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LexisNexis® Mealey's™ ERISA Legal News



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Full 9th Circuit Remands Tibble For Trial Of Breach Of Fiduciary Duty Claims
SAN FRANCISCO - On remand from the U.S. Supreme Court, the en banc Ninth Circuit U.S. Court of Appeals on Dec. 16 unanimously voted to vacate a California federal judge's ruling in favor of an employer and its benefits plan administrator on breach of fiduciary duty claims in the selection and retention of certain mutual funds for a defined contribution 401(k) savings plan governed by the Employee Retirement Income Security Act, saying a trial is needed to determine if the defendants should have switched from retail-class fund shares to institutional-class fund shares to fulfill their continuing duty to monitor the appropriateness of investments (Glenn Tibble, et al. v. Edison International, et al., No. 10-56406, 9th Cir.; 2016 U.S. App. LEXIS 22366).



D.C. Circuit Panel Affirms Fiduciary Duty Claims Fall Short Under Dudenhoeffer
WASHINGTON, D.C. - The District of Columbia Circuit U.S. Court of Appeals on Dec. 30 affirmed a District of Columbia federal judge's ruling rejecting allegations that the fiduciary of an employee stock ownership plan (ESOP) breached its duty by failing to prevent participants from purchasing or holding "doomed" stock, finding that the claims fall far short under the U.S. Supreme Court's ruling in Fifth Third Bancorp v. Dudenhoeffer (Donna Marie Coburn, et al. v. Evercore Trust Company N.A., No. 16-7029, D.C. Cir.; 2016 U.S. App. LEXIS 23396).



Defendants In USC 403(b) Plan Class Action File Motion To Dismiss Or Compel Arbitration
LOS ANGELES - The defendants in a putative class action alleging that the University of Southern California's (USC) 403(b) retirement plans charged excessive fees moved Dec. 19 in California federal court for an order compelling individual, nonclass arbitration and dismissal or, in the alternative, staying all proceedings pending the resolution of arbitration (Allen L. Munro, et al. v. University of Southern California, et al., No. 2:16-cv-06191, C.D. Calif.).



D.C. Circuit Panel Denies NAFA Motion For Injunction Pending Fiduciary Rule Appeal
WASHINGTON, D.C. - A District of Columbia Circuit U.S. Court of Appeals panel on Dec. 15 denied an emergency motion filed by the National Association of Fixed Annuities (NAFA) for an injunction pending appeal from an order and opinion of the U.S. District Court for the District of Columbia denying NAFA's application for a preliminary injunction and motion for summary judgment in its lawsuit against the U.S. Department of Labor's (DOL) fiduciary rule, which is set to be implemented April 10 (National Association for Fixed Annuities v. U.S. Department of Labor, et al., No. 16-5345, D.C. Cir.).



AARP, 6 Other Organizations Express Support for DOL In Minnesota Fiduciary Rule Suit
MINNEAPOLIS - A Minnesota federal judge on Dec. 21 granted a motion for AARP and six other organizations to appear as amici curiae in the support of the defendants in a case in which a membership-owned and member-governed fraternal benefit society of Christians sued the U.S. Department of Labor (DOL) and Labor Secretary Thomas E. Perez seeking judicial review of the DOL's issuance of regulations promulgating a new definition of investment advice fiduciary under the Employee Retirement Income Security Act, which it says could expose it to breach of contract and class action lawsuits (Thrivent Financial for Lutherans v. Thomas E. Perez, et al., No. 0:16-cv-03289, D. Minn.).



2nd Circuit Panel Affirms Ponzi Scheme Investments Weren't A Breach Of Duty
NEW YORK - A Second Circuit U.S. Court of Appeals panel on Dec. 8 affirmed a New York federal judge's dismissal of an Employee Retirement Income Security Act lawsuit brought by pension fund trustees alleging that the fund's investment manager and its principals knew that investing in a Ponzi scheme was imprudent, saying that the facts did not establish U.S. Constitution Article III standing because there was no cognizable investment loss and a breach of fiduciary duty under ERISA does not constitute an injury in fact sufficient for constitutional standing (Trustees of the Upstate New York Engineers Pension Fund v. Ivy Asset Management, et al., No. 15-31124, 2nd Cir.; 2016 U.S. App. LEXIS 21823).



D.C. Federal Judge Orders Document Production In Lawsuit Against PBGC
WASHINGTON, D.C. - A District of Columbia federal judge on Dec. 20 ordered the U.S. Treasury Department to produce more than 100 documents it has withheld in a civil action against the Pension Benefit Guaranty Corp. (PBGC), saying that Treasury has "miserably failed" to explain its deliberative process privilege claims (U.S. Department of the Treasury v. Pension Benefit Guaranty Corp., v. Dennis Black, et al., No. 12-mc-100, D. D.C.; 2016 U.S. Dist. LEXIS 175656).



10th Circuit Panel Affirms IRS Entitled To Collect ERISA Benefits For Tax Liabilities
DENVER - Denying two pro se plaintiffs' appeal, a 10th Circuit U.S. Court of Appeals panel on Dec. 16 affirmed a Kansas federal court judge's ruling that federal law permits the Internal Revenue Service to collect Employee Retirement Income Security Act benefits to satisfy outstanding tax liabilities (Edward Amador, et al. v. Boilermaker-Blacksmith National Pension Trust, No. 16-3090, 10th Cir.; 2016 U.S. App. LEXIS 22353).



7th Circuit Panel Affirms Employer Must Contribute To Multiemployer Funds
CHICAGO - A Seventh Circuit U.S. Court of Appeals panel on Dec. 20 affirmed three Illinois federal judges' decisions that an employer is required to reimburse multiemployer union welfare funds for delinquent contributions, saying that the decertification of three of its divisions' employee union does not absolve the employer from its obligation to make contributions to the plans (Midwest Operating Engineers Welfare Fund, et al. v. Cleveland Quarry, et al., Nos. 15-2628, 15-3221, 15-3861, 16-1870, 7th Cir.; 2016 U.S. App. LEXIS 22632).



