Arbitrary and Capricious Standard of Review

I mentioned West Legalworks' upcoming ERISA Litigation Conference in a recent post. Of interest - to me anyway, and I think to anyone who litigates denial of benefit claims - is that in the marketing materials for the conference, the organizers note "shifting standards of review" on benefit denials as an important subject.

To the extent the conference organizers may be referring to actual precedential changes in the applicable standards of review in certain circuits, that is one thing. But in my own practice I have noticed a subtle shift in the way judges are applying standards of review that have long been on the books, and that have not formally been shifted by any superceding appellate rulings.

When applying the arbitrary and capricious standard, I have noted a more skeptical eye being applied by judges. Whereas in the past judges would typically be satisfied that the standard was met so long as there was a reasonable amount of evidence in the administrative record that supports the administrator's finding, now they seem more often than not to actually look at the pieces of evidence in the record with a critical eye and decide for themselves whether it supports the finding. Another way to think about this is that in the past the mere existence of supporting evidence in the record was enough for the administrator to prevail; now it seems that judges are looking more closely at the quality of that evidence as well in deciding whether or not it was reasonable for the administrator to reach its determination.

It is a more skeptical application of the same standard, and as such something of a quiet and barely perceptible shift in the case law, one that, if I am right about this and this thought holds up across time and over a broader sampling of cases, is occurring without any appeals court rulings announcing an actual change in the law.

At this point, it is somewhat of a small sampling on which I base this impression; I will be curious to see what the future holds in this regard.