Nothing's Ever Simple in the World of ERISA: Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan
Here is a wonderful analysis – which manages to both review its past and guess intelligently at its future - of Montanile v Board of Trustees of the National Elevator Industry Health Benefit Plan, the latest Supreme Court case to try to determine the scope of equitable remedies available under ERISA. Montanile, scheduled to be argued on November 9, is yet another case trying to establish the rules as to when a plan can recoup, out of a participant’s litigation recovery, the medical expenses it paid for the participant. Any experienced personal injury lawyer, whether plaintiff or defense side, will tell you that repaying most liens out of a recovery is a no-brainer, something that is accepted as a matter of course, but these usually involve workers compensation liens. What complicates the scenario here is, quite simply, ERISA, something which many lawyers who don’t practice in the area would insist always complicates things. More specifically and precisely, what complicates this particular case is the fact that the medical expenses were paid by an ERISA governed plan, and the recovery was spent by the participant without first repaying the expenses to the plan. ERISA complicates the question of whether the plan is entitled to repayment because, first, ERISA provides a limited group of remedies and the claim for repayment must be shoehorned into them if it is to succeed, and, second, ERISA pulls in historical concepts of equity jurisprudence for purposes of making this decision.
The fact that these two factors may alter an otherwise expected right to reimbursement is somewhat ironic here, in a what’s sauce for the goose is sauce for the gander kind of way. These elements –the limited remedies available under ERISA and the tight limitation on equitable remedies in the ERISA context – have long complicated participants’ ability to recover from plans and fiduciaries; now, here, they complicate a plan’s ability to recover from a participant.
What Osberg v. Foot Locker Teaches About Equitable Remedies Under ERISA
Is Osberg v. Foot Locker a tipping point? Only time will tell, but it has that feel about it.
I have written extensively in the past on the orphan-like status of equitable remedies in ERISA litigation related to plan communications: all agree that a range of traditional equitable remedies is now open to participants, but courts have been very reluctant to adopt them, both doctrinally and as a practical matter, where the dispute concerns a disjunct between what a plan provides and what plan communications state. As I have written before, when participants in ERISA governed plans seek equitable relief, circuit courts of appeal seem intent upon reading in stricter requirements for equitable claims than exist in other areas of the law, and on enforcing existing elements of traditional equitable remedies more strictly than they do in other types of cases. I have argued that, underlying this tendency of the courts, is an understandable concern about the risk of turning every ERISA case into a “he said, the plan administrator said” case; judges do not want to birth equitable approaches to ERISA cases that turn every dispute into an argument by a participant that he or she was told something different, perhaps by a low level HR contact or perhaps in a written plan communication, than is actually provided under the express terms of a plan itself, with the participant arguing that he or she is therefore entitled to what was said rather than what was written in the plan. One can easily see a broad view and application of equitable remedies in the ERISA context, particularly with claims of equitable estoppel, giving rise to such a circumstance.
I have also always thought, however, that the concerns underpinning this view are overstated. There are, in fact, many instances in which a participant has a serious, well-documented claim of being told in writing one thing, under authorized or required plan communications, and then being given something else under the plan. There is no reason why, when there is a sufficient evidentiary basis to support the claim that a participant was misled about plan benefits, that the participant should not be allowed to proceed with an equitable remedies claim in that context, and, if the participant can prove it, to then be awarded the benefits he was led to believe existed. In that scenario, this type of case simply becomes like every other claim for equitable remedies, in every other context of the law that I can think of: if you say the defendant misled you and you should recover more as a result, then prove it on the evidence. It doesn’t require doctrinal bars or judicial reluctance to recognize equitable claims to avoid excessive litigation in ERISA cases over these types of circumstances; all that is required is testing the evidence just as would occur in any other type of case.
In fact, any concern that openly adopting and enforcing equitable claims in the context of ERISA will give rise to endless numbers of meritless claims is unwarranted. Preventing this “parade of horribles” requires nothing more than a strict interpretation and forceful application of Iqbal and Twombley – if the plaintiff cannot show the elements of an estoppel claim, for instance, based on significant factual support in pleading the claim, then the plaintiff’s claim can and should be tossed out on a motion to dismiss. Wasn’t this the original point of those two decisions, and the extent to which they raised pleading requirements? To bar the courthouse door to claims where the plaintiff cannot actually plead a factual basis for all of the elements of a claim? Courts can successfully bar the courthouse door to unfounded equitable relief claims under ERISA simply by strictly enforcing the pleading requirements of Iqbal and Twombley, and thereby dismissing estoppel and other equitable relief claims that do not have a substantial factual basis.
Nonetheless, there has been ample skepticism in the case law over the past few years towards equitable relief claims brought under ERISA. A couple of weeks ago, however, in Osberg v. Foot Locker, the Southern District of New York gave broad equitable relief to participants based on a reformation theory. In a well-reasoned 83 page opinion, the Court explained that there was more than sufficient evidence to demonstrate that the participants were actively misled about the extent of their retirement benefits. As one excellent summary explained:
U.S. District Judge Katherine B. Forrest of the U.S. District Court for the Southern District of New York found that the plan’s summary plan description (SPD) as well as other communications to participants failed to inform them that their benefits would be in a period of “wear-away” during which new accruals would not increase the benefit to which a participant was already entitled. . . . “Here, there is no doubt that Foot Locker committed equitable fraud,” Forrest wrote. “It sought and obtained cost savings by altering the Participants’ Plan, but not disclosing the full extent or impact of those changes.”
The Court ordered that “the plan must be reformed to actually provide the benefit that the misrepresentations caused participants to reasonably expect.”
Importantly, the Court’s opinion was based on substantial and extensive evidence proffered to show misleading statements about the benefits, the effect of those statements on participants, and the manner in which they differed from the actual plan terms. Enforcing equitable remedies under ERISA by focusing on whether the evidence supports the charge, as Osberg shows, is all that is necessary to separate the wheat from the chaff when participants come to court challenging plan decisions based on equitable remedies.
So is Osberg a tipping point that may lead the way to a less grudging view by the courts of equitable relief claims under ERISA where allegedly misleading plan communications are at issue? Time will tell, but it has all the indicia that past tipping points in other areas of ERISA litigation, such as excessive fee disputes, have had: a well-reasoned decision by a well-respected court, well-founded in the evidence. If the Second Circuit eventually affirms it, I think we can all expect that, yes, in fact, a tipping point on these types of claims has in fact been reached.
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.
Tetreault, Gabriel, and the First Circuit's Reluctance to Recognize Equitable Estoppel in ERISA Cases
The First Circuit issued an interesting ruling early last month that touched on a number of issues, but one that jumped out at me was its approach to the question of equitable estoppel claims under ERISA. In Tetreault v. Reliance Standard, the Court rejected an estoppel claim, but once again – as it has done a number of times in the past – refused to come out and recognize estoppel as a viable claim under the equitable relief prong of ERISA. Instead, the Court applied the logical structure of first noting that the circuit has not yet recognized estoppel as a viable cause of action, and then stating that, even if it were to be recognized as a viable cause of action, the plaintiff’s claim would still fail because the plaintiff could not show its elements, namely, in that case, reasonable reliance.
When I first read the decision, I chuckled to myself, wondering why the Court couldn’t just come out in one of its rulings and expressly acknowledge the existence of estoppel as a viable remedy under the equitable relief prong of ERISA. As I said to one fellow ERISA litigator, isn’t it time for the Court to just come right out and say equitable estoppel exists as a claim under ERISA in the First Circuit? After all, we are something like three years on now from the Supreme Court’s ruling in Amara, which clearly seemed to tell lower courts that equitable estoppel claims are part of the traditional forms of equitable remedies captured in the statute’s equitable relief prong.
In preparing for a talk on ERISA litigation to the Boston Bar Association last week, however, I think I came up with an answer to that riddle, and it rests in the Ninth Circuit’s decision in Gabriel v. Alaska Electrical Pension Fund, where that Court surveyed the post-Amara forms of equitable relief open under ERISA. That decision has received most of its attention – for good reason – for the Court’s discussion of the surcharge remedy, and whether it only applies where there was loss to the plan itself and not just to an allegedly misled plan participant. However, Gabriel has another interesting element, which is the Ninth Circuit’s discussion of the equitable estoppel remedy, which that circuit does recognize under ERISA. The Ninth Circuit explained that equitable estoppel requires, in that context, the existence of additional elements beyond the traditional two of a misstatement and accompanying harmful reliance on it, namely the existence of extraordinary circumstances, such as repeated misleading statements by a plan sponsor/employer.
