Subscribe: LexisNexis® Mealey's™ ERISA Legal News
http://feeds.feedburner.com/ErisaLegalNews
Preview: LexisNexis® Mealey's™ ERISA Legal News

LexisNexis® Mealey's™ ERISA Legal News



Headline ERISA Legal News from LexisNexis®



 



Insurer Argues 8th Circuit Erred In Finding ERISA Plan Can File Claim Against Insurer
WASHINGTON, D.C. - An Eighth Circuit U.S. Court of Appeals panel erred in ruling that an Employee Retirement Income Security Act plan can bring a declaratory judgment claim to enforce the plan's coordination of benefits provision against a blanket insurer in a dispute over whether the plan or the insurer had to provide primary coverage for medical expenses incurred by an injured student athlete, the insurer argues in a Dec. 13 petition for writ of certiorari filed in the U.S. Supreme Court (First Agency, Inc., et al. v. Dakotas and Western Minnesota Electrical Industry Health and Welfare Fund, No. 17-863, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 4976).



Panel Reverses Ruling In ERISA Dispute Over Alleged Overpayments Made To Hospital
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Dec. 19 held that a lower court erred in granting judgment in favor of a physician-owned hospital in an Employee Retirement Income Security Act dispute with a managed health care company, finding that the lower court failed to apply the required abuse of discretion analysis (Connecticut General Life Insurance Co., et al. v. Humble Surgical Hospital LLC, No. 16-20398, 5th Cir., 2017 U.S. App. LEXIS 25588).



Dave & Buster's $7.4M ERISA Settlement Denied By New York Federal Judge
NEW YORK - A New York federal judge, in an order filed Dec. 1, declined preliminary approval of a class settlement worth up to $7,425,000 offered by Dave & Buster's Inc. to end claims that the nationwide restaurant/entertainment chain violated the Employee Retirement Income Security Act by reducing the hours of its work force in 2013 to avoid the costs associated with providing health insurance to its full-time employees in compliance with the Patient Protection and Affordable Care Act (ACA) (Maria De Lourdes Parra Marin v. Dave & Buster's, Inc., et al., No. 15-3608, S.D. N.Y.).



Panel Says Plan Participant Could Recover Premiums If There Was A Plan Violation
ST. LOUIS - The Eighth Circuit U.S. Court of Appeals on Dec. 6 reversed and remanded a district court's dismissal of a health care plan participant's claim seeking to recover premiums paid under the plan after determining that a restitutionary claim for premiums under the Employee Retirement Income Security Act may be available if there was a violation of the plan's terms (CeCelia Catherine Ibson v. United Healthcare Services Inc., No. 16-3260, 8th Cir., 2017 U.S. App. LEXIS 24608).



Judge Finds Laboratory Lacks Standing To Pursue ERISA Claims, Dismisses Case
RALEIGH, N.C. - After finding that a laboratory failed to show that it received a valid assignment of benefits under the Employee Retirement Income Security Act, a North Carolina federal judge on Dec. 7 dismissed its claims against a group of insurers in relation to allegedly unpaid amounts for services rendered (AvuTox LLC v. Cigna Health and Life Insurance Co., et al., No. 5:17-CV-250, E.D. N.C., 2017 U.S. Dist. LEXIS 201296).



Judge Dismisses Lawsuit Asserting Treatment Of Eating Disorder Was Wrongfully Denied
OAKLAND, Calif. - A California federal judge on Dec. 4 dismissed with leave to amend a woman's lawsuit alleging that a health insurer wrongfully denied her request for continued residential treatment for an eating disorder and wrongfully relied on its "medical necessity" eating disorder guidelines, finding that it is unclear from the first amended complaint what, if any, retrospective relief she seeks (Aurora Bailey v. Anthem Blue Cross Life and Health Insurance Co., No. 16-04439, N.D. Calif.).



Anti-Assignment Provision Bars Medical Provider's Claim For Benefits, Panel Says
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on Dec. 18 affirmed a district court's ruling that a medical provider does not have the authority to seek medical benefits on behalf of the medical plan's beneficiaries and participants because the plan at issue includes an anti-assignment provision barring the assignment of plan benefits (Brand Tarzana Surgical Institute Inc. v. International Longshore and Warehouse Union-Pacific Maritime Association Welfare Plan, No. 16-55503, 9th Cir., 2017 U.S. App. LEXIS 25531).