7th Circuit Panel Affirms Teamster Funds Entitled To Contribution Shortfalls
CHICAGO - A Seventh Circuit U.S. Court of Appeals panel on Dec. 21 affirmed an Illinois federal judge's ruling that three Teamster pension and welfare funds are entitled to collect shortfalls in contributions due from an employer under collective bargaining agreements, finding the employer's audit report to be unreliable (Teamsters Local Union No. 727 Health and Welfare Fund, et al. v. L&R Group of Companies, No. 16-2037, 7th Cir.; 2016 U.S. App. LEXIS 22870).



9th Circuit Panel Affirms Properties Not Subject To Withdrawal Liability
SAN FRANCISCO - A Ninth Circuit U.S. Court of Appeals panel on Dec. 23 affirmed a California federal judge's ruling that a husband and wife's rental properties were not subject to withdrawal liability under the Employee Retirement Income Security Act because they do not constitute a "trade or business" (Automotive Industries Pension Trust Fund, et al. v. Tractor Equipment Sales Inc., et al., No. 14-17371, 9th Cir.; 2016 U.S. App. LEXIS 23204).



6th Circuit Panel: Insureds Lack Sufficient Injury To Claim Insurer Shirked ERISA Duties
CINCINNATI - A Sixth Circuit U.S. Court of Appeals panel on Dec. 21 affirmed an Ohio federal judge's ruling that hypothetical situations lack the necessary concrete injury required to pursue claims that an insurer shirked its obligations under the Employee Retirement Income Security Act and the Patient Protection and Affordable Care Act (ACA) (Daniel Soehnlen, et al. v. Fleet Owners Insurance Fund, et al., No. 16-3124, 6th Cir.; 2016 U.S. App. LEXIS 22914).



California Federal Judge Grants Partial Dismissal Of Suit Over Hepatitis Drug
SAN FRANCISCO - A California federal judge on Dec. 22 once again granted in part a defendants' motion to dismiss a putative class action seeking injunctive relief from Blue Shield of California's denial of coverage for a drug to treat hepatitis C because Blue Shield has since amended its Harvoni policy and given notice to insureds that they can resubmit claims for treatment (Aram Homampour, et al. v. Blue Shield of California Life and Health Insurance Co., et al., No. 15-cv-05003, N.D. Calif.; 2016 U.S. Dist. LEXIS 177629).



11th Circuit Panel Affirms COBRA Ruling In Favor Of Fired Staffing Employee
ATLANTA - A 11th Circuit U.S. Court of Appeals panel on Dec. 30 affirmed an Alabama federal judge's ruling that a staffing business employer failed to notify a plaintiff of his rights under the Comprehensive Omnibus Budget Reconciliation Act (COBRA), saying that the evidence was sufficient that the former employee's health insurance was retroactively canceled in retaliation for filing an Equal Employment Opportunity Commission complaint and that the employer was not exempt from the COBRA requirement to provide notice to the employee of the right to continuation of health insurance coverage (Sam A. Virciglio v. Work Train Staffing LLC, et al., No. 15-10421, 11th Cir.; 2016 U.S. App. LEXIS 23422).



2nd Circuit Panel Remands Denial Of Benefits Case In Light Of Its Halo Ruling
NEW YORK - A Second Circuit U.S. Court of Appeals panel in a Dec. 21 summary order reversed in part and remanded for further proceedings a case in which a New York federal judge ruled that a health plan beneficiary failed to prove that a health plan fund was arbitrary and capricious in handling her claims for psychiatric treatment, saying that a subsequent Second Circuit ruling may warrant de novo review of the denial of benefits claim (Wendy A. Tedesco v. IBEW Local 1249 Insurance Fund, et al., No. 16-712, 2nd Cir.; 2016 U.S. App. LEXIS 22866).



Self-Insurance Institute Seeks Supreme Court Review Of 6th Circuit Preemption Ruling
WASHINGTON, D.C. - The Self-Insurance Institute of America Inc. (SIIA) on Oct. 31 filed a petition for writ of certiorari to the U.S. Supreme Court, seeking review of a Sixth Circuit U.S. Court of Appeals ruling affirming dismissal of claims that a Michigan law is preempted by the Employee Retirement Income Security Act (Self-Insurance Institute of America Inc. v. Rick Snyder, et al., No. 16-593, U.S. Sup.).



Offset Is Based On Amount 'Payable' To Claimant, 1st Circuit Panel Says
BOSTON - The First Circuit U.S. Court of Appeals on Dec. 16 affirmed that a disability administrator is not required to calculate an offset based on the amount of benefits received after taxes are taken from the claimant's Social Security disability payments, noting that the plan specifically states that the offset is based on the amount "payable" to the claimant (Debra Troiano v. Aetna Life Insurance Co. et al., No. 16-1307, 1st Cir.; 2016 U.S. App. LEXIS 22404).



Washington Federal Judge: Discretionary Clause Is Not Enforceable In Washington
TACOMA, Wash. - A Washington federal judge on Dec. 22 refused to enforce a disability plan's discretionary clause on the basis that enforcement of the clause would violate a strong public policy in the state of Washington (Anthony Flaaen v. Principal Life Insurance Co. Inc., No. 15-5899, W.D. Wash.; 2016 U.S. Dist. LEXIS 177638).



Negligence Claim Completely Preempted By ERISA, 6th Circuit Panel Affirms
CINCINNATI - Dismissal of a negligence suit filed against a company hired to review a disability claimant's medical records was proper because the negligence claim is completely preempted by the Employee Retirement Income Security Act, the Sixth Circuit U.S. Court of Appeals said Dec. 22 (Samantha Milby v. MCMC LLC, No. 16-5483, 6th Cir.; 2016 U.S. App. LEXIS 23112).



