Halo v. Yale, the Second Circuit, Hamilton and Sideways Challenges to the Scope of Discretionary Review
In the musical Hamilton, everyone from Aaron Burr to Hamilton’s wife, Eliza, asks why Hamilton always “writes like he’s running out of time,” and the lyrics assign various pop psychology rationales to his urgency. This morning, though, after listening to the soundtrack again, I realized the real reason – he’s a lawyer! He’s always on deadline and running out of time!
Me too, which is why I haven’t had time to post regularly lately, but, between all the briefing and court hearings, I have been reading everything that has crossed my desk, making note of a number of recent decisions that I wanted to comment on. Interestingly though, the luxury of waiting to write on them – not of my choosing, but nonetheless – has allowed time for a theme to emerge, and it is this: we are seeing a series of cases coming out of major courts that are aggressively pushing back against the unbridled assertion of broad discretion by plan administrators operating under a grant of discretion. For years, commentators have argued that the breadth of discretionary review was excessive, and even many judges, while broadly applying that scope of review, have commented in dicta that the extent of that scope should be revisited by higher tribunals or Congress. I myself have, time and again, while winning cases on behalf of administrators, fiduciaries and sponsors, had the experience of judges ruling in favor of my clients noting at the same time that their figurative hands were figuratively tied by circuit and Supreme Court jurisprudence, and on occasion commenting that the claimant’s complaints in that regard were more properly addressed to Congress than to a district court judge.
But, to continue the Hamilton references, for every action there is an equal and opposite reaction. In Hamilton, Thomas Jefferson uses this law of physics to explain the breaking up into factions of George Washington’s cabinet. Here, though, I think it holds true as well as an explanation for a series of recent decisions that have placed some checks on the freedom of action of plan administrators operating under grants of discretion. Over time, in reaction to the evidentiary and substantive benefits granted to plans and their administrators by discretionary review, and in response to clever arguments made over the course of years by lawyers for participants seeking to undermine discretionary review, courts have begun developing doctrines that reign in, to a certain degree, the advantages granted to administrators by a discretionary grant. For the most part, these are not direct restrictions on the exercise of discretion itself, but instead consist of challenges to the applicability at all of discretion, such as in the form of decisions holding plan administrators to strict compliance with technical requirements of claims handling upon pain of losing the benefits granted them by discretionary review.
An excellent example of this phenomenon is the Second Circuit’s recent decision in Halo v. Yale Health Plan, Dir. of Benefits & Records Yale University, which addressed the impact on discretionary review of an administrator’s failure to strictly comply with the claims handling regulations of the Department of Labor, and which held that non-compliance could forfeit a grant of discretion. The Court held that “when denying a claim for benefits, a plan's failure to comply with the Department of Labor's claims-procedure regulation, 29 C.F.R. § 2560.503–1, will result in that claim being reviewed de novo in federal court, unless the plan has otherwise established procedures in full conformity with the regulation and can show that its failure to comply with the claims-procedure regulation in the processing of a particular claim was inadvertent and harmless. Moreover, the plan ‘bears the burden of proof on this issue since the party claiming deferential review should prove the predicate that justifies it.’”
This theme – of sideways, rather than frontal, attacks on the application of discretionary review – has cropped up in a number of recent decisions. With any luck, if I don’t run out of time, I will comment on those decisions and how they fit in this theme in upcoming posts.
Another Case Showing That You Should Not Assume That Your Plan Provider Is a Fiduciary
Okay, so law blogging evangelist and reformed trial lawyer Kevin O’Keefe is advocating for shorter, more frequent blog posts, and I read his short post on that while I was in the middle of writing a long post for this blog, hopefully to go up tomorrow, on the Third Circuit’s recent opinion on the church plan exemption under ERISA. Amusingly, right when I read Kevin’s post, I had just tweeted a quick one liner on this article – “Court Rejects Excessive Fee Claims Against Principal” - from planadviser about an Eighth Circuit decision that illustrates an important point I often make: service providers to plans employ armies of lawyers whose job is to make sure that their contractual relationships with plan sponsors do not turn them into fiduciaries. Time after time, I find that plan sponsors assume their providers are fiduciaries, but we all know that time after time, they are not, and moreover, that plan sponsors often don’t learn this until a court, during a lawsuit, lets the service provider off the hook on the ground that the service provider is not a fiduciary. This article, and the Eighth Circuit decision it discusses, illustrates this phenomenon perfectly. So I am passing it along, as part of a short post written solely for that purpose, just as Kevin suggested.
What Can a Chief Retirement Officer Do for You?
This is so simple, its brilliant, and so brilliant, its simple – or something like that. The “this” I am talking about is the idea of appointing a Chief Retirement Officer, or CRO, as is discussed – and proposed – in Steff Chalk’s article, “The Advent of the Chief Retirement Officer,” in the latest issue of NAPANet. Essentially, he proposes that companies appoint a senior officer with overall responsibility for retirement plans, whether they be pensions, 401(k)s or what not. CROs would have responsibility for the types of issues that bedevil plans in the courtroom, such as overseeing revenue sharing and fees, as well as for the type of operational issues that often invoke fiduciary liability and equitable relief risks, such as the communication errors in Osberg. The brilliance and the simplicity of the idea stem from the exact same data point: it is the lack of knowledge, lack of interest, lack of time and lack of concern by company officials appointed to committees overseeing retirement plans, and who are just moonlighting in that role from what they consider their real jobs (like CFO, etc.) that are the cause of an awful lot of operational failures, litigation exposures, fiduciary liability risks and large settlements in the world of retirement plans.
I spoke and blogged recently about the nature of fiduciary liabilities in plan governance operations, and the theme of both my speaking and writing was the fact that officers overseeing plans are often shoehorning that work into the cracks in their otherwise busy schedules. By this, I don’t mean to suggest anything malevolent, or even intentional. Rather, it is just a fact of life. Counsel to plans are not loathe to note that they have to make a call as to how much of a governance committee’s limited time to tie up with a particular issue. Moreover, court decisions reflect that fiduciary breaches are often based on actions taken with limited discussion, limited knowledge and with a limited investment of time. When I say this, bear in mind that I am talking about cases that are litigated to at least the summary judgment stage, providing a factual basis for a court to find such facts; as a result, the cases I am describing are outliers, rather than a representative sample. Nonetheless, they still reflect the fact that it is the lack of expertise and the insufficient investment of human capital at the highest level of a plan sponsor that is often at the heart of fiduciary liabilities. Indeed, it is hard not to think of a major decision that ran in favor of participants in this area that did not have, among its factual bases, at least some evidence that those making the challenged decisions were ignorant about a key fact or important element of the investment world: think, for instance, of the key role in Tibble of the lack of knowledge about the nature of retail and investment fund choices.
And that’s the beauty of the CRO idea: the assignment of duties related to retirement plans to one individual who not only has the expertise to do the job well, but also has that as his or her only assigned job duties. If the nature of a fiduciary breach is found in an imprudent process – and it is – the assignment of such duties to a properly selected and qualified CRO with the time to do the work is a walking, talking barrel of evidence that a prudent process existed.
My Exclusive Interview with Fiduciary News on ERISA Litigation
The good people at Fiduciary News gave me a soapbox, and I was happy to climb up on it. They interviewed me as part of their series of monthly interviews on ERISA and related topics, and I discussed ERISA litigation and a wide range of related issues. You can find the “Exclusive Interview: ERISA Attorney Stephen Rosenberg Says Litigation’s Legacy is Improved Plan Design” here. You will see I went on for a bit, as I am wont to do when anyone wants to talk about ERISA!
Co-Fiduciary Liability and, In Other News, Thoughts on the Evidentiary Status of Medical Reviewers in LTD Claims
Two small notes today that I wanted to pass on. Each stuck in my mind as the possible foundation for a substantial blog post, but I have found that once items like this start to pile up in number, it can be quicker and more useful to get them out in a shorter post. Sports columnists, like the Boston Globe’s Dan Shaughnessy, used to describe columns full of small notes that were picked up along the way with none sufficient to warrant a full column on their own, as “clearing out the attic of my mind.” If I really set out to do that, we would be here awhile, but I am limiting myself to two items today: we can call it more like “cleaning out the corner of a desk drawer of my mind,” rather than the whole attic.
One of them was this article in Planadvisor titled “Do Retirement Plan Advisers Have a Duty to ‘Rat?’” Really, how can you not read an article with that heading? Although the headline sounds like clickbait for anyone in my line of work, it is actually a substantive discussion of a real problem, namely, when, given the risks on one hand of co-fiduciary liability and, on the other hand, of losing a client, a service provider should speak out about questionable or even illegal acts by a plan sponsor. One of my favorite southerners turned New Hampshire Yankee (which is not quite the same thing as a Yankee in King Arthur’s Court, but close enough), Adam Pozek, sums up the issue in this quote from the article:
Adam Pozek, a partner at DWC ERISA Consultants in Salem, New Hampshire, says, “It varies widely depending on what type of infraction there is. No one wants the reputation of turning a client in when something small happens, but in a situation where there is outright theft, most would agree the adviser has a duty to report it.”
Pozek also says it hinges to some degree on whether the adviser is acting in a fiduciary capacity. If not, in general, the adviser has less of a responsibility legally. However, depending on what titles they hold, they may have ethical or professional standards to consider. “It’s a judgment call for advisers who are not fiduciaries,” he states.
The other item I wanted to pass along is ERISA lawyer Rob Hoskins’ post on the ERISA Board the other day on this decision from the Southern District of New York noting that medical reviewers in LTD claims are not to be treated as experts for purposes of the federal rules of evidence and that their reports, on which LTD insurers and administrators rely in deciding LTD claims, are not subject to the Daubert standards that govern expert testimony. Its worth bearing that point in mind, simply because medical reviewers in litigated LTD claims sit in something of a unique position for purposes of the rules of evidence, in that they fall somewhere in between a treating physician, whose records are often broadly admissible, and an expert retained for litigation, whose testimony is governed by Daubert and the federal rules that govern expert testimony. Neither fish nor fowl, to a certain extent, are such reviewers and their reports for these purposes, but long standing practice has established the admissibility of such reports and the weight to be given them in the context of litigation over LTD claims.
Defensive Plan Building, Otherwise Known as "Minimizing Legal Risks in the Design, Implementation and Administration of Employee Benefit Plans"
I can’t even recall how many times I have written – on this blog and elsewhere – on what I call “defensive plan building,” which is the idea that plans should be designed, built out and operated with the risk of litigation and liability exposure carefully considered and planned for, with the goal of eliminating as many risks as possible. The idea is to think - not after being sued but when a plan is written, a vendor selected, funds chosen, an investment committee put together, and the like - how best to limit the liability risks of the plan sponsor and the plan’s fiduciaries.
Here’s an easy example. A couple of weeks ago I spoke on a Strafford webinar on the duty to monitor plan investments after the Supreme Court and the Ninth Circuit’s rulings in Tibble. One of my slides concerned a favorite topic of mine, which is the risk of corporate officers who are not directly involved in a plan’s operations being dragged into a dispute over the plan on the ground that they are functional fiduciaries of the plan (how this can happen, how it can be avoided, the status of the law on this issue under a wide variety of fact patterns, and the creativity of plaintiffs’ lawyers with regard to this issue are a subject for another day, one that perhaps warrants an entire article). Often, such officers and executives were not directly involved with the plan and, moreover, did not understand themselves to be occupying a role that could expose them to liability for the plan’s operations based on a claim that they were functional fiduciaries. As I explained in my presentation, getting dragged in this tangential way into class actions brought against a plan is not a good use of a senior executive’s time and focus, and likely not good for the longevity of the lawyer who designed the plan in a way that left a senior officer at risk of being named a defendant in such a claim. The point of “defensive plan building” is to look ahead at risks like this and design the plan in such a way that this doesn’t occur by accident, by insulating such senior officers from involvement that could drag them in as defendants. Multiply this by a thousand fold, concerning all of the other exposures that a plan can bring, and you have the idea of “defensive plan building:” look ahead when building and operating a plan at your potential exposures, and avoid the ones you want to avoid.
Now this is all nice as a theory, but there is no doubt it is hard to pull off. Plans are amazingly complicated machines, with a thousand moving parts. Worse yet, new theories of liability arise all the time, and one cannot predict whether certain actions taken today will run afoul of theories of liability crafted in the future. Just look, for instance, at excessive fee cases: the cost of funds certainly wasn’t on the radar screens of most plan sponsors and their lawyers several years ago, but it would be negligent of them to ignore those costs in designing a plan today.
I will have more of an opportunity to expand on this idea in November, when I will be speaking at the American Conference Institute’s conference on plan compliance issues in New York. The actual title of the conference is “Minimizing Legal Risks in the Design, Implementation and Administration of Employee Benefit Plans,” which could almost serve as a definition for the term “defensive plan building.” Peter Kelly, who is the Deputy General Counsel of Blue Cross and Blue Shield Association, Ed Berrios of Chubb and I will be speaking as a panel on fiduciary liability and employee benefit risks, and dozens of others will be speaking on a range of other issues central to operating a well-run plan. If you are interested in attending, you can get a special bargain by contacting Joe Gallagher at the American Conference Institute by the end of the month, at 212-352-3220 x 5511 or email@example.com, and mentioning my name.
ACI's 9th National Forum on ERISA Litigation
The American Conference Institute (ACI) hosts a comprehensive ERISA litigation conference twice a year, in New York in October and in Chicago in April. Fall in Manhattan and spring in Chicago. What’s not to like?
Beyond that though, the conferences have always provided a detailed and in-depth look at the hottest current topics in ERISA litigation, and I don’t say that just because I am speaking at the upcoming conference, in April, in Chicago. I also found this to be the case when I was attending in the past, in New York, as a member of the audience. Even most recently, at the 2014 conference in New York, where I spoke as a member of the panel discussing ethical concerns in ERISA litigation, I took a great deal away from the other presentations I attended, including the always interesting judicial panels, in which sitting judges discuss litigation and ERISA topics that have caught their attention.
In April, ACI will hold its 9th National Forum on ERISA litigation in Chicago, where I will be speaking, along with three well-known ERISA litigators, on current topics in benefit litigation. If you are interested in attending, ACI offers a discount to attendees who are invited by the speakers, and I would like to make that offer available to all of you who do me the good favor of reading my posts. If you would like to take advantage of that offer, all you need to do is contact ACI’s Joe Gallagher at 212-352-3220 ext. 5511, before January 30th, and mention my name.
How Do You Win an ERISA Estoppel Claim in the First Circuit?
I wanted to take advantage of the cold, dark, peaceful days of mid-January (do New Englanders still grow up reading Ethan Frome, with its perfect depiction of a classic, pre-global warming New England winter?) to talk briefly about an important First Circuit decision that slid somewhat under the radar when it was issued just before commencement of the holiday frenzy.
In Guerra-Delgado v. Popular, Inc., issued December 18th, the First Circuit continued its unwillingness to actually adopt estoppel claims in the context of ERISA as viable causes of action, a topic I discussed in detail here. The Court continued, in Guerra-Delgado, its tradition of deciding such claims by finding that, if such a claim could hypothetically exist, the plaintiff in the case before it had failed to make out its elements, a tradition I previously attributed to a desire to wait for a case that truly calls for adoption of the cause of action before acknowledging its existence. The Court, though, gave its clearest description yet of just what such a claim can and should look like; in essence, it described what the case will look like in the future that will finally get the First Circuit to formally acknowledge such a cause of action.
The Court explained that an equitable estoppel claim can be based on statements extrinsic to the plan documents where they concern an ambiguous term in the plan, but not otherwise. Thus, the first hurdle for proving an estoppel claim in the First Circuit – if you are lucky enough to be the lawyer or participant in the case where the Court finally agrees that such a claim exists under the law – is to demonstrate that the plan is ambiguous with regard to a provision related to the extrinsic statement in question. The Court declared (I don’t think we can say the Court “held,” since the Court effectively decided only a hypothetical, as it did not acknowledge the existence of such a claim) that ambiguity exists for these purposes “if the ‘terms are inconsistent on their face’ or the language ‘can support reasonable differences of opinion as to [its] meaning.’” The Court then proceeded to find that neither of these were true with regard to the plan terms at issue in the case before it.
And why should this be the rule (if and when the First Circuit finally approves of such a claim)? The Court gave a cogent explanation:
representations that interpret rather than modify the plan may provide “a narrow window for estoppel recovery.” Law, 956 F.2d at 370. We have observed that “a plan beneficiary might reasonably rely on an informal statement interpreting an ambiguous plan provision; if the provision is clear, however, an informal statement in conflict with it is in effect purporting to modify the plan term, rendering any reliance on it inherently unreasonable.” Livick, 524 F.3d at 31. We have explained that “[t]his is why courts which do recognize ERISA-estoppel do so only when the plan terms are ambiguous.” Id.
Even though it slipped in under the radar, Guerra-Delgado is not a case to be ignored if you are litigating an ERISA estoppel claim in the district courts of the First Circuit. It nicely ties together years of decisions in this circuit related to this topic, at both the appellate and district court levels, that are not always inherently consistent with one another, and gives you the road map for winning such a claim.
What Are the Costs and Risks to Administrators When District Courts Remand Benefit Denials Back to Them?
I have been writing a lot recently about big picture items, from Supreme Court cases over ERISA’s statute of limitations to the ability of plan sponsors to legally control litigation against them, and everything in between. It is worth remembering, however, that ERISA is a nuts and bolts statute that is litigated day in and day out, often by plan participants for whom the pension or lump sum or disability benefit at issue is the most important financial vehicle open to them. As a result, the details of litigating under the statute are of supreme importance to them.
One of the technical and less sexy areas of litigating these types of cases concerns the circumstances in which federal District Courts, in deciding benefit disputes, elect not to enter an order granting benefits to a participant because of flaws found in an administrator’s processing of a claim for benefits, but instead order the administrator to revisit the issue, in much the same way that an appeals court would remand a case back to a trial court for further proceedings. Issues arising from this type of a remand have become more and more important over the years, as the district courts have become more inclined to remand benefit denials back to administrators for further review as opposed to overturning a denial outright and awarding benefits. Partly, this has occurred because of years of defense lawyers arguing that this is the appropriate way of proceeding, with the courts eventually coming around. Defense lawyers pressed this point in benefit litigation for years before it really became the standard mode of operating for many trial judges, and the reason was simple. It gave the administrator two bites at the apple, in the sense of they would either win at the district court by having the denial upheld by the court or, worst case, would get to decide the issue again on remand. For administrators and plans, this beat the heck out of having a benefit decision up on summary judgment before a court with one of two possible outcomes, those being the court upholding the denial or instead the court granting the benefits to the participant. The remand argument, at a minimum, meant that a court considering a benefit denial on summary judgment would be invited to make any of three decisions, only one of which was truly and immediately detrimental to the administrator, which are: (1) uphold the denial of benefits; (2) overturn the denial and grant the benefits; or (3) remand the denial to the administrator to redo the whole thing.
My friend, colleague, and sometimes adversary, ERISA lawyer Jonathan Feigenbaum, recently won a pair of significant rulings from the First and Second circuits (he will have to try for the Third and Fourth in short order, so as to hit for the cycle) on two key issues arising out of remands of this nature to an administrator, one being the circumstances in which attorney’s fees can be awarded and the other being whether a plan or its insurer can appeal a district court order remanding the benefit dispute back to the administrator for further analysis. The two decisions, and the two issues, are interconnected in an interesting way. In one, the First Circuit’s ruling in Gross v. Sun Life, the Court held that such a remand order is sufficient success on the merits of the case to support an award of attorney’s fees. In the other, the Second Circuit’s opinion in Mead v. Reliastar Life Insurance Company, the Court held that such a remand order is not appealable, as it is not a final order.
Together, they form an interesting counter to the preference of administrators and their lawyers to seek a remand, rather than an outright reversal, when a district court finds problems with an administrator’s benefit determination. They stand for the proposition that administrators may be able to seek that relief, but if they get it, they will have to pay attorney’s fees to the participant and will not have an opportunity to test the remand order on appeal until the entire benefit dispute has been conclusively resolved once and for all at the district court level. Together, they represent an interesting doctrinal response to the preference of administrators to seek remand when problems are found with a benefit determination. Like all legal doctrines, it needs a catchy name – like the Younger doctrine is for abstention – if it is to get much traction in the legal literature. Let’s call it the “Feigenbaum doctrine.”
Q: Where Can You Sue an ERISA Plan? A: Where the Plan Sponsor Says
So the Sixth Circuit, in Smith v. Aegon, just ruled in favor of the enforceability of forum selection clauses in ERISA governed plans. Combined with the Supreme Court’s approval in Heimeshoff of contractual limitations in ERISA plans on the time period for filing suit, the approach of Smith basically hands control of the basic procedural aspects of litigating ERISA cases – when and where – to plan sponsors. In Smith, the Sixth Circuit provides a legitimate rationale for doing so, which is that the law already provides extensive freedom to plan sponsors with regard to whether, and if so under what terms, to offer benefit plans. This principle, incidentally, flows naturally from the original grand bargain that gave rise to ERISA itself, which was the premise that employers would be granted much leeway and limited potential liability to encourage them to make benefit plans available to employees.
That said, however, the dissent in Smith makes an important point, which is that the venue provisions of ERISA have long been construed by federal courts in the manner that will best allow participants to protect their rights, and not in a manner that will make it more difficult for them to do so. The dissent’s point in this regard is well taken. ERISA expressly provides that a plan participant can sue in any federal district court where the plan is administered, the breach took place, the defendant resides or the defendant may be found. 29 U.S.C. § 1132(e)(2). Federal judges regularly find that this venue provision was intended by Congress to expand, rather than constrict, a participant’s choice of forum, so as to best protect plan participants. As one judge explained in a well-regarded opinion on the subject, Congress intended “to remove jurisdictional procedural obstacles which in the past appear to have hampered effective enforcement of fiduciary responsibilities under state law for recovery of benefits due to participants” and as a result, “ERISA venue provisions should be interpreted so as to give beneficiaries a wide choice of venue.” Cole v. Central States Southeast and Southwest Areas Health and Welfare Fund, 225 F.Supp.2d 96, 98 (D.Mass. 2002) (quoting H.R.Rep. No. 93–533, reprinted in 1974 U.S.C.C.A.N. at 4639, 4655; accord S.Rep. No. 93–127, reprinted in 1974 U.S.C.C.A.N. at 4838, 4871).
Decisions such as Smith run to the opposite of this thinking and essentially say that, while that may be the case, a plan sponsor can opt out of that system of protections in favor of selecting a forum in the first instance, and naming it in the plan.
Administrative Exhaustion, Futility and the Last Refuge of the Scoundrel
When it comes to claims of futility as an explanation for failing to exhaust administrative remedies in pursuing benefits under an ERISA governed plan, I have long summed up my feelings with a pithy rephrasing of Samuel Johnson’s famous line about patriotism, which I have turned into the somewhat flippant comment that “futility is the last refuge of the participant who is not entitled to benefits.” (I also like to use a similar line in insurance coverage litigation when lawyers for policyholders claim without factual support that an insurer has waived a policy term, noting – often to the court – that “waiver is the last refuge of the uninsured”). For those of you who are not especially familiar with the concept of administrative exhaustion in the context of ERISA litigation, ERISA governed plans are required to have certain internal structures for processing claims for benefits filed by participants and appeals by those participants of decisions to deny benefits under the plan. Only after those processes are concluded can a participant properly go into court and sue for benefits under the plan; if a participant goes to court without first having pursued those opportunities with the plan itself, then the participant’s claim is supposed to be dismissed for failure to exhaust the administrative remedies that were available to the participant within the plan itself.
The obligation on the part of participants to exhaust plan remedies before filing suit is stringently applied by the courts, and, naturally, in the way that physics teaches that for every action there is an equal and opposite reaction, lawyers representing participants have developed certain arguments around the application of that rule. One of those is the concept of futility, or the idea that a participant should not have to exhaust administrative remedies if the plan was clearly going to deny the requested benefits, thus making the pursuit of those administrative remedies a futile act. The law, it is said, does not require futile and wasteful action, and thus does not require a participant to pursue all avenues to collect benefits that a plan may grant if there is no question the plan administrator will never award those benefits.
Futile, in this circumstance, really means futile, however. It does not mean the plan administrator was unlikely to grant the benefits, nor does it mean that the participant believed it was futile to seek benefits. Instead, it means that the evidentiary record must establish to the satisfaction of the court that, in fact, there was no possibility the benefits would ever be awarded, no matter what information was provided to the plan and its administrator. Rob Hoskins, on his excellent ERISABoard.com, has a summary of a new decision out of the Southern District of West Virginia that emphasizes this exact point, with the Court finding that the participants did not submit enough evidence to allow the Court to actually find that benefits would not be awarded under any circumstances and that the failure to exhaust administrative remedies could not be excused away by claims of futility. This was the case even though at least one of the plaintiffs had allegedly been directly told that benefits would not be awarded even if a claim for benefits was submitted.
The case nicely highlights how high the bar is to prove futility in this context, and raises the question of what then would be enough to prove futility. Many lawyers often find that a hard question to answer, for the specific reason that most lawyers have never actually had a case in which the opportunity to recover benefits voluntarily from a plan was so futile that, in fact, futility could be proven for these purposes. When I say this, I do not mean to mock the lawyers themselves, but mean simply to point out how rare it is to see a circumstance in which the facts actually bear out a claim of futility in this context.
For myself, though, I can answer the question, and I usually do so by reference to a case I handled in which the plan administrator had used multiple ancillary proceedings and disputes to make clear that, under no circumstance, was the participant ever going to be paid the benefits in question. The ancillary disputes concerned related workplace agreements, including a non-competition provision, that perfectly paralleled the terms that had to be satisfied in the benefit plan for benefits to be awarded. Thus, as a factual matter, the decisions on the ancillary disputes pre-ordained what the decision would be from the plan administrator with regard to any claim for benefits under the ERISA governed plan in question. This fact pattern is what a valid claim of futility in response to a defense of failure to exhaust plan remedies looks like, and it illustrates how high the bar is to successfully press such a claim.
If an Appeal is Filed and Nobody Knows It, Is it an Appeal?
There are many variations on the old question that, if a tree falls in the woods and no one is there to hear it, did it really fall. I am sure, like me, you have heard many versions of that question that are not fit to be reprinted in a PG-13 rated blog.
But I couldn’t help thinking of that line when I read a recent decision from the United States District Court for the District of Massachusetts. In Morgan v. Reliance Standard, an LTD insurer terminated benefits, and the participant responded in, literally, “dismay,” writing a letter to the company expressing that sentiment. The carrier treated it as an appeal of the original termination, although apparently with some trepidation as to whether an appeal was really being filed. The insurer processed it as an appeal, in standard – and from the looks of the decision, appropriate – form, assigning it to an appropriate medical expert for a record review, eventually resulting in a decision upholding the denial on appeal.
Of course, that begged the existential question of whether there was an appeal at all, or, in other words, whether there can be an appeal if the participant, who must file the appeal, doesn’t mean to file one and doesn’t think he filed one. While one might think that someone must actually file an appeal to have an appeal, you would be wrong. The Court found that the participant could not complain of the insurer’s crediting him with an appeal he didn’t file, unless he was prejudiced by it, because under the law in the First Circuit, procedural errors in handling a benefit claim do not give rise to a remedy unless the participant was prejudiced by the error. The Court found that the course of communications between the insurer and the participant caused the participant to have essentially the same protections in the processing of his claim as he would have had if he had, in fact, filed an appeal, and that the participant therefore suffered no prejudice from the fact that his claim was treated as though appealed. The Court then proceeded to decide the case on its merits.
I am not certain whether this case really teaches us anything new about ERISA litigation, since it is very fact specific and certainly concerns a situation that is unlikely to repeat itself very often. It does, though, appear to provide an answer to the question of whether a tree actually falls in the forest if no one is there to hear it: the answer is clearly yes, at least if a court in the First Circuit is deciding the answer.
Thanks, incidentally, is due to Rob Hoskins’ baby, the ERISA Board, for catching this odd little fact pattern, and giving me an excuse to discuss trees, forests, and what they have to do with ERISA.
The Fiduciary Exception to the Attorney-Client Privilege: What It Is and Why It Matters
One of the great advantages a Massachusetts ERISA litigator has is that our federal magistrate judges are very good with ERISA issues, which is something that is well illustrated by this decision on the scope of the fiduciary exception to the attorney-client privilege in ERISA litigation. In Kenney v. State Street, the magistrate judge dealt, in a very clean and easily understood manner, with the key issues that come into play under that doctrine, which have to do with its borders: to be exact, what attorney-client communications are subject to disclosure under this exception, and what ones are not. This is a more complicated issue of line drawing than it might appear at first glance because, in essence, you are considering the same course of communications, between the same lawyers and the same plan representatives, dealing with the same general topic (the plan’s operations), sometimes as part of the same in-person meeting, and deciding where the line falls as to the communications that must be produced and those that do not have to be produced.
The takeaway from Kenney on this line drawing is summarized nicely in this blog post by an unidentified Paul Hastings lawyer or two:
First, the attorney-client privilege is available for settlor matters, such as "adopting, amending, or terminating an ERISA plan" because those decisions do not involve ERISA fiduciary functions of managing or administering the plan.
Second, the attorney-client privilege is available to a plan fiduciary who seeks the advice of counsel in response to a threat of litigation by plan beneficiaries (or the government) against the fiduciary.
This is not an issue, by the way, that is just of academic interest, or something for clients and litigators to be concerned about after the fact, when a lawsuit is pending. A few years back there was a major top hat plan case in which some of the key evidence relied upon by the plaintiff consisted of emails and communications between the plan sponsor and its lawyers that were discoverable under these standards: that evidence was very helpful to the plaintiff, and was information that simply should not have been communicated in the manner it was (without, for instance, context and qualification) if it was ever going to see the light of day, rather than being forever cloaked behind the attorney-client privilege. Plans and their outside ERISA lawyers, who on a day to day basis in establishing and running a plan are typically not litigators, need to remember that their communications can end up in a courtroom in later litigation that cannot even be foreseen at the time of the communications in question, and should be careful with regard to the accuracy, context, phrasings and tone of such communications as a result.
Predicting the Future of Church Plan Litigation
Ahh, the wonders of church plan litigation. I had the distinct pleasure at an ERISA litigation conference recently of listening to a leading plaintiffs’ lawyer and a leading defense lawyer, who were both representing parties on opposite sides in class actions concerning whether benefit plans were actually church plans for purposes of ERISA, square off over the issue. What came through to me loud and clear were two distinct visions of the world, almost ideological in a way. The defense lawyer insisted that decisions to that date ran his way, and so there was little more to say on the subject, while the plaintiffs’ lawyer explained why close analysis of the facts and legal issues demonstrates that the plaintiffs’ bar is on target.
In their competing certainties over their positions, the debate reminded me of nothing so much as the early years of excessive fee litigation, when the plaintiffs’ bar was largely unsuccessful and the defense bar was more than happy to trumpet the underlying weakness on both a theoretical and practical level of that theory of liability. Of course, time would eventually turn the tables, to a large extent, on that discussion, triggered by an interesting phenomenon, one which was obvious in advance to some of us and became clear in hindsight to the rest of us: that over time, as more and more judges were asked to look at the excessive fee theory, the defense position would begin to show cracks and plaintiffs would eventually begin succeeding to one degree or another with such claims.
Even when I was listening to the two lawyers debate the viability of church plan litigation, it was clear to me we were only at the outset of the legal discussion on this issue, and that the defense bar’s assumption of an impregnable position was unfounded, as well as inconsistent with the history of what had occurred with the excessive fee cases. It was clear that what was more likely to happen was that, as the cases involving the more questionable assertions of church plan status came before courts, the plaintiffs’ bar would begin obtaining traction, and the clearly marked out defense position on these types of cases would weaken.
