This week’s notable decision is Russell v. Catholic Healthcare Partners Employee Long Term Disability Plan, No. 13-4084, __Fed.Appx.___, 2015 WL 3540997 (6th Cir. June 8, 2015), a matter where our firm was counsel for amicus curiae on the plaintiff’s motion for rehearing en banc. [No editorial bias here!] In Russell, the Sixth Circuit issued an amended opinion finding, among other things, that the plaintiff’s long-term disability claim was not time-barred based on the policy’s limitations provision. The court changed its previous determination that the claim was time-barred, adopting our argument that intervening law (issued just days before the original opinion) required the administrator to disclose the time limit for judicial review in its denial letter, which it did not do, in order for it to be enforced against the plaintiff. Although this turnaround is a victory, the Sixth Circuit did not address the most troubling part of its previous decision. The panel’s first decision had permitted a contractual limitations period to accrue for a benefit claim during a period of time when there was no justiciable controversy because the benefit was in pay status. Talk about Heimeshoff on steroids. The Russell takeaway for claims administrators: you must disclose to dispose. Enjoy this week’s summaries!
Your reliable source for summaries of recent ERISA decisions
Below is Kantor & Kantor LLP summary of this past week’s notable ERISA decisions.
Divorce settlement agreement does not constitute a QDRO. In Yale-New Haven Hosp. v. Nicholls, No. 13-4725-CV, __F.3d___, 2015 WL 3498771 (2d Cir. June 4, 2015), the Second Circuit found that a divorce settlement agreement does not constitute a Qualified Domestic Relations Order (“QDRO”) because the agreement fails to comply with the requirements of 29 U.S.C. § 1056(d)(3)(C). The “substantial compliance” rule announced in Metropolitan Life Insurance Co. v. Bigelow, 283 F.3d 436 (2d Cir. 2002) does not apply to domestic relations orders issued after January 1, 1985. However, the court found that two nunc pro tunc orders constitute valid QDROs that assign funds to the former spouse from the three retirement and pension plans named in the orders. The court rejected the argument that domestic relations orders entered after the death of the plan participant can be QDROs. Because the nunc pro tunc orders do not clearly specify the fourth plan, the court concluded that the orders do not assign funds from that plan to the former spouse.
Defined contribution plan’s separate account feature is an “accrued benefit” that may not be decreased by plan amendment; transferor court’s choice-of-law rules apply when a case has been transferred pursuant to 28 U.S.C. § 1404(a). In Pender v. Bank of Am. Corp., No. 14-1011, __F.3d___, 2015 WL 3541927 (4th Cir. June 8, 2015), the Bank amended its 401(k) Plan to give eligible participants a one-time opportunity to transfer their account balances to its defined-benefit plan (“the Pension Plan”). The 401(k) Plan participants’ accounts reflected the actual gains and losses of their investment options. The Pension Plan participants’ accounts reflected the hypothetical gains and losses of their investment options. The Pension Plan participants’ selected investment options had no bearing on how Pension Plan assets were actually invested. Instead, the Bank invested Pension Plan assets in investments of its choosing and retained the spread between the participants’ hypothetical investments and the Bank’s actual investments. An IRS audit resulted in a determination that the transfers violated the law. Plaintiffs, who held such separate accounts and agreed to the transfers, brought suit seeking disgorgement of profits as to any gains the employer retained from the transaction. The district court dismissed their case, holding that they lacked statutory and Article III standing.
The 4th Circuit disagreed and held that Plaintiffs have both statutory and Article III standing and that the claim is not time-barred. The court found that a defined contribution plan’s separate account feature constitutes an “accrued benefit” that “may not be decreased by amendment of the plan” under Section 204(g)(1). For the violation of Section 204(g)(1), an accounting for profits is an equitable remedy available under Section 502(a)(3). As such, Plaintiffs have statutory standing. For Article III standing purposes, Plaintiffs incurred an injury in fact, i.e., an invasion of a legally protected interest, because they suffered an individual loss, measured as the spread between the profit the Bank earned by investing the retained assets and the amount it paid to them.