As I prepared the part of my talk that concerned Amara remedies, I posed the question of why the Ninth Circuit requires such extraordinary circumstances and, further, what that told us about the First Circuit’s reluctance to fully acknowledge equitable estoppel as a claim under ERISA. The answer, I think, lies in the institutional desire to avoid turning every ERISA denial of benefits dispute into a “participant said/employer said” back and forth dispute, with the courts forced to constantly adjudicate the factual question of whether the participant was misled whenever the participant isn’t actually entitled, under the plan’s terms, to the benefits sought by the participant. By adding on additional factors that must be proven to make out an estoppel claim, such as the Ninth Circuit’s reference to extraordinary circumstances, the courts are able to mitigate this risk and limit equitable estoppel claims to the more egregious or most factually viable circumstances. For instance, in Gabriel, when the Ninth Circuit discussed the need for extraordinary circumstances, the Court gave, as an example, repetitive misleading statements by the employer with regard to the benefits at issue or the benefit plan. As an evidentiary bar, this requirement separates the routine case where there is a random misstatement from a low level HR person upon which a plaintiff’s lawyer tries to fashion an entire estoppel claim (which federal court judges have been seeing, and for the most part rejecting, for years) from a deliberate pattern and practice of self-serving conduct that harms participants (and which federal court judges don’t see all that often). These types of additional requirements for estoppel claims under the equitable relief provision of ERISA, above and beyond the standard requirement of reasonable reliance on a misstatement of fact, allow the courts to limit this type of relief, in the ERISA context, to the more egregious circumstances only.
In many ways, doing so makes complete sense, for at least two reasons. First, it harkens back to ERISA’s grand bargain, whereby employers were to be encouraged to create benefit plans by being protected from excessive (I know, I know, the question of when litigation becomes excessive is in the eye of the beholder) litigation, and limiting estoppel claims to only the egregious ones is of a piece with this. Second, it accomplishes what many of us saw as the real benefit – and perhaps judicial purpose – of the Supreme Court’s seeming expansion of equitable remedies in Amara: the granting of a form of relief that would target ERISA’s long standing problem (again, I know, I know: whether it’s a problem is in the eye of the beholder) of harms without a remedy, which lawyers have always used to refer to the fact that ERISA’s limited bodies of remedies left some harms suffered by participants incapable of being remedied by court action. This type of a limited, restricted expansion of equitable remedies with regard to estoppel claims bars opening the courthouse doors to every unhappy participant while still allowing for the possibility of using estoppel to remediate the worst of the harms suffered by participants in circumstances where the denial of benefit and breach of fiduciary duty prongs of ERISA do not offer access to relief.
So to circle back, how does this tie into the puzzle of the First Circuit’s refusal, lo these many years after Amara, to formally recognize equitable estoppel claims under ERISA’s equitable relief prong, despite the opportunity presented, most recently, in Tetreault? The answer, I think, is that the Court is waiting, as the right vehicle for formally acknowledging the cause of action, for the type of egregious fact pattern in which relief by means of equitable estoppel is warranted. Presented with such a fact pattern, the Court will be able to explain what additional factors are present in the case that raise it above the typical type of claims that, I suspect, the Court does not want to capture within the equitable relief prong of ERISA, thus demonstrating and establishing what additional elements, beyond simply a misstatement of fact and reliance, are necessary to make out an estoppel claim under ERISA. In other words, the First Circuit, I believe, is waiting to recognize estoppel as a cause of action under ERISA for the type of case that will allow it to announce what extraordinary circumstances the First Circuit requires for a misstatement to give rise to estoppel, much as the Ninth Circuit identified in Gabriel the extraordinary circumstances that it requires. When that fact pattern finally gets before the First Circuit is when you will see the First Circuit formally recognize estoppel as a theory of liability under ERISA.
What Rochow Teaches Us About Amara Remedies, and What It Doesn't
You know, I have been wanting to sit down for weeks – at least – to write about Rochow v. Life Insurance Company of America, initially with regard to the extraordinary remedy initially imposed by the court and then later with regard to the Sixth Circuit’s decision to return to the issue by hearing the case en banc, but I just plain haven’t had the time to write in detail on something that raises so many issues. Beyond that, I am not convinced that the problems raised by Rochow, and the issues it requires observers to consider, are well-suited to the form of a blog post, as there is simply a lot of ground to cover to be able to talk intelligently about the case. This latter problem, though, was solved for me by Alston & Bird’s Elizabeth Wilson Vaughan, who somehow summed up the entire history of the case and the issues it places in play in one simultaneously concise yet in-depth treatment, which you can find here. I highly recommend it to anyone who wants to understand the case, and what the hoo-ha is about, in advance of the en banc return to the issues by the Sixth Circuit.
I have long been on record with the view that the Amara addition of equitable remedies fills in a glaring hole in ERISA, and particularly with regard to ERISA remedies, by, if not solving, at least significantly reducing the problem in ERISA litigation of “harms without a remedy.” We all know those cases, in which a plaintiff makes a compelling presentation of harm, but the remedial structure does not provide for a clear right of recovery; most typically, benefits aren’t due in light of the circumstances at play, and thus a denial of benefits by the administrator was correct and must be upheld, but other issues – most typically a problem in communications with the participant – led to financial losses. We all know, as well, that many judges reluctantly accept that this occurs in ERISA litigation, and rule accordingly, although often expressing unhappiness about doing so – if not in their opinions, then in comments from the bench during hearings. The Amara equitable remedies framework provided a structure for resolving the most meritorious of those claims, by allowing equitable remedies such as estoppel and surcharge to fill in that hole.
The original Rochow disgorgement ruling – widely perceived, including by me, as excessive – falls outside of this framework, by going far beyond simply the proper use of Amara remedies to fix that problem, and is flawed for this reason alone. I have little doubt that the Sixth Circuit will fix this in its next opinion in the case. But for now, it is important, I think, to remember that this is an outlier decision, one that should not be seen as demonstrating some type of inherent flaw in the Amara equitable remedies rubric which, properly used and confined by judicial development of case law to the purpose of solving the “harms without a remedy” problem, is instead a valid and appropriate judicial interpretation of ERISA’s grant of equitable relief. Rochow, in the end, is best thought of, in its rulings to date, as the McDonald’s coffee cup case of ERISA remedies: an example of the need for judicial control over remedies, but not an indictment of the idea of having them.
Why Amara's Expansion of Remedies Matters Now, But Not So Much in the Long Term
My small group of dedicated twitter followers know I was live tweeting last week from ACI’s ERISA Litigation conference in New York, at least for the first day of the conference. Tweeting allowed me to pass along ideas from the speakers and my own thoughts on their points in real time, which was, frankly, a lot of fun for me (if you haven’t tried live tweeting from an event, you should; it turns being an attendee watching others speak on a topic into a much more interactive and engaged experience). At the same time, though, its fair to say that many of the topics discussed by the panelists, and many of my own thoughts on those topics, don’t neatly fit within 140 characters, so I thought I would post some more detailed take aways from the conference, starting today.
One of the things that jumped out at me at the conference was the fact that the ERISA defense bar has clearly coalesced around the idea that Amara is a bad thing and that the expansion of equitable remedies set into motion by that opinion is objectionable. Even though I am, at least 80% of the time, a member of that defense bar, I think that’s a bit harsh and an overreaction. It does not strike me that the consensus defense bar view articulates a particularly substantial argument for why the Court was wrong to expand that remedy. At the end of the day, most of that remedial expansion – in the forms of reformation, estoppel and surcharge – is directed at only one phenomenon, which is the circumstance in which there is a disjunct between what a plan actually says and what is communicated to plan participants through summary plan descriptions, human resources employees, or other sources (though I have no illusions that participants and their lawyers won’t find ways to try to extend those remedies to other types of circumstances as well). To the extent that employees can show actual harm to them from that error (and by this I do not mean just being deprived of some legal right under ERISA or some hypothetical opportunity to act in response to learning the correct information, but rather some showing of actual concrete out of pocket loss to them), there is no reason they should be without a remedy, and the expansion of remedies in Amara prevents that otherwise all too common outcome.
As one of the prominent in-house attorneys speaking at the conference noted, the nature of ERISA is that the bar for proper performance by plan sponsors and administrators keeps rising, and that is as it should be: one panelist made the point that what is a best practice today in running a plan, will simply be the standard practice that must be lived up to tomorrow. This is all that Amara’s targeting of communication errors by imposing equitable remedies for them will really do in the end: make accurate participant communications a crucially important part of running a plan. As plan administrators raise their game in this regard (making what is today a best practice the standard in this regard in the future), these remedies and the Amara decision itself will become relatively unimportant, and people will come to wonder why there was so much defense bar hue and cry over Amara in the first place.