While I was on trial for most of this month, which I am still digging out from, Mike Reilly wrote a nice piece on something that I see as the first step in this phenomenon starting to come to pass, which was a federal judge denying a motion to dismiss last month that was grounded on the defendant’s status as a church plan. What is most interesting about that decision is that, plank by plank, the judge addressed and rejected the key elements of the defense bar’s standard position on church plan litigation, namely that the claims run contrary to existing judicial decisions and to IRS letter rulings. As the court’s decision itself reflects, the judge specifically engaged those arguments and rejected them.
What does this one decision mean? One can make the argument that it is an outlier, that standing by itself it means nothing in the long run, and has meaning only to the resolution of the specific lawsuit and plan at issue. Past experience with excessive fee litigation, however, suggests to me that the decision is more likely to be the beginning of the end of broadly claiming church plan status for broad, otherwise secular business activities – particularly in the medical area – that have some linkage to religious organizations. History – as well as logic – suggests to me that, bit by bit, we will see plaintiffs’ lawyers and court decisions chip away at the use of church plan status, leading to, eventually, a number of victories in this regard for the plaintiffs’ bar. This will not mean the end of the church plan, but will instead eventually lead to only those plans that most closely fit the purpose, intent and idea of the church plan exemption being able to claim it, with all other plans forced to abandon the claim (either voluntarily or after being sued).
Tick Tock, Tick Tock, Pay Attention to the Clock: The Importance of Procedural Timing Issues in ERISA Litigation
I have been tied up on trial out of state most of January, and am now starting to go back over the more interesting items that landed in my in-box during that time. One of my favorites is this Supreme Court decision in an ERISA case, which essentially holds that a party cannot wait for a district court’s resolution of a request for attorney’s fees before seeking to appeal any part of an earlier ruling on the substance of the ERISA claim. As Sarah Jenkins and Jon Laramore of Faegre Baker Daniels discussed in this piece – the first one I have seen discussing the substance of this opinion – the Court held in Ray Haluch Gravel Co. v. Central Pension Fund of the International Union of Operating Engineers that “an appeal was untimely because an unresolved issue of contractual attorneys' fees did not prevent judgment on the merits from being final for purposes of” the appellate clock.
While the details of the decision will be of immense interest – I am sure – to appellate mavens (oh where have you gone, Appellate Law & Practice blog?), the more interesting aspect to me is the decision’s unspoken and unacknowledged linkage to the Supreme Court’s very recent decision in Heimeshoff v. Hartford Life & Accident Insurance, which held that an ERISA claim could be barred by failing to comply with a contractual filing period established under a plan document. The combination of the two decisions drives home the highly technical nature of prosecuting ERISA claims, and the crucial importance of getting every step right so as to protect all rights of recovery available under the statute. As the two cases make clear, one can waive clear rights to recovery under ERISA by failing to prosecute them exactly as required and on the exact time schedule required by applicable plan terms and governing statutes. While some might view the particular timing requirements addressed in Ray Haluch Gravel and Heimeshoff as picayune, the Court’s strict enforcement of them make clear that parties seeking relief under ERISA had best not treat them that way.
Who Is the Proper Defendant In an ERISA Denial of Benefits Claim? The First Circuit Has an Answer
I enjoyed this post on a fundamental question in ERISA denial of benefit litigation, namely which of the many entities involved with a plan – employer, plan sponsor, fiduciary, claim administrator, insurer, and so on – is a proper defendant to such a claim. As the post points out, correctly, there is some ambiguity on the question, and courts in various parts of the country apply different rules. The author focuses on a recent decision out of the federal court in Minnesota, Nystrom v. AmerisourceBergen Drug Corp., holding, in the author's words, that “a third party administrator was a proper defendant in a lawsuit seeking benefits on the grounds that Section 502(a)(1)(B), the section of ERISA under which such claims are brought, does not limit the universe of entities that may be sued, and that liability flows from 'actual control' over benefit claims;” the author further notes that, according to that court, the “First, Fifth, and Ninth Circuits have reached a similar conclusion.”
In fact, this is the approach typically taken by courts in the First Circuit, and in some ways the case law here on this issue is more concrete and definitive than elsewhere with regard to exactly what entities, within that universe, are in fact the proper defendants. In the words of the First Circuit, “[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, 35-36 (1st Cir. 1998)(quoting Garren v. John Hancock Mut. Life. Ins. Co., 114 .F3d 186, 187 (11th Cir. 1997)). It is the decision of the “entity with the power to make, and is the entity that actually made, the final decision to terminate [the plaintiff’s] benefits” that is subject to review, not that of other parties. Id.; see also Aponte-Miranda v. Sensormatic Electronics Corp., 2006 WL 468695 (D.PR. 2006).
So in essence, the First Circuit case law does not leave open who the proper defendant is in a denial of benefit claim, in a manner that would allow the targeting of anyone and everyone involved with a plan. Rather, the proper defendant is the party that actually decided the claim for benefits and has the power to order the payment of benefits. This, in turn, is the right rule: it does not make sense to have a defendant to such a claim be anyone other than the party that could have, but declined to, pay the benefits, as any other defendants are, in that circumstance, being sued for an action they did not take and had no control over.
Opening Up the Courthouse Door: The Second Circuit Weighs in on Exhaustion of Administrative Remedies
If one theme has emerged from my numerous blog posts over the last seven years and across the various articles I have written on ERISA litigation during that time span, it is the centrality of operational competence in sponsoring and administering ERISA plans. I have, for instance, often argued that, when it comes to ERISA litigation, the best offense for plan sponsors and company officers is a good defense, in the form of what I have taken to calling defensive plan building; defensive plan building is the idea that taking careful and precise steps in building out, and then running, pensions, 401(k)s, ESOPs, and other plans creates the optimal environment for defending against lawsuits down the road related to those plans. When one can document a careful process for selecting vendors, for picking funds, for the fees attached to plans, for the handling of float income, and for all the other myriad choices that must be made with regard to how a plan will operate, it becomes relatively easy to defend fiduciaries and company officers alleged to be fiduciaries against breach of fiduciary duty actions, because these types of documents and steps demonstrate a prudent process.
Likewise, there has been a clear trend in the case law over those years, directly reflected in my posts and writings, towards the loosening of the procedural and substantive advantages held by plans, sponsors and fiduciaries. These shifts run from the subtle – such as a tendency for courts to now look much more closely at medical evidence in benefit cases, even where arbitrary and capricious review applies – to the bold, such as the Supreme Court’s expansion of equitable remedies in Amara. All of these shifts have this in common: they decrease the likelihood of a fiduciary or sponsor winning early in a case on procedural grounds, and increase the likelihood that a court will eventually reach the merits of a claim. Excessive fee litigation provides a ready example, as we have shifted, in just a few years, from early and relatively easy procedural victories for defendants in those types of cases to substantial settlements and the occasional outright trial victory for participants. What does this have to do with operational competency in operating a plan? It makes competency in running the plan ever more important, because it increases the likelihood that a court will someday consider the merits in a lawsuit targeting those actions, rather than the case ending, as it often would have in the past, at an early point in the litigation on procedural or highly technical grounds.
My latest published article, “Opening Up the Courthouse Door: The Second Circuit
Weighs in on Exhaustion of Administrative Remedies,” addresses this idea in another context, namely the weakening, in a recent Second Circuit opinion, of the requirement of administrative exhaustion as a defense against ERISA actions. As I discussed in the article, for many years, this defense was a solid bulwark against many ERISA claims, one that could often stop a suit long before the parties or the court would get to the merits of an action. Indeed, historically, participants who tried to argue their way around this requirement rarely succeeded. The Second Circuit, however, as I discuss in the article, substantially weakened that defense and opened up a new line of attack for participants faced with the claim that they had not exhausted their administrative remedies before the plan administrator. As I discuss in the article, it is yet another example of courts making it easier for participants to prosecute ERISA claims and, in particular, to leapfrog the type of early procedural defenses that defendants used to be able to use to stop many such claims in their tracks at a very early stage. Anything that makes it easier for participants to get the merits of a lawsuit in front of a court increases the importance of competence in running the plan, because it is the level of operational competence that will be on trial once a court gets to the merits of an action.
Me, Massachusetts Lawyers Weekly and Gross v. Sun Life
Eric Berkman’s article in this week’s Massachusetts Lawyers Weekly on Gross v. Sun Life, in which I am quoted, does an excellent job of explaining the case, particularly to those readers who do not have years of experience with ERISA cases, benefit litigation, or the long history of the law in this circuit governing benefit cases. I have written before of my thoughts on the Court’s opinion in Gross, but I realized, in reading Eric’s article, that his questions when he interviewed me for his article were astute enough to draw out some additional thoughts on the case, which I had not yet thought of when I posted about the case on my blog.
Eric presents those additional ideas of mine very well in his article and, citing my own personal interpretation of the fair use doctrine, I thought I would pass them along here:
Stephen Rosenberg, a Boston ERISA lawyer who typically represents insurers and employers, described the case as a “natural culmination of years of judicial approach” in this circuit.
“Whether or not it’s shown up in decisions, there’s been a certain level of skepticism on how best to apply standards of review to medical evidence in these circumstances,” said Rosenberg, who practices with the McCormack Firm and was not involved in the case. “It was only a matter of time before they deviated from Brigham and established a higher bar for obtaining discretionary review. The court makes clear — as do other circuits — that they really want to see a clear statement that ‘we retain discretion’ to decide the issues.”
He also said the ruling extends beyond long-term disability insurance plans. In many contexts, the employer itself, rather than an insurer, provides an ERISA plan and wants to maintain discretion to determine benefits eligibility, Rosenberg explained.
“These plans are often written by an in-house benefits person or an in-house attorney who has no ERISA expertise,” Rosenberg said. “Years later, when a dispute arises, the company will always want to claim discretionary review, and I think they’ll have to learn from this decision that they need to use the proper language in these types of plans as well.”
A State of the Art ERISA Benefits Decision from the First Circuit: Gross v Sun Life
Great, great decision out of the First Circuit a few days ago on ERISA benefits litigation, covering, in no particular order: what language is necessary to establish discretionary review; when does the safe harbor exception to preemption apply; when is an LTD policy part of an ERISA governed plan; the proper weight and mode of analysis to be given to video surveillance in the context of an LTD claim; and when to remand to a plan administrator for further determination as opposed to the court ordering an award of, or denial of, benefits.
I can’t say enough about the Court’s analysis of each one of these issues, particularly if, like me, you have been carefully reading all of the ERISA decisions out of the First Circuit and the district courts in this circuit over the past decade or more. On each one of the issues I noted above, the opinion builds quite carefully, and persuasively, on the evolution on each of these issues that has taken place in this circuit, quite slowly, over many years. I will give you two examples. First, the Court raises the bar for establishing discretionary review, and in so doing, gives a careful presentation of exactly why this is the normal and logical result of years of jurisprudence. Here’s a second example. It wasn’t that long ago that we all expected the district court to either affirm a denial of benefits by an administrator or to instead overturn that denial and order an award of benefits. At one point in time, though, the case law shifted towards an analysis of whether, if a denial would not be upheld by the district court, the entire issue should be remanded to the plan administrator for further evaluation of evidentiary concerns identified by the court, so that the plan administrator could determine whether an award of benefits was warranted given those concerns; further litigation could thereafter ensue if the administrator maintained a denial and the plan participant wanted to challenge that determination in court. In this latest decision out of the First Circuit, however, you see something very interesting: the pure application of the need for remand to the administrator, as though this is simply the basic rule in this circuit (which, in fact, is what it has become).
The decision is Gross v. Sun Life. To echo a comment I made on Twitter about it, I don’t think you can litigate ERISA cases in this circuit unless and until you have both read it and thoroughly incorporated its lessons. And a side note: one of the plaintiff’s lawyers was Jonathan Feigenbaum, who, as I discussed here, takes exception to the very idea that discretionary review is even constitutional.
Futility Is Not in the Eye of the Beholder, But Depends on the Facts
I have written and spoken on a number of occasions about the extent to which courts will enforce the exhaustion doctrine with regard to benefit claims, and about the exceptions that exist to exhaustion; I have litigated those disputes as well, in a number of contexts running from top-hat plans involving substantial deferred compensation to old fashioned LTD benefit denials.
Many lawyers and courts start out from the premise that the exhaustion requirement should be strictly applied, and that exceptions should be granted infrequently. This is all true, but the reality is that the dividing line between when to require exhaustion and when to allow an exception should be fact based: when a claimant simply alleges the elements needed to establish an exception, exhaustion should be strictly enforced, but an exception should be allowed where the plaintiff can demonstrate that the factual elements of a particular exception exist.
The United States District Court for the District of Puerto Rico just captured this distinction nicely, in an opinion addressing whether the futility exception to exhaustion could be invoked, when the Court explained that:
a plaintiff's belief that bringing administrative remedies would be futile is insufficient to call the futility exception into play. If, however, the plaintiff's belief is accurate—as demonstrated by factual evidence—and exhausting the administrative remedies would, in fact, be futile, then the futility exception is called into play.
My Journal of Pension Benefits Article on Operational Competence after Amara
For years, in speeches and articles, I have preached the gospel of what I have come to call “defensive plan building,” which is the process of systemically building out plan documents, procedures and operations in manners that will limit the likelihood of a plan sponsor or fiduciary being sued while increasing the likelihood that, if sued, they will win the case in the end. Over the past couple of years, doctrinal shifts related to remedies available to participants under ERISA have made defensive plan building even more important, for at least two reasons. First, these shifts have expanded the range of potential liabilities and exposure in offering, and running, a benefit plan. Second, these developments have, to a significant degree, given rise to an increased focus in ERISA litigation on the actual facts concerning the plan’s activities, as the lynchpin of the liability determination. The combination of expanding liability risks with an increased focus on plan actions makes it more important than ever to focus on the steps of defensive plan building, including by focusing on operational competence in running a benefit plan.
I discussed this concept in much greater detail in my recent article in the Journal of Pension Benefits, “Looking Closely at Operational Competence: ERISA Litigation Moves Away from Doctrine and Towards a Careful Review of Plan Performance.” The article discusses how the last several years of ERISA litigation, including in particular the Supreme Court’s recent activism in this realm, has created this phenomenon. You can find a much more fully realized presentation of these points in the article.
And a Third Post on Tibble: Thoughts on Revenue Sharing and the Small Recovery for the Class
A few more thoughts to round out my run of posts (you can find them here and here) on the Ninth Circuit’s opinion in Tibble. First of all, where does revenue sharing go as a theory of liability at this point? The Ninth Circuit essentially eviscerated that theory, and I doubt it has much staying power anymore, at least as a central claim in class action litigation. Revenue sharing hasn’t, generally speaking, had much traction in court, and I think it is because, at some level, judges understand that someone has to pay for the plan’s operations. That said, you should still expect to see it as a claim in cases against DC plans and their vendors, even if only as a tag along, with liability only likely to follow in cases where someone comes up with a smoking gun showing that the plan sponsor acted in ways harmful to participants specifically because of a desire to save money for the plan sponsor through its revenue sharing decisions. But revenue sharing in and of itself as an improper act or a fiduciary breach that can warrant damages? Probably not much of a future for such claims.
Second, there is a lot of talk about the expansion of litigation against DC plans and their providers, and has been for sometime now. How does that fit with the minimal recovery by the class in Tibble? To some extent, Tibble, although affirming a trial court award to the class, is not much of a victory, given that the class only recovered a few hundred thousand dollars. In fact, to call it a victory for the plaintiffs, while correct , reminds me of nothing so much as the comment of British General Henry Clinton after the Battle of Bunker Hill, when he noted, given the extent of British casualties, that “"a few more such victories would have surely put an end to British dominion in America." Likewise, a few more victories similar to this one for class plaintiffs in excessive fee cases will put an end to this area of litigation quicker than anything else could, as these types of cases simply would no longer be worth the costs and risks to the class action plaintiffs’ bar. However, it is important to remember that the dollar value of the recovery in Tibble was likely driven down substantially by the statute of limitations ruling, which took much of the time period of potential overcharging out of the case and with it, presumably much of the recovery. If participants bring suit over fees closer to the time that the investment menu that included the excessive fees was created, they will not face that barrier to recovery and the likely recovery could easily be high enough to justify the risks and costs of suit. This, interestingly, is where fee disclosure should come into play – participants, and thus the plaintiffs’ bar, should have enough information about fees to bring suit early enough to avoid the statute of limitations problem that impacted the plaintiffs in Tibble. As a result, there should be more than enough potential recovery in many possible excessive fee cases to motivate plaintiffs’ lawyers to pursue the claims.
And the Ninth Circuit Swings Away at Tibble v. Edison . . .
Well, the United States Court of Appeals for the Ninth Circuit has affirmed the District Court’s well-crafted opinion in Tibble v. Edison. I discussed the District Court’s opinion in detail in my article on excessive fee claims, Retreat From the High Water Mark. From a precedential perspective, as well as from the point of view of what the opinion foretells about the future course of breach of fiduciary duty litigation in the defined contribution context, there is a lot to consider in the opinion. There is too much, in fact, for a single blog post to cover, or at least without the post turning into the length of a published paper. I try to avoid that with blog posts because otherwise, to misquote a poet, what’s a journal or law review for?
I plan instead, however, to run a series of posts, each tackling, in turn, a separate point that is worth taking away from the Ninth Circuit’s opinion. The first one, which I will discuss today, concerns ERISA’s six year statute of limitations for breach of fiduciary duty claims. The Court held that, in this context, ERISA’s six year statute of limitations starts running when a fiduciary breach is committed by choosing and including a particular imprudent plan investment. The Court held that the fact that it stayed in the investment mix did not mean that the breach continued, and the statute of limitations therefore did not start running, for so long as the investment remained in the plan.
Beware future arguments over this holding. You can expect defendants to regularly argue that this case stands for the proposition that the six years always runs from the day an investment option was first introduced, and that any breach of fiduciary duty claims involving that investment that are filed later than six years after that date are untimely. You can also expect defendants to argue to expand this idea into other contexts, and to ask courts to rule that anytime the first part of a breach began more then six years before suit was filed, the statute of limitations has passed. This would not be correct. The opinion only finds this to be the case where there were no further, later in time events that, as a factual matter, should have caused the fiduciaries to act, or which, under the circumstances of those events, constituted a breach of fiduciary duty in its own right; if there were, then those are independent breaches of fiduciary duty from which an additional six year period will run. Those independent, later in time breaches would presumably be their own piece of litigation, evaluated independent (to some extent) of the original breach.
Some Thoughts on Kirkendall v. Halliburton
I have passed along on Twitter (https://twitter.com/SDRosenbergEsq) some of the better reviews that have crossed my desk of the Second Circuit’s recent decision in Kirkendall v. Halliburton, Inc., in which the Court held that a plan participant did not have to exhaust administrative remedies in an ERISA plan where the plan document itself was unclear in imposing such an obligation. Frankly, I wasn’t sure the case itself warranted any more extensive discussion, because I don’t find the Court’s conclusion particularly unusual or controversial in any manner. That said, though, the amount of commentary the case has generated reminds me that, at the end of the day, the Second Circuit is like E.F. Hutton: when they talk, people listen. So to expand on my Twitter thoughts about the case, here are some more expansive thoughts, ones that require more than 140 letters to communicate.
The most important way of viewing the decision, in my thinking, is to remember that exhaustion of administrative remedies in this scenario is not a statutory requirement, and is instead a judge-made doctrine that is based on certain assumptions about ERISA plans and certain premises that are thought to be implicit in the statute. In practice, the imposition of an exhaustion of administrative remedies standard on ERISA claims has generally not been a problem, has worked well, and has been effective in effectuating many of the goals for the statute, such as cost efficiency, limited litigation, and encouraging employers to create benefit plans. That said, however, there is certainly no clear cut basis in the statute for believing that, if a plan sponsor doesn’t clearly communicate the need to appeal within the plan, a plan participant should be required to do so or be shown the courthouse door for having failed to do so. This is essentially all that the Second Circuit concluded: if the plan sponsor doesn’t make it clear to the participant in the relevant documents that certain internal administrative appeals are required, along with explaining how to do that, an obligation to do so cannot be imposed on a plan participant.
This is not a new issue, although the decision in Kirkendall may be the most significant authority to date for this proposition. I have litigated this issue in the past, but most often you see it in one-offs like top-hat plans (or virtual one-offs, like SERPs for just a few executives), where a custom document is created for certain employees to address compensation-related issues, and the ERISA procedural component of doing so is not front and center in the authoring attorney’s mind. Usually, the outcome of any dispute over administrative exhaustion in those situations ends up the same as the ruling by the Second Circuit in Kirkendall for all intents and purposes, but getting to that result is harder than just citing a leading decision from a prominent appellate bench; you instead had to rely on a collection of lower court decisions finding exhaustion to not be required for a multiple of different reasons. Certainly, at the end of the day, Kirkendall will make it easier for lawyers for plan participants faced with this scenario to support their arguments that they can prosecute a claim in court without first exhausting internal administrative appeals, but I don’t think it will much change the outcome from what would have occurred without that decision.
Don't Look Back, Something Might Be Gaining On You: Whether a Plan Administrator Can Raise New Bases For Denying a Claim Beyond Those Raised in the Initial Denial of Benefits
What do these two stories have in common, the first about a claims administrator not being allowed to change the basis for a denial of benefits during the internal appeal and the second about an administrator not being allowed to deny benefits based on factual investigation during litigation? They both highlight the importance, for the parties on both sides of the “v” in any denial of benefits case, of the administrative claim process. Under the court decisions discussed in both stories, the record, and the grounds for denying benefits, were effectively frozen thereafter. In one of the two cases, in fact, the administrator was not even allowed to shift the grounds for denial during the processing of the appeal of its initial denial of claim, before the case even moved to litigation, and was forced to stand on the basis for denial contained in its original, initial denial.
From a practical perspective, there are lessons to be learned here about the need to stake out your position, and back it up, very early on in the claim process in an ERISA denial of benefits dispute. From a more philosophical perspective, the cases raise a serious question, about what the rule should be if, in fact, there is new evidence or analysis that would invoke a new plan term limiting coverage or otherwise affect the outcome of a claim, that is learned by the natural course of the claim’s progression. For instance, it may well be that an administrator denies a claim on one ground under the plan, but evidence submitted during an appeal of the initial denial taken by the participant demonstrates the applicability of another plan term as a basis for denial. Should the plan or the administrator be frozen out of raising that plan term as a ground for denial on the final decision, after the appeal of the initial decision, just because it wasn’t raised in the initial denial of benefits?
Stephan v. Unum, the Attorney-Client Privilege, and the Need for Independent Counsel for Company Officers and Plan Fiduciaries
Tidal Wave! Landslide! Look out below!
Pick out the metaphor of your choice, because Unum just got taken out behind the woodshed by the Ninth Circuit and spanked hard. Frankly, the Ninth Circuit’s opinion is a rout in favor of the participant, and participants in general. In many ways, the case presented a perfect storm for such an overwhelming opinion against a long term disability carrier. The case involved: a very sympathetic plaintiff who suffered a horrible, fluke injury that most readers could sympathize with; a lot of money; and a long term disability carrier with a documented history of claim disputes that the court could point to in further support of its ruling. I have to tell you that the facts painted by the Ninth Circuit in this opinion, related to both the claim and the carrier, are clearly of an outlier event, one not representative of the handling of most claims by most long term disability carriers, or of most long term disability carriers at all, for that matter. Twenty years of experience tell me most attorneys representing participants would, even if only off the record, agree with that assessment.
Frankly, despite Unum’s own documented history with regard to claims handling, cited by the Ninth Circuit to support its opinion, I am not sure that the depiction of the carrier in this opinion is even representative of that carrier at this point in time, but I don’t know enough to comment knowingly in that regard.
More importantly though, and moving away from the overflowing kettle of clichés with which I deliberately chose to fill the first couple paragraphs of this post, it would be a shame if courts, participants, companies and their lawyers allowed the unusual nature of the case to become the focus of their attention. This is because there are several key takeaways from this case, some specific to long term disability cases and others, even more important, to ERISA litigation in general.
With regard to these types of benefit claims, one should look closely at the Court’s handling of the structural conflict of interest issue. The Court not only points toward significant discovery and even a possible bench trial over this issue, but also demonstrates how to use the contents of an administrative record in support of proving the impact of such a conflict. This is all strong stuff, and for many who thought the Supreme Court’s structural conflict of interest ruling in Glenn opened up a Pandora’s box or put us all on a slippery slope towards ever expansive, and more expensive, benefits litigation, here is the proof for that hypothesis.
To me, the most worrisome aspect of the decision, and one that sponsors and companies need to pay very careful attention to in terms of planning their benefit operations and obtaining legal services, is the Court’s very broad application of the fiduciary exception to the attorney-client privilege. The issue here isn’t so much the conclusion that the exception makes internal legal discussions related to a claim subject to disclosure, but the line drawing it demonstrates with regard to when legal advice is, and is not, subject to disclosure. In short, plan administration – including benefit determination issues – are subject to disclosure and not protected. At the same time, though, what is protected is advice related to the protection of fiduciaries against personal liability, civil or criminal, when that advice is clearly distinct from the handling of claims under a plan and the administration of a plan.
Now the interesting thing about that distinction is that, as anyone who litigates breach of fiduciary duty or other ERISA cases knows, there is clearly some overlap between the two types of legal advice and there is not always a clear separation between the two. Certainly a fiduciary sued for misconduct is being sued because of events involving a claim and a plan’s administration, and thus legal advice rendered to the fiduciary falls somewhere in the middle of those two extremes. Further complicating this issue is a fact that the Ninth Circuit points out, which is that plan sponsors and plan fiduciaries often rely on the same lawyers and law firm for advice on all aspects of their plans, from formation to termination and everything in between, including the handling of claims and the representation of officers sued as fiduciaries.
In that latter instance of breach of fiduciary duty litigation against officers, it is crucially important for numerous reasons, as every litigator knows, to have a safe, secure and fully privileged attorney-client relationship. The standards enunciated by the Ninth Circuit, however, place that privilege at some risk in instances in which the same firm that has represented the plan in general is also representing fiduciaries or other company officers with regard to their personal potential liability. The best answer, for numerous reasons, to protecting those fiduciaries and officers, and maintaining the attorney-client privilege that is crucial to their protection, is going to be separating out the representation of such individuals from the routine legal work related to the plan’s formation, operation, administration and claims handling, and using independent, distinct counsel for the representation of such individuals. By segregating out and using separate, independent counsel for any issues related to their potential exposures, you make clear that the legal advice at issue involves privileged issues concerning the potential liability of officers and fiduciaries, which should still be privileged after the Ninth Circuit’s ruling, and is not intermingled with or otherwise part of the broad range of legal services typically required by a plan, which the Ninth Circuit’s opinion holds is likely to be subject to disclosure.
In short, the pragmatic solution is to continue to use one firm for the overall handling of a plan’s various needs, but separate, independent counsel for any and all needs – whether involving litigation or only the potential risk of litigation or exposure – of a plan’s fiduciaries or the officers of the company sponsoring the plan.
That’s my two cents for now. The case is Stephan v. Unum, and you can find it here.
On the Problem of Remedying Errors in Providing Plan Information
Here is a great fact pattern that illustrates a number of recurring problems in ERISA litigation. In this case (Tocker v. Kraft Foods North America, Inc. Retirement Plan), decided by the Second Circuit last week, a mid-level benefits manager worked on accommodating the needs of a terminally ill plan participant, by working out an arrangement by which the participant could first receive long term disability benefits and then receive workforce reduction payments, rather than having to choose one or the other. Naturally, of course, since it turned into litigation, the arrangement did not work out without a hiccup, as it affected the participant’s pension credits. The participant sought to remedy that problem by use of a breach of fiduciary duty claim. The breach of fiduciary duty claim failed, however, because the benefits manager was found to have only been engaged in ministerial duties, and not fiduciary duties, and thus a breach of fiduciary duty action was not viable.
The case nicely illustrates and establishes the dividing line between fiduciary and non-fiduciary acts by executives of a company involved in running a company’s benefit plan, and the opinion’s first and best use will be in cases where that point must be established, particularly cases where one side or the other needs to prove that someone was, or was not, a fiduciary for purposes of a particular dispute. The decision is particularly on point with regard to the question of when does the provision of information about benefits render someone a fiduciary (the answer according to this decision is, effectively, never, although I am engaged in a purposeful bit of overstatement there).
However, it also illustrates a point I discuss in detail in an upcoming article in the Journal of Pension Benefits, which is the difficulty, under ERISA, of redressing problems in plan administration that are not merely denials of benefits clearly owed under a plan (and thus can be remedied under the denial of benefits prong of ERISA) and cannot be shown to involve fiduciary conduct. The dispute at issue in Tocker was exactly that type, and the plaintiff, despite having possibly been harmed by an operational misstep in implementing the agreed upon arrangement to coordinate the participant’s disability benefits and workforce reduction award, was unable to construct a viable cause of action under ERISA to address that problem and possible loss. The statute’s remedial rigidity had long been a problem in ERISA litigation over the years, impacting the ability of participants to address these types of problems. As I discuss in my upcoming article, this problem has likely been solved by the surcharge remedy recognized by the Supreme Court in its recent decision in Cigna v. Amara: the best approach open to the plaintiff in Tocker today would have been to structure his claim as one for equitable relief based on the surcharge remedy, rather than as a breach of fiduciary duty claim. When his case began, though, well before the decision in Amara, this option would not have been open to him.
Contractual Statute of Limitations Periods in the First Circuit
Here’s a handy-dandy, one shot, easily referenced statement of the law in the First Circuit governing the statute of limitations applicable to LTD claims, and thus, by extension, all denial of benefit claims. It comes from the First Circuit’s decision last week in Santaliz-Rios v. Metropolitan Life Insurance:
Congress has not established a limitations period for ERISA claims brought pursuant to 29 U.S.C. § 1132(a)(1)(B). Island View Residential Treatment Ctr. v. Blue Cross Blue Shield of Mass., Inc., 548 F.3d 24, 27 (1st Cir.2008). Therefore, in adjudicating ERISA claims, federal courts borrow the most closely analogous statute of limitations in the forum state. Id. (citing Edes v. Verizon Commc'n, Inc., 417 F.3d 133, 138 (1st Cir.2005)). In Puerto Rico, the default limitations period applicable to contract claims is fifteen years. P.R. Laws Ann. tit. 31, § 5294; Caribbean Mushroom Co. v. Gov't Dev. Bank for P.R., 102 F.3d 1307, 1312 (1st Cir.1996) (“[C]ontract claims that are covered by the Commerce Code but are not designated for special prescriptive treatment automatically fall under the Civil Code's fifteen-year catch-all provision.”). This period has been applied to ERISA claims where no alternative limitations period was agreed upon by the parties. See Nazario Martinez v. Johnson & Johnson Baby Prods. ., Inc., 184 F.Supp.2d 157, 159–62 (D.P.R.2002).
However, where the contract at issue itself provides a shorter limitations period, that period will govern as long as it is reasonable. See Island View, 548 F.3d at 27 (applying a contractually agreed-upon limitations period to ERISA claim); Rios–Coriano v. Hartford Life & Accident Ins. Co., 642 F.Supp.2d 80, 83 (D.P.R.2009) (“Choosing which state statute to borrow is unnecessary, however, where the parties have contractually agreed upon a limitations period, provided the limitations period is reasonable.”)
The plaintiff was barred by the contractual limitations period, as the court gave little weight to the plaintiff’s attempts to argue around the contractual limitations period, which were basically limited to tolling arguments made, apparently, without significant factual support. Attacks on statute of limitations bars need to be well-grounded in factual support to have any traction in this circuit, in my view, and that clearly didn’t occur in this instance. I can picture fact patterns involving contractual limitations periods, however, that could more readily sustain an assault on their application.
Tails I Still Win, Heads You Still Lose: More on the Fiduciary Status Under ERISA of Traditional Banks
Looks like everybody knows a good story when they see it. Here’s a nice CCH piece on the same Sixth Circuit decision I discussed in my last post, concerning the fiduciary status of a depository institution under ERISA.
