The First Circuit released its most recent ERISA decision, Carrasquillo v. Pharmacia Corp., a few days ago. Of interest in the decision, the court notes the standards that the appellate court should apply in reviewing a district court’s entry of summary judgment when the arbitrary and capricious standard applies. The court reiterated that while the First Circuit reviews a district court’s summary judgment decision de novo, if the district court’s decision was governed by “arbitrary and capricious review, [the First Circuit] evaluate[s] the district court’s determination by asking whether the aggregate evidence, viewed in a light most favorable to the non-moving party, could support a rational determination that the plan administrator acted arbitrarily in denying a claim for benefits;” if not, then the First Circuit will uphold the plan administrator’s determination.
The First Circuit also spends a little time in this case reemphasizing that an administrator’s interpretation of the plan terms, and not just its ultimate benefit determination, is to be accepted and applied by the court in ruling on the challenge to the benefit determination so long as the administrator’s interpretation was not arbitrary and capricious, if the plan reserved discretion over such interpretation to the administrator. And what does it mean to be an interpretation that is not arbitrary and capricious? It simply means the interpretation needs to be reasonable.
The court also returned to what was once a common point of contention in this circuit, namely whether and to what extent judicial review of a benefit determination is limited to the administrative record that was before the administrator at the time the administrator decided the claim for benefits. A series of First Circuit opinions issued in the last few years put an end to any question over this issue, to the point that in this most recent decision, the First Circuit saw no need to make any further comment on this point than to note that “there is a presumption that judicial review is limited to the evidentiary record presented to the administrator.”
And finally, in something I liked, the court summed up the state of preemption law in this circuit, and provided a nice little handy one paragraph starting point for lawyers who might brief preemption issues before the district courts of the First Circuit in the future, stating:

We next turn to the district court’s finding that Otero’s state law claims are preempted by ERISA. In light of ERISA’s goal to promote uniformity in the nationwide regulation of employee benefit plans, Congress designed the statute to supersede “any and all State [causes of action] insofar as they may now or hereafter relate to any employee benefit plan.” Id. (emphasis added). The Supreme Court has identified two instances where a state cause of action relates to an employee benefit plan: where the cause of action requires “the court’s inquiry [to] be directed to the plan,” or where it conflicts directly with ERISA. . . . Because the resolution of Otero’s Commonwealth law claims for fraudulent inducement and intentional infliction of emotional distress would require analysis of the Plan, the district court correctly concluded that they are preempted.

Jerry Kalish has a terrific post, drawing on a law firm white paper, about the potential ERISA liabilities of financial advisors and others who manage or otherwise help to run company 401(k) plans. As he discusses, class action lawsuits are being filed alleging ERISA violations in the operation of such plans; the suits stem from the decisions made by plan advisors and others concerning plan investments and the effect of those decisions on plan expenses.
Substantively, these types of suits raise interesting questions as to exactly how much discretion in making investment decisions should be extended to administrators, sponsors and advisors of such plans before second guessing becomes appropriate. On a broader note, these suits also point out the extent to which the simultaneously high and somewhat amorphous standards that govern the actions of fiduciaries under ERISA make the responsibilities and potential liabilities of 401(k) administrators, sponsors and advisors a fertile field for imaginative plaintiffs’ lawyers.
And finally, given the number of different advisors and other players involved in the operations of these types of retirement vehicles, there are bound to be plenty of fiduciaries – as that term is understood in the context of ERISA – involved in almost any 401(k) plan, making for plenty of targets for such suits.

Every state has its litigation tricks and traps, and we all know that there are some states that insurers would simply rather steer clear of. With this in mind, some insurers try to control what states’ litigation risks and regimes they will be exposed to by limiting the states in which they write business. But covered risks are often mobile, and even when they are not, we all know that an insured’s business operations in one state may expose it to liability in another. As a result, as this story reminds us, an insurer can find its obligations and exposures governed by the law of a state whose law it never intended to subject itself to.

When I was first starting out as a lawyer, stuck with research assignments that required figuring out all aspects of a particular state’s law on a particular issue, I always liked to begin by looking for a federal district court decision on the subject, because the federal court decisions had a tendency to include a comprehensive summary of all the law in the state in question on the issue in dispute. This saved the work of reviewing multiple state court decisions, each of which tended to address only one narrow part of the overall issue without discussing other state court decisions that addressed other aspects of the issue. I have always attributed this, by the way, to the federal courts’ greater access to law clerks, who could be counted on to turn opinions into minor treatises.
Anyway, here is a perfect example of this phenomenon, only here on an issue that matters to this blog: namely, when can an insured obtain recovery of attorneys fees under Massachusetts law from an insurer in a lawsuit over coverage. Massachusetts state court decisions establish that coverage litigation is an exception, at least here, to the American rule, and that in Massachusetts, it is loser pays, at least if the insurer is the loser in the case.
But the Massachusetts state court decisions to this effect are spread across several cases and could arguably be limited to their facts, unless you synthesize them and push their reasoning one step further. The federal district court in Massachusetts has taken this last step for us, reviewing the Massachusetts state court decisions on this issue and concluding that they add up to an insured being entitled to recover the attorneys fees it incurs in establishing either a duty to defend or a duty to indemnify on the part of the insurer, without limitation to whether the policy in question provides first party or instead third party coverage.

