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Preview: LexisNexis® Mealey's™ ERISA Legal News

LexisNexis® Mealey's™ ERISA Legal News



Headline ERISA Legal News from LexisNexis®



 



Disabled Retiree Asks U.S. High Court To Review ERISA Forum-Selection Dispute
WASHINGTON, D.C. - A retiree seeking reinstatement of his terminated health benefits under the Employee Retirement Income Security Act and asking the U.S. Supreme Court to decide a forum-selection dispute is not likely to have his petition for writ of certiorari granted and so no stay should be issued pausing the district court proceedings, the retiree's former employer, Caterpillar Inc., argues in its opposition to application to stay filed Nov. 29 in the U.S. Supreme Court (George W. Mathias v. United States District Court for the Central District of Illinois, et al., No. 17-740, U.S. Sup.).



U.S. Supreme Court Won't Hear Class's Lifetime Health Benefits Appeal
WASHINGTON, D.C. - The U.S. Supreme Court on Nov. 27 denied a petition for writ of certiorari filed by retirees representing a class of approximately 2,900 individuals and seeking to reverse a decision by the Sixth Circuit U.S. Court of Appeals, which held that a series of collective bargaining agreements (CBAs) did not provide retired employees of an employer and its predecessors with a vested right to lifetime health care benefits (Robert Cole, et al. v. Meritor, Inc., et al., No. 17-413, U.S. Sup.).



Washington Federal Judge: Exclusion Of Treatments May Violate Mental Health Act
SEATTLE - A Washington federal judge on Nov. 28 denied a motion to dismiss filed by health plan defendants after determining that the health plan may have violated the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 by excluding coverage for two specific types of treatments for autism spectrum disorder (ASD) because the plan does not exclude all types of treatments for those diagnosed with ASD (D.T., et al. v. NECA/IBEW Family Medical Care Plan, et al., No. 17-00004, W.D. Wash., 2017 U.S. Dist. LEXIS 195186).



Claim Seeking Coverage For Air Ambulance Transport Remanded To Plan Administrator
SACRAMENTO, Calif. - A California federal judge on Nov. 16 remanded an insured's claim seeking coverage for almost $500,000 incurred for the transport of her daughter from a hospital in Mexico to a hospital in Seattle by air ambulance because the plan administrator did not consider all of the available information before denying the claim on the basis that the air transport was not for an emergency (Aviation West Charters LLC, d/b/a Angel Medflight v. UnitedHealthcare Insurance Co., No. 16-436, E.D. Calif., 2017 U.S. Dist. LEXIS 190114).



U.S. High Court Won't Review Claims That 'Oral Screening' Process Violates ERISA
WASHINGTON, D.C. - The U.S. Supreme Court on Nov. 27 denied a petition for writ of certiorari filed by a pro se petitioner who claims that the Ninth Circuit U.S. Court of Appeals' "oral screening" process for handling pro se and other appeals breaches the Employee Retirement Income Security Act (Sally Gillette v. The Wilson Sonsini Group Welfare Benefit Plan, et al., No. 17-559, U.S. Sup.).



North Dakota Federal Judge Denies Preliminary Injunction In Suit Over New PBM Laws
FARGO, N.D. - A North Dakota federal judge on Nov. 7 denied a motion for a preliminary injunction brought by a trade association representing pharmacy benefit managers (PBMs) seeking to halt two new state laws regulating the categorization of prescription drugs and requiring PBMs to make certain disclosures, finding that the trade association failed to show that the two laws implicitly reference or have a connection with the Employee Retirement Income Security Act (Pharmaceutical Care Management Association v. Mylynn Tufte, et al., No. 17-141, D. N.D.).



District Court Correctly Found Attorney Fees Not Permitted Under Fee-Shifting Rule
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on Nov. 27 affirmed that a health plan participant who filed suit against the plan is not entitled to attorney fees because the parties submitted their dispute to arbitration, which is not considered an action under the Employee Retirement Income Security Act's fee-shifting rule (Francisco Ponce De Leon v. International Longshoremen's and Warehousemen's Union-Pacific Maritime Association Welfare Plan, No. 16-55364, 9th Cir., 2017 U.S. App. LEXIS 23918).



ERISA Document Claims Against Alleged Plan Administrator May Proceed, Judge Says
ORLANDO, Fla. - Accepting a plaintiff's allegations as true, his claim that an insurer was his health care plan administrator and failed to produce documents related to the denial of coverage for his liver transplant adequately supports his Employee Retirement Income Security Act claim, a federal judge in Florida held Nov. 7 (Mark Atherley v. United Healthcare of Florida Inc., No. 17-332, M.D. Fla., 2017 U.S. Dist. LEXIS 184189).



D.C. Circuit Appeal Of Fiduciary Rule Waits On 5th Circuit Ruling
WASHINGTON, D.C. - A District of Columbia Circuit U.S. Court of Appeals panel on Nov. 14 issued an order holding in abeyance an appeal by the National Association for Fixed Annuities (NAFA) challenging the U.S. Department of Labor's (DOL) fiduciary rule, pending a decision by the Fifth Circuit U.S. Court of Appeals in an appeal by the Chamber of Commerce (National Association for Fixed Annuities v. United States Department of Labor, et al., No. 16-1035, D.C. Cir.).



Preliminary Injunction And Stay Granted In BIC Exemption Suit
ST. PAUL, Minn. - A Minnesota federal judge on Nov. 3 granted a plaintiff's motion for preliminary injunction and the U.S. Department of Labor's (DOL) motion to stay in a lawsuit over the DOL's new "best interest contract" prohibited exemption (BIC exemption) (Thrivent Financial for Lutherans v. R. Alexander Acosta, et al., No. 0:16-cv-03289, D. Minn., 2017 U.S. Dist. LEXIS 182657).



DOL Extends Transition Period For Fiduciary Rule Exemptions
WASHINGTON, D.C. - The U.S. Department of Labor (DOL) announced on Nov. 27 an 18-month extension of the special transition period for the Fiduciary Rule's Best Interest Contract Exemption and the Principal Transactions Exemption as well as the applicability of certain amendments to Prohibited Transaction Exemption 84-24.



4th Circuit Upholds Employer's Right To Amend Deferred Pay Plan's Crediting Rate
RICHMOND, Va. - An employer acted within its rights and did not violate the Employee Retirement Income Security Act when it amended a deferred compensation plan's applicable crediting rate, affecting all, even retired, plan participants, a Fourth Circuit U.S. Court of Appeals panel ruled Nov. 8 (Jeffrey Plotnick, et al. v. Computer Sciences Corporation Deferred Compensation Plan for Key Executives, et al., No. 16-1606, 4th Cir., 2017 U.S. App. LEXIS 22500).



Former Employee Fails To Show Pension Plan Is Not 'Top-Hat' Plan, Panel Affirms
PHILADELPHIA - The Third Circuit U.S. Court of Appeals on Nov. 24 affirmed a lower federal court's finding that the former employee of the University of Pittsburgh Medical Center cannot recover pension benefits under the Employee Retirement Income Security Act because he sought benefits under a top-hat plan, rejecting the appellant's argument that plan participant bargaining power is a substantive element of a top-hat plan (Paul F. Sikora v. UPMC, et al., No. 17-1288, 3rd Cir., 2017 U.S. App. LEXIS 23796).