4th Circuit Says Health Fund Must Pay Excess Assets To New Employee Fund
RICHMOND, Va. - The Fourth Circuit U.S. Court of Appeals on Jan. 3 affirmed a district court's judgment that a health fund was required to pay excess assets to a new employee welfare trust fund because the payment of the excess funds was required by the contract at issue and not by the Employee Retirement Income Security Act, as the district court determined (Greenbrier Hotel Corp., et al. v. Unite Here Health, et al., Nos. 16-2116, 17-1720, 4th Cir., 2018 U.S. App. LEXIS 105).



New Jersey Federal Judge Transfers ERISA Dispute To Florida Federal Court
NEWARK, N.J. - A New Jersey federal judge on Jan. 2 refused to dismiss a health care provider's lawsuit against the administrator of a plan under the Employee Retirement Income Security Act but granted the administrator's motion to transfer the venue to a Florida federal court (Progressive Spine & Orthopaedics, LLC v. Paychex Business Solutions, LLC, No. 17-05321, D. N.J., 2018 U.S. Dist. LEXIS 967).



Tribe Loses Reconsideration Bid For ERISA Claims Against Blue Cross Blue Shield
ANN ARBOR, Mich. - A Native American tribe lost its bid to pursue claims that its health care plan administrator violated the Employee Retirement Income Security Act by failing to charge the tribe Medicare-like rates for contracted services at a hospital, when a Michigan federal judge affirmed Dec. 27 that the statute of limitations bars the claims (Grand Traverse Band of Ottawa and Chippewa Indians, et al. v. Blue Cross Blue Shield of Michigan v. Munson Medical Center, No. 5:14-cv-11349, E.D. Mich., 2017 U.S. Dist. LEXIS 211418).



Judge Dismisses ERISA, RICO Claims In Pharmacy Benefit Case Against Insurer
ST. PAUL, Minn. - A class action alleging that an insurer improperly profited when medications cost less than the insured's copay fails to support claims under the Employee Retirement Income Security Act (ERISA), Racketeering Influenced and Corrupt Organizations Act or state law, a federal judge in Minnesota held Dec. 19 in dismissing more than a dozen such claims (In re: UnitedHealth Group PBM Litigation, No. 16-3352, D. Minn., 2017 U.S. Dist. LEXIS 208328).



Employer Asks High Court To Find Lifetime Benefits Ruling Misinterpreted Tackett
WASHINGTON, D.C. - The Sixth Circuit U.S. Court of Appeals misinterpreted the U.S. Supreme Court's unanimous ruling in M & G Polymers USA, LLC v. Tackett, 135 S. Ct. 926 (2015), and recreated a conflict among the circuits when it held that the health care benefits for a class of retirees vested for life, an employer tells the U.S. Supreme Court in its Dec. 1 reply brief in support of its petition for writ of certiorari (CNH Industrial N.V., et al. v. Jack Reese, et al., No. 17-515, U.S. Sup.).



4 Class Representatives Object To J.P. Morgan ERISA $75M Settlement
NEW YORK - Four class representatives in a New York federal lawsuit accusing J.P. Morgan Chase & Co. (JPMC) of violating the Employee Retirement Income Security Act by mismanaging retirement savings funds filed an objection on Dec. 7 to a proposed $75 million cash settlement reached between eight of the class representatives and JPMC, arguing that the amount the class will actually receive is far less than the total class damages (In re J.P. Morgan Stable Value Fund ERISA Litigation, No. 12-2548, S.D. N.Y.).



5th Circuit: Top Hat Plan Participants Forfeited Rights With New Employment
NEW ORLEANS - Two participants in a retirement plan for top employees forfeited their rights to collect benefits after accepting new employment with a competitor within three years of retiring, a Fifth Circuit U.S. Court of Appeals panel ruled Jan. 4 (Earl E. Owen, et al. v. Western & Southern Life Insurance Company, et al., No. 16-31174, 5th Cir., 2018 U.S. App. LEXIS 210).



