefit Guaranty Corp. v. Ross, 733 F. Supp. 1005 (M.D.N.C. 1990), 188 Pension Benefit Guaranty Corp. v. Ross, 781 F. Supp. 415 (M.D.N.C. 1991), 188 Pension Fund for Nursing Home & Health Care Emps. v. Resthaven Nursing Ctrs., No. 07-313, 2008 WL 2132097 (E.D. Pa. May 20, 2008), 115 Pension Plan of Pub. Serv. Co. of N.H. v. KPMG Peat Marwick, 815 F. Supp. 52 (D.N.H. 1993), 40 Peoria Union Stock Yards Co. Ret. Plan v. Penn Mut. Life Ins. Co., 698 F.2d 320 (7th Cir. 1983), 299, 300 Pepe v. Newspaper & Mail Deliverers’-Publishers’ Pension Fund, 559 F.3d 140 (2d Cir. 2009), 67, 72 Pepicelli v. Fall River Shirt Co., Inc., 2010 WL 3749453 (D. Mass. Sept. 21, 2010), 31 Pepsi Bottling Group, Inc. v. Thomas, 2010 WL 4622520 (W.D. Wash. 2010), 376

1364

Peralta v. Hispanic Bus. Inc., 419 F.3d 1064 (9th Cir. 2005), 368 Pereira v. Farace, 413 F.3d 330 (2d Cir. 2005), 77 Perez v. Aetna Life Ins. Co., 150 F.3d 550 (6th Cir. 1998), 252, 253 Perez-Rodriguez v. Citibank, N.A., 1995 WL 116353 (D.P.R. 1995), 45 Perkins v. Time Ins. Co., 898 F.2d 470 (5th Cir. 1990), 435 Perl v. Laux/Arnold, Inc., 864 F. Supp. 2d 731 (N.D. Ind. 2012), 283 Perlman v. Fidelity Brokerage Servs. LLC, 2013 U.S. Dist. LEXIS 42793 (E.D.N.Y. Mar. 26, 2013), 56 Perlman v. Swiss Bank Corp. Comprehensive Disability Protection Plan, 195 F.3d 975 (7th Cir. 1999), 292, 293, 294, 510 Perreca v. Gluck, 295 F.3d 215 (2d Cir. 2002), 68 Perrino v. S. Bell Tel. & Tel. Co., 209 F.3d 1309 (11th Cir. 2000), 440, 441, 442, 480 Perry v. Simplicity Eng’g, 900 F.2d 963 (6th Cir. 1990), 70, 249, 254, 258 Peruzzi v. Summa Med. Plan, 137 F.3d 431 (6th Cir. 1998), 250–251, 253

1365

Peterson v. Am. Life & Health Ins. Co., 48 F.3d 404 (9th Cir. 1995), 239, 336 Peterson v. Continental Cas. Co., 77 F. Supp. 2d 420 (S.D.N.Y. 2000), 74 Peterson v. Cont’l Cas. Co., 282 F.3d 112 (2d Cir. 2002), 84 Peterson v. Int’l Paper Co., 2009 U.S. Dist. LEXIS 98696 (E.D.N.C. 2009), 198 Petrone v. Long Term Dis. Income Plan for Choices Eligible Employees of Johnson & Johnson and Affiliated Cos., 2013 WL 1282315 (D. Mass. March 27, 2013), 27 Pettaway v. Teachers Ins. & Ann. Ass’n, 547 F. Supp. 2d 1 (D.D.C. 2008), 528 Pettaway v. Teachers Ins. & Ann. Ass’n of Am., 644 F.3d 427 (D.C. Cir. 2011), 524 Pettaway v. Teachers Ins. & Ann. Ass’n of Am., 699 F. Supp. 2d 185 (D.D.C. 2010), 502, 505, 515 Pettit v. Metro. Life Ins. Co., 164 F.3d 857 (4th Cir. 1998), 191 Pfahler v. Nat’l Latex Prods. Co., 517 F.3d 816 (6th Cir. 2007), 266, 267, 270 Pfeil v. State Street Bank and Trust Co., 671 F.3d 585 (6th Cir. 2012), 267

1366

Pharm. Care Mgmt. Ass’n v. Dist. of Columbia, 613 F.3d 179 (D.C. Cir. 2010), 494, 496–497 Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294 (1st Cir. 2005), 6 Phelps v. C.T. Enterprises, Inc., 394 F.3d 213 (4th Cir. 2005), 177–178, 179, 180, 183, 186 Philippus v. Aetna Life Ins. Co., 2010 U.S. Dist. LEXIS 79055 (D. Colo., June 10, 2010), 397 Phillips v. Alaska Hotel & Restaurant Employees Pension Fund, 944 F.2d 509 (9th Cir. 1991), 388 Phillips v. Amoco Oil, 799 F.2d 1464 (11th Cir. 1986), 463, 469 Phillips v. Lincoln Nat’l Life Ins. Co., 978 F.2d 302 (7th Cir. 1992), 292 Phillips-Foster v. Unum Life Ins. Co. of Am., 302 F.3d 785 (8th Cir. 2002), 319 Physicians Multispecialty Group v. Health Care Plan of Horton Homes, Inc., 371 F.3d 1291 (11th Cir. 2004), 447 Piazza v. Ebsco Indus., Inc., 273 F.3d 1341 (11th Cir. 2001), 459, 487 Pichoff v. QHG of Springdale, Inc., 556 F.3d 728 (8th Cir. 2009), 326, 329

1367

Piepenhagen v. Old Dominion Freight Line, Inc., 395 F. App’x 950, 2010 WL 3623225 (4th Cir. 2010), 175, 176 Pierce v. Capitol Life Ins. Co., 806 P.2d 388 (Colo. App. 1990), 396 Pierce v. Wells Fargo Bank, N.A., 380 F. App’x 635 (9th Cir. 2010), 345 Pierre v. Conn. Gen. Life Ins. Co., 932 F.2d 1552 (5th Cir. 1991), 215 Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987), 5–9, 103, 151, 209, 281, 312, 337, 338, 345, 435, 436 Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377 (3d Cir. 2000), 110, 111, 116, 119, 123, 125 Pipefitters Local 636 Ins. Fund v. Blue Cross Blue Shield of Michigan, 654 F.3d 618 (6th Cir. 2011), 266 Pirkheim v. First Unum Life Ins., 229 F.3d 1008 (10th Cir. 2000), 408 Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326 (9th Cir. 1996), 350, 388 Pitman v. Blue Cross & Blue Shield of Okla., 24 F.3d 118 (10th Cir. 1994), 399 Pitman v. Blue Cross & Blue Shield of Okla., 217 F.3d 1291 (10th Cir. 2000), 410

1368

Pitts v. Am. Sec. Life Ins. Co., 931 F.2d 351 (5th Cir. 1991), 220 Plambeck v. Kroger Co., 2013 U.S. Dist. LEXIS 33088 (D.S.D. Mar. 11, 2013), 326 Plan Adm’r v. Kienast, No. 06-1529, 2008 WL 202115 (W.D. Pa. Jan. 23, 2008), 113 Plasterers’ Local Union No. 96 Pension Plan v. Pepper, 663 F.3d 210 (4th Cir. 2011), 184, 190 Plumbers & Steamfitters Local 150 v. Vertex Const., 932 F.2d 1443 (11th Cir. 1991), 476 Plumbers Local 93 Health & Welfare & Pension Fund, Journeymen Training Fund & Apprenticeship Training Fund v. Dipietro Plumbing Co., 1999 U.S. Dist. LEXIS 6913 (N.D. Ill. 1999), 301 Pohl v. Nat’l Benefits Consultants, Inc., 956 F.2d 126 (7th Cir. 1991), 299 Pokol v. E.I. DuPont de Nemours & Co., 963 F. Supp. 1361 (D.N.J. 1997), 122 Pokratz v. Jones Dairy Farm, 771 F.2d 206 (7th Cir. 1985), 250 Polaroid ERISA Litig., 362 F. Supp. 2d 461 (S.D.N.Y. 2005), 82

1369

Polley v. Harvard Pilgrim Health Care, Inc., 2009 WL 4403994 (D.N.H. 2009), 41 Pollini v. Raytheon Disability Emp. Trust, 54 F. Supp. 2d 54 (D. Mass. 1999), 29 Ponsetti v. GE Pension Plan, 614 F.3d 684 (7th Cir. 2010), 298 Poore v. Simpson Paper Co., 566 F.3d 922 (9th Cir. 2009), 351 Popowski v. Parrott, 461 F.3d 1367 (11th Cir. 2006), 482 Popowski v. Parrott, 2008 WL 4372006 (N.D. Ga. Sept. 19, 2008), 483 Porter v. Broadspire, 492 F. Supp. 2d 480 (W.D. Pa. 2007), 123 Post v. Hartford Ins. Co., No. 04-3230, 2005 WL 424945 (E.D. Pa. Feb. 23, 2005), 101–102, 110, 112, 117, 121 Postma v. Paul Revere Life Ins. Co., 223 F.3d 533 (7th Cir. 2000), 279 Potter v. Shoney’s, Inc., 108 F. Supp. 2d 489 (M.D.N.C. 1999), 204 Potts v. CitiFinancial, Inc., 2011 U.S. Dist. LEXIS 139370 (D. Colo. Dec. 2, 2011), 393

1370

Powell v. Chesapeake & Potomac Tel. Co. of Va., 780 F.2d 419 (4th Cir. 1985), 151 PPG Indus. Pension Plan A (CIO) v. Crews, 902 F.2d 1148 (4th Cir. 1990), 149 Pralutsky v. Metro. Life Ins. Co., 435 F.3d 833 (8th Cir. 2006), 316, 324 Pratt v. Petroleum Prod. Mgmt., Inc. Emp. Sav. Plan & Trust, 920 F.2d 651 (10th Cir. 1990), 404, 406, 420, 422 Prentiss v. Wasley Prods., Inc., 2005 WL 563091 (D. Conn. 2005), 82 Pressley v. Tupperware Long Term Dis. Plan, 2008 U.S. Dist. LEXIS 107116 (D.S.C. 2008), 180 Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334 (4th Cir. 2009), 195, 196 Pressman-Gutman Co. v. First Union Nat’l Bank, 2004 WL 1091048 (E.D. Pa. 2004), 133 Price v. Provident Life & Acc. Ins. Co., 2 F.3d 986 (9th Cir. 1993), 92 Price v. Xerox Corp., 445 F.3d 1054 (8th Cir. 2006), 331 Primax Recoveries, Inc. v. Gunter, 433 F.3d 515 (6th Cir. 2006), 271

1371

Primax Recoveries, Inc. v. Lee, 260 F. Supp. 2d 43 (D.D.C. 2003), 529 Printy, In re, 171 B.R. 448 (Ban. D. Mass. 1994), 42 Providence Health Plan v. McDowell, 361 F.3d 1243 (9th Cir. 2004), 389 Provident Life & Acc. Ins. Co. v. Sharpless, 364 F.3d 634 (5th Cir. 2004), 206 Provident Life & Accid. Ins. Co. v. Cohen, 137 F. Supp. 2d 631 (D. Md. 2001), 144, 148 Provident Life & Accid. Ins. Co. v. Cohen, 423 F.3d 413 (4th Cir. 2005), 186, 200 Provident Life & Accid. Ins. Co. v. Waller, 906 F.2d 985 (4th Cir. 1990), 515 Prudential Ins. Co. of Am. v. Doe, 76 F.3d 206 (8th Cir. 1996), 239, 310, 311 Prudential Ins. Co. of Am. v. Doe, 140 F.3d 785 (8th Cir. 1998), 327 Prudential Ins. Co. of Am. v. Nat’l Park Med. Ctr., Inc., 413 F.3d 897 (8th Cir. 2005), 312, 313 Psychiatric Inst. of Wash., D.C., Inc. v. Conn. Gen. Life Ins. Co., 780 F. Supp. 24 (D.D.C. 1992), 494, 507

1372

Pulliam v. Cont’l Cas. Co., 2003 U.S. Dist. LEXIS 10010 (D.D.C. 2003), 512 Pulvers v. First Unum Life Ins. Co., 210 F.3d 89 (2d Cir. 2000), 68 Purney v. Reliastar Life Ins. Co., 681 F. Supp. 2d 1262 (D. Nev. 2010), 351 Putney v. Medical Mut. of Ohio, 111 Fed. App’x 803 (6th Cir. 2004), 256 Pylant v. Hartford Life & Acc. Ins. Co., 497 F.3d 536 (5th Cir. 2007), 221

Qualchoice Inc. v. Rowland, 367 F.3d 638 (6th Cir. 2004), 269 Qualls v. Blue Cross of Ca., Inc., 22 F.3d 839 (9th Cir. 1994), 337, 350, 351 Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017 (4th Cir. 1993), 166, 173, 179, 180, 181, 189, 190, 413, 514 Quinlisk v. Unum Life Ins. Co. of Am., 2009 WL 6506884 (D. Mass. Sept. 29, 2009), 29 Quinn v. Blue Cross & Blue Shield Assoc., 161 F.3d 472 (7th Cir. 1998), 301, 302

1373

Quinones Rodriguez v. Andoxx Corp., 440 F. Supp. 2d 77 (D.P.R. 2006), 5

Radcliffe v. El Paso Corp., 377 F. Supp. 2d 558 (S.D. W. Va. 2005), 155 Rademacher v. Colo. Ass’n of Soil Conservation Dists. Med. Benefit Plan, 11 F.3d 1567 (10th Cir. 1993), 405, 422 Radford Trust v. First Unum Life Ins. Co., 399 F. Supp. 2d 3 (D. Mass. 2005), 39 Rafferty v. New York Mercantile Exch. Long-Term Disability Plan, 133 F. Supp. 2d 158 (E.D.N.Y. 2000), 56 Ragan v. Tri-Cnty. Excavating, Inc., 62 F.3d 501 (3d Cir. 1995), 103 Rall v. Aetna Life Ins. Co., 2013 U.S. Dist. LEXIS 58617 (D. Colo. Apr. 24, 2013), 429 Ramos v. United of Omaha Life Ins. Co., 2013 WL 60985 (N.D. Cal. 2013), 344 Ramsdell v. Aetna Life Ins. Co., 2012 WL 3575193 (D. Me. Jul. 31, 2012), 28, 32 Ramsdell v. Huhtamaki, Inc., 2012 WL 1440613 (D. Me. April 23, 2012), 24

1374

Ramsey v. Formica Corp., 398 F.3d 421 (6th Cir. 2005), 242 Rand v. Equitable Life Assur. Soc. of U.S., 49 F. Supp. 2d 111 (E.D.N.Y. 1999), 56 Randol v. Mid-West Nat’l Life Ins. Co. of Tenn., 987 F.2d 1547 (11th Cir. 1993), 434, 435 Rappa v. Conn. Gen. Life Ins. Co., 2007 WL 4373949 (E.D.N.Y. December 11, 2007), 73, 75 Rasenack ex rel. Tribolet v. AIG Life Ins. Co., 585 F.3d 1311 (10th Cir. 2009), 417, 425, 427, 428 Raskin v. Unum Provident Corp., No. 03-2270, 2005 WL 271939 (6th Cir. Feb. 3, 2005), 259 Rauh v. Coyne, 744 F. Supp. 1186 (D.D.C. 1990), 499 Ravencraft v. Unum Life Ins. Co. of Am., 212 F.3d 341 (6th Cir. 2000), 247, 248 Ravenscraft v. Hy-Vee Emp. Benefit Plan & Trust, 85 F.3d 398 (8th Cir. 1996), 316 Rawson Food Serv., Inc., In re, 846 F.2d 1343 (11th Cir. 1988), 443 Ray v. Unum Life Ins. Co. of Am., 224 F. App’x 772 (10th Cir. 2007), 417, 421

1375

Raybourne v. CIGNA Life Ins. Co. of N.Y., 576 F.3d 444 (7th Cir. 2009), 286, 289 Raybourne v. CIGNA Life Ins. Co. of N.Y., 700 F.3d 1076 (7th Cir. 2012), 289, 296, 303 Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1 (2004), 148, 336, 394, 433, 494, 525 Ream v. Frey, 107 F.3d 147 (3d Cir. 1997), 132 Recupero v. New England Tel. & Tel. Co., 118 F.3d 820 (1st Cir. 1997), 13, 20, 30 Redd v. Brotherhood of Maint. of Way Emps. Div. of the Int’l Bhd. of Teamsters, No. 08-11457, 2009 U.S. Dist. LEXIS 46288, 2009 WL 1543325 (E.D. Mich. June 2, 2009), 258 Redding v. At&T Corp., 1997 U.S. App. LEXIS 23037 (10th Cir. 1997), 423 Redmon v. Sud-Chemie Inc. Ret. Plan for Union Emps., 547 F.3d 531 (6th Cir. 2008), 249, 276 Reed v. Liberty Life Assur. Co., 438 F.3d 772 (7th Cir. 2006), 288 Reese v. CNH Am. LLC, 574 F.3d 315 (6th Cir. 2009), 262 Regents of the Univ. of Mich. v. Employees of Agency Rent-A-Car Ass’n, 122 F.3d 336 (6th Cir. 1997), 252

1376

Regional Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697 (6th Cir. 2006), 257 Regional Care Servs. Corp. v. Companion Life Ins. Co., 869 F. Supp. 2d 1079 (D. Ariz. 2012), 341 Regions Morgan Keegan ERISA Litigation, In re, 692 F. Supp. 2d 944 (W.D. Tenn. 2010), 270 Rego v. Westvaco Corp., 319 F.3d 140 (4th Cir. 2003), 160, 192, 197 Reich v. Autrey, 1996 U.S. Dist. LEXIS 21487 (M.D. Fla. 1996), 473 Reich v. Compton, 57 F.3d 270 (3d Cir. 1995), 131, 133 Reich v. Lancaster, 55 F.3d 1034 (5th Cir. 1995), 231 Reich v. Rowe, 20 F.3d 25 (1st Cir. 1994), 5, 8, 35, 36 Reich v. Stangl, 73 F.3d 1027 (10th Cir. 1996), 418, 421 Reich v. Walter W. King Plumbing & Heating Contractor, Inc., 98 F.3d 147 (4th Cir. 1996), 184 Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278 (2d Cir. 1983), 86 Reindl v. Hartford Life & Acc. Ins. Co., 705 F.3d 784 (8th Cir. 2013), 314

1377

Reinhart Cos. Employee Benefit Plan v. Vial, 2011 WL 976505 (W.D. Mich. 2011), 277 Reinhart, In re, 477 F. App’x 510 (10th Cir. 2012), 396 Reinhart v. Broadspire Servs. Inc., 2011 WL 3273152 (W.D.N.Y. Jul. 29, 2011), 73, 95 Reininger v. Azdel, Inc. Ret. Plan, 2011 WL 814984 (W.D.N.C. 2011), 182 Reinking v. Philadelphia Am. Life Ins. Co., 910 F.2d 1210 (4th Cir. 1990), 189, 190 Rekstad v. U.S. Bancorp, 451 F.3d 1114 (10th Cir. 2006), 417 Renfro v. The Funky Door Long Term Disability Plan, 686 F.3d 1044 (9th Cir. 2012), 355 Resolution Trust Corp. v. Hallmark Bldrs., Inc., 996 F.2d 1144 (11th Cir. 1993), 478 Ret. & Sec. Program for Emps. of Nat’l Rural Coop. Ass’n v. Oglethorpe Power Corp. Ret. Income Plan, 712 F. Supp. 223 (D.D.C. 1989), 506, 517 Retail Indus. Leaders Ass’n v. Fielder, 475 F.3d 180 (4th Cir. 2007), 151 Rettig v. Pen. Benefit Guar. Corp., 744 F.2d 133 (D.C. Cir. 1984), 526