The court found that the applicable statute of limitations is the most analogous statute of limitations for imposing a constructive trust. In Illinois it is five years and in North Carolina it is ten years. The 4th Circuit joined the majority of the other circuits and held that the transferor court’s choice-of-law rules apply when a case has been transferred pursuant to 28 U.S.C. § 1404(a). Since this case was transferred to North Carolina, the Seventh Circuit’s choice-of-law rules apply here. Because of North Carolina’s “significant connection” to the dispute, the Pension Plan’s choice-of-law provision applying North Carolina law when federal law does not apply, and the federal policies underlying ERISA, the court found that North Carolina’s 10-year limitations period applies. Accordingly, Plaintiffs’ claims are not time-barred because they filed suit four years before the statute of limitations would have run. The court reversed and remanded the district court’s grant of summary judgment in favor of the Bank.
Existence of ERISA plan is a nonjurisdictional issue; claim for benefits not time-barred where administrator did not disclose plan’s time limits for filing suit. In Russell v. Catholic Healthcare Partners Employee Long Term Disability Plan, No. 13-4084, __Fed.Appx.___, 2015 WL 3540997 (6th Cir. June 8, 2015), the Sixth Circuit issued an amended opinion in this matter involving a denial of long-term disability benefits for a claimant who worked as a registered nurse for about thirty years when she applied for disability benefits in 2007. Unum granted Plaintiff twenty-four months of LTD benefits starting in 2007, and then terminated her benefits in 2009. After exhausting administrative remedies, Plaintiff filed her lawsuit in 2011; approximately 8 months after Unum issued a final denial on her claim. The district court found that Plaintiff’s claim was time-barred and, that even if her claim had been timely, her claim failed on its merits because the administrative decision was not arbitrary and capricious. Plaintiff also disputed whether the United States Courts have jurisdiction over this case because the plan may be a church plan and not an ERISA plan.
Following its decision in Daft v. Advest, Inc., 658 F.3d 583 (6th Cir. 2011), the court found that the existence of an ERISA plan is a nonjurisdictional element of a plaintiffs’ ERISA claim. In other words, the court considered the existence of an ERISA plan to be a substantive element of the claim rather than jurisdictional in this case. The court also found the interests of fairness compelled a nonjurisdictional conclusion here. Plaintiff initially invoked federal jurisdiction in 2011 and did not raise the issue of jurisdiction until after Defendants prevailed in trial court. With respect to the timeliness issue, the court held that the action was timely pursuant to the intervening precedent in Moyer v. Metro. Life Ins. Co., 762 F.3d 503 (6th Cir. 2014). The court found that Defendant did not include notice of the time limit for Plaintiff to seek judicial review in its adverse benefit determination letters so the Plan’s time limit for filing suit cannot foreclose judicial review of the merits of Plaintiff’s claim. However, with respect to the merits of Plaintiff’s claim, the court held that Defendants’ termination of her LTD benefits was not arbitrary and capricious. The court relied on its conclusion that both of Plaintiff’s treating physicians found her to be capable of sedentary/seated work immediately before Defendant terminated benefits.
A constructive trust can be imposed on a non-fiduciary where funds in its possession are directly traceable to plan assets. In Fish v. GreatBanc Trust Co., No. 09 C 1668, __F.Supp.3d___, 2015 WL 3669739 (N.D. Ill. June 12, 2015), Plaintiffs, former employees of the Antioch Company and participants in its Employee Stock Ownership Plan (“ESOP”), sought to impose a constructive trust on more than $40 million dollars transferred to the Morgan Family Foundation (MFF), which came from the proceeds of a 2003 buyout transaction. In 2003, seeking a way to avoid making huge annual distributions to shareholders to cover their tax liability, Antioch made the company 100% ESOP-owned, although it would still be controlled and managed by the Morgan family. MFF moved to dismiss on the basis that the relief Plaintiffs seek is unavailable. MFF argued that as non-fiduciaries they may be held liable under § 1132(a)(3) only where they “are or were in possession of plan assets” and in this case MFF received no assets that belonged strictly to the ESOP; it received only corporate cash and borrowings via the Morgan defendants. The court found that Plaintiffs could impose a constructive trust on any funds in MFF’s possession that are directly traceable to the 2003 buyout transaction via the Morgan defendants because it is “appropriate equitable relief” for the alleged breach of fiduciary duty and knowing participation in a prohibited transaction. The court interpreted the Supreme Court’s Harris Trust & Savings Bank v. Salomon Smith Barney decision as not requiring that the 1132(a)(3) defendant have acquired plan assets. “The thrust of Harris is simply that a court may fashion ‘appropriate equitable relief’ to redress ERISA violations, regardless of whether the defendant is a fiduciary.” Similar relief was granted in Chesemore v. Alliance Holdings, Inc., 948 F.Supp.2d 928 (W.D. Wis. 2013). Lastly, the court rejected MFF’s argument that it cannot properly be sued in this case because it did not participate in the transaction. That a transferee was not the original wrongdoer does not insulate him or her from liability for restitution. The court found that if MFF received the claimed assets from fiduciaries who acquired them by breaching their fiduciary duties, MFF can equitably be required to render them to the victim of the breach.
