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Your ERISA Watch – Late Decision on Court-Ordered Remand of Disability Claim Results In De Novo Review

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Today’s notable decision is a long-term disability case, Spears v. Liberty Life Assurance Company of Boston, et al., No. 3:11-CV-1807 (VLB), 2019 WL 4766253 (D. Conn. Sept. 30, 2019).  Plaintiff Spears alleged that Liberty Life improperly denied her claim for LTD benefits in violation of 29 C.F.R. § 2560.503-1 which governs processing and handling of claims for ERISA plan benefits.

This case has a long history and has been in various stages of review since September 2008. Following a 2015 remand with several instructions from the court, Liberty Life hired four peer reviewers, and conducted an IME of Spears. None of these doctors were experts in Lyme disease which was the basis of Spears’s disability. Thereafter, Liberty denied LTD benefits again, and Spears appealed. (Surprise:  Her appeal was denied.)

The court granted Plaintiff’s motion for summary judgment. First, the court held that the de novo standard of review applied in this case because Liberty Life failed to comply with ERISA deadlines which applied on remand and did not render a decision until 16 months after the remand order. Next, the court gave substantial weight to Liberty’s inherent conflict of interest, noting that Liberty continued to violate the ERISA claims procedure regulations upon remand, committed the same errors that the court identified in the remand order, and violated portions of the remand order that expressly required Liberty to take certain actions.

The court also held that Liberty’s peer review report on remand was fatally flawed because the referral downplayed the severity of Spears’s migraines, thereby disclosing its predisposition against Spear’s claim to what was supposed to be a neutral panel of physicians. In addition, Liberty failed to pose court-ordered questions to the peer reviewers as outlined in the remand order, given Liberty’s failure to pose correct questions in the past. The court identified a “legion” of errors in the report. Likewise, the IME referral improperly posed questions couched in “medically-supported”, “verifiable”, “clinical exam”, and “clinical observation” terms, thus improperly instructing the IME doctor not to credit Spears’s subjective reports. Thus, the court held that the IME did not support denial of benefits. The denial letter itself was also improper because it relied on the above-discussed reports and findings which were plainly wrong, relied on previous peer reviews which the court has already rendered “fatally flawed,” and did not support Liberty’s decision. Finally, Liberty assigned Plaintiff’s appeal to the same claims consultant that issued the adverse decision after remand, thereby violating 29 C.F.R. § 2560.503-1(h)(3)(ii).

This week’s notable decision write-up is courtesy of Kantor & Kantor associate and newest ERISA Watch contributor, Zoya Yarnykh.

Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.

Attorneys’ Fees

Second Circuit

In Re J.P. Morgan Stable Value Fund ERISA Litigation, No. 12-CV-2548 (VSB), 2019 WL 4734396 (S.D.N.Y. Sept. 23, 2019) (Judge Vernon S. Broderick).  In this case where Class Counsel achieved a settlement that provided a monetary benefit of $75,000,000 for the Class of 401(k) participants who invested through their employers’ plans in JPMorgan stable value offerings, the court approved a $25,000,000 fee award (which represents a “modest” 1.4 multiplier of the lodestar and 1/3 of the common fund); reimbursement of $1,468,795.86 in out-of-pocket litigation expenses and costs; and $20,000 service awards to each of the twelve Class Representatives.

Sixth Circuit

International Union, United Automobile, Aerospace and Agricultural, Implement Workers of America (UAW), et al, v. TRW Automotive U.S., LLC, No. 11-CV-14630, 2019 WL 4744329 (E.D. Mich. Sept. 30, 2019) (Judge Denise Page Hood).  Plaintiffs were successful in obtaining damages for Defendant’s alleged ERISA violations and breaching the collective bargaining agreement.  The court declined to adopt the Magistrate Judge’s recommendation that Plaintiffs are not entitled to recover any attorneys’ fees and costs incurred after the date of the arbitration award.  Plaintiffs obtained summary judgment on their ERISA claim which was more than a “trivial success.”  Plaintiffs are also entitled to attorneys’ fees and costs related to litigating their fee claim.  The court found that Plaintiffs should be compensated for 331 billed hours because even if the efforts centered on the breach of the CBA claim, the breach also constituted a breach of Plaintiffs’ ERISA rights.  The court found that an hourly rate of $550 was reasonable for Plaintiff’s attorney, William Wertheimer, who has practiced for 42 years and is a nationally recognized ERISA attorney.  The court awarded a total of $182,050 in fees and costs totaling $1,250.91.