U.S. Supreme Court Denies Stay In ERISA Forum-Selection Appeals
WASHINGTON, D.C. - On Dec. 8, two days after the U.S. Supreme Court denied a stay request filed by a retiree seeking reinstatement terminated health benefits under the Employee Retirement Income Security Act, the employer being sued waived its right to respond to the retiree's petition for writ of certiorari (George W. Mathias v. United States District Court for the Central District of Illinois, et al., No. 17-740, U.S. Sup.).



9th Circuit Affirms Plan Abused Discretion In Denying Benefits In ERISA Suit
SEATTLE - The Ninth Circuit U.S. Court of Appeals on Dec. 18 affirmed a lower federal court's finding that an Employee Retirement Income Security Act plan administrator abused its discretion in denying early retirement benefits (ERB) to a claimant (Peter Evan Dresel v. Pension Plan of the Pacific Northwest Laboratories, et al., Nos. 15-35643 and 15-35652, 9th Cir., 2017 U.S. App. LEXIS 25522).



6th Circuit: Construction Company Owes Fund No Withdrawal Liability
CINCINNATI - A construction company that terminated its collective bargaining agreement (CBA) with an ironworkers union, ending its contributions to a multiemployer pension plan, did not owe withdrawal liability under the Mutiemployer Pension Plan Amendments Act (MPPAA) when it later used other workers for some tasks it previously had ironworkers perform as the work was assigned through an agreement incorporated into the CBA, a Sixth Circuit U.S. Court of Appeals panel ruled Dec. 13 (Stevens Engineers & Constructors, Inc. v. Local 17 Iron Workers Pension Fund, et al., No. 16-4098/4099, 6th Cir., 2017 U.S. App. LEXIS 25134).



Chamber, Others Tell High Court That Error Into The Void Creates No ERISA Claim
WASHINGTON, D.C. - An erroneous statement by a pension plan sponsor that resulted in no injury to any plan participant is not actionable under the Employee Retirement Income Security Act and its litigation in federal court is not allowed under Article III, the Chamber of Commerce of the United States of America, the American Benefits Council and the Retail Litigation Center Inc. argue in an amicus curiae brief filed Dec. 11 in the U.S. Supreme Court (Foot Locker, Inc., et al. v. Geoffrey Osberg, et al., No. 17-690, U.S. Sup.).



Federal Judge Approves 12 Percent Interest For Late Pension Fund Repayments
NASHVILLE, Tenn. - A pension fund and its board of trustees showed that their claim to 12 percent interest on late withdrawal liability payments and liquidated damages equal to the interest on the unpaid contributions are fair, a Tennessee federal judge ruled Dec. 29, granting the fund and board's motion for partial summary judgment (PACE Industry Union Management Pension Fund, et al. v. O.E. Clark Paper Box Co., No. 3-15-0163, M.D. Tenn., 2017 U.S. Dist. LEXIS 213239).



Federal Judge Approves Revised Class Action Settlement In Pension Plan ERISA Suit
SAN FRANCISCO - A California federal judge on Dec. 28 approved a revised settlement as "fair, reasonable, and adequate" in a class action lawsuit alleging that an amendment to a pension plan is illegal under the Employee Retirement Income Security Act because it was not enacted in accordance with ERISA's provisions (Juan M. Reyes, et al. v. Bakery & Confectionery Union & Indus. Int'l Pension Fund, No. 14-05596, N.D. Calif., 2017 U.S. Dist. LEXIS 212816).



High Court Will Not Review Representational Standing Ruling In Pension Case
WASHINGTON, D.C. - The U.S. Supreme Court on Jan. 8 declined to review a Second Circuit U.S. Court of Appeals ruling that a defined-benefit pension plan participant has representational standing to sue brokers who manage funds on behalf of the plan for breach of fiduciary duties under the Employee Retirement Income Security Act (Convergex Group LLC, et al. v. Landol Fletcher, No. 17-343, U.S. Sup.).



5th Circuit Says 1-Year Statute Of Limitations Bars Disability Claimant's Suit
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Dec. 14 affirmed a district court's ruling that a disability claimant's suit is barred under Louisiana's applicable one-year statute of limitations because the suit was not filed within a year after the claimant requested plan documents from the plan administrator (Todd M. Babin v. Quality Energy Services Inc., No. 17-30059, 5th Cir., 2017 U.S. App. LEXIS 25275).