The Scope of Equitable Relief Under ERISA: Blue Cross & Blue Shield of Rhode Island v. Korsen
The equitable remedies prong of ERISA was, for many years, a place where theoretically good claims went to die: courts were wary of providing expansive recovery under it, and thus a plaintiff who could not fit a claim within the confines of the denial of benefits or breach of fiduciary duty causes of action under ERISA was unlikely to recover by relying on the equitable remedies prong, no matter how factually compelling the plaintiff’s case. As I explained in my recent article, “Looking Closely at Operational Competence: ERISA Litigation Moves Away from Doctrine and Towards a Careful Review of Plan Performance,” recent case law, including from the Supreme Court, has completely changed this dynamic, and made equitable relief a viable manner of targeting harms arising from ERISA governed plans when those harms could not support claims for denied benefits or for fiduciary breach.
A decision last week out of the United States District Court for the District of Rhode Island, Blue Cross & Blue Shield of Rhode Island v. Korsen, provides an outstanding roadmap for making out an equitable relief claim under ERISA in 2013, after the lay of the land for such claims was revamped by the Supreme Court in Amara. You can do worse – much worse – than to follow the judge’s framework to determine whether you have a viable equitable relief claim and, if so, the best way to present each element.
In addition, though, the Court touched on a fundamental issue in equitable relief litigation under ERISA, which has engendered some controversy over the years, namely, is the outcome of equitable relief claims under ERISA dependent solely on whether the precise elements of such claims as set forth in Supreme Court decisions exist, or can courts go beyond those and rely on the general and long standing principles of equity to decide such claims? In short, do such claims rise or fall only on whether the exact principles detailed in the Sereboff line of cases and Amara are met (such as the recovery is one allowed in the days of the divided bench, and a designated fund is being targeted)? Or can the court, even if these elements are satisfied, still reject such claims if needed to “do equity,” in the old vernacular – i.e., to be fair?
The Court in Korsen gives a compelling argument for the latter.
And finally, by the way, in the old – and I was hoping by now discarded – vernacular, a hat tip to @Jon Pincince for bringing the case to my attention.
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.
How to Look Smart About McCutchen and Heimeshoff Without Really Trying
I have often joked that, to seem intelligent at social events, a person really just has to have two things handy – the first, a Noam Chomsky reference, and the second, a Shakespeare quote, preferably from a lesser play. If you are good, you can find a way to fit one or the other into any subject of conversation. Personally, I rely on “there are more things in heaven and earth than are dreamt of in your philosophy” (which I also find is often an especially good rejoinder in court to legal arguments proffered by opposing counsel), and Chomsky’s media coverage study, when I am trapped in a conversation with no way out, but to each his own.
I was thinking of this when I read the Workplace Prof’s excellent and extensive blog post on the two latest developments at the Supreme Court concerning ERISA law, the first being the very recent decision in US Airways v. McCutchen, which I suspect will soon be reduced to the defense assertion that courts must always apply the plan terms as written, and the Court’s grant of cert in Heimeshoff v. Hartford, on the application of statute of limitations to benefit claims under ERISA. You don’t have to really study the source material on either of these cases to hold forth on them at this point, because you can just read the Prof’s post, and be all set to pontificate on them without a problem. Less tongue in cheek, it really is worth reading, if you want to understand, with a limited investment of time, what these two cases are about and why they matter.
I would also throw in, with regard to the opinion in McCutchen, two additional comments that you can borrow, if you really want to look erudite without doing any homework on your own first. One, it really is a well-written piece of work, taken simply as an example of the written form in the legal context, without regard to how one may feel about the merits of the decision. I would suggest it to connoisseurs of the form for a read, under any circumstances. Second, the case, although an ERISA decision, has an easy transition to the doctrines of insurance law, where subrogation and the impact of the common fund doctrine are in play on a routine basis; it adds additional support for any argument that the common fund doctrine should always apply in that circumstance. In this regard, feel free to drop a knowing reference to footnote 8, if you really want to appear in the know.
Back to the Future on a US Airways Flight: Notes on Oral Argument in McCutchen
I don’t know how many of you have had a chance to read, or have any interest in reading, the transcript of the argument yesterday in McCutchen, but its actually fairly entertaining. For one thing, it is clear that everyone – litigants, the justices, you name it – are a little flummoxed by the need to go back to “days of the divided bench” to figure out how to handle equitable relief claims under ERISA. The cases cited by the parties are, by definition, archaic, and do not perfectly fit the scenarios arising today. Further, as the argument makes clear, it puts way too much value on treatises, which often – particularly in the insurance context, such as the Couch treatise referenced in the argument – reflect the analysis and synthesis of the authors more than anything else. Questioning from the bench and discussion from the lawyers makes clear that everyone recognizes the effect all of this has on deciding cases. At least two justices, in fact, make what I take to be mocking references to the need to reason and decide as though it was centuries earlier, with Justice Breyer placing a hypothetical in the 15th century and another justice referencing the need to act as though it is the beginning of the 20th century.
This is no way to run a ballclub, pretending that we can figure out in 2012 what a judge, educated only on the legal principles and aware only of the factual scenarios that existed hundreds of years ago, would do with the complex fact patterns and contracts that arise out of a statute that wasn’t enacted until 1974. I have written elsewhere that I highly doubt that the statute’s drafters were deliberately and knowingly incorporating the 19th century into the statute, including when they drafted the remedial procedures. One has to ask then, in that circumstance, how it can make any sense to retreat to the 19th century to decide how to apply that statute. Wouldn’t it make more sense, as a matter of statutory construction and simple commonsense, to ask what equity rule would have applied in 1974 to decide an issue like this and then, if there was no rule governing it at that time, say so and then choose one based on all of the competing factors that the Court normally considers in deciding an open question involving statutory interpretation?
McCutchen at the Supreme Court
US Airways, Inc. v. McCutchen is scheduled to be argued at the Supreme Court tomorrow, the next round in the on-going investigation by the Court of the scope of equitable relief available under ERISA. In this instance, the Court must consider the extent to which traditional limitations on equitable remedies are incorporated into ERISA. For those of you needing some background, I thought this was a good discussion of the case. For what its worth, I think everything from the Court’s selection of this case, to the recent Court opinions on equitable issues in ERISA litigation, to the language of the statute, point firmly towards the Court upholding and agreeing with the Third Circuit’s take on this issue. I think at the end of the day, the more interesting question is not going to be whether the Court agreed with the Third Circuit on the narrow points at issue in the case, but instead how many various Pandora’s boxes the Court’s discussion of equitable relief in its opinion will inevitably open up, which litigants and lower courts will have to resolve in the future. When the Court has delved recently into the proper scope of equitable remedies under ERISA, it has tended to answer one question while simultaneously opening up many more issues that must be resolved; McCutchen itself, as the Third Circuit’s opinion reflects, is the outcome of just that dynamic.
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.
The Dam Breaks: Tussey v. ABB
Tussey v ABB, Inc., an excessive fee and revenue sharing case decided on the last day of March after a full trial before the United States District Court for the District of Western Missouri, is a remarkable decision, imposing extensive liability for acts involving the costs of and revenue sharing for a major plan, on the basis of extensive and detailed fact finding. It is hard to sum up in a quick blurb, and I recommend reading it in full. However, Mark Griffith of Asset Strategy Consultants has a terrific write up of its its import here on his blog, and here is a nice case summary from Dorsey. Beyond that, I would highlight a few key points about the case, viewed from 30,000 feet (the case itself is going to provide grist for tree level, finding by finding analysis for some time to come).
First, and to me most interesting, is that it confirms several conclusions about excessive fee litigation that I have come to in the past and written on extensively, including my insistence that the pro-defense ruling in Hecker was not the last word on this issue (despite the desire of much of the defense bar to believe it was) but was instead the high water mark in defending against such claims. I argued in the past, with regard to the Seventh Circuit’s handling of this issue in Hecker, that the entire issue of fees and revenue sharing would look different than it did to the court in Hecker once courts began hearing evidence and conducting trials on the issues in question, rather than making decisions on the papers, and this ruling bears that out. Like the trial court decision in Tibble, another key early excessive fee case to actually reach trial, the taking of evidence by the court on how fees were set and revenue shared has, in Tussey, resulted in a finding of fiduciary breach in this regard. Tibble and Tussey reflect a central truth: when courts start hearing evidence on what really went on, it becomes apparent to them that plan participants were not fully protected when it comes to the setting and sharing of fees in the design and operation of the plans in question. To deliberately mix my metaphors, what Tussey reflects is that when courts start looking under the hood of how plans are run, they are not liking how the sausage was made. They quickly (relatively speaking, of course, since it takes a long time to get a case from filing through to a trial verdict) conclude that the fees were set and shared in ways that did not properly benefit the participants.