1378

Reynolds Metal Co. v. Ellis, 202 F.3d 1246 (9th Cir. 2000), 389 Reynolds v. S. Cent. Reg’l Laborers Health & Welfare Fund, 306 F. Supp. 2d 646 (W.D. La. 2004), 234 Reznick v. Provident Life & Accid. Ins. Co., 181 Fed. App’x 531 (6th Cir. May 17, 2006), 262 Rhorer v. Raytheon Eng’rs & Const’rs Inc. Basic Life, Optional Life, Accidental Death & Dependent Life Ins. Plan, 181 F.3d 635 (5th Cir. 1999), 219–220, 226 Rice v. Hartford Life & Accid. Ins. Co., 2009 WL 982465 (W.D.N.Y. Apr. 13, 2009), 90 Rice v. Jefferson Pilot Financial Ins. Co., 578 F.3d 450 (6th Cir. 2009), 276 Rice v. Panchal, 65 F.3d 637 (7th Cir. 1995), 282 Richards v. Gen. Motors Corp., 991 F.2d 1227 (6th Cir. 1993), 247 Richards v. Hartford Life & Acc. Ins. Co., 153 F. App’x 694 (11th Cir. 2005), 453 Richards v. Hartford Life & Acc. Ins. Co., 356 F. Supp. 2d 1278 (S.D. Fla. 2004), 453 Richards v. Hewlett-Packard Corp., 592 F.3d 232 (1st Cir. 2010), 27, 28, 29, 30

1379

Richey v. Hartford Life & Acc. Ins. Co., 2009 WL 1010057 (M.D. Fla. Apr. 15, 2009), 454 Richie v. Hartford Life & Accid. Ins. Co., No. 2:09-cv-00604, 2010 U.S. Dist. LEXIS 30279 (S.D. Ohio 2010), 245 Richmond v. Cont’l Cas. Co., 246 F. App’x 399 (8th Cir. 2007), 325 Riedl v. Gen. Am. Life Ins. Co., 248 F.3d 753 (8th Cir. 2001), 317, 324 Riley v. Adm’r of Supersaver 401K Capital Accumulation Plan for Emps. of Participating AMR Corp. Subsidiaries, 209 F.3d 780 (5th Cir. 2000), 227, 228 Rinaldi v. CCX, Inc., 388 F. App’x 290, 2010 WL 2803915 (4th Cir. 2010), 179 Rinaldi v. CCX, Inc., 2009 U.S. Dist. LEXIS 16101 (W.D.N.C. 2009), 179–180 Ringwald v. Prudential Ins. Co. of Am., 609 F.3d 946 (8th Cir. 2010), 315 Riofrio Anda v. Ralston Purina Co., 772 F. Supp. 46 (D.P.R. 1991), 41 Rippentrop v. E.H. Oftedal & Sons, 2009 U.S. App. LEXIS 27198 (9th Cir. 2009), 381

1380

Risteen v. Youth for Understanding, Inc., 245 F. Supp. 2d 1 (D.D.C. 2002), 525 Risteen v. Youth for Understanding, No. Civ. A. 02-0709(JDB), 2003 WL 22011766 (D.D.C. Aug. 19, 2003), 522 Rivera Sanfeliz v. Chase Manhattan Bank, 349 F. Supp. 2d 240 (D.P.R. 2004), 42 Rivera v. Benefit Trust Life Ins. Co., 921 F.2d 692 (7th Cir. 1991), 306–307 Rivera-Diaz v. Am. Airlines, Inc., 229 F.3d 1133 (1st Cir. 2000), 12 Rizk v. Long Term Disability Plan of the Dun & Bradstreet Corp., 862 F. Supp. 783 (E.D.N.Y. 1994), 73 Rizzi v. Hartford Life & Accid. Ins. Co., 383 F. App’x 738 (10th Cir. 2010), 405, 415 Roark v. Humana, Inc., 307 F.3d 298 (5th Cir. 2002), 209, 211 Robbins v. Milliman U.S. Long Term Disability Ins. Plan, 2003 U.S. Dist. LEXIS 17138 (S.D. Ind. 2003), 293 Roberts v. Am. Elec. Power Long-Term Disability Plan, 2010 WL 2854299 (S.D. W. Va. 2010), 176 Roberts v. Metro. Life Ins. Co., 2007 WL 900920 (S.D.N.Y. Mar. 26, 2007), 9, 90, 91

1381

Roberts v. Taussig, 39 F. Supp. 2d 1010 (N.D. Ohio 1999), 269 Robertson v. Alexander Grant & Co., 798 F.2d 868 (5th Cir. 1986), 229 Robinson v. Aetna Life Ins. Co., 443 F.3d 389 (5th Cir. 2006), 217, 218, 221 Robinson v. Equifax Info. Services, LLC, 560 F.3d 235 (4th Cir. 2009), 192 Robinson v. Linomaz, 58 F.3d 365 (8th Cir. 1995), 310, 311 Robinson v. Metro. Life Ins. Co., 2007 WL 3254397 (S.D.N.Y. Nov. 2, 2007), 88 Robinson v. Plourde, 717 F. Supp. 2d 1092 (D. Haw. 2010), 375 Rodriguez v. MEBA Pension Trust, 872 F.2d 69 (4th Cir. 1989), 197 Rodriguez-Abreu v. Chase Manhattan Bank, 986 F.2d 580 (1st Cir. 1993), 19, 20 Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848 (1st Cir. 1998), 39 Roehrs v. Minnesota Life, 390 F. Supp. 2d 886 (D. Ariz. 2005), 337

1382

Rogers v. Rogers and Partners, Architects, Inc., 2009 WL 5124652 (D. Mass. July 27, 2009), 42 Romero v. Allstate, 404 F.3d 212 (3d Cir. 2005), 130, 139 Romney v. Lin, 94 F.3d 74 (2d Cir. 1996), 59, 60 Rosario-Cordero v. Crowley Towing & Trans. Co., 850 F. Supp. 98 (D.P.R. 1994), 41 Rose v. Long Island R. R. Pension Plan, 828 F.2d 910 (2d Cir. 1987), 56 Rosen v. TRW, Inc., 979 F.2d 191 (11th Cir. 1992), 435, 461 Ross v. Prudential Ins. Co. of Am., 304 F. App’x 502 (9th Cir. 2008), 363–364 Ross v. Rail Car Am. Group Dis. Income Plan, 285 F.3d 735 (8th Cir. 2002), 311 Rossi v. Precision Drilling Oilfield Serv. Corp. Employee Benefits Plan, 704 F.3d 362 (5th Cir. 2013), 217 Rossignol v. Liberty Mut. Assur. Co. of Am., 2009 WL 1687810 (D.N.H. June 16, 2009), 26 Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915 (8th Cir. 1994), 328 Rotondi v. Hartford Life & Accid. Group, 2010 WL 3720830 (S.D.N.Y. Sept. 22, 2010), 91

1383

Roush v. Aetna, 2010 WL 2079766 (D. Ariz. 2010), 363 Rubin-Schneiderman v. Merit Behavioral Care Corp., 2003 U.S. Dist. LEXIS 14811 (S.D.N.Y. Aug. 27, 2003), 62 Rubio v. Chock Full O’Nuts Corp., 254 F. Supp. 2d 413 (S.D.N.Y. 2003), 67, 82 Rucker v. Empire Healthchoice Assur., Inc., 2010 WL 2330300 (M.D. Fla. June 9, 2010), 480 Rud v. Liberty Life Assur. Co. of Boston, 438 F.3d 772 (7th Cir. 2006), 297 Rugby v. Unum Life Ins. Co. of Am., 391 F. App’x 579 (8th Cir. 2010), 324 Ruggieri v. Quaglia, No. 07-756, 2008 WL 5412058 (E.D. Pa. Dec. 24, 2008), 129, 133 Ruiz v. Cont’l Cas. Co., 400 F.3d 986 (7th Cir. 2005), 285, 289, 299, 300 Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002), 7, 10, 152, 154, 163, 209, 282, 313, 349 Rush v. McDonald’s Corp., 966 F.2d 1104 (7th Cir. 1992), 281 Russell v. Chase Inv. Servs. Corp., 2010 U.S. Dist. LEXIS 6872 (N.D. Okla. Jan. 28, 2010), 426

1384

Russell v. Paul Revere Life Ins. Co., 148 F. Supp. 2d 392 (D. Del. 2001), 122, 137 Rutledge v. Seyfarth, Shaw, Fairweather & Geraldson, 201 F.3d 1212 (9th Cir. 2000), 340, 341 Ruttenberg v. U.S. Life Ins. Co., 413 F.3d 652 (7th Cir. 2005), 280, 284, 286, 289, 291 Ryan by Capria-Ryan v. Fed. Express Corp., 78 F.3d 123 (3d Cir. 1996), 113

Saah v. Contel Corp., 1992 U.S. App. LEXIS 27532 (4th Cir. 1992), 200 Sabina v. Am. Gen. Life Ins. Co., 856 F. Supp. 651 (S.D. Fla. 1992), 477 Saddler v. Elliott Co., No. 07-1320, 2009 WL 229648 (W.D. Pa. Jan. 30, 2009), 115 Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863 (9th Cir. 2008), 364, 380 Sage v. Automation, Inc. Pension Plan & Trust, 845 F.2d 885 (10th Cir. 1988), 408, 423, 424, 425 Sahulka v. Lucent Techs., Inc., 206 F.3d 763 (8th Cir. 2000), 319, 321, 333

1385

Salerno v. Prudential Ins. Co. of Am., 2009 WL 2412732 (N.D.N.Y. Aug. 3, 2009), 91 Salisbury v. Hartford Life & Accid. Ins. Co., 583 F.3d 1245 (10th Cir. 2009), 401, 426 Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011 (5th Cir. 1992), 227, 229 Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666 (9th Cir. 2011), 354, 355, 356, 363, 381 Salovaara v. Eckert, 222 F.3d 19 (2d Cir. 2000), 85 Salus v. GTE Directories Serv. Corp., 104 F.3d 131 (7th Cir. 1997), 284 Samano v. Kaiser Foundation Health Plan, Inc., 466 F. App’x 592 (9th Cir. 2012), 366 Samedy v. First Unum Life Ins. Co. of Am., 2006 WL 624889 (E.D.N.Y. May 10, 2006), 69 Sampson v. Citibank, 53 F. Supp. 2d 13 (D.D.C. 1999), 509 Sampson v. Prudential Ins. Co. of Am., No. 4:08-CV-1290 (CDP), 2009 U.S. Dist. LEXIS 24858 (E.D. Mo. Mar. 26, 2009), 322–323 Sanders v. UNUM Life Ins. Co., 553 F.3d 922 (5th Cir. 2008), 216

1386

Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377 (10th Cir. 1992), 405, 407, 411, 423 Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202 (9th Cir. 2000), 353 Sanfilippo v. Provident Life & Cas. Ins. Co., 178 F. Supp. 2d 450 (S.D.N.Y. 2002), 57 Sanford v. Harvard Indus. Inc., 262 F.3d 590 (6th Cir. 2001), 249, 251 Sanford v. Premier Millwork & Lumber Co., 234 F. Supp. 2d 569 (E.D. Va. 2002), 204 Sansby v. Prudential Ins. Co., Slip Copy, 2009 WL 799468 (D. Mass 2009), 46 Santaliz Rios v. Metro. Life Ins. Co., 693 F.3d 57 (1st Cir. 2012), 32 Santana v. Deluxe Corp., 920 F. Supp. 249 (D. Mass. 1996), 30, 34, 40 Santini v. Cytec Ind., Inc., 537 F. Supp. 2d 1230 (S.D. Ala. 2008), 456 Santino v. Provident Life & Accid. Ins. Co., 276 F.3d 772 (6th Cir. 2001), 238, 274, 276 Santos v. Quebecor World Long Term Disability Plan, 254 F.R.D. 643 (E.D. Cal. 2009), 361

1387

Sapovits v. Fortis Benefits Ins. Co., No. 01-3628, 2002 WL 31923047 (E.D. Pa. Dec. 30, 2002), 109 Sarraf v. Standard Ins. Co., 102 F.3d 991 (9th Cir. 1996), 336 Saunders v. Verizon Commc’ns, Inc., 2006 U.S. Dist. LEXIS 40296 (N.D. W. Va. 2006), 194 Savani v. Wash. Safety Mgmt. Solutions, LLC, 2012 U.S. Dist. LEXIS 121687 (D.S.C. 2012), 202 Sawyer v. Potash Corp. of Sask., 417 F. Supp. 2d 730 (E.D.N.C. 2006), 170, 172, 181, 183, 194 Saylor v. Unum Life Ins. Co. of Am., 2011 WL 2883320 (C.D. Cal. 2011), 342 Scannell v. Metro. Life Ins. Co., 2003 WL 22722954 (S.D.N.Y. Nov. 18, 2003), 65, 67 Scarangella v. Group Health Inc., 2013 WL 4792466 (2d Cir. Sept. 10, 2013), 83 Scarinci v. Ciccia, 880 F. Supp. 359 (E.D. Pa. 1995), 122 Schaefer v. Ark. Med. Soc’y, 853 F.2d 1487 (8th Cir. 1988), 527 Schaffer v. Prudential Ins. Co. of Am., 301 F. Supp. 2d 383 (E.D. Pa. 2003), 108

1388

Schaffer v. Westinghouse Savannah River Co., 135 F. App’x 568, 2005 WL 567812 (4th Cir. 2005), 170 Scharff v. Raytheon Co. Short Term Disability Plan, 581 F.3d 899 (9th Cir. 2009), 384 Scheider v. Life Ins. Co. of N. Am., 820 F. Supp. 191 (D.N.J. 1993), 118 Schexnayder v. Hartford Life & Acc. Ins. Co., 600 F.3d 465 (5th Cir. 2010), 217 Schey v. UNUM Life Ins. Co. of N. Am., 145 F. Supp. 2d 919 (N.D. Ohio 2001), 255 Schindler v. Metro. Life Ins. Co., 141 F. Supp. 2d 1073 (M.D. Fla. 2001), 459 Schmidt v. Sheet Metal Workers’ Nat’l Pension Fund, 128 F.3d 541 (7th Cir. 1997), 299 Schmir v. Prudential Ins. Co. of Am., 2003 WL 22466168 (D. Me. 2003), 46–47 Schneider v. Sentry Group Long Term Dis. Plan, 422 F.3d 621 (7th Cir. 2005), 300–301, 304 Schneider v. Unum Life Ins. Co. of Am., 149 F. Supp. 2d 169 (E.D. Pa. 2001), 99, 100, 101 Schnur v. CTC Comm. Corp. Group Disability Plan, 2010 WL 1253481 (S.D.N.Y. Mar. 29, 2010), 95

1389

Schnur v. CTC Communications Corp. Group Disability Plan, 621 F. Supp. 2d 96 (S.D.N.Y. 2008), 72 Schoedinger v. United Healthcare of Mw., Inc., 557 F.3d 872 (8th Cir. 2009), 326 Schorsch v. Reliance Standard Life Ins. Co., 693 F.3d 734 (7th Cir. 2012), 283, 284, 304 Schrader v. Trucking Emps. of N. Jersey Welfare Fund, Inc., 232 F. Supp. 2d 560 (M.D.N.C. 2002), 204 Schreibeis v. Ret. Plan for Emps. of Duquesne Light Co., No. 04-969, 2005 WL 3447919 (W.D. Pa. Dec. 15, 2005), 122, 138 Schultz v. Aviall, Inc. LTD Plan, 670 F.3d 834 (7th Cir. 2012), 291 Schultz v. Nat’l Coal. of Hispanic Mental Health & Human Servs. Orgs., 678 F. Supp. 936 (D.D.C. 1988), 497 Schultz v. Windstream Commc’ns, 600 F.3d 948 (8th Cir. 2010), 327 Schwade v. Total Plastics, Inc., 837 F. Supp. 2d 1255 (M.D. Fla. 2011), 461, 462 Schwalm v. Guardian Life Ins. Co., 626 F.3d 299 (6th Cir. 2010), 250, 260

1390

Schwartz v. Independence Blue Cross, 299 F. Supp. 2d 441 (E.D. Pa. 2003), 98 Schwartz v. Oxford Health Plans, Inc., 175 F. Supp. 2d 581 (S.D.N.Y. 2001), 76 Schwartz v. Provident Life and Acc. Ins. Co., 280 F. Supp. 2d 937 (D. Ariz. 2003), 337 Schwartz v. Prudential Ins. Co., 450 F.3d 697 (7th Cir. 2006), 286, 289 Schwarz v. Secretary of Health & Human Servs., 73 F.3d 895 (9th Cir. 1995), 375 Schwob v. Standard Ins. Co., 37 F. App’x 465 (10th Cir. 2002), 403 Scibelli v. Prudential Ins. Co. of Am., 666 F.3d 32 (1st Cir. 2012), 27 Scippio v. Fla. Combined Life Ins. Co., 585 F. Supp. 2d 1317 (N.D. Fla. 2008), 454 Scott v. Eaton Corp. Long Term Disability Plan, 454 Fed. App’x 154 (4th Cir. 2011), 199 Scott v. Hartford Life & Acc. Ins. Co., No. 03-3696, 2004 WL 1090994 (E.D. Pa. May 13, 2004), 138 Scott v. Regions Bank, 702 F. Supp. 2d 921 (E.D. Tenn. 2010), 249, 274

1391

Scruggs v. ExxonMobil Pension Plan, 585 F.3d 1356 (10th Cir. 2009), 408, 428 Seabrooke v. Arch Communications Group, Inc., 2003 WL 21434915 (D.N.H. June 20, 2003), 5 Seal v. John Alden Life Ins. Co., 437 F. Supp. 2d 674 (E.D. Mich. 2006), 274 Seales v. Amoco Corp., 82 F. Supp. 2d 1312 (M.D. Ala. 2000), 455 Sealy, Inc. v. Nationwide Mut. Ins. Co., 286 F. Supp. 2d 625 (M.D.N.C. 2003), 155 Seaway Food Town, Inc. v. Med. Mut., 347 F.3d 610 (6th Cir. 2003), 265, 266, 267, 268 Seborowski v. Pittsburgh Press Co., 188 F.3d 163 (3d Cir. 1999), 129 Sec. Mut. Life Ins. Co. of N.Y. v. Joseph, No. 06-cv-4804, 2007 WL 1944345 (E.D. Pa. July 2, 2007), 120 SEC v. First Jersey Sec., Inc., 101 F.3d 1450 (2d Cir. 1996), 94 Secretary of Labor v. King, 775 F.2d 666 (6th Cir. 1985), 270, 271 Sedlack v. Braswell Serv., 134 F.3d 219 (4th Cir. 1998), 159

1392

Segar v. Reliastar Life, 2005 WL 2249905 (N.D. Fla. Sept. 14, 2005), 480 Seitz v. Metro. Life Ins. Co., 433 F.3d 647 (8th Cir. 2006), 330 Seitzman v. Sun Life Ins. Co. of Can., Inc., 311 F.3d 487 (2d Cir. 2002), 85, 87 Sejdic v. Group Long-Term Dis. Plan for Employees of Homeside Lending, Inc., 348 F. Supp. 2d 1313 (M.D. Fla. 2004), 445 Sejman v. Warner-Lambert Co., 889 F.2d 1346 (4th Cir. 1989), 165 Selkridge v. United of Omaha Life Ins. Co., 221 F. Supp. 2d 579 (D.V.I. Feb. 21, 2002), 99 Seman v. FMC Corp. Ret. Plan for Hourly Emps., 334 F.3d 728 (8th Cir. 2003), 319 Sembos v. Philips Components, 376 F.3d 696 (7th Cir. 2004), 281 Semien v. Life Ins. Co. of N. Am., 436 F.3d 805 (7th Cir. 2006), 285, 287–288, 289, 293, 294 Semtner v. Group Health Serv. of Okla., Inc., 129 F.3d 1390 (10th Cir. 1997), 410 Senese v. Chicago Area Int’l. Brotherhood of Teamsters Pension Plan, 237 F.3d 819 (7th Cir. 2001), 285, 298, 303

