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Your ERISA Watch – Sixth Circuit Applies Deferential Standard of Review to Hartford’s Decision to Terminate Long-Term Disability Benefits

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This week’s notable decision is Davis v. Hartford Life & Accident Ins. Co., No. 19-6091, __F.3d__, 2020 WL 6789448 (6th Cir. Nov. 19, 2020), where the Sixth Circuit held that the arbitrary-and-capricious standard of review applied to Hartford’s decision to terminate Davis’s long-term disability (“LTD”) benefits and that Hartford’s decision was not arbitrary and capricious.

Davis stopped working due to chronic back pain, neuropathy, and fatigue caused by multiple myeloma. Hartford approved his LTD claim and paid him 24 months of benefits under the policy’s Own Occupation definition of disability. While investigating whether Davis would continue to qualify for benefits when the policy’s definition of disability changed from Own Occupation to Any Occupation, Hartford conducted surveillance, obtained two reviews of Davis’ medical records, and had Davis examined by an orthopedic surgeon. Hartford showed some of the surveillance footage to Davis’s treating doctors. After viewing surveillance video, Davis’s primary care doctor and neurologist both responded to Hartford that Davis was capable of full-time work. Davis’s oncologist remained supportive throughout the LTD claim and appeal process. Hartford terminated Davis’s LTD claim. He appealed, sending in a letter of support from his oncologist. Hartford obtained two more medical record reviews and upheld its determination that Davis did not meet the Any Occupation definition of disability. Davis sued, bringing simultaneous claims for benefits and breach of fiduciary duty. The district court granted Hartford’s motion to dismiss the breach of fiduciary duty claim and granted its motion for summary judgment on the claim for benefits.

On appeal, Davis asked the court to consider whether the district court had erred when applying a discretionary standard of review, in dismissing Davis’s claim for breach of fiduciary duty, or in upholding Hartford’s decision to terminate his claim for benefits.

First, Davis argued the policy conferred discretion on Hartford Life Insurance Company, but it was employees of Hartford Fire Insurance Company who made the decision to terminate Davis’s LTD claim. The panel did not find anything wrong with this, saying “decisionmakers who act on behalf of an authorized plan administrator are employed by another entity within the corporate family, the plan administrator is still exercising (and has not delegated) its discretionary authority.” The Sixth Circuit found that abuse of discretion was the correct standard to be applied.

Second, Davis alleged Hartford committed several breaches of fiduciary duty, including “systematically delay[ing] claim decisions,” “automatically accept[ing] the opinions of Hartford’s paid medical reviewers,” and “not seek[ing] to reach an accurate decision.” The appellate panel labeled these allegations as conclusory, and determined the claim was properly dismissed because Davis had not provided any factual allegations in support of his claim. Davis contended that his breach of fiduciary duty claim should not have been dismissed because at the pleading stage it was too early to know whether he would be made whole by his claim for benefits due. The panel disagreed. “Although at the pleading stage, the relevant inquiry is whether Davis could avail himself of an adequate remedy for his loss of benefits under § 1132(a)(1)(B), not whether he in fact would prevail.”

Lastly, after explaining what a difficult standard of review abuse of discretion is to meet, the Sixth Circuit agreed with the lower court that Hartford’s termination of Davis’s LTD claim was not an abuse of discretion. The panel was convinced Hartford had followed a deliberate, reasoned process because it had obtained four medical file reviews by various specialists and an IME report which supported Davis’s ability to work. Davis’s primary care physician and his neurologist retracted their support for Davis and stated that he could work full-time. Hartford used the restrictions and limitations from the IME in an Employability Analysis Report and found five jobs he was able to do within those restrictions. Although Davis’s oncologist consistently stated that Davis was disabled, he did not respond to requests for further clarification or support for his opinion.

The appellate court was unmoved by Davis’s argument that Hartford had not shown any improvement in his condition, writing that Hartford only need to show “some reason for the change…based on any number of factors.” The Sixth Circuit confirmed the district court’s decision because Davis was unable to establish Hartford had abused its discretion, an “extremely deferential” standard that “has been described as the least demanding form of judicial review.” Davis, at *4, citing McClain v. Eaton Corp. Disability Plan, 740 F.3d 1059, 1064 (6th Cir. 2014). Sadly, Davis was unable to meet this stringent standard and summary judgment was affirmed for Hartford.

This week’s notable decision summary was prepared by Kantor & Kantor, LLP Associate, Sarah Demers. Sarah has devoted her law practice to representing individuals in disputes over health insurance coverage, life insurance, disability income benefits, and retirement benefits, and is passionate about fighting for people who have been wrongfully denied employee benefits.

The second notable decision is an entry of judgment in Jamie F. v. UnitedHealthCare Ins. Co., No. 19-CV-1111-YGR, 2020 WL 6802416 (N.D. Cal. Nov. 19, 2020). The court previously issued a decision on the merits of the benefits claim in Jamie F. v. United Healthcare Ins. Co., No. 19-CV-1111-YGR, 2020 WL 4249200 (N.D. Cal. July 23, 2020). The court considered Plaintiff’s motion for entry of judgment due to the parties’ dispute as to the amount of benefits to be awarded.