Appeals Panel Says Evidence Supports Insurer's Denial Of Disability Benefits
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on Dec. 23 affirmed a district court's ruling that a disability insurer's denial of benefits was reasonable after determining that the evidence does not support the contention that the claimant was permanently disabled (Fred Arko v. Hartford Life and Accident Insurance Co., No. 14-17287, 9th Cir.; 2016 U.S. App. LEXIS 23207).



Plan Administrator Did Not Abuse Discretion In Denying Claim, 9th Circuit Says
SAN FRANCISCO - A plan administrator did not abuse its discretion in denying a claim for disability pension benefits because the denial was reasonable based on the evidence and the terms of the plan, the Ninth Circuit U.S. Court of Appeals said Dec. 23 (Eun Sug Cha v. 1199SEIU Health Care Employees Pension Fund, No. 15-55435, 9th Cir.; 2016 U.S. App. LEXIS 23235).



7th Circuit Panel Finds Benefits Termination Was Not Arbitrary And Capricious
CHICAGO - A disability insurer's termination of benefits was not arbitrary and capricious because the evidence supported the termination and the insurer minimized any conflict of interest by employing a number of safeguards, the Seventh Circuit U.S. Court of Appeals said Jan. 6 (Donna Geiger v. Aetna Life Insurance Co., No. 16-2790, 7th Cir.; 2017 U.S. App. LEXIS 245).



Termination Of Benefits Was Arbitrary And Capricious, 6th Circuit Majority Says
CINCINNATI - The majority of the Sixth Circuit U.S. Court of Appeals on Dec. 15 determined that a disability plan administrator acted arbitrarily and capriciously when it terminated a claimant's benefits because the objective medical evidence did not support the administrator's decision (Jack B. Calhoun Jr. v. Life Insurance Company of North America, No. 15-3470, 6th Cir.; 2016 U.S. App. LEXIS 22426).



Claimant's Suit Is Time- Barred Under Disability Policy, Appeals Panel Says
NEW ORLEANS - A disability claimant's suit is time-barred under the terms of the policy at issue because the claimant failed to file the suit within three years of the date when written proof of loss was required under the policy, the Fifth Circuit U.S. Court of Appeals said Dec. 13 (Woodrow K. Wilson v. Provident Life & Accident Insurance Co., No. 16-30305, 5th Cir.; 2016 U.S. App. LEXIS 22143).



7th Circuit Panel Reverses Ruling For Insurer, Finding Accident Could Have Killed Man
CHICAGO - A Seventh Circuit U.S. Court of Appeals panel on Dec. 13 reversed an Illinois federal judge's decision in favor of Sun Life and Health Insurance Co., saying that the insurer must pay $92,000 in accidental death benefits to the widow of a man who died after undergoing surgery to repair an Achilles tendon he tore playing basketball because his accident alone could have been the cause of his death (Lee Ann Prather v. Sun Life and Health Insurance Co. (U.S.), No. 16-1861, 7th Cir.; 2016 U.S. App. LEXIS 22135).



5th Circuit Panel Affirms Unused Vacation Time Does Not Extend Date Insurance Ended
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Dec. 19 affirmed a Louisiana federal judge's ruling that a group life insurance plan member's unused accrued vacation time did not extend the date his insurance ended, saying a terminated employee cannot perform his duties on a part-time or full-time basis and cannot return to work even if he has accrued vacation time (Tammy Briscoe, et al. v. Metropolitan Life Insurance Co., No. 16-30354, 5th Cir.; 2016 U.S. App. LEXIS 22568).



3rd Circuit Panel Affirms Dismissal Of Suit Alleging Racial Discrimination
PHILADELPHIA - A Third Circuit U.S. Court of Appeals panel on Dec. 8 affirmed dismissal of a plaintiff's racial discrimination complaint against his former employer, saying that the former employee never identifies any provision of the Employee Retirement Income Security Act that requires the defendants to provide him with the pension plan information he requested and that his request went "far beyond" ERISA disclosure requirements (Daniel Galman Jr. v. Sysco Food Services of Metro New York LLC, et al., No. 16-1744, 3rd Cir.; 2016 U.S. App. LEXIS 21841).



U.S. High Court Grants Certiorari To Review 3 'Church Plan' Lawsuits
WASHINGTON, D.C. - The U.S. Supreme Court on Dec. 2 granted petitions for writ of certiorari in three "church plan" Employee Retirement Income Security Act cases, consolidated them and allotted one hour for oral argument (Saint Peter's Healthcare System, et al. v. Laurence Kaplan, No. 16-86, Advocate Health Care Network, et al. v. Maria Stapleton, et al., No. 16-74, Dignity Health, et al. v. Starla Rollins, No. 16-258, U.S. Sup.).



D.C. Federal Judge Denies Motion For Injunction Staying Fiduciary Rule
WASHINGTON, D.C. - A District of Columbia federal judge on Nov. 23 denied the National Association for Fixed Annuities' (NAFA) motion for a preliminary injunction staying the applicability date of the new U.S. Department of Labor (DOL) rule regulating conflicts of interest in the market for retirement investment advice, saying that NAFA has failed to show irreparable damage if the injunction is not granted and that harm could occur if the rule is not in force (National Association for Fixed Annuities v. Thomas E. Perez, No. 16-1035, D. D.C.; 2016 U.S. Dist. LEXIS 162428).



Texas Federal Judge Withholds Ruling On Proposed $8.8 Million ERISA Class Action Settlement
FORT WORTH, Texas - A Texas federal judge on Nov. 18 withheld ruling on a plaintiffs' motion for conditional certification and preliminary approval of an $8.8 million Employee Retirement Income Security Act class action settlement, saying that he did not have enough information to conclude that the proposed settlement should be approved as being fair, reasonable and adequate to the members of the proposed class (Salvador Ortiz, et al. v. American Airlines Inc., et al., No. 4:16-cv-151, N.D. Texas; 2016 U.S. Dist. LEXIS 160588).