1393

Sengpiel v. B.F. Goodrich Co., 156 F.3d 660 (6th Cir. 1998), 266 Serbanic v. Harleysville Life Ins. Co., 325 F. App’x 86 (3d Cir. 2009), 122 Serbanic v. Harleysville Life Ins. Co., No. 07-213, 2007 WL 4456305 (E.D. Pa. Dec. 17, 2007), 114 Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006), 93, 132, 140, 197, 234, 269, 276, 277, 305, 332, 389, 390, 482, 518, 529, 530 Serrapica v. Long-Term Disability Plan of the Chase Manhattan Bank, 2007 WL 2262878 (E.D.N.Y. Aug. 3, 2007), 63 Serrato v. John Hancock Mut. Life Ins. Co., 31 F.3d 882 (9th Cir. 1994), 360 Serton v Lockheed Martin Corp., 459 Fed. App’x 463, 2012 WL 360025 (5th Cir.), 231 Sethi v. Seagate U.S. LLC Group Disability Income Plan, 2012 WL 3834948 (N.D. Cal. 2012), 362 Settles v. Golden Rule Ins. Co., 927 F.2d 505 (10th Cir. 1991), 399 Sewell v. 1199 Nat’l Benefit Fund, 2008 WL 5262363 (2d Cir. Dec. 18, 2008), 85

1394

Shade v. Panhandle Motor Serv. Corp., 91 F.3d 133 (tbl.), 1996 WL 386611 (4th Cir. 1996), 183 Shaffer v. Foster-Miller, Inc., 650 F. Supp. 2d 124 (D. Mass. 2009), 46 Shah v. Deaconess Hosp., 355 F.3d 496 (6th Cir. 2004), 238 Sharp Surgery Center v. SHPS, Inc., 2011 WL 686121 (C.D. Cal. 2011), 347 Shaver v. Operating Eng’r Local 428 Pension Trust Fund, 332 F.3d 1198 (9th Cir. 2003), 359 Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d 1276 (11th Cir. 2003), 445, 451, 455, 456 Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983), 6, 98, 149, 495 Shaw v. McFarland Clinic, P.C., 363 F.3d 744 (8th Cir. 2004), 332 Shea v. Esensten, 107 F.3d 625 (8th Cir. 1997), 313 Sheckley v. Lincoln Nat’l Corp. Employees’ Retirement Fund, 2004 WL 2905347 (D. Me. 2004), 47 Sheehan v. Metro. Life Ins. Co., 2002 WL 1424592 (S.D.N.Y. June 28, 2002), 69, 72

1395

Sheehan v. Metro. Life Ins. Co., 2003 WL 22290230 (S.D.N.Y. Oct. 6, 2003), 71 Shelby Cnty. Health Care Corp. v. Majestic Star Casino, LLC, 581 F.3d 355 (6th Cir. 2009), 251 Shelton v. ContiGroup Cos., Inc., 285 F.3d 640 (8th Cir. 2002), 316–317 Sheppard & Enoch Pratt Hosp., Inc. v. Travelers Ins. Co., 32 F.3d 120 (4th Cir. 1994), 166, 167, 171, 193 Sheward v. Bechtel Jacobs Co. LLC, 2010 WL 841301 (E.D. Tenn. 2010), 272 Shiffler v. Equitable Life Assurance Soc’y of the U.S., 663 F. Supp. 155 (E.D. Pa. 1986), 100, 101 Shirk v. Fifth Third Bankcorp, 2009 WL 692124 (S.D. Ohio Jan. 29, 2009), 272 Shofer v. Stuart Huck Co., 970 F.2d 1316 (4th Cir. 1992), 195, 196, 197 Shook v. Avaya Inc., 625 F.3d 69 (3d Cir. 2010), 130 Shoop v. Life Ins. Co. of N. Am., 839 F. Supp. 2d 830 (E.D. Va. 2011), 174 Shvartsman v. Long Term Dis. Income Plan for Choices Eligible Employees of Johnson & Johnson, No. 11-03643, 2012 WL 2118126 (D.N.J. June 11, 2012), 117, 120, 121

1396

Shyman v. Unum Life Ins. Co., 427 F.3d 452 (7th Cir. 2005), 280, 285, 288, 289 Sibley-Schreiber v. Oxford Health Plans (N.Y.), Inc., 62 F. Supp. 2d 979 (E.D.N.Y. 1999), 63 Sidou v. UnumProvident, 245 F. Supp. 2d 207 (D. Me. 2003), 11, 46 Siemon v. AT&T Corp., 117 F.3d 1173 (10th Cir. 1997), 393 Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), 7 Silva v. Metro. Life Ins. Co., 2012 U.S. Dist. LEXIS 40713 (E.D. Mo. Mar. 26, 2012), 326 Silvera v. Mut. Life Ins. Co. of N.Y., 884 F.2d 423 (9th Cir. 1989), 336 Silvernail v. Ameritech Pension Plan, 439 F.3d 355 (7th Cir. 2006), 294 Simmons v. Prudential Ins. Co. of Am., 564 F. Supp. 2d 515 (E.D.N.C. 2008), 175 Simmons v. Willcox, 911 F.2d 1077 (5th Cir. 1990), 213, 230 Simonia v. Glendale Nissan/Infiniti Disability Plan, 608 F.3d 1118 (9th Cir. 2010), 371

1397

Simpson v. Ernst & Young, 100 F.3d 436 (6th Cir. 1996), 238 Sims v. Apfel, 530 U.S. 103 (2000), 352 Singh v. Prudential Health Care Plan, Inc., 335 F.3d 278 (4th Cir. 2003), 152, 153, 187 Singleton v. Temp. Dis. Benefits Plan, 2006 U.S. App. LEXIS 12318 (4th Cir. 2006), 197 Sipma v. Mass. Cas. Ins. Co., 256 F.3d 1006 (10th Cir. 2001), 393, 394, 395, 396 Site-Blauvelt Eng’rs, Inc. v. First Union Corp., 153 F. Supp. 2d 707 (E.D. Pa. 2001), 133 Sitso v. Int’l Steel Group, No. 5:11-cv-2592, 2013 U.S. Dist. LEXIS 45565 (N.D. Ohio Mar. 29, 2013), 265 Sivalingam v. Unum Life Ins. Co., No. 09-4702, 2011 WL 1584055 (E.D. Pa. Apr. 26, 2011), 119, 141 Six Clinics Holdings Corp. II v. Catcomp Sys., Inc., 119 F.3d 393 (6th Cir. 1997), 272 Skilstaf Inc. v. Adminitron, Inc., 66 F. Supp. 2d 1210 (M.D. Ala. 1999), 436 Skinner v. Northrop Grumman Retirement Plan B., 673 F.3d 1162 (9th Cir. 2012), 366, 367

1398

Skipp v. Hartford Life Ins. Co., 2008 U.S. Dist. LEXIS 8884 (D. Md. 2008), 194 Skretvedt v. E.I. Du Pont de Nemours & Co., 262 F. Supp. 2d 366 (D. Del. 2003), 136 Skretvedt v. E.I. DuPont de Nemours & Co., 268 F.3d 167 (3d Cir. 2001), 114, 124–125 Skretvedt v. E.I. DuPont de Nemours & Co., 372 F.3d 193 (3d Cir. 2004), 132, 137, 487 Slamen v. Paul Revere Life Ins. Co., 166 F.3d 1102 (11th Cir. 1999), 394, 432, 478 Slayhi v. High-Tech Institute, 2007 U.S. Dist. LEXIS 89192 (D. Minn. Dec. 3, 2007), 326 Slupinski v. First Unum Life Ins. Co., 554 F.3d 38 (2d Cir. 2009), 84, 94 Slusarski v. Life Ins. Co. of N. Am., 632 F. Supp. 2d 159 (D.R.I. 2009), 22, 24 Smart v. Gillette Co. Long-Term Dis. Plan, 70 F.3d 173 (1st Cir. 1995), 20 Smart v. Gillette Co. Long-Term Dis. Plan, 887 F. Supp. 383 (D. Mass.), 45 Smathers v. Multi-Tool, Inc./Multi-Plastics, Inc. Emp. Health & Welfare Benefit Plan, 298 F.3d 191 (3d Cir. 2002), 109, 115

1399

Smiljanich v. Gen. Motors Corp., 302 Fed. App’x 443 (6th Cir. 2008), 254, 271 Smith v. Am. Int’l Life Assur. Co., 50 F.3d 956 (11th Cir. 1995), 459, 486 Smith v. Bayer Corp. Long Term Disability Plan, 275 Fed. App’x 495 (6th Cir. 2008), 253 Smith v. Blue Cross Blue Shield of La., 2008 U.S. Dist. LEXIS 8323 (W.D. La. 2008), 224 Smith v. Blue Cross Blue Shield of Mass., 597 F. Supp. 2d 214 (D. Mass 2009), 45 Smith v. Champion Int’l Corp., 220 F. Supp. 2d 124 (D. Conn. 2002), 83 Smith v. CMTA-IAM Pension Trust, 746 F.2d 587 (9th Cir. 1984), 369, 370 Smith v. Cont’l Cas. Co., 303 F. Supp. 2d 560 (E.D. Pa. 2002), 126 Smith v. Cont’l Cas. Co., 369 F.3d 412 (4th Cir. 2004), 175, 177 Smith v. Delta Air Lines Inc., 422 F. Supp. 2d 1310 (N.D. Ga. 2006), 464 Smith v. Gen. Motors Corp., 791 F. Supp. 701 (S.D. Ohio 1992), 249

1400

Smith v. Hartford Ins. Group, 6 F.3d 131 (3d Cir. 1993), 97, 115, 128 Smith v. Hartford Life & Acc. Ins. Co., 2013 WL 394185 (N.D. Cal. 2013), 344 Smith v. Health Servs., 314 F. App’x 848 (6th Cir. 2009), 256 Smith v. Jefferson Pilot Fin. Ins. Co., 245 F.R.D. 45 (D. Mass. 2007), 24, 44, 46 Smith v. Jefferson Pilot Life Ins. Co., 14 F.3d 562 (11th Cir. 1994), 479 Smith v. Life Ins. Co. of N. Am., 466 F. Supp. 2d 1275 (N.D. Ga. 2006), 484 Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236 (2d Cir. 2002), 82 Smith v. Metro. Life Ins. Co., 344 F. Supp. 2d 696 (D. Colo. 2004), 415 Smith v. Miller Brewing Co. Health Benefits Program, 860 F. Supp. 855 (M.D. Ga. 1994), 476, 477 Smith v. Provident Bank, 170 F.3d 609 (6th Cir. 1999), 261, 266, 270 Smith v. Prudential Health Care Plan, Inc., No. 97-891, 1997 WL 587340 (E.D. Pa. Sept. 10, 1997), 107

1401

Smith v. Sydnor, 184 F.3d 356 (4th Cir. 1999), 157, 158 Smith v. Tex. Children’s Hosp., 84 F.3d 152 (5th Cir. 1996), 210 Smith v. Westvaco Corp., 399 F. Supp. 2d 692 (D.S.C. 2005), 194 Smorto v. 3DI Techs., Inc., 393 F. Supp. 2d 1304 (M.D. Fla. 2005), 445 Snow v. Borden, Inc., 802 F. Supp. 550 (D. Me. 1992), 12 Soland v. George Washington Univ., No. 10-cv-2034 (RLW), 2013 WL 66219 (D.D.C. Jan. 7, 2013), 518 Solis v. Food Employers Labor Relations Ass’n, 644 F.3d 221 (4th Cir. 2011), 170 Solis v. Malkani, 638 F.3d 269 (4th Cir. 2011), 188 Solis v. Plan Benefits Services, Inc., 620 F. Supp. 2d 131 (D. Mass. 2009), 40 Solis v. Zenith Capital, LLC, 2009 WL 1324051 (N.D. Cal. 2009), 351 Sollon v. Ohio Cas. Ins. Co., No. 02-1632, 2005 WL 2768948 (W.D. Pa. Oct. 25, 2005), 122 Sollon v. The Ohio Cas. Ins. Co., 396 F. Supp. 2d 560 (W.D. Pa. 2005), 126

1402

Solomon v. Medical Mut. of Ohio, 411 Fed. App’x 788 (6th Cir. 2011), 249 Solutia Inc. v. Forsberg, 221 F. Supp. 2d 1280 (N.D. Fla. 2002), 478 Sommer Drug Stores v. Corrigan Enterprises, Inc., 793 F.2d 1456 (5th Cir. 1986), 496 Sorel v. CIGNA, 1994 WL 605726 (D.N.H. 1994), 42 Sorensen v. Metro. Life Ins. Co., 2009 WL 901864 (D. Mass. 2009), 43 Soron v. Liberty Life Assur. Co. of Boston, 2005 WL 1173076 (N.D.N.Y. May 2, 2005), 73 Sorrels v. Sun Life Assur. Co. of Can., 85 F. Supp. 2d 1221 (S.D. Ala. 2000), 445 Sousa v. Unilab Corp. Class II (Non-Exempt) Members Group Benefit Plan, 83 F. App’x 954 (9th Cir. 2003), 384 Sousa v. Unilab Corp. Class II (Non-Exempt) Members Group Benefit Plan, 252 F. Supp. 2d 1046 (E.D. Cal. 2002), 383, 384 Southern Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98 (5th Cir. 1993), 510 Spagnolia v. Dakota Neuro-surgical Assocs., P.C., No. A1-03-087, 2003 WL 23101775 (D.N.D. Dec. 19, 2003), 315

1403

Spain v. Aetna Life Ins. Co., 11 F.3d 129 (9th Cir. 1993), 338 Sparkman v. Prudential Ins. Co. of Am., 427 F. Supp. 2d 1117 (D. Utah 2006), 414 Sparks v. Life Investors Ins. Co., 818 F. Supp. 945 (N.D. Miss. 1993), 224 Spears v. Liberty Life Ass. Co. of Boston, 885 F. Supp. 2d 546 (D. Conn. 2012), 58 Specialty Cabinets & Fixtures Inc. v. Am. Equitable Life Ins. Co., 140 F.R.D. 474 (S.D. Ga. 1991), 460, 488 Spectrum Health v. Valley Truck Parts, 2008 WL 2246048 (W.D. Mich. May 30, 2008), 274 Sperando v. Lorillard Tobacco Co., 460 F.3d 866 (7th Cir. 2006), 285–286, 289 Spillane v. AXA Fin., Inc., 648 F. Supp. 2d 690 (E.D. Pa. 2009), 99 Spradley v. Owens-Illinois Hourly Emps. Welfare Benefit Plan, 686 F.3d 1135 (10th Cir. 2012), 424 Sprague v. Cent. States, Se. & Sw. Areas Pension Fund, 269 F.3d 811 (7th Cir. 2001), 301 Sprague v. Gen. Motors Corp., 133 F.3d 388 (6th Cir. 1998), 254, 262, 277

1404

Sprecher v. Aetna U.S. Healthcare, Inc., No. 02-580, 2002 WL 1917711 (E.D. Pa. Aug. 19, 2002), 108 Springer v. Wal-Mart Assocs. Group Health Plan, 908 F.2d 897 (11th Cir. 1990), 440, 442 Sprint Corp. ERISA Litig., In re, 388 F. Supp. 2d 1207 (D. Kan. 2004), 521 Spry v. Eaton Corp. Long Term Disability Plan, 326 F. App’x 674, 2009 WL 1524934 (4th Cir. 2009), 175 Spry v. Eaton Corp. LTD Plan, 326 Fed. App’x 674 (4th Cir. 2009), 162 St. Francis Reg’l Med. Ctr. v. Blue Cross & Blue Shield of Kan., Inc., 49 F.3d 1460 (10th Cir. 1995), 399 Staats v. Procter & Gamble Long Term Dis. Allowance Plan, No. 11-1320, 2012 WL 3705000 (W.D. Pa. Aug. 27, 2012), 135 Stahl v. Exxon Corp., 212 F. Supp. 2d 657 (S.D. Tex. 2002), 230 Stallings v. IBM Corp., No. 08-3121, 2009 WL 2905471 (D.N.J. Sept. 8, 2009), 139 Stamp v. Metro. Life Ins. Co., 531 F.3d 84 (1st Cir. 2008), 20, 21 Standard Ins. Co. v. Morrison, 584 F.3d 837 (9th Cir. 2009), 343, 358

1405

Stanford v. Continental Cas. Co., 514 F.3d 354 (4th Cir. 2008), 193, 200 Stanley v. Metro. Life Ins. Co., 312 F. Supp. 2d 786 (E.D. Va. 2004), 168 Stark v. PPM Am., 354 F.3d 666 (7th Cir. 2004), 283, 303 Starr v. MGM Mirage, No. 2:06-cv-00616-RLH-RJJ, 2007 WL 1560335 (D. Nev. May 23, 2007), 361 State Farm Mut. Auto. Ins. Co. v. Smith, 342 F. Supp. 2d 541 (W.D. Va. 2004), 155 State of Minn. by Ulland v. Int’l Ass’n of Entrepreneurs of Am., 858 F. Supp. 937 (D. Minn. 1994), 311 Stauch v. Unisys Corp., 24 F.3d 1054 (8th Cir. 1994), 333 Stearns v. NCR Corp., 297 F.3d 706 (8th Cir. 2002), 320 Steele v. Boeing Co., 225 F. App’x 71 (3d Cir. 2007), 124 Steele v. United Parcel Serv., Inc., 499 F. Supp. 2d 1035 (E.D. Tenn. 2007), 242, 243 Steen v. John Hancock Mut. Life Ins. Co., 106 F.3d 904 (9th Cir. 1997), 335 Stefansson v. Equitable Life Assur. Soc’y of the U.S., 2005 WL 2277486 (M.D. Ga. Sept. 19, 2005), 434, 480

1406

Stegelmeier v. Doug Andrus Distrib. Inc., 2004 U.S. Dist. LEXIS 29222 (D. Utah Jan. 12, 2004), 425 Stein v. Smith, 270 F. Supp. 2d 157 (D. Mass. 2003), 43 Stepanski v. Sun Microsystems, Inc., No. 10-2700, 2011 WL 8990579 (D.N.J. Dec. 9, 2011), 118 Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917 (9th Cir. 2012), 354, 357, 361 Stephens v. US Airways Group, 555 F. Supp. 2d 112 (D.D.C. 2008), 521 Sterio v. HM Life, 2010 U.S. App. LEXIS 4615 (9th Cir. 2010), 390 Stern v. IBM Corp., 326 F.3d 1367 (11th Cir. 2003), 479 Stern v. Provident Life & Accid. Ins. Co., 295 F. Supp. 2d 1321 (M.D. Fla. 2003), 433 Stevens v. Emp’r-Teamsters Joint Council No. 84 Pension Fund, 979 F.2d 444 (6th Cir. 1992), 276 Stevens v. Metro. Life Ins., 2006 U.S. Dist. LEXIS 76504 (D. Colo. Oct. 20, 2006), 415 Stevens v. Santander Holdings USA, Inc. Self-Insured Short Term Dis. Plan, No. 11-7473, 2013 WL 322628 (D.N.J. Jan. 28, 2013), 109, 117