Plaintiff requested an award of benefits in the amount billed by the provider, Avalon, for residential treatment. The court found that the request to pay the entire amount billed by the provider is not consistent with ERISA’s terms, i.e. recovery of benefits due under the terms of the Plan. Alternatively, Plaintiff requested an award of benefits in the amount of the cost of her treatment that would have been agreed under a single case agreement (“SCA”) between the provider and United. The court found a SCA is often requested due to the inadequacy of a provider network. United conceded that SCAs have been requested and approved for treatment at Avalon. Plaintiff presented evidence of four SCAs approved by United for patients at Avalon during the time period of Jamie’s treatment. The court found the evidence supported a finding that the SCA daily rate should apply and awarded benefits in the amount of $142,205.00 based on a SCA rate of $1195 per day.

The court awarded prejudgment interest at the rate of 3.5% per annum based on evidence that Jamie’s parents paid for her treatment by withdrawing money from their investment account which earned an average interest rate of 3.5%. The court awarded prejudgment interest on the remainder owed to Avalon at the interest rate of 9% per annum based upon the contractual interest rate set by Avalon for the unpaid balance it billed Jamie’s parents.

The summary above was prepared by Kantor & Kantor, LLP Partner, Elizabeth Green, who also represents Jamie F. Elizabeth is passionate about helping patients obtain health benefits for a range of health conditions and particularly for mental health disorders such as eating disorders, and bipolar disorder.

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

Attorneys’ Fees

Second Circuit

Royal v. Ret. Bd. of the Bert Bell/Pete Rozelle NFL Player Ret. Plan, et al., No. 19-CV-5164 (AJN), 2020 WL 6820750 (S.D.N.Y. Nov. 20, 2020) (Judge Alison Nathan). Plaintiff sued Defendants alleging violations of disclosure requirements under ERISA §102(a). Plaintiff voluntarily dismissed his complaint in response to Defendants’ motion to dismiss. Defendant The Management Council then sought attorneys’ fees under ERISA 502(g)(1). The court denied the request based on two independent (and as the court points out, independently sufficient) reasons. First, the Management Council failed to establish “some degree of success on the merits” as required for a fee award under ERISA, as the court did not actually grant its motion to dismiss. Second, it held that even if it were allowed to award fees, it would decline to exercise its discretion to do so, as Plaintiff’s good faith justification for withdrawing his suit when he did resulted in the Chambless factors weighing heavily in his favor.

Class Actions

Seventh Circuit

Carlson v. Northrop Grumman Severance Plan, No. 13-CV-02635, 2020 WL 6870785 (N.D. Ill. Nov. 23, 2020) (Judge Andrea R. Wood). Plaintiffs brought this class action against their former employer, Northrop Grumman, and its severance plan, alleging that they interfered with Plaintiffs’ severance benefits under ERISA. The court previously granted class certification on one of Plaintiffs’ claims for relief—seeking benefits due and clarification of rights—but denied certification as to two other claims. Plaintiffs re-filed their motion, seeking certification of two new subclasses. The court granted their motion, finding that the new subclasses met class action requirements. The court found that the first subclass, which alleged interference with Plaintiffs’ plan rights under ERISA, was consistent with the claims pled in their complaint and was defined narrowly enough to satisfy commonality and typicality requirements because the class members were all employed in the same unit and subject to the same policy. The court also certified the second subclass, which requested equitable relief in the form of reformation of the plan, because Plaintiffs limited the class to employees hired before a certain date. These employees had received allegedly inaccurate information regarding the plan, whereas employees hired later were given accurate information. As a result, the new subclass met commonality and typicality requirements. The court also found that the attorneys, Michael Bartolic and R. Joseph Barton, and named Plaintiffs would adequately represent the subclasses’ interests.

Disability Benefit Claims

Sixth Circuit

Davis v. Hartford Life & Accident Ins. Co., No. 19-6091, __F.3d__, 2020 WL 6789448 (6th Cir. Nov. 19, 2020) (Before: COLE, Chief Judge; DONALD and READLER, Circuit Judges). See Notable Decision summary above.

Ninth Circuit

Gill v. Unum Life Insurance Company of America, No. 19-CV-04066-EMC, 2020 WL 6868832 (N.D. Cal. Nov. 23, 2020) (Judge Edward M. Chen). Unum discontinued Mr. Gill’s LTD benefits after twenty-four months because, according to Unum, the policy limited LTD benefits for disabilities caused by mental illnesses. Mr. Gill contended that the Policy’s mental illness limitation did not apply to him because his disability was caused by mild cognitive impairment (MCI), which is a physical, non-psychiatric condition. Mr. Gill also suffered from bipolar disorder. Under de novo review, the court found Mr. Gill did not meet his burden of establishing that his cognitive impairment was caused by a physical, non-psychiatric, non-psychological condition. The court noted Mr. Gill’s treatment provider’s opinions were either inconclusive as to the etiology of his cognitive impairments or poorly supported. Under the law, these types of inconclusive and poorly supported opinions were insufficient to carry Mr. Gill’s burden of proof. The court concluded: “In sum, without at least a confirmatory brain fMRI or SPECT scan, or any other evidence, Dr. Milin’s conclusion that Mr. Gill’s bipolar depression caused ‘neural degeneration’ and ‘organic brain damage’ is, at best, an educated guess, not a substantial diagnosis.”