Breach of Fiduciary Duty

Second Circuit

Cunningham v. Cornell University, et al., No. 16-CV-6525 (PKC), 2019 WL 4735876 (S.D.N.Y. Sept. 27, 2019) (Judge P. Kevin Castel).  Plaintiffs alleged that the Cornell Defendants acted imprudently with respect to the process for determining administrative fees and recordkeeping costs.  The court found that though material issues of fact remain with respect to whether the process to monitor recordkeeping fees breached a duty of prudence, Plaintiffs have not shown that any breach resulted in loss so Defendants are granted summary judgment on this claim to the extent Plaintiffs request monetary damages.  The court excluded the expert testimony of Ty Minnich and Al Otto as it relates to the fact or amount of losses attributable to recordkeeping fees due to unreliable methodology.  Count V alleges that the Cornell Defendants imprudently selected and retained investment options.  The court granted the Cornell Defendants summary judgment on Count V insofar as it alleges imprudence in retaining TIAA and CREF funds as well as to hundreds of additional funds but denied summary judgment as it relates to their failure to swap out the TIAA-CREF Lifecycle target date funds for their identical institutional share class funds.  The court dismissed Count V against CAPTRUST (investment advisory firm) because no reasonable trier of fact could find that it breached a duty of prudence in failing to review and switch institutional class funds that resulted in a loss to the Plans within three weeks after it was retained.

Third Circuit

Scalia v. WPN Corporation, No. CV 14-1494, 2019 WL 4748052 (W.D. Pa. Sept. 30, 2019) (Judge Nora Barry Fischer).  The court granted summary judgment to Defendants on the DOL’s remaining claim of failure to monitor.  The court previously rejected the DOL’s position that Defendants breached their fiduciary obligations to the Severstal Trust by not ensuring that the assets they received from the WHX Trust were appropriately diversified.  The court also rejected DOL’s second argument that Defendants breached their fiduciary duty by failing to monitor LaBow and WPN and remove them when LaBow failed to properly invest the trust in accordance with their instructions.  The court found that Defendants did not have actual notice of WPN and LaBow’s breach until after the Retirement Committee reviewed a routine quarterly report from Mercer, and promptly thereafter, contacted counsel to strategize how to best resolve the situation and keep as much value in the trust as possible.  This dialogue continued until the account dissolved and LaBow and WPN were terminated as investment managers.  The court found that it was speculation that the result would have been different if the Committee acted sooner.

Seventh Circuit

Godfrey v. Greatbanc Trust Company, No. 18 C 7918, 2019 WL 4735422 (N.D. Ill. Sept. 26, 2019) (Judge Matthew F. Kennelly).  Plaintiffs allege that Defendants breached their ERISA fiduciary duties and engaged in prohibited transactions related to a 2014 reorganization that led to the Plan owning a smaller proportion of MS Capital shares, and a 2017 sale of the Plan’s MS Capital stock back to MS Capital.  The court granted Defendants’ motion to dismiss in part.  The court dismissed all claims against the Plan Committee, Andrea Templeton (Assistant Treasurer and Controller), Jeffrey Todt (corporate officer and CFO of MS Capital), Jeffrey Schindler (President of company whose assets are held by MS Capital), and MS Companies because they were not ERISA fiduciaries with respect to the underlying transactions.  The court also dismissed some Defendants from some of the claims, leaving Count 1 (violation of ERISA 29 U.S.C. § 1106(a)–(b)) and Count 2 (violation of 29 U.S.C. § 1104(a) against MS Capital and Greatbanc; Count 3 (knowing participation in fiduciary breaches) against MS Capital, John Eilermann (CEO), and Michael Arri (CFO); Count 4 (breach of fiduciary duties re: 2014 business reorganization) against Greatbanc; and Count 6 (failure to monitor Greatbanc as trustee) against MS Capital, MS Management, Eilermann, and Arri.