Plan’s two-year contractual limitations period trumps analogous state law’s statute of limitation. In Munro-Kienstra v. Carpenters’ Health & Welfare Trust Fund of St. Louis, No. 14-1655, __F.3d___, 2015 WL 3756712 (8th Cir. June 17, 2015), the Eighth Circuit determined that Plaintiff’s lawsuit for the denial of health care benefits by the Carpenters’ Health and Welfare Trust Fund of St. Louis’ Employee Welfare Benefit Plan was time-barred based on the Plan’s provision stating that any ERISA action for denial of benefits must be brought within two years of the date of denial. Plaintiff learned that she had been denied coverage in July 2009 and filed this action in January 2012. The court rejected Plaintiff’s argument that the Plan’s contractual two-year statute of limitations was invalid because the Plan’s rules of construction stated that its terms should be read to comply with Missouri law. The court previously concluded that the ten-year period under Mo.Rev.Stat. § 516.110(1) is the most analogous statute of limitations under Missouri law for a claim for ERISA benefits. The court found that there is no conflict between the Plan’s contractual limitations period and Missouri law so recourse to the Plan’s rules of construction is unnecessary. The court also rejected the Heimeshoff argument that Mo.Rev.Stat. § 431.030, which prohibits parties from shortening the limitations period for enforcing a contract, is a controlling statute that prevents the Plan’s contractual limitations provision from taking effect. The court, following the Seventh Circuit, concluded that applying the Missouri statute here would negate an ERISA plan provision, negatively impact the administration of ERISA plans, and create inconsistencies with other ERISA provisions, such that its application would violate ERISA’s comprehensive preemption provision.
Use of IRA funds to pay wages is a prohibited transaction. In Ellis v. C.I.R., No. 14-1310, __F.3d___, 2015 WL 3513519 (8th Cir. June 5, 2015), the taxpayers formulated a plan whereby the taxpayer would use his retirement savings as startup capital for a used car business and then use the business as his primary source of income. The 8th Circuit affirmed the district court’s decision that the taxpayer engaged in a prohibited transaction with respect to his IRA when he directed his business to pay him a salary. The court rejected the argument that the Plan Asset Regulation, 29 C.F.R. § 2510.3-101(c) (providing that the underlying assets of an “operating company” in which a plan invests are not considered plan assets for determining whether a prohibited transaction occurred), applies to this case since the plain language of § 4975(c) prohibits both “direct and indirect” self-dealing of the income or assets of a plan. The court also rejected the argument that the payment of wages is exempt under § 4975(d)(10) (excludes from the list of prohibited transactions the “receipt by a disqualified person of any reasonable compensation for services rendered, or for the reimbursement of expenses properly and actually incurred, in the performance of his duties with the plan.”) Here, the company compensated the taxpayer for his services as general manager of the company, not for any services related to his IRA.
Select Slip Copy & Not Reported Decisions
Breach of Fiduciary Duty
In Stiso v. Int’l Steel Grp., No. 13-3503, __Fed.Appx.___, 2015 WL 3555917 (6th Cir. June 9, 2015), Plaintiff, a beneficiary of long-term disability insurance, brought action against his employer and insurance provider seeking an equitable remedy equivalent to a 7% per year cost-of-living increase to his benefits. Both the disability plan and the summary of the plan refers to a 7% increase in predisability earnings. The district court granted judgment to the employer and insurance provider. The Sixth Circuit held that: (1) the employer’s preparation and furnishing of the plan summary that was misleading as to the benefits it intended to provide was a breach of fiduciary duty; (2) the insurance provider owed a fiduciary duty to the beneficiary; and (3) insurance provider’s denial of beneficiary’s claim for a cost-of-living increase was a breach of fiduciary duty.