Investors In ERISA Dispute With JP Morgan Seek Approval Of $75M Cash Settlement
NEW YORK - Eight out of 12 investors who participated in various 401(k) retirement plans and allocated a portion of their retirement savings through those plans to certain stable value funds sold and/or managed by J.P. Morgan Chase & Co. (JPMC) on Nov. 3 moved for preliminary approval of a $75 million cash settlement over their claims that JPMC violated the Employee Retirement Income Security Act (In re J.P. Morgan Stable Value Fund ERISA Litigation, No. 12-2548, S.D. N.Y.).



Foot Locker Asks Supreme Court To Decide Pension Plan Dispute
WASHIGNTON, D.C. - The U.S. Supreme Court must decide whether a class of pension plan participants can be certified in case alleging that Foot Locker Inc. violated the Employee Retirement Income Security Act when it failed to disclose a temporary freezing of benefits after the Foot Locker Retirement Plan was transitioned to a cash-balance plan despite individualized questions, Foot Locker alleges in its Nov. 8 petition for writ of certiorari (Foot Locker, Inc., et al. v. Geoffrey Osberg, et al., No. 17-690, U.S. Sup.).



U.S. High Court Won't Disturb 5th Circuit's Ruling In Widow's Life Insurance Suit
WASHINGTON, D.C. - The U.S. Supreme Court on Nov. 27 denied a petition for writ of certiorari filed by a widow seeking to have the high court reverse a determination that she was not entitled to the proceeds of a life insurance policy issued to her husband by his former employer, Wal-Mart Stores Inc. (Kimberly D. Hendrix v. Wal-Mart Stores, Incorporated, et al., No. 17-488, U.S. Sup.).



Unpaid Contributions Are Not Plan Assets; Fiduciary Duty Claims Fail, Federal Judge Says
HONOLULU - A pension fund trustee's breach of fiduciary duty claims arising out of the defendants' failure to make payments to a pension trust fund must be dismissed because unpaid contributions are not plan assets that would create a fiduciary obligation, a Hawaii federal judge said Nov. 13 (Hawaii Masons' Pension Trust Fund, et al. v. Global Stone Hawaii Inc., No. 17-289, D. Hawaii, 2017 U.S. Dist. LEXIS 188771).



New York Federal Judge Grants Plan Participants' Motion For Class Certification
NEW YORK - A New York federal judge on Nov. 27 granted a motion for class certification filed by plaintiffs alleging that a retirement plan's administrative and investment committees breached their fiduciary duties by selecting company-affiliated mutual funds as plan investments rather than other better-performing mutual funds after determining that the plaintiffs established the requirements necessary for class certification (Marya J. Leber v. Citigroup, Inc., et al., No. 07-9329, S.D. N.Y., 2017 U.S. Dist. LEXIS 194293).



Pension Plan Participant Files Response To Petition, Says High Court Should Deny Review
WASHINGTON, D.C. - In a Nov. 27 response brief, a pension plan participant urges the U.S. Supreme Court to deny a petition for writ of certiorari filed by a group of affiliated brokers who manage funds on behalf of the pension plan on the basis that the Second Circuit U.S. Court of Appeals correctly found that the plan participant has standing to sue on behalf of himself, his pension plan and other similarly situated Employee Retirement Income Security Act plans over alleged improper fiduciary conduct (Convergex Group LLC, et al. v. Landol Fletcher, No. 17-343, U.S. Sup.).



Amici Assert Contributions To Plan Cannot Be Used As Defense To Fiduciary Breach Claim
BOSTON - A settlor's contributions to a 401(k) plan are not a defense to claims that the plan trustee breached its fiduciary duties by engaging in prohibited transactions, AARP and the National Employment Lawyers Association argue in an amicus curiae brief filed in the First Circuit U.S. Court of Appeals in support of plan participants in an Employee Retirement Income Security Act class action suit (John Brotherston, et al. v. Putnam Investments LLC, et al., No. 17-1711, 1st Cir.).



Plan Participants Ask 1st Circuit To Find Plan's Trustee Breached Fiduciary Duty
BOSTON - Class action plaintiffs recently asked the First Circuit U.S. Court of Appeals to reverse a lower federal court's ruling that they failed to carry their burden to establish that Fidelity Management Trust Co. breached its fiduciary duties pursuant to the Employee Retirement Income Security Act by mismanaging the Fidelity Group Employee Benefit Plan Managed Income Portfolio Comingled Pool (MIP) (James Ellis, et al v. Fidelity Management Trust, No. 17-1693, 1st Cir.).



Retirement Plan Participants File ERISA Lawsuit Alleging Breach Of Fiduciary Duties
SANTA ANA, Calif. - Participants and beneficiaries of a multiemployer defined contribution retirement plan on Nov. 28 filed suit in federal court under the Employee Retirement Income Security Act, alleging that the plan's sponsor, the board of trustees and its past and present members breached their fiduciary duties by offering retail class mutual fund shares when identical lower-cost institutional class shares were available (Felipe Ybarra, et al. v. Board of Trustees of Supplemental Income Trust Fund, No. 17-2091, C. D. Calif.).



Class Action Asserts Plan Fiduciaries Did Not Adequately Review Investment Portfolio
DULUTH, Minn. - A class action lawsuit was filed Nov. 17 in Minnesota federal court against the fiduciaries of the Wells Fargo & Company 401(k) Plan pursuant to the Employee Retirement Income Security Act, alleging that the defendants breached their fiduciary duties of prudence and loyalty by their lack of systematic and unbiased review of the plan's investment options (Stacey Wayman, individually and on behalf of herself and all others similarly situated v. Wells Fargo & Co., et al., No. 17-05153, D. Minn.).



Termination Of LTD Benefits Supported By Medical Evidence, Appeals Panel Says
PHILADELPHIA - A district court did not err in finding that a disability insurer's termination of long-term disability benefits under the plan's any-occupation standard was not arbitrary and capricious because the termination is supported by substantial evidence, the Third Circuit U.S. Court of Appeals held Nov. 13 (Kristen Ann Davies v. First Reliance Standard Life Insurance Co., No. 17-1782, 3rd Cir., 2017 U.S. App. LEXIS 22656).



Disability Insurer Says 2nd Circuit Incorrectly Found Offset Is Barred
WASHINGTON, D.C. - Review of the Second Circuit U.S. Court of Appeals' ruling that New York law bars the offset of a claimant's disability benefits with the proceeds of the claimant's settlement of a personal injury suit is warranted because the Employee Retirement Income Security Act preempts the New York law at issue, a disability insurer argues in a Nov. 17 reply brief filed in the U.S. Supreme Court (Aetna Life Insurance Co. v. Salvatore Arnone, No. 17-416, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 4511).