Termination Of Disability Benefits Was Arbitrary, Capricious, Panel Says
DENVER - A district court did not err in reversing a disability insurer's termination of a claimant's long-term disability (LTD) benefits because the insurer failed to address whether the claimant was capable of working on a full-time basis, the 10th Circuit U.S. Court of Appeals said Jan. 2 (Carl Van Steen v. Life Insurance Company of North America, Nos. 16-1405, 16-1421, 10th Cir., 2018 U.S. App. LEXIS 17).



Termination Of Disability Benefits Was Reasonable Under Any-Occupation Standard
CINCINNATI - A disability insurer's termination of long-term disability (LTD) benefits was not arbitrary and capricious because the insurer's decision to terminate benefits under the plan's any-occupation standard is supported by substantial medical evidence and was based on a deliberate reasoning process, the Sixth Circuit U.S. Court of Appeals said Jan. 2 (Bari Kemper v. Life Insurance Company of North America, et al., No. 16-6507, 6th Cir., 2018 U.S. App. LEXIS 55).



Disability Insurer Erred In Finding Claimant Could Work In Own Occupation, Judge Says
LOS ANGELES - A California federal judge on Dec. 21 determined that a disability insurer erred in denying a claim for long-term disability benefits under the plan's own-occupation standard because the description of the claimant's position as an assistant news editor in the Department of Labor's Dictionary of Occupational Titles is outdated and does not accurately describe the duties of the claimant's position (Kenneth Popovich v. Metropolitan Life Insurance Co., et al., No. 15-9791, C.D. Calif., 2017 U.S. Dist. LEXIS 210427).



Change For Disability Plans' Claims Procedures To Be Effective April 1
WASHINGTON, D.C. - The U.S. Department of Labor (DOL) on Jan. 5 announced that a final rule amending the claims procedure requirements for employee disability benefit plans governed by the Employee Retirement Income Security Act will go into effect on April 1.



Plaintiffs Seek Approval Of $25M Class Action Settlement In ERISA Suit Against Wawa
PHILADELPHIA - Class action plaintiffs that accused their former employer Wawa Inc. of violating the Employee Retirement Income Security Act moved Dec. 29 for preliminary approval of a $25 million settlement to resolve claims arising out of a 2015 Employee Stock Ownership Plan (ESOP) amendment (Greg Pfeifer v. Wawa, Inc., et al., No. 16-497, E.D. Pa.).



10th Circuit: Church Healing Ministry's Retirement Plan Is A Church Plan
DENVER - A 10th Circuit U.S. Court of Appeals panel on Dec. 19 upheld a trial court's ruling that Catholic Health Initiatives' (CHI) retirement plan is a "church plan" that qualifies as exempt under the Employee Retirement Income Security Act (Janeen Medina, et al. v. Catholic Health Initiatives, et al., No. 16-1005, 10th Cir., 2017 U.S. App. LEXIS 25563).



United States Files Memo In ERISA Dispute Supporting Church Plan Exemption
ST. LOUIS - The United States as a movant filed a memorandum in support of the constitutionality of the Employee Retirement Income Security Act suit church plan exemption in a lawsuit in a Missouri federal court that challenges Mercy Health and related entities' decision to define their pension plan as a church plan (Sally Sanzone, et al. v. Mercy Health, et al., No. 16-923, E.D. Mo.).



Illinois Federal Judge Dismisses All State Law Claims In 'Church Plans' Class Suit
CHICAGO - Plaintiffs' attempt to bring alternative claims under state law in an Employee Retirement Income Security Act class suit that alleges that two defined-benefits plans were improperly classified as "church plans" creates an "absolute conflict," an Illinois federal judge ruled Dec. 5 dismissing the five state law claims (Sheilar Smith, et al. v. OSF Healthcare System, et al., No. 16-467, S.D. Ill., 2017 U.S. Dist. LEXIS 199805).