Class Actions

First Circuit

Del Sesto, et al., v. Prospect CharterCARE, LLC, et al., No. CV 18-328 WES, 2019 WL 4758161 (D.R.I. Sept. 30, 2019) (Chief Judge William E. Smith). The case stemmed from alleged underfunding and insolvency of a retirement plan for nurses and other workers. The court certified the class for purposes of settlement and approved the settlement reached between Plaintiff, as state-appointed receiver, and Defendants. The court held that the settlement has been entered into in good faith and that its terms were fair, equitable, and reasonable. It noted that this case involved determination of complex legal questions which would be costly and time-consuming to litigate through trial.

Disability Benefit Claims

Second Circuit

Spears v. Liberty Life Assurance Company of Boston, et al., No. 3:11-CV-1807 (VLB), 2019 WL 4766253 (D. Conn. Sept. 30, 2019) (Judge Vanessa L. Bryant). See Notable Decision summary.

Eighth Circuit

Christoff v. Unum Life Ins. Co. of Am., No. CV 17-3512 (DWF/KMM), 2019 WL 4757884 (D. Minn. Sept. 30, 2019) (Judge Donovan W. Frank).  The court found that Unum’s termination of Plaintiff’s long-term disability benefits, which it paid for more than 15 years based on his severe fibromyalgia, was an abuse of discretion.  The court found it troubling that Unum conducted a review of his claim so close in time to a review that it did where it determined that Plaintiff remained disabled. The court found that Unum conducting the review which led to the termination of benefits was a serious procedural irregularity.  While it was not an abuse of discretion for Unum to use a more generic occupational definition of Plaintiff’s own occupation, Unum abused its discretion “by arbitrarily changing the level of physical demand without substantial evidence, or even any reasoning beyond one [Vocational Rehabilitation Counselor]’s flat assertion that it would be reasonable to change it.”  The court also concluded that “the balance of the medical evidence overwhelmingly shows that Unum’s evaluators ignored the seriousness of Christoff’s limitations and that he would be unable to perform any occupation on a full time, regular basis.”  The court ordered payment of past-due benefits plus interest in the amount directed by 28 U.S.C. § 1961.  The court denied Plaintiff additional restitution under ERISA Section 502(a)(3) since he is not entitled to “the money he would have been paid and what he would have bought with the money had he earlier had it in hand by requesting compensation for the full value of gains he might have realized.”

ERISA Preemption

Second Circuit

The Trundle & Co Pension Plan v. Emanuel, No. 18 CIV. 07290 (ER), 2019 WL 4735380 (S.D.N.Y. Sept. 27, 2019) (Judge Edgardo Ramos).  Trundle, who was the administrator and trustee of the Trundle & Company, Inc.’s pension plan (“the Plan”), brought suit individually and derivatively on behalf of the Plan against Emanuel, who was a trustee of the Plan, demanding $350,000 in money that Emanuel had transferred to other entities and refused to record as a personal distribution.  Essentially, she sues Emanuel personally for converting Plan monies which caused there to be no money left in the Plan for Trundle.  The court found that Trundle’s claims are expressly preempted by ERISA since she could have brought claims under ERISA Section 502(a) and the duties implicated between the parties arise from their relationship to the Plan.

Third Circuit

The Plastic Surgery Center, LLC v. Oxford Health Insurance, Inc., No. CV182608MASZNQ, 2019 WL 4750010 (D.N.J. Sept. 30, 2019) (Magistrate Judge Zahid N. Quraishi).  Plaintiff seeks payment for abdominal wall reconstruction surgery it provided to Defendant’s insured.  The court granted Plaintiff’s motion to amend its complaint in part.  The crux of Plaintiff’s claim is whether it was entitled under an alleged separate agreement to payment for claims arising out of the surgeries.  Based purely on the pleadings and Plaintiff’s insistence it had a separate contract that does not require review of an ERISA-governed plan, the court cannot conclude that amendment is futile on the basis of ERISA preemption.