Fact Issues Exist On Cause Of Claimant's Disability, 11th Circuit Panel Says
ATLANTA - The 11th Circuit U.S. Court of Appeals on Nov. 17 remanded a disability claimant's suit after determining that a district court erred in granting summary judgment in favor of the insurer because genuine issues of material fact exist regarding the cause of the claimant's disability and whether the plan's pre-existing conditions exclusion applies (Kristian Horneland v. United of Omaha Insurance Co., No. 16-16935, 11th Cir., 2017 U.S. App. LEXIS 23129).



Offset Was Not Abuse Of Discretion, 9th Circuit Panel Says In Affirming
SAN FRANCISCO - A disability plan administrator did not abuse its discretion in offsetting a claimant's long-term disability (LTD) benefits to account for Social Security disability income (SSDI) benefits that she receives for her dependents, the Ninth Circuit U.S. Court of Appeals said Nov. 17 in affirming a district court's ruling for the plan (Susan Rene Jones v. Life Insurance Company of North America, et al., No. 16-16172, 9th Cir., 2017 U.S. App. LEXIS 23244).



Negligence Claim For Practice Of Medicine Without License Is Preempted By ERISA, Judge Says
LEXINGTON, Ky. - A Kentucky federal judge on Nov. 28 determined that a plaintiff's claim for negligence per se for the practice of medicine without a license based on a defendant's certification of information about the plaintiff's disability without approval from the plaintiff's doctor is preempted by the Employee Retirement Income Security Act and must be dismissed (Mark Morcus v. Medi-Copy Services Inc., et al., No. 17-229, E.D. Ky., 2017 U.S. Dist. LEXIS 195485).



Negligence Claim Is Not Preempted By ERISA, California Federal Judge Says
SAN DIEGO - Because a negligence claim against a health insurer is seeking damages related to the release of private medical information rather than a denial of benefits, the negligence claim is not preempted by the Employee Retirement Income Security Act, a California federal judge said Nov. 9 in denying the insurer's motion to dismiss (James Heldt v. The Guardian Life Insurance Company of America, No. 16-885, S.D. Calif., 2017 U.S. Dist. LEXIS 186299).



The Exhaustion Doctrine: Asserting And Surmounting The Prohibition Against Stale Claims Under ERISA
By Robert M. Forni, Jr. Introduction A participant in an employee benefit plan that is covered by the Employee Retirement Income Security Act of 1974 ("ERISA"), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq., may bring a civil action under ERISA § 502(a)(1)(B) to recover benefits due under the terms of the plan. 29 U.S.C. §1132(a)(1)(B); Heimeshoff v. Hartford Life & Acc. Ins. Co., - U.S. -, 134 S. Ct. 604, 608 (2013), 2013 U.S. LEXIS 9026. However, although "ERISA itself does not contain an exhaustion requirement," Kirkendall v. Halliburton, Inc., 707 F.3d 173, 179 (2d Cir.2013), 2013 U.S. App. LEXIS 2009, federal circuits uniformly require participants to prove that they exhausted a plan's administrative procedures for resolving disputes before filing suit under § 502(a)(1)(B). Heimeshoff, 134 S. Ct. at 610, 2013 U.S. LEXIS 9026; see, e.g., Tetreault v. Reliance Standard Life Ins. Co., 769 F.3d 49, 52 (1st Cir.2014), 2014 U.S. App. LEXIS 19049; Holmes v. Colo. Coal. for the Homeless Long Term Disability Plan, 762 F.3d 1195, 1203 (10th Cir.2014), 2014 U.S. App. LEXIS 15428; Paese v. Hartford Life & Acc. Ins. Co., 449 F.3d 435, 443 (2d Cir.2006), 2006 U.S. App. LEXIS 13007; Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 717 (6th Cir.2005), 2005 U.S. App. LEXIS 8446; Norris v. Citibank, N.A. Disability Plan, 308 F.3d 880, 884 (8th Cir.2002), 2002 U.S. App. LEXIS 21996; Diaz v. United Agricultural Employee Welfare Benefit Plan and Trust, 50 F.3d 1478, 1483 (9th Cir.1995), 1995 U.S. App. LEXIS 6112; Communications Workers of Am. v. AT & T, 40 F.3d 426, 431-34 (D.C.Cir.1994), 1994 U.S. App. LEXIS 33043; Berger v. Edgewater Steel Co., 911 F.2d 911, 916 (3d Cir.1990), 1990 U.S. App. LEXIS 14076; Makar v. Health Care Corp., 872 F.2d 80, 82-83 (4th Cir.1989), 1989 U.S. App. LEXIS 4623; Denton v. First Nat'l Bank, 765 F.2d 1295, 1303 (5th Cir.1985), 1985 U.S. App. LEXIS 20562; Mason v. Cont'l Grp., Inc., 763 F.2d 1219, 1227 (11th Cir. 1985), 1985 U.S. App. LEXIS 30691; Kross v. W. Elec. Co., 701 F.2d 1238, 1244 (7th Cir. 1983), 1983 U.S. App LEXIS 29821. "Ordinarily, this requires claimants to pursue remedies available under the plan, including any appeal to the plan administrator, before seeking relief in court." Estate of Hale ex rel. Hale v. Prudential Ins. Co. of Am., 597 F. Supp. 2d 174, 180 (D. Mass. 2008), 2008 U.S. Dist. LEXIS 107285. The "failure to exhaust ERISA administrative remedies is not jurisdictional, but is an affirmative defense." Paese, 449 F.3d at 446, 2006 U.S. App. LEXIS 13007; see Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 627, n.2 (9th Cir.2008), 2008 U.S. App. LEXIS 20918; Crowell v. Shell Oil Co., 541 F.3d 295, 309 (5th Cir.2008), 2008 U.S. App. LEXIS 17229; Metro. Life Ins. Co. v. Price, 501 F.3d 271, 280 (3d Cir.2007), 2007 U.S. App. LEXIS 21076; Norris v. Mazzola, 2016 WL 1588345, at *6 (N.D. Cal. Apr. 20, 2016), 2016 U.S. Dist. LEXIS 53399.



ERISA's Limitation Of Action Provision Is Subject To Express Waiver, Panel Says
ATLANTA - Although Section 1113(1) of the Employee Retirement Income Security Act is a statute of repose, as opposed to a statute of limitations, it is still subject to express waiver, the 11th Circuit U.S. Court of Appeals said Oct. 12 in answering a certified question from the Northern District of Georgia (Secretary, U.S. Department of Labor v. Robert N. Preston et al., No. 17-10833, 11th Cir., 2017 U.S. App. LEXIS 19926).



11th Circuit Says Plan Did Not Have Actual Knowledge Of Employee's Incompetence
ATLANTA - The 11th Circuit U.S. Court of Appeals on Oct. 10 affirmed a district court's grant of summary judgment in favor of a retirement plan administrator after determining that the administrator's refusal to reinstate an employee's retirement benefits, based on the fact that the employee was found to be incompetent and had a court-appointed conservator, was reasonable because the administrator did not have actual knowledge of the employee's incompetence (Michael E. Bauman, by and through Michael E. Sumner, conservator, v. Publix Super Markets, Inc. Employee Stock Ownership Plan et al., No. 17-11709, 11th Cir., 2017 U.S. App. LEXIS 19760).