1407

Stevenson v. Bank of N.Y. Co., 609 F.3d 56 (2d Cir. 2010), 58 Stewart v. Berry Family Healthcenter, 105 F. Supp. 2d 807 (S.D. Ohio 2000), 245 Stewart v. KHD Deutz, 980 F.2d 698 (11th Cir. 1993), 458 Stewart v. Nat’l Educ. Ass’n, 404 F. Supp. 2d 122 (D.D.C. 2005), 496, 508, 520, 525 Stewart v. NYNEX Corp., 78 F. Supp. 2d 172 (S.D.N.Y. 1999), 63 Stiltner v. Beretta U.S.A. Corp., 74 F.3d 1473 (4th Cir. 1996), 149, 151 Stolarz v. Rosen, 2009 WL 691206 (S.D.N.Y. Mar. 11, 2009), 83 Stoll v. W. & S. Life Ins. Co., No. 01-3401, 64 Fed. App’x 986 (6th Cir. 2003), 251, 274 Stone v. Unocal Termination Allowance Plan, 570 F.3d 252 (5th Cir. 2009), 215, 217 Stonewall Jackson Mem. Hosp. v. Am. United Life Ins. Co., 963 F. Supp. 553 (N.D. W. Va. 1997), 203 Straub v. W. Union Tel. Co., 851 F.2d 1262 (10th Cir. 1988), 400

1408

Strickland v. AT&T Umbrella Benefit Plan No. 1, 2012 WL 4511367 (W.D.N.C. 2012), 182 Strom v. Goldman Sachs & Co., 202 F.3d 138 (2d Cir. 1999), 78, 92, 93 Strom v. Siegel Fenchel & Peddy P.C. Profit Sharing Plan, 497 F.3d 234 (2d Cir. 2007), 66 Strope v. Unum Provident Corp., 2009 U.S. Dist. LEXIS 19383 (W.D.N.Y. Mar. 11, 2009), 69 Stuart v. Unum Life Ins. Co. of Am., 217 F.3d 1145 (9th Cir. 2000), 336, 337 Stup v. Unum Life Ins. Co. of Am., 390 F.3d 301 (4th Cir. 2004), 172 Sturgis v. Mattel, Inc., 525 F. Supp. 2d 695 (D.N.J. 2007), 98 Stvartak v. Eastman Kodak Co., 945 F. Supp. 1532 (M.D. Fla. 1996), 457 Sullivan v. LTV Aerospace & Def. Co., 82 F.3d 1251 (2d Cir. 1996), 66, 75, 76, 78 Sullivan v. Raytheon Co., 262 F.3d 41 (1st Cir. 2001), 21 Sultan v. Lincoln Nat’l Corp., No. 03-5190, 2006 WL 1806463 (D.N.J. June 30, 2006), 107

1409

Summers v. State Street Bank & Trust Co., 453 F.3d 404 (7th Cir. 2007), 301 Sunderlin v. First Reliance Standard Life Ins. Co., 235 F. Supp. 2d 222 (W.D.N.Y. 2002), 82 SunTrust Bank v. Aetna Life Ins. Co., 251 F. Supp. 2d 1282 (E.D. Va. 2003), 156, 157, 158 Suozzo v. Bergreen, 2003 WL 22387083 (S.D.N.Y. Oct. 20, 2003), 71 Suskovich v. Anthem Health Plans of Virginia, 553 F.3d 559 (7th Cir. 2009), 280 Sutera v. Aetna Life Ins. Co., 2007 WL 3020187 (D. Mass. Oct. 11, 2007), 23 Sutter v. First Union Nat’l Bank, 932 F. Supp. 753 (E.D. Va. 1996), 195 Swaback v. Am. Info. Techs. Corp., 103 F.3d 535 (7th Cir. 1996), 300 Swanson v. Hearst Corp. Long Term Disability Plan, 586 F.3d 1016 (5th Cir. 2009), 214 Sweeney v. Standard Ins. Co., 276 F. Supp. 2d 388 (E.D. Pa. 2003), 124 Swerhun v. Guardian Life Ins. Co. of Am., 979 F.2d 195 (11th Cir. 1992), 436

1410

Swinger v. The Hartford, No. 08-cv-1387, 2009 WL 1248080 (W.D. Pa. Apr. 30, 2009), 117, 121 Swisher-Sherman v. Provident Life & Accid. Ins. Co., No. 93-3959, 1994 U.S. App. LEXIS 28768 (6th Cir. Oct. 13, 1994), 252 Syed v. Hercules Inc., 214 F.3d 155 (3d Cir. 2000), 138 Sys. Council EM-3 v. AT&T Corp., 159 F.3d 1376 (D.C. Cir. 1998), 510 Sznewajis v. Bancorp Amended & Restated Supplemental Benefits Plan, 572 F.3d 727 (9th Cir. 2009), 354

T.A. Loving Co. v. Denton, 723 F. Supp. 2d 837 (E.D.N.C. 2010), 198 Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478 (6th Cir. 2009), 263, 264 Taft v. Equitable Life Assur. Soc., 9 F.3d 1469 (9th Cir. 1993), 354 Taggart Corp. v. Life & Health Benefits Administration, Inc., 617 F.2d 1208 (5th Cir. 1980), 207 Talley v. Kan. City Life Ins. Co., 2006 U.S. Dist. LEXIS 17168 (E.D. Tenn. Feb. 28, 2006), 274

1411

Tannenbaum v. Unum Life Ins. Co. of Am., No. 03-1410, 2006 WL 2671405 (E.D. Pa. Sept. 15, 2006), 99 Tannenbaum v. Unum Life Ins. Co. of Am., No. 03-CV-1410, 2004 WL 1084658 (E.D. Pa. Feb. 27, 2004), 131 Tarigo v. Aetna Life Ins. Co., 2012 U.S. Dist LEXIS 183800 (S.D. Fla. 2012), 449 Tarr v. State Mut. Life Assur. Co. of Am., 913 F. Supp. 40 (D. Mass. 1996), 11, 12 Tate v. Long Term Dis. Plan for Salaried Employees of Champion Int’l Corp., 545 F.3d 555 (7th Cir. 2008), 301 Tatum v. R.J. Reynolds Tobacco Co., 247 F.R.D. 488 (M.D.N.C. 2008), 170 Tatum v. R.J. Reynolds Tobacco Co., 254 F.R.D. 59 (M.D.N.C. 2008), 202 Tatum v. Special Ins. Servs., 2003 WL 22922302 (5th Cir. 2003), 206 Tavares v. Unum Corp., 17 F. Supp. 2d 69 (D.R.I. 1998), 45 Taylor v. Peoples Natural Gas Co., 49 F.3d 982 (3d Cir. 1995), 129 Taylor v. Unum Life Ins. Co. of Am., No. 2:07-cv-724, 2008 WL 144204 (W.D. Pa. Jan. 11, 2008), 139

1412

Teamsters & Employers Welfare Trust of Ill. v. Gorman Bros. Ready Mix, 283 F.3d 877 (7th Cir. 2002), 305 Teamsters Local 639—Emp’rs Pension Trust v. United Parcel Serv., Inc., 752 F. Supp. 500 (D.D.C. 1990), 517 Tebo v. Sedgwick Claims Management Services, Inc., 848 F. Supp. 2d 39 (D. Mass. 2012), 29 Tebo v. Sedgwick Claims Mgmt. Servs., Inc., 2010 WL 2036961 (D. Mass. May 20, 2010), 22, 25, 44 TECO Coal Corp. v. Looney, 2008 U.S. Dist. LEXIS 95826 (W.D. Va. 2008), 198 Tegtmeier v. Midwest Operating Eng’rs, 390 F.3d 1040 (7th Cir. 2004), 295, 300 Teisman v. United of Omaha Life Ins. Co., No. 1:11-CV-1211, 2012 U.S. Dist. 160130 (W.D. Mich. Nov. 8, 2012), 265 Templin v. Independence Blue Cross, No. 09-4092, 2011 WL 3664427 (E.D. Pa. Aug. 19, 2011), 135 Tenn. Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632 (1st Cir. 1994), 39 Termini v. Life Ins. Co. of N. Am., 474 F. Supp. 2d 775 (E.D. Va. 2007), 180 Terry v. Bayer Corp., 145 F.3d 28 (1st Cir. 1998), 4, 5, 10, 11, 12, 13, 19, 21, 30, 36, 40, 45

1413

Testa v. Hartford Life Ins. Co., 483 F. App’x 598 (2d Cir. 2012), 89 Tester v. Reliance Standard Life Ins. Co., 228 F.3d 372 (4th Cir. 2000), 173 Tetreault v. Reliance Standard Life Ins. Co., 2011 WL 7099961 (D. Mass. Nov. 28, 2011), 14, 43 Tetreault v. Reliance Standard Life Ins. Co., 2013 WL 823314 (D. Mass. Mar. 5, 2013), 44 Therrell v. Cameron, 1997 U.S. Dist. LEXIS 20294 (M.D.N.C. 1997), 204 Thomas v. Burlington, 763 F. Supp. 1570 (S.D. Fla. 1991), 450 Thomas v. CSX Corp., 2005 WL 2756214 (M.D. Fla. 2005), 477 Thomas v. Kimberly-Clark Corp., No. 07-3988, 2008 WL 4977762 (E.D. Pa. Nov. 20, 2008), 129 Thomas v. SmithKline Beecham Corp., 297 F. Supp. 2d 773 (E.D. Pa. 2003), 139 Thomas v. Telemecanique, Inc., 768 F. Supp. 503 (D. Md. 1991), 151 Thomas v. The Hartford Life Ins. Co. of Am., 2013 WL 53710 (S.D.N.Y. Jan. 2, 2013), 74

1414

Thomas v. Wells Fargo Ins. Servs., 2010 U.S. Dist. LEXIS 95973 (S.D. W. Va. 2010), 203 Thompson v. Am. Home Assur. Co., 95 F.3d 429 (6th Cir. 1996), 237, 239, 240, 273 Thompson v. Gencare Health Sys., Inc., 202 F.3d 1072 (8th Cir. 2000), 313 Thompson v. Life Ins. Co. of N. Am., 30 F. App’x 160, 2002 U.S. App. LEXIS 3390 (4th Cir. 2002), 195 Thompson v. Talquin Bldg. Prods. Co., 928 F.2d 649 (4th Cir. 1991), 155 Thompson v. UBS Fin. Servs., Inc., 2009 WL 5103284 (D.R.I. Dec. 18, 2009), 23, 24 Thornton v. Graphic Commc’ns Conf., 566 F.3d 597 (6th Cir. 2009), 268 Thorpe v. Ret. Plan of Pillsbury Co., 80 F.3d 439 (10th Cir. 1996), 422 Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286 (5th Cir. 1998), 218 Thurber v. Aetna Life Ins. Co., 712 F.3d 654 (2d Cir. 2013), 79, 94 Thurman v. Pfizer, Inc., 484 F.3d 855 (6th Cir. 2007), 242 Tibble v. Edison Int’l, 711 F.3d 1061 (9th Cir. 2013), 388

1415

Tiger v. AT&T Techs. Plan, 633 F. Supp. 532 (E.D.N.Y. 1986), 64 Tinley v. Gannett Co., 55 F. App’x 74 (3d Cir. 2003), 140 Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227 (11th Cir. 2006), 445 Tocker v. Kraft Foods N. Am. Inc. Ret. Plan, 2012 WL 3711343 (2d Cir. Aug. 29, 2012), 81 Todd v. Aetna Health Plans, 31 F. App’x 13 (2d Cir. 2002), Todd v. AIG Life Ins. Co., 47 F.3d 1448 (5th Cir. 1995), 218, 227, 228, 229 Toke v. Hadick, 2005 U.S. Dist. LEXIS 40703 (S.D. Ohio Oct. 27, 2005), 272 Toledo Blade Newspaper Unions-Blade Pension Plan v. Investment Performance Services, LLC, 448 F. Supp. 2d 871 (N.D. Ohio 2006), 269 Tolley v. Commercial Life Ins. Co., Nos. 92-6490, 92-6514, 1993 U.S. App. LEXIS 33508 (6th Cir. Dec. 17, 1993), 252 Tolson v. Avondale Industries, 141 F.3d 604 (5th Cir. 1998), 226, 228, 235, 236 Tolton v. American Biodyne, Inc., 48 F.3d 937 (6th Cir. 1995), 245

1416

Tomasko v. Ira H. Weinstock, P.C., 80 F. App’x 779 (3d Cir. 2003), 135 Tomasko v. Ira H. Weinstock, P.C., 357 F. App’x 472 (3d Cir. 2009), 136 Tomczyk v. Blue Cross & Blue Shield United of Wis., 951 F.2d 771 (7th Cir. 1991), 281 Tomczyscyn v. Teamsters, Local 115 Health & Welfare Fund, 590 F. Supp. 211 (E.D. Pa. 1984), 107, 108 Tomlinson v. El Paso Corp., 653 F.3d 1281 (10th Cir. 2011), 419 Tomlinson v. El Paso Corp., 2011 U.S. Dist. LEXIS 37310 (D. Colo. Mar. 30, 2011), 422 Tookes v. Metro. Life Ins. Co., 2006 WL 870313 (N.D. Ga. Mar. 31, 2006), 453 Toomey v. Jones, 855 F. Supp. 19 (D. Mass. 1994), 34, 36, 43 Tootle v. Arinc, Inc., 2004 U.S. Dist. LEXIS 10629 (D. Md. 2004), 201 Topalian v. Hartford Life Ins. Co., 2013 WL 2147553 (E.D.N.Y. May 16, 2013), 89 Torres v. Unum Life Ins. Co. of Am., 405 F.3d 670 (8th Cir. 2005), 316, 318, 334

1417

Torres-Negron v. Ramallo Bros. Printing, Inc., 203 F. Supp. 2d 120 (D.P.R. 2002), 38 Torrey v. Qwest Commc’ns Co., LLC, 2011 U.S. Dist. LEXIS 25587 (D. Colo. Feb. 28, 2011), 414 Tortora v. SBC Communications, Inc., 739 F. Supp. 2d 427 (S.D.N.Y. 2010), 95 Total Renal Care of North Carolina, LLC v. Fresh Market, Inc., 457 F. Supp. 2d 619 (M.D.N.C. 2006), 170 Toussaint v. JJ Weiser, Inc., 648 F.3d 108 (2d Cir. 2011), 83, 84 Toven v. Metro. Life Ins. Co., 2009 WL 578538 (C.D. Cal. 2009), 376 Townsend v. Delta Family-Care Disability & Survivorship Plan, 295 F. App’x 971 (11th Cir. Oct. 8, 2008), 453 Townsend v. Thomas Reuters Group Disability Income Ins. Plan, 807 F. Supp. 2d 924 (C.D. Cal. 2011), 342 Transitional Hospitals Corp. v. Blue Cross, 164 F.3d 952 (5th Cir. 1999), 212 Travelers Cas. & Sur. Co. of Am. v. IADA Servs., Inc., 497 F.3d 862 (8th Cir. 2007), 329 Treadwell v. John Hancock Mut. Life Ins. Co., 666 F. Supp. 278 (D. Mass. 1987), 11

1418

Treasurer, Trustees of Drury Indus., Inc. Health Care Plan & Trust v. Goding, 692 F.3d 888 (8th Cir. 2013), 327 Tremain v. Bell Indus., 196 F.3d 970 (9th Cir. 1999), 357, 360, 364 Tri3 Enterprises, LLC v. Aetna Inc., No. 11-3921, 2012 WL 1416530 (D.N.J. April 24, 2012), 104 Trimper v. City of Norfolk, Va., 58 F.3d 68 (4th Cir. 1995), 192 Tri-State Mach. v. Nationwide Life Ins. Co., 33 F.3d 309 (4th Cir. 1994), 155 Trombetta v. Cragin Fed. Bank for Sav. Employee Stock Ownership Plan, 102 F.3d 1435 (7th Cir. 1997), 280 Trotter v. Kennedy Krieger Inst., Inc., 2012 U.S. Dist. LEXIS 30335 (D. Md. 2012), 179 Troy v. Unum Life Ins. Co. of Am., 2006 WL 846355 (S.D.N.Y. Mar. 31, 2006), 72 Trs. of the E. States Health & Welfare Fund v. Crystal Art Corp., 2004 U.S. Dist. LEXIS 8932 (S.D.N.Y. 2004), 84 Trs. of the Graphic Commc’ns Int’l Union Upper Mw. Local 1M Health & Welfare Plan v. Bjorkedal, 516 F.3d 719 (8th Cir. 2008), 327

1419

Trs. of the Plumber & Pipefitters Nat’l Pension Fund v. Sprague, 251 F. App’x 155, 2007 WL 3024025 (4th Cir. 2007), 191 Trs. of the United Ass’n Full-Time Salaried Officers & Emps. of Local Unions, Dist. Councils, State & Provincial Ass’n. Pen. Plan v. Steamfitters Local Union 395, 641 F. Supp. 444 (D.D.C. 1986), 528 Trs. of Wyo. Laborers Health & Welfare Plan v. Morgen & Oswood Const. Co. of Wyo., 850 F.2d 613 (10th Cir. 1988), 426 Trujillo v. Cyprus Amax Minerals Co. Ret. Plan Comm., 203 F.3d 733 (10th Cir. 2000), 409 Trussel v. CIGNA Life Ins. Co., 552 F. Supp. 2d 387 (S.D.N.Y. 2008), 70 Trust Corp. v. Bryant, 410 F.3d 842 (6th Cir. 2005), 272 Trustees of AFTRA Health Fund v. Biondi, 303 F.3d 765 (7th Cir. 2002), 282, 305 Trustmark Life Ins. Co. v. Univ. of Chicago Hosps., 207 F.3d 876 (7th Cir. 2000), 306, 307 Tsagari v. Pitney Bowes, Inc., 473 F. Supp. 2d 334 (D. Conn. 2007), 66 Tsoulas v. Liberty Life Assur. Co. of Bos., 454 F.3d 69 (1st Cir. 2006), 16

1420

Tucker v. Shreveport Transit Mgmt., Inc., 226 F.3d 394 (5th Cir. 2000), 218 Turcotte v. Blue Cross & Blue Shield of Mass., Inc., 2008 WL 4615903 (S.D.N.Y. Oct. 14, 2008), 77, 79, 81 Turner v. CF & I Steel Corp., 770 F.2d 43 (3d Cir. 1985), 126 Turner v. Fallon Cmty. Health Plan, Inc., 127 F.3d 196 (1st Cir. 1997), 11, 35 Turnipseed v. Educ. Mgmt. LLC’s Employee Disability Plan, 2010 WL 140384 (N.D. Cal. 2010), 344, 345 Turnoy v. Liberty Life Assur. Co. of Bos., No. 02 C 6066, 2003 U.S. Dist. LEXIS 1311 (N.D. Ill. Jan. 20, 2003), 239 Twomey v. Delta Airlines Pilots Pension Plan, 328 F.3d 27 (1st Cir. 2003), 38 Tyler v. AIG Life Ins. Co., 273 F. App’x 778 (11th Cir. 2008), 447 Tyler v. AIG Life Ins. Co., 2008 WL 874857 (11th Cir. Apr. 2, 2008), 447 Tyler v. Ploof Truck Lines, Inc., 1999 WL 961262 (M.D. Ala. 1999), 475, 476 Tylwalk v. Prudential, 257 F. App’x 568 (3d Cir. 2007), 112

1421

Tylwalk v. Prudential Ins. Co., No. 04-222, 2006 WL 2815806 (W.D. Pa. Sept. 28, 2006), 133 Tyson Foods, Inc. v. Macklin, 2012 U.S. Dist. LEXIS 85141 (W.D.N.C. 2012), 198