Seventh Circuit

Schmelzer v. Animal Wellness Center of Monee, LLC, et al., No. 18-CV-01253, 2019 WL 4735441 (N.D. Ill. Sept. 27, 2019) (Judge Sharon Johnson Coleman).  Plaintiff alleges that she was terminated for engaging in ERISA-protected activity; specifically, that she was fired because she demanded that her employer make the required contributions to the Simple IRA Plan and informed the DOL of the employer’s failure to contribute and its inaccurate reporting.  Her Second Amended Complaint alleges retaliation and interference in violation of ERISA § 510 (Count I); violation of 26 U.S.C. § 7434 because Defendants willfully made false and fraudulent information returns (Count II); retaliatory discharge under Illinois common law (Count III), and violation of the Illinois Whistleblower Act (Count IV).  The court found that Counts II through IV are subject to dismissal due to ERISA preemption.  The allegations that underlie these claims are the same that give rise to her ERISA retaliation claim.  Because the state law claims relate to her ERISA claim, they are preempted.

Tenth Circuit

Boilermaker-Blacksmith National Pension Trust v. Matrix North American Construction, Inc., No. 19-CV-2370-JAR-TJJ, 2019 WL 4805977 (D. Kan. Oct. 1, 2019) (Judge Julie A. Robinson).  The Pension Trust brought state law claims, in addition to an ERISA claim, against Defendant for allegedly misrepresenting and fraudulently concealing the employment status of a former employer to whom Plaintiff paid retirement benefits it should not have paid and for whom it did not collect contributions owing for his work.  The court concluded that summary judgment was the appropriate stage to consider whether the evaluation of Plan documents is necessary to Plaintiffs’ state law claims and denied Defendant’s partial motion to dismiss.

Life Insurance & AD&D Benefit Claims

Fourth Circuit

Sloan v. Life Insurance Company of North America, et al., No. CV BPG-18-3055, 2019 WL 4750421 (D. Md. Sept. 30, 2019) (Chief Judge Beth P. Gesner). Plaintiff asserted a claim against Defendants for its denial of life insurance benefits following his wife’s death. Defendants alleged no coverage was available because Plaintiff’s wife did not convert her life insurance policy governed by ERISA to an individual life insurance policy after termination of coverage under ERISA. Plaintiff alleges his wife never received notice of termination of coverage that would have triggered her right to convert her policy. The decedent’s employer, PRA, cross-complained against LINA, asserting claims for indemnification and contribution under federal common law. LINA moved to dismiss. The court denied the motion, siding with Circuit Courts that have recognized a right of contribution and indemnification among ERISA fiduciaries. In addition, the court held that, in the context if a motion to dismiss, it could not be said that the employer was solely responsible for the notice at issue in this case given the language in the policy.

Medical Benefit Claims

Ninth Circuit

Caldwell v. UnitedHealthCare Insurance Company, et al., No. C 19-02861 WHA, 2019 WL 4738247 (N.D. Cal. Sept. 27, 2019) (Judge William Alsup). Defendants denied coverage for Plaintiff’s surgical treatment of lipedema, and moved to dismiss her complaint. The court held that Plaintiff did not adequately allege existence of an ERISA plan. Plaintiff only recited the elements which constitute an ERISA claim, but did not allege any facts to support those elements. Plaintiff also failed to identify a plan provision that entitled her to the benefit she was seeking. The court, however, denied Defendants’ motion insofar as the Section 1132(a)(3) claim, stating that Plaintiff may plead alternate theories of relief so long as there was no double recovery.

Tenth Circuit

K.H.B. v. UnitedHealthcare Insurance Company, No. 2.18-CV-000795-DN, 2019 WL 4736801 (D. Utah Sept. 27, 2019) (Judge David Nuffer).  Plaintiffs sued for coverage of treatment at Elements Wilderness Program.  The court dismissed the breach of fiduciary duty claim under 29 U.S.C. § 1132(a)(2) because Plaintiffs do not allege an injury to the Plan for which a plan-wide remedy is sought.  The court also dismissed the breach of fiduciary duty claim under 29 U.S.C. § 1132(a)(3) because it is duplicative of their recovery of benefits claim under 29 U.S.C. § 1132(a)(1)(B).  The court denied dismissal of Plaintiff’s claim for violation of the Parity Act because Plaintiffs allege sufficient facts to state a claim for an as-applied violation of the Parity Act.  For this, Plaintiff must allege “that a defendant differentially applied a facially neutral plan term.”  Here, Plaintiffs allege UHC differentially applies the Plan’s term “Alternate Facility” and does not adopt extra-licensure requirements for medical analogues of wilderness therapy programs and that the exclusion of wilderness therapy programs is an impermissible “facility type” nonquantitative limitation.