Interestingly, the whole deconstructionist/critical legal studies movement (I know I am dating myself by at least decades here by this reference; what’s next for me, a link to an article about Bruce Springsteen, or the 1980 Olympics?) had at its heart the idea that if you trace back a thought to its earliest formulation you can learn a lot about how the current conception came to be, and whether the current conception should be accepted at face value. I bring this up because I have done enough work on the fiduciary status of commercial banks to know the judicial history of the assumption – and of the case law to the effect – that they should not normally qualify as fiduciaries for purposes of ERISA. If you trace the history back far enough, you find that what is, in essence, a prevailing presumption against finding such entities to be functional fiduciaries isn’t all that well-founded.
Litigating Executive Compensation Disputes
Is there a more hot button topic in the world, just as a general principle, than compensation, especially of the executive kind? From Salary.com to the outrage of politicians over financial industry pay, the subject is never far from your internet browser. In fact, just for amusement’s sake, I just googled executive compensation, and the first page of results had no less than three links claiming to tell me what executives throughout the country earn.
Of more interest to me professionally than what executives earn, though, is what happens when they end up litigating disputes with their employers over their compensation. ERISA often gets dragged into such disputes, although there are an increasing number of judicial decisions – though still few – questioning whether individual agreements with executives to set compensation should fall within ERISA, rather than being handled as pure breach of contract cases under state law. The forum, venue, nature of defenses, potential damages, and strategy in such disputes can all be greatly affected by whether the dispute should be governed by ERISA or is instead simply an old fashioned state law dispute.
I will be talking about this and more next week when I address the details of litigating executive compensation disputes in this MCLE seminar. Two other excellent speakers, Marcia Wagner and Philip Gordon, will be discussing various aspects of crafting and negotiating executive compensation agreements – I will then weigh in on what happens when that work, as it sometimes does, leads to the parties suing each other.
You can find registration information for the seminar itself and for the webcast here.
The IRS - A Safe Port in a Storm for Plan Fiduciaries (Sometimes, Anyway)
Well, as if there weren’t enough barriers to successfully prosecuting breach of fiduciary duty actions under ERISA, it turns out that you also can’t do it if the fiduciary’s errors consisted of wrongfully withholding benefits and turning them over to the IRS as tax payments. A participant, according to this opinion fresh off the presses of the Northern District of Illinois, can only remedy that mistake by getting the IRS to refund the money to them.
Defense lawyers are always fond at trial of having an empty seat – i.e., a missing potentially culpable party – to point to while saying my client didn’t do it, the person that should be sitting in that other chair at the defense table did. For those of you old enough to remember it, this defense theory is similar to, but not exactly the same as, the famous “Plan B” of noted fictional defense lawyers Donnell, Young, Dole, & Frutt, who somehow always managed to make that strategy work. For a plan fiduciary charged with fiduciary breaches or other errors related to tax aspects of a plan, pointing to the IRS and saying the participant’s only recourse is to seek a refund from the IRS is an extraordinarily potent variation of this defense. It also, as the decision in Mejia v Verizon et al appears to make clear, has a sound foundation in the federal code.
From Webster To Seau and the Impact of More Medical Research on Repetitive Head Trauma in Football
I spent some time thinking about whether to even post on this subject today, not wanting to feel on any level that I might be either rushing to judgment too quickly, or even worse, exploiting a tragedy in any way to make a point. But the suicide of retired football star Junior Seau perfectly captures a point that I have been thinking through for years, as the concussion/head trauma issues have played themselves out in the NFL and the media. Way back in 2006, I wrote about the ERISA case brought by former Pittsburgh Steeler great Mike Webster, and the Fourth Circuit’s decision to overturn, as arbitrary and capricious, the decision of the plan administrator for the NFL’s retirement plan to award Webster “the lesser of two possible disability benefit awards available under the league’s retirement plan,” due to brain damage he apparently suffered as a player. At the time, the Fourth Circuit reviewed extensive evidence in the administrative record that soundly refuted the administrator’s determination, and concluded that the administrator’s determination was not supported by substantial evidence.
I have often thought about the Webster case and that blog post in the interim, because in many ways the actions of the administrator, at least in the snapshot provided by the Court, seem so questionable that it makes one wonder how the administrator could have reached the conclusion that it did. The evidence from the administrative record, although debatable in terms of how to interpret it, focused on by the Court ran strongly towards attributing the player’s mental incapacity to head injuries from playing and to have begun close to, if not during, his playing days, thus qualifying him for the benefits he sought. Yet, even under those circumstances, the plan administrator ruled against him.
Among the possible explanations for how this came to pass is one – incompetence by the plan administrator – that I have always ruled out. The second is a corporate decision by the plan and its administrator to hold the line against brain damage type claims, which is at least certainly possible, even if doing so on a broad level instead of simply testing the facts of each particular claim against the plan terms would be a clear cut violation of fiduciary obligations.
The third possible explanation that has rattled around in my head for the last few years, as more and more research has been done linking diminished mental capacity to the repetitive head trauma suffered by football players, has come to me to seem the most likely explanation. This is the idea that a decade and more ago, when the events at issue in the Webster case occurred, there was scant, if any, medical literature soundly tying post-playing mental impairment to playing-derived head trauma. That is not the case anymore, as Andy Staple’s piece here on Junior Seau’s suicide discusses, but it was then. Plan administrators are often faced, in many contexts, with disability claims in which there is little if any significant medical research that would allow a firm conclusion on causation with regard to the disability at issue. In those instances, it can be very difficult for a plan administrator to make a call on whether or not the plan terms governing disability benefits are satisfied. When one compares what we know now about the effect of repetitive head trauma in football – a knowledge level that is still limited – with the state of the research a decade and more ago, you can easily imagine the NFL plan’s administrator being trapped by the conundrum, and being unwilling to credit the evidence of impairment submitted by Webster because the medical literature lacked support for linking it to his playing days in the manner needed to award him the benefits sought by him. This, to me, is both the most benign and the most likely explanation for the long ago ruling against Webster, which it took an appeal all the way to the Fourth Circuit to set right. The state of medical knowledge though, as Staple’s current piece and many others in the past few years have made clear, no longer allows for that same possible mistake by a plan administrator.
Do the 1% Have the Same Rights as the 99%?
Sorry, I couldn't resist that relatively timely, but already essentially clichéd headline. That said, its still an interesting way to consider the question of top-hat plans, and their status under ERISA. In particular, there is an open question in most jurisdictions with regard to whether a claim for benefits owed under such a plan proceeds in much the same way, and with the same protections for the participants, as does any other claim for benefits under any other type of ERISA governed plan (i.e., one that, unlike a top-hat plan, does not provide significant deferred compensation for senior executives). There is a significant argument that, as a general rule, the same obligations that ERISA and the Department of Labor impose on administrators in any other circumstance also apply in the circumstance of top-hat plans, with the only exception being areas where the statute or the Department’s regulations expressly exempt top-hat plans.
In this regard, I wanted to pass along this very good synopsis of a recent decision from the United States District Court for the District of Massachusetts in which the court took that exact approach. You can find the case itself here. When the decision was issued in December, I decided not to comment on it because I was litigating a similar top-hat plan dispute at that time, and felt the decision was a little too on-point to a case I was handling for me to comment on, for a number of reasons, running from not wanting to tip my hand to the other side to being a little too close to the issue to be completely objective on the ruling. That case has since resolved, so I thought I would now use the opportunity of the publication of the synopsis to pass it along.
There is also an important trap for the unwary lawyer reflected in the decision and the synopsis, which is the impact of ERISA rights and remedies, as well as procedures and procedural protections, on what are in essence employment agreements, if they are deemed ERISA governed top-hat plans. If a particular agreement might be a top-hat plan, it is important to recognize that at the outset and litigate any dispute over it accordingly. As the synopsis and the decision show, the application of ERISA based rules will dictate the outcome, and failing to know that a particular agreement is a top-hat plan and will be governed by such rules at the outset of handling a dispute is a recipe for disaster, or at least for losing; one has to be aware right at the outset that the dispute cannot be litigated as a traditional contract or employment dispute, but instead as an ERISA dispute. Otherwise, you are bringing a knife to a gunfight, to borrow a favored cliché.
The court's decision itself, by the way, is a terrific road map through the current state of the law on benefit litigation under ERISA, particularly in the First Circuit, for both top-hat and regular old employee benefit claims.
A Perfect Storm, ERISA Style
This is not, at this point, a novel idea, but I do take credit for being one of the first to blog regularly on the thesis that we are approaching, if haven’t by now already hit, a perfect storm when it comes to retirement benefits and ERISA. The perfect storm consists of a series of elements all coming together in the same place and time, which in this instance consists of the following. First, a move from pensions to 401(k) plans, with the corresponding shift of two key risks – investment performance and capital accumulation – from plan sponsors to participants, a change which most people paid little attention to for a long time, because pensioners were still the majority of people accessing retirement benefits, while the vast numbers who would have to instead rely on defined contribution accounts to fund retirements were still working; this kept both the impact of, and the fear of the impact of, that change relatively hidden for quite some time. Second, the impending boom (pun intended) in retirements of a generation whose retirements will be funded – or, actually, more often than not won’t be funded, if you believe the numbers – solely by 401(k) plans. Third, the swooning of the stock market contemporaneously with these events. Add it all up and you end up with a retirement crisis.
For ERISA litigation, you are already seeing some of the changes that this storm is rendering, and will continue to render, as legal rulings and regulatory initiatives occur that are making it and will continue to make it, roughly speaking, easier to sue for breach of fiduciary duty under ERISA and to recover under ERISA if you are a plan participant. Doctrinal development of case law does not happen in a vacuum, and the easing of the restrictions against suing and recovering in ERISA cases is not happening in a vacuum either, but is instead being firmly influenced by the changes in the retirement industry and environment that are causing this perfect storm.
This occurs in a number of influential but indirect ways, which includes more cases being filed, often by more sophisticated lawyers, providing more opportunities for the legal principles at issue to evolve. One manner in which you see this is the shifting, sometimes almost glacially, of principles created in the case law during the days of pensions, when – in my view – courts paid less analytical attention to certain issues because most disputes concerned problems between sponsors and outsiders to the system, such as vendors or lenders, and did not directly affect the ability of participants to be paid their pensions; this is because, absent outright collapse of the sponsor, the obligation remained to pay those benefits regardless of the dispute at issue. The same, of course, cannot be said with regard to defined contribution plans, and thus courts are looking more closely at disputes in this environment than they did when confronted with similar, pension based cases 20 years ago. Indeed, we have clear direction from the Supreme Court that lower courts should reconsider doctrines established back in the long ago days of pensions when they arise in the context of defined contribution plans. Another manner in which this occurs is regulatory change – clearly, the Department of Labor’s flurry of regulatory initiatives related to fee disclosure and fiduciary status concern the need to tighten up the legal structure with regard to defined contribution plans in a manner that was not needed back when pensions walked the earth, as they increasingly no longer do. Each of these regulatory changes, in turn, opens up greater avenues for litigation and fiduciary liability, further changing the legal environment concerning 401(k) plans and ERISA itself. In this way, the perfect storm comes to affect ERISA litigation and liabilities.
Now here is a new wrinkle to add to the perfect storm, one that if true will just add to the impetus towards change described above: the possibility that the impending boom in 401(k) funded retirements will in and of itself depress stock prices. This will in turn simply accelerate the cycle, described above, by increasing the investment risk and capital accumulation risks that the systemic changeover from pensions to defined contribution plans has transferred to participants. The more risk of this nature passed to participants, and the more they suffer as a result of the outcome of those risks running against them, the more litigation, the more recoveries, and the more doctrinal changes you will see.
Put this one in a blog time capsule, and come back and see me in 20 years. I bet I will be right on this one.
At the Intersection of Insurance and Plan Fiduciaries
Well, given the title of this blog, I couldn’t exactly let this decision pass unnoticed. In this decision from the Court of Appeals of New York, Federal Insurance Company v. IBM, the Court denied insurance coverage for IBM under an excess fiduciary liability (apparently) policy, for a settlement by IBM of a claim that amendments to benefit plans in the 1990s violated ERISA. The Court, in short, found that the claim did not invoke IBM’s status as a fiduciary under ERISA, essentially because it involved settlor, rather than fiduciary, functions. The Court applied standard rules of policy interpretation, under which insurance policy language must be given a reasonable construction under the circumstances, to conclude that policy language that applied to claims against a fiduciary involving ERISA meant claims where the insured qualified as a fiduciary under that statute, and did not, contrary to IBM’s arguments, involve any broader meaning of the word fiduciary.
Three points about the case interested me, which I thought I would mention. The first is the case’s status as an exemplar of a phenomenon of insurance work that I have frequently mentioned in the past, which is that all major litigation disputes end up in court twice: the first time as against the insured, and the next time as against the insurer, involving the question of whether that first dispute is covered under the insurance policies held by that insured.
The second is that the case illustrates one of the most important aspects of another theme of this blog, which is the importance of what I have come here to call defensive plan building, which is a fancy way of saying developing benefit plans and affiliated structures that protect plan sponsors and fiduciaries from liability. Having liability insurance in place to protect them from the costs and potential liabilities of litigation is crucial. While in this case IBM can easily afford the uncovered exposure, this will not be the case for the vast majority of plan sponsors. Careful attention to the scope of, and holes within, insurance coverage for benefit plan operations is crucially important.
And finally, the humorous aspect of the decision is the third item, consisting of IBM being put in the position, to seek coverage, of having to argue for a broad definition of fiduciary in the context of a plan dispute. As we know from the controversy over the Department of Labor’s recent attempt to expand the definition of fiduciary under ERISA to catch more fish, most entities run from the label of fiduciary like a groom from a shotgun wedding.
The Very Interesting Lessons of Novella
The Second Circuit these days is the gift that just keeps on giving when it comes to ERISA litigation, and for that matter to blogging about ERISA litigation. Following up hard on the heels of its thorough and legitimately interesting opinion on employer stock drop litigation in Citigroup and McGraw-Hill, the court issued this much more low profile opinion in Novella v. Westchester County. Interestingly, while the employer stock drop cases received full blown press coverage – and while my own view is they essentially spelled the death knell for straight forward stock drop claims as a viable cause of action – I would bet a doppio that the much less noticed Novella case will be the far more cited case as time goes on. The Novella decision offers far more of relevance to the day in, day out run of ERISA cases than does Citigroup/McGraw-Hill, with its focus on one big ticket item, namely the exposure of major corporations to employer stock drop claims, and as a result, it is likely to be turned to by ERISA litigators and courts far more often over the years ahead than are its more high profile cousins.
Novella provides a thorough review and analysis of at least three key, and often encountered, issues in ERISA litigation, particularly denial of benefit cases; more than that, it provides the imprimatur of one of the country’s leading benches to a particular analysis of these issues, which are otherwise subject to some conflicting, and sometime unsettled, interpretations in various circuits. Here they are, in no particular order.
In the first instance, the court provides a clear example of how to determine the reasonableness of a plan administrator’s analysis of its plan terms, and gives some guidance to the proper use of long-accepted canons of contract construction in this context.
In the second, the court addresses one of the more enigmatic issues in denial of benefit claims, which is the question of whether a plan can defend against litigation by relying on an argument not raised in the administrative process before the plan during which the benefits were denied. The court’s words on this point are telling:
It is apparent from the record, however, that the defendants did not use Section 3.16 to calculate Novella's pension in the first instance. As the district court noted, the defendants identified this section as justification for their calculation of Novella's pension “for the first time in litigation.” They did not cite this section of the Plan in their letters to Novella explaining the calculation of his benefits. Nor did they indicate to Novella at any point during his administrative appeals that their two-rate calculation relied in any way on section 3.16. To permit them to assert this newly coined rationale in litigation despite their failure to rely upon it during the internal Fund proceedings that preceded this lawsuit would subvert some of the chief purposes of ERISA exhaustion: to “ ‘uphold Congress'[s] desire that ERISA trustees be responsible for their actions, not the federal courts,’ “ and to “ ‘provide a sufficiently clear record of administrative action’ “ should litigation ensue. It would also clearly be inequitable.
This item is a huge point that should not be overlooked. Lawyers for participants will often argue – whether calling it waiver, estoppel, or something else – that a plan cannot shift its grounds during litigation from what the plan administrator relied upon during the processing of the participant’s claim for benefits, including the participant’s appeal to the plan of an initial denial of benefits. Here, in this language from the court, is a striking, easily lifted passage supporting that exact argument. There is a proactive lesson to be learned from this, beyond just the question of how the court’s ruling on this point affects cases in litigation, and that lesson is that plan administrators must be careful to raise in their denials all plan terms and grounds they believe justify a denial. This requires more work and more attention during the claim processing and appeal stage, including – if the amounts at stake warrant it – getting the benefits lawyers involved.
And finally, I am fond of the court’s analysis of the application of ERISA’s statute of limitations, more specifically the court’s analysis of when the statute of limitations starts running on a claim involving the miscalculation of benefits. The events underlying such a claim occur over a broad swath of time, during which benefits are calculated, granted, appealed, recalculated, denied, and the like. The court narrows down the point in that run of events at which the statute of limitations starts to run, finding that “the statute of limitations will start to run when there is enough information available to the [plaintiff] to assure that he knows or reasonably should know of the miscalculation.” This is a fact based inquiry, but at least it is a standard one on which all parties can focus in litigating such disputes.
Denial of Benefit Claims, The Repeat Player, and Saving Money on Litigation
One of the first posts I wrote on this blog was about insurance coverage and the concept of the repeat player. The idea behind it was that insurers use the same counsel over and over again in coverage disputes, with the result that they put on the field – to use a sports metaphor – counsel who have a great deal of experience with the specific policy provisions at issue and a deep reservoir of knowledge about the effect of different fact patterns on the application of those provisions; the post pointed out that insureds are therefore not well served by using their general outside lawyers to represent them in such disputes, but are instead better served by finding their own “repeat players” to represent them in such cases, who can match the other side’s lawyers in expertise on and familiarity with the insurance policy types, terms and principles at issue.
The same holds true in ERISA litigation, particularly in the realm of denied benefit claims, whether they be short term or long term disability claims, health insurance, 401k issues, pension disputes, employee life insurance or other types of benefits made available by employers. Under ERISA, such benefits are governed by the terms of the plans under which they are provided, and litigation over any of them is subject to certain rules that are consistent across the field, such as those concerning the standard of review, the impact of conflicts of interest on the part of the administrator of the benefit plan, the contents of the administrative record, exhaustion of administrative remedies, regulations governing claims handling, and the scope of discovery. Most plan sponsors and administrators use “repeat players” to represent them on denial of benefit claims, to such an extent that some obtain discounted pricing in exchange for using the same counsel over and over again. This is actually beneficial to all involved on the defense side of such cases, as it creates a dynamic not just of cost savings for the plans, but also of the development of the level of expertise that comes through regular handling of the same type of cases, in this instance denied benefit claims under ERISA; this manner of developing expertise through repetition is exactly what is meant to be captured by the short-hand phrase “repeat player,” and this type of a consistent, mutually beneficial relationship between plans or administrators and their lawyers on such cases is how that expertise gets developed and brought to bear.
Interestingly, one should note that there is nothing unique to the defense side when it comes to the benefit of using a “repeat player” in denial of benefit claims under ERISA. You will have to trust me when I tell you that I routinely see the difference when, on the other side of the “v.” from me, is a lawyer who regularly represents plan participants in such disputes, as opposed to a general practice lawyer who represents plan participants only occasionally. This area of the law, like many others, is one where plaintiffs – who unlike the defendants may rarely be involved in such cases – also benefit from retaining a “repeat player.”
Mark Herrmann, the Chief Counsel for litigation at Aon, the insurance brokerage, wrote – whether he meant to or not – of this phenomenon in his piece the other day for Above the Law on “flotsam and jetsam,” in which he discussed the benefits to in-house legal departments of identifying areas of legal work that a company can bundle up and turn over, en masse, to an outside lawyer, who will handle the entire line of work for a fixed, and reduced, yearly retainer. I have over the years met with in-house benefit people and made the same suggestion with regard to a company’s handling of benefit claims, explaining that they are perfect for assigning to one counsel in exchange for a fixed fee payment structure for several reasons, including: (1) they are predictable in terms of time and cost investment, partly because discovery is limited; (2) the exposure to the company is narrow and predictable, because of the limited remedies available under ERISA and the ability to quantify the benefit amounts at issue under the relevant plan terms; and (3) the legal principles are consistent and should be well-known to defense counsel. This combination of predictability of the case with the expertise of the “repeat player” makes benefit claims perfectly suited to being bundled up in their totality and assigned to one outside counsel for a long period in exchange for cost savings to the company assigning the work.
Now as I noted, I have broached this idea over the years with plan sponsors and administrators, but I have to say I have never explained the concept quite as well as Mark Hermann did in his story. Writing as an in-house lawyer, he does a better job, I think, of isolating and describing the benefit to businesses in taking this approach than I have been able to do as an outside lawyer who can do no more than look through the window at the pressures, demands and needs of client companies. If you are in the benefits business, though, when you read his piece on it, think for a moment about how perfectly his description of “selling off” these types of cases fits the environment in which companies handle denial of benefit claims under their company benefit plans, and how well his idea would work for those types of claims.
When Does Exhaustion of Administrative Remedies Really Require Exhaustion
Like most lawyers who represent plans or their administrators in denied benefit disputes, one of the first things I check when a participant’s complaint is forwarded to me is whether the participant exhausted all review opportunities with the plan’s administrator. If not, the defense of failure to exhaust administrative remedies needs to be raised. For those on the opposite side of the “v” (i.e., the plaintiff), however, whether or not the failure to exhaust administrative remedies is fatal is not so cut and dry. Circuits vary on the circumstances under which such a defense is outcome determinative, and most circuits - probably all, but I have to admit I haven’t surveyed the more out of the way circuits on this question - provide participants with ways around this defense, as this informative blog post illustrates.
Market Down? Then ERISA Lawsuits Must Be Up
I tell people all the time when I speak at seminars that compliance is key because in a downturn, participants will sue plans and their fiduciaries over things they just ignored when the markets just kept going up, up and up, with participants’ account balances doing the same. I have frequently noted this in posts as well here on this blog, reminding people that when the market goes up, participants don’t get upset that compliance problems or excessive fees or the like meant they earned “only” 12 or 14% in a given year, rather then 15 or 16% in that year, but they get plenty upset when those problems in a plan mean the difference between a loss and a bigger loss.
My support for this premise has always been anecdotal, based on what I see in litigation and learn in my discussions with fiduciaries, plan sponsors, vendors and participants. It appears there is some verifiable independent data to back this up, though:
According to data from the US District Court, 9,300 lawsuits related to ERISA were filed in the country during the 12-month span that ended on March 31, 2010. While that number is lower than the nearly 11,500 lawsuits in 2004, it represents a significant increase since the beginning of the recession, according to the news provider.
Governmental Plans, Annuities, and the Intersection of ERISA with the Securities Laws
I have discussed in many posts the idea that the plaintiffs’ class action bar has alighted on ERISA and breach of fiduciary duty claims as a preferable tactical alternative, in many cases, to proceeding under the securities laws. This approach was a particularly nice fit for stock drop cases, in which company stock held in employee benefit plans rendered ERISA, and its relatively - at least compared to the securities laws - more malleable breach of fiduciary duty doctrines, a viable approach to seeking recovery for precipitous declines in company stock prices. To date that tactic - which made sense as a legal and tactical theory in the abstract - has not really worked out all that well with regard to decline in the value of company stock holdings, because of the oft-discussed Moench doctrine, which provides a strong presumption in favor of plan fiduciaries when it comes to holding company stock.
This article here, however, discusses what has, at least in perfect hindsight, turned out to be an excellent example of taking a good idea - at least if you are a class action lawyer or a plan participant - a little too far, by choosing to proceed under ERISA in a large putative class action rather than under the securities laws, only to have the court subsequently conclude that ERISA cannot apply under the facts of the particular case, and that the participants should have gone forward under the securities laws in the first place. The case it discusses, Daniels-Hall v. National Education Association out of the Ninth Circuit, can be found here, and for the ERISA practitioner, it may be more significant for its detailed analysis of the government plan exemption in ERISA than for its conclusion that the plaintiffs had overreached by relying on ERISA rather than the securities law to proceed with their case. The issue of the choice of legal doctrine to pursue is one of tactics, and reasonable lawyers can disagree at the outset of a case as to which of many plausible lines of attack should be pursued; either way, over time, the current preference for ERISA over the securities laws as a matter of tactics will likely run its course. Debates over whether a particular plan is a government plan, however, will continue to pop up, and the Ninth Circuit’s decision provides a sound template for analyzing that issue.
Does LaRue Alter the Rules for Class Actions?
As a general rule, I don’t write blog posts about cases I am handling. For the most part, nothing good can come of it. I do make an exception once and awhile, but only to the extent of passing along a particular ruling, without commentary, that may be of broader relevance and interest. Today is one of those days, in which I am posting this recent federal district court decision from one of my cases which concerns class certification related to a 401(k) dispute, and I post it only because the Court provides a nice synopsis of one particular wrinkle raised by the Supreme Court’s ruling in LaRue, namely its impact, if any, on the propriety of certifying a class in a dispute involving a defined contribution plan. In the words of the Court:
There is a question whether the Supreme Court’s decision in LaRue v. DeWolff,
Boberg & Assoc., Inc., 552 U.S. 248 (2008), bars class certification of fiduciary breach claims by participants in defined contribution plans because participants as a result of LaRue’s holding may now pursue individual ERISA actions against plan fiduciaries. Although some courts have so held, see, e.g., In re First Am. Corp. ERISA Litig., 622 (C.D.Cal. 2009), other courts, including this one, have not been persuaded that so radical a revision of Rule 23 was intended by the Supreme Court. See Hochstadt v. Boston Scientific Corp., 2010 WL 1704003 at *12 n.12 (D. Mass. Apr. 27, 2010); see also Stanford v. Foamex L.P., 263 F.R.D. 156, 174 (E.D. Pa. 2009) (“The availability of an individual account claim under § 502(a)(2) [of ERISA] does not alleviate the concerns cited by numerous courts that have certified ERISA class actions pursuant to Rule 23(b)(1)(B) in situations where claims on behalf of the Plan are identical to those on behalf of an individual account.”).
You can find the discussion at footnote 4.
An Unfortunately Timely Topic: When Severance Programs are ERISA Plans
Nothing shows up in my practice any more frequently, particularly in this economy and over the last couple of years, than severance packages, and the question of whether a particular severance package program is governed by ERISA. Roy Hoskins, on the ERISABoard.com site, reviews this issue, and its application by the District of Maine under First Circuit law, in this excellent post, along with providing a copy of the opinion by the court. For those of you who may not be able to access the Board’s site for any reason, here is a copy of the decision itself, which is Sawyer v. TD Bank US Holding Company.
Small Plans Don't Always Have Small Problems
This is an interesting small piece out of Reish and Reicher highlighting the fact that smaller plans, with relatively small asset pools, face many of the same risks and problems that are faced by the large plan sponsors involved in the bold face cases that show up on a daily basis in the media. To my mind, the key point is, as I have said often, one of compliance. For smaller companies in particular, an obsessive focus on compliance is needed to avoid getting sucked into these types of lawsuits. For the very largest plans, that alone won’t keep them out of the litigation cross hairs; they are simply too big of targets, and too subject - like BP - to external events that can put their fiduciaries on the wrong side of a complaint’s caption. For smaller companies, though, it is the internally controlled events, like compliance lapses, that are likely, in my experience, to trigger fiduciary or other ERISA litigation, and that is something those companies can control.
The article, incidentally, came to my attention through a Linked In group I participate in, and its only fair to note investment advisor Chris Tobe for bringing it to my attention. My comments on Linked In about the article expanded upon my thoughts above a little bit, and to the extent you are interested, were that:
The Reish article is right on point. I have represented smaller plans and their sponsors in similar cases, and relative to the size of the employer, they are every bit as disruptive, expensive and of concern as large cases against larger plans. For the smaller plans in particular, who really cannot afford the distraction from their business of these types of claims, an emphasis on compliance to avoid these types of suits is crucial. Of even more import is a willingness to work cooperatively with a participant who has a legitimate complaint to resolve the matter without litigation; I have done this, and it can save a small fortune in legal fees while ending up with a settlement similar to one that would be on the table at the end of litigation. Finally on this point, I would note one concern with regard to fiduciary liability insurance for these "small plan" claims. Many such policies have a high deductible, meaning that relatively small dollar claims in relatively small plans may not end up covered by the insurance at all or at least not to a significant extent. Small plans should keep in mind when acquiring the coverage that a low deductible is necessary to capture the typical size claim that a small plan will generate.
Statute of Limitations and Denial of Benefit Claims
Here is an excellent and very educational post that I wanted to pass along from the Florida Insurance Blog on the statute of limitations applicable to denied benefit claims under ERISA. It is an issue that is often not as straightforward as it either appears or should be, as the Ninth Circuit case addressed in the post illustrates. If you are new to this issue, you could do worse than to start with a read of that post.
When Does a Flaw in an Administrative Appeal Render an Administrator's Denial of Benefits Arbitrary and Capricious?
There have been a series of interesting ERISA decisions over the past several weeks out of the United States District Court for Massachusetts, whose Boston courthouse I can see through my office window as I type this post. The decisions have stacked up on my desk a little bit, like a leaning tower of paper. I am going to run a series of posts, some short and others perhaps longer, passing them on with my comments as to their value. The first is this summary judgment ruling in DiGiallonardo v. Saint-Gobain Retirement Income Group, which has to do with a challenge to a denial of disability retirement benefits. It is most interesting, and useful to other practitioners, for one specific point, namely its handling of an administrator’s procedurally poor processing of a claim and its appeal. The court found that the administrator had not considered the actual key term in the contract in ruling on the claim for benefits, and that this required remand to the administrator for a proper handling of the claim, because under those circumstances, the claimant had not received the “full and fair review of the administrator’s decision” to which a claimant is entitled under ERISA. The court found that this procedural irregularity rendered the administrator’s decision arbitrary and capricious.
Here's What the Court Will Do In Conkright v. Frommert
Alright, here we go on Conkright v. Frommert, which will be argued at the Supreme Court on Wednesday. SCOTUS has the full run down of the case and what is at issue right here, and long time ERISA blogger Paul Secunda has an amici brief before the Court on the core issue, which can be found here. At its heart, the case presents one fundamental question, though cloaked - like many ERISA cases - in a wide ranging and complicated documentary, factual, and judicial history. That, by the way, is what makes ERISA cases fun for litigators like me - nothing is ever simple, even the issues that one would think should be. This is a natural outcropping from a number of aspects of this area of the law, running from a complicated statute that leaves much to further development by the courts, to the inherent limitations posed by both the English language and the (inevitably finite) skill of the scrivener in drafting complicated benefit plans, to the frequent disagreement among circuits (and even among district court judges within the same circuit in some instances) on a variety of issues under the statute. Here though, the key issue is one of deference, and whether a court must continue to apply deferential review to a plan administrator’s interpretation of a plan when the court has already rejected the administrator’s earlier interpretation as being arbitrary and capricious. A non-lawyer - and most lawyers too - would say the case is simply about whether the plan administrator only gets one bite at the apple, or perhaps is about whether its one strike and you are out.
This case continues a recent trend of the Court taking on ERISA cases that pose very finite issues, ones that aren’t likely to recur frequently but that pose the opportunity to present some sense of what are the outer guidelines of ERISA litigation - how broad is deference, does it apply when there is a conflict, what kind of conflict matters, how much room does the administrator get to work with plan language, and what is the proper balance between the plan administrator and the district courts (and eventually the circuit courts) in deciding factual and plan language issues in ERISA cases. Much of this goes back to Firestone, and the universe governing ERISA cases that it spawned; if I had my guess, I think the Court would like to have that one back, and start all over again with a cleaner, more easily applied legal structure. But they can’t go back, and I don’t think anyone believes they will go so far as to overturn that ruling and start anew with a new framework. So what we will have instead is cases like this one being decided in a manner intended to reign in the outer limits of the universe spawned by Firestone (ouch, that extended “Firestone as the Big Bang” metaphor is beginning to make my head hurt), which means I call this one for the participants, with a finding that the plan administrator gets deference only the first time around.