6th Circuit Appeals Panel Says City Ordinance Is Not Preempted By ERISA
CINCINNATI - An ordinance outlining the city of Cincinnati's requirements for the award of construction contracts for water works jobs is not subject to preemption by the Employee Retirement Income Security Act because the city was acting as a proprietor rather than a regulator, the Sixth Circuit U.S. Court of Appeals said Jan. 4 in reversing a district court's ruling (Allied Construction Industries v. City of Cincinnati, Nos. 2016-4248, 2016-4249, 6th Cir., 2018 U.S. App. LEXIS 214).



State Law Claims Do Not Escape ERISA Preemption, 5th Circuit Affirms
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Dec. 4 affirmed a lower court's ruling that a claimant's state law claims against a life insurer are preempted by the Employee Retirement Income Security Act, finding that ERISA's savings clause does not permit state law claims seeking recovery of ERISA benefits to escape preemption (Katheryn Swenson v. United of Omaha Life Insurance Co., No. 17-30374, 5th Cir., 2017 U.S. App. LEXIS 24465).



Insurer Violated Plan Terms By Creating Retained Asset Accounts, Federal Judge Says
PHILADELPHIA - A Pennsylvania federal judge on Dec. 6 determined that the beneficiaries of employer-sponsored Prudential Insurance Company of America life insurance policies are entitled to summary judgment on their breach of fiduciary claim because Prudential ignored its obligations under the plan by creating retained asset accounts in lieu of making one payment to the beneficiaries and in doing so, generated a profit for itself rather than for the beneficiaries (Clark R. Huffman, et al. v. The Prudential Insurance Company of America, No. 2:10-cv-05135, E.D. Pa., 2017 U.S. Dist. LEXIS 201440).



2nd Circuit Allows Chamber Of Commerce To File Amicus Curiae Brief In ERISA Dispute
NEW YORK - The Second Circuit U.S. Court of Appeals on Dec. 19 granted the U.S. Chamber of Commerce's motion to file an amicus curiae brief in a putative class action alleging that fiduciaries mismanaged a matched savings plan in violation of the Employee Retirement Income Security Act and denied the fiduciaries' request for leave to appeal a lower court's order that granted the plaintiffs' motion for class certification (Ramon Moreno, et al. v. Deutsche Bank Americas Holding Corp., et al., No. 17-2911, 2nd Cir.).



Additional Briefing Ordered On Damages Related To Mapping Of 401(k) Plan Assets
JEFFERSON CITY, Mo. - A Missouri federal judge on Dec. 12 ordered parties involved in a dispute over the management of a 401(k) plan to file supplemental briefing on the issue of damages related to the mapping of assets, noting that the correct losses for breaching the duty of loyalty cannot be measured by determining what the losses would have been if a "loyal fiduciary" mapped the assets into a different fund because such a measure does not restore the plan to the position that it would have occupied if the plan did not breach of the duty of loyalty (Ronald C. Tussey, et al. v. ABB Inc. et al., No. 06-4305, W.D. Mo., 2017 U.S. Dist. LEXIS 203969).



6th Circuit Panel Says Beneficiary Failed To Prove Any Breach Occurred
CINCINNATI - A district court did not err in dismissing a plaintiff beneficiary's breach of fiduciary claim against a life insurance plan administrator because the plaintiff failed to show that the alleged breach of fiduciary duty caused any loss to the plan, the Sixth Circuit U.S. Court of Appeals said Dec. 13 (Frances M. Wolf v. Causley Trucking Inc., et al., No. 17-1683, 6th Cir., 2017 U.S. App. LEXIS 25142).



$14M Class Action Settlement Preliminarily Approved By Federal Magistrate Judge
SAN JOSE, Calif. - A California federal magistrate judge on Dec. 22 entered an order preliminarily approving a $14 million class action settlement in a suit in which participants of Fujitsu Technology and Business of America Inc.'s 401(k) plan alleged that the plan breached its fiduciary duty by charging excessive fees and by mismanaging the company's defined contribution retirement plan (Jerry Johnson, et al. v. Fujitsu Technology and Business of America Inc., et al., No. 16-3698, N.D. Calif.).