Jeff N. v. United Healthcare Insurance Company, No. 2:18-CV-00710-DN-CMR, 2019 WL 4736920 (D. Utah Sept. 27, 2019) (Judge David Nuffer).  Plaintiffs sued seeking payment for treatment a minor received at various residential treatment facilities.  The court determined that Jeff N., as a participant of the employee welfare benefit plan and entitled to reimbursement for out-of-pocket expenses under the terms of the Plan resulting from Defendant’s denial of M.N.’s treatment, has sufficiently alleged statutory and constitutional standing.  “However, because the allegations relating to Plaintiffs’ Parity Act claim are conclusory and mere recitations of the law lacking factual support, they fail to state a claim on which relief may be granted.”  The court gave Plaintiffs leave file an amended complaint correcting the deficiencies in their Parity Act claim.

Michael W. v. United Behavioral Health, No. 2:18-CV-00818-JNP, 2019 WL 4736937 (D. Utah Sept. 27, 2019) (Judge Jill N. Parrish).  In this dispute over residential treatment services provided by Catalyst, the court granted in part and denied in part Defendants’ motion to dismiss.  It concluded that 1) Kim W. lacks statutory standing because Plaintiffs did not plead her status under the insurance plan but Michael W. has both constitutional and statutory standing because he is a plan participant and the failure to pay harmed his statutory rights; 2) the Wit v. United Behavioral Health, 317 F.R.D. 106 (N.D. Cal. 2016) “class action is pending and has no formal preclusive effects, and the circumstances do not merit abstention under the first-to-file doctrine;” and 3) Plaintiffs have sufficiently pleaded their Parity Act claims and are entitled to discovery to prove the Defendants’ alleged coverage disparity and Parity Act violation.

Charles W., et al. v. Regence BlueCross BlueShield of Oregon, No. 2:17-Cv-00824-TC, 2019 WL 4736932 (D. Utah Sept. 27, 2019) (Judge Tena Campbell). Defendants paid for only two months of inpatient residential treatment for Plaintiff, who was in treatment for a year. Plaintiffs argued Defendants were obligated to pay for the duration of the stay. The court granted Plaintiffs’ motion for summary judgment, holding that the standards for discharge from treatment upon which Defendant relied were applicable to residential acute levels of treatment, not long-term, sub-acute residency program like the one Plaintiff was in. The court further noted that even if the guidelines used by Defendants’ peer reviewers were appropriate, they did not apply them correctly. Finally, the court held that the termination of coverage date was completely arbitrary, as Plaintiff’s condition in the two weeks before and after that date was essentially identical.

Pension Benefit Claims

Third Circuit

McCarrin v. Pollera, et al., No. CV 17-1691, 2019 WL 4857464 (E.D. Pa. Sept. 30, 2019) (Judge C. Darnell Jones, II). Plaintiff alleged that Defendants improperly denied his application for retirement benefits, specifically alleging that the pension plan contained rules which preempted the Selective Service Act of 1940, leading Defendants to deny Plaintiff vesting credit for three years of military service. The court granted Defendants’ motion to dismiss. The court explained that under the Uniform Services Employment and Reemployment Rights Act, an employee is treated as not having incurred a break in service with the employer insofar as plan participation, vesting, and accrual of benefits. In this case, Plaintiff was never a full-time employee either before or after his service, and as such, was not an employee under the terms of the plan, and therefore, was not a plan participant and not entitled to benefits.