And yes, I know I am dramatically simplifying how the parties frame the questions here - but what I have said above will be the essence of the outcome.
Conkright, Discretion and the Supreme Court
Here’s a nice little story on Conkright, and the new Supreme Court session. As the article explains in a nutshell:
The issue in Conkright vs. Frommert involves how much deference a court must give to an ERISA plan administrator's interpretation of the terms of the plan. A group of Xerox Corp. retirees who left and then returned before retiring brought the suit. At issue is the method of accounting for lump sum distributions received by the employees when they first left the company when determining the benefits to which they were entitled at retirement.
In a review of the case, a three-judge panel of the 2nd U.S. Circuit Court of Appeals ruled last year that a district court has no obligation to defer to a plan administrator's reasonable interpretation of the plan's terms if the administrator arrived at the conclusion outside the context of an administrative claim for benefits. It also held that a district court has “allowable discretion” to adopt any “reasonable” interpretation of the retirement plan terms under certain circumstances. The high court has not set a date for oral arguments.
I studiously ignored Conkright during the cert phase - we will discuss it in detail in future posts, however. Gut instinct right now, based only on what the Court did with its most recent ERISA cases? Expect a decision that narrows the administrator’s discretion and gives more freedom of interpretation to the court. How's that for instant analysis?
QDROs Down the Drainville?
I don’t think anyone has made as sustained a study of the law of QDROs as Albert Feuer. Albert has a new piece he has authored on the Drainville decision, which I discussed here, in which Albert concurs that it is both well reasoned and accurate in treating substantial compliance with the statutory QDRO requirements as sufficient. Albert, however, has long maintained a particular scholarly view on the QDRO requirements, which is that they only apply to pensions under the statutory language, and don’t reach other ERISA governed plans or benefits. Albert points out that the Drainville court erred in its analysis for this reason.
Being a practical, courtroom oriented kind of guy, I have never done my own independent analysis of Albert’s thesis, since in practice QDROs are treated as applicable across the board and thus my litigation over the issue has always focused on the application of the statutory requirements, and not on whether they reach all covered benefits or only pension benefits. I have to say, though, that his argument on the point and the manner in which he presents it has always been pretty persuasive; it would certainly be interesting to see a lawyer challenge a purported QDRO on this basis and to see what a court would do with that issue.
Doing the QDRO Shuffle
Here’s a great opinion, out of the United States District Court for the District of Rhode Island, on QDROs, their statutory basis, their purpose, and how they should be structured. Notably, the court weighs in in a very sensible manner on the never ending question of whether, under ERISA, the divorce decree at issue must comply exactly with the requirements imposed by ERISA to qualify as a QDRO or whether instead, as in horse shoes, close enough counts. In this circuit, close enough is usually good enough, and courts tend to enforce the divorce decree so long as the court is convinced it can accurately ascertain the intent and purpose of the agreement from the decree, regardless of whether the exact detailed requirements that ERISA imposes to qualify as a QDRO have been met. This opinion comes closer than those to requiring close compliance with the specific requirements of the statute, but allows variance from them subject to a certain principled guidance - namely, whether the variance does not affect the plan administrator’s ability to determine to whom and in what amount to pay plan proceeds. If so, then the requirements should be considered to have been met in substance and the order in question deemed a QDRO for these purposes.
Beyond this aspect of the opinion, one of its most notable features is simply its nice exposition of exactly what a QDRO needs to contain. Exactly what needs to be contained in a divorce document to qualify as a QDRO seems to be a constant source of confusion for people who are not ERISA lawyers but who have to work out family/divorce agreements; this opinion just lays it out in clear fashion.
The opinion is Metropolitan Life Ins. Co. v. Drainville. It doesn't appear to have been posted yet on the court's website, but once it is, you should be able to find it here. For now, here's a Lexis site for it: 2009 U.S. Dist. LEXIS 63613.
Comments on First Circuit Law Post-Glenn
I thought I would post some thoughts and comments on the First Circuit’s pronouncement of its law after Glenn, before too much more time goes by, rather than waiting for a window of time that would allow me to write a much longer post on it. Some things that sit too long get stale, and comments on new, noteworthy opinions fall in that category, so here are my thoughts. First, for those of you who haven’t seen it yet, a First Circuit panel has now issued an opinion detailing how the First Circuit will handle structural conflict of interest situations in light of the Supreme Court’s ruling in Glenn. You can find the opinion here. Of note, the panel goes out of its way to paint prior, pre-Glenn, First Circuit decisions as not particularly different than the holding in Glenn, and to a certain extent this is true: prior First Circuit precedent had required that structural conflicts only affect the outcome if there was a showing that the conflict had actually impacted the benefit determination, and in many ways this is very consistent with the holding in Glenn that consideration of the structural conflict is only one aspect of the review and that such a conflict is essentially irrelevant if the evidence shows the conflict was cabined in a way that demonstrates it played little or no role in the outcome.
Second, and of particular note, the panel made clear that it was only dealing with the specific issue at play in Glenn, namely the impact of a structural conflict of interest. The court indicated that the rule may well be different in the presence of evidence showing that there was an actual conflict that motivated the outcome, and that a change in the standard of review might continue to be appropriate under that circumstance. In essence, while withholding judgment on what rule it might adopt in that circumstance after Glenn, the First Circuit is distinguishing between arguments that begin from the premise that there was a structural conflict of interest - the Glenn type scenario - and arguments based on the idea that the administrator was actually subjectively motivated by a conflict; the court made clear that only the former scenario is governed by its new decision applying the Glenn rubric.
Third, in an aspect of its decision that provoked the ire of one member of the Panel who wrote a concurring opinion specifically to challenge the opinion’s analysis of this issue, the case holds that the First Circuit’s prior rulings on discovery in denial of benefits cases - that little is to be allowed and it is disfavored - remain in effect and are consistent with Glenn. Of even more interest and practical concern going forward, though, is the court’s conclusion that, rather than engage in discovery into the possible impact of a structural conflict of interest on a decision, it is incumbent upon administrators to make the evidence of the cabining and lack of impact of such a conflict part of the administrative record compiled during the administrator’s handling of a claim. If there is a functional impact of the First Circuit’s ruling on plan administrators, it is this one - the need to evidence the lack of importance of the structural conflict in the administrative record itself.
How Much Information Is Enough to Decide A Breach of Fiduciary Duty Lawsuit?
Is a motion to dismiss a good tool for disposing of major breach of fiduciary duty lawsuits? In essence, should it be treated as a mini-summary judgment proceeding, that tests the sufficiency of the case’s theories against, not the detailed facts of a specific case, but instead against the world as a whole as understood by the court? Or are these cases instead ones that are better decided by - and both litigants and the development of the case law better served by - a decision on the actual factual merits of a case, after drilling down into the conduct in question?
The former scenario is, in essence, the route taken by the court in Hecker, and Kevin LaCroix provides another example in his post yesterday, on the dismissal of the breach of fiduciary duty lawsuit in the Huntington Bancshares ERISA litigation. What happened in both cases is, in a nutshell, the court comparing the allegations of fiduciary errors to the market as a whole, finding that what took place was not inconsistent with what was occurring in the broader market (in the case of Hecker, that being the pricing on mutual funds in a plan, and in the case of Huntington, that being the stock losses in the plan), and that therefore, essentially by definition, the plan fiduciaries could not have fallen below the standard of care imposed on them. I can understood the arguments on both sides, and particularly those in support of this approach. A fiduciary is charged with acting with the skill and care of a prudent person in that position, and one can argue that this standard was not breached if the plan losses were consistent with what occurred across the market and with regard to others similarly situated; after all, if all the other investment managers took the same beating, then the plan’s fiduciaries, by definition, were acting like all others with expertise in the area when they likewise took the same pummeling. Plus, of course, conducting extensive class action litigation to further analyze what the market itself seems to be telling us - that the fiduciaries were acting like all other prudent investors since all got clobbered to the same extent - is a tremendous drain on the defendant’s resources. Then you add on top of that the realpolitik of the situations, which is that we know that most cases of these types settle after expensive litigation if they survive the motion to dismiss stage and possibly the summary judgment stage, so in many ways these procedural stages dictate the outcome, and there will never actually be a trial to allow a full drilling down into the actual facts of fiduciary conduct which can serve as the basis for a decision; delaying the day of reckoning from the motion to dismiss stage to the summary judgment stage, in this way of thinking, doesn’t really change that, as there will undoubtedly be factual disputes at the summary judgment stage that will preclude a fact based decision and instead any decision at that stage will, like the motion to dismiss rulings, likewise be based on the types of broader legal theories addressed by the courts in the motions to dismiss in these types of cases.
But on the other hand, is it really safe or fair to just assume that fiduciaries have lived up to their obligations, simply from the existence of broader market indicia? I am thinking in particular of two sets of data that crossed my desk recently, the first courtesy of 401(k) blogger Josh Itzoe and the second courtesy of the guys at BrightScope, who slice and dice the data on this field for fun and profit. In this post, Josh points out survey results showing that a large number of plan sponsors don’t really have a structure in place for operating 401(k) plans at a high level, while this chart here, passed along by BrightScope and based on its data, shows the wide range of fees that plans assume in their 401(k)s. This information reflects the tremendous diversity one can find in operating talent, execution, fees and other aspects of a plan that can seriously impact performance. Under those circumstances, is it really appropriate to stop the analysis of fiduciary conduct at the motion to dismiss stage, before investigating the aspects of a particular plan, just because the market as a whole lines up in a reasonably consistent manner with the performance of or fees in a particular plan? Market performance may be down, or fees across the market may line up with those in a plan, but this doesn’t by definition mean that a plan sponsor is living up to its obligations without further analysis. Behind those market numbers and the relationship of a particular plan’s performance to those numbers, may very well be a fiduciary whose operational structures and/or charges to plan participants fall below what other fiduciaries are doing; I am not sure it is fair to allow the muck of a bad market to provide cover for that.
The Seventh Circuit Puts a Spin on Discretionary Review
There is an interesting twist to a recent Seventh Circuit decision, Leger v. Tribune Company Long Term Disability Plan. The decision starts out as an attempt by the participant to resuscitate her benefits claim by invoking Glenn v. MetLife and asserting that a structural conflict of interest existed warranting an alteration to the standard of review. The Seventh Circuit, though, quickly rejected that position, finding that there wasn’t even a conflict of a level that warranted being considered as a factor in conducting an arbitrary and capricious standard of review. Uh oh, says the reader, we know how this story ends: the conflict of interest argument in this context signifies in most decisions that the participant has no other hook to hang her claim on, and is taking her last, desperate shot, dooming her when, as in this opinion, the court summarily rejects the argument. But the Seventh Circuit surprises here, as this issue is not the last one addressed, but is instead simply a signpost along the way to the ultimate conclusion and to the application by the court of what, in most cases, is not an approach one sees taken. Rather than stopping with the standard analysis that, one, the conflict of interest doesn’t change anything, and, two, there is reasonable support in the record for the decision to terminate benefits, thus ending the case, the court continued from there, finding, instead, that the decision, despite having support in the record, failed to account for numerous conflicting pieces of evidence contained in the administrative record or possible interpretations justified by the record. The court held that the decision to terminate could not be sustained in that circumstance, and that, instead, the issue had to go back to the administrator for purposes of making a decision that did, in fact, take all such concerns into account (the court actually just remanded it to the district court for proceedings consistent with its ruling, but one presumes this would mean remanding it back to the administrator to address these issues, followed by litigating the issues all over again).
I have commented in the past on this point - the question of courts applying a more searching level of review while nominally still proceeding under the arbitrary and capricious standard of review is much more significant both to parties and to the development of the law in this area than is the question of whether conflicts exist, and if so their impact.
A Pile of Things on Kennedy v. DuPont
A lot of interesting things have piled up in my in-box during the past week and a half or so, when I have not had time to blog. I still think they are interesting, even after a few days of having them underfoot, so I am going to try to parcel out as many of them as possible over the course of this week, until I have either run out of them or out of time, whichever comes first.
I thought, for reasons of both vanity and timeliness, I would start with a couple of items on the Supreme Court’s decision in Kennedy v. DuPont. I am quoted in an article in the current edition of Lawyers USA discussing the case, along with a motley assortment of worthies, including the law professor formerly known as the Workplace Prof. It’s a good article, and for those of you who are subscribers, you can find it here; for those of you who aren’t, I am going to pass on my usual approach of (by putting on my copyright litigator hat) deciding how much of it I can quote under the guise of fair use, and instead send you to my post on the case here, which says pretty much what I think on the subject.
Also, I would be remiss if I didn’t point out that attorney Albert Feuer was kind enough to send along to me links to a series of papers and commentaries he has written on the Kennedy decision and the issues it raises (and, in many cases, does not answer, in both my and Albert’s views). You can find them here, here and here.
Wrongs That Can't Be Remedied: ERISA Preemption and Limited Statutory Remedies
Paul Secunda, the law professor formerly known as the workplace prof, has a new law review article out on the “wrong without a remedy” aspect of ERISA litigation, which is the fact that the broad scope of preemption can combine with the limited range of remedies available under ERISA in a way that makes some alleged wrongs involving employee benefit plans simply not redressable. Notice that unlike many commentators, including Paul in his article, I call it an aspect of ERISA litigation, rather than a problem, as, contrary to Paul’s article, I am not convinced this isn’t the logical outcome, rather than the problematic distortion, of the original statutory structure. Either way, there is certainly room to argue over whether, and if so what, should be done about this aspect, and Paul provides his own version of changes that could be enacted legislatively or by judicial development to eliminate the “wrong without a remedy” scenario. I don’t necessarily agree with all of his points or his reasoning, but its an interesting read and presents some interesting approaches. Moreover, I am on record - I guess as part of a Greek chorus at this point - with my criticism of legal scholarship that is simply part of a hermetically sealed circle of philosophical commentary, without adding value to practicing attorneys, courts, or the legal system as a whole. Paul’s article avoids this problem, I am happy to report, in two ways, making it something worth recommending as reading to practitioners. The first is that the article provides a highly readable, educational (and cite-able) survey of the historical and current state of the law of preemption. The second is that the article thoughtfully shifts the nature of the discussion of this problem from the general fixation on the preemption prong, which is usually the focus of the discussion in commentary and in litigation, to the remedies part of the problem, posing the idea that preemption is broad enough to preclude adding state law causes of action to benefit plan cases, and that instead the place to look to end the “wrong without a remedy” conundrum, which Paul has called in other places the “grand irony of ERISA,” is to the statutory remedies under ERISA and to whether they can be expanded by judicial development or legislative fiat. In the courtroom, in cases involving the clash between preemption of state court remedies and the limited nature of the relief available under ERISA, the focus tends to be on the scope of preemption; Paul, in his article, posits that it would make more sense to simply start the analysis, and any response to this issue, from the premise of accepting the broad scope of preemption, and then go from there.
The article is titled “Sorry, No Remedy: Intersectionality and the Grand Irony of ERISA,” and can be downloaded here.
Kennedy v. Plan Administrator for DuPont Savings and Investment Plan
Here’s the early word on the Supreme Court’s ruling in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, which revolved around the issue of divorce decrees, the QDRO requirements of ERISA, and whether - in the absence of a valid QDRO - a plan administrator can rightly just pay proceeds to an ex-spouse of a plan participant if the participant never removed the ex as a beneficiary. I have only read this analysis of the case from SCOTUS blog (I will read the opinion itself tonight), but the answer appears to be the same as what most of us have always assumed to be the case: that in the absence of a probate court order that satisfies the statutory requirements in a particular circuit for constituting a QDRO, the money gets paid as per the express terms of the plan itself and any existing beneficiary designation, without regard to any extrinsic divorce agreement that might have mandated otherwise.
Simple enough, although in at least some circuits there is some ambiguity as to exactly what constitutes a QDRO, for instance in how closely the statutory requirements must be complied with. Perhaps the opinion, once I look at it, will shed some light on this question as well.
The Trend Lines in ERISA Litigation
I like when you sort of hit the zeitgeist in things you write and talk about. I mentioned in a post last week that I would be presenting a seminar to the ASPPA Benefits Council of New England on current trends in ERISA litigation, and I presented the seminar yesterday. As I gave the talk, a theme unfolded: namely, that the confluence of economic problems and the unsettling of many apple carts when it comes to the rules governing ERISA related litigation (a perfect case in point being the majority’s suggestion in LaRue that litigants and lower courts should feel free to reconsider precedents established in defined benefit cases when confronting disputes over defined contribution plans such as 401(k) plans) means we are looking at an expansion of litigation, perhaps in the overall number of suits and, if not, at least in the complexity, dollar value and expense of the suits that are brought. I noted this to be a particular issue with regard to stock drop and excessive fee cases, particularly in the current stock market meltdown.
Well, lo and behold, today here comes this report, from Seyfarth Shaw by means of Global Pension:
The Seyfarth Shaw Workplace Class Action Litigation Report showed last year, the top ten settlements for Employee Retirement Income Security Act-related (ERISA) class action cases topped US$17.7bn, a dramatic increase from the $1.8bn paid out in 2007 . . .“There is an explosion in class action and collective action litigation involving workplace issues. The present downturn in the economic climate is likely to fuel even more lawsuits, and the financial risks in this type of employment litigation can be enormous . . .” The firm said this trend was likely to continue, with particular reference to cases being brought over “stock drop” complaints – in which ERISA plan members brought action over the availability of employer’s equities as an investment option and “plan administration” cases, whereby participants brought action over ‘excessive’ advisory fees and other elements of plan administration.
Talkin' ERISA Litigation Trends
I will be presenting a seminar next week, on Wednesday January 14th, to the ASPPA Benefits Council of New England, entitled “ERISA Litigation: An Update from the Front Lines.” After three full days of outlining my talk, I now actually have a pretty good idea of what I am going to say; the talk will blend the latest developments nationally and at the Supreme Court in ERISA law with ERISA litigation trends and realities in the First Circuit. If you are interested in attending, its not too late to register. The brochure and registration form for the talk is here.
Adapting to Glenn in the Second Circuit
I noticed in my statistics package for the blog that this past Thursday, Christmas Day, had the lowest readership of this blog in months. Come on people, ERISA is for everyday, not just workdays! And here’s why. The day before Christmas, the Second Circuit issued its ruling adjusting its case law on benefit determinations where a structural conflict of interest exists to accord with the Supreme Court’s recent ruling in MetLife v. Glenn. In a well reasoned and highly logical opinion, the court first acknowledged that its prior case law on the issue was no longer proper, in light of the Supreme Court’s ruling, because it had gone too far: the Second Circuit previously held that a structural conflict of interest meant that de novo review applied, even if the plan documents granted the administrator discretionary authority over benefit determinations, which normally invokes a deferential standard of court review. However, as the Second Circuit recognized, the Supreme Court’s ruling in Glenn meant that a structural conflict of interest could not be the basis for abandoning the deferential standard of review, but that, instead, it could only be considered as a factor to be weighed in applying the deferential standard to decide whether the administrator’s decision should be set aside as an abuse of discretion. Nothing controversial or particularly exciting there, as it reflects an accurate, almost verbatim reading of Glenn, although it is interesting to watch the way the Glenn decision, seen as one that broadens the protections available to plan participants, actually, in at least some instances such as this one in the Second Circuit, requires a lessening of the protections previously granted to participants in such jurisdictions in cases involving structural conflicts of interest. The Second Circuit previously allowed such a conflict to change the standard of review entirely, all the way back to a de novo review, which the Second Circuit, in its most recent ruling, now recognizes is not allowed under Glenn.
What is more interesting, though, is how the Second Circuit applied the new standard. By relying on the leeway the Supreme Court in Glenn granted courts to determine, based on the actual facts of the claim and the parties’ activities, how much weight to give to the conflict, the Second Circuit, in essence, applied what may as well have been de novo review to decide the case, only without putting such a label on it. Instead, accepting the Supreme Court’s invitation to review the actual facts of a particular case to decide how much weight to put on a conflict, the Second Circuit gave great weight - essentially outcome determinative weight - to the conflict, in a way that essentially mirrored de novo review.
The case is McCauley v. First Unum.
On the Scope of the Attorney Client Privilege In ERISA Litigation
This really isn’t an instance of logrolling (or blogrolling, as the case may be), I promise, even though Roy Harmon’s post that I am passing along here refers to me and my electronic discovery post a few times; the subject of Roy’s post got my attention and led me to read it long before I realized the peripheral role I played in it.
Roy provides a very erudite discussion of a particular quirk and issue of some real concern in litigating ERISA cases, which is the scope of the attorney client privilege that exists - or often doesn’t - between a plan’s fiduciaries and its legal counsel, when engaged in a dispute with a plan participant. As Roy details, there often is no privilege in that situation that would prevent disclosure to the plan participant of legal advice obtained by the plan fiduciary. Its an interesting problem, one that arises in everything from determining the contents of an administrative record to be produced in a benefits denial case (i.e., is legal advice received by the plan administrator in deciding to deny benefits privileged or not?) to the extent to which the privilege can be raised in defending a deposition in a breach of fiduciary duty case. Roy’s analogy to multi-level chess with regard to these issues is apt, and illustrative of exactly the type of complicated gamesmanship that keeps litigators interested in the otherwise often dull interstices between trials.
Electronic Discovery and the Federal Rules
Here is an excellent article on electronic discovery under the federal rules, and efforts to reduce the expense of this process by protecting against inadvertent waiver of privilege. As long time readers know, I have frequently criticized the structure and format of the federal rules, and their application by the courts, concerning electronic discovery, for the extraordinary burden and expense they impose on litigants. Moreover, I have focused on the fact that the major problem is that the scope of relevancy is very broad in discovery, which has not been too big a problem in traditional forms of discovery because the very nature of depositions, producing existing documents held in hard copy form, etc., puts some outside limits on the process and thus, on the expense. Electronic discovery, obviously, doesn’t have the benefit of being limited in this way by such simple physical restrictions of time and space; because the quantity of data that can and is stored is immense - and not as easily confined physically as, say, simply pulling all file folders at a client related to a particular transaction - the broad scope of relevancy, when applied to electronically stored information, can expand discovery obligations exponentially in comparison to traditional forms of discovery. For this reason, I have argued in the past that courts need to leave their past rubric for discovery (which basically consisted of the view that discovery is broad, the parties are expected to work most problems out among themselves, and court intervention is only warranted for outlier type issues) where it belongs, in the past, and create new approaches to dealing with electronic discovery, in which the courts - either pro-actively or in response to motion practice by the parties - attempt to focus electronic discovery in a manner that properly balances the importance of the documents in question with both the benefits of that discovery to the requesting party and the costs of that discovery. I am, sadly, still waiting for this to happen. The reason I like this article is its focus on the fact that electronic discovery is far too expensive, and that the latest attempt to target that problem is at best, a finger in the dyke approach, in that it just isn’t a lasting solution to the bigger problem. Moreover, the article rightly focuses on the construct that rests at the heart of the problem; the incompatibility of the historically broad definition of relevance applied in discovery with the amount of data now available in a technological society.
Litigators who read this blog already understand my obsession with this issue; while trying cases is the joy of the work, discovery - and fights over it - is the heavy lifting that takes up much of a litigator’s time and a client’s money. It’s a particular problem in ERISA cases, where any type of a plan with a significant number of participants is going to create a great deal of electronically stored data, almost none of it of relevance to any particular dispute yet still possibly open to discovery as things currently stand.
A Thanksgiving Week Feast
Some of the more prolific bloggers manage to be prolific by posting short notes on various topics of interest written by others, which isn’t my usual style. But over the past week or so I have managed to back up a good stack of things that I have wanted to talk about in detail, but haven’t had the time to comment on. So in the spirit of a Thanksgiving host laying out a big spread, here’s a whole bunch of things at once:
First, here is a good follow up story providing more detail on Wal-Mart’s success in defending itself against excessive fee litigation, a topic I first discussed in this post here. This particular story, in PlanAdvisor, does a nice job of illustrating the point I made in my earlier post, which is that the court, in ruling in favor of Wal-Mart, did not focus on or analyze the propriety of the particular fees themselves, but rather focused on the method used by the fiduciary to select the investment options in question and whether that was prudent. Interestingly, the article describes the Wal-Mart investment menu, and it reads like one you would find in just about any 401(k) plan. Does this suggest that most plans are actually fine on this front? Or might it suggest that fiduciaries as a whole accept fees that are too high, and that perhaps comparing a particular plan’s investment choices, such as Wal-Mart’s, against industry benchmarks is not really the right focus for deciding whether the fees in a particular plan were too high? Just asking.
Second, here’s one court’s answer to an oft asked question: is a plan participant seeking benefits entitled to attorney’s fees for the administrative appeal portion of his claim?
Third, here’s an interesting webinar rounding up the Supreme Court’s treatment of ERISA issues during the 2008 term. The Court’s fascination with ERISA during the past year has been well documented and the biggest item of discussion in ERISA related media, and pretty much everything about those developments has been chronicled on this blog and a million other places. But if you haven’t seen it all enough by now, the webinar may be for you. Interestingly, one of the topics noted in the webinar is the Court’s involvement in a case, still pending and not yet decided, concerning waivers by divorcing spouses of plan benefits. This is the quickly becoming infamous Kennedy case, which to date has caught the eye for two reasons: first, many people have some question as to why the Court took on this case and whether it merited the Court’s involvement, and second, because of the Court’s decision to seek supplemental, post-argument briefing on the very basic issue of the extent to which plan administrators are bound - barring an effective QDRO - to the express written terms of a plan. As a very experienced benefits consultant recently commented to me, the Court is going to upturn an awful lot of apple carts if, intentionally or even (probably by accident) implicitly, they indicate that administrators are not strictly controlled by the actual written terms of the plan instrument. As a result, a case that started out as perhaps the least substantively significant of the ERISA cases taken up by the Court in the past year threatens to become one of the more disruptive to settled practices, in a manner similar to how the Court reopened much settled thinking on fiduciary duty issues by indicating in LaRue that rules long established in the defined benefit context may not hold true for all other situations.
Okay, that clears some of the backlog.
LaRue, The Postscript
Remember the grave concern in different quarters about whether the Supreme Court’s ruling in LaRue would lead to a flood of litigation? Turns out it didn’t even do so in the LaRue case itself, which, now on remand at the trial court level, has been voluntarily dismissed by the plaintiff to avoid the expense of litigating the case. There’s your real check on excessive litigation: the costs of pursuing them. While ERISA grants a prevailing party the right to recover attorney’s fees, it is not a given that they will be awarded, particularly in a case, such as LaRue, where - as the multiplicity of opinions at the Supreme Court make clear - the law governing the issues in dispute is unsettled. Moreover, they are only awarded if you win; litigating a questionable case at significant expense risks large attorney’s fees that may never be recouped.
Of course, I guess all of this is just a back door argument for the outcome suggested by the opinion in Bendaoud discussed here: that the LaRue type cases are better structured as class actions than individual actions, for a variety of reasons, apparently including that litigating one small case is just plain not cost effective.
Does David Have to Pay Goliath if the Slingshot Misses Its Mark?
Fee shifting provisions, such as the one in the ERISA statute, that authorize a court to award attorney’s fees to a prevailing party, are facially neutral, and allow for an award in favor of the prevailing party, whomever that may be, and against the losing party, again whomever that may be. But should attorney’s fees be awarded to a large plan or administrator, such as a multimillion or billion dollar pension plan, from a plan participant who has lost a case seeking benefits that he or she believed was owed under the plan’s terms? In essence, does a facially neutral fee shifting statute really require David to pay Goliath?
The elements that are to be considered in ruling on an award of attorney’s fees under ERISA are, like the statute’s fee shifting provision itself, facially neutral; they do not presuppose that any particular type of party is more or less entitled to an award of attorney’s fees than any other party, nor that any particular type of party is entitled to protection against being hit with such an award. But the devil, as always, is in the details or, perhaps more accurately when, as in this case, broad open ended standards in the law are applied to a particular case, in the application of the standard to the concrete facts before the court. And as this case here, and Roy Harmon’s discussion of it shows, the application of those elements to this type of scenario tends to end up with a finding that the individual plan participant who has lost a case against a large plan does not have to pay attorney’s fees to the prevailing defendant.
Apples and Oranges: Litigation Costs and QDROs in the Same Post
A couple of different things from my desk today that are worth passing on.
First, for those of you interested - as I am and have often discussed in these electronic pages - in the need to balance effective litigation tactics with the costs of litigation, particularly given discovery and e-discovery issues, I pass along this article here, which I truly enjoyed. In many ways, it mirrors what I said in my own article on the subject, which you can find here.
Second, the Supreme Court delved back into the ERISA world yesterday with an argument on what, from a practical perspective, is a particularly vexing problem that bedevils plan administrators: namely, who is entitled to plan proceeds when a plan participant has divorced and thereafter a dispute arises as to who should rightly get plan proceeds after the parties thought they had negotiated resolution of the issue as part of the divorce proceedings? The prototypical circumstance, which seems straight out of television but actually happens all the time, is the death of a plan participant who changed the beneficiary, post- divorce, to a new boy or girlfriend, in ways that contradict the agreed division of property made as part of the divorce. For those of you interested in this question, here is a terrific article on the details of the particular case before the Court, and here is the Workplace Prof’s analysis of the argument yesterday before the Court. My own general sense of the case is that it really revolves around the question of whether ERISA’s QDRO provisions, which are directed at this issue, are to be strictly construed and treated as the only manner in which payments in accordance with the plan’s express terms and the operative beneficiary designation can be avoided, or whether, instead, the issue can be handled in a more loosey-goosey fashion that, even if the QDRO provisions aren’t technically satisfied, effectuates the apparent intent of the divorcing parties. Me, I am betting the Court's opinion ends up at the former.
On Backdating, ERISA, and the Possibly Unintended Consequences of the Diamond Hypothetical
If you have an interest in both ERISA and in well written, logical judicial opinions, I can’t recommend highly enough this opinion, by Judge Gertner of the United States District Court for Massachusetts, in Bendaoud v. Hodgson, deciding a number of issues at the motion to dismiss stage. I have a trial starting on Monday, so, unfortunately, I can’t delve as deeply today into the range of issues the opinion discusses and that warrant comment as I would like, but a few issues are worth commenting on right off the bat, even in the limited time I have today.
First, I have discussed before the trend, which others are recognizing as well, of ERISA replacing securities law as a preferred structure for attacking stock drop and similar stock related manipulation type cases. Judge Gertner comes as close as anyone has to demonstrating in her opinion why this state of affairs has come to pass, in her analysis of standing and the question of whether the plaintiff, since he sold his stock holdings in the company plan before the stock manipulation in question came to light and drove down the stock price, could still show he suffered injury. The court found that the plaintiff could show injury by demonstrating that the alleged fiduciary breaches resulted in less profit than the plaintiff would have earned “had the funds been available for” other purposes than the investment made by the plaintiff. This is a pretty open damages theory, and not one as closely tied to the actual timing of disclosures and its impact on stock prices that the court recognizes would control the issue if it were more of a traditional stock manipulation securities action.
Second, the case raises questions about whether, after Justice Breyer’s famous diamond hypothetical in LaRue, a single plan participant can actually sue for losses to the plan anymore in defined contribution cases, if the diamond that was lost did not actually come from that participant’s account (or safe deposit box, in the terms of the hypothetical). The court suggests that such a plan participant may not seek recovery for the other plan members on his or her own, but that instead a class action structure may be required.