Ullico Inc. Litig., In re, 605 F. Supp. 2d 210 (D.D.C. 2009), 520 UMWA Emp. Benefit Plans Litig., In re, 854 F. Supp. 914 (D.D.C. 1994), 526 Union Pac. R.R. v. Beckham, 138 F.3d 325 (8th Cir. 1998), 314 Unisys Corp. Retiree Med. Benefits ERISA Litig., In re, 579 F.3d 200 (3d Cir. 2009), 128, 130, 135 Unisys Corp. (Unisys I), In re, 58 F.3d 896 (3d Cir. 1995), 115 United Commercial Travelers of Am. v. Wolfe, 331 U.S. 586 (1947), 197 United McGill Corp. v. Stinnett, 154 F.3d 168 (4th Cir. 1998), 160, 163, 164 United Mine Workers of Am. Emp. Ben. Plans Litig., In re, 854 F. Supp. 914 (D.D.C. 1994), 527

1422

United Paperworkers Int’l Union v. Int’l Paper Co., 777 F. Supp. 1010 (D. Me. 1991), 11, 44 United Paperworkers Int’l Union v. Jefferson Smurfit Corp., 961 F.2d 1384 (8th Cir. 1992), 320 United States ex rel. Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp., 95 F.3d 153 (2d Cir. 1996), 86 United States, In re, 590 F.3d 1305 (Fed. Cir. 2009), 257 United States v. Eriksen, 2011 U.S. App. LEXIS 4604 (9th Cir. 2011), 381 United States v. Glick, 142 F.3d 520 (2d Cir. 1998), 81 United States v. Mett, 178 F.3d 1058 (9th Cir. 1999), 258, 361 United Steel v. Pen. Benefit Guar. Corp., 707 F.3d 319 (D.C. Cir. 2013), 517, 526 United Steel Workers of Am. v. Newman-Crosby Steel, Inc., 822 F. Supp. 862 (D.R.I. 1993), 42 Univ. Hosps. of Cleveland v. Emerson Elec. Co., 202 F.3d 839 (6th Cir. 2000), 258 Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951), 17

1423

University Hospitals of Cleveland v. Emerson Electric Co., 202 F.3d 839 (6th Cir. 2000), 252 Unum Life Ins. Co. of Am. v. Cappello, 278 F. Supp. 2d 228 (D.R.I. 2003), 20 Unum Life Ins. Co. of Am. v. Ward, 526 U.S. 358 (1999), 8–9, 312, 435 Unum Life Ins. Co. v. O’Brien, 2004 WL 2283559 (M.D. Fla. Oct. 4, 2004), 484 Uon Suk Park v. Trs. of the 1199 SEIU Health Care Emps. Pension Fund, 418 F. Supp. 2d 343 (S.D.N.Y. 2005), 87 Upjohn Co. v. United States, 449 U.S. 383 (1981), 257 Urological Surgery Prof’l Ass’n v. William Mann Co., Inc., 764 F. Supp. 2d 311 (D.N.H. 2011), 36 Ursic v. Bethlehem Mines, 719 F.2d 670 (3d Cir. 1983), 135 Urso v. Prudential Ins. Co. of Am., 2004 WL 3355265 (D.N.H. 2004), 30 US Airways, Inc. v. McCutchen, 133 S. Ct. 1537 (2013), 128, 140, 198, 277, 389, 390, 427, 462, 484 U.S. Airways, Inc. v. McCutchen, 663 F.3d 671 (3d Cir. 2011), 462, 484

1424

U.S. Football League v. Nat’l Football League, 887 F.2d 408 (2d Cir. 1989), 87 U.S. Healthcare, Inc., In re, 193 F.3d 151 (3d Cir. 1999), 104 USA for Healthcare Benefit Trust v. Googins, 1998 WL 136169 (D. Conn. Mar. 16, 1998), 58 Useden v. Acker, 947 F.2d 1563 (11th Cir. 1991), 450, 466, 467

Van Boxel v. Journal Co. Employees’ Pension Trust, 836 F.2d 1048 (7th Cir. 1987), 287 Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041 (9th Cir. 2000), 374, 375, 377 Van Valen v. Employee Welfare Benefits Committee Northrup Grumman Corp., 741 F. Supp. 2d 756 (W.D. Va. 2010), 176–177 Vander Luitgaren v. Sun Life Assur. Co. of Can., 2012 WL 5875526 (D. Mass. 2012), 33 Vanderklok v. Provident Life & Accid. Ins. Co., 956 F.2d 610 (6th Cir. 1992), 254, 255, 357 Varghese v. Honeywell Int’l, Inc., 424 F.3d 411 (4th Cir. 2005), 179

1425

Varhola v. Doe, 820 F.2d 809 (6th Cir. 1987), 268 Variety Children’s Hosp., Inc. v. Century Med. Health Plan, Inc., 57 F.3d 1040 (11th Cir. 1995), 437, 439, 440, 442 Variety Children’s Hosp. v. Blue Cross/Blue Shield of Fla., 942 F. Supp. 562 (S.D. Fla. 1996) (Variety I), 437 Varity Corp. v. Howe, 516 U.S. 489 (1996), 80, 81, 225, 226, 264, 366, 368, 419, 420, 421, 497 Vartanian v. Monsanto Co., 14 F.3d 697 (1st Cir. 1994), 6, 7, 35 Vasseur v. Halliburton Co., 950 F.2d 1002 (5th Cir. 1992), 221 Vaughan v. Celanese Ams. Corp., 339 F. App’x 320 (4th Cir. 2009), 179 Vaughan v. Celanese Ams. Corp., 2007 WL 2875222 (W.D.N.C. 2007), 169, 178 Vaughn v. Bay Environmental Management, Inc., 567 F.3d 1021 (9th Cir. 2009), 381 Vaughn v. Owen Steel Co., 871 F. Supp. 247 (D.S.C. 1994), 180 Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620 (9th Cir. 2008), 352, 443

1426

Vazquez v. Cargill, Inc., 509 F. Supp. 2d 903 (C.D. Cal. 2007), 353 Vazquez v. Paul Revere Life Ins. Co., 289 F. Supp. 2d 727 (E.D. Va. 2001), 145 Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287 (5th Cir. 1999), 206, 210, 215, 216, 221, 222, 223 Veltri v. Bldg. Serv. 32 B-J Pension Fund, 393 F.3d 318 (2d Cir. 2004), 90 Veltri v. Bldg. Serv. 32 B-J Pension Fund, 2004 U.S. Dist. LEXIS 6834 (S.D.N.Y. Apr. 20, 2004), 83 Veneziano v. Long Island Pipe Fabrication & Supply Corp., 238 F. Supp. 2d 683 (D.N.J. 2002), 136 Vercher v. Alexander & Alexander, 379 F.3d 222 (5th Cir. 2004), 221, 224 Verlarde v. PACE Membership Warehouse, 105 F.3d 1313 (9th Cir. 1997), 335–336 Vickers v. Principal Mut. Life Ins. Co., 993 F. Supp. 19 (D. Mass. 1998), 37 Viera v. Life Ins. Co. of N. Am., 642 F.3d 407 (3d. Cir. 2011), 109, 111, 118 Vincent v. Lucent Techs, Inc., 733 F. Supp. 2d 729 (D.N.C. 2010), 159, 179

1427

Vincent v. Unum Provident Corp., 2005 U.S. Dist. LEXIS 9087 (E.D. Tenn. May 5, 2005), 273 Vincent v. Wells Fargo Guard Services, Inc., 44 F. Supp. 2d 1302 (S.D. Fla. 1999), 472 Virtue v. Int’l Bhd. of Teamsters Ret. & Family Protection Plan, 886 F. Supp. 2d 32 (D.D.C. 2012), 519 Virtusio v. Fin. Indus. Regulatory Auth. Long Term Disability Income Plan, 2012 WL 5389918 (N.D. Cal. 2012), 383 Visteon Corp., In re, 612 F.3d 210 (3d Cir. 2010), 116 Vizcaino v. Microsoft Corp., 120 F.3d 1006 (9th Cir. 1997), 336 Vogel v. Independence Fed. Sav., 728 F. Supp. 1210 (D. Md. 1990), 156 Volynskaya v. Epicenters Health & Welfare Plan, 2007 WL 3036110 (N.D. Cal. Oct. 16, 2007), 362 Vorpahl, In re, 695 F.2d 318 (8th Cir. 1982), 326

Wachtel v. Health Net, Inc., 482 F.3d 225 (3d Cir. 2007), 129, 141 Wade v. Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533 (5th Cir. 2007), 217

1428

Waden v. Aetna Life Ins. Co., 684 F.3d 1360 (8th Cir. 2012), 317, 318, 319 Wagener v. SBC Pen. Benefit Plan—Nonbargained Program, 247 F.R.D. 184 (D.D.C. 2008), 511 Wagener v. SBS Pen. Benefit Plan—Nonbargained Program, 407 F.3d 395 (D.C. Cir. 2005), 507 Wagner-Harding v. Farmland Indus. Inc. Emp. Ret. Plan, 26 F. App’x 811 (10th Cir. 2001), 408, 413 Wakkinen v. Unum Life Ins. Co. of Am., 531 F.3d 575 (8th Cir. 2008), 317, 318 Walden v. Eaton Corp., 170 F. App’x 435 (8th Cir. 2006), 324 Walke v. Group Long-Term Dis. Ins., 256 F.3d 835 (8th Cir. 2001), 333 Walker v. Pharm. Research & Mfrs. of Am., 439 F. Supp. 2d 103 (D.D.C. 2006), 527, 528 Walker v. S. Co. Servs., Inc., 279 F.3d 1289 (11th Cir. 2002), 436 Walker v. Wal-Mart Stores, Inc., 159 F.3d 938 (5th Cir. 1998), 220 Wallace v. Firestone Tire & Rubber Co., 882 F.2d 1327 (8th Cir. 1989), 320

1429

Wallace v. Reliance Standard Life Ins. Co., 318 F.3d 723 (7th Cir. 2003), 299 Waller v. Blue Cross of California, 32 F.3d 1337 (9th Cir. 1994), 366 Walls v. Lemmon, No. 5:07-cv-207, 2007 U.S. Dist. LEXIS 77393 (S.D.W. Va. Oct. 17, 2007), 146 Walter v. Int’l Ass’n of Mack Pension Fund, 949 F.2d 310 (10th Cir. 1991), 421 Warner v. Ford Motor Co., 46 F.3d 531 (6th Cir. 1995), 246 Warren v. Cochrane, 257 F. Supp. 2d 321 (D. Me. 2003), 38 Wash.-Balt. Newspaper Guild, Local 35 v. Wash. Star Co., 543 F. Supp. 906 (D.D.C. 1982), 512 Washington v. Murphy Oil USA, Inc., 497 F.3d 453 (5th Cir. 2007), 220 Watkins v. Westinghouse Hanford Co., 12 F.3d 1517 (9th Cir. 1993), 366 Watson v. Deaconess Waltham Hosp., 141 F. Supp. 2d 145 (D. Mass. 2001), 32 Watson v. Deaconess Waltham Hosp., 298 F.3d 102 (1st Cir. 2002), 32, 34, 35

1430

Watson v. Unum Life Ins. Co. of Am., 126 F. App’x 604, 2005 WL 665055 (4th Cir. 2005), 178 Watts v. BellSouth Telecom., Inc., 316 F.3d 1203 (11th Cir. 2003), 441 Watts v. MetLife, 2011 WL 1585000 (S.D. Cal. 2011), 362 Watts v. Organogenesis, Inc., 30 F. Supp. 2d 101 (D. Mass. 1998), 11 Watts v. Parking Mgmt., 210 F. App’x 13 (D.C. Cir. 2006), 527 Wausau Benefits v. Progressive Ins. Co., 270 F. Supp. 2d 980 (S.D. Ohio 2003), 273 W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 661 F. Supp. 2d 37 (D. Mass. 2009), 9, 34 Weaver Bros. Ins. Assoc., Inc. v. Braunstein, No. 11-5407, 2013 WL 1195529 (E.D. Pa. Mar. 25, 2013), 127 Weaver v. Phoenix Home Life Mut. Ins. Co., 990 F.2d 154 (4th Cir. 1993), 159, 162 Webb v. Gardner, Carton & Douglas LLP LTD Plan, 2012 WL 5195966 (N.D. Ill. 2012), 304 Weber v. GE Group Life Assur. Co., 541 F.3d 1002 (10th Cir. 2008), 406, 408

1431

Weber v. St. Louis Univ., 6 F.3d 558 (8th Cir. 1993), 322 Weed v. Prudential Ins. Co. of Am., 2009 WL 2835207 (D. Mass. Aug. 28, 2009), 23, 24 Weeks v. Unum Group, 585 F. Supp. 2d 1305 (D. Utah 2008), 399 Wegner v. Standard Ins. Co., 129 F.3d 814 (5th Cir. 1997), 218, 220 Weinberger v. Reliance Standard Life Ins. Co., 54 F. App’x 553 (3d Cir. 2002), 122 Weinstein v. Paul Revere Ins. Co., 15. F. Supp. 2d 552 (D.N.J. 1998), 99 Weir v. Fed. Asset Disposition Ass’n, 123 F.3d 281 (5th Cir. 1997), 220 Weiss v. First Unum Life Ins. Co., No. 02-4249, 2008 WL 5188857 (D.N.J. Dec. 10, 2008), 117, 121 Weitzenkamp v. Unum Life Ins. Co. of Am., 661 F.3d 323 (7th Cir. 2011), 296, 305, 306 Welch v. Metro. Life Ins. Co., 480 F.3d 942 (9th Cir. 2007), 374, 375, 376 Welch v. Unum Life Ins. Co. of Am., 382 F.3d 1078 (10th Cir. 2004), 410, 415

1432

Wells v. Genesis Health Venture, Inc., No. 05-0697, 2005 WL 2455371 (E.D. Pa. Sept. 16, 2005), 104 Wells v. Unum Life Ins. Co., 593 F. Supp. 2d 1303 (N.D. Ga. 2008), 449, 454, 458 Welsh v. Burlington N., Inc. Emp. Benefit Plan, 54 F.3d 1331 (8th Cir. 1995), 323 Welsh v. Quabbin Timber Inc., 943 F. Supp. 98 (D. Mass. 1996), 4 Welsh v. Wachovia Corp., No. 05-3365, 2006 U.S. App. LEXIS 17998 (6th Cir. July 13, 2006), 248 Werdehausen v. Benicorp Ins. Co., 487 F.3d 660 (8th Cir. 2007), 312, 313 Werner v. Liberty Life Assur. Co. of Bos., 336 F. App’x 676 (9th Cir. 2009), 352 Wernicki-Stevens v. Reliance Standard Life Ins. Co., 641 F. Supp. 2d 418 (E.D. Pa. 2009), 123, 124 Wert v. Libert Life Assur. Co. of Box., Inc., 447 F.3d 1060 (8th Cir. 2006), 313–314 Wertheim v. Hartford Life Ins. Co., 268 F. Supp. 2d 643 (E.D. Va. 2003), 162 Wesson v. Jane Phillips Med. Ctr. & Affiliates Emp. Group Healthcare Plan, 822 F. Supp. 2d 1170 (N.D. Okla. 2011), 420

1433

West v. Lincoln Benefit Life Co., 509 F.3d 160 (3d Cir. 2007), 114 West v. Murphy, 99 F.3d 166 (4th Cir. 1996), 144 Westaff v. Arce, 298 F.3d 1164 (9th Cir. 2002), 389 Wetzel v. Lou Ehlers Cadillac Group Long Term Disability Ins. Program, 222 F.3d 643 (9th Cir. 2000), 382, 383, 384, 385, 386 Weyrauch v. Cigna Life Ins. Co. of N.Y., 416 F.3d 717 (8th Cir. 2005), 331, 332 Whatley v. CNA Ins. Co., 189 F.3d 1310 (11th Cir. 1999), 455, 456, 459 Wheeler v. Dynamic Eng’g, Inc., 62 F.3d 634 (4th Cir. 1995), 165 Wheeless v. Wal-Mart Stores, Inc. Ass’n Health & Welfare Plan, 39 F. Supp. 2d 577 (E.D.N.C. 1998), 159 Whitaker v. Hartford Life & Accid. Ins. Co., 404 F.3d 947 (6th Cir. 2005), 259 White v. Aetna Life Ins. Co., 210 F.3d 412 (D.C. Cir. 2000), 500, 514, 515, 516, 524, 525 White v. Coca-Cola Co., 542 F.3d 848 (11th Cir. 2008), 447, 452, 483

1434

White v. HealthSouth Long-Term Dis. Plan, 320 F. Supp. 2d 811 (W.D. Ark. 2004), 325 White v. Metro. Life Ins. Co., 2011 U.S. App. LEXIS (5th Cir. 2011), 230 White v. Sun Life Assur. Co., 488 F.3d 240 (4th Cir. 2007), 92, 196, 197, 199 Whitehead v. Okla. Gas & Elec. Co., 187 F.3d 1184 (10th Cir. 1999), 401 Whiteman v. Graphic Commc’ns Int’l Union Supp’l Ret. & Dis. Fund, 871 F. Supp. 465 (D.D.C. 1994), 509 Whitt v. Sherman Int’l Corp., 147 F.3d 1325 (11th Cir. 1998), 432, 488 Whittaker v. Hartford Life Ins. Co., No. 11-6465, 2012 WL 5902623 (E.D. Pa. Nov. 26, 2012), 122 Whitten v. Hartford Life Group Ins. Co., 247 F. App’x 426, 2007 WL 1856517 (4th Cir. 2007), 174 Wickman v. Nw. Nat’l Ins. Co., 908 F.2d 1077 (1st Cir. 1990), 1–2 Wiggin v. Bridgeport Hosp., Inc., 2003 U.S. Dist. LEXIS 10509 (D. Conn. June 20, 2003), 61 Wilcott v. Matlack Sys., Inc. Emp. Benefits Trust, 64 F.3d 1458 (10th Cir. 1995), 397, 413

1435

Wilczynski v. Kemper Nat’l Ins. Cos., 178 F.3d 933 (7th Cir. 1999), 294 Wildbur v. ARCO Chem. Co., 974 F.2d 631 (5th Cir. 1992), 215, 222, 223, 258 Wilkins v. Baptist Healthcare Systems, Inc., 150 F.3d 609 (6th Cir. 1998), 178, 254, 255, 256, 258, 261, 262 Wilkins v. Hartford Life & Acc. Ins. Co., 299 F.3d 945 (8th Cir. 2002), 332 Willett v. Blue Cross & Blue Shield, 953 F.2d 1335 (11th Cir. 1992), 450, 465, 468, 472 Williams ex rel. Williams v. Jackson Stone Co., 867 F. Supp. 454 (S.D. Miss. 1994), 225 Williams v. Aetna Life Ins. Co., 509 F.3d 317 (7th Cir. 2007), 296, 297 Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132 (11th Cir. 2004), 452 Williams v. Great Dane Trailer Tenn. Inc., No. 94-2189-G/A, 1995 U.S. Dist. LEXIS 22152 (W.D. Tenn. Jan. 23, 1995), 273 Williams v. Int’l Paper Co., 227 F.3d 706 (6th Cir. 2000), 241 Williams v. Metro. Life Ins. Co., 459 F. App’x 719 (10th Cir. 2012), 406, 410