California Federal Judge Dismisses Class Action Over Walt Disney Co. Plan's Fund Investment Option
LOS ANGELES - A California federal judge on Nov. 14 dismissed a putative Employee Retirement Income Security Act class action lawsuit filed by participants in the Walt Disney Co. retirement plan over a plan investment option, saying the plaintiffs have alleged no facts that plausibly show that the plan breached its duty to prudently monitor and review its inclusion of the Sequoia Fund as an investment option (In re Disney ERISA Litigation, No. 2:16-cv-02251, C.D. Calif.).



Pennsylvania Class Action Targets Plan That Offers Sequoia Fund As Option
PHILADELPHIA - A putative class action complaint alleging violations of the Employee Retirement Income Security Act was filed Nov. 18 in Pennsylvania federal court in which plan participants say that the fiduciaries of the FMC Corp. Savings and Investment Plan breached their fiduciary duties by continuing to offer as an investment option the Sequoia Fund, what they call a high-cost, nondiversified and underperforming mutual fund (Matthew B. Harmon, et al. v. FMC Corp., et al., No. 2:16-cv-06073, E.D. Pa.).



Wells Fargo And Co. 401(k) Class Action Filed Over Proprietary Target Date Funds
MINNEAPOLIS - A putative class action lawsuit under the Employee Retirement Income Security Act was filed Nov. 22 in Minnesota federal court against the sponsor and fiduciaries of the Wells Fargo and Co. 401(k) Plan, alleging that they violated their duties of loyalty and prudence in investing plan assets by selecting as investments proprietary Wells Fargo target date funds (TDFs) and designing a system to maximize the amount of plan assets invested into those mutual funds (John Meiners, et al. v. Wells Fargo & Co., et al., No. 0:16-cv-03981, D. Minn.).



Edward D. Jones Plan Participants File ERISA Class Action Complaint
ST. LOUIS - Participants in the Edward D. Jones & Co. retirement plan on Nov. 11 filed a putative class action complaint alleging that the company violated the Employee Retirement Income Security Act by including and maintaining a higher-fee share class of identical investment options in lieu of the lower-cost share class and including and maintaining an unreasonable number of high-risk investment options to the detriment of plan participants (Valeska Schultz, et al. v. Edward D. Jones & Co. LP, et al., No. 4:16-cv-01762, E.D. Mo.).



Class Action Alleges Breach Of Fiduciary Duty For Fees Charged Ford Plan Accounts
DETROIT - Participants in three Ford Motor Co. retirement plans filed a putative class action complaint Nov. 9 in Michigan federal court that alleges that Xerox HR Solutions LLC allowed excessive fees to be charged on participant accounts in violations of its fiduciary duty under the Employee Retirement Income Security Act (Patrick Chendes, et al. v. Xerox HR Solutions LLC, No. 2:16-cv-13980, E.D. Mich., Southern Div.).



6th Circuit Panel Affirms ERISA Preempts Age Discrimination Claim
CINCINNATI - A Sixth Circuit U.S. Court of Appeals panel on Nov. 8 affirmed that former Chrysler Corp. executives' age discrimination claim is preempted by the Employee Retirement Income Security Act because it was brought outside the statute of limitations applicable to the Age Discrimination in Employment Act (ADEA) (John Loffredo, et al. v. Daimler AG, et al., No. 15-1443, 6th Cir.).



Illinois Federal Judge Rules For Pension Fund In Dispute Over Benefits Payments
CHICAGO - An Illinois federal judge on Nov. 21 granted defendants' motions to dismiss a lawsuit alleging that a pension fund, its trustees and its lawyers conspired with each other to have the fund retain and convert the contributions made on a plaintiff's behalf, saying that the plaintiff's state law conversion claim is preempted by Employee Retirement Income Security Act Section 514 and that his conspiracy claim is untenable in light of controlling precedent (John P. Cooney v. Trustees of the Will County Carpenters Local 174 Pension Fund, et al., No. 13-cv-8819, N.D. Ill.; 2016 U.S. Dist. LEXIS 160603).



Alabama Federal Judge Says Prudential Insured's Remand Motion Preempted By ERISA
SELMA, Ala. - An Alabama federal judge on Nov. 18 denied a Prudential Insurance Co. insured's motion to remand to state court an action alleging that the insured failed to pay any policy benefits, saying that his state law claims are completely preempted by the Employee Retirement Income Security Act, which authorizes a plan participant or beneficiary to bring a civil suit "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan" (Marion McIntosh v. Prudential Insurance Co., No. 16-0523, S.D. Ala.; 2016 U.S. Dist. LEXIS 159869).



Pennsylvania Federal Judge: ERISA Controls Breach Of Contract, Fiduciary Duty Claims
PHILADELPHIA - A Pennsylvania federal judge in an opinion filed Nov. 18 denied a plaintiff's motion to remand a case alleging improper denial of claims under an Employee Retirement Income Security Act-qualified health plan to state court, saying that claims for breach of contract and breach of fiduciary duty are properly brought under ERISA (Eric A. Shore P.C. v. Independence Blue Cross, et al., No. 16-5224, E.D. Pa.; 2016 U.S. Dist. LEXIS 160022).



Insurers Claim Asbestos Lawyers Facilitate Double Dipping, Seek Injunction
GALVESTON, Texas - Insurers on Nov. 4 asked a federal judge in Texas to enjoin five law firms from distributing the proceeds from asbestos actions, saying the firms collected millions from tortfeasers while helping thousands of clients sidestep health insurance contract reimbursement provisions (Humana Inc., et al. v. Brent W. Coon P.C., a/k/a Brent Coon & Associates, et al., No. 16-240, S.D. Texas).