And finally, reading the court’s opinion and the analysis of the damages issue, I couldn’t help but think of the LA Times ESOP case that I discussed here and my thought that, regardless of the merits of that particular case, it certainly illustrated the risks of using ESOP held stock in corporate transactions, because the interests of those pursuing the transaction, while not by definition wrong in any way, may not line up perfectly with the best interests of the employees holding that stock in the ESOP, raising risks of breach of fiduciary duty. The damages analysis in Bendaoud goes right to this point; under that analysis, the issue is not whether the stock holding employees made out okay in the deal, but whether the ESOP assets would have been worth more had the stock been used in a different manner or different transaction. That analysis suggests a broad range of attacks on a complicated ESOP implicating transaction such as that in the LA Times case.
Recent Case Law on Extra-Administrative Discovery After Glenn
When people start emailing you to inquire about your health, you know you have been away from your blog too long. Rumors of my demise, however, were premature, as I was simply on vacation; normally I keep up with developments and am able to put up some posts while away, but I didn’t get a chance to this time. A number of interesting things did cross my desk while I was away, and a number of them I read remotely while out; I will try to pass along the more interesting pieces over the next few days.
For starters though, my colleague Patrick Spangler at Vedder Price in Chicago passed along a survey of some recent discovery rulings by the federal courts related to whether extra-administrative record discovery should be allowed in light of the Supreme Court’s ruling in MetLife v. Glenn. They find that such discovery is warranted under Glenn, but only if linked to the possibility of proving biased decision making. Patrick notes:
In Hogan-Cross v. Metropolitan Life Ins. Co., 2008 WL 2938056, at *3 (S.D.N.Y. July 31, 2008) the Southern District of New York compelled written discovery seeking information related to: (1) denial rates; and (2) the compensation structure for the claims representatives who evaluated the participant’s claim. However, the Southern District previously granted the participant’s motion to compel and simply confirmed its decision on Metlife’s motion to reconsider in light of Glenn, reasoning that the requests were appropriate under existing Second Circuit law and further supported by Glenn.
The Northern District of Texas reached a similar conclusion in Copus v. Life Ins. Co. of N.A., 2008 WL 2794807, at *1-2 (N.D. Tex. 2008). The court reasoned that a history of biased decisionmaking and steps taken by the administrator to reduce a conflict are relevant and should be considered under Glenn. Incorporating existing Fifth Circuit precedent, the Court allowed discovery on a variety of topics, including: (1) the selection of the claims reviewer; (2) steps taken by the administrator to reduce the conflict; (3) the compensation system for claims reviewers, and (4) any claims procedures or manuals.
The decisions are similar to Dubois, a case out of the United States District Court for Maine that I discussed previously, which addressed when such discovery is appropriate in light of Glenn and found, like these other two decisions, both that: (a) it is appropriate if necessary to evidence biased, conflicted decision making; and (b) existing circuit precedent on the issue was consistent with Glenn and could govern the question.
Using Up My Fifteen Seconds of Fame
Permalink | There were a lot of things on my desk I could post about today, but I am going to take the easy - and self-promoting - way out, and pass along this article from Massachusetts Lawyers Weekly on the W.R. Grace decision out of the First Circuit on the question of standing in ERISA cases, which I blogged about last week. I am quoted extensively in the article.
Notes for a Friday
Permalink | I thought I would pass along a couple of things of interest that I read this week, before next week starts up with its own events. Taking up where my comments on the status of extra-administrative record discovery in the aftermath of MetLife v. Glenn left off, Roy Harmon has this post on a Ninth Circuit decision pointing out that MetLife v. Glenn in fact expands the availability of such discovery. Meanwhile, Michael Fox (no, not that Michael Fox; see e.g. Reilly, “Hey, what's-your-name! I love you”), really one of the founding fathers of employment law blogging, has nice things to say about the Boston ERISA and Insurance Litigation blog, along with a useful list of blogs worth reading that cover the employment law field. And finally for today, the WorkPlace Prof passes along an entertaining essay on the three competing decisions in the LaRue case, which provides a humorous take on an issue that I talked about here, concerning the differing approaches of each opinion to the problems raised by the LaRue case.
That’s plenty to read on Friday.
Some More Thoughts on the Primacy of the ERISA Plan Document
Permalink | Judge Gertner of the United States District Court for the District of Massachusetts has an interesting, if brief, ruling that is just out granting a motion to dismiss a severance pay claim under an ERISA governed plan. What caught my eye about it relates back to this post I wrote a few weeks ago, in which I pointed out the need, in litigation planning and counseling concerning ERISA plans, to resist putting undue emphasis on representations that are inconsistent with the actual terms of a plan, because the courts are likely to ignore such statements and to instead simply enforce what is written in the plan documents. The court’s opinion is another example of the trend in the case law in this direction. Although the court was not delving too deeply into this particular issue, the court noted that “in more recent cases, the First Circuit has held that courts should not look beyond the express terms of an ERISA-regulated plan unless the disputed term is ambiguous,” and that “[i]n ERISA cases . . . the central issue must always be what the plan promised . . . and whether the plan delivered." As I said before, any litigation strategy for an ERISA benefits case has to start with the terms of the plan, and not with extrinsic statements or evidence related to the plan’s terms or interpretation. The case is Walsh v. Bank of America Corporate Severance Program.
What Effect Does MetLife v. Glenn Have on Discovery in Denial of Benefit Claims?
Permalink | Apparently none, at least according to the first ruling on this question I have seen out of a court in the First Circuit. In a ruling by a magistrate judge, the United States District Court for the District of Maine has concluded that MetLife v. Glenn does not change the rules in the First Circuit governing the extent to which - if at all - a party is allowed to conduct discovery beyond the administrative record itself in a denied benefits case governed by the arbitrary and capricious standard of review. The court found that MetLife is not a discovery ruling, and posits only that, on a case by case basis, a structural conflict of interest may be determined to impact the outcome. The court found that as a result, whether to allow discovery into any prejudice caused by the conflict of interest is likewise to be determined on a case by case basis, and to only be allowed upon a showing by the claimant that discovery into the subject is justified under the circumstances of the particular case at bar; the court specifically found that discovery beyond the administrative record was not allowed in general and as of right, simply because of MetLife. Interestingly, the court found that this is entirely consistent with the existing standards in the First Circuit governing when discovery beyond the administrative record can be allowed- standards which have existed since long before MetLife was decided - and the court is correct on this.
However, to the extent that the case may suggest that a bulwark can be maintained against the expansion of discovery in ERISA cases involving structural conflict of interests, I doubt it should be read in that way, or that the judge intended that. First, certainly MetLife, to mean anything, will over time have to be interpreted as allowing discovery to some extent into whether the conflict played a role, what role it played, and whether it should factor into the court’s review (and if so, in what manner). Otherwise, the decision really doesn’t grant claimants any significant opportunity to prove that the type of conflict at issue in MetLife should affect the outcome of a particular case. Second, the real question, and upcoming battleground, then, is what impact MetLife should be interpreted to have with regard to discovery. The answer, I think, is in line with the magistrate judge’s reasoning and matches up, as the judge suggested, perfectly with current First Circuit law on extra-administrative record discovery, which generally posits that a claimant has to show some really good reason to warrant such discovery. This standard would apply perfectly to cases involving structural conflicts of interest, by requiring that claimants establish a valid reason (perhaps based on discrepancies in the administrative record, or other facts that would at least imply that the conflicted status may have played a role in the benefit determination) that justifies further discovery into the effect of the conflict and justifies a particular scope of discovery. This would be consistent with MetLife, while simultaneously preventing denial of benefit cases from being transformed into the type of overpriced discovery heavy cases that, one, burden much of the rest of civil litigation, and, two, courts have long sought to prevent ERISA cases from being transformed into.
I could write all day on the interplay of ERISA discovery, current standards governing it, and MetLife, but for now, I’d best stop there. If time allows, perhaps I will return to the topic in still more detail in another post.
A Middle of the Road Supreme Court?
Permalink | Here is an interesting article in which a former Solicitor General argues that the popular - and perhaps a little bit intellectually lazy - characterization of the current Supreme Court as “pro-business” may, at a minimum, be overstating the case a bit. Certainly, the ERISA rulings out of the Court this past term were hardly pro-employer or pro-business community, as both LaRue and MetLife v. Glenn weakened the defenses of plan sponsors and administrators and, at least in the case of LaRue, opened up new lines of potential liability. It is hard to argue that these rulings were pro-business at all, except perhaps from the perspective of those critics who felt that the Court actually didn’t go far enough in favor of claimants in its opinion in MetLife and should have instead drastically altered the nature of the standard of review applicable to cases presenting the circumstances at issue in that case, something the Court certainly did not do in its opinion. In that sense, with regard to the ERISA rulings, it would be much fairer to characterize the Court rulings as moderate and middle of the road, than as anything else.
Promises, Promises . . .
Permalink | Rob Hoskins over at the always interesting ERISABoard has an interesting story about a Second Circuit decision that essentially says “too bad” to a plan participant’s waiver/estoppel theory seeking benefits. The story is consistent with what seems to be a trend in which courts frequently fall back to the terms of the actual plan to decide a dispute, and seem unwilling to allow extrinsic, often but not always verbal, representations to participants to vary or even trump the written terms of the plan documents themselves. My own practice when it comes to participants who have been told one thing by a company representative and want to litigate the benefits they are entitled to as a result is to generally say that, yes, we can make that argument, but we will be a lot better off relying on the plan terms themselves and not on any sort of representation that might be to the contrary. It’s a platitude, to a certain extent, I know, but if you start from that premise, you will more often than not get the right strategy when mapping out litigation in cases in which representations were made that may have been contrary to the plan terms. To paraphrase that old handyman saw of “measure twice, cut once,” the way to think about these types of problems is plan terms first, estoppel claims second.
On Intoxication and Accidental Death and Dismemberment Policies
Permalink | I wrote a long time back about Stamp v. MetLife, a decision out of the United States District Court for Rhode Island on a particular, oft litigated, and unfortunately frequently repeated fact pattern: namely, whether an unwitnessed automobile accident causing death of an apparently intoxicated driver constituted an accident for purposes of ERISA governed accidental death policies. The First Circuit has now entered its opinion in that case, finding, consistent with what appears to be almost every other federal court to weigh in on the issue, that an administrator can rightly deny benefits for such a death on the ground that the evidence of intoxication indicates that the death should not be deemed an accident for purposes of an accidental death and dismemberment policy governed by ERISA. For those of you not in the know on this issue, such policies limit benefits to deaths caused by accident, and this body of case law supports an administrator’s denial of benefits on the ground that the death was not an accident when the evidence supports the conclusion that the deceased was operating under the influence at the time of death.
There are a few things of interest about the opinion that warrant further reading. In the first instance, the case lays out the proper manner by which a court should consider an administrator’s review of this particular type of scenario, and what type of discretion is granted to that review. Second, there is a nice paragraph summarizing what the First Circuit deems to be a developing federal common law granting an administrator the ability to deny such claims despite the lack of any definitive, eyewitness evidence as to whether the intoxication was actually the cause of the automobile accident and the resulting death. And finally, and of import to ERISA practitioners who may care not one wit for the law governing the application of accidental death policies to cases of driving under the influence, the court weighs in with what I believe is the First Circuit’s first application of MetLife v. Glenn to the question of conflicts of interest by an administrator.
A Brief List of Things Worth Reading
Permalink | Even when trying cases, I have never had a week so busy since launching the blog that I haven’t been able to find time to post. David Rossmiller likes to say that work is the curse of the blogging class, but even when really busy, I have always found writing up a blog post to be a nice chance to recharge my batteries. So for those of you looking for something ERISA related to read on this upcoming summer weekend, I thought I would at least pass along some of the more interesting things I have been reading this week. These include: Kevin LaCroix’s latest post summing up the status of all of the subprime related lawsuits filed around the country’s courthouses, including two new cases brought under ERISA alleging breach of fiduciary duty as a result of subprime related exposures; the Workplace Prof’s series of posts on, in order, the Supreme Court’s request for the government’s view on a cash balance plan issue, the Ninth Circuit’s view that a disability benefit plan claim can be denied if the claimant does not cooperate with investigation of the claim to the extent required by the plan’s terms, and on recent appellate authority on the effectiveness - or ineffectiveness - of particular approaches to delegating discretionary authority to administrators; and the Florida Appellate Blog’s post on an Eleventh Circuit decision finding that an administrator did not have to provide a copy of an IME report to a claimant prior to conclusion of the internal appeal procedure.
Two More ERISA Cases for the Supreme Court?
Permalink | The good folks who write the SCOTUS blog are engaged in one of their periodic attempts to read the tea leaves and predict what cases the Supreme Court will choose to hear. This time, they think the Court will review two ERISA cases, Geddes v. United Staffing - which concerns the standard of review to be applied to benefit determinations when fiduciary duties are delegated to a non-fiduciary - and Amschwand v. Spherion Corp., which presents an opportunity to clarify when monetary awards for breaches of fiduciary duty can qualify as equitable relief actionable under ERISA. If the Court hears both cases, we will see a continuation of the trend of the Court focusing on and likely reframing the course of ERISA litigation. Geddes provides not just an opportunity to understand the impact of delegation to third party administrators, and to open up for further development some of the unsettled issues in that realm, but also an opportunity, on the heels of whatever the Court decides in the currently pending MetLife v. Glenn case, to alter the settled understandings of when and how to apply the differing standards of review that apply in benefit cases. Amschwand, in turn, presents the Court with an opportunity to address a very technical and specific question, but one that continues to bedevil courts and litigants, namely the question of what types of claims for monetary recovery can proceed, under current Supreme Court jurisprudence, as claims for equitable relief under ERISA. Of note, the Solicitor General’s office, in recommending that the Court accept review of that case, seems to emphasize a need to broaden the range of theories that can be brought as equitable relief claims under ERISA so as to ensure an acceptable range of remedies and recourse to aggrieved plan participants, a proposition that many who favor broader remedies might not have expected to be forwarded by the administration’s legal team.
On Discovery Problems and Solutions
Permalink | Here’s an interesting law review article, passed along in detail by the Workplace Prof, on problems, and potential solutions, in managing discovery. Discovery, to beat what must now be a dead horse, has become infinitely more complicated and expensive - with far more consequences for mistakes - in any type of complex litigation with the adoption of the federal rules governing electronic discovery (and in fact with the rise of computerized data itself). Regular readers know that I have argued before in this space that the courts need to develop a jurisprudence that analyzes the need for and cost of electronic discovery - which can often involve massive amounts of computer generated and/or stored data - in much greater depth than the more superficial analysis of discovery disputes that has historically been the norm: in essence, courts should engage in a more searching inquiry into disputes over electronic discovery, given their costs and how much of such data is likely to be irrelevant in any given case, before granting extensive discovery into electronically stored data. At a minimum, there should be a degree of inquiry that, even if it won’t allow conclusive enough findings to decide to outright not allow such discovery, will still allow an intelligent, reasoned limitation on exactly what the scope of that discovery should be. I would argue that, in cases that warrant it, it would even be appropriate to hold a mini-trial type proceeding, maybe of two or three witnesses, and then to rule on to what extent such discovery is warranted. This approach would be a far cry from how courts have traditionally addressed discovery disputes, but, as the article suggests, it is past time for the courts to begin applying a more systemic and in-depth approach to controlling discovery.
This is particularly important in the areas covered by this blog, ERISA litigation and insurance coverage litigation, where computerized data, communications and information processing, is almost literally the coin of the realm. Electronic discovery is therefore truly a major cost-driver and risk factor in these areas of the law. The development, at the boots on the ground level of magistrate judges (to whom discovery disputes are often assigned), special discovery masters and trial judges, of the law of electronic discovery provides an opening for courts to really address these issues, in the manner suggested by the article and with fresh eyes, and its an opportunity that should be taken advantage of, one that calls for curiosity, innovation and reasoned experimentation. I will give you one example, to make my point. One of my partners was recently handling a massive, multi-party litigation, in which there were numerous interrelated legal and factual issues, some of which may be outcome determinative. Rather than engage in the traditional approach of years of discovery with only minimal court oversight, followed by summary judgment motions, the court instead ordered some discovery, followed by summary judgment motions on the key potentially outcome determinative legal issues, followed by, if any party believed further discovery was needed to resolve those issues, the filing of Rule 56(f) affidavits to justify such discovery; the court would then decide what further discovery would be allowed before it would rule on the legal issues. The end result was order out of what otherwise could have been chaos, and a case that stayed on track towards resolution. It’s a good example of a court proactively using existing procedural tools to narrow the issues, and decide on what issues further and potentially expensive discovery is actually needed. This appears to be exactly the type of use of existing procedural tools and focus on the timing of discovery that the article's author is advocating as the means to improve discovery.
Some Quirks About QDROs
Permalink | Wow, QDROs (otherwise known as qualified domestic relations orders) are all the rage these days, aren’t they? QDROs concern the intersection of divorce/family law and ERISA governed benefit plans, in particular retirement plans. As a general rule, a QDRO is a court order in a state divorce proceeding that, if it meets certain requirements, has the effect of controlling dispersal of the ERISA governed plan benefits, benefits which, in the absence of such an order, would simply be paid according to the express terms of the ERISA governed plan itself.
The First Circuit just got into the act at the end of last week, with a detailed ruling on the collision of QDROs, retirement benefits, divorce proceedings, and jurisdictional issues. To me, the most interesting aspect of the case concerns the court’s discussion of the power of the state probate court to resolve this issue, and the court’s suggestion that a parallel, but separate, federal action over the enforcement and interpretation of a QDRO is, at a minimum, not an approach the court favors. Rather, the First Circuit emphasized that the state probate court has jurisdiction to determine whether a particular order qualifies as a QDRO and to thereafter enforce it, and that this particular issue does not have to be severed off from a particular probate court/divorce action and brought to federal court. The operative words of the court were:
Geiger [the party complaining about the QDRO] argues that state courts do not have jurisdiction to determine whether domestic relations orders are QDROs . . .Geiger cites no cases in support of his position. Instead he relies on what he calls the "unambiguous language" of ERISA, specifically, 29 U.S.C. § 1132(e)(1), which provides that federal courts "have exclusive jurisdiction over civil actions under this subchapter brought by a . . . participant," with the exception that state courts have concurrent jurisdiction over actions brought to recover benefits or enforce or clarify rights under a plan. 29 U.S.C. § 1132(a)(1)(B). In Geiger's view, this is the beginning and the end of the inquiry. His view, however, has been rejected by several courts. See e.g., Scales v. Gen. Motors Corp., 275 F. Supp. 2d 871, 876-77 (E.D. Mich. 2003) ("[S]tate courts have concurrent jurisdiction regarding the interpretation of QDROs . . . and are fully competent to adjudicate whether their own orders are QDROs."); In re Marriage of Oddino, 939 P.2d 1266, 1272 (Cal. 1997)(action to qualify domestic relations order is an action to "obtain or clarify benefits claimed under the terms of a plan," and thus within state courts' jurisdiction); Robson v. Elec. Contractors Ass'n Local 134, 727 N.E.2d 692, 697 (Ill. App. Ct. 1999) ("[S]tate and federal courts have concurrent subject matter jurisdiction to construe the ERISA provisions relating to a QDRO . . . ."); Eller v. Bolton, 895 A.2d 382, 393 n.6 (Md. App. 2006) ("State and federal courts have concurrent jurisdiction to review a plan's qualification of a state domestic relations order . . . .").
Geiger acknowledges the one-sidedness of the caselaw, but argues that the rationale set forth by those decisions both violates ERISA's plain language and is "logically senseless." We do not agree. In our view, it is significant that Congress has expressly exempted QDROs from ERISA's general preemption of state law. 29 U.S.C. 1144(b)(7). We are further persuaded that, "separate litigation of the QDRO issue in federal court presents the potential for an expensive and time-consuming course of parallel litigation . . . in the two court systems." Oddino, 929 P.2d at 1274-75. And finally, we share the view of the Oddino court that: Congress, having given state courts the power to issue orders determining and dividing marital rights in retirement plans, would require a separate federal court proceeding to decide whether the order is a QDRO. This would cause undue hardship, expense and delay to the affected party, and impose an unnecessary workload on already overburdened federal courts.
The case is Geiger v. Foley Hoag LLP Retirement Plan, and you can find it here. And you can find S. COTUS’ take on another central aspect of the case - various federal abstention and civil procedure issues - here, at Appellate Law & Practice.
Choosing a Defendant in ERISA Litigation
Permalink | In the First Circuit, the proper party defendant in an action concerning ERISA benefits is the party that controls administration of the plan; in other circuits, that’s not so plain. The question to which this is the answer is, who do you sue to recover benefits due under an ERISA governed plan. Here’s a timely and useful law review article, courtesy of the Workplace Prof blog, that provides a more lengthy and detailed answer to this particular question.
A Blog to Pass Along, and Some Thoughts About the Supreme Court's Interest in ERISA
Permalink | Lots going on, lots to talk about. Let’s start with this one, which, coincidentally, allows me to kill two birds with one stone. You may recall that some time back I mentioned that I had come across two interesting blogs that I wanted to pass along, one of which was The Float, covering primarily investment related issues and their intersection with ERISA. I mentioned I would pass along the other blog in a subsequent post, which, almost inevitably since I had promised to do so, I never did, as breaking news and a pending trial shunted it to the side. Well, that other blog is this one, Benefits Biz blog, by the benefits and executive compensation lawyers at Baker & Daniels, which I have found to be a consistently interesting read. Moreover, I return to it today to pass that link along because of a very interesting post they have concerning a case that the Supreme Court has now elected not to add to its docket, concerning the relationship of age discrimination laws and employer provided health insurance benefits. As many already know and as I have discussed in the past here on this blog, the Supreme Court has shown a continuing interest in all things ERISA, with three cases either already decided or added recently to its docket. The Supreme Court’s lack of interest in this particular case perhaps hints - I am reading tea leaves here now, in the august tradition of Kremlinologists and other students of secretive institutions - at the outer limits of the Court’s interest in the subject of ERISA. The cases accepted for review to date by the Court emphasize litigation issues and, in particular, the effect of the evolution of retirement benefits from pensions to 401(k) plans on the litigation environment. This is not a fair reading of the case passed on by the Court that the Baker & Daniels’ lawyers discuss in their post; we may be able to infer that if you want to attract the Court’s interest in an ERISA case right now, you better make it about litigation and defined contribution type plans.
Alienation of ERISA Governed Benefits
Permalink | I’ve had an interesting collection of educational materials and seminars piling up on my desk for awhile now, a number of which may be of interest to various readers of this blog. In the hope of both clearing up that backlog and passing along useful information, I am going to start a short series of - or maybe a series of short - blog posts on them, until they are exhausted. I expect I won’t run through them all seriatim, as I suspect breaking news or new court decisions will interpose themselves, but we will see.
The first one I wanted to pass along is something you can blame the Workplace Prof for, whom I have fingered in the past as the filter I use to screen law review articles and decide which ones might be worth reading. Some of you know from past posts that I don’t put a lot of stock in most law review publications, but some fit my criteria for being useful, which revolves heavily around whether they break any new ground in an area or manner that makes them useful to courts and practitioners. This one here, a 142 page analysis of when ERISA governed benefits can be transferred to anyone other than the participant or the participant’s selected beneficiary, fits this criteria to a tee. The Workplace Prof passed along the abstract of the article a little while back, which is:
This Article argues that a beneficiary designation made by a participant pursuant to the terms of an ERISA plan determines who is entitled to survivor benefits from that plan. Such designation may not be superseded by
(A) an agreement made in a marital dissolution or separation whereby a participant promises to make or retain a different designation (such agreements are not qualified domestic relations orders, "QDROs," because QDROs are limited to orders directed not at participants but at ERISA plans);
(B) an agreement made in a marital dissolution or separation whereby a participant's former or separated spouse "relinquishes" any interest in the participant's ERISA plan benefits; or
(c) a state law or federal common-law principle whereby killers of a participant are deprived of the entitlement to the participant's survivor benefits from an ERISA plan.
ERISA pension plans must incorporate the only two ERISA required beneficiary designations, QDROs and spousal survivor benefit designations. Neither statutory designation applies to an ERISA plan that is not a pension plan, such as a life insurance or disability plan. Thus, neither statutory designation may supersede a beneficiary designation made pursuant to the explicit terms of an ERISA life insurance or disability plan.
ERISA voids both (A) a direct benefit claim against an ERISA plan that is not based on a designation that was made pursuant to the terms of the plan, and (B) an indirect benefit claim against the recipient of plan benefits that is not based on a designation that was made pursuant to the terms of the plan.
What jumped out at me from the article itself is the author’s discussion of the application and impact of Qualified Domestic Relations Orders (known in common parlance as QDROs), which can supercede a participant’s designation of the party to whom plan benefits should be paid. The author gives QDROs a far narrower scope of application and power under ERISA than it appears to me courts have been giving to them, and in fact his position on their impact runs counter to what appears to me to be the trend at the trial level in the federal system in applying QDROs. He makes a fascinating and well-supported argument, although at this point, I reserve judgment on the ultimate issue he raises, of exactly how QDROs should be understood under ERISA. At a minimum, however, for anyone arguing the point in a case, there is a wealth of information in the article, as well as support for arguments that a party might make in court over that issue.
The Recent History of Subprime Litigation
Permalink | Kevin LaCroix, at his D&O Diary blog, has a tremendous history of the recent filing of subprime litigation, including class actions, many filed under ERISA. While I don’t necessarily agree with each of his interpretations of that history, it’s as good an overview of the subject as a whole that I have seen in any media. Perhaps my primary point of departure from his presentation would concern his view that these cases are very different from other types of class action litigation, such as the stock drop cases, that are often criticized as lawyer-driven suits warranting reform, because these are cases instead being brought by “very large institutions [who are] suing other very large institutions.” Perhaps, and certainly to some extent, but there is also an aspect to at least some of these cases that reflect that the class action bar has, for reasons of legal developments, public sentiment, and the winds of politics, moved towards using ERISA in circumstances where they would have previously used the securities laws, as well as towards the representation of large retirement plans, rather than individuals, as plaintiffs.
Two for the Price of One: An Excellent District Court Ruling Worth Reading, and More on the First Circuit's Decision in Gillis
Permalink | A couple of notes on cases today. Before the holidays, I posted about the First Circuit’s decision in Gillis, concerning an administrator’s discretion in calculating possible pension payments and how the discretionary authority granted to the administrator drove the conclusion that a challenge to the pension calculations would not be upheld in the courts. Suzanne Wynn, who writes on pension plan issues at her Pension Protection Act blog, has this very detailed analysis now of the issues concerning cash balance conversions that were at play in Gillis, for those of you looking for more information on that aspect of the case.
In addition, in the little window of time between the first holiday weekend of Christmas and the second holiday weekend of the New Year, Judge Woodlock of the United States District Court for the District of Massachusetts issued a very comprehensive and detailed opinion in the case of Island View Residential Treatment Center, Inc. v. Blue Cross Blue Shield of Massachusetts, which basically reads as a mini-treatise on a number of interesting issues arising in ERISA litigation. In the opinion, the judge covers, among other topics: standing to bring an ERISA claim; the application of federal common law to ERISA disputes; the statute of limitations applicable to ERISA disputes; exhaustion of administrative remedies; and the standard of review. Of particular note with regard to the standard of review, the judge presents the current status of the law in the First Circuit concerning so-called structural conflict of interests, which I have discussed many times on this blog, most recently in my post yesterday, and identifies the internal debate in the circuit over whether the law on that issue should be revised, a bone of contention in the circuit that I also noted before, in my post yesterday. Judge Woodlock comments that it appears the First Circuit may be waiting for possible guidance from the Supreme Court in the case of MetLife v. Gillis, discussed in yesterday's post, before venturing into that issue. And finally with regard to the Island View case, I think, in a blogger’s version of professional courtesy, I would be remiss if I did not mention that one of the parties to the case was represented by fellow law blogger Brian King out of Utah, who blogs on ERISA issues - from what is probably a decidedly more participant oriented perspective than my own - at his excellent ERISA Law Blog.
The First Circuit on an Administrator's Discretion in Determining the Amount of Retirement Benefits
Permalink | Oddly, this appears to be “calculating benefits” week among the courts of the First Circuit. In addition to the LeBlanc case I discussed in the last post, the First Circuit just ruled on a case involving a challenge to the calculation of pension benefits. Just as in the LeBlanc case, where a district court found that the method of calculation would stand because the administrator had discretion in conducting that effort under the terms of the plan and the calculation method was reasonable, so too does the First Circuit conclude, in Gillis v SPX Corporation, that the administrator’s determination of certain factors in calculating retirement benefits would not be overturned because the administrator had discretion and the determinations made were reasonable given the plan’s terms and purposes.
Appellate Law & Practice, who chronicle all rulings out of the First Circuit regardless of topic, has this somewhat more tongue in cheek take on the case here. While the Gillis case, as the Appellate Law & Practice post reflects, concerns certain issues beyond just the reasonableness of the calculation approach, there isn’t much to the court’s analysis of those issues; the real take away is in the requirement of reasonableness in the calculation activity, and then proceeding from there, the court finds, without too much in-depth analysis of the issues, that the other issues raised by the participant simply don’t support a challenge to that reasonable approach to calculation that was applied by the administrator.
When Can You Sue an Employer for Denial of ERISA Governed Benefits?
Permalink | Interesting case out of the United States District Court for the District of Maine the other day, concerning a challenge by a plan participant to how his long term disability payments were calculated. The court essentially found that, since deferential review applied, the administrator’s calculation method could not be challenged, since it was a reasonable approach given the plan’s terms and the evidence. Of more interest, however, was the court’s nice thumbnail approach to the question of when an employer, who has delegated plan operation and decision making to an outside administrator - in the case at bar, the insurer of the long term disability benefits - can be properly named as a defendant in a claim for benefits. The court’s answer is generally never, unless the employer inserted itself into the actual administration and decision making over the claim. The court’s handy-dandy summary, suitable for inclusion in a parenthetical in the brief of your choice, is:
[T]he proper defendant for a denial of benefits claim is "the party that controls administration of the plan." Terry v. Bayer Corp., 145 F.3d 28, 36 (1st Cir. 1998) (quoting Garren v. John Hancock Mut. Life Ins. Co., 114 F.3d 186, 187 (11th Cir. 1997)). Typically, an employer is not the proper defendant when the plan documents name another entity as the plan administrator or claims fiduciary. Kennard v. Unum Life Ins. Co., 2002 U.S. Dist. LEXIS 4467, 2002 WL 412067, *2 (D. Me. March 14, 2002). Here, the Plan names Guardian Life as the "Claims Fiduciary with discretionary authority to determine eligibility for [long-term disability] benefits and to construe the terms of the plan with respect to claims." The Plan expressly states that Guardian Life decides whether a claimant is eligible for disability insurance, whether a claimant meets the requirements for payment of benefits, and what long-term benefits will be paid by the Plan. Guardian Life also disburses the long-term benefits. The courts have developed an exception to the rule that the plan administrator is the proper defendant in instances in which the plaintiff presents evidence that the employer, although not formally identified as the plan administrator, "controlled or influenced the administration of the plan." Beegan v. Associated Press, 43 F. Supp.2d 70, 73-74 (D. Me. 1999) (listing cases); Law v. Ernst & Young, 956 F.2d 364, 372-73 (1st Cir. 1992) ("[U]nless an employer is shown to control administration of a plan, it is not a proper party defendant in an action concerning benefits.") (quoting Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir. 1988)).
The case is LeBlanc v. Sullivan Tire Company.
More on that Grand Irony Theory
Permalink | Does the fact pattern below allow for a remedy under ERISA, particularly as the Sereboff/equitable relief line of cases has been interpreted in the First Circuit to date?
The plaintiff employee says that she purchased a life insurance policy on her husband through her employer's group coverage. When her husband was dying, she resigned her employment to care for him. She asked her employer for the proper forms to convert the group life insurance coverage to individual coverage, as she was entitled to do. Her employer refused or failed to provide the forms despite several in-person and telephone requests. In the meantime, the time for conversion (31 days) expired, her husband died, and now the life insurance company has denied her any benefits.