Disability Benefit Claims
In Sessa v. Dell, Inc., Long Term Disability Ins. Plan, No. 14-CV-2518, 2015 WL 3631735 (E.D. Pa. June 11, 2015), the court upheld Aetna’s decision to deny short-term disability benefits since Plaintiff was no longer a “participant” within the meaning of Article III of the Plan when she filed her claim for those benefits and was therefore no longer eligible to receive them under Section 4.1 of the Plan, having been terminated from her employment nearly one year prior to filing her claim. With respect to the LTD claim, the court could not make a conclusive finding as to whether Aetna abused its discretion due to genuine issues of material fact. The record lacked definitive evidence as to when Plaintiff’s income dropped to less than 80% of what it had been before her disability began to manifest itself, whether premium payments were made on Plaintiff’s behalf, and whether and when Dell informed Aetna that Plaintiff had been terminated from her employment. With respect to the breach of fiduciary duty claim, the court also found that there are genuine issues of material fact that cannot be resolved by the existing record itself. “In particular, the inconsistencies in the explanations provided for the denial of Plaintiff’s claims, the evident disregard for those portions of the medical reports and records which supported a finding of disability in favor of the far more limited portions which might be understood to support a contrary finding, and the glaring disregard of Plaintiff’s reports of her medical problems to her supervisor and the human relations officers at her employer all militate in favor of a finding that the fiduciary obligations which one or more of these defendants owed to Plaintiff under the Plan were breached. Inasmuch as the record is relatively undeveloped as to the role which each defendant played in the decision making process and in relaying or not relaying information, however, we cannot make a definitive assessment of the extent to which each party or parties may be held liable to plaintiff.”
In Hegarty v. AT&T Umbrella Benefit Plan No. 1, No. C-14-1976 EMC, 2015 WL 3638542 (N.D. Cal. June 11, 2015) (Not Reported in F.Supp.3d), the court found that it was unreasonable for the claims administrator to deny short-term disability benefits on the basis that Plaintiff did not provide “objective” or “measurable” evidence that he was disabled by his migraine pain. Although the Benefit Plan requires “objective medical information” that indicates the severity of a claimant’s disability and objectively evidences how the claimant is functionally impaired, in cases where the claimant’s disabling condition is not one for which the medical community can provide objective evidence, then an administrator’s conditioning an award on the existence of evidence that cannot exist is arbitrary and capricious.
In Hertan v. Unum Life Ins. Co. of Am., No. CV 14-5331 PA SSX, 2015 WL 3632244 (C.D. Cal. June 9, 2015) (Not Reported in F.Supp.3d), the court determined on de novo review that Plaintiff was entitled to reinstatement of her LTD benefits. The court took judicial notice of Unum’s interrogatory responses. The court found that Unum consistently focused entirely on the physical requirements of what they concluded was a “sedentary” occupation and not the cognitive demands of Plaintiff’s occupation as an attorney. The court found non-compelling Unum’s doctor’s discounting of Plaintiff’s “complaints of persistent pain and use of chronic narcotics because “no data has been presented to document this possibility.” Unum had never asked Plaintiff for data to support the degree of cognitive impairment she experienced as a result of the pain and narcotic medication. The fact that Plaintiff may have become habituated to Percocet does not establish that Plaintiff is capable of performing her occupation after taking a dose of the narcotics prescribed to her. Even minimal loss of cognitive abilities could prevent her from working full-time as an attorney while under the influence of Percocet. Even if Plaintiff had habituated to the Percocet, the pain alone would decrease Plaintiff’s efficiency and production of work product. The court was not persuaded by Unum’s argument that because Plaintiff worked up to 70% of the time without medication that there is no evidence that she cannot work the additional 30%.
In Reeder v. Aetna Life Ins. Co., No. 4:14-CV-0161, 2015 WL 3622300 (M.D. Pa. June 9, 2015), the court granted summary judgment in favor of Aetna on Plaintiff’s long-term disability claim. The court concluded that substantial evidence existed to support the finding that Plaintiff was capable of working full time in a light duty capacity. Aetna relied upon the opinions of “qualified consultants” who reviewed Plaintiff’s medical records, the opinion of an independent medical examiner, and the results of a Transferable Skills and Labor Market Analysis. The results of a functional capacity evaluation concluded that the results were invalid based on the examiner’s statements that Plaintiff had put forth inconsistent efforts. Aetna considered but ultimately rejected certain opinions of Plaintiff’s treating physicians. “It is not for this Court to say whether Defendant made the ‘right’ decision, only whether Defendant had substantial evidence on which to base its decision. I conclude today that it did.”