1436

Williams v. Metro. Life Ins. Co., 609 F.3d 622 (4th Cir. 2010), 190 Williams v. Metro. Life Ins. Co., 632 F. Supp. 2d 525 (E.D.N.C. 2008), 176 Williams v. Provident Inv. Counsel Inc., 279 F. Supp. 2d 894 (N.D. Ohio 2003), 269 Williams v. The Interpublic Severance Pay Plan, 523 F.3d 819 (7th Cir. 2008), 286, 288 Williams v. Unum Life Ins. Co. of Am., 250 F. Supp. 2d 641 (E.D. Va. 2003), 199 Williams v. Unum Life Ins. Co. of Am., 940 F. Supp. 136 (E.D. Va. 1996), 180 Williams v. Wright, 927 F.2d 1540 (11th Cir. 1991), 431, 479 Williams-Mason v. Reliance Standard Life Ins. Co., 2006 WL 1687760 (S.D. Ga. June 16, 2006), 432 Wilmington Shipbuilding Co. v. New England Life Ins. Co., 496 F.3d 326 (4th Cir. 2007), 153 Wilson v. Coman, 284 F. Supp. 2d 1319 (M.D. Ala. 2003), 450 Wilson v. Zoellner, 114 F.3d 713 (8th Cir. 1997), 329

1437

Wimbush-Bowles v. GTE Serv. Corp., 2004 WL 92918 (11th Cir. 2004), 459 Winchester v. Prudential Life Ins. Co. of Am., 975 F.2d 1479 (10th Cir. 1992), 399, 404 Windisch v. Hometown Health Plan, Inc., 2010 WL 786518 (D. Nev. 2010), 347 Winebarger v. Liberty Life Assur. Co. of Boston, 571 F. Supp. 2d 719 (W.D. Va. 2008), 176 Winkler v. Metro. Life Ins. Co., 2004 WL 1687202 (S.D.N.Y. July 27, 2004), 67 Winters v. Costco Wholesale Corp., 49 F.3d 550 (9th Cir. 1995), 359 Wise v. Kind & Knox Gelatin, 429 F.3d 1188 (8th Cir. 2005), 333 Wise v. Verizon Communications, Inc., 600 F.3d 1180 (9th Cir. 2010), 342, 382, 385, 386 Wiseman v. First Citizens Bank & Trust Co., 215 F.R.D. 507 (W.D.N.C. 2003), 201 Withrow v. Bache Halsey Stuart Shield, Inc., Salary Protection Plan, 655 F.3d 1032 (9th Cir. 2011), 383, 385, 386, 387 Woerner v. FRAM Grp. Operations, LLC, No. 12-6648, 2013 WL 1815518 (D.N.J. Apr. 29, 2013), 106

1438

Wolberg v. AT&T Broadband Pension Plan, 123 F. App’x 840 (10th Cir. 2005), 411 Wolf v. Nat’l Shopmen Pension Fund, 728 F.2d 182 (3d Cir. 1984), 314, 443 Wolk v. Unum Life Ins. Co. of Am., 186 F.3d 352 (3d Cir. 1999), 239 Woo v. Deluxe Corp., 144 F.3d 1157 (8th Cir. 1998), 316, 317, 318 Woodard v. Fredericksburg Hospitalist Grp., P.C., No. 1:12cv261, 2012 U.S. Dist. LEXIS 78208 (E.D. Va. June 5, 2012), 156 Wooden v. Alcoa, Inc., No. 12-3190, 2013 U.S. App. LEXIS 968 (6th Cir. Jan. 11, 2013), 259, 260 Woods v. Berry, Fowles & Co., 2001 WL 1602055 (D. Me. Dec. 14, 2001), 41 Woods v. Halliburton Co., 49 F. App’x 827 (10th Cir. 2002), 426 Woods v. Prudential Ins. Co. of Am., 528 F.3d 320 (4th Cir. 2008), 160 Woods v. Tex. Aggregates, L.L.C., 459 F.3d 600 (5th Cir. 2006), 210 Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985 (10th Cir. 1999), 397, 401

1439

Woolsey v. Marion Labs., Inc., 934 F.2d 1452 (10th Cir. 1991), 405, 410 Workman v. Aetna Life Ins. Co., 2007 WL 951765 (S.D. W. Va. 2007), 167 Worldcom, Inc. ERISA Litig., In re, 263 F. Supp. 2d 745 (S.D.N.Y. 2003), 80 Worldcom, Inc. ERISA Litig., In re, 354 F. Supp. 2d 423 (S.D.N.Y. 2005), 82 Worsley v. Aetna Life Ins. Co., 780 F. Supp. 2d 397 (W.D.N.C. 2011), 172 Wrenn v. Principal Life Ins. Co., 636 F.3d 921 (8th Cir. 2011), 317 Wright v. Hanna Steel Corp., 270 F.3d 1336 (11th Cir. 2001), 474–475 Wright v. Heyne, 349 F.3d 321 (6th Cir. 2003), 275 Wright v. Metro. Life Ins. Co., 618 F. Supp. 2d 43 (D.D.C. 2009), 494, 498, 502, 505, 516, 518 Wright v. R.R. Donnelley & Sons Co., 402 F.3d 67 (1st Cir. 2005), 14, 16, 21 Wright v. Sw. Bell Tel. Co., 925 F.2d 1288 (10th Cir. 1991), 426

1440

Wright v. Twin City Fire Ins. Co., 2013 U.S. Dist. LEXIS 18722 (D. Colo. Feb. 12, 2013), 423 W.S.O.L. v. Fiduciary Mgmt. Assoc., Inc., 266 F.3d 654 (7th Cir. 2001), 298

Yasinoski v. Conn. Gen. Life Ins. Co., 2009 WL 3254929 (E.D.N.Y. Sep. 30, 2009), 76 Yates v. Hendon, 541 U.S. 1 (2004), 3, 43, 98, 206, 207, 238, 281 Younberg v. Bekins Co., 930 F. Supp. 1396 (E.D. Cal. 1996), 368 Young of Arbaugh v. Y & H Corp., 546 U.S. 500 (Feb. 22, 2006), 492 Young v. United Parcel Servs., 416 F. App’x 734 (10th Cir. 2011), 426 Young v. Wash. Gas Light Co., 206 F.3d 1200 (D.C. Cir. 2000), 491, 492, 493 Yurevich v. Sikorsky Aircraft Div., United Techs. Corp., 51 F. Supp. 2d 144 (D. Conn. 1999), 80

Zacharkiw v. Prudential Ins. Co. of Am., No. 10-cv-0639, 2012 WL 551639 (E.D. Pa. Feb. 21, 2012), 134

1441

Zarate v. Metro. Wash. Renaldialysis Ctr. of Cap. Hill, Civil Action No. 86-3546, 1987 WL 13957 (D.D.C. Jul. 1, 1987), 527 Zebrowski v. Evonik Degussa Corp. Admin. Comm., No. 10-542, 2012 WL 5881846 (E.D. Pa. Nov. 20, 2012), 127 Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Cir. 2001), 69, 70 Zervos v. Verizon N.Y., Inc., 277 F.3d 635 (2d Cir. 2002), 70, 76 Zhou v. Guardian Life Ins. Co., 295 F.3d 677 (7th Cir. 2002), 283 Zhou v. Metro. Life Ins. Co., 807 F. Supp. 2d 458 (D. Md. 2011), 174 Zienowicz v. Metro. Life Ins. Co., 204 F. Supp. 2d 339 (D.N.J. 2002), 113 Ziesemer v. First UNUM Life Ins. Co., No. 04-6429, 2006 WL 2465622 (D.N.J. Aug. 23, 2006), 99, 100 Zipf v. Am. Tel. & Tel. Co., 799 F.2d 889 (3d Cir. 1986), 106, 499 Zipperer v. Raytheon Co., 493 F.3d 50 (1st Cir. 2007), 8, 10 Zorn v. Principal Life Ins. Co., 2010 U.S. Dist. LEXIS 84721 (S.D. Ga. 2010), 456, 457

1442

Zuckerman v. United of Omaha Life Ins. Co., 2012 U.S. Dist. LEXIS 128204 (N.D. Ill. Sept. 6, 2012), 290 Zurawel v. Long Term Dis. Income Plan for Choices Eligible Emps. of Johnson & Johnson, No. 07-5973, 2010 WL 3862543 (D.N.J. Sept. 27, 2010), 124 Zurich Am. Ins. Co. v. O’Hara, 604 F.3d 1232 (11th Cir. 2010), 462, 483, 484 Zylla v. Unisys Corp., 57 F. App’x 79 (3d Cir. 2003), 115

1443

Index Ability to pay factor, 476 Abuse of discretion in D.C. Circuit, 503–505, 515 in Eighth Circuit, 316–317, 318 in Eleventh Circuit, 458, 474 in Fifth Circuit, 215, 223, 227, 236 in First Circuit, 17, 21, 29, 31, 38, 53 in Fourth Circuit, 159–162, 164, 167–170, 174–177, 191, 199 in Ninth Circuit, 354, 361–362, 365, 379, 391 in Second Circuit, 66, 76, 85 in Seventh Circuit, 302, 303 in Sixth Circuit, 256, 271 in Tenth Circuit, 405–406 in Third Circuit, 109, 116, 119

1444

Abuse of discretion analysis, 357 Abuse of discretion cases, 356 Abuse of discretion review, 220, 360 Abuse of discretion standard in D.C. Circuit, 504 in Eighth Circuit, 317, 318, 319–323 in Fifth Circuit, 216 In First Circuit, 31 in Fourth Circuit, 170, 171–174, 174, 178–180 in Ninth Circuit, 353, 354, 360, 364, 378, 390 in Second Circuit, 66 in Seventh Circuit, 287 in Tenth Circuit, 405 in Third Circuit, 110, 113, 125 Accident, defined, 218 Active employee, 174 Adequate notice, 89

1445

Adjudication methods in D.C. Circuit, 516–517 in Eighth Circuit, 326 in Eleventh Circuit, 455–456 in Fifth Circuit, 224 in First Circuit, 30–31 in Fourth Circuit, 177–178 in Ninth Circuit, 364–365 in Second Circuit, 73–76 in Seventh Circuit, 297 in Sixth Circuit, 261–262 in Tenth Circuit, 416 Administrative phase, 423 Administrative Procedure Act, 526 Administrative record de novo review and evidence beyond, in Tenth Circuit, 412 disputes over, in Ninth Circuit, 362 1446

evidence beyond in Eleventh Circuit, 455 in Ninth Circuit, 361–362 in Second Circuit, 76 looking beyond, in Ninth Circuit, 362 supplementing, in First Circuit, 53 Administrative record and policy, 180 Administrative remedies, exhaustion of. See Exhaustion of administrative remedies Administrative review failure to seek in D.C. Circuit, 500 in Eighth Circuit, 314–315 in Eleventh Circuit, 442 in Ninth Circuit, 352 levels of in D.C. Circuit, 501 in Eighth Circuit, 315 1447

in Eleventh Circuit, 443 in Fifth Circuit, 214 in First Circuit, 12 in Ninth Circuit, 353 in Second Circuit, 64 in Seventh Circuit, 285 in Tenth Circuit, 403 in Third Circuit, 108 Administrative review process, 159 Administrator interpretation. administrator interpretation

See

Deference

to

Administrators de facto plan (See De facto plan administrators) plan (See Plan administrators) Adverse benefit determination in Eighth Circuit, 315, 331 in Eleventh Circuit, 454 in First Circuit, 46

1448

in Fourth Circuit, 193 in Ninth Circuit, 356, 363 in Second Circuit, 63, 73, 82, 90, 91, 92 in Third Circuit, 123 Adverse benefits determination notice requirements, 90 Affiliate, defined, 43 Affirmative defense, 284, 285 Ambiguities against drafter, 428 Americans with Disabilities Act, 238 Annuity, 361 Appeal of adverse determinations, 45–46 Appropriate equitable relief in D.C. Circuit, 518, 519, 521 in Eighth Circuit, 329, 332, 334 in Eleventh Circuit, 473, 481, 482, 485 in Fifth Circuit, 227 in First Circuit, 32

1449

in Fourth Circuit, 181, 186, 187 in Second Circuit, 78, 79, 82, 93, 94 in Sixth Circuit, 264, 265, 268 in Tenth Circuit, 418 in Third Circuit, 127, 128 Arbitrary and capricious, 405–406, 411–412, 446, 452–455, 457, 458, 459 Arkansas Patient Protection Act of 1995, 312 Attorney work-product privilege, 170 Attorney-client communications, 170 Attorney-client privilege in D.C. Circuit, 512 in Eleventh Circuit, 451 in First Circuit, 24, 25, 46 in Ninth Circuit, 361 in Sixth Circuit, 257–258 in Third Circuit, 141, 142 Attorneys’ fees 1450

in D.C. Circuit, 522–523 in Eighth Circuit, 329–331 in Eleventh Circuit, 473–478 in Fifth Circuit, 227–229 in First Circuit, 36–39 in Fourth Circuit, 189–192 in Ninth Circuit, 369–378 in Second Circuit, 83–88 in Seventh Circuit, 302–304 in Sixth Circuit, 270–272 in Tenth Circuit, 421–423 in Third Circuit, 134–137 Award of prejudgment interest, 94

Bad faith, 190, 302, 303, 329, 330, 369, 421, 475 Bad-faith breach of insurance contract, 398–399 Bad-faith claims, 398

1451

Bad-faith conduct, 476 Bad-faith laws, 399 Bad-faith statute, 436 Banks, 466 Benefit Administration Manager, 81 Benefit determination content of, in First Circuit, 45, 47 manner of, in First Circuit, 45, 47 timing of notification of, in First Circuit, 45, 46–47 Bintz, Edward E., 225 Blended hourly rate, 86 Booth factors, 161, 178 Bowen factors, 227, 228 Brown, Garrett, 117 Burden of production, 259 Burden of proof, 333–334, 427–428 Business owners

1452

in D.C. Circuit, 494 in Eighth Circuit, 311 in Fourth Circuit, 148–149 in Tenth Circuit, 396 Butero factors, 434, 439

California Civil Code Section 3428, 349, 350 California Department of Insurance, 358 California Health and Safety Code Section 1371.4, 342 California Insurance Code, 338, 382, 385 California statute of limitations, 383, 384 California’s Unfair Competition Law, 345 Carlough factors, 506 Centers for Disease Control, 90 Cheney, Dick, 306 Choice of laws analysis, 399 Claim denial, 106

1453

Claim denial notice, 90 Claim exhaustion in D.C. Circuit, 501 in Eleventh Circuit, 443 in Fourth Circuit, 159 in Ninth Circuit, 352–353 in Seventh Circuit, 285 in Sixth Circuit, 248 in Tenth Circuit, 402–403 in Third Circuit, 108 Claim fiduciary appointment form, 289 Claims by employers against insurers and service providers, 400–401 Claims of privilege, 170 Claims procedure, 44 Class actions in Eighth Circuit, 334 in Eleventh Circuit, 488 1454

in Second Circuit, 94 Class-action fees, 478 Clear repudiation rule, 140 Clerical errors, 165, 166 COBRA notice violations, 230 Colorado common law, 394 Common benefit criterion, 84 Common control, 281 Common fund doctrine, 51, 141, 198, 277, 283, 389, 390, 427, 484 Complete preemption in D.C. Circuit, 497 in Eleventh Circuit, 439 in Fifth Circuit, 209–211 in First Circuit, 7–8 in Ninth Circuit, 338, 339, 344–346 Complete preemption doctrine, 338, 346, 398, 496 Computerized research, 86 1455

Conflict of interest contra proferentem and, in Fourth Circuit, 164 discovery and in D.C. Circuit, 512–513 in Eighth Circuit, 322–323 in Eleventh Circuit, 448–450 in Fifth Circuit, 222–223 in Fourth Circuit, 167–169 in Ninth Circuit, 360, 361 in Seventh Circuit, 293–294 in Sixth Circuit, 255–256 in Tenth Circuit, 410–411 in Third Circuit, 119–121 evidence and in Eleventh Circuit, 457 in Fourth Circuit, 171, 172 standard of review

1456

in D.C. Circuit, 504–506 in Eighth Circuit, 318 in Fifth Circuit, 215, 216–217 in First Circuit, 14–16, 27 in Fourth Circuit, 161–162 in Ninth Circuit, 355–357 in Second Circuit, 65–67 in Seventh Circuit, 287–289 in Sixth Circuit, 250–251 in Tenth Circuit, 406–407 in Third Circuit, 110, 111–113 Conflict of interest analysis, 325 Conflict of interest consideration, 250 Conflict of interest evidence, 357, 364, 365, 413 Conflict preemption in Eighth Circuit, 313 in Fifth Circuit, 209, 244

1457

in First Circuit, 7–8 in Fourth Circuit, 153 in Ninth Circuit, 338, 344–346 Constructive trust theory, 233, 389 Consumer Fraud Act, 104 Contingency-fee enhancements, 136 Continuing violation theory, 387 Contra proferentem, plan interpretation and in D.C. Circuit, 508–509 in Eighth Circuit, 319 in Eleventh Circuit, 447 in Fifth Circuit, 220 in First Circuit, 20 in Fourth Circuit, 164 in Ninth Circuit, 359 in Second Circuit, 67 in Seventh Circuit, 291

1458

in Sixth Circuit, 252–253 in Tenth Circuit, 408 in Third Circuit, 114 Contra proferentem rule, 251 Contract interpretation. See also Plan interpretation in D.C. Circuit, 509–510 in Eighth Circuit, 320–321 in Eleventh Circuit, 447 in Fifth Circuit, 220–221 in Fourth Circuit, 165–166 in Ninth Circuit, 359 in Seventh Circuit, 291–292 in Sixth Circuit, 254 in Tenth Circuit, 409–410 in Third Circuit, 115–116 Contractual limitations provisions, 383–385 Contribution and indemnity claims

1459

in D.C. Circuit, 521 in Eighth Circuit, 329 in Eleventh Circuit, 473 in Fifth Circuit, 227 in First Circuit, 35–36 in Fourth Circuit, 188 in Ninth Circuit, 368 in Second Circuit, 82 in Seventh Circuit, 301 in Sixth Circuit, 269 in Tenth Circuit, 421 in Third Circuit, 133 Control, defined, 43 Control over details factor, 493 Core hours, defined, 39 Corporate officers, 464 Covered employee, 4, 98, 240, 244, 340, 479

1460

Davila analysis, 346, 348 D.C. Human Rights Act, 497 De facto administrator doctrine, 435 De facto fiduciaries, 225 De facto plan administrators in D.C. Circuit, 494 in Eighth Circuit, 311 in Eleventh Circuit, 435 in Fifth Circuit, 208–209 in First Circuit, 4–5, 396 in Fourth Circuit, 149 in Second Circuit, 58 in Sixth Circuit, 241 in Tenth Circuit, 396–397 in Third Circuit, 102–103 De novo cases, 364

1461

De novo review in D.C. Circuit, 507, 513, 514 in Eighth Circuit, 317, 321–322, 323 in Eleventh Circuit, 445, 457 in Fifth Circuit, 215 in First Circuit, 14–16, 19, 31, 46 in Fourth Circuit, 166, 173, 174, 176, 179 in Ninth Circuit, 353, 354, 356, 357, 362, 380 in Second Circuit, 66, 70, 75, 76 in Seventh Circuit, 294 in Sixth Circuit, 258 in Tenth Circuit, 406, 412–413, 414, 417, 425 in Third Circuit, 109, 118, 119, 122 De novo standard in D.C. Circuit, 501, 503, 504, 514 in Eighth Circuit, 321–322 in Eleventh Circuit, 445, 451–452, 456, 480