The United States District Court for the District of Maine just found in the case of Mitchell v. Emeritus Management that the fact pattern does not support a cause of action under any of ERISA’s remedial rights - for breach of fiduciary duty, for denied benefits and for equitable relief - available to a plan participant, a situation the court found “very troubling.” The court found that: (1) the participant could not recover the insurance benefits by means of an action for equitable relief because it was truly a claim for payment of the benefits at issue, rather than for equitable relief; and (2) the participant could not recover the proceeds on a claim seeking benefits because, under the facts at issue, there was no right to life insurance proceeds under the actual plan terms since there was no timely conversion, and therefore the administrator did not act arbitrarily and capriciously in denying the claim.
I guess two things jump out at me. One, the court rightly acknowledged that this result flows from the fact that ERISA simply leaves some harms incapable of remediation, something that is understood to have simply been part of the balancing act engaged in by Congress in enacting the statute, in which a decision was made to grant only limited rights of recovery in exchange for enacting a statute that would encourage the creation of employee benefits. Second, however, and at the same time, I think this is more what the Workplace Prof had in mind last month when he complained about what he considers the “grand irony” of ERISA, that a statute intended to protect employees can end up depriving them of a remedy, than was the case of the Wal-Mart equitable lien, that I discussed here, in which the Prof proffered the “grand irony” thesis, one which I took issue with in the context of that particular case.
Suicide Exclusions Under ERISA Plans, and the Impact, If Any, of the Standard of Review
Permalink | There’s an interesting, if brief, ERISA case out of the United States District Court for the District of Massachusetts decided last week that enforced a suicide exclusion in an employer provided supplemental life insurance program. The court found that the evidence in the administrative record supported the administrator’s determination that the employee had committed suicide within two years of electing the coverage, and that the benefits were therefore not available because the plan excluded death by suicide in the first two years of coverage. The case itself is not very noteworthy, other than to the parties themselves of course, except for one thing that jumped out at me. Many critics of the current legal regime under ERISA complain that the arbitrary and capricious standard of review that applies to cases, such as this one, where the administrator retains discretion to interpret and apply the plan, terribly distorts the outcome of cases in ways unfair to claimants. I have argued before that I am not convinced that, in the vast overwhelming majority of cases, this is true at all. Rather, most of the time, the same administrative record that would justify upholding a denial under the arbitrary and capricious standard on the theory that the administrator’s decision is reasonable given the evidence in the record, also contains enough evidence to prove the administrator correct under a de novo standard of review, where the court makes its own independent determination of the claimant’s entitlement to benefits. This case illustrates that point yet again: while the court upheld the ruling while applying the arbitrary and capricious standard, the evidence detailed in the opinion should have led to the exact same result even if the issue were considered de novo or the case treated as simply a breach of contract case under standard common law governing contracts. Indeed, in my other hat as an insurance coverage litigator, it seems clear to me that the result here, on the evidence detailed in the opinion, would have been the same even if this policy was not controlled by ERISA and was instead simply a private contract of insurance between the deceased and the insurance company; the policy language and the facts would have led to a finding of no coverage even if litigated as an insurance coverage, rather than an ERISA, case. The case is Keiffer v. Shaw Group, and you can find it here.
Simply Put, Drunk Driving Doesn't Happen By Accident
Permalink | Turns out that the key word in the accidental death and dismemberment insurance that many people get through their employers (and which is therefore an ERISA governed benefit) is “accidental.” The United States District Court for the District of Massachusetts has an interesting opinion out that details the applicable standards for determining whether a particular death is accidental for these purposes, and finding that an insured’s death after driving while intoxicated does not qualify. This issue comes up a lot, unfortunately, and I have talked about it before here and here. The newest decision out of Massachusetts on this topic, McGillivray v. Life Insurance Company of North America, is an interesting example of this type of case, and reflects two particular points: first, the continuing influence in this area of the law of the First Circuit’s 1990 decision in Wickman v. Northwestern National Ins. Co., which laid out the standards for determining if a particular death is accidental for these purposes; and second, that the weight of authority is running heavily towards a general rule that deaths arising from automobile accidents in which the employee was intoxicated simply do not constitute accidents for these purposes and are not covered.
In truth, it is fair to say that we have reached the point that (although the courts never come right out and say this) there is, in effect, essentially a rebuttable - and if that, just barely - presumption that an intoxicated employee who dies in a drunk driving accident is not covered under these policies. The standard test, crafted in the Wickman case, that courts apply to determine whether or not a particular death was an accident for these purposes, when applied to the typical facts of these type of cases, simply leads inexorably to a loss of coverage.
I remember being dressed down in a first year law school class on torts for suggesting - apparently contrary to the professor’s belief - that a particular rule of recovery should be shifted so as to sanction the driver who engages in the socially disapproved activity - such as intoxication - in favor of the other driver. Twenty years later, the courts seem to be saying the same thing I said, essentially taking the intoxicated driver out of the range of those who can be covered under accidental death and dismemberment policies.
The case, by the way, is also interesting for a number of other reasons that warrant giving it a quick read, including not least its analysis of whether statistical studies concerning the likely outcome of drunk driving should be considered and, if so, the weight to give them. Beyond that, this is another case that contradicts a particular chestnut held by many, which is the belief that the standard of review applied in ERISA cases is the be all and end all; I don’t hold with this thesis, and believe that the facts of the administrator’s handling of a particular claim are much more likely to dictate the outcome of a case, without regard to which particular standard of review a particular court applies to a case. In a footnote that I particularly enjoyed, the court commented that “In all candor, the Court must note that even if it were to apply a de novo standard rather than an ‘arbitrary and capricious’ standard, the Court, applying the Wickman test, would find that Mr. McGillivray's death was not the result of an ‘accident.’"
How an Administrator Can Lose The Right To An Offset
Permalink | This is actually a kind of fascinating, if someone odd, long term disability benefits case out of the United States District Court for the District of Massachusetts. It involves what otherwise would seem to be a remarkably unnoteworthy issue, namely the right of the plan administrator - an insurer who also administered the plan - to offset from the benefit amount the estimated value of social security benefits that the claimant would have received but for the fact that the claimant never applied for them. Seems pretty straightforward, except the court did not allow the insurer to do so, because the insurer did not provide the claimant with assistance in applying for social security benefits as provided for under the plan’s terms. The court found that the insurer could not simultaneously enforce the social security offset provision while not complying with its own obligations under the plan to assist the claimant in seeking social security, and the court proceeded to find that loss of the right to enforce the offset was an appropriate remedy for this violation of the plan terms. Offsets of this ilk are routine, and while claimants often complain about them and try to avoid them, they are normally enforced without any big uproar. Not so here, where the insurer managed to lose the right to the offset. What is more interesting is the reasoning of the magistrate judge (whose recommendations were affirmed and adopted by the district court), which, despite application of the arbitrary and capricious standard of review - which would normally grant the insurer great discretion in the interpretation of the plan terms in question - found that the insurer’s own interpretation of the relevant plan terms was simply too far removed from any sensible reading of the plan terms to be upheld. In a realm of the law where many critics feel that the simple fact of applying the arbitrary and capricious standard of review is outcome determinative in favor of the administrator (a sentiment I don’t agree with and a thesis frequently disproved by court rulings), this is a relatively unusual event. The case is McCormick v. Metropolitan Life, and you can find it here.
What Critics of The Standard of Review In Cases Involving Structural Conflicts of Interest Are Really Complaining About
Permalink | There’s a very interesting long term disability decision that was just issued by the District of New Hampshire that is worth a read, not so much for the case itself as for its commentary concerning the standard of review under ERISA in instances where the administrator has been granted discretionary authority by the plan. The court’s facts and the reasoning themselves are nothing out of the ordinary: the arbitrary and capricious standard applies, there is enough evidence in the record to support the administrator’s denial, and thus the administrator’s decision is, quite properly under current law, upheld. But what is interesting is the court’s discussion of its views as to the standard of review and how it affects the outcome of the case, and how those comments shed some light on the criticism that is out there of the law governing the standard of review.
The court acknowledged that the insurer of the plan, which was also the administrator of claims under the plan, had “fully and carefully reviewed [the claimant]'s medical history and thoroughly investigated her claims,” and that there was substantial evidence in the record to support the insurer’s denial of the claim for benefits; the court, however, nonetheless went on to make clear that it disagreed with the applicable body of law governing the standard of review and which mandated the outcome under those facts. The court expressed its displeasure with the First Circuit’s treatment of what are known as structural conflicts of interest, which is a fancy way of saying the circumstance in which the claim administrator deciding the claim for benefits is also the insurer of the benefits who has the obligation to pay the benefits. The court’s exact words? That:
[N]umerous courts, including this one, have questioned the propriety, and even fairness, of the "arbitrary and capricious" standard of review in cases where the same entity that makes eligibility determinations also funds benefit payments. Two judges on a split panel of the First Circuit Court of Appeals recently suggested that the full court, sitting en banc, ought to revisit the standard of review applicable to ERISA cases in which the plan administrator determines benefits eligibility and also funds benefit payments. Denmark v. Liberty Life Assurance Co. of Boston, 481 F.3d 16, 31 (1st Cir. 2007) (Judge Lipez wrote: "I think it is time to reexamine the standard of review issue in an en banc proceeding. Although Judge Howard dissents from the judgment agreed to by Judge Selya and myself, he agrees with me, as indicated in his dissent, that we should reexamine the standard of review issue."). A petition for en banc review is apparently pending in Denmark. But, unless and until the court of appeals (or the Supreme Court) changes the governing standard of review, this court is obliged to apply the law as it currently exists.
Now, I don’t necessarily join in the belief that the First Circuit’s current law on the effect of such structural conflicts of interest is the wrong approach or needs to be modified, in the absence of Supreme Court changes to the law governing the standard of review in circumstances in which the administrator has been granted discretionary authority. You can find my thinking on that point here and here. As the District Court explained the law:
Under the current law of this circuit, merely pointing out that a plan administrator is also the entity that pays any benefits found due under the plan is insufficient to warrant departure from the applicable arbitrary and capricious standard of review. See, e.g., Wright v. R.R. Donnelley & Sons Co. Group Benefits Plan, 402 F.3d 67, 75 (1st Cir. 2005) ("[T]he fact that the plan administrator will have to pay the plaintiff's claim out of its own assets does not change the arbitrary and capricious standard of review.") (citation and internal punctuation omitted); Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1st Cir. 1998) (same). To warrant subjecting a plan administrator's benefits eligibility determination to a stricter standard of review, a plaintiff must point to some evidence suggesting that its decision was actually influenced by improper factors.
I don’t see anything wrong with this standard, and the actual facts of cases decided recently in this circuit and its district courts concerning this issue support maintaining, rather than changing, this standard. When, as in the case that was before the District Court, a claimant cannot point to anything concrete from inside or outside of the administrative record to suggest that the administrator’s decision was actually distorted by its dual role, there is no reason that the dual role should change the standard of review or the outcome of the case. This point is well illustrated by this case here out of the First Circuit, in which I represented the prevailing defendants, and in which a panel of the First Circuit again suggested that the law concerning structural conflicts of interest should be altered. Yet in that case, the panel found that changing the law was irrelevant for purposes of the case pending before it and that the administrator’s decision would be upheld regardless of the standard of review that was applied, because the claim was properly handled and properly evaluated.
When, as in both of those cases, there is no actual evidence suggesting that the dual role altered the outcome, there is no justification for believing or acting as though it did. The truth, which you see when you spend enough time in the courtroom with these types of cases, is that, as these two and a host of other cases (both in which an alteration of the standard of review was warranted and those in which it was not) show, there will be some sort of distortion or disjunct between the evidence in the administrative record and the administrator’s handling of the claim if an untoward motive was actually involved; it may be disguised, but if you look closely you will find it. In contrast, when you cannot find some sort of gap in logic or reasoning or documentation between the administrator’s decision and the administrative record, there is a reason for this, which is that the determination was on the up and up. Thus, in the absence of evidence founded in the record to suggest an ulterior motive, namely the impact of the structural conflict of interest, there is no reason to assume the conflict affected the outcome and should be allowed to change the standard of review.
What’s more interesting is a second, almost throw away comment by the court, which I think goes more to the center of the complaints critics have about the standard of review, including in cases involving structural conflicts of interest. The court commented:
If this were a breach of contract case, in which [the claimant] sued her insurance company for disability benefits, the outcome might be different. There is, after all, substantial evidence in her medical records (including the opinions of two treating physicians) supportive of the view that [she] is disabled. But, because this case is governed by ERISA, what would otherwise be an insurance coverage or breach of contract case is, instead, one governed by principles of trust law. Liberty's adverse benefits eligibility determination is subject to a far more deferential standard of review.
I think this comment by the court goes directly to what critics of the standard of review are really complaining about, which is not really that the standards of review being applied are wrong, but that they are applied at all. I believe the real complaint of critics of the law on this subject is instead that long term disability claims should be treated and resolved in the same manner as any other type of breach of contract or insurance denial (non-ERISA division) case. This is a whole different kettle of fish than arguing over how the standard of review should be affected by a structural conflict of interest or other issue on the margin, and instead goes right to the heart of the ERISA regime. To some extent, these on-going disputes in the case law that are directed at altering the standard of review to make them more favorable to claimants, such as in cases where the administrator is also the insurer of the benefits, are really proxy wars being fought instead of the real dispute that critics of the system have with denial of benefit claims under ERISA, which is the very application of ERISA doctrines, rather than traditional breach of contract doctrines, to these types of cases.
Reinsurance and LaRue, All in the Same Post
Permalink | Instead of posting twice in the same morning, I am going to try to address two distinct substantive issues, one involving reinsurance and the other ERISA, all in the same post, hopefully without turning this post into some sort of Frankenstein monster combination of topics that instead should have been kept entirely separate.
On the first, ever wonder why so many reinsurance companies are domiciled in Bermuda? I thought so. The New York Times has an excellent article today explaining why, and as one might have guessed, it has to do with taxes. As the New York Times sums up the matter:
At issue are federal rules that allow insurance premiums to be shifted from the United States to offshore affiliates — which reduces taxes — and allow the proceeds to be invested tax free, increasing the profit to parent companies. . . .The core of the dispute is an unusual tax treaty with Bermuda. It allows insurance companies based on the island to deduct from their American taxes premiums that their subsidiaries in the United States collect from American customers and send back to the headquarters abroad. In Bermuda and other tax havens, the money is invested tax free. This money is moved, under the law, through the purchase of reinsurance by the affiliates from their parent companies.
Personally, I really like Bermuda and have long wanted to have reinsurance clients there that would justify my opening an office in Bermuda, which I suspect influences my views on this issue, and so I will therefore keep them to myself.
The second is an ERISA issue, involving the Supreme Court’s decision to hear LaRue v. DeWolfe, Boberg and Associates. This case, which I discussed here and here, involves whether a plan participant can sue under ERISA to recover losses suffered only in that participant’s account, and not across the plan as a whole. As I discussed here, it makes sense that a participant can do so and I expect the Supreme Court to rule to that effect. The defendants, in an attempt to avoid the Supreme Court ever reaching this issue, moved to dismiss the appeal as moot on the ground that the plaintiff had cashed out of the plan and therefore cannot proceed with a claim against the plan for losses incurred in the plaintiff’s now cashed out account; whether such cashed out participants can proceed with such cases is something of a hot topic that has been decided in differing ways by trial level judges in the federal system, including by judges sitting in the same federal district court, as I discussed here. Well, Workplace Prof and SCOTUSBLOG are reporting that the Supreme Court has denied the motion to dismiss on that ground and the Supreme Court will go ahead and hear the case.
There, I did it - two items on two different issues, all for the price of one admission.
The First Circuit's Road Map for Terminating Benefit Plans
Permalink | Just a fairly short post on a technical ERISA issue that the First Circuit ruled on a few days ago, namely the steps that have to be followed to terminate or amend a benefit plan, at least with regards to the documentation and formalities needed to do so. In Coffin v. Bowater, Inc., the First Circuit provides a clear and definitive road map to follow to effectuate such a termination, and the court makes clear that veering off of that road map will result in a finding that the benefit plan has not been terminated. While the legal rule itself presented in the case isn’t all that gripping, although it is certainly a technical point that is important to know, the context of the case and some of the discussion in it are interesting in and of themselves, for at least two reasons. The first is the fact pattern of the case itself, which involved the failure of a plan sponsor and an acquiring company to effectively terminate a benefit plan as part of a corporate acquisition, causing them to later have to try to convince a court - unsuccessfully - to create some sort of common law exception to the rules established by the courts and ERISA that would excuse their failure to follow the basic requirements for a plan termination. Its simply interesting to see this important issue poorly executed in a complex corporate transaction, and the end result of litigation and additional liability that results.
The second is that the panel ventures into the question of the standard of review - de novo or arbitrary and capricious - in this circuit with regard to benefit issues and interpretation of plan language. As certain judges of the First Circuit have done in a couple of earlier decisions, this panel suggests that the time may be right for the First Circuit to revisit this question en banc and reset the law in the First Circuit on this issue, although the panel makes clear that doing so is not necessary for purposes of Bowater because the result would be the same under any standard of review that could apply. One wonders how much more pot stirring of this nature on the issue of the standard of review there can be before the circuit chooses a case to fully review and possibly revise the law in this circuit on this issue.
Another View on Whether a Cashed Out 401(k) Participant Has Standing to Sue for Losses Under ERISA
Permalink | Judge Tauro, of the United States District Court for the District of Massachusetts, has weighed in lately on some of the more cutting edge and currently unsettled issues in ERISA litigation, such as the impact of ERISA preemption on the powers of a state agency. This week, he ventured into the now hot topic of whether a plan participant who has cashed out of a 401(k) plan has standing to sue for breach of fiduciary duty, in this instance for imprudently investing in allegedly inflated company stock. In the decision, involving a putative class action against Boston Scientific, the judge surveyed case law from other jurisdictions on the issue and broke from the opinion of another judge of the circuit, who had found that such a participant, once cashed out, lacked standing to bring a claim for benefits. Judge Tauro reviewed case law from other circuits to the contrary, and elected to follow those rulings.
The cases relied upon by the judge are an instructive lot, and almost a road map for briefing this issue when arguing in favor of standing for such a cashed out participant:
More persuasive is the reasoning of the Seventh Circuit, which recently reached an opposite outcome and found that a plan participant did have standing, despite having cashed out of the plan. [The Seventh Circuit found that] "[b]enefits are benefits; in a defined-contribution plan they are the value of the retirement account when the employee retires, and a breach of fiduciary duty that diminishes that value gives rise to a claim for benefits measured by the difference between what the retirement account was worth when the employee retired and cashed it out and what it would have been worth then had it not been for the breach of fiduciary duty." The Third and Sixth Circuits have adopted this line of reasoning as well. Also instructive is the analysis by Judge Hall in the District of Connecticut: “[T]he court is puzzled by the . . . assertion that a claim for benefits lost due to imprudent fiduciary investment becomes a claim for damages once the plaintiff accepts a lump sum payment constituting the balance of her account with the relevant plan. . . . Regardless of whether [the participant] accepted or refused the balance of her account, her underlying claim would still be for the money lost by the Plan as a result of the defendants' imprudent investments. The court sees no logical reason why such a claim seeks an ascertainable benefit when the plaintiff refuses a lump sum, but the very same claim seeks an unascertainable damage award once the plaintiff accepts a lump sum.”
Misrepresentations Under ERISA Plans: Is There A Cause of Action?
Permalink | Here’s an interesting case out of the First Circuit this week concerning an attempt to use an equitable estoppel theory to force a plan to pay supplemental life insurance benefits even though the former employee covered by the plan had not submitted the necessary health forms to qualify for that coverage. The case, Todisco v. Verizon Communications, involved a situation in which the now deceased employee was supposedly told that he could sign up for the additional life insurance benefits without submitting the necessary health information. The plan administrator refused to pay those benefits after his death because his failure to submit that information precluded such coverage under the terms of the plan.
After much wrangling at the district court (“wrangling” in this context being a euphemism for substantial motion practice), what remained was the plaintiff’s theory that she could recover the benefits on an estoppel theory based on the allegedly misleading statements made to the deceased at the time he elected the benefits. The First Circuit held that the theory failed as a matter of law, however. The Court analyzed the issue under both possible statutory causes of action available to the plaintiff, namely Section 502(a)(1)(B), which “empowers a ‘participant or beneficiary’ to bring suit ‘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,’ and Section 502(a)(3), which “allows a ‘participant, beneficiary, or fiduciary’ to sue ‘(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."
The First Circuit held, however, that the plaintiff’s equitable estoppel claim had no home under either statutory section. It found that even though in common parlance equitable estoppel is understood to be an equitable remedy, it did not constitute equitable relief for purposes of ERISA under applicable Supreme Court precedent; for ERISA purposes, equitable relief has a very narrow and specific meaning, and the plaintiff’s attempt to recover compensatory damages only under an estoppel theory did not fit that meaning. The plaintiff’s claim was therefore not actionable as a matter of law under Section 502(a)(3). At the same time, however, the First Circuit found that the relief was not viable as a claim for damages - namely the denied benefits - under Section 502(a)(1)(B), because that section only allows recovery of benefits due under the terms of the plan, and the plaintiff's estoppel theory did not allege that the benefits were due under the actual terms of the plan, but that they were instead due under the terms of the plan as misrepresented to the deceased at the time he sought to obtain the coverage. The Court found that this claim did not fit the express requirements of the statutory provision in question, which limits recovery to benefits when the actual terms of the plan require them to be paid.
The Interrelationship of Suits for Benefits and for Breach of Fiduciary Duty Under ERISA
Permalink | If it seems like I have been digressing a lot these past couple of weeks off of the primary topics of this blog and into other areas that interest me - such as the billable hour system - or that I practice in, like intellectual property litigation, it is because the courts of the First Circuit have been fairly quiet with regard to ERISA issues since the First Circuit issued its opinion in this case a few weeks back in which I represented the prevailing parties. Things change quickly in the forest, though, and the courts in this circuit have begun speaking again on ERISA issues. The United States District Court for the District of Puerto Rico has now provided this nice, handy summary of why an individual plan participant whose benefits have been terminated must bring solely a claim for benefits, and cannot press forward with an alternative theory for breach of fiduciary duty. In the words of the court:
ERISA recognizes two avenues through which a plan participant may maintain a breach of fiduciary duty claim: (1) a Section 502(a)(2) claim to obtain plan-wide relief, see 29 U.S.C. § 1132(a)(2); and (2) an individual suit under Section 502(a)(3) to obtain equitable relief, see 29 U.S.C. § 1132(a)(3). Cintron [the plaintiff] does not seek plan-wide relief. Consequently, ERISA authorizes her breach of fiduciary duty claim only if she seeks "appropriate equitable relief." 29 U.S.C. § 1132(a)(3); Varity Corp. v. Howe, 516 U.S. 489, 512, 116 S. Ct. 1065, 134 L. Ed. 2d 130 (1996); Watson v. Deaconess Waltham Hosp., 298 F.3d 102, 109-10 (1st Cir. 2002); Larocca v. Borden, Inc., 276 F.3d 22, 27-28 (1st Cir. 2002). The Supreme Court of the United States has described Section 502(a)(3) as a "safety net" that provides appropriate equitable relief for injuries that Section 502 does not elsewhere adequately remedy. Varity, 516 U.S. at 512. Section 502(a)(3), therefore, does not authorize an individualized claim where the plaintiff's injury finds adequate relief in another part of ERISA's statutory scheme. Id. at 512, 515; see also Watson, 298 F.3d at 112-13; Larocca, 276 F.3d at 27-28; Turner v. Fallon Cmty. Health Plan, 127 F.3d 196, 200 (1st Cir. 1997). Following Varity, "federal courts have uniformly concluded that, if a plaintiff can pursue benefits under the plan pursuant to Section [502(a)(1)(B)], there is an adequate remedy under the plan which bars any further remedy under Section [502(a)(3)]." Larocca, 276 F.3d at 28.
Section 502(a)(1)(B) provides Cintron the opportunity to obtain redress for the injury she alleges to have suffered--a wrongful termination of her benefits. If the defendants wrongfully stopped paying her benefits, Section 502(a)(1)(B) provides an avenue through which she may recover benefits due. She may not seek relief for the same injury under Section 502(a)(3). . . .Thus, she may not maintain a claim for breach of fiduciary duty under Section 502(a)(3).
As some of you know from other posts, I like to collect handy summaries like this to insert into future briefs in appropriate spots, and I pass this one along to anyone who may want to do likewise. The case is Cintron-Serrano v. Bristol-Myers Squibb P.R., Inc.
The Latest Word Out of the First Circuit on Pre-existing Conditions, Long Term Disability Benefits, and Uncertainty Over the Standard of Review
Permalink | No one is quicker to post about decisions out of the First Circuit than Appellate Law & Practice, who quickly had this post up on Friday about the First Circuit's opinion issued that day in a long term disability benefits case where the plan and the administrator prevailed at the District Court, and then again before the First Circuit. I represented the prevailing parties before both the District Court and the First Circuit in that one.
Appellate Law & Practice focused in its post on some of the issues addressed by the First Circuit that apply across the board to other types of litigation, and not so much on the issues specific to ERISA that were addressed by the First Circuit in its opinion. There are some points about that opinion that are specific to ERISA cases, and should be of interest to those who practice in this area. Sometime in the next couple of days, I will return to the opinion and discuss those issues, from the perspective of the lawyer - me - who briefed and argued them. For now, here is the opinion itself.
Time to Reset the Clocks, at Least When It Comes to Calculating Interest Awards in ERISA Cases
Permalink | We are in another one of those stretches where the courts of this circuit issue a fair number of ERISA related decisions in a short time span. I always think that, when this happens, it simply points out how ubiquitous are ERISA governed employee benefits. Appellate Law & Practice has the story of one of those cases, a ruling out of the First Circuit concerning the narrow question of when, during the course of litigation, the interest clock switches from prejudgment time to postjudgement time. In that case, the conclusion was that “a finding of liability alone without a corresponding determination on damages does not suffice to start the clock on postjudgement interest,” and thus to end the clock on prejudgment interest.
The case is Radford Trust v. First Unum Life Insurance.
LaRue v. DeWolff, Losses to the Plan and the Supreme Court
Permalink | SCOTUSBLOG is the NY Times, or maybe - given its focus on one particular field - the Wall Street Journal, of the legal blog world. With the backing of a major international law firm, it brings tremendous resources to its in-depth coverage of all things goings on at the Supreme Court. Cripes, the blog even has its own reporter, to supplement the work of the actual bloggers.
And of course that’s also why I read it, because you know you are not going to miss anything of importance to your own practice area that happens at the Supreme Court. And here, of interest, is their post on the United States Solicitor General’s brief recommending that the Supreme Court hear an appeal from the Fourth Circuit’s decision in LaRue v. DeWolff, Boberg & Associates, which presents the question of whether an individual participant in a 401(k) plan can sue to recover losses from errors by fiduciaries that affected only his or her account in the plan, rather than the accounts of all or most participants in the plan. In dispute is the question of whether it qualifies, first, as a loss to the plan, such that the participant can sue for breach of fiduciary duty, and/or second as equitable relief as the Supreme Court has interpreted that phrase for purposes of ERISA, such that the participant can recover on a separate equitable relief theory.
One thing’s for sure. If the Supreme Court puts its imprimatur on this theory, and makes clear that individual plan participants can sue for their own individual losses in their defined contribution accounts, there will be a whole range of new potential plaintiffs out there, and I am sure plenty of lawyers ready and willing to represent them. At the same time, to be fair, in a world of Enrons and the like, maybe there should be.
The Workplace Prof reads SCOTUSBLOG too, and here’s the prof’s take on these events.
Summary Plan Descriptions and Discovery in ERISA Cases: the Latest from the First Circuit
Permalink | The First Circuit issued an opinion in the case of Morales-Alejandro v. Medical Card System on Wednesday. The case, which involved a challenge to a denial of long term disability benefits, is noteworthy for two aspects. The first is that the case reaffirms this circuit’s reluctance to allow discovery beyond production of the administrative record in denial of benefits cases prosecuted under ERISA. The court pointed out that, in this circuit anyway, “ERISA cases are generally decided on the administrative record without discovery, and some very good reason is needed to overcome the presumption that the record on review is limited to the record before the administrator."
The second issue of note is that the court addressed the role of summary plan descriptions in ERISA plans and related litigation, and described the role they should play in a litigated dispute over benefits. In particular, the court declared:
ERISA imposes an important requirement on plan administrators and insurers to communicate accurately with plan participants and beneficiaries. See Bard, 471 F.3d at 244-45. Part of the communication requirement is that the SPD provide certain information "written in a manner calculated to be understood by the average plan participant, and shall be sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan." 29 U.S.C. § 1022(a). Section 1022(b) specifies the information to be included in the summary. When the terms, language, or provisions of the SPD conflict with the plan, the language that the claimant reasonably relied on in making and proving his claim will govern the claim process. Bard, 471 F.3d at 245. The burden is on the claimant to show reasonable reliance and resulting prejudice. Id.
401(k) Plans and Breach of Fiduciary Duty Lawsuits
Permalink | I have written before, and frequently (such as here and here), about the coming boom in litigation against plan sponsors and fiduciaries over alleged excessive fees and other alleged malfeasance in the administration of 401(k) plans. One point I have tried to drive home in my posts, including here and here, is that the best defense to this litigation boomlet, possibly soon to be a boom, is a good offense, in the form of careful, regularly scheduled due diligence with regard to the funds offered in a plan and the fees charged for those funds.
This article, making the same points, by the lawyers at Littler Mendelson, crossed my inbox today. It provides a nice easy to digest overview of the issue, and recommends the same preemptive course of conduct, in the form of these recommendations for due diligence:
Sound advice in my book, and one I - and others - have been recommending for awhile.
What to Do? We believe that there are some actions that employers and plan fiduciaries can take to protect themselves:
•Continually monitor all plan and fund expenses and assure that they have negotiated the best deal for participants, but keeping in mind that fees are only one piece of the fiduciary puzzle; the others include risk, rate of return, and historical performance.
•Periodically review all aspects of the fund selection and monitoring, and document these efforts.
•Be sure that all plan expenses can be determined from documentation provided or made available to participants, and consider providing participants with a separate summary of those expenses.
•Review your service provider agreements, make sure you get legal counsel involved in negotiating those agreements. It is recommended that all 401(k) plan service provider agreements prohibit any undisclosed revenue sharing.
•Ask your plan service providers to provide you with a detailed written description of all plan fees – hard dollar and soft dollar.
•If you believe you may be vulnerable, consider having a legal audit performed on your 401(k) plan.
Behavioral Economics, the Pension Protection Act and 401(k) Litigation
Permalink | I have written before about my thesis that 401(k) litigation, and the tendency of individuals to pursue such suits, may be driven in part by the psychology of retirement benefits and the uncertainty for employees as to whether they will be able to fund their retirement that these types of retirement savings vehicles create, particularly as opposed to pensions, which, on anecdotal evidence, seem to generate far less litigation than 401(k) plans. Along these lines, this article out of today’s New York Times about behavioral economics and the impact of consumer choice on 401(k) contributions caught my eye. The article compares retirement savings to research into the strange behavioral distortions that appear to underlie overeating, and discusses how the Pension Protection Act is written in a manner intended to remove certain behavioral distortions from the decision to make 401(k) contributions. Is there a linkage between the security of retirement and the tendency to sue over retirement benefits, and if so, can restructuring the benefit programs, such as in the manner pursued by the Pension Protection Act, reduce the extent of litigation over such benefits?
I certainly don’t pretend to know the answer, and I suspect academic research doesn’t provide an answer to this question at this point either. But the article sums up the research into consumer behavior as follows: “[w]hether it’s 401(k)’s or food, the way choices are presented to people — what the economist Richard Thaler calls ‘choice architecture’ — has a huge effect on the decisions they make.” If we are presenting 401(k)s to employees in a way that makes for retirement uncertainty and for doubt (or at least fears, founded or unfounded) as to the abilities and fidelity of those managing them, the question becomes whether we are creating a “choice architecture” that points people towards litigation, rather than away from it. If, on the other hand, we can create an environment of greater trust in the operation of those types of retirement vehicles, perhaps employees will tend away from trying to resolve concerns over retirement funding through the blunt instrument of litigation.