Panel Says Pension Plan Participants Lacked Standing Once Plan Was Overfunded
ST. LOUIS - The Eighth Circuit U.S. Court of Appeals on Oct. 12 determined that a Minnesota federal judge properly dismissed a putative class action filed by pension plan participants alleging violations of the Employee Retirement Income Security Act because once the plan was overfunded, the plaintiffs no longer fell within the class of plaintiffs authorized to bring suit under ERISA (James J. Thole, et al. v. U.S. Bank, et al., No. 16-1928, 8th Cir., 2017 U.S. App. LEXIS 19907).



Plan Participant Cannot Relitigate Entitlement To Pension Benefits, Panel Says
NEW YORK - A pension plan participant is estopped from relitigating her entitlement to pension benefits because the participant filed a prior suit, alleging the same claims, that was dismissed by a district court, the Second Circuit U.S. Court of Appeals said Oct. 5 (Danica Bulovic v. The Stop & Shop Supermarket Co. LLC, et al., No. 16-3341, 2nd Cir., 2017 U.S. App. LEXIS 19407).



Employees Seek Reversal Of Ruling In Bank's Favor On Accounting-For-Profit Claim
RICHMOND, Va. - Plaintiff employees in a decade-long case over a bank's illegal transfer of assets from a 401(k) plan to an Employee Retirement Income Security Act pension plan recently asked the Fourth Circuit U.S. Court of Appeals to reverse a lower court's finding that they failed to show that any profit was retained by the bank as a result of the transfer (William L. Pender, et al. v. Bank of America Corp., et al., No. 17-1485, 4th Cir.).



Class Suit Over Ford Plan Fees Dismissed; Limited Leave To Replead Granted
DETROIT - A Michigan federal judge on Oct. 19 dismissed a class complaint accusing Xerox HR Solutions LLC of allowing excessive fees to be charged on the accounts of participants in three Ford Motor Co. retirement plans in violation of its fiduciary duty under the Employee Retirement Security Act, finding that the plaintiffs failed to carry their burden under Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (Patrick Chendes, et al. v. Xerox HR Solutions, LLC, No. 16-13980, E.D. Mich., 2017 U.S. Dist. LEXIS 172997).



Disability Insurer Erred In Determining Claimant's Date Of Disability, Panel Says
ATLANTA - A disability insurer acted arbitrarily and capriciously in determining the date of a claimant's disability, the 10th Circuit U.S. Court of Appeals said Oct. 17 in reversing a district court's judgment in favor of the insurer (Greggory B. Owings v. United Of Omaha Life Insurance Co., No. 16-3128, 10th Cir., 2017 U.S. App. LEXIS 20228).



Disability Claimant Failed To Provide Objective Medical Evidence To Support Claim
CINCINNATI - A disability plan administrator did not act arbitrarily or capriciously in denying a plan participant's claims for short-term disability benefits because the participant failed to provide objective medical evidence supporting the disability, the Sixth Circuit U.S. Court of Appeals said Oct. 10 (Rebecca Filthaut v. AT&T Midwest Disability Benefit Plan et al., No. 16-2707, 6th Cir., 2017 U.S. App. LEXIS 19882).



Federal Judge Dismisses Breach Of Fiduciary Claim Based On Misrepresentation
SCRANTON, Pa. - A Pennsylvania federal judge on Oct. 27 reiterated that a section of Pennsylvania's motor vehicle statute "regulates insurance" and is therefore saved from preemption under the Employee Retirement Income Security Act but said that the plaintiffs' claim for breach of fiduciary duty based on a disability insurer's misrepresentations must be dismissed because it is not clear that the insurer misrepresented the terms of the plan at issue (Eric Yost, et al. v. Anthem Life Insurance Co., No. 3:16-cv-00079, M.D. Pa.; 2017 U.S. Dist. LEXIS 178883).



Department Of Labor Proposes To Delay Change For Disability Plan Claims Procedures
WASHINGTON, D.C. - The U.S. Department of Labor's Employee Benefits Security Administration on Oct. 12 published in the Federal Register a proposal to delay the applicability of a final rule amending the claims procedure requirements that are applicable to employee disability benefit plans governed by the Employee Retirement Income Security Act.



10th Circuit: Reporting Of Uncashed Retirement Benefit Check Was Not Fraudulent
DENVER - The 10th Circuit U.S. Court of Appeals on Oct. 23 determined that a district court did not err in granting summary judgment in favor of a retirement benefit plan because the plan participant failed to prove that the plan's reporting to the Internal Revenue Service of an uncashed check of the participant's lump-sum retirement benefits distribution was fraudulent or in violation of the Employee Retirement Income Security (Kenton W. Stephens v. Alliant Techsystems Corp., et al., No. 17-4002, 10th Cir., 2017 U.S. App. LEXIS 20713).



Denial Of Appellate Attorney Fees In Disability Dispute Was An Abuse Of Discretion
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on Oct. 31 reversed a district court's denial of attorney fees to a disability plan acting on behalf the plan participant after determining that the plan is entitled to collect the attorney fees it incurred as result of the disability insurer's appeal and that the district court's denial of attorney fees was an abuse of discretion (John Paul Micha M.D., v. Sun Life Assurance Of Canada, Inc., No. 16-55053, 9th Cir., 2017 U.S. App. LEXIS 21800).



Tibble Defendants Will Pay $5.8 Million For Attorney Fees
LOS ANGELES - The parties in the long-running Tibble v. Edison International case filed a joint stipulation in a California federal court on Oct. 16 stating that the defendants will pay the class counsel $5.8 million in attorney fees and costs as long as the court approves the award (Glenn Tibble, et al. v. Edison International, et al., No. 07-5359, C.D. Calif.).



Bon Secours Health Will Pay $98M To 7 Plans To Settle Underfunding Claims
BALTIMORE - Bon Secours Health System Inc. (BSHSI) will contribute $14 million annually for the next seven years, for a total of $98 million, to seven defined-benefit plans operating as "church plans" to settle claims that it improperly operated the plans as exempt from the Employee Retirement Income Security Act and underfunded them, a class of participants claim in their motion for final approval of the settlement agreement and certification of settlement class filed Oct. 13 in the U.S. District Court for the District of Maryland (Arlene Hodges, et al. v. Bon Secours Health System, Inc., et al., No. 16-1079, D. Md.).



Federal Judge Preliminarily Approves $42.5M Settlement Of Church Plan Lawsuit
NEWARK, N.J. - A New Jersey federal judge on Oct. 5 preliminarily approved a $42.5 million settlement agreement in a consolidated Employee Retirement Income Security Act class action that alleges that a health care provider denied ERISA protections to the participants and beneficiaries of a pension plan by incorrectly claiming that the plan qualified as an ERISA-exempt "church plan" (Donna Garbaccio, et al. v. St. Joseph's Hospital and Medical Center and Subsidiaries, et al., No. 2:16-cv-02740, D. N.J.).