This particular aspect of Tussey is very important. Tussey involved a major plan and a market making investment manager and recordkeeper, applying what the court characterized as standard industry practices in some instances. It is therefore unlikely that the scenarios found by the court in Tussey to be problematic are unique to that case. Other excessive fee and revenue sharing cases that, like Tibble and Tussey, get past motions to dismiss and into the merits are therefore likely to uncover factual scenarios and problems similar to those identified by the court in Tussey.
What also jumps out at me about Tussey is the extent to which revenue sharing, which has often been characterized in the professional literature as harmless in theory, is strongly depicted as problematic as practiced with regard to the particular plan and by the sponsor and service providers at issue. I would have real question, going forward as a plan sponsor, as to whether it makes any sense at all to continue with revenue sharing. Better to just pay a fixed cost, than to risk extensive liability for engaging in revenue sharing. Absent that choice, the treatment of revenue sharing in Tussey makes clear the need for extensive, on-going, documented analysis by the plan’s fiduciaries of whether the level of compensation generated by the revenue sharing was, and remained at all times, appropriate.
Other aspects of Tussey worth noting include these two. First, the opinion provides as good an explanation, in detail, of what revenue sharing really is and how it works as you are going to find. If you want to understand what all the hullabaloo about revenue sharing is about, this opinion is as good a place to start as any.
Second, the opinion contains a nice analysis of one of the most misunderstood issues in ERISA breach of fiduciary duty litigation, namely the six year statute of limitations and how it applies to the implementation of a fiduciary’s decisions related to plan investments. A decision to change a plan investment takes time, starting with an analysis of whether to do so, followed by the steps needed to effectuate it, and eventually resulting in the final steps needed to permanently conclude the change. As the court explained in Tussey, the statute of limitations in that scenario does not start to run – for any of the losses related to that event – until the last act in that run of conduct occurred.
Lurie on Amara By Way of BenefitsLink By Way of the Workplace Prof
Well, this piece by Alvin Lurie on Amara is about as good as you are going to find, running as it does from the technical aspects of the case to the philosophy of its jurisprudence. I can commend it to you for a few reasons, not the least of which is that it does a wonderful job of actually explaining the case itself, in terms of its genesis, the underlying proceedings, the plan at issue, and the decision of the Supreme Court. It also, though, goes straight to the most important aspect of Amara from the point of view of a practicing lawyer litigating benefit claims, which is the majority opinion’s exposition on how to obtain redress when the problem concerns inaccurate summary plan descriptions. As I discussed in this post here, the majority opinion instructs that a plan participant cannot recover increased benefits beyond what would be available under the plan terms themselves by basing a claim for benefits on the summary; rather, the proper approach is to seek reformation of the plan to provide the amount of benefits indicated by the summary, if different from that provided under the plan terms themselves. To my way of thinking, this is the key practical significance of Amara: it explains how to properly plead a claim seeking to recover the greater benefit amounts set forth in a summary, as compared to that set forth in the plan itself.
My thanks to Paul Secunda and the always vigilant Workplace Prof for highlighting the article.
Amara: Why Reformation Is Better Than Estoppel
Here is a worthwhile, almost Cliffnotes (do they still exist?), guide to the ruling in Amara from the American Lawyer. It continues what is quickly becoming the norm for published pieces discussing the case, which is to present the opinion in an “on the one hand, on the other hand fashion,” by describing it as partly a win for employers, partly a win for employees, and a decision whose real impact and meaning cannot be determined yet. On that last point, I think it is more clear what the decision means long term than various writers are assuming. The opinion firmly directs – whether one calls it a holding or instead dicta is almost irrelevant, since when the majority of the Supreme Court says a case should proceed a particular way, as occurred here, whether that clear direction to the lower courts is actually a holding or just guidance seems to be at most of academic interest – that the proper approach to a case involving a conflict between the language of the SPD and the language of the plan terms is not to treat it as an estoppel question, as the courts have done, but to instead view it as a reformation question, and determine which set of language more accurately fits the intended scope of the plan’s benefits. If you think about it, this more properly and cleanly resolves the question of how to resolve a conflict between the language of the plan and the language of an SPD, as it results in providing the benefits that the plan itself was intended to provide, rather than whatever may be the outcome of a scrivener’s mistake, whether that inaccuracy was buried in the plan (and thus the phrasing of the SPD more accurately reflects the original intent of the plan) or in the SPD itself (in which case the SPD has the language that should be ignored). Moreover, it results in the consistent application of the plan across all plan participants, by enforcing the plan in its proper and intended terms and scope, rather than simply revising it or applying the SPD terms on an ad-hoc basis or case by case basis to suit the circumstances of the particular plan participant who is suing and who may or may not have been prejudiced by the discrepancy. An estoppel theory, and a requirement that a plan participant have been harmed by inconsistent language in the SPD as opposed to the plan terms themselves, almost guarantees that some participants – namely those who relied upon and were prejudiced by differing language in an SPD – will get different and likely greater benefits than those who cannot show this. The reformation approach to reconciling differences between the language of an SPD and the language of a plan is a much cleaner, more consistent and more appropriate way to remedy this type of problem that results in consistent treatment of plan participants in a way that an estoppel theory likely cannot do.
Leave It to a Non-Lawyer to Cut Through the Fog (Or What Amara Actually Means)
Ran into John Lowell, who writes the Benefits and Compensation with John Lowell blog, the other evening, and we discussed his post on Cigna v. Amara, in which he referenced the fact that no one really knows for certain what the decision will mean in the long run, but he had never seen so many lawyers take pen to paper – or fingers to keyboard – so quickly as in response to that decision. Personally, I attribute it to pent up demand, in that many lawyers, myself included, have been watching for that decision for a long time, and had expected it by now; as a result, many were primed to jump right into the fray as soon as it was issued.
John is right though, that what the case means from any sort of a macro level (as opposed to its precise impact on the litigants in that exact case) is solely in the eye of the beholder at this point. The lawyers at Steptoe and Johnson in D.C. say the same thing as John, only with more legalese, commenting that “the Supreme Court’s recent decision in CIGNA Corporation v. Amara, 563 U.S. ____ (5/16/11), may revolutionize the way that employee benefit plans are drafted and the ability of plan participants to overturn provisions that they object to; or it may turn out to be the articulation of theories that have no practical impact.”
And in that is the thing, because the devil here, as in most things, is in the details. There is language and analysis in Amara that is fascinating if, as John noted, you are an ERISA lawyer who likes to wax poetic about the latest doctrinal changes and trends (guilty as charged on this end, to some extent). In fact, I think a young law professor looking to build a career could probably mine aspects of this decision for three or four major papers (feel free to email me and I will give you the topics). The technical lawyering questions about the role of the equitable relief prong addressed in the opinion raise a number of questions, and the difference in jurisprudential philosophy represented by the split between the majority opinion and the concurrence is good for an article or two.
But at the end of the day, we won’t know what the case really means in the long run until courtroom lawyers start applying it to actual facts in a case, and lower courts, and then higher courts, explain how the ideas set forth in Amara interact with those facts. It is when we have a critical mass of cases in which that occurs, and not till then, that we will finally have an answer to the million-dollar question that John posed: namely, why exactly does the case matter.
Well, I’m not going to beat Amara to death right now, and hopefully I will be back later on with more thoughtful comments on the decision. However, this wouldn’t be much of an ERISA blog if you couldn’t find a new Supreme Court decision on ERISA on it on the day it is issued, so I offer it to you right here. That said, though, here are some initial thoughts. First, the decision, from a practical perspective, says the ruling below cannot stand the way it is, but the plaintiffs can still eventually win by going back and instead putting in the case under the equitable relief prong of ERISA in the manner sketched out by the majority. This makes the ruling a full employment act for the defense lawyers in the case, who are likely to be working on this case for years more; in fact, the concurrence points out that this alternative theory posited by the majority could set the case up for another run before the Supreme Court, after the lower courts have finished with the alternative theory etched out by the majority. Thought about in this light, you have to wonder how many retirees will still be standing to collect any recovery by that point, given the length of time the lawsuit has been going on to date.
Second, Justices Scalia and Thomas come back, in their concurrence, to a point I discussed with regard to LaRue, namely their feeling that these types of cases can be decided as a matter of simple application of the terms of the statute, without more. Frankly, however, this case in particular is an example of one where you can’t possibly decide how this statute, which speaks only in generalities for the most part, can apply without considering what type of gloss can or should properly be applied to the statutory language. Indeed, this is much of what the majority’s opinion consists of: reading the language of the equitable relief prong in light of the proper gloss to apply to it, historically and in light of prior Court opinions. By doing that though, the majority opinion illustrates the mess that the entire line of cases on what is “equitable” relief for these purposes has become in light of the Court’s past rulings in this regard that attempt to define this by looking at what historically represented part of the equity bar. Simply put, there is no justification for basing a decision in 2011, like this one, that affects the retirements of people who will live well into the 21st century and involves a statute that was enacted in 1974, on treatises concerning the equity bench from the 19th century, as the Court ends up doing here. Jurisprudentially, it’s a wrong-headed approach, but the Court’s past decisions have painted them into that corner; this is yet another decision that points out the need for the Court to work its way out of its existing rubric concerning the scope of equitable relief under ERISA and into a more nuanced and modern approach to determining the scope of claims that can be brought under the equitable relief portions of ERISA.