The Interrelationship of ERISA and the ADA
Permalink | I have talked in other posts about the rights of plans and their administrators to recoup overpayments of benefits directly from the beneficiary, and of the creative lawyering that has been employed - although generally without much success - by overpaid plan participants in the hope of avoiding paying the funds back. The United States District Court for the District of Rhode Island has just issued a very interesting opinion involving this scenario, only this time involving an attempt to rely on the Americans with Disabilities Act to prevent the repayment; this tactic didn’t work either, except to the extent that a claim that the attempt to recoup the overpayment was retaliatory could survive a motion to dismiss. The case is Hatch v. Pitney Bowes, Inc.
Defined Benefit, Defined Contribution, and The Psychological Effect on Litigants
Permalink | Here is a very neat and interesting paper contrasting defined benefit plans - i.e. pensions - with defined contribution plans - i.e. 401(k) plans - and addressing, in particular: (1) the decline in the former in the workplace and replacement by the latter; and (2) the problems engendered by that change. In essence, the authors argue that the defined contribution plans, as they currently are regulated and operated, simply are not satisfactory replacements for the vanishing pension system, and cannot be counted on to provide an appropriate stream of retirement income for most retired workers. The authors provide suggested changes for both types of plans that, they hope, will make pensions more palatable to employers and 401(k) plans more beneficial to employees.
I have spent a couple days musing on the paper, which was first brought to my attention in this post last week on Workplace Prof, and have a few thoughts to offer, mostly about how the facts and arguments in this paper fit in with the litigation climate involving, in particular, 401(k) plans. What jumps out at me is the central theme of the paper, that pensions are overly regulated and employee contribution plans like 401(k) plans insufficiently regulated, with the result that the latter plans are unlikely to meet the needs of the prototypical employee. And this leads to two thoughts about excessive fee, breach of fiduciary duty and other types of lawsuits against companies sponsoring 401(k) plans and the advisors they retain. First, are the suits driven, at core, by the defined contribution plans' absence of overarching regulation and government protection, placing the onus for policing them on employees and their lawyers, who can be seen to have been forced into serving almost in a “private attorney general” role with regard to such plans? And would this be the case if, like pensions, they were more heavily regulated and backstopped by the government, much like pensions are by the Pension Benefit Guaranty Corporation? And second, echoing a theme I have commented on in the past, to what extent is the litigation driven by the exact problem emphasized in the article, namely that workers cannot confidently assume an appropriate retirement income by relying on 401(k) plans and therefore may rightfully be afraid for their long term economic security? If they didn’t have that fear, and instead were confident in their retirement income, much as - sometimes wrongly - they generally are in pensions, would they be so quick to authorize lawyers to sue in their names?
Merger and Anti-Cutback Provisions of ERISA, and a Handy Rule of Thumb
Permalink | This case, out of the United States District Court for the District of Massachusetts, provides a nice little rule of thumb for amending, merging or otherwise altering retirement benefit plans - namely, that it makes it hard to get sued and lose if you make the changes in a way that avoids altering the actual benefit amounts of any given participant. In this case, an employee complained about changes to the company’s retirement plan made as part of a corporate acquisition and about a later change intended to protect other participants’ participation in the plan. The court found that the changes did not violate ERISA’s merger or anti-cutback provisions, as the evidence showed the changes had no adverse impact on the plaintiff’s benefits. In an interesting discussion of the merger and anti-cutback provisions, the court explained that:
Pursuant to ERISA § 208 and I.R.C. § 414(1), when benefit plans are merged, each plan participant must receive benefits immediately after the merger that are equal to the benefits he would have received had his plan terminated immediately prior to the merger. . . .At its core, this merger rule is a simple one, intended to prevent companies from eliminating an employee's previously accrued benefits when merging one benefit plan with another. . . . Much like the merger rule, the purpose of the anti-cutback provisions of § 204(g)(1) of ERISA is to prevent an employer from "pulling the rug out from under employees" by amending its benefit plan to eliminate or reduce a previously accrued early retirement subsidy. Specifically, the anti-cutback rule provides, with certain exceptions not relevant here, that "[t]he accrued benefit of a participant under a plan may not be decreased by an amendment of the plan." 29 U.S.C. § 1054(g)(1). . . .The Act requires that the merger or amendment of retirement plans does not result in a plan that has the effect of reducing an employee's previously accrued benefits.
The court ruled across the board in favor of the defendant, not just on the merger and anti-cutback counts but on all counts pled by the participant, with the decision driven in large part by the fact that the evidence demonstrated that the changes to the plan did not detrimentally alter the benefits available under the plan to the complaining participant.
The case is Gillis v. SPX Corp. Individual Retirement Plan.
Still More on Structural Conflicts of Interest
Permalink | Day 3 of my discussion of the First Circuit’s recent ruling concerning structural conflicts of interest and their impact on claims for benefits under ERISA: Workplace Prof blog has his take, and quotes from others, here, and one of my favorite, quirkier, law blogs, Appellate Law & Practice, has its take here.
A Survey of All the Circuits on the Effect on the Standard of Review of Structural Conflicts of Interest
Permalink | One of the things lawyers learn early in their careers is that the time it takes to research a particular issue can be reduced dramatically by finding a good published decision out of one of the better federal courts on the issue; such an opinion will often include an excellent synopsis, at a minimum, of the key case law on the issue. In essence, the opinion offers up the outstanding work product, already concluded on the issue in question, of high quality law clerks. Wednesday’s decision in the Denmark case in the First Circuit, which I discussed in yesterday’s post, is a perfect example of this phenomenon, as it provides, in a four paragraph section of the lead opinion, a summary of the law in each circuit on the effect on benefit cases of so-called structural conflicts of interest. As the opinion states:
The circuits have adopted varying approaches to the issue of whether the structural conflict that arises when an insurer both reviews and pays claims justifies less deferential review. In addition to this court, the Seventh and Second Circuits have held that a structural conflict alone is insufficient to alter the standard of review. Instead, these circuits require an actual showing that the conflict of interest affected the benefits decision before there will be any alteration in the standard of review. See Rud v. Liberty Life Assurance Co., 438 F.3d 772, 776-77 (7th Cir. 2006) (holding that a structural conflict of interest, without more, does not affect the standard of review); Sullivan v. LTV Aerospace & Def. Co., 82 F.3d 1251, 1255-56 (2d Cir. 1996) (holding that a claimant must show that a conflict of interest affected the benefits decision, but if such showing is made, de novo review applies).
However, seven other circuits have held that a structural conflict warrants alteration to the standard of review, although six of these circuits apply less deferential review within the arbitrary and capricious framework. Of these six circuits, all except one have adopted a "sliding scale" approach to the standard of review, in which the court applies less deferential review to the extent that a conflict of interest exists. See, e.g., Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997, 1004 (10th Cir. 2004) (per curiam) (explaining that "the court must decrease the level of deference given to the conflicted administrator's decision in proportion to the seriousness of the conflict" (internal citation and quotation omitted)); Pinto, 214 F.3d at 379 (expressly adopting a "sliding scale method, intensifying the degree of scrutiny to match the degree of the conflict"); Vega v. Nat'l Life Ins. Servs., Inc., 188 F.3d 287, 297 (5th Cir. 1999) (en banc) (explaining that "[t]he greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be"); Woo v. Deluxe Corp., 144 F.3d 1157, 1161-62 & n.2 (8th Cir. 1998) (explicitly adopting the sliding scale approach while noting that "not every funding conflict of interest per se warrants heightened review"); Doe v. Group Hosp. & Med. Servs., 3 F.3d 80, 87 (4th Cir. 1993) (applying less deference "to the degree necessary to neutralize any untoward influence resulting from the conflict"). The Ninth Circuit employs a "substantially similar" approach, but with a "conscious rejection of the 'sliding scale' metaphor" on the ground that "[a] straightforward abuse of discretion analysis allows a court to tailor its review to all the circumstances before it." Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 967-68 (9th Cir. 2006)(en banc).
The Eleventh Circuit uses a different framework. It first determines, under de novo review, whether the decision was wrong; if it was, and if an inherent conflict of interest exists, "the burden shifts to the claims administrator to prove that its interpretation of the plan is not tainted by self-interest." HCA Health Servs., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 993-94 (11th Cir. 2001). The claims administrator may then meet this burden "by showing that its wrong but reasonable interpretation of the plan benefits the class of participants and beneficiaries." Id. at 994-95.
Finally, the D.C. Circuit has not yet established a standard of review in cases involving a structural conflict of interest. See Wagener v. SBC Pension Benefit Plan-Non Bargained Program, 366 U.S. App. D.C. 1, 407 F.3d 395, 402 (D.C. Cir. 2005) (finding that the result would be the same under either arbitrary and capricious or de novo review).
Current First Circuit Thinking on Structural Conflicts of Interest
Permalink | Interesting decision out of the First Circuit yesterday, in the case of Denmark v. Liberty Life Assurance Company, that focused on the proper standard of review to apply in cases in which the administrator both decides the claim for benefits and is also the party that will have to pay the benefits if the claim is upheld. I have addressed in other posts this Circuit’s approach to that issue, and my belief that, although some other circuits take a different approach, the approach taken by this Circuit is the correct one. I discussed that here, here and here. The Denmark appeal generated a separate opinion from each of the judges on the panel, with two judges believing that it is time for the Circuit to reconsider, en banc, its approach to this issue. The third judge emphasized his belief, much like mine, that the Circuit’s current approach is time proven and battle tested, and should not be overturned lightly; he also points out that, given the split among the circuits over this issue, it would make sense not to change course on this issue unless and until the Supreme Court resolves the split.
Mike Webster to Ted Johnson: Are the NFL and the New York Times Kidding?
I don’t want to turn this blog into a soapbox, and as someone who really likes newspapers, I also don’t want to join the Greek chorus of self-appointed media watchdogs that seems to make up much of the blogosphere. Some things, however, such as this article in the New York Times, call out for a skeptical and critical reaction. The article explains how the NFL has now created a program to provide some funding for long term, home or facility, care for former pro players who “have various forms of dementia,” even though the NFL insists that football injuries to the brain - multiple concussion syndrome, anyone, for those of you who follow the sport? - are not the cause. The article seems to credit the NFL for providing this help to former players - help that, despite the vast wealth of the league, is capped at $88,000 a year - and praises the idea that this problem is being resolved through this program rather than by litigation, i.e. by former players suing the NFL. Astoundingly, the article describes the program as addressing an unmet need because, and I quote the Times here on this, “former players who have dementia do not qualify for the N.F.L.’s disability insurance program, because neither the league nor the union consider their conditions football-related, a stance that has been cast in doubt by several scientific studies.”
And yet, as I discussed in this post several months ago, the family of the late Pittsburgh Steelers center Mike Webster litigated that exact issue for years, finally defeating the NFL, the players association and the plan before the Fourth Circuit court of appeals, to recover benefits under the league’s ERISA governed pension and disability system for exactly this type of injury. The Fourth Circuit’s opinion, in fact, was a pretty powerful condemnation of the roadblocks that had been tossed in Webster and the estate’s path in their attempt to obtain the benefits.
Which brings me to a couple of points that should be kept in mind in reading the Times article and considering the value of the NFL’s new program that the article praises. First, I suspect that the pension plan/disability plan system that the Webster family targeted provides far greater benefits than does this separate plan discussed in the article. If so, the idea that former players should pursue help under that program, rather than through the pension plan, is a disservice to retired players. Second, again if I am right about the greater benefits available under the pension/disability plan, then one has to wonder whether the separate NFL plan discussed in this article, although commendable for providing some help to aging players, actually serves as something of a Trojan horse (not a perfect analogy, I know) that, intentionally or otherwise, draws retired players away from seeking the larger payouts of the pension/disability system and instead to this plan. And third, given that a leading federal court of appeals with a significant track record in ERISA cases has already found that the NFL’s pension and disability plan actually does cover brain injuries of this type, the article is simply off-base in stating that dementia falls outside of the plan.
The article notes the relevance of this issue to some high profile recent players, such as Ted Johnson of the Patriots, 34, whose doctors”said he was exhibiting the depression and memory lapses associated with oncoming Alzheimer’s.” Those players should, notwithstanding this article, first be looking to the NFL’s pension and disability plans, particularly in light of the Fourth Circuit’s ruling in the Webster case, for compensation and care, before settling for the limited assistance provided by this alternative plan.
And finally, this whole matter brings me back to an issue I have talked about in the past, about questionable decision making by courts concerning what decisions to publish and what ones not to publish in the ERISA context. The Fourth Circuit’s decision in the Webster case, to my recollection, was not marked for publication (you can locate it, however, at my earlier post on that case). Yet, really, the scope of NFL plan benefits for this type of mental injury had never been resolved before, and it remains, as this article in the Times reflects, not well understood, making this an opinion that probably should have been published, and should not have been part of what I have called in the past “the hidden law of ERISA.”
Insurance Brokers as ERISA Defendants
Roy Harmon, over at his Health Plan Law blog, has his typically scholarly take on two recent rulings out of the United States District Court for the District of New Hampshire in the case of Hopper v. Standard Insurance Company. The rulings primarily revolve around the question of which claims in the lawsuit are preempted under ERISA, and the law, reasoning and rulings of the court on these issues is consistent with First Circuit law, which grants a pretty broad sweep to ERISA preemption. What caught my eye about the case, however, and was of particular interest to me, was the discussion of whether the claims against one of the defendant entities that was involved in the insurance program at issue, namely the insurance broker, were preempted. The court, in one of its two rulings, determined that the broker did not play the role of a fiduciary, was not subject to ERISA, and that the claims against it were not preempted as a result. The court explained:
Hopper's misrepresentation claims against WGA [the insurance broker], however, are different. Unlike Standard, which functions as an ERISA entity, see Hampers, 202 F.3d at 53 (citing Stetson v. PFL Ins. Co., 16 F. Supp. 2d 28, 33 (D. Me. 1998))(explaining that the "primary ERISA entities are the employer, the plan, the plan fiduciaries, and the beneficiaries of the plan"), WGA is strictly an insurance broker, engaged in sales and marketing functions.
WGA had no direct control over Standard's insurance policy or the benefits plan. WGA did not administer the plan, and did not determine participant eligibility for benefits or consider appeals of benefit denial. Put differently, Hopper's claims against WGA are limited to WGA's "role as a seller of insurance, not as an administrator of an employee benefits plan." Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 991 (10th Cir. 1999).
This result is consistent with the underlying goal of ERISA "to protect the interests of employees and other beneficiaries of employee benefit plans." Morstein v. Nat'l Ins. Servs., Inc., 93 F.3d 715, 723 (11th Cir. 1996). "If ERISA preempts a beneficiary's potential cause of action for misrepresentation, employees, beneficiaries, and employers choosing among various plans will no longer be able to rely on the representations of the insurance agent regarding the terms of the plan." Id. As a result "[t]hese employees, whom Congress sought to protect, will find themselves unable to make informed choices regarding available benefit plans where state law places the duty on agents to deal honestly with applicants." Id. at 723-24.
Accordingly, Hopper's misrepresentation claims against WGA are not preempted by ERISA.
I think at least this part of the ruling, though arguable, is correct, so I don’t have any real quibble with it. What catches my eye, however, is the issue it raises, of whether an entity involved with an ERISA governed plan is better off staying out of the eye of the storm by avoiding a role that would grant it fiduciary status, or is instead better off playing a large enough role in the administration of the plan to end up being assigned that status. Falling outside of the ERISA framework leaves the entity exposed, as was the broker here, to a range of common law and state statutory claims; indeed, the potential exposure of such a defendant is limited only by the imagination of plaintiffs’ lawyers (and to a certain degree, the actual facts). On the other hand, coming within the realm of entities regulated by ERISA would preclude those types of claims from being asserted against the entity, while limiting recovery to that which is authorized by ERISA.
Granted, it is probably not something that the insurance broker in the Hopper case gave any thought to at the commencement of its involvement with the plan in question, but it might be something for any entity playing a role in an ERISA governed plan to consider at the outset of their retention: should they put themselves in a position to be a fiduciary subject to ERISA, or should they avoid that like the plague?
Electronic Discovery and the Amendment to Rule 26
Permalink | I came out on the wrong side of this order from one of my cases, but that’s alright; although John Barth’s fictional lawyer in the Floating Opera may have never lost a case, any real life lawyer who tells you the same thing is, well, speaking fiction.
But it is an interesting ruling nonetheless, on a relatively new and important issue, namely the scope of electronic discovery obligations imposed by the e-discovery amendment to the federal rules. This decision by a U.S. magistrate judge presents the factors that should be considered to determine whether electronic discovery should be ordered, or is instead too burdensome to be allowed.
There is also in the decision a little lesson for ERISA governed plans, namely, to make sure that electronic databases and electronic claim files are structured in a manner that allows for easy recall and searching of data, because as this order reflects, the courts will order such searching and production of electronic data if that data is in play in the case, even if the data is stored in a way that makes it very expensive to uncover.
ERISA, Interpleader and Qualified Domestic Relations Orders
Recently, waiting for a pretrial conference in federal court on one of my cases, I listened as a judge explained to the lawyers in a different case, based on only knowing the causes of action, what the actual facts of the case before him must be, even though he had never heard from the parties before. He did, in fact, actually nail the general outline of the case off the top of his head, and the lawyers for the parties simply had to fill in a few of the more specific facts for him. The judge explained that he had seen that type of case a thousand times before, and the fact patterns were always basically the same.
I was reminded of this when I read this recent decision by Judge Tauro in the Massachusetts federal district court, which concerns competing claims to life insurance proceeds provided under an ERISA governed plan. It seems as though the facts of this case are likewise always the facts in these types of claims: a divorce proceeding, followed by a standard state probate court order forbidding the husband from removing his soon to be ex-wife as the beneficiary, followed in short order of course, by the husband changing the beneficiary to his girlfriend (usually followed not long afterward by the husband’s demise, although no one has proven - to my satisfaction anyway - a causal linkage between that and either the girlfriend or the change in beneficiary).
Now of course what happens in that case is you end up with two competing claimants to the life insurance proceeds, one of whom - the ex-wife - asserts that she could not have legally been removed as the beneficiary, and the other of whom - the girlfriend - claims that she is the beneficiary pursuant to the plan’s terms and therefore must be paid the proceeds, at least if the plan’s terms are going to be enforced. And then what happens next of course, is that the plan administrator, quite rightly, files an interpleader action asking the court to figure out which one of the two should get the proceeds. A plan administrator would err if it did anything else, as ERISA preemption and the plan’s terms would suggest that the girlfriend should get the proceeds, but this would be in direct contradiction of a probate court order; there is no reason for the plan and its administrator to be stuck between the rock of the plan and the hard place of the probate court order. And avoiding being stuck in this type of position is exactly why federal law allows interpleader in this situation.
Judge Tauro, in his opinion at the end of January in Unicare Life & Health v Chantal Phanor et al, presents in a very logical manner exactly how this issue should be considered and resolved, finding that the proceeds should be paid out to the former wife under this scenario, so long as the probate court order qualifies as a qualified domestic relations order (“QDRO”) for purposes of ERISA. As the court explained, Congress expressly exempted QDROs from preemption, so as to allow probate courts to properly divvy up marital assets. The key issue with QDROs, and whether the beneficiary designation mandated by them should govern instead of the beneficiary designation that would govern if the terms of the plan controlled the issue, is that there are specific characteristics of the order that must exist for it to qualify as a QDRO. An issue of controversy, and which was at the center of the dispute in Unicare, is how strictly those requirements should be applied, and whether a probate court order that only loosely fits the requirements can qualify as a QDRO for these purposes. Judge Tauro came down squarely on the side of not taking those requirements literally, instead requiring only that the probate court order fit generally within the requirements and fall within the purpose intended to be served by QDROs.
For some reason, the Unicare decision is not currently available on the Massachusetts District Court's website, but I will keep an eye out and post a link to it when it becomes available. For now, it can be found on Lexis, at 2007 U.S.Dist. LEXIS 6136.
The Attorney-Client Privilege, ERISA and the Administrative Record
No doubt at least some of you have noticed my fixation on the attorney-client privilege, and where its borders should be drawn when a party’s counsel plays a central role in the events that may or may not trigger insurance coverage or show bad faith. I have the same sort of cartographer’s obsession with mapping where those borders should be when the administrator of an ERISA governed plan makes a benefit determination based on the investigation and legal conclusions of counsel. What happens to the privilege, for instance, if a company’s in-house counsel interprets the plan’s terms and applies them to the facts, thereafter recommending to the plan administrator what decision to render on a claim? And what happens if the plan administrator then adopts that recommendation as its determination? One can picture the same scenario involving reliance on outside counsel to do the same work.
Well, as this well-developed post from the Health Plan Law blog discusses, the plan administrator can delegate in this manner to counsel, and adopt counsel’s findings, at least as a general statement. But what effect would doing so have on the attorney-client privilege that would otherwise normally attach to communications between counsel and a client? Health Plan Law has this to say on that topic:
The question is this: while a plan may consistent with exercise of fiduciary discretion delegate duties as to claim investigation to legal counsel, is there a concomitant sacrifice in scope of privileged communications?
A fundamental legal principle states that the attorney-client privilege may be waived expressly or by implication. Implied waivers are consistently construed narrowly.See, In re Lott, 424 F.3d 446, 452 (6th Cir.2005). On the other hand, “an attorney-client communication is placed at issue when the party makes an assertion that in fairness requires examination of protected communications.” Clevenger v. Dillard’s Department Stores, Inc. Slip Copy, 2007 WL 27978 (S.D.Ohio 2007) (Dillard’s defendants impliedly waived the privilege for communications with legal counsel related to plan termination). The concern raised here is succinctly stated as follows: ‘the attorney-client privilege cannot at once be used as a shield and a sword.’ United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.1991)
And then again, to what extent does privilege apply in fiduciary matters in any event? In this connection consider the following regarding the “fiduciary exception”:
Most courts, including the Seventh Circuit, have recognized the existence of a fiduciary exception to the attorney-client privilege. In J.H. Chapman Group, Ltd. v. Chapman, No. 95 C 7716, 1996 WL 238863 (N.D.Ill. May 2, 1998), for example, the court explained that “[t]he fiduciary duty exception ‘is based on the notion that a communication between an attorney and a client is not privileged from those to whom the client owes a fiduciary duty.”See also Bland v. Fiatallis North America, Inc., 401 F.3d 779, 787 (7th Cir.2005) (recognizing fiduciary exception in the ERISA context).
On more of a concrete and less abstract level, you can think about this in terms of the administrative record; there are exceptions, but in most circumstances and in most courts, the administrative record would make up the universe of evidence that the court can consider in ruling on a challenge to an administrator's determination of a particular claim. Generally speaking, the administrative record is to contain the information relied upon or considered by the administrator in making that determination. But what about attorney advice received by the administrator and relied upon by it? The scope of the attorney-client privilege can impact whether or not that advice should be part of the administrative record.
More on Top Hat Plans
Permalink | I have been meaning to return to this point for the last several days, but the crush of business has kept me from it. I discussed in a recent post a case that I think has the potential to be very influential on the subject of proving or disproving top hat status, involving surgeons and top hat plans that were created to deal with caps on compensation at the hospital. The focus of this blog is on the law on ERISA and insurance issues, naturally enough as I am a lawyer and the blog is, after all, called the ERISA and Insurance Litigation blog. But sometimes the technical aspects of a particular type of benefit plan could use more discussion than one can often find in the case law, and it can be helpful to place them in the context of the benefits field as a whole. Maybe no one does that better than Jerry Kalish, who at the end of last week had this terrific post providing further details on the nature of top hat plans.
Procedural Violations in ERISA Claims Handling
Permalink | Probably the most important of the pre-holiday ERISA rulings in the First Circuit is Bard v. Boston Shipping Association, in which the First Circuit provides a detailed explanation of exactly how procedural and regulatory violations in handling ERISA claims will be addressed in this circuit henceforth. Notably, the court rejected the premise that such violations shall strip an administrator of the deference to which its decision making would otherwise be entitled. Instead, in this circuit, the court will examine the violations in light of the specific facts of the case before it, and then will design a remedy that resolves the actual harm, if any, caused by the specific violations in question.
AD&D Policies, ERISA and the Intoxicated Driver
It seems that, running up to the holidays, the First Circuit and the district courts in the circuit chose to issue several particularly interesting, some would say even compelling, ERISA decisions. And why not? What lawyer wouldn’t want to receive a detailed analysis of one issue or another under ERISA for the holidays? I know I would. So over the next few posts, I will try to run these cases down for you. And while I make a certain light of it, the truth of the matter is that these are particularly interesting decisions, often presenting detailed and thorough discussions of particular points of importance in the realm of ERISA litigation and practice.
I thought I would begin with Stamp v. Metropolitan Life Ins. Co., out of the District Court for Rhode Island which, interestingly, took up the exact same issue under ERISA that David Rossmiller raised - only in his case, out of the Fourth Circuit - of whether an intoxicated driver’s death is an accident, and thus covered, under an ERISA governed accidental death and dismemberment policy, or instead is not.
In Stamp, the district court addressed almost the exact same fact pattern, and applied what has come to be known as the Wickman test to determine whether such a death should be deemed an accident. Here, the district court recognized that there is a split in authority on this question, but concluded that the plan participant’s level of intoxication was such that the death was “highly likely” and therefore not an accident. Based on this reasoning, the district court concluded that the administrator’s determination that the “death was not accidental is reasonable and supported by substantial evidence in the record.”
And finally, as a brief and not particularly important aside, the court also provides an entertaining digression as to whether Mark Twain, or instead Benjamin Disraeli, deserves the credit - or perhaps the blame - for one of my favorite quotes, that "there are three kinds of lies: lies, damn lies, and statistics." The District Court judge concluded that Twain remains responsible for it.
The Fourth Circuit on Equitable Relief and Varity v. Howe
Here is a neat post about a decision last week out of the Fourth Circuit concerning when equitable relief can be pursued by a plan participant. Supreme Court precedent already narrowly cabins that type of a claim, and the Fourth Circuit enforced that approach in the case before it, in which the participant tried to use the equitable relief provisions of ERISA to launch a full assault on the overall claims processing approach of the administrator, rather than being limited to simply seeking the benefits that were denied to her on her particular claim for benefits. As the post describes the issue before the court, and the outcome:
"Varity v. Howe (U.S. 1996), permits individual participants to sue fiduciaries under 502(a)(3) for breaching their fiduciary duties by failing to inform participants, or misleading them, about important changes in the plan. However, there is language in Varity which suggests that such equitable relief under the 502(a)(3) "catch-all provision" is only available if a participant does not have an adequate remedy under one of the more specific provisions under 502(a). . . [T]he Fourth Circuit [followed] this language in Varity when it found that since the plaintiff had an adequate claim for denial of benefits under 502(a)(1)(B), [the plaintiff’s claim for equitable relief ] under 502(a)(3) . . .was not appropriate. "
I read cases like this as part of a general judicial sense that administration of the plan belongs in general in the hands of the administrators and fiduciaries of the plan, with courts to step in only on the narrowest possible grounds and in the most clearly appropriate circumstances, rather than have an employee benefits system in which the courts play a far more intrusive role in the day in and day out management and operation of plans.
The Fourth Circuit decision itself, Korotynska v. Metropolitan Life Insurance, is here.
Mike Webster, the NFL and ERISA
Permalink | They say that professional football is far and away the most successful entertainment business - let alone sports league - in the country, but behind the scenes all is not tea and roses, quite clearly. Anyone who follows the sport knows the physical toll it takes on many of its best players, and a dark story of that aspect of the sport has been playing out in the courts for some time now, involving the debilitating injuries, and subsequent claim for disability benefits, of one of football’s bigger stars, the former Pittsburgh Steelers center Mike Webster. Webster, we learn from a lawsuit his estate brought seeking higher benefits than those awarded to him by the administrator of the National Football League’s retirement plan, “was diagnosed in 1998 with brain damage resulting from multiple head injuries he incurred while playing football.” He thereafter received from the retirement plan the lesser of two possible disability benefit awards available under the league’s retirement plan.
Lawyers for Webster eventually sued the retirement plan, alleging that the plan was governed by ERISA and that the plan administrator abused its discretion in denying the higher of the benefit awards to Webster, and in awarding him only the lower of the two. Discretion was reserved to the administrator in no uncertain terms, and yet the courts had no trouble concluding that the discretion had been abused, and in therefore overruling the plan’s benefit decision. As any of you who practice in this field or regularly read this blog know, a finding that an administrator acted arbitrarily and capriciously and abused its discretion - warranting rejection of the administrator’s determination - is a relatively uncommon event.
As a result, when one gets beyond the sports story interest raised by the case, the interesting question that is left behind is what was it about the administrator’s determination that drove the court to such a conclusion. And the answer to that question is telling: the Fourth Circuit had little trouble concluding that an abuse of discretion had occurred because “[w]hile recognizing that the decisions of a neutral plan administrator are entitled to great deference, we are nevertheless constrained to find on these facts that the Board lacked substantial evidence to justify its denial here. In particular, the Board ignored the unanimous medical evidence, including that of its own expert, disregarded the conclusion of its own appointed investigator, and relied for its determination on factors disallowed by the Plan.”
Well, if you think about it, how can those facts be anything but an abuse of discretion? And in many ways, that is what is different about this case from most denial of benefit cases, in which claimants routinely assert that an administrator wrongly weighed the evidence in the administrative record and therefore committed an abuse of discretion; in those typical cases, the evidence in the administrative record is subject to differing possible conclusions, and ERISA grants the administrator - so long as it was granted discretion by the plan documents - the freedom to select which of those possible conclusions should apply. Here, however, the administrator was not picking among possible conclusions warranted by the evidence, but was instead selecting a conclusion that was entirely contradicted by the overwhelming - and it appears possibly unanimous - evidence before it. That, we see quite clearly in this case, is beyond the outer edge of an administrator’s discretion.
The case, which is interesting for those of you interested in football, in Mike Webster, or in ERISA, is Sunny Jani, Administrator of the Estate of Michael L. Webster v. the Bert Bell/Pete Rozelle NFL Player Retirement Plan, out of the Fourth Circuit this week.
Fourth Circuit Upholds an Administrator's Determination that Drunk Driving is Not an Accident
David Rossmiller - who normally runs, as I have noted previously, from ERISA cases as from a basket of snakes - and Day on Torts both have posts today on the Fourth Circuit’s decision upholding an administrator’s denial of accidental death benefits under an ERISA governed plan where the deceased died in an automobile accident while driving drunk. The administrator deemed that the loss was not unexpected and not an accident for purposes of the plan, and thus not covered under the plan’s terms. The case is Eckelberry v. ReliaStar Life Insurance Company.
In the end, the Fourth Circuit’s decision is really, at heart, simply a case of the court recognizing the administrator’s right to apply a reasonable interpretation to the plan’s terms and to deny benefits if they should be denied based on that interpretation. Interestingly, the court engages in a long and detailed analysis of case law on accidents and unexpected injuries in evaluating the administrator’s decision and interpretation of the plan, but that mostly seems superfluous to me. While the court’s finding that the case law supported the administrator’s interpretation certainly lends support to the conclusion that the administrator’s determination and interpretation of the plan’s applicable terms were reasonable, the finding - and in fact the entire discussion - was probably unnecessary. This is because, at the end of the day - and the court in its opinion makes some gestures in this direction - the administrator’s application of the plan’s applicable terms to a drunk driving accident had to be upheld so long as it was in and of itself a reasonable interpretation of the plain language of the plan. Given the facts of the loss, and the plan’s terms governing what constitutes an accident, interpreting the plan’s terms as not encompassing this loss was well within the range of discretion granted to the administrator, and it really wasn’t relevant how federal courts have, in other contexts or cases, interpreted the term accident.