Pension Benefit Claims
In United States v. Wilson, No. 3:09-CR-00161-FDW, 2015 WL 3633644 (W.D.N.C. June 10, 2015), the court held that the Federal Debt Collections Procedures Act (“FDCPA”), 18 U.S.C. § 3613 is an express statutory exception to the anti-alienation provision of ERISA (29 U.S.C. § 1056(d)(1)) as well as the corresponding provision in the Internal Revenue Code (26 U.S .C. § 401(13)(A)). The court found that the government may enforce a criminal restitution order and is entitled to a writ of garnishment against Defendant’s interest in the United Brotherhood of Carpenters Pension Fund.
In Cocker v. Terminal R.R. Ass’n of St. Louis Pension Plan for Nonschedule Employees, No. 12-1239-DRH, 2015 WL 3623584 (S.D. Ill. June 10, 2015) (Not Reported in F.Supp.3d), Defendants argued that the Terminal Railroad Association of St. Louis Pension Plan provided that Plaintiff’s gross benefit should be reduced by the amount that was payable to him under the Union Pacific Pension Plan at his normal retirement age ($2,311.73). Plaintiff argued that the term “payable” refers to the benefit the participant is actually receiving, either his reduced early retirement benefit or his unreduced benefit at Normal Retirement Age as the case may be, meaning that the offset should be the amount actually paid to him as an early retirement benefit under the Union Pacific Pension Plan ($1,022.94). The court found in favor of Plaintiff. Specifically, the plain reading of Section 5.5(b) requires resolution of what was the amount of retirement income payable from the Union Pacific Plan, in February 2010 when Plaintiff retired from Terminal Railroad and started his pension from the Terminal Pension Plan. Plaintiff’s Union Pacific Plan early retirement of $1,022.94 per month is the amount of “retirement income payable.” Since Plaintiff retired early from Union Pacific, he will never be eligible for normal retirement benefits. Thus, the higher normal retirement benefits from the Union Pacific Plan are not payable and will never be payable to Plaintiff.
In Forte v. BNP Paribas, No. 14-CV-8556 JPO, 2015 WL 3604317 (S.D.N.Y. June 8, 2015), the court held that the “2012 Deferred Compensation Scheme” is a bonus plan exempt from ERISA’s definition of a plan, which excludes payments made by an employer to some or all of its employees as bonuses for work performed, unless such payments are systematically deferred to the termination of covered employ or beyond, or so as to provide retirement income. Under the Scheme, a percentage of an employee’s bonus for work performed in 2011 is paid immediately, in 2012, and the remainder is retained by BNPP to be disbursed over the course of three years, from 2013 to 2015, in the form of cash and BNPP stock units. The Plan also provides rules for payment of a deferred bonus in the event that an employee leaves the company prior to the full issuance of that bonus, i.e., prior to 2015.
Pleading Issues & Procedure
In Cocker v. Terminal R.R. Ass’n of St. Louis Pension Plan for Nonschedule Employees, No. 12-1239-DRH, 2015 WL 3623584 (S.D. Ill. June 10, 2015) (Not Reported in F.Supp.3d), the court denied Defendant’s motion to strike exhibits 4, 5 and 6 of Plaintiff’s addendum which are correspondence and emails from cases pending in the Eastern District of Missouri, Ingram and Smith v. Terminal Railroad Association of St. Louis Pension Plan for Nonschedule Employees, Cause No. 4:13-cv-02500-RWS, and an affidavit by Plaintiff’s counsel. Defendant contended that these exhibits are not part of the administrative record in this case, but the court considered them under the doctrine of judicial notice and Federal Rule of Evidence 201.