What Exactly is the Investment Drag of Macaroni and Cheese?
This is interesting – it’s the story, in abbreviated form, of the Seventh Circuit breathing new life into an excessive fee class action case, by finding that there is a factual question of whether the fiduciaries properly evaluated their options and that the defendants cannot insulate themselves easily from their obligation to properly monitor and test fee levels. Its also an interesting case on the question of the fiduciaries’ obligations with regard to structuring an employer stock fund and on the effect of such choices on returns net of expenses. The case itself is George v Kraft Foods Global, and you can find the opinion itself here.
The case jumped out at me for three reasons. The first is that it runs counter to the assumption, expressed in many quarters, that the Seventh Circuit’s prior and highly publicized ruling in Hecker created a significant barrier, and possibly spelled the death knell, for claims built around excessive fees and costs for plan investment options. Many, including me, thought the Seventh Circuit went too far in that regard at that time, and that excessive fee claims needed to be evaluated on the micro-level of the actual facts of the fiduciary’s conduct to decide whether a claim was viable, which was not the approach taken in Hecker. This latest case out of the Seventh Circuit seems to move in that direction, as it is clearly a fact specific investigation of the issue, one that found that the plaintiffs were free to make out such a case on the actual facts of the fiduciaries’ conduct.
The second is that this ruling thereby fit perfectly with the thesis of my article on excessive fee claims after Hecker, referenced here, which posited that subsequent judicial and regulatory developments would move the case law away from the approach of the court in Hecker and toward the approach taken in this most recent Seventh Circuit case. Time seems to be bearing out my forecast.
The third is the nature of this claim involving breach of fiduciary duty involving employer stock holdings. We all know that the traditional form for such claims is the stock drop case, in which the complaint is that the plan should not have been holding employer stock which then dropped significantly in value. In many jurisdictions, this is no longer a promising approach (although not in all, and for good reason, an issue for another day). Here, however, we see a revamping of the traditional approach to such claims, one that makes the stock holdings aspect of an investment plan a possibly significant basis for a breach of fiduciary duty claim under ERISA. Those plaintiffs’ class action lawyers – what will they think of next?
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.
From Preemption to ERISA Standing, and Lots of Things In-Between
Permalink | Philadelphia, New York, court hearings - I have been everywhere the past week or so other than at my desk where I could put up blog posts. Here’s a run down of interesting things I came across along the way that you may want to read. First, for those of you who can’t get enough of this topic - I know I can’t, but then I am fascinated enough by this stuff to maintain an entire blog on the subject of ERISA - Workplace Prof passed along this student note on preemption and “pay or play” statutes: Leslie A. Harrelson, Recent Fourth Circuit Decisions: Retail Industry Leaders Ass'n v. Fielder: ERISA Preemption Trumps the "Play or Pay" Law, 67 Maryland L. Rev. 885 (2008).
Second, SCOTUS passed along that the Supreme Court decided not to accept for hearing Amschwand v. Spherion Corp., which, I noted in a previous post, presented an opening for the Court to address when monetary awards for breaches of fiduciary duty can qualify as equitable relief that can be sought under ERISA. I have commented before that the Court has advanced the ball on equitable relief under ERISA into almost untenable terrain, and I am not sure whether the Court can bring any greater clarity to the issue without backtracking from its recent jurisprudence on the subject; given the unlikeliness of the Court doing so already with regard to such relatively recent decisions, it is probably just as well that the Court did not take on the issues presented by that case.
Third, you could learn everything you need to know about the standards of review for benefit denials and the impact of the Supreme Court’s decision in MetLife v. Glenn by clicking on the “Standard of Review” topic over on the left hand side of this blog; or you could spend an hour listening to this webinar on the topic.
Fourth, Pension Risk Matters passes along this Sixth Circuit decision enforcing the Supreme Court’s approach to individual claimants in LaRue, finding that two participants could sue for breach of fiduciary duty. There are two particularly interesting side notes about this. First, it illustrates a particular point I - and others - made in a number of media outlets after the Supreme Court issued its opinion in LaRue, namely that, while it may not result in an avalanche of litigation that otherwise would not have been filed, the ruling is certainly going to lead to an increase in the filing of smaller cases on behalf of a few participants in circumstances that, in the past, would not have generated suits unless a class wide action could be brought. Second, the case presages what may be the dying off, by a thousand cuts, of the long held use of standing to cut off ERISA breach of fiduciary duty suits at the earliest stages of procedural wrangling, long before any litigation over the merits of a case, something which occurred at the federal district court level in the original LaRue case itself. Roy Harmon, over at his Health Plan Law blog, has a detailed analysis of this question, one I have been thinking about since LaRue was decided but which Roy has thankfully saved me from addressing in detail at this point.
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.
Passing Along Some Reading on Excessive Fee Cases and Other Timely ERISA Topics
Permalink | What would this blog be if it was done as a newsletter instead? Well, probably something like this new ERISA newsletter out of Proskauer Rose, with its detailed but readable length discussions of current events in the field, such as the Supreme Court’s recent decision in LaRue and the Supreme Court’s consideration of whether to hear a case that will allow it to return again to the problem of defining the available scope of equitable relief under ERISA. For me personally, I particularly liked the discussion of the latest trends at the trial level in the federal court system with regard to lawsuits filed over allegedly excessive fees charged on mutual fund investment options, as it takes an approach that I like to pursue whenever possible in my own posts here on this blog: it discusses the early decisions on the issue at the motions stage in the trial courts, and looks ahead to what this may mean for the industry as a whole and service providers. Its worth a read, and if you enjoy this blog, you will almost certainly enjoy this newsletter as well.
More Supreme Court Interest in ERISA Remedies Cases
Permalink | The Supreme Court continues to look for ERISA cases to serve as vehicles for exploring the current and proper parameters of that statute, and last week requested from the Solicitor General’s office the government’s views on a potential ERISA case for the Court’s docket, Amschwand v. Spherion Corp. This in and of itself is old news, in a way, to anyone who follows this stuff. I wanted to pass along a post, however, from employment law blogger Donald Heyrich, about the underlying facts of the Amschwand case and the possibility the case presents for the Court to address the issues raised by claims seeking equitable relief under ERISA. I haven't had a chance yet to look into the case itself, so I can't actually vouch yet for his analysis - or provide my own - but I liked the post enough and the blog as well to want to pass it on today.
Talkin' With Tom Gies, Counsel for the Respondents in LaRue
I promised awhile back that I would run more interviews at some point on this blog, and we return today to our - granted, somewhat sporadic - series of interviews with movers and shakers in the worlds of ERISA and insurance. What provoked me to get back into the interviewing business, which I noted before are among the most difficult of posts to do well? The chance to provide more insight on the oral argument before the Supreme Court in LaRue v. DeWolff, Boberg, which was argued right after the Thanksgiving weekend. And with that lead in, here’s the blog’s interview with Tom Gies, a partner at Crowell & Moring in Washington, D.C., who was lead counsel for the respondents. Tom was gracious enough to provide some real thought provoking commentary on both the issues raised by the case and some aspects of the argument before the court:
Blog: How did you end up representing the respondents?
Tom Gies: We have represented the employer, and the plan, in a variety of employment, benefits, corporate and commercial litigation matters for years. They are longstanding valued clients of our firm. When this case was initially filed in the district court in South Carolina, we were retained to defend against the claim.
Blog: Many ERISA cases, particularly in the area of pensions and 401(k)s, never reach the merits, and instead are resolved by procedural motions addressed to whether there is even a cause of action or remedy available to the plaintiff. That’s what happened here. Would the law of ERISA be better developed, or the parties themselves better served, if courts were resolving questions such as those presented by LaRue after development of the facts of a particular case? On the merits, as it were, rather than on procedural issues?