1462

in Fifth Circuit, 217 in First Circuit, 20 in Fourth Circuit, 162, 165, 173–174, 178 in Ninth Circuit, 354, 378 in Second Circuit, 70, 73–76 in Seventh Circuit, 288, 293, 294, 295, 297, 302 in Tenth Circuit, 406, 407, 408, 416, 425 in Third Circuit, 111, 114, 118 Deemed denied, 46, 47, 66, 88, 152, 162, 358, 378, 379, 425 Defendant in Eighth Circuit, 325–326 in Eleventh Circuit, 460–461 in First Circuit, 30 in Ninth Circuit, 364 in Second Circuit, 72–73, 82 in Seventh Circuit, 297 in Sixth Circuit, 260–261 1463

in Third Circuit, 108 Defensive preemption, 439 Deference to administrator in D.C. Circuit, 509 in Eighth Circuit, 319–320 in First Circuit, 20–21 in Fourth Circuit, 164 in Ninth Circuit, 359 in Second Circuit, 68 in Seventh Circuit, 291 in Sixth Circuit, 253–254 in Tenth Circuit, 408–409 in Third Circuit, 114 Deficient summary plan descriptions (SPD), 88 Defined benefit plan, 40–41 Delegation of discretionary authority, in First Circuit, 53 Demutualization compensation, 281

1464

Department of Health and Human Services, 363 Department of Labor in D.C. Circuit, 500, 524, 525 in Eleventh Circuit, 433, 480 in Fifth Circuit, 205, 206, 220 in First Circuit, 3, 39 in Fourth Circuit, 145, 147 in Ninth Circuit, 336, 353 in Second Circuit, 99 in Seventh Circuit, 280, 304 in Sixth Circuit, 239 in Tenth Circuit, 396, 423 Department of Labor regulations, 363, 514 Diagnostic and Statistical Manual, 200 Dictionary of Occupational Titles, 220, 362 Disability claims. See Health and disability claims Disclosure requirements, 44

1465

Discovery conflict of interest and in D.C. Circuit, 512–513 in Eighth Circuit, 322–323 in Eleventh Circuit, 448–450 in Fifth Circuit, 222–223 in Fourth Circuit, 167–169 in Ninth Circuit, 360, 361 in Seventh Circuit, 293–294 in Sixth Circuit, 255–256 in Tenth Circuit, 410–411 in Third Circuit, 119–121 fiduciary exception and in Eighth Circuit, 322 in Eleventh Circuit, 451 in First Circuit, 24–25 in Fourth Circuit, 170

1466

in Ninth Circuit, 361 in Sixth Circuit, 257–258 in Third Circuit, 141 limitations on in D.C. Circuit, 510–513 in Eighth Circuit, 321–323 in Eleventh Circuit, 447–451 in Fifth Circuit, 221–223 in First Circuit, 21–25 in Fourth Circuit, 166–170 in Ninth Circuit, 360–361 in Second Circuit, 68–69 in Seventh Circuit, 292–294 in Sixth Circuit, 254–258 in Tenth Circuit, 410–411 in Third Circuit, 116–121 Discretionary authority

1467

in D.C. Circuit, 502, 506, 509 in Eighth Circuit, 327 in Eleventh Circuit, 463 in Fifth Circuit, 217–218 in First Circuit, 53 in Fourth Circuit, 160, 170, 177, 182, 183 in Ninth Circuit, 358, 359, 368 in Second Circuit, 67, 68, 69 in Seventh Circuit, 286, 289, 299 in Sixth Circuit, 249, 261, 266 in Tenth Circuit, 404–405 in Third Circuit, 110 Discretionary benefit determination, 161 Discretionary clauses, 289–290, 358–359 Discretionary control, 261, 327 Discretionary responsibility, 261 Discretion-granting language, 315, 316

1468

District of Columbia Human Rights Act (DCHRA), 527, 528 Donovan test, 144, 145, 309 Double recovery rule, 427

Ejusdem generis canon of construction, 359 Employee active, 174 covered, 98 defined in D.C. Circuit, 492–493 in Eighth Circuit, 310 in Eleventh Circuit, 432–433 in Fifth Circuit, 206 in First Circuit, 3 in Fourth Circuit, 144–145 in Ninth Circuit, 336 in Second Circuit, 56–57 1469

in Seventh Circuit, 280–281 in Sixth Circuit, 237–239 in Tenth Circuit, 394 in Third Circuit, 98–99 independent contractor and, 492 Employee Retirement Income Security Act (ERISA), 40, 143, 279. See also entries beginning ERISA Employee welfare benefit plan (EWBP) in D.C. Circuit, 491–492, 493–494 defined, 143, 309 in Eighth Circuit, 309–310, 320 in Eleventh Circuit, 431–432, 433–435, 479 in Fifth Circuit, 205–206, 207 in First Circuit, 1–3 in Fourth Circuit, 143–144, 146 in Ninth Circuit, 335–337, 368 in Second Circuit, 55–56, 58 in Seventh Circuit, 279–280, 281 1470

in Sixth Circuit, 237, 240–241 in Tenth Circuit, 393–394, 395 in Third Circuit, 97, 101–102 Employer involvement in D.C. Circuit, 493–494 in Eighth Circuit, 310 in Eleventh Circuit, 433–435 in Fifth Circuit, 207 in First Circuit, 4 in Fourth Circuit, 146 in Ninth Circuit, 337 in Second Circuit, 58 in Seventh Circuit, 281 in Sixth Circuit, 240–241 in Tenth Circuit, 395 in Third Circuit, 101–102 Employer trusts. See Multiple employer trusts and welfare agreements 1471

Employer-relationship test, 101 Employers defined, in Fourth Circuit, 147 fiduciary liability claims and, in Eleventh Circuit, 462–464 merger agreement between, in Sixth Circuit, 241 Equitable claims and defenses in Eighth Circuit, 313 in Eleventh Circuit, 437–438 in Ninth Circuit, 350–351, 389 Equitable common fund doctrine, 283 Equitable defenses to claims, 140, 427 Equitable estoppel claims, 50, 105, 254, 350–351, 437–438, 507 Equitable lien, 140 Equitable lien by agreement, 79 Equitable principles, 427, 484 Equitable relief

1472

appropriate (See Appropriate equitable relief) in D.C. Circuit, 527 in Eighth Circuit, 329, 334 in Eleventh Circuit, 482 in Fifth Circuit, 220, 226, 227, 234 in First Circuit, 32, 33, 34, 50 in Fourth Circuit, 166, 181–182, 185–187, 189, 197, 198 in Ninth Circuit, 365, 366 in Second Circuit, 78, 79, 82, 93, 94 in Seventh Circuit, 300, 302 in Sixth Circuit, 263, 264, 265, 268 in Tenth Circuit, 418, 428 in Third Circuit, 126–128, 132, 133, 140 Equitable relief claims, 298 Equitable remedies, 298 Equitable tolling, 247 Equitable tolling argument, 159

1473

ERISA benefit cases, special procedures for in D.C. Circuit, 517 in Eighth Circuit, 326, 333–334 in First Circuit, 31 in Fourth Circuit, 180 in Ninth Circuit, 364, 365 in Sixth Circuit, 262–263 in Tenth Circuit, 417 ERISA cases discovery in, in First Circuit, 21–25 removal of, in Eleventh Circuit, 488 special rules for in First Circuit, 51–52 in Fourth Circuit, 199 statute of limitations in, in Tenth Circuit, 426 ERISA claims, against nonfiduciaries, 521 in Eighth Circuit, 329

1474

in Fifth Circuit, 224, 227 in First Circuit, 36 in Fourth Circuit, 188–189 in Ninth Circuit, 368–369 in Second Circuit, 82–83 in Seventh Circuit, 301–302 in Sixth Circuit, 259, 263, 269–270 in Tenth Circuit, 421 in Third Circuit, 133–134 ERISA class actions, 200–202, 236, 459–460, 487–488 ERISA motion, 73–74 ERISA plan, parts of in D.C. Circuit, 491–494 in Eighth Circuit, 309–311 in Eleventh Circuit, 431–435 in Fifth Circuit, 205–209 in First Circuit, 1–5

1475

in Fourth Circuit, 143–149 in Ninth Circuit, 335–337 in Second Circuit, 55–58 in Seventh Circuit, 279–281 in Sixth Circuit, 237–241 in Tenth Circuit, 393–397 in Third Circuit, 97–103 ERISA preemption scope of in D.C. Circuit, 494–497 in Eighth Circuit, 312 in Eleventh Circuit, 435–436 in Fifth Circuit, 209 in First Circuit, 5–10 in Fourth Circuit, 149–151 in Ninth Circuit, 337–344 in Second Circuit, 58–60

1476

in Seventh Circuit, 281–282 in Sixth Circuit, 242–245 in Tenth Circuit, 397–398 in Third Circuit, 103–104 in Second Circuit, 58–60 in Sixth Circuit, 242–245 in Third Circuit, 103–104 ERISA procedural issues, in Eleventh Circuit, 455–461 ERISA regulations in D.C. Circuit, 523–526 in Eighth Circuit, 331 in Eleventh Circuit, 478–481 in Fifth Circuit, 229 in First Circuit, 39–47 in Fourth Circuit, 162, 192–195 in Ninth Circuit, 378–382 in Second Circuit, 88–90

1477

in Seventh Circuit, 304 in Sixth Circuit, 272–275 in Tenth Circuit, 423–425 in Third Circuit, 137–138 ERISA savings clause, 151–153, 154 ERISA statutes of limitation in D.C. Circuit, 526–529 in Eighth Circuit, 331–332 in Eleventh Circuit, 481 in Fifth Circuit, 230–231 in First Circuit, 47–50 in Fourth Circuit, 195–197 in Ninth Circuit, 382–388 in Second Circuit, 90–92 in Seventh Circuit, 304–305 in Sixth Circuit, 275–276 in Tenth Circuit, 426

1478

in Third Circuit, 139–140 ERISA trials in D.C. Circuit, 517 in Eighth Circuit, 326 in Fifth Circuit, 224–225 in First Circuit, 31 in Fourth Circuit, 178–179 in Ninth Circuit, 365 in Second Circuit, 76–78 in Seventh Circuit, 298 in Sixth Circuit, 262 in Tenth Circuit, 416–417 in Third Circuit, 125–126 ERISA’s civil enforcement provision, 126 Erreca standard, 344 Error, 475 Estoppel

1479

in D.C. Circuit, 508, 519 in Eighth Circuit, 313 in Fifth Circuit, 219 in First Circuit, 10, 50 in Fourth Circuit, 151, 181, 182 in Ninth Circuit, 350, 366, 386 in Seventh Circuit, 292 in Sixth Circuit, 254 in Tenth Circuit, 400, 418 in Third Circuit, 132 Estoppel claims, 105, 106, 292, 399, 437–438. See also Promissory estoppel claims Estoppel principles, 295 Evidence administrative record as in Eleventh Circuit, 455 in Fifth Circuit, 222 in Fourth Circuit, 178 1480

in Ninth Circuit, 361–362 in Second Circuit, 76 admissibility of, in Eleventh Circuit, 457–458 conflict of interest in Ninth Circuit, 357, 364, 365 in Tenth Circuit, 413 de novo review and, in Ninth Circuit, 362 denial notices as, in D.C. Circuit, 514–515 ERISA regulations and, in Second Circuit, 89 extrinsic, 291, 292, 361, 458 federal common law and, in D.C. Circuit, 515 IME vs. medical record review/paper review and in D.C. Circuit, 515–516 in First Circuit, 28–29 in Fourth Circuit, 176 in Ninth Circuit, 363 in Seventh Circuit, 296

1481

in Sixth Circuit, 259–260 in Third Circuit, 123–124 objective (See Objective evidence) objective medical, in D.C. Circuit, 515 plan interpretation and, in Third Circuit, 115 remedies and, in D.C. Circuit, 515 scope of in D.C. Circuit, 513–514 in Eighth Circuit, 323 in Eleventh Circuit, 451–455 in Fifth Circuit, 223 in First Circuit, 25–27 in Fourth Circuit, 171–174 in Second Circuit, 69–71 in Seventh Circuit, 294–295 in Sixth Circuit, 258–259 in Tenth Circuit, 411–413

1482

in Third Circuit, 121–122 Social Security determinations as (See Social Security determinations) under standards of review in D.C. Circuit, 513–514 in Eighth Circuit, 323 in Eleventh Circuit, 451–455 in Fifth Circuit, 223 in First Circuit, 25–27 in Fourth Circuit, 171–174 in Second Circuit, 69–71 in Seventh Circuit, 294–295 in Sixth Circuit, 258–259 in Tenth Circuit, 411–413 in Third Circuit, 121–122 subjective, in Fourth Circuit, 176–177 third-party review as, in Tenth Circuit, 414–415 treating physician rule and, in Eleventh 1483

Circuit, 455 types of, in Fourth Circuit, 174–175 Evidence of compliance with safeguards, 480–481 Evidentiary value, 259 Exclusionary clauses, 427–428 Exhaustion doctrine, 498 Exhaustion of administrative remedies as absolute requirement in D.C. Circuit, 498–499 in Eighth Circuit, 313–314 in Eleventh Circuit, 439–440 in Fifth Circuit, 213 in First Circuit, 10–11 in Fourth Circuit, 156 in Ninth Circuit, 351–352 in Second Circuit, 63–64 in Seventh Circuit, 283–284 in Sixth Circuit, 247 1484

in Tenth Circuit, 401 in Third Circuit, 106 claim (See Claim exhaustion) counterclaim and, 285 denial letter and, in Sixth Circuit, 275 exceptions to in D.C. Circuit, 499–500 in Eighth Circuit, 314 in Eleventh Circuit, 440–442 in Fifth Circuit, 213–214 in First Circuit, 11, 25–26 in Fourth Circuit, 156–158 in Ninth Circuit, 352 in Second Circuit, 63–64 in Seventh Circuit, 284 in Sixth Circuit, 247–248 in Tenth Circuit, 401–402

1485

in Third Circuit, 106–107 failure and in D.C. Circuit, 500 in Eighth Circuit, 314–315 in Eleventh Circuit, 442 in Fifth Circuit, 214 in First Circuit, 11–12 in Fourth Circuit, 158–159 in Ninth Circuit, 352 in Second Circuit, 64 in Seventh Circuit, 285 in Sixth Circuit, 248–249 in Tenth Circuit, 402 in Third Circuit, 107–108 failure to seek administrative review in in D.C. Circuit, 500 in Eighth Circuit, 314–315

1486

in Eleventh Circuit, 442 in Ninth Circuit, 352 failure-to-exhaust defense and (See Failure-to-exhaust defense) fiduciary duty and, in Eleventh Circuit, 442–443 issue (See Issue exhaustion) levels of administrative review in in D.C. Circuit, 501 in Eighth Circuit, 315 in Eleventh Circuit, 443 in Fifth Circuit, 214 in First Circuit, 12 in Ninth Circuit, 353 in Second Circuit, 64 in Seventh Circuit, 285 in Tenth Circuit, 403 in Third Circuit, 108 1487

time-barred claim and, in Sixth Circuit, 249 waiver and, in Eleventh Circuit, 443–444 Express preemption, 339–342 Extrinsic evidence, 291, 292, 361, 458

Factor methodology, 216 Factors method of review, 406 Failure-to-exhaust defense in D.C. Circuit, 501 in Eighth Circuit, 315 in Fifth Circuit, 214 in First Circuit, 12 in Fourth Circuit, 159 in Ninth Circuit, 353 in Seventh Circuit, 285 in Sixth Circuit, 248–249 in Tenth Circuit, 403

1488

in Third Circuit, 108 Fair Share Health Care Fund Act (“Fair Share Act”), 151 Federal Arbitration Act, 216 Federal common law in D.C. Circuit, 507–508, 515 in Eleventh Circuit, 437, 446–447, 484 in Fifth Circuit, 218–220 in First Circuit, 19–20 in Fourth Circuit, 163–164 in Ninth Circuit, 359 in Second Circuit, 67, 82 in Seventh Circuit, 290, 292, 304–305 in Sixth Circuit, 251–252 in Tenth Circuit, 408 in Third Circuit, 113–114, 133 Federal equitable estoppel claim, 350 Federal Rule of Appellate Procedure 38, 228

1489

Federal Rule of Civil Procedure 12(b)(6), 485 Federal Rule of Civil Procedure 23(b)(1), 460, 488 Federal Rule of Civil Procedure Rule 26(a), 511 Federal Rule of Civil Procedure 26(b), 411 Federal Rule of Civil Procedure 52, 391, 456, 513 Federal Rule of Civil Procedure 54, 371 Federal Rule of Civil Procedure 56, 73, 455, 513 Federal Rules of Civil Procedure, 74, 200, 201, 277, 365, 410, 416, 527 Federal Rules of Evidence, 294 Federal Rules of Evidence Rule 403, 511 Fee-shifting statutes, 136 Fiduciaries contribution and indemnity claims Contribution and indemnity claims) de facto, 225 defined in D.C. Circuit, 519–520

1490

among

(See

in Eighth Circuit, 327–328 in Eleventh Circuit, 462–467 in Fifth Circuit, 225 in First Circuit, 33–34, 42–43 in Fourth Circuit, 182–183 in Ninth Circuit, 368 in Second Circuit, 80 in Seventh Circuit, 299 in Sixth Circuit, 261, 265–267 in Tenth Circuit, 419–420 in Third Circuit, 128–129 in Eleventh Circuit, fees awarded to, 477 fees awarded to in D.C. Circuit, 522–523 in Eighth Circuit, 330 in Fifth Circuit, 228 in First Circuit, 38–39

1491

in Fourth Circuit, 191 in Ninth Circuit, 372–374 in Second Circuit, 85 in Seventh Circuit, 303 in Sixth Circuit, 271 in Tenth Circuit, 422 in Third Circuit, 136 plan administrators and in Fourth Circuit, 162 in Second Circuit, 65 subrogation litigation and, in Second Circuit, 92 Fiduciary duties breach of in D.C. Circuit, 518–519 in Eleventh Circuit, 442–443 in Fifth Circuit, 225, 226 in Fourth Circuit, 187–188

1492

in Seventh Circuit, 300–301 in Sixth Circuit, 268–269, 275, 276 in Third Circuit, 132–133 defined in D.C. Circuit, 520–521 in Eighth Circuit, 328 in Eleventh Circuit, 467–470 in Fifth Circuit, 225–226 in First Circuit, 34–35 in Fourth Circuit, 184–185 in Ninth Circuit, 368 in Second Circuit, 80–81 in Seventh Circuit, 299–300 in Sixth Circuit, 267–268 in Tenth Circuit, 420 in Third Circuit, 129–131 remedies for, in First Circuit, 32–33

1493

standard of review, in Eighth Circuit, 318 subject to, in Eighth Circuit, 327 Fiduciary duty claims, 77, 79, 365 Fiduciary exception, discovery and in Eighth Circuit, 322 in Eleventh Circuit, 451 in First Circuit, 24–25 in Fourth Circuit, 170 in Ninth Circuit, 361 in Sixth Circuit, 257–258 in Third Circuit, 141 Fiduciary liability, in health and disability context in D.C. Circuit, 521 in Eighth Circuit, 329 in Eleventh Circuit, 470–472 in Fifth Circuit, 226 in First Circuit, 35

1494

in Fourth Circuit, 185–187 in Ninth Circuit, 368 in Second Circuit, 81–82 in Seventh Circuit, 300 in Sixth Circuit, 268 in Tenth Circuit, 420–421 in Third Circuit, 131–132 Fiduciary liability claims in D.C. Circuit, 519–521 in Eighth Circuit, 327–329 in Eleventh Circuit, 462–473 in Fifth Circuit, 225–227 in First Circuit, 33–36 in Fourth Circuit, 182–189 in Ninth Circuit, 368–369 in Second Circuit, 80–83 in Seventh Circuit, 299–302