Evidence Shows Claimant Is Not Disabled From Any Occupation, Panel Affirms
CINCINNATI - Because six medical experts unanimously agreed that a disability claimant was not disabled from performing any occupation, the disability insurer did not act arbitrarily and capriciously in terminating the claimant's long-term disability (LTD) benefits, the Sixth Circuit U.S. Court of Appeals said Nov. 29 (Dana Leppert v. Liberty Life Assurance Company of Boston, No. 16-3387, 6th Cir.; 2016 U.S. App. LEXIS 21438).



New York Federal Judge Remands Disability Case To Aetna Life Insurance
ROCHESTER, N.Y. - A New York federal judge in an opinion filed Nov. 18 granted partial summary judgment to a man whose long-term disability claims were denied, saying that the defendants failed to adequately explain all of the reasons for denying the claim in violation of the Employee Retirement Income Security Act (Charles Standish v. Federal Express Corp. Long Term Disability Plan, et al., No. 6:15-cv-6226, W.D. N.Y.; 2016 U.S. Dist. LEXIS 160093).



Pension Rights Center Urges High Court To Review Issue Of Forum-Selection Clauses
WASHINGTON, D.C. - In an amicus curiae brief filed on Dec. 2 in the U.S. Supreme Court, the Pension Rights Center urges the high court to review a decision by the Eighth Circuit U.S. Court of Appeals that enforced a disability plan's forum-selection clause, arguing that the allowance of forum-selection clauses in disability plans does not provide plan participants with ready access to federal courts and forces participants to sue in a court chosen by a plan (Lorna Clause v. U.S. District Court for the Eastern District of Missouri, et al., No. 16-641, U.S. Sup.; 2016 U.S. S. Ct. Briefs LEXIS 4420; 2016 U.S. S. Ct. Briefs LEXIS 4114).



Illinois Federal Judge Enforces Settlement, Grants Plumbers Union $82,707
ROCK ISLAND, Ill. - An Illinois federal judge on Nov. 21 granted a motion to enforce the terms of an agreement to settle an Employee Retirement Income Security Act lawsuit and ordered defendant Midwest Underground Inc. to pay the plaintiff plumber union funds $82,707 (Plumbers and Pipefitters Local Union No. 25 Welfare Fund, et al. v. Midwest Underground Inc., No. 4:15-cv-04144, C.D. Ill.; 2016 U.S. Dist. LEXIS 160599).



Pension Plan Participants: Fiduciaries Could Revert To Alleged Illegal Activities
ST. LOUIS - U.S. Bancorp pension plan participants filed a reply brief Oct. 13 with the Eighth Circuit U.S. Court of Appeals, saying that a Minnesota federal judge erred in dismissing as moot and time-barred their putative class action alleging violations of the Employee Retirement Income Security Act because there is no assurance that the plan fiduciaries will not revert to their allegedly illegal actions (Sherry Smith, et al. v. U.S. Bank, et al., No. 0:13-cv-02687, 8th Cir.).



High Court Denies Cert In ERISA Class Action Against Citigroup Inc.
WASHINGTON, D.C. - The U.S. Supreme Court on Dec. 5 denied a petition for writ of certiorari in a case in which a New York federal judge dismissed a class action against Citigroup Inc. brought under the Employee Retirement Income Security Act on the grounds that it is barred by the law's three-year statute of limitations (Steven Muehlgay, et al. v. Citigroup Inc., et al., No. 16-251, U.S. Sup.; 2016 U.S. LEXIS 7391).



Tribe Denies Sanctionable Discovery Conduct By Counsel In ERISA Suit
DETROIT - A Native American tribe filed a brief on Nov. 29 asking a Michigan federal court to deny a motion for sanctions brought against the tribe's counsel by a health insurance provider, arguing that the law firm's contacting of subpoenaed third parties did not violate federal procedure and was not a tactic to delay proceedings in a lawsuit brought under the Employee Retirement Income Security Act (ERISA) (Little River Band of Ottawa Indians, et al. v. Blue Cross Blue Shield of Michigan, No. 2:15-cv-13708, E.D. Mich.).



D.C. Federal Judge Denies NAFA Preliminary Injunction Against Labor Department Fiduciary Rule
WASHINGTON, D.C. - A District of Columbia federal judge on Nov. 4 denied the National Association for Fixed Annuities' (NAFA) motion for a preliminary injunction against the U.S. Department of Labor's (DOL) fiduciary rule and granted the DOL's request for summary judgment, saying that the DOL did not go beyond its statutory authority when it extended the reach of the Employee Retirement Income Security Act to individual retirement accounts (The National Association of Fixed Annuities v. Thomas E. Perez, et al., No. 16-1035, D. D.C.; 2016 U.S. Dist. LEXIS 153214).



Wells Fargo 401(k) Plan Participant Files Class Action Under ERISA
MINNEAPOLIS - A former Wells Fargo & Co. employee and participant in its 401(k) plan on Oct. 14 filed a class action complaint under the Employee Retirement Income Security Act against the company, former and current executives and investment committee members, alleging that they breached their fiduciary duty by, among other things, retaining common stock of Wells Fargo as an investment option in the plan when a reasonable fiduciary using the "care, skill prudence, and diligence . . . that a prudent man acting in a like capacity and familiar with such matters" would have done otherwise (Lynette Fletcher, et al. v. Wells Fargo & Co., et al., No. 0:16-cv-03495, D. Minn.).