Tom Gies: An interesting question. The case was pled and litigated in the district court solely as a Section 502(a)(3) claim. We moved for judgment on the pleadings because it was pretty obvious plaintiff sought compensatory damages that are not available under Section 502(a)(3), following the Supreme Court's "rather emphatic guidance" in Mertens, Great-West and Sereboff. Every court that has looked at this question so far agrees with us on this point. And, not to get too much into the prediction game, I think it is unlikely that the Supreme Court will use this case to reverse field on the question of what's appropriate equitable relief under Section 502(a)(3). Had plaintiff pled the 502(a)(2) claim in the district court, the litigation may well have proceeded differently. For instance, there may have been a more fully developed record after discovery, so that the case could be resolved on a motion for summary judgment. The Fourth Circuit was correct in observing that the 502(a)(2) claim was waived, having not been litigated in the district court. As with other types of litigation, the parties to ERISA actions are better served when the basic rules of engagement are followed and parties are not permitted to raise new issues for the first time on appeal. In our judgment, a more complete record in this case would have made it even easier for a reviewing court to understand that this is not a good vehicle for expanding the scope of Section 502(a)(2). A court looking at this fact pattern in response to a motion for summary judgment would readily conclude that this case does not present a triable claim for “losses to the plan” resulting from a fiduciary breach. More generally, I don’t think it’s wise to have some sort of special, more lenient, pleading rules in ERISA cases. The Supreme Court’s recent decision in Twombly recognizes the negative consequences, both to parties and the civil justice system, of the substantial costs imposed on defendants in having to go through discovery in complex litigation involving putative class claims. Those litigation costs are obvious in the 401k plan “stock drop” cases. The excessive fee claims present the same kinds of costs for employers and plan sponsors. The Court’s decision in Twombly wisely recognizes that bare allegations of a statutory violation, without more, should not subject a defendant to the tremendous cost of full-bore class action litigation. It shouldn’t make any difference whether such claims are brought by antitrust plaintiffs, Title VII claimants, or by lawyers representing ERISA participants.
Blog: Any particularly surprising questions or lines of inquiry at the oral argument directed at either you or LaRue’s counsel? What’s particularly interesting or surprising about it?
Tom Gies: Although the questioning of Mr. Stris regarding Section 502(a)(1)(B) was not a surprise (we mentioned it in our brief, and one of our amici devoted considerable time to the issue), I was intrigued with the implications in some of the questions asked by three of the Justices about the potential interplay between 502(a)(1)(B) and 502(a)(2). These questions suggest the Court will provide a careful analysis of the inter-relations of the various subdivisions of Section 502. The Court’s subsequent denial of certiorari in Eichorn v. AT&T may be another indication of the Court’s approach to this corner of ERISA law.
Blog: Any answers you’d like to have back? Any questions you’d like another shot at?
Tom Gies: I would have liked the opportunity to engage Justice Breyer more fully, perhaps in response to his second diamond theft hypothetical, on his question of "why" 502(a)(2) should not be read to extend to a situation like this. A decision to expand the remedies available under Section 502 has significant consequences because it is contrary to ERISA’s goal of encouraging plan formation. Permitting such lawsuits would inevitably require someone to make judgments as to a variety of issues, including: should there be a limit on damages, whether there should be jury trials for such claims, whether there should be an obligation on the part of the plaintiff to do some due diligence before bringing a damages action years after the alleged mistake, whether employers and plan sponsors can require arbitration of these kinds of claims, what should be done about the consequences of such litigation to the fiduciary insurance industry, and how would such claims be fit into the current rules for certification of class actions under Rule 23. There are surely others. These kinds of policy judgments seem best left to Congress.
Blog: Play it out for us. What’s the negatives for the industry if the Court reverses the Fourth Circuit and allows these types of claims to go forward?
Tom Gies: Imagine you have a new employee who joins your law firm, which, we assume, sponsors a 401k plan. Four years after you hire her, you get a lawsuit seeking compensatory damages for a violation of ERISA’s fiduciary duty rules. Her lawyer claims she was not given enrollment forms when she was hired, because of a mistake made by your HR director, and, as a result, employee contributions into the 401k plan were not made. The complaint goes on to assert that, had the contributions been made, she would have invested in Google the day after its IPO, and that the plan fiduciaries are personally liable for more than $500,000 in lost profits. When you look into it, your HR manager has a vague recollection that the employee took the paperwork and said she’d “think about” whether she wanted to join the plan. Should that case go to trial? Before a jury? Justice Scalia’s comment during oral argument in LaRue seemed to appreciate our point – there would be no end to the type of damages claims that plan participants could devise if these types of claims are permitted to go forward.
Imagine another situation. One of your employees who participates in your 401k plan had 75% of her account balance invested in mutual funds heavily concentrated in real estate. Now that those investments have lost considerable value, she seeks counsel. You get a complaint for compensatory damages that includes the allegation that someone in HR told the employee to “stay with” the real estate investments because that sector of the market would be sure to turn around soon.
The considerable costs of defending against such lawsuits will be born ultimately by employer plan sponsors. Fiduciary insurance will become even more expensive. Permitting these kinds of claims would undercut one of the fundamental assumptions made by employers in deciding to offer DC plans, rather than DB plans – the ability to shift investment risk to employees. All in all, a bad idea if you believe, as we do, that it’s critical not to take steps that would discourage employers, particularly small employers, from continuing to offer DC plan.
Blog: Paul Secunda, at the Workplace Prof blog, and I have been going around and around for a bit about whether ERISA is properly understood as having been intentionally enacted by Congress with only limited rights of recovery and remedy for plan participants. Clearly, that idea underlies DeWolff’s arguments to a substantial degree and, in fact, the lower courts’ rejection of LaRue’s claims can be understood as a recognition of this principle and of the fact that, as a result, LaRue simply has no recourse at this point. What’s your view on this? Are those of us who treat ERISA as specifically and intentionally limited in this way right about that?
Tom Gies: I start with Pilot Life and Mertens where the Court is clear in stating that ERISA represents a series of political compromises, not all of which were in favor of plan participants. ERISA is thus fundamentally different from other employee protection statutes. Encouraging plan formation, through the tax laws and otherwise, seems to me to be a cornerstone of the statute. And, of course, it’s not accurate to say that people like Mr. LaRue have “no recourse” in a situation like this. From what we know from the record, this is a case that could have been avoided by a telephone call. If you want to sell 100 shares of stock, you probably call your broker and place the trade. If you don’t get a confirmation order pretty quickly, you’ll call back, and if you don’t get a satisfactory answer, you’ll call her boss. If the boss won’t help you, you’ll escalate the situation until you get your trade executed. People like Mr. LaRue who want to trade securities in their 401k plan accounts have a variety of remedies available to them; they just don’t have a cause of action for compensatory damages based on a lost profits theory.
Blog: I shouldn’t put you on the spot, but I will - want to hazard a guess as to the outcome of the LaRue case?
Tom Gies: The Fourth Circuit will be affirmed 5-4, with the majority concluding that it is up to Congress to decide whether to extend the remedies currently set forth in Section 502.
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.
Roundup at the LaRue Corral
Permalink | More on LaRue in the wake of Monday’s oral argument, and the inevitable commentary from all sides - including this one - on Tuesday:
• My last two posts on the LaRue case, here on the briefing and here on the oral argument, assumed a certain prior level of understanding on the part of the reader as to the issues and statutory provisions involved in the case. Workplace Prof has a more soup to nuts review of those, in the wake of the argument, here, which is also cross-posted here.
• Susan Mangiero was taken by the discussion in the oral argument of what powers may or may not have been identified in the summary plan description appended to LaRue’s complaint. I took this discussion by the Justices to be part of an inquiry into what are the constraining parameters of a claim such as the one brought by LaRue. As I have discussed before, I think the Court will allow this type of claim to be actionable, primarily because the law of ERISA is going to have to evolve to fit the brave new retirement world in which defined contribution plans, rather than defined benefit plans, rule, and establishing a right of remedy for the type of error alleged by LaRue is a necessary part of that evolution. However, I don’t expect, both for reasons related to the historically limited remedial reach of ERISA and the philosophy of various justices, that theory of liability and right of recovery to be unconstrained or left as simple as error by fiduciary plus loss to one account =s liability. Rather, although the Court may leave the parameters of the theory of liability to future cases for development, I expect the Court to at least indicate in dicta certain restraints and constraints on such claims. In this way, I think the eventual opinion will essentially walk the line between the concern of the respondent and its supporting amici that allowing claims of this nature will excessively increase the cost of providing plans to employees and the concern voiced by LaRue’s counsel that employees must be allowed a remedy for this kind of error.
• And here’s the New York Times’ highly readable account of the oral argument, by the excellent Linda Greenhouse.
• Finally for today, on a lighter and less substantive note, here’s the WSJ Law Blog’s post on the case, with a nice little profile of Tom Gies, who represented the respondent.