Colorado Federal Judge Tosses Claims Against Fund Operator In ERISA Class Suit
DENVER - A retirement plan participant suing a fund operator for various violations of the Employee Retirement Income Security Act failed to show on the first two claims that the defendant was a fiduciary and failed to meet the required heightened showing that the operator was a party in interest (John Teets v. Great-West Life & Annuity Insurance Company, No. 14-2330, D. Colo.).



Ford Asks High Court To Deny Petition In ERISA Benefits Payment Dispute
WASHINGTON, D.C. - There is no reason for the U.S. Supreme Court to consider an appeal allegedly challenging a ruling by the Sixth Circuit U.S. Court of Appeals "that an ERISA [Employee Retirement Income Security Act] claimant is barred from alleging a claim for breach of fiduciary duty under ERISA section 502(a)(3) whenever that claimant has the opportunity to allege a claim for benefits under ERISA section 502(a)(1)(B)" because the actual ruling was that the fiduciary reach claim failed as a matter of law because there was no injury separate from the denial of benefits, Ford Motor Co. and Ford Motor Company General Retirement Plan argue in a Dec. 11 opposition brief (Jennifer Strang v. Ford Motor Company General Retirement Plan, et al., No. 17-528, U.S. Sup.).



Judge Allows Breach Of The Duty Of Prudence Against Aon To Proceed In ERISA Suit
SAN FRANCISCO - A California federal judge on Dec. 11 held that a participant in her employer's 401(k) retirement plan has stated a claim for breach of a fiduciary duty of prudence against Aon Hewitt Investment Consulting Inc., denying Aon's motion to dismiss in part (Maria Karla Terraza v. Safeway Inc., et al., No. 16-03994, N.D. Calif.).



U.S. High Court Denies Rehearing In ERISA Life Insurance Suit
WASHINGTON, D.C. - The U.S. Supreme Court on Jan. 8 denied a widow's petition for rehearing of its denial of her petition for writ of certiorari seeking to have it 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.).



Daughter Is Lawful Beneficiary Of Life Insurance Policy, 6th Circuit Affirms
CINCINNATI - The Sixth Circuit U.S. Court of Appeals on Dec. 13 affirmed a lower court's finding that a divorce decree suffices as a qualified domestic relations order that "clearly specifies" a decedent's daughter as the beneficiary under the Employee Retirement Income Security Act, 29 U.S. Code Section 1056(d)(3)(C), 29 U.S.C. § 1056(d)(3)(C) (Sun Life Assurance Company of Canada v. Richard E. Jackson, et al., No. 17-3120, 6th Cir., 2017 U.S. App. LEXIS 25135).



3rd Circuit Affirms Finding That Employer Satisfied Disclosure Requirements
PHILADELPHIA - The Third Circuit U.S. Court of Appeals on Dec. 21 found no error in a district court's conclusion that an employer satisfied its disclosure obligations under the Employee Retirement Income Security Act in response to a plan participant's requests for documents pertaining to the company's 401(k) plan (Derrick Askew v. R.L. Reppert Inc., et al., Nos. 16-3924, 16-3943, 3rd Cir., 2017 U.S. App. LEXIS 26092).



Asset Management Firm Will Pay $12M To Settle 401(k) Class Complaint
SANTA ANA, Calif. - The defendants in an Employee Retirement Income Security Act class complaint alleging mismanagement of a 401(k) plan that resulted in "outrageously high" expenses for plan participants have agreed to pay $12 million into a common fund and provide an independent consultant to review the investment opinions in the plan along with other prospective relief, according to a motion for preliminary settlement approval filed Dec. 26 in a California federal court (Aleksandr Urakhchin, et al. v. Allianz Asset Management, L.P., et al., No. 15-1614, C.D. Calif.).



5th Circuit: No Attorney Fees For Insurer After Dismissal Of ERISA Claims
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Jan. 2 ruled that an insurer was properly denied attorney fees it was seeking from a medical provider in a lawsuit alleging unpaid and underpaid reimbursement requests because the district court has "broad discretion" in an Employee Retirement Income Security Act case and there was no abuse of discretion (Victory Medical Center Houston, Limited Partnership v. CareFirst of Maryland, Incorporated, No. 15-10053, 5th Cir., 2018 U.S. App. LEXIS 170).



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), 1[...]



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.).