Petition To Determine Validity Of Lien Claim Survives ERISA Preemption Challenge
HONOLULU - A Hawaii chief federal judge on Oct. 31 granted in part a petitioner's motion for determination of the validity of a health insurer's claim of lien seeking reimbursement of the $400,779.70 it paid under an Employee Retirement Income Security Act plan to compensate the petitioner for injuries sustained in a motorcycle crash (Randy Rudel v. HMAA, et al., No. 15-00539, D. Hawaii, 2017 U.S. Dist. LEXIS 180132).



Nonprofit Seeks Finding That Oregon Reporting Requirement Is Preempted By ERISA
PORTLAND, Ore. - A nonprofit trade association representing employers that sponsor benefit plans governed by the Employee Retirement Income Security Act filed suit in Oregon federal suit on Oct. 12 seeking a declaration that a reporting requirement included in Oregon's state-run retirement program is preempted by ERISA (The ERISA Industry Committee v. Tobias Read, No. 17-1605, D. Ore.).



Plan Participants Seek Reinstatement Of Suit Over CVS Fund Investments
BOSTON - CVS Health Corp., its employee benefits plan committee and the manager of one of the plan's investment options, in an Oct. 4 response brief filed in the First Circuit U.S. Court of Appeals, opposed claims that they managed the investment of employees' retirement funds in a manner that violated the Employee Retirement Security Act and completely failed to meet the basic guidelines and objectives for the investment of stable value fund assets that they "were effectively managing a money market fund" (Mary Barchock, et al. v. CVS Health Corporation, et al., No. 17-1515, 1st Cir.).



Judge Finds Transactions Could Have Caused Breaches Of Fiduciary Duty Under ERISA
CEDAR RAPIDS, Iowa - An Iowa federal judge on Oct. 13 found that a participant in an Employee Stock Ownership Plan (ESOP) had standing to assert claims against the plan's trustee for violation of the Employee Retirement Income Security Act, partially dismissing certain causes of action but allowing a claim that the trustee allegedly violated a fiduciary duty when it completed a transaction to proceed (Deborah Innis v. Bankers Trust Company of South Dakota, No. 4:16-cv-00650, S.D. Iowa).



New York Federal Judge Won't Reinstate Prudence, Monitoring Claims Against NYU
NEW YORK - A New York federal judge on Oct. 19 declined to reconsider a prudence claim and a failure-to-monitor claim brought by plaintiffs in an Employee Retirement Income Security Act lawsuit accusing New York University (NYU) of breach of fiduciary duty, finding that the plaintiffs failed to present sufficient evidence to support either claim (Dr. Alan Sacerdote, et al. v. New York University, et al., No. 1:16-cv-6284, S.D. N.Y., 2017 U.S. Dist. LEXIS 173599).



Panel Affirms Dismissal, Says Plan Participant Failed To Prove Breach Occurred
NEW YORK - The Second Circuit U.S. Court of Appeals on Oct. 11 affirmed a Connecticut federal judge's dismissal of a retirement plan participant's suit alleging that the plan's service provider breached its fiduciary duties, determining that the plan participant failed to prove that a fee-sharing agreement between the service provider and the plan was a violation of the Employee Retirement Income Security Act (Richard A. Rosen v. Prudential Retirement Insurance and Annuity Co., No. 17-0239, 2nd Cir., 2017 U.S. App. LEXIS 19821).



Class Complaint Alleges Plan Investment Committee Failed To Diversify
HOUSTON - The Investment Committee of the Phillips 66 Savings Plan, the committee members and the plan's financial administrator violated the Employee Retirement Income Security Act by failing to diversify and investing almost exclusively in the stock of its former parent company, ConocoPhillips, plan participants allege in their class complaint filed Oct. 9 in the U.S. District Court for the Southern District of Texas (Jeffrey Schweitzer, et al. v. The Investment Committee of The Phillips 66 Savings Plan, et al., No. 17-3013, S.D. Texas).



Judge Rejects Breach Of Fiduciary Claims Based On Freezing Of Retirement Plan
SANTA ANA, Calif. - A California federal judge on Oct. 13 held that there are no genuine issues of material fact regarding whether the record keeper of a retirement plan breached a fiduciary duty when it followed a retirement committee's instruction to freeze the assets in a tax savings retirement plan account, granting the record keeper's motion for summary judgment (Dr. Sujata Vyas v. Bhaskar Vyas, et al., No. 15-02152, C.D. Calif., 2017 U.S. Dist. LEXIS 170029).



Fund's Trustee, Investment Adviser Settle Breach Of Fiduciary Duty Claims
PORTLAND, Ore. - An Oregon federal judge on Oct. 31 granted a motion to dismiss with prejudice the remaining Employee Retirement Income Security Act claims against a fund's trustee and investment adviser for breach of fiduciary duty and engaging in prohibited transactions after the parties reached an undisclosed settlement (Kerry D. Austin v. Union Bank & Trust Co., et al., No. 14-706, D. Ore.).



ERISA Class Action Plaintiffs Argue Prohibited Transaction Claims Are Supported
BOSTON - The First Circuit U.S. Court of Appeals should reverse a district court's ruling on prohibited transaction claims in an Employee Retirement Income Security Act class action suit because the record contains overwhelming evidence supporting the plaintiffs' claims, the plaintiffs maintain in a Nov. 1 brief filed in the First Circuit U.S. Court of Appeals (John Brotherston, et al. v. Putnam Investments LLC, et al., No. 17-1711, 1st Cir.).



Life Insurer Is Not A Fiduciary Under ERISA, Federal Judge Says, Dismisses Lawsuit
OMAHA, Neb. - A Nebraska federal judge held Oct. 26 that a life insurer is not a fiduciary of 401(k) Plan under the Employee Retirement Income Security Act and, as a result, cannot be held liable for breach of a fiduciary duty or for engaging in transactions that are prohibited to fiduciaries (Philip J. Insinga v. United of Omaha Life Insurance Company, No. 17-179, D. Neb., 2017 U.S. Dist. LEXIS 178753).



7th Circuit Denies Retiree's Rehearing Request In ERISA Forum-Selection Dispute
CHICAGO - A Seventh Circuit U.S. Court of Appeals panel on Sept. 28 refused to rehear an appeal by a retiree who alleges that his health benefits were improperly terminated and who sought to transfer his Employee Retirement Income Security Act lawsuit back to Pennsylvania federal court (In re: George W. Mathias, No. 16-3808, 7th Cir.).



Federal Judge Preliminarily Approves Settlement In Hepatitis C Drug Suit
CHICAGO - An Illinois federal judge on Oct. 26 preliminarily approved a settlement in a class action suit alleging that insurers wrongfully refused to pay for a treatment that could cure the plaintiffs' chronic hepatitis C (Mark A. Shank v. Health Care Service Corp. et al., No. 16-3993, N.D. Ill.).



Judge Find Valid Defenses, Vacates Judgment In Health Insurance Coverage Spat
NEWARK, N.J. - A federal judge in New Jersey on Oct. 30 vacated a default judgment in a hospital's ERISA case challenging an employer's and insurer's alleged failure to compensate it for more than $1 million in medical care, saying the defendant raised potentially valid defenses to the claims. However, the judge ordered a hearing on potential sanctions related to the "extremely troubling" conduct by the defendant's executive that led to the original judgment (Hudson Hospital OPCO LLC, et al. v. Regency Heritage Nursing and Rehabilitation Center LLC, et al., No. 16-5673, D. N.J.).