In McCulloch Orthopedic Surgical Servs., PLLC v. United Healthcare Ins. Co. of New York, No. 14-CV-6989 JPO, 2015 WL 3604249 (S.D.N.Y. June 8, 2015), the court held that the 30-day period for removal began when Oxford’s true agent – CT Corporation – received the pleadings. Removal was timely. Also, for purposes of a motion to remand, the court considers only the original Complaint although the Amended Complaint is operative for all other purposes.
In Brown v. Blue Cross Blue Shield of Tennessee, Inc., No. 1:14-CV-00223, 2015 WL 3622338 (E.D. Tenn. June 9, 2015), Plaintiff, a medical provider, brought suit under ERISA against BCBST for recouping alleged overpayments by offsetting them against new reimbursement claims from Plaintiff. The court granted Defendant’s motion to dismiss for lack of subject matter jurisdiction because Plaintiff does not have standing under ERISA to pursue their claims. The court held that providers are not ERISA beneficiaries merely because they are entitled to receive payment; they do not have direct statutory standing. The court also followed the line of cases holding that forms providing for direct payment do not constitute an assignment of any patient’s ERISA rights.
Release of Claims
In Sullivan v. Stanadyne Corp., No. 3:13-CV-01288 JAM, 2015 WL 3674751 (D. Conn. June 12, 2015), the court found that Plaintiff’s claims contending that defendants (1) wrongfully excluded certain stock option payouts and bonuses from his pensionable earnings, and (2) denied him full, unreduced early retirement benefits to which he is entitled, are barred by a release that Plaintiff signed which generally purported to discharge Defendants from liability for alleged violations of ERISA. With respect to the second claim, since it appeared to the court that a correctly pleaded claim would not be barred by the release, it permitted plaintiff to file an amended complaint.
Statute of Limitations
In Darko v. Variable Annuity Life Ins. Co., No. CV 14-1109-SLR, 2015 WL 3614638 (D. Del. June 10, 2015) (Not Reported in F.Supp.3d), the court found that the statute of limitations on Plaintiff’s claim started to accrue in the months following his request for a cash distribution since he claimed he never received the distribution. Under 10 Del. C. § 8111, Plaintiff is afforded one year from 1998 to bring a cause of action but did not file his lawsuit until 2014, thus, Plaintiff’s claim is time barred.
Withdrawal Liability & Unpaid Benefit Contributions
In Trustees of Indiana State Council of Roofers Health & Welfare Fund v. Browns Excavating, Inc., No. 4:14 CV 82 PPS-PRC, 2015 WL 3658067 (N.D. Ind. June 12, 2015), the court granted default judgment against Defendant Browns Excavating, Inc. and ordered it to pay Plaintiff $34,294.57 in delinquent contributions, audit expenses, attorney’s fees, and costs.
In Raines v. Doran Const., Inc., No. CIV. 15-1193 JNE, 2015 WL 3612982 (D. Minn. June 8, 2015), an action to collect unpaid fringe benefit contributions due under a collective bargaining agreement, Defendant answered and asserted five counterclaims. Counts I, II, and III of the counterclaims seek the return of payments made by Defendant to the plans; count IV seeks an order that enjoins demands for money in violation of LMRA section 302; and count V seeks declarations that Defendant “is not and never was subject to any collective bargaining agreement” and that it “owes no contributions to the Funds under any collective bargaining agreement.” The trustees moved to dismiss counts I, II, III, and IV of the counterclaims with prejudice. Under § 1103(c)(2)(A)(ii), the plan administrator initially determines (1) whether a contribution was made by a mistake of fact or law and (2) if so, whether the contribution should be returned. Defendant did not submit its claims for return of payments to the plans’ administrators before it asserted its counterclaims so the administrators did not determine whether Defendant mistakenly made payments and whether any mistaken payments should be returned. The court concluded that dismissal of counts I, II, and III without prejudice and with leave to replead them after the plans’ administrators make their determinations is appropriate.
* Please note that these are only case summaries of decisions as they are reported and do not constitute legal advice. These summaries are not updated to note any subsequent change in status, including whether a decision is reconsidered or vacated. The cases reported above were handled by other law firms but if you have questions about how the developing law impacts your ERISA benefit claim, the attorneys at Kantor & Kantor LLP may be able to advise you so please contact us. Case summaries authored by Michelle L. Roberts, Partner, Kantor & Kantor LLP, 1050 Marina Village Pkwy., Ste. 105, Alameda, CA 94501; Tel: 510-992-6130.