New York Federal Judge Allows 3 Counts In Action Against Deutsche Bank
NEW YORK - A New York federal judge on Oct. 13 allowed three counts in a putative class action complaint alleging that Deutsche Bank entities mismanaged their 401(k) plan in violation of the Employee Retirement Income Security Act to proceed, saying that the plaintiffs' breach of fiduciary duty claim plausibly alleges that the plan fiduciaries breached their duties to act in the best interest of the plan and with due care by failing to remove excessively costly proprietary mutual funds (Ramon Moreno, et al. v. Deutsche Bank Americas Holding Corp., et al., No. 1:15cv9936, S.D. N.Y.; 2016 U.S. Dist. LEXIS 142601).



Virginia Federal Judge Grants Partial Summary Judgment To ESOP Participant
ALEXANDRIA, Va. - A Virginia federal judge on Nov. 3 granted partial summary judgment to an employee stock ownership plan (ESOP) participant on his claim that a trustee violated the Employee Retirement Income Security Act by conducting a transaction with a "party in interest" but said that the holding does not mean defendant Wilmington Trust N.A. is liable because it has properly raised a Section 1108 affirmative defense (Tim P. Brundle, et al. v. Wilmington Trust N.A., No. 1:15-cv-1494, E.D. Va.; 2016 U.S. Dist. LEXIS 152908).



California Federal Judge Sets Payments To ESOP, Bank Plan Participants
SAN FRANCISCO - A California federal judge on Oct. 24 ordered the fiduciaries of the California Pacific Bank employee stock ownership plan (ESOP) to pay more than $150,000 in principal and lost interest to the plan and set the principal and interest owed to plan participants for the plan's failure to liquidate and distribute plan assets to them after the ESOP was terminated (Thomas E. Perez v. California Pacific Bank, et al., No. 3:13-cv-03792, N.D. Calif.; 2016 U.S. Dist. LEXIS 147090).



Maryland Federal Judge Finds Plan Trustee Jointly Liable For Alleged Breaches
BALTIMORE - A Maryland federal judge on Oct. 20 denied a motion to dismiss five counts in a 10-count complaint brought by U.S. Secretary of Labor Thomas E. Perez against Chimes District of Columbia Inc. alleging that an employee benefit plan sponsored by Chimes paid millions of dollars in excessive fees, finding that a plan trustee has joint and several liability for the alleged breaches of her co-fiduciaries (Thomas E. Perez v. Chimes District of Columbia Inc., et al., No. 15-3315, D. Md.; 2016 U.S. Dist. LEXIS 145272).



Michigan Federal Judge Dismisses Case Against Blue Cross With Prejudice
DETROIT - A Michigan federal judge on Oct. 28 granted Blue Cross Blue Shield of Michigan's (BCBSM) motion to dismiss the fourth amended complaint of a putative class action alleging that BCBSM violated the Employee Retirement Income Security Act by charging plaintiffs' ERISA health care plans "hidden" fees because of "defects" in the plaintiffs' pleading and failure to allege sufficient constitutional standing to pursue their claims for injunctive relief (Kimberly Cox, et al. v. Blue Cross Blue Shield of Michigan, No. 14-cv-13556, E.D. Mich., Southern Div.; 2016 U.S. Dist. LEXIS 149582).



North Carolina Federal Judge Allows Expert Witnesses To Testify In Benefit Plan Case
CHARLOTTE, N.C. - A North Carolina federal judge on Oct. 20 denied a motion to exclude the testimony of two expert witnesses in a long-running case over NationsBank's decision to allow its employees to transfer their 401(k) assets to a cash balance defined benefit plan, saying that he can freely accept or reject an expert's testimony during an upcoming bench trial and that the defense will be able to point out any inadmissible opinions (William L. Pender, et al. v. Bank of America Corp., et al., No. 3:05-cv-00238, W.D. N.C.; 2016 U.S. Dist. LEXIS 145497).



Plaintiffs Seek Preliminary Approval Of $14 Million Class Action Settlement
SAN FRANCISCO - Plaintiff attorneys on Oct. 26 filed a motion for preliminary approval of a proposed $14 million settlement in a class action over an amendment that eliminated the ability of pension plan participants to "age into" a subsidized early retirement benefit (Juan R. Reyes v. Bakery and Confectionary Union and Industry International Pension Fund, No. 14-5596, N.D. Calif.).



7th Circuit Panel Finds Suit Against Insurers Not Allowed By Section 502(a)(3)
CHICAGO - Joining its sister circuits, a Seventh Circuit U.S. Court of Appeals panel on Oct. 24 held that a health plan trustee's suit against insurers to recoup amounts it paid for the beneficiaries' medical care seeks legal relief, not equitable relief, and as such is not authorized by Employee Retirement Income Security Act Section 502(a)(3) (Central States, Southeast and Southwest Areas Health and Welfare Fund, et al. v. American International Group Inc., et al., No. 15-2237, 7th Cir.; 2016 U.S. App. LEXIS 19165).



Supreme Court Asked If ERISA Permits Cause For Indemnification
WASHINGTON, D.C. - A defendant in a class action under the Employee Retirement Income Security Act on Oct. 7 filed a petition for writ of certiorari asking the U.S. Supreme Court to review a Seventh Circuit U.S. Court of Appeals opinion and rule on whether ERISA permits a cause of action for indemnity or contribution by a person found liable for breach of fiduciary duty (David B. Fenkell v. Alliance Holdings Inc., et al., No. 16-473, U.S. Sup.; 2016 U.S. S. Ct. Briefs LEXIS 3658).



Appellee To Supreme Court: Dignity Health Pension Plan Not Exempt From ERISA
WASHINGTON, D.C. - The Employee Retirement Income Security Act's definition of a "church plan" makes clear that pension plans such as Dignity Health's - which were not established by any church - are not exempt from ERISA's funding, reporting, disclosure and fiduciary requirements, Starla Rollins argues in her Oct. 17 appellee brief in opposition to Dignity's petition for writ of certiorari filed in the U.S. Supreme Court (Dignity Health, et al. v. Starla Rollins, No. 16-258, U.S. Sup.; 2016 U.S. S. Ct. Briefs LEXIS 3828).