I guess one could say that I have taken issue with some recent legal scholarship concerning the standard of review that should apply to judicial review of benefit denials, such as in this post and in this one. Perhaps part of that is that at the end of the day, I think standard of review is a litigation issue, and one that is best understood in the context of the day to day progression of benefit litigation; I am not sure it is well considered outside of that context and from outside of the courtroom.
But that is not to say that there aren’t many, many ERISA issues that are far more complicated than that one, and which could certainly benefit from a deeper and more thorough analysis than that which the litigation prism can provide. The Spring issue of the John Marshall Law Review is a benefits symposium, with a series of papers on exactly those issues that are on the front burner and can use a thorough review, such as, in particular, pension and stock issues in the aftermath of the stock manipulation scandals (which I have talked about here, for instance), and the shaky status of retiree medical benefits (talked about here and again here).
I know I will be reading the whole thing, and I will likely toss out on this blog highlights and comments about the articles over the next few months, so once again, if you have better uses of your time than reading law review articles, you can just skip reading this law review issue as well and just check back here later.

We have talked a lot about the different standards of review that courts should apply when reviewing an administrator’s decision concerning a claim for benefits under ERISA. But what about if the administrator never applied any review at all before the dispute ended up in the courts? Courts differ on whether this should change the standard of review, with many finding that, under those circumstances, a reviewing court should apply a de novo standard of review even if the plan reserved discretion to the administrator (something which would normally mean that the more deferential arbitrary and capricious standard of review should apply).
The First Circuit has not passed on this issue, but the federal district court here has just come out with its conclusion: it means nothing more than that the entire matter is remanded back to the administrator to actually perform the required review. You can find the case here.

Well, I just got lucky. Vain as I am I went looking for my name on other blogs, and came right to David Rossmiller’s latest post (I’m just kidding – I read his blog regularly), which in turn led me to a new blog he is reading out of Britain on reinsurance named ReRisk. And why did I get lucky, besides just the fact that it was instantly clear that ReRisk is a fun read? Because of this. I have talked in other posts about my preference for facts, for hard verifiable numbers, when analyzing arguments and problems, and I have a particular preference for this with regard to insurance pricing and availability issues, since much of the public discussion on that topic tends to be primarily posturing and not about a rational discussion of the economics of the matter (see this post here, for instance).
At the same time, both on this blog and elsewhere, there has been plenty of discussion about insurers repricing or not offering homeowners insurance in coastal areas based on hurricane prediction models, including some articles pointing out that the pricing changes are because hurricanes are becoming a bigger threat or were at least previously undervalued as a threat (see this post here, for instance). And yet I don’t ever recall seeing much real data showing or instead disproving that statement. Until here, in ReRisk’s post from a couple weeks back. I am not sure his chart answers the question of whether insurers are right that the threat is increasing (although quite clearly, even if the hurricanes themselves aren’t increasing, the ever increasing construction on the coasts makes a modern hurricane far more risky fiscally than were hurricanes in the past), but it is certainly very entertaining food for thought on these issues.

This is neat. Here’s a nice little story right smack at the confluence of this blog’s topics, ERISA litigation and insurance coverage problems. The story describes a new insurance product being released by Travelers providing investment advisors and similar entities with expanded coverage for the risks associated with providing investment services; the policy will cover claims for things such as breaches of fiduciary duties owed to pension plan participants.
As discussed frequently on this blog and elsewhere, ERISA claims alleging the types of conduct that it appears this product is intended to encompass – claims often seeking many million of dollars -have become a regular part of the landscape in the past couple of years. It looks like this is exactly the kind of insurance product that these types of claims call for. Granted, I haven’t seen the policy itself. Still, the article points towards one of the more interesting things about the insurance industry, which is its capacity to adapt to changes in the litigation environment and to provide revised or even entirely new forms of coverage to account for those changes.

Well, this is interesting. Here is a forthcoming law review article from Ed Zelinsky of Cardozo on the Maryland Fair Share Act, Wal-Mart and preemption, issues I talked about here and here. As the abstract shows, the professor concludes that a federal district court correctly held that Maryland’s statute targeting Wal-Mart’s health insurance program was preempted. I like this article, maybe because, in far more pages and after far more study, he reaches the same conclusion that I reached in a short period of time and by means of only a few relatively short posts (see this one for instance). To be fair though, there is also a lot more contained in his article than could be captured in the context of a blog, all of which simply reflects that each of these forums for discussing legal issues has it own strengths and weaknesses.
And if it seems like I am on a bit of a law review article kick these days, its because the Workplace Prof Blog, to which I subscribe, dumps links to the latest relevant law review articles into my email on a daily basis.

Where do I get my information and how do I stay up to date? From sources like BNA’s new pension and benefits blog, hosted right now by Nell Hennessy, who has the experience to really discuss pension issues. She has a nice post up right now listing blogs, including this one, that cover ERISA, pension and benefit issues, and it is a nice handy cheat sheet of sources of information on the topics covered by this blog. I haven’t read all of the blogs Nell noted, but I have read many of them, and they are the cream of the blogging crop on these issues.
Oh, and by the way, I am dimly aware that some use the term blogrolling to refer to bloggers talking about other bloggers. I do, however, prefer the more classic American political term logrolling, with all of its historical connotations.