Plan Status

Eighth Circuit

Yates v. Symetra Life Insurance Company, No. 4:19cv154 RLW, 2019 WL 4740159 (E.D. Mo. Sept. 27, 2019) (Judge Ronnie L. White). Plaintiff brought a lawsuit in state court alleging non-payment of a life insurance policy (accidental spousal death benefit) she obtained for her husband by Defendant. Defendant removed the case to federal court, claiming that the policy was governed by ERISA. Plaintiff sought remand back to state court, alleging federal court lacked subject matter jurisdiction and that safe harbor provision applied because the policy was voluntary and she made all contributions. The court held that it had subject matter jurisdiction over the case because the policy at issue was part of the insurance package offered by Plaintiff’s employer, and there was no justification for isolating or unbundling the various benefits that are part of a single plan.

Pleading Issues & Procedure

Second Circuit

Tutor Perini Building Corp. v. New York City District Council of Complaint Carpenters Benefit Funds, et al., No. 18-CV-6899 (VEC), 2019 WL 4805856 (S.D.N.Y. Sept. 30, 2019) (Judge Valerie Caproni). Plaintiff brought suit pursuant to ERISA § 403(c)(2)(A)(ii) to recover excess contributions that it allegedly paid to Defendants. Defendants contended that the court lacked subject matter jurisdiction, arguing that ERISA’s jurisdictional provision, § 502(e), precluded subject matter jurisdiction because Plaintiff was not a participant, beneficiary, or a fiduciary of a benefit plan. The court disagreed, and explained that it did have subject matter jurisdiction over Plaintiff’s claim pursuant to federal common law and § 1331.

Statute of Limitations

Fifth Circuit

Pfifer v. Sedgwick Claims Management Services Inc., 4:18-CV-1296, 2019 WL 4763914 (S.D. Tex. Sept. 30, 2019) (Judge Kenneth M. Hoyt).  The court found that the Short-Term Disability and Long-Term Disability Plans’ six-month limitations period from the time the administrative claims and appeal procedures are completed to file any action for benefits under the Plans are reasonable and enforceable.  Since Plaintiff did not file her lawsuit for these benefits until after the six-month period, her claims are time-barred.  Even if they weren’t time-barred, the court found that Sedgwick did not abuse its discretion when it denied Plaintiff’s claims for benefits where it relied on an independent consulting physician.

Statutory Penalties

Seventh Circuit

Griffin, M.D., v. TeamCare, No. 18 CV 1772, 2019 WL 4735432 (N.D. Ill. Sept. 27, 2019) (Judge Robert W. Gettleman).  On the pro se physician’s document request claim under 29 U.S.C. § 1132(c)(1)(B), the court granted Plaintiff’s motions for summary judgment in her two filed cases and imposed a statutory penalty of $3,555.  The court found that Defendants were required to mail to her various documents that she requested, including: “(1) the summary plan description; (2) fee schedules used to determine her payment; and (3) an administration agreement between defendants and Healthcare Service Corporation, an affiliate of Blue Cross Blue Shield Association that forwards out-of-network claims to defendants for defendants to adjudicate.”  Defendants did not have an adequate explanation for their delay, but also, Plaintiff did not show how she was prejudiced.  The court also did not find that Defendants acted in bad faith.  To induce plan administrators to respond in a timely manner, the court imposed a modest penalty of $5 per day.  The court did not decide whether ERISA requires the penalty to be multiplied by the number of delinquent documents; instead it found that $5 a day for all documents in this case was a fair penalty.  The court ordered Defendants to pay the penalty for 711 days, which is the time between the thirty-first day after Plaintiff first requested the documents and the day that the last document was finally produced.

Subrogation/Reimbursement Claims

Second Circuit

Employee Benefit Plan of Compass Group USA Inc., v. Miller, Rosnick, D’Amico, August & Butler, P.C., No. 3:14-CV-00389 (RNC), 2019 WL 4760360 (D. Conn. Sept. 30, 2019) (Judge Robert N. Chatigny). William Marino was a participant in the ERISA plan for which Plaintiff was a fiduciary. Marino was injured by a third party and the plan paid for his treatment. Defendant, a law firm, obtained a settlement from the responsible third party, and, after deducting fees and costs, disbursed the remainder to Marino. A consent judgment was entered in favor of Plaintiff against Marino in the amount of medical expenses paid by Plaintiff on Marino’s behalf, but Plaintiff sought to recover this amount from Defendant. The court held that the relief sought by Plaintiff against Defendant fell outside the scope of § 502(a)(3)(B) which authorizes a fiduciary to bring an action to obtain appropriate equitable relief for conduct that violates ERISA.  Specifically, ERISA does not impose liability on the law firm for disbursing the funds rather than holding the money in an escrow account until the lien was resolved.  The court granted summary judgment to Defendant.