Thoughts on the Oral Argument in LaRue v. DeWolf, Boberg
Permalink | Just read the transcript of Monday’s oral argument in LaRue, which you too can read right here. Interesting argument, and interesting lines of questions from the court, although I am skeptical as to how much guidance as to the court’s thinking one can draw from the Justice’s questions themselves. In many ways, the lines of inquiry seemed to parallel my earlier post here on the arguments made by both sides. I had mentioned in my earlier post that the respondent focused heavily in its briefing on two points, the first being that prior jurisprudence of the Court concerning ERISA cases suggest that the narrow framework of ERISA remedies should not extend to encompass this type of claim, and the second that LaRue’s case itself was pled with holes that did not suggest it as a good vehicle for authorizing these types of claims. With regard to the first line of argument, questioning right off the bat of the respondent’s counsel targeted the fact that the prior jurisprudence relied upon by the respondent did not concern defined contribution or other retirement benefits and was based on a starkly different fact pattern; I mentioned in my earlier post on the parties’ briefing that I thought the earlier jurisprudence was too different in nature to provide much support for either side in the circumstances presented in the LaRue case, and after reading the argument, I think that remains the case. With regard to the second issue, LaRue’s counsel was peppered with questions concerning possible holes in the way he sought to recover for the alleged mistakes at issue, questioning that I thought was consistent with my earlier view that while the Court may well allow the type of claim at issue here to be actionable, the Court may well find that LaRue himself hasn’t placed himself in a position that he qualifies to go forward with such a claim. Perhaps the most interesting nugget to me in the transcript is that, with regard to the question of whether such a claim should be allowed at all - i.e., found to be authorized by the statute - the questioning seemed to consistently focus on one simple issue, namely that the only intelligible and consistently intellectually defensible position is that the plain language of the applicable statutory section would allow a loss to only one or a few plan participants’ accounts to be actionable, and would not require, as the respondent asserts, a loss to most or all of the plan’s participants before a claim for breach of fiduciary duty could exist.
Interestingly as well, the issue of whether a claim could proceed in the LaRue case as an equitable claim for relief under the Sereboff line of cases was discussed in only the most cursory terms by all involved, including the Justices. For various reasons, not the least of which is that the Court’s prior treatment of this issue has painted the Court into a bit of a corner from which it cannot back out without either repudiating prior holdings or engaging in intellectual gymnastics, I don’t see the Court advancing the ball on this issue in its opinion in this case.
Grand Irony, or Just a Need for Better Litigation Tactics: Protecting the Severely Injured Plan Participant Against Reimbursement Claims under ERISA
Roy Harmon and the Workplace Prof have the story of a severely injured worker whose settlement with the tortfeasor was effectively taken, in its entirety, by the plan administrator - Wal-Mart - on a reimbursement claim in accordance with the administrator’s rights under Sereboff. Roy Harmon has a nice factual discussion of the problem demonstrated by the case, and the Prof raises the ante, pointing out the injustice this is working for the particular individuals involved in the case. No disagreement there. But what concerns me is a point that the Prof makes, in which he effectively characterizes this as a problem driven by ERISA; sayeth the Prof:
In short, a truly horrible situation under ERISA, and not that far-fetched when one comes to understand the manner in which the scope of equitable relief under ERISA and ERISA preemption work together to create what I call the "Grand Irony of ERISA": that employers now use ERISA as a shield against employees; the same employees whose benefits ERISA was supposed to protect.
A Kafka-esque scheme [if] there was one and yet another publicity black eye for Wal-Mart.
But, although I am speaking almost third hand with little knowledge of the actual facts of this exact case, it seems to me this is not an ERISA problem, but a litigation tactics problem. It seems to me that the first obligation of a plaintiff’s lawyer in this type of a situation is either to obtain a waiver or compromise from the plan of its right of reimbursement that will keep the bulk of the recovery in the hands of the severely injured plan participant, or if that is not possible (perhaps because the plan administrator refuses to do so), to include in valuing settlement the amount that will have to be paid back to the plan on a reimbursement claim. If that makes the settlement value so high that the case can’t settle, then so be it, and it becomes a case which simply has to be tried and the amount of medical bills that must be reimbursed to the plan becomes just one part of the damages that go up on the blackboard in front of the jury in calculating the damages that the plaintiff claims should be awarded to him; in this way, if the jury returns a verdict, the amount that must be paid back to the plan is only one portion of the money recovered by the plan participant, with the participant free to retain the remaining amounts, which ought to encompass awards for future care, future loss of earnings, and the like.
One can fairly ask whether this places the participant at risk of losing at trial and taking nothing, and the answer to that question is, of course, that this risk exists and is significant; avoiding that exact risk is, after all, why a plaintiff settles a case for less than full value. But the fact is that a settlement, such as the one involved in the case Roy and the Prof discuss, that does not significantly exceed the reimbursement owed to the plan- after or without compromise by the administrator -can leave the participant in the exact same spot as a loss at trial would, holding no money at all after the plan is reimbursed.
Litigation is a dynamic and ever changing organism, and, much like Newton's third law of physics, for every action during the course of a lawsuit there is a corresponding, if not necessarily equal and opposite, reaction. The situation presented by the admittedly horrible circumstances detailed by Roy and the Prof is one that needs to be resolved as part of playing out the end game of a lawsuit, not after the fact as a dispute over ERISA rights and remedies.
Given the tragic nature of the events in question, I don’t delve into this point lightly, or just because it looks like good blogging fodder. But in the discussions I have seen so far of this issue, and on the impact of ERISA on it, I haven’t seen this particular aspect discussed in detail, and I think it’s a point that simply cannot be overlooked by any plan participant or lawyer stuck in the same situation in the future.
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.
Me and LaRue, and Business Insurance Too
Permalink | There is an article in Business Insurance magazine this week, the June 25th issue, on the Supreme Court accepting review of the LaRue decision, in which I am quoted. The article is here - subscription required - and if you read it, you will note that it ends on my comment that I expect the Supreme Court to overturn the Fourth Circuit. A short article intended really just as a little news blurb on the subject for the benefit of the magazine’s business management oriented readership, the reporter did not have the space to go into why I think the Court will overturn the lower court decision, but I, obviously, have the space to do so here. So to the extent anyone is interested in the question, here’s my thinking.
First, I don’t really expect the Court to do much, if anything, with the question of the scope of equitable remedies issue. If anything, given the language of the statute, despite the fact that many people want the Court to expand individual remedies and available damages under ERISA - including, I have found in my litigation practice, many District Court judges who are displeased with the limitations of the statute but nonetheless consider themselves duty bound to enforce its restrictions on recovery - the Court has probably read the range of equitable relief that can be pursued in as broad and pro-plaintiff a manner as the language allows, with its test of whether the relief sought would be equitable or not way back in the days of the divided bench. There simply isn’t much more you can do with the statute’s restriction of recovery in certain circumstances to equitable relief unless you are simply going to ignore the actual language of the statute and rewrite it by judicial fiat, which this Court certainly isn’t going to do and arguably, the thinking of Ronald Dworkin and his heirs aside, no court should do.
In a way, this issue is a perfect parallel to a long running and common problem in the insurance coverage field, in which there was an oft litigated dispute over whether insurance policies, because they only cover claims for damages, cover lawsuits seeking equitable relief, the issue being that the policies only cover damages and equitable relief is something different than damages. In both insurance coverage and ERISA cases - such as LaRue - the simple fact of the matter is that equitable relief does mean something particular, something that is different than a claim for damages, and the question is what is the impact of that difference.
Second, with regard to the more fundamental question of whether the individual plan participant could recover just for losses to his account in the plan, yes, I do think the Court will overrule the Fourth Circuit and find that such an individual plan participant can bring such an action. I can never recall whether the saying is that the Court follows the election returns, or is that the Court doesn’t follow the election returns, so I looked it up, and in fact the saying is that they follow the returns, although every author who writes this then adds qualifiers to the comment, such as in this piece here. Either way, the kind of relief sought by the plaintiff in the LaRue case, to be able to enforce his investment instructions in his own retirement savings account, clearly fits with the current Zeitgeist and, more interestingly, is of a piece - and a natural fit with - the changes to retirement savings plans put into place by the Pension Protection Act. Beyond that, the statutory language that is at issue in this part of the case is completely open to either the interpretation selected by the Fourth Circuit, or that sought by the plaintiff, and thus the Court can realign this part of ERISA without doing any violence to the statutory language. Combine these things, and I get a reversal.
Excessive Fee Litigation, 401(k) Plans and LaRue
Permalink | The current issue of the National Law Journal has an article providing an excellent overview of litigation over allegedly excessive fees charged on investments in 401(k) plans. The article notes the variations in the theories, and discusses what are likely to be large, class wide actions in the near future. There are those who think these types of claims are going away but, as this article suggests, that doesn’t actually look to be the case.
