Attorneys Jonathan Feigenbaum and Scott Riemer, who represent claimants in long term disability cases, have published a fascinating article, titled “Did the Supreme Court Flunk Constitutional Law when it Permitted Discretionary Review of Insured ERISA Benefits Cases?” In it, they argue, not surprisingly given the title, that it is unconstitutional for courts to apply
Standard of Review
And the Ninth Circuit Swings Away at Tibble v. Edison . . .
By Stephen Rosenberg on
Well, the United States Court of Appeals for the Ninth Circuit has affirmed the District Court’s well-crafted opinion in Tibble v. Edison. I discussed the District Court’s opinion in detail in my article on excessive fee claims, Retreat From the High Water Mark. From a precedential perspective, as well as from the point…
Stephan v. Unum, the Attorney-Client Privilege, and the Need for Independent Counsel for Company Officers and Plan Fiduciaries
Tidal Wave! Landslide! Look out below!
Pick out the metaphor of your choice, because Unum just got taken out behind the woodshed by the Ninth Circuit and spanked hard. Frankly, the Ninth Circuit’s opinion is a rout in favor of the participant, and participants in general. In many ways, the case presented a perfect storm…
On State Regulators and the Continued Existence of Discretionary Review
By Stephen Rosenberg on
Posted in Standard of Review
You know the old saying “let a thousand flowers bloom”? Its long been a shorthand way (ironically enough, given its origin) of referring to the idea of letting state governments and programs serve as testing grounds for different approaches to the same problem, rather than having the federal government dictate one definitive solution, in…
The Very Interesting Lessons of Novella
By Stephen Rosenberg on
The Second Circuit these days is the gift that just keeps on giving when it comes to ERISA litigation, and for that matter to blogging about ERISA litigation. Following up hard on the heels of its thorough and legitimately interesting opinion on employer stock drop litigation in Citigroup and McGraw-Hill, the court issued this…
Interpreting Ambiguous Plan Language
By Stephen Rosenberg on
Posted in Standard of Review
So half the parties interpreting a possibly ambiguous plan term that is subject to discretionary review come out one way in reading the term, and the other two the other way. Who wins? Well, this is a trick question to some extent, because it doesn’t matter the numbers – all that matters is who gets…
What’s a Good ERISA Lawyer Worth, Anyway?
By Stephen Rosenberg on
That’s what this case here begins to answer, at least in the Boston market and in the context of the fees that should be awarded to a prevailing plaintiff. This case was intended to be the next in the series of recent Massachusetts/First Circuit centric decisions I started writing two weeks ago, and haven’t returned…
What Conkright v. Frommert Means
By Stephen Rosenberg on
Posted in Standard of Review
Well, I guess this wouldn’t be much of an ERISA blog if I didn’t put up a post about the Supreme Court’s decision in Conkright v. Frommert, on the question of whether an administrator continues to be entitled to deferential review when it has already had one interpretation of the challenged plan terms rejected…
When Does a Flaw in an Administrative Appeal Render an Administrator’s Denial of Benefits Arbitrary and Capricious?
There have been a series of interesting ERISA decisions over the past several weeks out of the United States District Court for Massachusetts, whose Boston courthouse I can see through my office window as I type this post. The decisions have stacked up on my desk a little bit, like a leaning tower of paper.
You Say Potato, I Say Potato: Two Different Understandings of What Discretionary Review Means
This is interesting. I have written before on this blog, on numerous occasions, about courts sometimes engaging in a more searching level of discretionary review that, in essence, is not discretionary review at all, at least in the manner it has long been traditionally understood. The common belief, and applied in that way by many…