Judge Dismisses UCL Claim, But Rejects Health Insurer's ERISA Preemption Stance
SAN FRANCISCO - A substance abuse treatment center's three surviving claims involve a provider-insurer relationship outside ERISA's scope, but the provider's unfair competition law (UCL) claims seek relief available through other means and are not among the surviving causes of action, a federal judge in California held Oct. 10 (Summit Estate Inc. v. Cigna Healthcare of California Inc., et al., No. 17-3871, N.D. Calif., 2017 U.S. Dist. LEXIS 167462).



6th Circuit Grants 1 Appeal, Denies 1 Appeal In ERISA Misclassification Suit
CINCINNATI - The Sixth Circuit U.S. Court of Appeals on Oct. 26 issued a pair of orders in two separate appeals stemming from the same underlying Employee Retirement Income Security Act misclassification case and granted the petition appealing the opinion holding that the plaintiff insurance agents were employees and not independent contractors and denied the petition appealing the order denying the motion by defendants and related entities to decertify three classes of workers (In re: American Family Insurance Company, et al., No. 17-307, 6th Cir., 2017 U.S. App. LEXIS 21371, In re: American Family Insurance Company, et al., No. 17-308, 6th Cir., 2017 U.S. App. LEXIS 21373).



No Preliminary Injunction For Retirees Looking To Enforce Health Care Settlements
RICHMOND, Va. - A class of retirees and their eligible family members suing a corporation in an effort to enforce the terms of a prior health care class settlement failed to show that a preliminary injunction is necessary, a Fourth Circuit U.S. Court of Appeals panel ruled Sept. 28, holding that while the trial court erred in determining that the motion was moot, it did not err in its alternate finding that the retirees failed to show a likelihood of success on the merits (Joseph Di Biase, et al. v. SPX Corporation, No. 15-2340, 4th Cir., 2017 U.S. App. LEXIS 18757).



Rehearing En Banc Denied By 6th Circuit In Retiree's Health Care Suit
CINCINNATI - A divided Sixth Circuit U.S. Court of Appeals on Sept. 22 denied a petition for rehearing en banc filed by an employer that the appellate panel ruled was properly enjoined from changing health care benefits provided to workers who retired from a plant before its closing (International Union, United Automobile, Aerospace and Agricultural Implement Workers of America [UAW], et al. v. Kelsey-Hayes, Co., et al., No. 15-2285, 6th Cir., 2017 U.S. App. LEXIS 18365).



High Court Denies ABB's Petition To Review Ruling On Calculation Of Losses
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 2 denied ABB Inc.'s petition for a writ of certiorari, refusing to review the Eighth Circuit U.S. Court of Appeals' ruling that ABB fiduciaries abused their discretion and breached their fiduciary duties in choosing investment options for their 401(k) retirement plans but remanding for recalculation of plan losses (ABB Inc., et al. v. Ronald C. Tussey, et al., No. 17-265, U.S. Sup.).



U.S. Supreme Court Requests Pension Plan Participant File Response To Petition
WASHINGTON, D.C. - The U.S. Supreme Court on Sept. 26 requested that a pension plan participant file a response to a petition for writ of certiorari filed by a group of affiliated brokers who manage funds on behalf of the pension plan and seek the high court's review of the Second Circuit U.S. Court of Appeals' ruling that the plan participant has standing to sue on behalf of himself, his pension plan and other similarly situated Employee Retirement Income Security Act plans over alleged improper fiduciary conduct (Convergex Group LLC, et al. v. Landol Fletcher, No. 17-343, U.S. Sup.).



Federal Judge Throws Out Claim That Fiduciaries Violated Duty Of Prudence
DULUTH, Minn. - A Minnesota federal judge on Sept. 21 found that current and former employees of Wells Fargo & Co. failed to plausibly allege that fiduciaries of the company's 401(k) plan could not have concluded that an earlier disclosure of unethical sales practices would have done more harm than good, dismissing their claim that the fiduciaries violated their duty of prudence under the Employee Retirement Income Security Act (In Re: Wells Fargo ERISA 401(K) Litigation, No. 16-3405, D. Minn., 2017 U.S. Dist. LEXIS 154535).



Most Of Fiduciary Duty Claims Survive Dismissal Motions By Piggly Wiggly Defendants
CHARLESTON, S.C. - A South Carolina federal judge on Sept. 19 trimmed claims challenging above-market leases and excessive executive compensation, but otherwise denied motions to dismiss filed by Piggly Wiggly Carolina Co. Inc. (PWCC), its former executives and two other individuals sued by former employees for allegedly destroying the value of company stock held by the Employee Stock Ownership Plan and Trust (Dana Spires, et al. v. David R. Schools, et al., No. 16-616, D. S.C., 2017 U.S. Dist. LEXIS 152128).



Plan Participants Failed To Prove Defendants Were Performing Fiduciary Functions
BOSTON - A Massachusetts federal judge on Sept. 22 granted a motion to dismiss for failure to state a claim filed by an employee pension benefit plan's trustee and the plan's servicer after determining that the plan participants failed to prove that the defendants were exercising a fiduciary function under the Employee Retirement Income and Security Act when they decided which securities to make available through the plan's self-service portal (Katherine Fleming, et al. v. Fidelity Management Trust Company, et al., No. 16-10918, D. Mass., 2017 U.S. Dist. LEXIS 155222).



Federal Judge Dismisses Breach Of Fiduciary Duty Claim Against Verizon Plans
NEW YORK - A plaintiff's allegations that a number of 401(k) retirement plans offered by Verizon Communications Inc. were "overly complex, overly risky, and inappropriate for the average Verizon employee" are not sufficient to maintain a claim for breach of fiduciary duty, a New York federal judge said Sept. 28 in partially granting the defendants' motion to dismiss (Melina N. Jacobs v. Verizon Communications Inc., et al., No. 16-1082, S.D. N.Y., 2017 U.S. Dist. LEXIS 162703).



Judge Explains Partially Rejecting Magistrate's Report In MIT ERISA Plan Case
BOSTON - After considering objections from both sides, a Massachusetts federal judge in an Oct. 4 memorandum explained his Sept. 29 order partially accepting and adopting and partially rejecting a magistrate judge's report and recommendation (R&R) in a lawsuit brought against Massachusetts Institute of Technology (MIT) and its defined-contribution plan alleging breach of fiduciary duty and prohibited transactions under the Employee Retirement Income Security Act (David B. Tracey, et al. v. Massachusetts Institute of Technology, et al., No. 1:16cv11620, D. Mass., 2017 U.S. Dist. LEXIS 161263).



Claims Trimmed In Class Suit Over Handling Of Princeton University Retirement Plan
TRENTON, N.J. - A plaintiff's failure to respond to a motion to dismiss her class suit accusing the Princeton University trustees of mishandling the university's retirement plan did not entirely doom her suit as a New Jersey federal judge, on Sept. 19, ruled that the plaintiff partially stated claims for relief as to breach of the duty of prudence and granted leave to amend the other dismissed claims (Elysee Nicolas, et al. v. The Trustees of Princeton University, No. 17-3695, D. N.J., 2017 U.S. Dist. LEXIS 151775).