Now connect the dots between that story and the LaRue case, which I discussed here and about which more can be learned here, in which the Supreme Court is being asked to determine whether a single participant in a 401(k) plan can bring a breach of fiduciary duty claim for breaches that harmed only his account. Right now, with regard to the excessive fee issue, we are seeing, as the National Law Journal article reflects, the development of essentially plan wide suits. But if developments in the LaRue case establish that any individual plan participant can sue for breaches of fiduciary duty affecting that participant’s account, that will change. We will instead have a universe of individual participants, all with the capacity to sue over their own account balance and over any complaints they have that excessive fees drove down the balance of their own accounts over the course of years, and I suspect we will see plenty of lawyers appear who are ready and willing to represent individual account holders in such lawsuits. This will create a different litigation world for fiduciaries, plan sponsors, plan administrators and the like, then the current one in which the real risk is large plan wide actions by specialist plaintiff firms. In its place will be more of a death by a thousand cuts type of litigation regime that will confront plan fiduciaries and their allies.
I am not saying this is necessarily a bad thing, or a good thing. It is what it is. But in at least one way it may well be a good thing. We are all bombarded with the mantra that, in this defined contribution plan world we now inhabit, individuals are now responsible for their own retirement, as opposed to when companies provided it by means of guaranteed pensions. Well, I suppose if we are going to make individual plan participants the risk bearers and care takers of their own retirement funding, the least we can do is provide them with the legal tools to protect their investments.
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.
Equitable Relief Under ERISA in the First Circuit Post-Sereboff
Permalink | The district courts in the First Circuit have been so busy issuing ERISA related decisions recently that it has become difficult to find time to post on other things that I also want to talk about. That said, however, the District Court for the District of Maine just issued a remarkable opinion that I both wanted to comment on and to be sure to spotlight. The case is Curran v. Camden National Bank, and it involved the question of whether the defendant bank owed hundreds of thousands of dollars to a multi-employer health care trust upon its withdrawal from the group. There are a few things that are really note worthy about the ruling. First of all, the decision is a nicely crafted survey of the law in this circuit as it currently stands on a number of topics, in particular: the extent to which, after Sereboff, equitable relief is available under ERISA in this circuit; the proper analysis of preemption; and the determination of fiduciary status for purposes of a claim for breach of fiduciary duty.
One could pick the court’s analysis of any of these three issues to focus on, and have plenty to write about, but today I will comment in particular on the court’s discussion of the viability of claims for equitable relief in this circuit after Sereboff, particularly since the court points out that the First Circuit itself has not yet found reason to interpret and apply Sereboff, other than to cite the case for the proposition that “what forms of relief are considered equitable is a matter in dispute.” On this issue, the district court began by providing a handy blueprint for analyzing claims for equitable relief in this circuit, and whether they can proceed without running afoul of Supreme Court precedent. Addressing “29 U.S.C. § 1132(a)(3), which provides [that a] civil action may be brought by a participant, beneficiary, or fiduciary (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 court stated:
By its terms, however, section 1132(a)(3) authorizes only "those categories of relief that were typically available in equity." Sereboff v. Mid Atl. Med. Servs., U.S. , 126 S. Ct. 1869 (2006) (quoting Mertens v. Hewitt Associates, 508 U.S. 248, 256 (1993) (emphasis in original)). If the plaintiffs seek legal as opposed to equitable relief, "their suit is not authorized by § [1132(a)(3)]." Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 218 (2002).
The First Circuit has set forth a two-step inquiry to evaluate a cause of action under § 1132(a)(3): "1) is the proposed relief equitable, and 2) if so, is it appropriate?" LaRocca v. Borden, Inc., 276 F.3d 22, 27-28 (1st Cir. 2002). With respect to the first prong, under ERISA, "'equitable relief' includes 'those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).'" Id. at 28 (quoting Mertens, 508 U.S. at 256). Turning to the second step, the purpose of § 1132(a)(3) is to serve as a "safety net, offering appropriate equitable relief for injuries caused by violations that §  does not elsewhere adequately remedy." Id. (quoting Varity Corp. v. Howe, 516 U.S. 489, 512 (1996)).
This is a very handy formulation that one can borrow to begin the section of any brief submitted in this circuit arguing over whether or not a particular claim can proceed under this section of ERISA. The court then went on, however, to provide far more analysis and guidance on this issue, explaining how a proper analysis of Sereboff and subsequent history from other circuits established that the plaintiffs were seeking a legal remedy dressed in the clothing of equitable relief, and that the claim therefore could not proceed under this statutory section.
Second of all, the bank’s lawyers did a terrific job here, drawing the court across a diverse range of ERISA issues and convincing the court that none of the plaintiffs’ claims were viable in light of the statute and case law interpreting it. I tip my hat to the bank’s lawyers for a terrific win.
What Happens When Reimbursement of Overpaid Benefits Is Equitable for Purposes of ERISA, but Nonetheless Inequitable?
Permalink | Here is an interesting little twist on the common scenario of a plan overpaying retirement benefits and then seeking reimbursement, as allowed under the plan’s terms, of the overpayment from the plan beneficiary. Normally, these cases are focused on whether the reimbursement qualifies as equitable relief that the fiduciary is allowed to pursue. In this case out of the District Court for the District of New Hampshire, however, the court simply assumed the plan fiduciary could legally obtain that recovery as equitable relief under ERISA, even though the judge commented in the opinion that “the scope of this court’s equitable authority in an ERISA context is not well-defined.”
However, the court then went on to let the beneficiary off the hook (or at least to find a question of fact that precluded an award of summary judgment to the plan), on the theory that the beneficiary could have reasonably believed that he was entitled to receive the overpayments, even though they amounted to many thousands of dollars a month for a number of months beyond the one time lump sum he had elected to receive as his pension benefit, and had changed his position, by spending those funds, in reliance on that belief. The court found that ordering reimbursement from the beneficiary, under those circumstances, could be inequitable, and that the plan could not recoup the overpayments if that were the case.
Of interest, there was one factual quirk that made the case somewhat different than the usual recoupment case where the overpaid beneficiary argues that he or she already spent the money and it would be inequitable to order repayment as a result. There was actually evidence showing that the beneficiary, prior to the time of the request for reimbursement, had performed rough calculations that showed him entitled to a sum significantly larger than he was actually entitled to receive. Although the math was grossly incorrect, the court found that even if his “calculations are inaccurate, the mere fact that he prepared the estimate suggests that he may have reasonably believed that he was entitled to the erroneous payments.” Most of the published decisions where beneficiaries claim they didn’t know they were receiving large payments in error and thus should not have to repay them involve fact patterns where that assertion is simply hard to believe; the court here, rightly or wrongly, was clearly swayed by evidence that placed this case outside of that mainstream.
The case is Laborer’s District Council Pension Fund for Baltimore v. Regan.
Sereboff in a Clever Nutshell
Permalink | No more end of the year lists for this blog; the holidays are over and it is time to return to substance. With that in mind, I thought I would kick off the new year by passing on Boston University Law student Anthony R. Ten Haagen’s interesting note on Sereboff, soon to be published in the American Journal of Law and Medicine.
For those of you who might want to find it to cite it, here's the latest information I had as to where and when it will be published, and under what name: Equitable Relief under ERISA: Supreme Court Allows a Fiduciary to Recover Expenses Paid to a Beneficiary Who Subsequently Recovered Damages from a Third Party in a Tort Action Lawsuit – Sereboff v. Mid Atlantic Medical Services, 32 Am. J.L. & Med. 636, 636-39 (2006).
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.
Equitable Relief under Section 502(a)(3)
Last week, in Sereboff v. Mid Atlantic Medical Services, Inc., http://www.supremecourtus.gov/opinions/05pdf/05-260.pdf, the Supreme Court returned to the question of what particular relief sought by a fiduciary can properly be pursued under the equitable relief provisions of Section 502(a)(3)(B) of ERISA, which provides that:
A fiduciary may bring a civil action under ¬ß 502(a)(3) of ERISA "(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."
502(a)(3)(B) is understood, under Supreme Court precedent, to only allow fiduciaries to pursue equitable relief, spawning a class of litigation over the issue of what particular relief sought by a plan or other fiduciary should be deemed to be "equitable" for these purposes. In Sereboff, the Court returned to the specific question of when can the plan obtain reimbursement from beneficiaries who had collected a third party tort recovery. In the case before the Court, the beneficiaries had collected health benefits from the plan and thereafter obtained a tort settlement from those who had caused the injuries that required the health care in question; the plan contained an
"Acts of Third Parties" provision [, which] requires a beneficiary who is injured as a result of an act or omission of a third party to reimburse [the plan] for benefits it pays on account of those injuries, if the beneficiary recovers for those injuries from the third party.
The Court concluded that this issue is not decided by simplistic characterizations of the recovery, such as should it be characterized as restitution, a recovery normally understood at least in casual legal thought as equitable, or instead as compensatory damages, but instead by analyzing the history of equitable relief under Supreme Court precedent and determining whether, on that long history, the relief in question would qualify as equitable.