And in that observation probably lies the answer to the question David posed in his post as to how this case might have been different if it were an insurance declaratory judgment action and not an ERISA action. I doubt, in the end, if the court's approach to the case would have varied much at all. As an ERISA action, as noted above, there really was no need for the court to analyze the judicial precedents bearing on the interpretation and application of the applicable plan terms, and instead the court should have - although it did not - focus simply on the objective reasonableness of the interpretation of the applicable plan terms adopted by the administrator. Rather than considering in depth whether the administrator’s interpretation was consistent with the case law, the more appropriate test would have been to consider whether the administrator’s interpretation was within the range of reasonable interpretations given the facts and the plan language; so long as it was, the determination had to be upheld.
In contrast, as an insurance declaratory judgment action, the appropriate approach would have been to proceed exactly as the court actually did, applying case law to the plan language and deciding based on that case law what interpretation should be given to the plan language. This is, at root, the road followed by the court here.
The Supreme Court, Abatie and Conflicts of Interest
Permalink | I have written extensively before - including both here and here -about Abatie v. Alta Health, the Ninth Circuit’s relatively recent decision revising that circuit’s approach to structural conflicts of interest and the effect such conflicts should have on the standard of review in denial of benefit cases. The Ninth Circuit’s new rule, I noted, placed it in conflict with the position of other circuits on the same issue, most notably, for purposes of this blog, the First Circuit, whose approach is really diametrically opposed to that of the Ninth Circuit on this issue.
The internet is abuzz today with the story of the Supreme Court remanding a denied benefits case back to the Ninth Circuit for further consideration in light of the intervening decision from that circuit in Abatie. SCOTUS blog, really the gold standard in Supreme Court coverage, has the story here, as well as links here to the petition for certiorari filed by the administrator/insurer and here to the Supreme Court order remanding the case for further consideration.
What is perhaps more interesting, to me anyway, is the unknown future of the remanded case in light of that remand. I have written before that Abatie itself reads as though it was written in the hope of becoming the vehicle for the Supreme Court to return to the issue of standards of review and the effect of conflicts of interest on the arbitrary and capricious standard of review. Can we look forward to seeing the newly remanded decision back up to the Supreme Court later, after further consideration by the Ninth Circuit of it in light of the principles enunciated in Abatie, as the vehicle for that inquiry?
On a side note, by the way, the petition for certiorari is itself a terrific review of the split among the circuits on the issues noted above.
Recoupments and Set Offs Under ERISA Plans
Here's a very interesting decision, Northcutt v. General Motors Hourly-Rate Employees Pension Plan, out of the 7th Circuit, upholding the right of administrators to rely on recoupment language in a plan to set off a lump sum social security payment received by a beneficiary against on-going payment obligations to that beneficiary that would otherwise exist under the plan. The problem is one that arises with extraordinary frequency, namely a beneficiary is awarded benefits under a plan, and then later collects a lump sum retroactive award of benefits from social security covering a period of time during which the individual had been receiving benefits from the plan. What happens when the plan contains language declaring that if the lump sum payment is not paid over to the plan, the plan will reduce the benefits being paid until such time as the withheld amount of the benefits adds up to the amount of the lump sum payment in question?
Well, generally the answer is that what the plan says is exactly what is going to happen. Now as you can imagine, beneficiaries are often none too happy when this occurs. They go from thinking a windfall has landed in their laps, in the form of a large retroactive benefit award from social security, to being dunned for the whole amount. Even worse from the point of view of any sort of amicable resolution of the problem as between the plan and the beneficiary, the scenario is often complicated, as it was in Northcutt, by the fact that beneficiaries have often spent the lump sum award before being notified that they actually owe it back to the plan. (I like, by the way, how the Northcutt court described the problem, as being that the sum was "dissipated by the time [the plan administrator ] made its demand" for reimbursement; I might have chosen the term "spent it like a drunken sailor on shore leave without bothering to find out first if they owed any of the money to someone else" if I were the court.)
The plaintiffs in Northcutt were two beneficiaries confronted by this problem and who tried to get around it by creative lawyering, insisting that the recoupment provisions in the plan were an attempt to create some sort of quasi-judicial right of recovery to which the plan was not entitled because it was contrary to, or at least not expressly part of, the rights to relief and causes of action granted by the express language of ERISA to plan fiduciaries. The court caught an obvious problem in this argument, namely that the recoupment was a right established under the plan and was simply part of the express terms of administration of the plan set forth in the controlling plan documents. The recoupment was simply an administrative act, and was not judicial relief or a court action.
The court rejected the plaintiffs' theory, finding that the sponsor clearly had the right to impose such terms as part of the plan, and that the plan was within its rights to simply apply those terms of the plan.
There is, beyond the holding and the interesting presentation of the reasoning behind it, some interesting language in the decision. One part that I like in particular speaks of the general acceptance in the case law of this type of recoupment mechanism, and of the fact that, although the Northcutt plaintiffs tried a novel theory of argument not already rejected by other courts, they were still subject to this same general acceptance of recoupment provisions. To quote the court:
Although Mr. Northcutt and Mr. Smith advance a novel theory in support of their argument, challenges to the enforceability of similar reimbursement provisions are not new. Before other courts, these challenges generally have focused on whether such reimbursement structures might violate particular provisions of ERISA. In these other suits, the plaintiffs have contended that contractually based recoupment amounts to a breach of fiduciary duty by the plan or to a violation of ERISA's anti-assignment provisions. The district courts appear to have rejected each theory and approved, either explicitly or implicitly, of contractually based recoupment.
Employee Welfare Benefit Plans and the Small Employer
Preemption is a tough defense to get around, particularly in the First Circuit, where it is taken quite seriously and numerous decisions expressly declare particular state law causes of action to be preempted by ERISA. One clever response to this problem, at least when the facts will allow the argument, is to try to sidestep any fight over preemption itself by arguing that the benefit at issue was not even provided by an employee welfare benefit plan and that as a result, ERISA does not apply and state law claims over the denial of the benefits are actionable. There is more room to maneuver on such an argument than in a battle over preemption, because the test recognized in the First Circuit for determining whether a benefit was in fact provided by an employee welfare benefit plan is mutlipronged, fact based, and, on at least some elements of the test, rather amorphous. At the same time, however, it doesn't take much for an employee benefit to qualify as an ERISA governed employee welfare benefit plan, at least in this circuit.
The test is laid out and then explored in great detail in a recent decision, James O'Leary v. Provident Life and Accident Insurance Co., by Judge Saylor of the United States District Court here in Massachusetts. The court explained that "an employee welfare benefit plan has five elements: (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. . . disability. . . benefits (5) to participants or their beneficiaries," and that these are factual inquiries. In many instances involving larger employers, the application of these factors and the conclusion that should be reached are transparent from the outset; even without looking closely at the factors, there is little room to doubt that, for example, a large company's disability benefits plan for its employees satisfies these elements and is an ERISA governed plan.
What made the application of these factors interesting in the case before the court was the particular dynamic generated by the fact that it was a small employer and many of the facts at issue with regard to the employment benefit in question were unique to that one employee who was denied the benefits in question and was filing suit. This fact pattern took the case out of the realm of if it "looks like a duck and walks like a duck, its an employee welfare benefit plan," and placed it instead in the realm of coverages that might just be personal to the employee rather than part of an ERISA governed plan. It wasn't, the court eventually concluded, but the analysis in reaching that point is informative.
Preemption, Appellate Review and Plan Interpretation in the First Circuit
The First Circuit released its most recent ERISA decision, Carrasquillo v. Pharmacia Corp., a few days ago. Of interest in the decision, the court notes the standards that the appellate court should apply in reviewing a district court's entry of summary judgment when the arbitrary and capricious standard applies. The court reiterated that while the First Circuit reviews a district court's summary judgment decision de novo, if the district court's decision was governed by "arbitrary and capricious review, [the First Circuit] evaluate[s] the district court's determination by asking whether the aggregate evidence, viewed in a light most favorable to the non-moving party, could support a rational determination that the plan administrator acted arbitrarily in denying a claim for benefits;" if not, then the First Circuit will uphold the plan administrator's determination.
The First Circuit also spends a little time in this case reemphasizing that an administrator's interpretation of the plan terms, and not just its ultimate benefit determination, is to be accepted and applied by the court in ruling on the challenge to the benefit determination so long as the administrator's interpretation was not arbitrary and capricious, if the plan reserved discretion over such interpretation to the administrator. And what does it mean to be an interpretation that is not arbitrary and capricious? It simply means the interpretation needs to be reasonable.
The court also returned to what was once a common point of contention in this circuit, namely whether and to what extent judicial review of a benefit determination is limited to the administrative record that was before the administrator at the time the administrator decided the claim for benefits. A series of First Circuit opinions issued in the last few years put an end to any question over this issue, to the point that in this most recent decision, the First Circuit saw no need to make any further comment on this point than to note that "there is a presumption that judicial review is limited to the evidentiary record presented to the administrator."
And finally, in something I liked, the court summed up the state of preemption law in this circuit, and provided a nice little handy one paragraph starting point for lawyers who might brief preemption issues before the district courts of the First Circuit in the future, stating:
We next turn to the district court's finding that Otero's state law claims are preempted by ERISA. In light of ERISA's goal to promote uniformity in the nationwide regulation of employee benefit plans, Congress designed the statute to supersede "any and all State [causes of action] insofar as they may now or hereafter relate to any employee benefit plan." Id. (emphasis added). 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. . . . Because the resolution of Otero's Commonwealth law claims for fraudulent inducement and intentional infliction of emotional distress would require analysis of the Plan, the district court correctly concluded that they are preempted.
What Standard of Review Applies to a Claim That Was Never Reviewed?
We have talked a lot about the different standards of review that courts should apply when reviewing an administrator's decision concerning a claim for benefits under ERISA. But what about if the administrator never applied any review at all before the dispute ended up in the courts? Courts differ on whether this should change the standard of review, with many finding that, under those circumstances, a reviewing court should apply a de novo standard of review even if the plan reserved discretion to the administrator (something which would normally mean that the more deferential arbitrary and capricious standard of review should apply).
The First Circuit has not passed on this issue, but the federal district court here has just come out with its conclusion: it means nothing more than that the entire matter is remanded back to the administrator to actually perform the required review. You can find the case here.
More from the Academy on ERISA Standards of Review and the Conflicted Decision Maker
Allright, here's another law review article, this time out of the Oklahoma Law Review by way of Workplace Prof, complaining about the standards of review currently applied by the courts to ERISA benefit denial cases. Although I haven't yet read it - I just finished Langbein's on the same topic, and I'm not ready to delve into another article on the same subject just yet -the article proceeds as follows:
Part II below provides background analysis of the ERISA standard of review controversy. This Part illustrates the continuing failure of the circuit courts to produce a consistent and just claims process in employee benefit cases where courts defer to self-interested plan administrators. The analysis begins with Firestone and its pronouncement that trust law should guide review of challenged benefit claim denials.
Next, Part II argues that the lower courts have struggled to tease a clear message from Firestone's "opaque" standard of review analysis. In particular, this Part explores the Tenth Circuit Court of Appeals's attempt in Fought to cure this wounded process, and we describe the unfortunate failure of the Tenth Circuit to discover a trust law-based antidote to Firestone.
Finally, Part III of this comment works within the parameters of Firestone to re-introduce the historic trust law-based solution to the problem of self- dealing fiduciaries: the no-further-inquiry rule. Here the article capitalizes on prolific trust law and ERISA scholar Professor John H. Langbein's recent examination of the no-further-inquiry rule. Professor Langbein's analysis is adapted to support a thesis that he did not reach, by applying his discussion of the no-further-inquiry rule to ERISA benefit cases. This Part describes how the summary adjudicative process, invented by contemporary ERISA courts under the guise of deferential review, mimics the archaic circumstances existing in courts of equity that spawned the no-further-inquiry rule.
Finally, Part IV concludes that ERISA courts should apply the no-further-inquiry rule to irrebuttably counter the mischief that courts have historically presumed attach to the actions of self-dealing fiduciaries. Ultimately, by application of the no-further-inquiry rule in ERISA benefit claims, courts can, and should, return federal Article III trial judges to their role as neutral, de novo referees in plan participant claims for benefits due under ERISA.
There is an assumption, as one can see from this, in the academic literature that self-interested fiduciaries are up to no good, can't be trusted, and won't be caught by the current standards of review applied by the courts. Poppycock I said, in essence, here. But this emphasis on an academic and hypothetical level as to whether the applicable standards of review are appropriate raises an interesting real world question: namely, how often would court decisions reached in cases decided under the arbitrary and capricious standard (a level of review that law school faculty appear to uniformly find fault with when applied by a conflicted decision maker) be different if the court had instead applied the de novo standard of review (which the academy seems to uniformly prefer)? I wouldn't mind seeing an article that took fifty denied benefit cases and presented the findings of such a review. With courts applying an ever more searching scope of review when applying the arbitrary and capricious standard of review than they may have done in the past, I don't see that high a percentage of cases, either in my own practice or in the reported decisions, that would end up with a different result under one standard of review than under the other. The litigation over the case, including the extent of discovery and the expense, might change, but I am skeptical whether the outcome would be different if you changed the standard of review.
The Unum Provident Problem
I have spent some time recently reading a draft version of Yale Professor John Langbein's article, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials under ERISA. For those of you who have more socially redeeming hobbies (like mowing the lawn, watching paint dry, pretty much just about anything I suspect) than reading law review articles, the good professor essentially argues that the Unum Provident problem, referenced here, shows that the current regime under which ERISA benefit claims are litigated is one giant failure and that the Supreme Courts needs to alter the jurisprudence governing denied benefit claims. For those who would like more detail on what the article has to say in full, without having to spend the time reading the article in its entirety, the abstract of the article is here.
I have a few initial thoughts in response to the article, some of which perhaps I will flesh out in greater detail in future posts if time allows. Here they are, however, in a nut shell.
One, the good professor makes the case that Unum Provident's conduct in handling claims and the questionable conduct uncovered in investigations into its conduct show that the governing legal regime needs to be changed. Not really. To avoid the obvious fact that Unum Provident may simply be an outlier, which has already been caught by the system currently in place, Professor Langbein has to create a straw company, asserting that Unum Provident was caught, but only because it was clumsy and the regime should be fixed to protect against other companies acting the same way, only with more subtlety. I don't see any evidence that other companies are doing this, or that, if so, they are so good at what they are doing they won't be caught in the same way that Unum Provident was nabbed. Indeed, the professor points out that Unum Provident was partly caught by a long run of federal court decisions in which judges found Unum Provident's claims decisions to be highly questionable under the standards of review currently in force; a different insurer trying the same thing is going to run into the same problem. Hiding from shadows is what I would call it, changing an entire legal structure on the theory that somewhere, there might be someone doing something wrong, but we don't know about it.
Second, on a micro level, the truth is that unscrupulous claims handling of the kind described in the article is caught in litigation in the federal courts, and thus the improper rejection of a particular claimant's benefit claim can be and is resolved successfully under the current system and standards of review. In fact, if anything, we see courts providing an ever more skeptical review of administrators' decisions even under the arbitrary and capricious standard of review as it currently exists than we ever have, for the exact reason, I believe, of making sure no administrator is trying to hide improperly motivated decision making behind the cloak of judicial deference that is owed to an administrator who is acting with discretionary authority.
Third, on a macro level, litigation is an awfully blunt instrument for modifying long term corporate behavior, and I am skeptical that changing the standards of review that apply to denied benefit claims will have such an effect. It may well be that the combination of the current standards of review, which do contain effective protections of the rights of individual claimants, with a vigorous state level regulatory apparatus is the correct way to proceed. This combination did, after all, successfully handle the Unum Provident problem.
Fourth, I am not convinced that the Unum Provident problem really shows, as the article wants it to, a problem with courts relying on market place forces to provide some protection against biased and self-serving decision making by administrator/insurers. Courts assume that in the long run, such companies will be hurt by such conduct when competing for business in the marketplace, and that this will have a deterrent effect. Critics of this thinking like to point to Unum Provident and its size in the market to prove otherwise. But I am not sure it proves anything of the sort. As the professor points out, Unum Provident is the product of a series of mergers and acquisitions, and one has to ask whether a company that stands accused of the type of misconduct that Unum Provident is charged with could have grown so large organically. Unum Provident may well show that the problem/hole in the system is in the mergers and acquisition regime, not in the benefit review regime.
Finally, a quick note of thanks to Workplace Prof Blog and Benefits Blog, without whom I would never have noticed the professor's paper, since I generally don't spend time surfing faculty websites (their blogs, yes, but not their websites). You can find a link to the the actual paper, by the way, here.
Abatie, Part II
I don't want to leave the impression that the Ninth Circuit's decision in Abatie is a wacky or fringe decision, or that I think that myself. Far from it. The new rule it announces for that circuit on the effect of structural conflicts is certainly well within the margins of current mainstream jurisprudence on the issue, probably more so than the somewhat Rube Goldberg like burden shifting contraption that the Abatie court described the circuit as previously applying to such conflict situations. It is fair to say, though, that with regard to the core of its ruling, I simply don't agree with the premise that the conflict of interest alone, without a showing that the conflict actually played a role in the decision making at issue, should affect the standard of review. It is not as though other circuits don't take such conflicts into account, as they do and they should. But I think the more appropriate rule is to have that conflict only matter if the claimant can show that it actually mattered; i.e., that it affected the decision made by the plan or its administrator. This is, in essence, what the First Circuit required in Janeiro, as discussed here. And requiring this simply should not be a significant issue, since proving a conflict of interest, based on documents or testimony, is - or at least should be - a standard arrow in the quiver of any competent trial lawyer; there is no quicker way to discredit testimony on cross examination than to show the speaker had agendas other than the truth in mind when he or she spoke. So at the end of the day, I don't think the broad, throw the baby out with the bath water condemnation of all insurers and of all administrators acting while burdened with a structural conflict that Abatie enacts is warranted; you can clearly protect against the undue influence of such conflicts in a more nuanced and fact specific manner than what the Ninth Circuit has chosen to do.
So to those I have heard from who are concerned that the reliance on the market argument that I presented here is too favorable to insurers/administrators and does not provide sufficient protection against having benefit determinations swayed by such conflicts, I can say only this in a short piece: I do think market discipline works against any tendency for such decisions to be swayed by conflicts of this nature, but when the market is not enough to prevent it, an aggrieved party is still protected against having a benefit determination affected by the conflict simply by proving that the conflict actually did affect the outcome of his or her particular claim. Market forces and an evidence based rule to protect claimants is a nice one - two punch, and certainly seems more preferable to me than simply assuming that all decisions made by an administrator who must pay any benefits that are awarded are always suspect.
And as to why I am not fond of that latter approach, I will hopefully return to that point in a subsequent post, for those of you who, like me (I hope I am not the only one), simply can't get enough of Abatie.
First vs Ninth, and Structural Conflicts of Interest in ERISA Litigation
A frequent correspondent, even though he normally runs from ERISA cases as though he 'd been handed a basket full of snakes, forwarded me the Ninth Circuit's decision from earlier this week in Abatie v Alta Health and Life Insurance. Fascinating opinion. I could write an article or even a book on the decision, given its themes, its discussion of the historical development of the law on certain issues, and the rules for benefit litigation in the Ninth Circuit it declares (but that is what this blog is for, to discuss these kinds of things in a more timely manner than could be done in these other forms of media). What this means is you will probably see multiple posts on it from time to time, on different facets that are worth shining a light on.
For now though, what I wanted to comment on is its central focus, namely the impact on the standard of review of what is known as a structural conflict on behalf of a plan administrator in cases where the plan grants discretion to the administrator (and as a result the court should be applying the arbitrary and capricious standard of review to any judicial review of the administrator's decisions). I discussed structural conflicts and their effects a couple of days ago in a post on how the First Circuit deals with such a conflict. To reiterate, as the Ninth Circuit phrased it In Abate, "an insurer that acts as both the plan administrator and the funding source operates under what may be termed a structural conflict of interest." The First Circuit recently reaffirmed that this type of conflict, without more - namely proof that the administrator actually had a real world, not just a hypothetical, conflict, and made a benefit determination that was truly influenced by it - does not alter the standard of review. In contrast, the Ninth Circuit believes it does affect it, and how it does so is the primary subject of the opinion in Abate.
The rationale for the belief of the First Circuit, and other circuits that follow the same line of thought, that such structural conflicts can be ignored is that market forces should be sufficient to dissuade administrators from declining to pay benefits simply because they are the source of the funds, the idea being that, over time, market forces will punish those who do and reward those who do not. These structural conflicts usually entail insurers who both insure the benefits at issue and administer the claims made for benefits under the plan. The idea is that there will be a flight to quality, if you will, by plans and the companies who run them to insurers/administrators who do not act to their own benefit and the detriment of the plan's participants as a result of such a conflict.
Now, I am not totally convinced by this line of thinking, and clearly the judges of the Ninth Circuit aren't either, but I am more inclined than not to agree with it. I have never been totally inclined because it has always felt too much like what happens when lawyers play at being economists; they find a nice sounding macroeconomic idea and apply it as though true, without it ever having really been rigorously tested. On the other hand, based on my own experience of seeing, both in my own practice and in the case law, hundreds of cases in which such a conflict existed, it seems to me that the anecdotal evidence is clear that this reliance on the market does in fact seem to work and account for any problems posed by this potential conflict. The better companies that insure and/or administer plans do not, in fact, act out this conflict, even without anything more elaborate in the case law to prevent them from doing so than the assumption that the market will take care of the problem. My own belief is that such an approach is just the natural outgrowth of the overall mentality -from hiring to training to accountability - of the better run companies, who seem to operate on the assumption that good business practices pay off, or as I am inclined to say, that good business is itself good business. Recent research suggests that this may just be the case, Enron and the like notwithstanding; research indicates that "ethical business practices generate better financial performance," at least in the insurance industry (on this point, see here and here and here as well).
Meanwhile, the lesser companies, who may - it is almost never, if ever, really proven on the evidence to my satisfaction that they are doing so - be acting based on such a conflict, usually get caught and defeated simply under the traditional arbitrary and capricious standard without any change being imposed on the standard of review based on the existence of a mere structural conflict. And why is this? Because the administrative record, on which the court is basing its decision if the scope of review is the arbitrary and capricious standard, won't sufficiently support the decision of such a conflicted administrator if the conflict is the real reason for the denial of benefits. If you think about it, it is both logical and points out the irrelevance of the structural conflict. If the administrative record actually supported the administrator's decision to deny the claim, than the conflict either didn't exist or was irrelevant: the record evidence justifies the denial, and it is irrelevant if the claim was also denied because the administrator was also acting due to the conflict it faced. On the other hand, if the record evidence doesn't support the denial (which will presumably be the case if the only reason for the denial is the administrator's conflict of interest), than the administrator's decision will be overturned by the court as having been an arbitrary and capricious decision since it lacked sufficient support in the record, regardless of whether or not the reason for the denial was the administrator's conflict of interest.
So maybe I am a bit of a hometown fan, but I'll go with the First Circuit on this one.
Proving a Conflict of Interest in the First Circuit
What happens when a long time business relationship falls apart, and the principal who had been serving as the administrator of the business' employee benefit plans starts making benefit determinations intended to avoid unnecessarily enriching the other principal? Well, one of the most interesting things that happens - besides expensive litigation and an eventual award that makes a significant impact on the plan's assets - is that the standard of review applied by the court changes, and the playing field becomes far better for the aggrieved party than it otherwise would. This according, at least, to a terrific decision issued last week by the First Circuit, Janeiro v. Urological Surgery Professional Association.
In Janeiro, the plans, which were apparently well - and professionally - designed, granted, as most such plans do, discretion to the administrator; such a grant normally requires a court hearing a dispute over benefit decisions by the administrator to apply a deferential level of review to such disputes, under which the administrator's decision must be upheld unless it was arbitrary and capricious. Normally, the plan participant or beneficiary tries to avoid the application of this standard by claiming that the administrator was acting with a conflict of interest, since it is correct that, as a general proposition only, a conflict of interest can preclude application of that deferential standard of review.
But the trick, however, is in the details. The First Circuit does not lightly acknowledge or recognize such conflicts, as I talked about in an earlier post, and the First Circuit emphasized this again in Janeiro, noting that so-called structural conflicts, which are situations where the administrator has a financial interest in whether or not to award the benefits, without more, do not justify an alteration in the standard of review. In Janeiro, however, the court went on to show what does constitute a conflict that justifies such a deviation in this circuit: evidence that the administrator was driven by animus towards the participant and actually misapplied the plan terms as a result. Of particular interest is the fact that the court made it a point to note that the evidence showed that the conflict on the part of the administrator played a "real role" in the administrator's decisions; it is notable that the court emphasized this point given that the First Circuit has reliably rejected claims of conflict on the part of the administrator where the claimant has not been able to show an actual linkage between the alleged conflict and the decisions made by the administrator.
Now Janeiro involved a small scale retirement plan, making it easier to show such a thing (and making it more likely as well that the parties involved knew each other well enough for personal animus to even come into play, since it is familiarity, after all, that supposedly breeds contempt). This is obviously much less likely to be the case with large employee benefit plans administered by independent third parties. As a result, while Janeiro can be understood as standing for the proposition that a conflict sufficient to alter the standard of review is shown by proving an actual linkage between the administrator's decision and the administrator's motivations, that window for proving a conflict is unlikely to be of much use in most cases.
Interpreting ERISA Plans and Insurance Policies
ERISA on the web generally does a nice job of chronicling ERISA decisions out of the Eleventh Circuit, but one of its recent posts, about an August 8th decision by the United States Court of Appeals for the Eleventh Circuit, jumped out at me more than most. The post discusses the case of Billings v UNUM Life Insurance Company, a case involving whether a pediatrician was entitled to continued disability benefits after being disabled due to obsessive compulsive disorder, or whether, instead, the mental health limitation in the plan limited the length of time to which he was entitled to benefits. Although the case presents a somewhat unusual, and certainly curiosity invoking, fact pattern, that is not what drew my attention. Instead, what caught my eye when reading the post was that it discussed the decision and described the court's reasoning in a manner that made me think not of ERISA litigation, but instead of the other focus of this blog, insurance coverage litigation. As the post described and the court's opinion reflects, the Eleventh Circuit decided the question by applying rules of policy construction to the plan language at issue that we more often see in insurance coverage disputes, such as the doctrine of contra proferentem (a fancy way of saying construe ambiguities in the document against the drafter, which in the insurance context most often means against the insurer); the court then decided on that basis whether or not the plan language limited the physician's benefits.
The post left hanging the question of why such an approach was applied, rather than the more typical approach of the court yielding to the administrator's interpretation of the plan language and ultimate decision so long as both were reasonable and rationally supported by the evidence, but it was easy to guess the reason, and a quick jump over to the opinion itself confirmed it; the plan at issue did not grant discretion to the plan administrator, meaning that the court, and not the administrator, was the ultimate decision maker on the issues presented by the claim.
What interested me most about the case, and the post, was that it illustrated the extent to which if you remove the deferential standard of review usually required of courts deciding benefit cases under ERISA from the equation, they would become, essentially, insurance coverage cases, consisting of a dispute over the plan language and an eventual decision by a court over which interpretation - that favored by the plan or that favored by the claimant - should be selected, with the outcome of that determination essentially deciding who wins. That is insurance coverage litigation in a nutshell, but normally is not ERISA benefits litigation in a nutshell.
It's a bird, it's a plan . .
This being - roughly - the start of a new month, I engaged in my usual habit of reviewing any ERISA decisions issued in the past month by the courts in the First Circuit, just to make sure I didn't miss anything while busy with the usual run of business. As it turns out, on July 20th, the United States District Court for the District of Rhode Island issued its opinion in Holm v. Liberty Mutual Life Assurance Co. and Bank of America , a case in which an employee who had resigned from a company without first seeking disability benefits thereafter sought them later. In many ways, this is a traditional denial of benefits decision in this circuit, with the court finding that the plan granted the administrator sufficient discretion to invoke the arbitrary and capricious standard of review and then finding that under that standard the administrator's denial of benefits must be upheld since there was sufficient evidence in the record to support the decision. The court does offer some good language, and a good synopsis of the circuit's most popular decisions, on these points, and, frankly, you can tell on one read of the opinion that the outcome should have been the same regardless of the level of review applied by the court.
What makes the decision more interesting than most, however, is that the case presented the somewhat unique situation of the defendants raising the question of whether the benefit was even provided under an ERISA governed plan, and the court provides a nice summary of the law in this circuit for making that determination. As per the court (I have left out the cites):
ERISA provides a broad definition for employee benefit plans, and this definition has been divided by the First Circuit into "five essential constituents:"
(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 ... (5) to participants or their beneficiaries. . . . In determining whether a specific plan is an ERISA plan, the First Circuit reviews the extent of the employer's role in administering the benefits. Those obligations are the touchstone of the determination: if they require an ongoing administrative scheme that is subject to mismanagement, then they will more likely constitute an ERISA plan; but if the benefit obligations are merely a one-shot, take-it-or-leave-it incentive, they are less likely to be covered. Particularly germane to assessing an employer's obligations is the amount of discretion wielded in implementing them.
The court had little trouble concluding that the benefit plan in question was "clearly an employee benefit plan as defined by the ERISA statute" in light of the actual facts of the matter.
One of the problems that insurers, and insurance law, have to confront is the distortion in behavior, economic and otherwise, that insurance can create. Insurance coverage law deals with this problem in a number of ways, such as by means of the known loss doctrine, which - although the specifics of its application vary from jurisdiction to jurisdiction - essentially holds that a person cannot insure against an expected, existing or highly probable loss. As such, it prevents an insured company or individual from insuring against something the company or the person intends to do and knows is likely to cause harm. One can think of the known loss doctrine in this context as protecting against people undertaking harmful activities that they would not otherwise have done if they did not think they could insure themselves against the consequences.
We can also understand the various treatments given by the courts of different states to the question of whether a punitive damages award against an insured is insurable as being part of the same thought process. . . .
The Hidden Law of ERISA: An Introduction
I don't always understand the thinking of the federal courts with regard to selecting opinions to publish and those not to publish. Certainly, I understand the criteria they seek to apply, but sometimes the end result is curious. The federal district court for Massachusetts recently chose not to publish a summary judgment opinion in the case of Kansky v. Aetna Life Insurance Company and Coca-Cola Enterprises. Obviously, the court' s prerogative. The opinion, however, is 42 pages long and surveys a range of issues of significance in ERISA benefits litigation, although on many of those points it may not break any new ground. Of some note, though, the court explicitly addressed and distinguished as inapplicable to the case before it a leading published First Circuit decision on preexisting condition limitations, Glista v. Unum Life Insurance Company, 378 F.3d 113(1st Cir. 2004). Glista is regularly cited by plaintiffs challenging plan determinations concerning preexisting condition limitations, and it would certainly be useful for both the bar and courts to have access to a well reasoned opinion, such as the Kansky decision, that explains when Glista is inapplicable.
As this case illustrates there is, in essence, a hidden law of ERISA, one that cannot completely be researched through published decisions. I speak here not only of final rulings that are not published but might at least be available on westlaw or similar services, but also of interlocutory rulings that are unlikely ever to "be published on westlaw," as brief writers who are violating court rules about citing unpublished decisions like to say.
An Interesting New ERISA Decision
Judge Woodlock of the United States District Court for the District of Massachusetts has issued a comprehensive 42 page summary judgment opinion concerning a challenge to the denial of benefits under an ERISA governed plan. The opinion, Kansky v. Aetna Life Insurance Company and Coca-Cola Enterprises, available on the court's website at http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=woodlock/pdf/kansky%20may%201%202006.pdf, surveys a number of issues, ranging from conflict of interests and their impact on the standard of review to penalties for failing to produce requested plan documents. At its heart, however, is the issue of when a preexisting condition restriction in a plan can be invoked to deny benefits.
Full disclosure and self-congratulatory note: I represented all of the prevailing parties in the case.