New York Federal Judge Trims Claims Over Cornell Retirement Plans
NEW YORK - A New York federal judge on Sept. 29 partially granted a motion to dismiss and narrowed the claims brought by participants and beneficiaries of Cornell University's retirements plans accusing the university, the oversight committee and financial advisers of violating their fiduciary duties by including imprudent and expensive investment options (Casey Cunningham, et al. v. Cornell University, et al., No. 16-6525, S.D. N.Y., 2017 U.S. Dist. LEXIS 162420).



Maryland Federal Judge Narrows Claims Against University For Mishandling Plans
BALTIMORE - A Maryland federal judge on Sept. 28, using guidance from four recently decided cases addressing similar issues, partially granted a motion to dismiss an amended complaint accusing The Johns Hopkins University of allegedly mishandling employee retirement plans (Margaret E. Kelly, et al. v. The Johns Hopkins University, No. 16-2835, D. Md., 2017 U.S. Dist. LEXIS 161547).



Claims Trimmed In Excessive Fees Suit By University Of Chicago Plans Participants
CHICAGO - An Illinois federal judge on Sept. 22 pared down the claims brought by participants and beneficiaries of the University of Chicago's retirement plans alleging excessive fees and granted the plaintiffs a chance to amend their complaint, but directed the parties to exhaust all settlement possibilities (Winifred J. Daugherty, et al. v. The University of Chicago, No. 17-3736, N.D. Ill., 2017 U.S. Dist. LEXIS 155948).



University Plan Participants' Suit Over Underperforming Funds, Fees Is Dismissed
PHILADELPHIA - A Pennsylvania federal judge on Sept. 21 dismissed all claims against the University of Pennsylvania and the university's vice president of human resources by a group of University of Pennsylvania Matching Plan participants and beneficiaries who allege that the defendants enable third-party service providers to collect excessive fees, increase costs and retain underperforming funds in the plan, finding that the plaintiffs failed to state claim upon which relief could be granted (Jennifer Sweda, et al. v. The University of Pennsylvania, et al., No. 16-4329, E.D. Pa., 2017 U.S. Dist. LEXIS 153958).



Majority Grants Deference To Plan Administrator's Pension Benefit Calculation
PHILADELPHIA - A majority of the Third Circuit U.S. Court of Appeals on Sept. 15 held that an ambiguous pension plan accords the plan administrator discretion to interpret the plan terms and the mere existence of a conflict of interest is not sufficient enough to raise skepticism of the administrator's calculation of a monthly pension payment for a retiree who was deemed totally disabled 15 years before his retirement (John E. Dowling v. Pension Plan for Salaried Employees of Union Pacific Corporation and affiliates, et al., No. 16-1977, 3rd Cir., 2017 U.S. App. LEXIS 17863).



High Court Declines Appeal Of Suit Over Contributions To Multiemployer Funds
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 2 denied a petition for writ of certiorari filed by RiverStone Group Inc. asking that the high court decide whether Section 515 of the Employee Retirement Income Security Act requires an employer to continue contributing to a Taft-Hartley fund for hours employees receive wages "under the terms of" a collective bargaining agreement, even after that agreement is terminated due to decertification of the union (RiverStone Group, Inc. v. Midwest Operating Engineers Welfare Fund, et al. , No. 16-1350, U.S. Sup.).



Supreme Court Won't Hear Chrysler Executives' Age Discrimination Appeal
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 2 denied a petition for writ of certiorari filed by former Chrysler Corp. executives who lost benefits under the company's retirement plan asking the high court to determine whether a state law age discrimination claim relating to employee benefits that is untimely under the Age Discrimination in Employment Act (ADEA) is preempted by the Employee Retirement Income Security Act (ERISA) (John Loffredo, et al. v. Daimler AG, et al., No. 16-1334, U.S. Sup.).



U.S. Supreme Court Won't Consider Whether Negligence Claim Is Preempted By ERISA
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 2 denied a disability claimant's petition for writ of certiorari of the Sixth Circuit U.S. Court of Appeals' decision that a negligence claim is completely preempted by the Employee Retirement Income Security Act (Samantha Milby v. MCMC LLC, No. 16-1409, U.S. Sup.).



High Court Refuses To Consider Preemption Ruling In Disability Suit
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 2 refused to review the Sixth Circuit U.S. Court of Appeals' decision that a former marketing director's claims for disability insurance coverage against a medical review company are completely preempted by the Employee Retirement Income Security Act (James Hackney v. Allmed Healthcare Management Inc., No. 17-102, U.S. Sup.).



Judge Finds Bankshares Erred In Refusing To Pay Benefits Under ESOP
MONTGOMERY, Ala. - An Alabama federal judge on Sept. 12 granted judgment in favor of participants in an employee stock ownership plan (ESOP), finding that certain decisions a plan administrator made to deny the participants benefits were arbitrary and capricious and that the participants were entitled to an injunction ordering the administrator to pay them the benefits under the ESOP (Dave Bryant, et al. v. Community Bankshares Inc., et al., No. 14-1074, M.D. Ala., 2017 U.S. Dist. LEXIS 146973).



Life Insurer Waived Plan's Evidence Of Insurability Requirement, Panel Says
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on Sept. 20 reversed a district court's ruling in a life insurance benefits suit after determining that the plan participant is entitled to $250,000 in unpaid benefits because the life insurer waived the plan's evidence of insurability requirement (Susan Salyers v. Metropolitan Life Insurance Co., No. 15-56371, 9th Cir., 2017 U.S. App. LEXIS 18231).



Mental Illness Limitation Is Not Valid Under Montana's Mental Health Parity Law
BILLINGS, Mont. - A Montana federal judge on Sept. 20 granted a disability claimant's motion for summary judgment after determining that Montana's mental health parity law requires the plan to provide the claimant with the same benefits for her mental illness as it would if her disability were physical (Theresa kaya Assurance Company of Boston, No. 17-0004, D. Mont., 2017 U.S. Dist. LEXIS 153217).



Claimant Failed To Prove Her Disability Had A Physical Component, 9th Circuit Holds
SAN FRANCISCO - A district court correctly concluded that a disability claimant is not entitled to long-term disability benefits because the claimant failed to prove that her disability had a physical component that would not be excluded under the plan's mental-health limitation, the Ninth Circuit U.S. Court of Appeals ruled Sept. 11 (Leah A. Bilyeu v. Morgan Stanley Long Term Disability Plan, et al., No. 16-15254 No. 16-15314, 9th Cir., 2017 U.S. App. LEXIS 17510).