Providence Health & Services Plan Members File Motion For $351.9 Million Settlement
SEATTLE - Named plaintiffs in a class action against Providence Health & Services for denying Employee Retirement Income Security Act protections for its retirement plan participants by incorrectly claiming that it was an ERISA exempt "church plan" on Oct. 20 filed an unopposed motion for preliminary approval of a $351.9 million settlement in Washington federal court (Linda Griffith, et al. v. Providence Health & Services, et al., No. 2:14-cv-01720, W.D. Wash.).



6th Circuit Panel Finds Withdrawal Liability Claims Barred By Res Judicata
CINCINNATI - A Sixth Circuit U.S. Court of Appeals panel on Oct. 31 affirmed dismissal of a lawsuit arguing that the Employee Retirement Income Security Act's imposition of withdrawal liability on a pension fund was unconstitutional, saying the claims are barred by the doctrine of res judicata (Old Blast Inc., et al. v. Operating Engineers Local 324 Pension Fund, No. 16-1260, 6th Cir.; 2016 U.S. App. LEXIS 19745).



Supreme Court Won't Review 7th Circuit Ruling That AAA May Impose Higher Fees
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 31 denied a petition for writ of certiorari asking it to review a Seventh Circuit U.S. Court of Appeals decision affirming an Illinois federal judge's determination that a pension fund need not refund contributions made by an employer on behalf of an erroneously classified employee (Bulk Transport Corp. v. Central States, Southeast and Southwest Areas Pension Fund, et al., No. 16-457, U.S. Sup.).



Evidence Shows Claimant Not Able To Work In Sedentary Position, Panel Says
SAN FRANCISCO - A district court erred in determining that a disability claimant was capable of working in a sedentary position because the evidence shows that the claimant was able to sit for only four hours in an eight-hour workday, the Ninth Circuit U.S. Court of Appeals said Nov. 4 (Avery Armani v. Northwestern Mutual Life Insurance Co., No. 14-56866, 9th Cir.; 2016 U.S. App. LEXIS 19925).



Termination Of Benefits Was Reasonable, Majority Of 9th Circuit Panel Determines
SAN FRANCISCO - The majority of a Ninth Circuit U.S. Court of Appeals panel on Oct. 28 denied a disability claimant's motion for rehearing and reiterated that the termination of the claimant's benefits was reasonable because the claimant did not undergo an independent medical exam as requested by the insurer and as required under the plan (Curtis F. Lee v. ING Groep, N.V., et al., No. 14-15848, 9th Cir.; 2016 U.S. App. LEXIS 19513).



Evidence Supports Finding That Claimant Could Perform Duties Of Usual Occupation
SAN FRANCISCO - A district court did not err in concluding that a disability claimant was not totally disabled by fibromyalgia because the evidence supports the insurer's determination that the claimant could perform the material and substantial duties of her usual occupation, the Ninth Circuit U.S. Court of Appeals said Oct. 26 (Cheryl Leslie v. United of Omaha Life Insurance Co., No. 14-56775, 9th Cir.; 2016 U.S. App. LEXIS 19348).



Claimant Capable Of Working In Sedentary Position, Panel Affirms
ATLANTA - A district court did not err in granting summary judgment in favor of an employer and a disability insurer because the evidence supported the disability insurer's conclusion that the disability claimant was capable of working in a sedentary position, the 11th Circuit U.S. Court of Appeals said Oct. 21 (Andrew Ramdeen v. Prudential Insurance Company of America, et al., No. 16-11179, 11th Cir.; 2016 U.S. App. LEXIS 18962).



Plan Defendants Argue Plan Is Not Bound By SSA's Disability Onset Date
RICHMOND, Va. - A district court misinterpreted a disability plan's provisions when it determined that the plan and its administrator are bound by the disability onset date determined by the Social Security Administration (SSA), the plan defendants argue in a Nov. 2 brief filed in the Fourth Circuit U.S. Court of Appeals (Jesse Solomon v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, et al., No. 16-1730, 4th Cir.).



Texas Federal Judge Lets ERISA Claim Stand In Action Against Employer
DALLAS - A Texas federal judge on Oct. 24 partially denied a motion to dismiss for failure to state a claim in an action in which a man says he was illegally fired by his employer so it could stop paying for his medical expenses under its medical insurance plan, finding that he has sufficiently alleged facts that would support a claim under Employee Retirement Income Security Act Section 510 (Steve Wesley Culver, et al. v. United Commerce Centers Inc., et al., No. 3:16-cv-01055, N.D. Texas; 2016 U.S. Dist. LEXIS 146939).



Federal Judge: Tribe's ERISA Claim Over 'Hidden' Plan Fees Can Proceed
BAY CITY, Mich. - A Michigan federal judge on Oct. 27 stood by his dismissal of an Indian tribe's claim that its health care plan administrator breached its fiduciary duty under the Employee Retirement Income Security Act by failing to pay Medicare-like rates (MLRs) for certain health services but agreed with the parties that the tribe can still proceed with an ERISA claim based on the allegation that the administrator had a practice of hiding certain access fees (Saginaw Chippewa Indian Tribe of Michigan, et al. v. Blue Cross Blue Shield of Michigan, No. 16-cv-10317, E.D. Mich.; 2016 U.S. Dist. LEXIS 148615).



3 Class Actions Filed Seeking Coverage For Maternity Expenses
Three class action complaints were filed in recent weeks alleging that health benefit providers who are fiduciaries as defined in the Employee Retirement Income Security Act are obligated to administer plan benefits in accordance with the terms of plan documents and applicable law and cover maternity-related expenses such as breastfeeding (Laura Briscoe, et al. v. Health Care Service Corp., et al., No. 1:16-cv-10294, N.D. Ill.; Jance Hoy, et al. v. United Healthcare Services Inc., No. 2:16-cv-05579, E.D. Pa.; Lindsay Ferrer, et al. v. Carefirst Inc., et al., No. 1:16-cv-02162, D. D.C.).