Withdrawal Liability & Unpaid Contributions

Second Circuit

New York State Nurses Association Benefits Fund v. The Nyack Hospital, No. 17 CV 1899 (VB), 2019 WL 4735355 (S.D.N.Y. Sept. 27, 2019) (Judge Vincent L. Briccetti).  In this dispute where the Fund seeks to recover potential unpaid benefits contributions, the court granted the parties’ cross-motions for summary judgment in part and denied them in part.  The Court found that “the Fund is entitled to the payroll records of all registered nurses—including those not in the collective bargaining unit—but not to the payroll records of any other employees at the hospital.”

Trustees of The Local 7 Tile Industry Welfare Fund, et al. v. Gibraltar Contracting, Inc., No. 18CV3042RRMRER, 2019 WL 4736989 (E.D.N.Y. Sept. 26, 2019) (Judge Roslynn R. Mauskopf).  The court adopted the R&R and granted Plaintiffs’ motion for default judgment, directing the Court to enter Judgment in favor of Plaintiffs and against Defendant Gibraltar in the amount of $513,874.88 representing the delinquent contributions, liquidated damages, attorneys’ fees, and costs as set forth in Judge Reyes’ R&R, plus pre- and post-judgment interest.

Third Circuit

Steelworkers Pension Trust v. The Renco Group, Inc., et al., No. CV 18-142, 2019 WL 4748055 (W.D. Pa. Sept. 30, 2019) (Judge Cathy Bissoon).  “The sole issue presented is: what interest-rate should be applied to Renco’s overdue withdrawal liability?”  The Court concluded “that, in the absence of an explicit interest-rate applicable to withdrawal liability, the appropriate rate is that set forth in § 6621(a)(2).”  The court awarded total liability for interest, attorney’s fees and costs in the amount of $17,774,771.

Sixth Circuit

IUOE Local 324 Retirement Trust Fund, et al., v. LGC Global FM, LLC, No. CV 17-13921, 2019 WL 4741838 (E.D. Mich. Sept. 27, 2019) (Judge Linda V. Parker).  The court granted Plaintiffs’ motion for summary judgment in part, concluding that LGC is liable for fringe benefit contributions for the periods October 2015-January 2016 and April 2018-June 2018 but that Plaintiffs have not met their burden to show that Mr. Avinash Rachmale is liable as an ERISA fiduciary for any unpaid contributions.  The court found that Defendants should be allowed additional discovery in connection with the audit results and the amount of contributions due for those periods and Plaintiffs are entitled to liquidated damages on whatever amounts are eventually found to be due and owing.

Ninth Circuit

Carpenters Sw. Admin. Corp., et al. v. Constr. Tech. Specialists, Inc., et al., No. CV 19-470-GW-MAAX, 2019 WL 4790905 (C.D. Cal. Sept. 30, 2019) (Judge George H. Wu).  The court granted Plaintiffs’ motion for default judgment but requested that Plaintiffs identify a provision in the Agreements entitling them to an order requiring Defendant to submit to an audit, and for further submission regarding the amount of costs plus verification.

Westgate LVH, LLC v. Trustees of The Nevada Resort Association-IATSE Local 720 Pension Trust, No. 217CV01731RFBNJK, 2019 WL 4738013 (D. Nev. Sept. 28, 2019) (Judge Richard F. Boulware, II).  The court concluded that “Plaintiffs were both successors to Colony and had actual and constructive notice of withdrawal liability thereby satisfying the standard set in Heavenly Hana, Plaintiffs acquired withdrawal liability.”  The equitable considerations do not weigh in Plaintiffs’ favor.  “The Court finds that the equities weigh squarely in favor of the workers and their pensions. Public policy disfavors allowing employers to withdraw from underfunded pension plans without consequence and to the detriment of workers who have provided years of service.”  The court entered judgment in favor of Defendant on its counter-claim for payment of withdrawal liability.

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