11th Circuit Affirms Rulings In Favor Of Employer In ERISA Interference Dispute
ATLANTA - The 11th Circuit U.S. Court of Appeals on Sept. 8 found that a lower federal court did not err in striking two paragraphs of a plainitff's declaration filed in opposition to his former employer's motion for summary judgment in an Employee Retirement Income Security Act interference lawsuit, further affirming the lower court's denial of the plaintiff's motion to alter or amend the judgment based on newly discovered evidence (Robert Liebman v. Metropolitan Life Insurance Company, No. 16-17440, 11th Cir., 2017 U.S. App. LEXIS 17426).



Infection That Caused Loss Of Eye Was Not 'Accident' Under Policy, Panel Affirms
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Oct. 6 affirmed a lower federal court's finding that a fungal infection that eventually caused a claimant to lose his eye was not an "accident" under his employer's accidental death and dismemberment and life insurance policy (Robert Ramirez v. United of Omaha Life Insurance Co., No. 16-11660, 5th Cir., 2017 U.S. App. LEXIS 19601).



2nd Circuit Finds Denial Of Coverage For Partial Hospitalization Was Supported
NEW YORK - After finding that an insurer did not improperly deny coverage for continued treatment of an insured's anorexia nervosa in violation of the Employee Retirement Income Security Act, the Second Circuit U.S. Court of Appeals on Oct. 2 affirmed a court's ruling that the insurer's decision to cease coverage was based on the substantial evidence (Elizabeth W. v. Empire Healthchoice Assurance Inc., et al., No. 16-3463, 2nd Cir., 2017 U.S. App. LEXIS 19099).



Texas Federal Judge Finds Health Plan Must Cover Weight Loss Surgery
HOUSTON - A health plan beneficiary is owed full coverage for a gastric bypass surgery and a follow-up surgery and care required after she experienced complications, a Texas federal judge ruled Sept. 14, finding that the beneficiary's evidence that she has experienced nausea and vomiting placed her within the health plan's exception to its weight loss surgery exclusion (Karen A. Rittinger v. Health Alliance Life Insurance Company, et al., No. 16-639, S.D. Texas, 2017 U.S. Dist. LEXIS 149394).



Texas Federal Judge Allows Fiduciary Duty Claims Over Autism Treatment To Proceed
SHERMAN, Texas - A Texas federal judge on Sept. 19 refused to dismiss a plaintiff's breach of fiduciary claims arising out of a health care plan's denial of coverage for autism treatments because the fiduciary claims are not disguised benefits claims and the plaintiff alleged sufficient facts to support the breach of fiduciary claims (Amy Whitley, et al. v. Dr Pepper Snapple Group Health Plan, et al., No. 17-47, E.D. Texas, 2017 U.S. Dist. LEXIS 152417).



Facility Did Not Meet Plan's Definition Of Residential Treatment Facility, Judge Says
SALT LAKE CITY - A Utah federal judge on Sept. 11 determined that a health insurer properly denied a claim for benefits because the facility where the insured sought treatment did not meet the health plan's definition of a residential treatment facility and the plaintiffs failed to obtain precertification as required (Michael P., et al. v. Aetna Life Insurance Co., et al., No. 16-439, D. Utah, 2017 U.S. Dist. LEXIS 146671).



Judge: Transfer Timing Doesn't Negate Health Insurance Anti-Assignment Clause
TRENTON, N.J. - The fact that an insured assigned rights after incurring medical expenses does not change the enforceability of an anti-assignment provision in an Employment Retirement Income Security Act of 1974 case, a federal judge in New Jersey held Sept. 21 (Kayal Orthopaedic Center P.C., et al. v. Empire Blue Cross Blue Shield, No. 16-9059, D. N.J., 2017 U.S. Dist. LEXIS 153763).



Appellate Panel Refuses To Rehear Plan's Arguments In Disability Benefits Suit
WASHINGTON, D.C. - A District of Columbia Circuit U.S. Court of Appeals panel on Sept. 11 refused to reconsider its finding that a woman was totally disabled under the terms of her Employee Retirement Income Security Act-governed long-term disability plan and that the plan administrator did not satisfactorily supported its conclusion that she was ever capable of full-time work after November 2007 (Jill Marcin v. Reliance Standard Life Insurance Co., et al., No. 16-7125, D.C. Cir., 2017 U.S. App. LEXIS 17551).



9th Circuit Panel Says Denial Of Disability Benefits Was Reasonable Decision
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on Sept. 18 affirmed a district court's finding that a disability insurer's denial of benefits was reasonable, noting that the medical evidence supports the insurer's determination (Nannette Fawn Anderson v. Life Insurance Company of North America, No. 16-15522, 9th Cir., 2017 U.S. App. LEXIS 18055).



Disability Insurer's Benefits Denial Was Not Arbitrary, Capricious, Federal Judge Says
YOUNGSTOWN, Ohio - An Ohio federal judge on Sept. 25 determined that a disability insurer's denial of long-term disability (LTD) benefits based on the plan's any-occupation standard was not arbitrary and capricious and found merit in the insurer's argument that the claimant's history of drug abuse would preclude him from benefits under the plan's two-year limitation provision for drug and alcohol abuse (Robert M. Hoperich v. Aetna Life Insurance Co., No. 16-2590, N.D. Ohio, 2017 U.S. Dist. LEXIS 156490).



Disability Insurer Seeks High Court's Review Of 2nd Circuit's Offset Ruling
WASHINGTON, D.C. - The Second Circuit U.S. Court of Appeals erred in finding that New York law bars the offset of disability benefits when a claim for personal injuries is settled because the decision conflicts with rulings in other circuits and because the New York law is preempted by the Employee Retirement Income Security Act, a disability insurer argues in a Sept. 19 petition for writ of certiorari filed in the U.S. Supreme Court (Aetna Life Insurance Co. v. Salvatore Arnone, No. 17-416, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 3637).



Vocational Assessment Was Flawed, Disability Claimant Is Owed Benefits, Judge Says
TACOMA, Wash. - A Washington federal judge on Sept. 27 granted judgment in favor of a disability claimant after determining that the insurer's vocational assessment was flawed because the assessment relied on unsupported information taken from the claimant's social media profiles to conclude that the claimant had enough experience to secure a job in the media industry (Anthony Flaaen v. Principal Life Insurance Co. Inc., No. 15-5899, W.D. Wash., 2017 U.S. Dist. LEXIS 159142).



Termination Of Disability Benefits Based On Plan's Limitation Was Reasonable
SAN FRANCISCO - A disability insurer's termination of benefits based on the plan's self-reported symptoms limitation was reasonable because the claimant did not provide any additional evidence supporting her disability, the Ninth Circuit U.S. Court of Appeals said Sept. 22 (Robin Curran v. United of Omaha Life Insurance Co., and United of Omaha Life Insurance Co. v. Robin Curran, Nos. 15-56599, 15-56668, 9th Cir., 2017 U.S. App. LEXIS 18443).



Award Of Attorney Fees Warranted As Disability Claimant Achieved Some Success
SAN FRANCISCO - A California federal judge on Sept. 14 awarded a disability claimant more than $100,000 in attorney fees after determining that the award was warranted because the claimant achieved "some degree" of success on the merits (Robert Bosley v. Metropolitan Life Insurance Co., No. 16-00139, N.D. Calif., 2017 U.S. Dist. LEXIS 149453).