Hawaii Federal Judge Says Health Insurer Plan Acted In Participants' Interest
HONOLULU - A Hawaii federal judge on Oct. 31 granted a motion for partial summary judgment on several claims filed against Kaiser Permanente Insurance Co. (KPIC) and Kaiser Foundation Health Plan Inc. (KFHP) in a class action alleging that they underpaid for emergency air transport, saying that KFHP, the plan fiduciary, discharged its duties solely in the interest of the participants and beneficiaries (Toby Sidlo, et al. v. Kaiser Permanente Insurance Co., et al., No. 1:15-cv-00269, D. Hawaii; 2016 U.S. Dist. LEXIS 150768).



Texas Magistrate Judge: ERISA Section 502(a)(1)(B) Claims Should Proceed
HOUSTON - A Texas magistrate judge on Oct. 4 recommended that a Houston-area health insurer's motion to dismiss claims under Employee Retirement Income Security Act Section 502(a)(1)(B) for allegedly denying or underpaying health care claims should be denied because the allegations are definite enough to plead an ERISA violation under the Dillingham test adopted by the Fifth Circuit (Elite Center for Minimally Invasive Surgery LLC v. Health Care Service Corp., d/b/a BlueCross Blue Shield of Illinois, No. 4:15-cv-00954, S.D. Texas; 2016 U.S. Dist. LEXIS 146887).



Illinois Federal Judge Certifies Class Of Health Care Plan Participants Suing Insurer
SPRINGFIELD, Ill. - An Illinois federal judge, in a decision filed Oct. 11, certified a class of participants who filed a breach of fiduciary duty lawsuit against a mutual insurance company for allegedly using premiums it obtained through payments made by them for health care coverage to enrich itself, saying that the plaintiffs satisfied all of the Federal Rule of Civil Procedure 23 requirements for certification and that a class action is superior to all other methods of adjudicating the action (Susan Priddy, et al. v. Health Care Services Corp., No. 14-3360, C.D. Ill.; 2016 U.S. Dist. LEXIS 140414).



Reconsideration Of Class Certification Denied In Suits Over Denial Of Care
SAN FRANCISCO - A California federal magistrate judge on Oct. 12 denied a motion filed by United Behavioral Health (UBH) to either reconsider his Sept. 19 certification of a class of insureds accusing UBH of wrongly denying coverage of mental health and substance abuse treatment to thousands or certify the order for interlocutory appeal (David Wit, et al. v. United Behavioral Health, No. 14-2346, Gary Alexander, et al. v. United Behavioral Health, No. 14-5337, N.D. Calif.; 2016 U.S. Dist. LEXIS 141441).



High Court Won't Review Reversal Of Benefits Ruling For Moen Inc. Retirees
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 31 denied a petition for writ of certiorari asking it to review a divided Sixth Circuit U.S. Court of Appeals panel decision that reversed a district court's ruling in favor of a class of retirees from Moen Inc. who argued that their collective bargaining agreements guaranteed them health care benefits for life (John L. Gallo, et al. v. Moen Incorporated, No. 16-222, U.S. Sup.).



Health Insurer Pays $33 Million To Settle Chiropractors' Payment Suit
NEWARK, N.J. - Horizon Healthcare Service Inc. and related companies (collectively, Horizon) has already transferred $33 million to an interest-bearing, federally insured escrow account that will be used to pay class members, settlement administration costs above the $160,000 that Horizon is obligated to pay and any attorney fees and costs under a settlement granted final approval by a New Jersey federal judge on Oct. 18, ending a class complaint filed by chiropractors alleging that Horizon systematically denied payment for certain services rendered (Alphonse A. DeMaria, et al. v. Horizon Healthcare Services, Inc. d/b/a Horizon Blue Cross Blue Shield of New Jersey, et al., No. 11-7298, D. N.J.; 2016 U.S. Dist. LEXIS 143941).



New York Federal Judge Orders Disclosure Of Fees In Xerox Pension Benefit Dispute
ROCHESTER, N.Y. - A New York federal judge on Oct. 19 ordered Xerox to disclose the amount of fees it was charged and paid to its law firms in an action over Xerox's violation of the notice requirements of the Employee Retirement Income Security Act when it applied an offset to pension benefits of rehired workers (Paul J. Frommert, et al. v. Sally L. Conkright, et al., No. 00-CV-6311, W.D. N.Y.; 2016 U.S. Dist. LEXIS 144746).



Kentucky Federal Judge Orders Production Of Confidential Documents
LOUISVILLE, Ky. - A Kentucky federal judge in an order filed Oct. 17 directed insurer defendants in a class action challenging the lump-sum payment method used to calculate interest earned by pension plan members' accounts to produce several dozen allegedly privileged documents based on the fiduciary exception to the attorney-client and work product privileges (Jennifer Durand, et al. v. The Hanover Insurance Group Inc., et al., No. 3:07-cv-00130, W.D. Ky.; 2016 U.S. Dist. LEXIS 143064).



Illinois Federal Judge Denies Wheaton Plan Cases Transfer To Eastern Missouri District
CHICAGO - An Illinois federal judge on Oct. 31 denied defense motions to transfer two putative class actions alleging violations of the Employee Retirement Income Security Act to the Eastern District of Missouri because the alleged ERISA breaches occurred in Illinois, and Missouri is not among the states where Wheaton Franciscan Services Inc. has employees or retirees who will be affected (Diann M. Curtis, et al. v. Wheaton Franciscan Services Inc., et al., No. 16-cv-4232, and Bruce Bowen, et al. v. Wheaton Franciscan Services Inc., et al., No. 16-cv-6782, N.D. Ill.; 2016 U.S. Dist. LEXIS 150227).