1495

in Sixth Circuit, 265–270 in Tenth Circuit, 419–421 in Third Circuit, 128–134 Fiduciary responsibility, 40 Fiduciary Responsibility under ERISA: Is There Ever a Fiduciary Duty to Disclose?, 225 Fiduciary standards, in First Circuit, 40–41 Fiduciary status, 128, 182, 189, 225, 463, 464, 465, 466 Five factor analysis, 270, 302, 303, 316, 320, 329, 330, 422, 473, 474, 522 Four-factor test, 506 Futility, in exhaustion, 213 Futility exception, 314, 440

General disability policy, 199 Good cause, 71, 323, 325 Good faith, 211, 271, 302 Good faith and fair dealings, 338

1496

Good faith claims, 245 Good faith exception, 358, 378 Good faith standard, 121 Good-faith basis, 120 Good-faith behavior, 505 Governmental plan exemption, 432

Health and disability claims, fiduciary liability in. See Fiduciary liability Health care and severance benefit plans, 165 Health care benefit claims, 211–212 Health care providers, 400 Holt common law test, 493 Hourly rates, 86 Hummell factors, 369, 370, 371, 372, 373, 374 Hybrid lodestar/multiplier approach, 374, 375, 377

Indemnity claims. See Contribution and indemnity claims 1497

Independent contractor, 98, 492, 493 Independent medical exam (IME) in D.C. Circuit, 515–516 in First Circuit, 18, 28–29 in Fourth Circuit, 176 in Ninth Circuit, 363 in Seventh Circuit, 296 in Sixth Circuit, 259–260 in Tenth Circuit, 415 in Third Circuit, 123–124 Insurance Fraud Prevention Act, 104 Insured plans, 152 Insurers, 464–465 Internal Revenue Code, 144, 148 International Association of Entrepreneurs of America (IAEA), 147 Investment advisors, 467 Iron Workers factors, 477 1498

IRS regulations, 281 Issue exhaustion in Eleventh Circuit, 443 in First Circuit, 12 in Fourth Circuit, 159 in Ninth Circuit, 352–353 in Seventh Circuit, 285 in Sixth Circuit, 248 in Tenth Circuit, 402–403 in Third Circuit, 108

Jebian rule, 358 Judicial discretion, 156 Judicial review, 498 Jurisdiction, in Fifth Circuit, 231, 232, 236 Jurisdictional removal, 202–204 Jury trials

1499

in Eleventh Circuit, 456–457 in Fourth Circuit, 179–180 in Ninth Circuit, 365 in Seventh Circuit, 298 in Sixth Circuit, 262 in Tenth Circuit, 428

Kentucky Health Care Reform Act, 243 King test, 270 Knox-Keene Health Care Service Plan Act of 1975, 342

Legal relief, 140, 417 Liability. See Fiduciary liability; Fiduciary liability claims Limitation of actions period, 91 Limitation period, 90, 139, 195–197, 230–231, 304 Limitations, on discovery in D.C. Circuit, 510–512

1500

in Eighth Circuit, 321–322 in Eleventh Circuit, 447 in Fifth Circuit, 221–222 in First Circuit, 21–23 in Fourth Circuit, 166–167 in Ninth Circuit, 360 in Second Circuit, 68–69 in Seventh Circuit, 292–293 in Sixth Circuit, 254–255 in Tenth Circuit, 410 in Third Circuit, 116–119 Limitations period, 332, 353, 384, 526 Limitations provisions, 383–385 List bill exceptions, 310, 337, 395 Lodestar amount, 374, 423 Lodestar approach, 478 Lodestar calculation, 228

1501

Lodestar figure, 86, 87, 191, 423 Lodestar formula, 303 Lodestar method, 85, 229, 271, 272 Lodestar/multiplier approach, hybrid, 374, 375, 377 Lump sum payments, 361

Make whole doctrine, 389, 427, 483, 484, 530 Make whole relief, 186, 265, 390 Make whole rule, 332 Make whole theory, 529 Malpractice claims in D.C. Circuit, 497 in Eighth Circuit, 313 in Eleventh Circuit, 436–437 in First Circuit, 9 in Fourth Circuit, 154–155 in Ninth Circuit, 348–349

1502

in Second Circuit, 61–62 in Seventh Circuit, 282–283 in Sixth Circuit, 245–246 in Tenth Circuit, 398 in Third Circuit, 104–105 Managed care claims in D.C. Circuit, 497 in Eighth Circuit, 313 in Eleventh Circuit, 436 in First Circuit, 8–9 in Fourth Circuit, 153–154 in Ninth Circuit, 346–348 in Second Circuit, 60–61 in Seventh Circuit, 282 in Sixth Circuit, 245–246 in Tenth Circuit, 398 in Third Circuit, 104–105

1503

Managed Health Care Insurance Accountability Act of 1999, 349 Maryland General Assembly, 151 Maryland HMO Act, 152 Maryland Insurance Administration, 163 Maryland Insurance Commissioner, 163 McCarran-Ferguson Act factors, 350, 436, 495 Meaningful access to procedures, 314 Medicare, 182 Merger agreement between employers, 241 Michigan Office of Financial and Insurance Services (OFIS), 246 Miller, Arthur R., 77 Miller test, 342, 344 Mississippi Code Annotated, 230 Missouri Health Care Utilization Review Act, 313 Montana Insurance Commissioner, 343 Montana’s Commissioner of Insurance, 358 1504

Motions for judgment, 365 Multiemployer Pension Plan Amendments Act of 1980, 102 Multiple employer trust (MET). See Multiple employer trusts and welfare agreements Multiple employer trusts and welfare agreements in D.C. Circuit, 494 in Eighth Circuit, 310–311 in Eleventh Circuit, 435 in Fifth Circuit, 207–208 in First Circuit, 4 in Fourth Circuit, 147–148 in Ninth Circuit, 337 in Second Circuit, 58 in Seventh Circuit, 281 in Sixth Circuit, 241 in Tenth Circuit, 395 in Third Circuit, 102

1505

Multiple employer welfare agreement (MEWA). See Multiple employer trusts and welfare agreements

New Jersey Administrative Code, 113 Non-core hours, defined, 39 Nonfiduciaries ERISA claims against in D.C. Circuit, 521 in Eighth Circuit, 329 in Fifth Circuit, 227 in First Circuit, 36 in Fourth Circuit, 188–189 in Ninth Circuit, 368–369 in Second Circuit, 82–83 in Seventh Circuit, 301–302 in Sixth Circuit, 269–270 in Third Circuit, 133–134 liability of, in Eleventh Circuit, 473 1506

subrogation litigation and, in Second Circuit, 92 Nonfiduciary claims, 527

Objective evidence in Eighth Circuit, 323–324 in First Circuit, 29–30 in Fourth Circuit, 176–177 in Ninth Circuit, 363–364 in Seventh Circuit, 296–297 in Sixth Circuit, 260 in Tenth Circuit, 415–416 in Third Circuit, 124 Objective medical evidence, 515 Ordinary meaning, 320 Ordinary preemption, 209–211

Paper review

1507

in D.C. Circuit, 515–516 in Eleventh Circuit, 475 in First Circuit, 18, 28–29 in Fourth Circuit, 176 in Ninth Circuit, 363 pure, 356, 363 in Seventh Circuit, 296 in Sixth Circuit, 259–260 in Tenth Circuit, 415 in Third Circuit, 123 Participants, 148, 336, 381, 399–400 Payroll practices, 41, 479 Pending claims, 221 Pension Benefit Guaranty Corporation (PBGC), 525, 526 Pharmaceutical benefit management companies (PBMs), 495 Plan administrators de facto (See De facto plan administrators) 1508

defined, 326 Plan amendments, 165, 221, 410 Plan beneficiaries, 181–182 Plan documents rule, 166 Plan interpretation contra proferentem and (See Contra proferentem) deference to administrator)

administrator

(See

Deference

effects of plan amendments on pending claims in in Fifth Circuit, 221 in Ninth Circuit, 359–360 federal common law and (See Federal common law) other rules of in D.C. Circuit, 509–510 in Eleventh Circuit, 447 in Fifth Circuit, 220–221 in Fourth Circuit, 165–166 in Ninth Circuit, 359 1509

to

in Seventh Circuit, 291–292 in Sixth Circuit, 254 in Tenth Circuit, 409–410 plan documents rule, in Fourth Circuit, 166 in Third Circuit, other rules of, 115–116 Plan language in D.C. Circuit, 501–503 in Eighth Circuit, 315–316 in Eleventh Circuit, 458 in Fifth Circuit, 214 in First Circuit, 13–19, 20 in Fourth Circuit, 159, 174 in Ninth Circuit, 353 in Second Circuit, 64–65 in Seventh Circuit, 285–286 in Sixth Circuit, 249 in Tenth Circuit, 403–405

1510

in Third Circuit, 109–110 Plan participants, 467 Plan sponsor, 129 Policy-based defenses in Eighth Circuit, 333–334 in Fifth Circuit, 235–236 in First Circuit, 52–53 in Fourth Circuit, 199–200 in Seventh Circuit, 306 Precertification, 400 Pre-Darden law, 492 Preemption complete (See Complete preemption) conflict (See Conflict preemption) in D.C. Circuit, 494–498 defensive, 439 of equitable claims and defenses (See Equitable claims and defenses) 1511

ERISA (See ERISA preemption) express, in Ninth Circuit, 339–342 of health care benefit claims, in Fifth Circuit, 211–212 of independent review statutes, in Fourth Circuit, 154–155 issues, in Fourth Circuit, 155–156 of malpractice claims (See Malpractice claims) of managed care claims (See Managed care claims) ordinary, in Fifth Circuit, 209–211 other issues in in D.C. Circuit, 497–498 in Eleventh Circuit, 438–439 in Fourth Circuit, 155–156 in Seventh Circuit, 283 in Sixth Circuit, 246–247 in Tenth Circuit, 398–401 scope of ERISA (See ERISA preemption) state independent review statutes and 1512

in Eighth Circuit, 313 in Ninth Circuit, 349–350 of state law equitable claims, in First Circuit, 10 super, 439 (See also Complete preemption) Preexisting-condition exclusion, 333 Prejudgment interest in D.C. Circuit, 530 in Eighth Circuit, 334 in Eleventh Circuit, 486–487 in Fourth Circuit, 180 in Ninth Circuit, 345, 366 in Second Circuit, 94 in Seventh Circuit, 306–307 in Tenth Circuit, 428 in Third Circuit, 127 Prelitigation fees, 477 Pre-Miller approach, 495

1513

Presumptively void, 505 Prevailing defendant, 422 Prevailing party, 190 Prima facie case in Eleventh Circuit, 443 in Ninth Circuit, 360 in Seventh Circuit, 287, 293 in Sixth Circuit, 256–257 in Third Circuit, 137 Privilege. See Attorney-client privilege Procedural aspects in D.C. Circuit, 516–517 in Eighth Circuit, 325–326 in Eleventh Circuit, 438 in Fifth Circuit, 224–225 in First Circuit, 30–31 in Fourth Circuit, 177–180

1514

in Ninth Circuit, 364–365 in Second Circuit, 72–78 in Seventh Circuit, 297–298 in Sixth Circuit, 260–263 in Tenth Circuit, 416–417 in Third Circuit, 124–126 Procedural irregularity, standard of review in D.C. Circuit, 504–506 in Eighth Circuit, 317, 318–319 in Fifth Circuit, 216–217 in First Circuit, 14–16 in Fourth Circuit, 161–162 in Ninth Circuit, 355–357 in Second Circuit, 65–67 in Seventh Circuit, 287–289 in Sixth Circuit, 250–251 in Tenth Circuit, 406–407

1515

in Third Circuit, 111–113 Procedural rules in Fifth Circuit, 235 in First Circuit, 51–52 in Fourth Circuit, 199 Procedural violations, in Tenth Circuit, 425 Promissory estoppel claims, 437, 460, 488, 507 Proof of claim accrual clause, 331 Proper beneficiary designation, 321 Proper party defendant, 460–461 Pure paper review, 356, 363

Reformation, 366, 367, 418 Regulations. See ERISA regulations Reimbursement litigation, 481–486 Relapsing conditions, 95 Relationship test, 340, 341

1516

Remedies under § 502(a)(1)(B), in Third Circuit, 126–127 under § 502(a)(1)(B) [29 U.S.C. § 1132(a)(1)(B)] in Sixth Circuit, 263–264 in Tenth Circuit, 417–418 under § 502(a)(3), in Third Circuit, 127 under § 502(a)(3) [29 U.S.C. § 1132(a)(3)] in Sixth Circuit, 264–265 in Tenth Circuit, 418–419 for award of benefits and interest, in Fourth Circuit, 180–181 for benefits owed, in First Circuit, 32–33 for breach of fiduciary duty in First Circuit, 32–33 in Fourth Circuit, 187–188 in Sixth Circuit, 268–269 Cigna v. Amara and, 127–128 in Ninth Circuit, 366–367 1517

in Sixth Circuit, 265 in Tenth Circuit, 419 for claimants, in Second Circuit, 78 for claims, in Second Circuit, 78–80 claims for benefits and, in D.C. Circuit, 517–518 in Eighth Circuit, 326–327 in Eleventh Circuit, 461–462 for equitable relief for plan beneficiaries, in Fourth Circuit, 181–182 under ERISA § 502(a)(1)(B) [29 U.S.C. § 1132(a)(1)(B)], in Ninth Circuit, 365–366 under ERISA § 502(a)(3) [29 U.S.C. § 1132(a)(3)], in Ninth Circuit, 366 evidence and, in D.C. Circuit, 515 exhaustion of administrative administrative remedies)

(See

Exhaustion

fiduciary duty and, in D.C. Circuit, 518–519 in Seventh Circuit, 298–299 Removal, in Fifth Circuit, 236

1518

of

Reported trials, 459 Residual disability, 333 Respondeat superior, 189 Restrictive plan provision, 219 Retirement Protection Act of 1994, 229

Safe harbor criteria, 336 Safe harbor exception, 237 Safe harbor factors, 395 Safe harbor preservation, 40 Safe harbor provision, 273, 450, 479 Safe harbor regulation in D.C. Circuit, 493 in Eighth Circuit, 310 in Eleventh Circuit, 433 in Fifth Circuit, 206–207 in First Circuit, 3, 40, 41–42

1519

in Fourth Circuit, 145–146 in Ninth Circuit, 336–337 in Second Circuit, 57–58 in Sixth Circuit, 239–240 in Tenth Circuit, 395 in Third Circuit, 99–101 Safe harbor requirements, 337 Safe-harbor provision, 205 Savings clause, 151–153, 154, 244, 252, 312, 338, 342–344 Scholarship programs, 42 Scope of discretion, 159–160 Self-funded benefit plan, 384 Self-funded plans, 152, 153, 162, 357 Settling parties and fees, 477 Seven-factor test, 496 Severance benefit plans, 165 Simultaneous claims, 131 1520

Sliding scale, 317, 505 Sliding scale analysis, 287 Sliding scale approach, 355, 406 Sliding scale precedent, 216 Social Security Act, 141 Social Security Administration rule, 177 Social Security Administration (SSA), 27, 71, 176, 223, 238, 259, 295, 321, 363, 414, 514, 524 Social Security award, 217 Social Security benefits, 141 Social Security determinations in D.C. Circuit, 514 in Eighth Circuit, 324–325 in Eleventh Circuit, 455, 458–459 in Fifth Circuit, 223–224 in First Circuit, 27–28 in Fourth Circuit, 175–176 in Ninth Circuit, 362–363 1521

in Second Circuit, 71–72 in Seventh Circuit, 295–296 in Sixth Circuit, 259 in Tenth Circuit, 413–414 in Third Circuit, 122–123 Social Security disability benefits, 93, 198, 295, 305 Social Security information, 363 Something for nothing claim, 438 Special Needs Trust, 235 Standard of review abuse of discretion (See Abuse of discretion standard of review) arbitrary and capricious, 455 in D.C. Circuit, 506, 513–514 de novo (See De novo standard of review) deferential, 162, 445 in Eighth Circuit, 315–319, 321, 323 in Eleventh Circuit, 444–446, 451–455 1522

in Fifth Circuit, 214–218, 223 in First Circuit, 13–19, 25–27 in Fourth Circuit, 159–163, 161, 171–174 in Ninth Circuit, 353–359, 360 in Second Circuit, 64–67, 69–71, 73–76 in Seventh Circuit, 285–290, 294–295 in Sixth Circuit, 249–251, 258–259 in Tenth Circuit, 403–408, 411–413 in Third Circuit, 109–113, 116, 121–122 State independent review statutes, 313, 349–350 Statute of limitations period, 230, 276, 331, 332 Statutes of limitation, ERISA. See ERISA statutes of limitation Statutory law, 494 Stevens, John Paul, 306 Stipulated administrative record, 365 Stop-loss insurance, 155 Stop-loss policy, 341 1523

Subrogation litigation in D.C. Circuit, 529–530 in Eighth Circuit, 332 in Eleventh Circuit, 481–486 in Fifth Circuit, 231–235 in First Circuit, 50–51 in Fourth Circuit, 197–198 in Ninth Circuit, 388–390 in Second Circuit, 92–94 in Seventh Circuit, 305 in Sixth Circuit, 276–277 in Tenth Circuit, 427 in Third Circuit, 140–141 Substantial compliance, 89, 191 Substantial compliance doctrine, 304, 399 Substantial compliance standard, 251, 274 Substantial compliance test, 514, 524

1524

Substantially justified test, 302, 303 Substantive determinations, 425 Substantive rules in First Circuit, 51–52 in Fourth Circuit, 199 Summary plan description (SPD) in D.C. Circuit, 509 in Eighth Circuit, 316 in Eleventh Circuit, 441 in First Circuit, 43–44 in Fourth Circuit, 174 in Ninth Circuit, 367, 384 in Second Circuit, 67, 88 in Sixth Circuit, 274, 286, 289 in Tenth Circuit, 409–410, 419 in Third Circuit, 109–110 Summary trial, 75

1525

Super preemption, 439. See also Complete preemption Surcharge, 132, 219, 366, 367, 419 Surcharge remedy, 79, 80

Taint of self interest, 458 Tenuous and peripheral exception, 495 Texas Civil Practice and Remedies Code, 230 Texas Health Care Liability Act, 163, 209, 211 Texas Insurance Code, 211 Texas Prompt Pay Act, 212 Third party administrator (TPA), 340, 347, 357, 436, 465–466 Third-party action, 427 Third-party claims administrator, 435 Third-party plan administrator, 506 Third-party review, 414–415 Thomas, Clarence, 126 Threshold question, 80 1526

Timeliness in Eleventh Circuit, 480 in Ninth Circuit, 357–358 Total disability, 333 Traditional equitable remedy, 462 Treating physician rule, 455, 524 Trials. See ERISA trials Trust law, 82 Trust-law principles, 133 Two-factor test, 496 Two-part test, 339, 343 Typical equitable remedy, 265

Unjust enrichment, 427, 484 Ursic factors, 135 Useden standard, 467 Utilization review, 163

1527

Vesting of benefits, 320–321

Waiver, 313, 350, 443–444 Waiver claims, 438 Weiner, Judge, 216, 218, 231, 232, 233 Weis, Judge, 111 Welfare agreements. See Multiple employer trusts and welfare agreements (MEWAs) Welfare benefit plan in First Circuit, 1–3 in Fourth Circuit, 165 Welfare plan, 229 Williams analysis, 452 Work product, 170 Wright, Charles Alan, 77

1528