Discovery

Ninth Circuit

Williams-Sullivan v. Prudential Ins. Co. of Am., No. CV-20-00315-PHX-SMB, 2020 WL 6817327 (D. Ariz. Nov. 20, 2020) (Judge Susan M. Brnovich). Plaintiff brought this action challenging Prudential’s termination of her claim for long-term disability benefits under an ERISA-governed employee benefit plan. Plaintiff filed a motion to supplement the administrative record and to consider the admitted evidence in the parties’ dispositive motions. Specifically, Plaintiff requested that the court consider more than 2,000 pages of evidence that were generated after Prudential’s final denial letter, including letters from Plaintiff’s doctors, a functional capacity evaluation, a vocational evaluation, affidavits from friends, and a favorable Social Security disability decision. The court denied Plaintiff’s motion in its entirety. The court found that Prudential had not violated any of ERISA’s procedural claim regulations that might warrant supplementation of the record. The court further found that the documents Plaintiff sought to introduce post-dated the time period at issue and were not before Prudential at the time it made its decision, and thus could not be admitted. The court further denied Plaintiff’s request for a remand because no procedural irregularity had prevented full development of the record.

Eleventh Circuit

Ghattas v. Blue Cross Blue Shield Health Care Plan of Georgia, Inc., Case No. 1:20-CV-03157-ELR, 2020 WL 6867155 (N.D. Ga. Nov. 18, 2020) (Judge Eleanor L. Ross). In a proton beam cancer treatment denial case, Defendant Blue Cross Blue Shield Health Care Plan of Georgia (BCBSGA) took the position that ERISA matters were exempt from the initial disclosures requirements of FRCP Rule 26 and that Plaintiff was not entitled to any discovery in an ERISA matter. The court resolved these two issues as addressed in the parties’ Joint Preliminary Report to the Court. First, the court agreed with Plaintiff that Defendant would be required to produce initial disclosures in this matter pursuant to Rule 26. Second, the court agreed that Plaintiff was entitled to narrowly tailored discovery regarding what evidence the Plan was aware of at the time of its decision to deny Plaintiff’s claim for proton therapy.

Medical Benefit Claims

Sixth Circuit

Laughlin v. Nationwide Life Ins. Co., No. 2:19-CV-5549, 2020 WL 6738159 (S.D. Ohio Nov. 17, 2020) (Judge Algenon L. Marbley). A plan participant sought medical benefits pursuant to an ERISA health plan funded partially through a Stop Loss Contract with Nationwide. Nationwide denied the Plan’s claims for reimbursement under the Stop Loss Contract, claiming the payments do not comply with the terms of the Plan. Nationwide argues it reserved the right in the Stop Loss Contract to interpret the terms and conditions of the Plan. The court found that Nationwide asserted the same argument in a prior case and in that case, the court rejected the argument. The court determined that if it were to apply Nationwide’s interpretation, the Plan’s discretionary authority and responsibility to make benefits determinations would be rendered superfluous and meaningless because Nationwide could always determine the expenses were not reasonable under the Plan. The court granted Plaintiffs’ Motion for Partial Summary Judgment.

Seventh Circuit

Lubinski v. CVS Health Welfare Benefit Plan, Case No. 20-cv-89, 2020 WL 6870822 (N.D. Ill. Nov. 24, 2020) (Judge Manish S. Shah). This is a dispute over the coverage of air ambulance services for Plaintiff, a patient who was on vacation in the Dominican Republic and required treatment in the United States. Aerocare Medical Transport System Inc. flew Plaintiff from the Dominican Republic to Miami, Florida, and then from Miami to Evergreen Park, Illinois. Blue Cross and Blue Shield of Illinois (BCBSIL) concluded that the first trip from the Dominican Republic to Miami was medically necessary and covered under the plan, but that the second trip from Miami to Evergreen Park was not. The court relied on the Summary Plan Description which defined the key provider reimbursement provisions. The court held that Plaintiff’s allegations of underpayment were insufficient and she failed to meet her burden of showing that the closest hospital that could treat her was her local hospital in Illinois and not a hospital in Miami.

Ninth Circuit

Jamie F. v. UnitedHealthCare Ins. Co., No. 19-CV-1111-YGR, 2020 WL 6802416 (N.D. Cal. Nov. 19, 2020) (Judge Yvonne Gonzalez Rogers). See Second Notable Decision summary above.

Pleading Issues & Procedure

Ninth Circuit

Carpenters Pension Trust Fund for Northern California v. Hernandez et al., Case No. 20-cv-01778, 2020 WL 6802447 (N.D. Cal. Nov. 19, 2020) (Judge Edward M. Chen). Plaintiff filed a complaint interpleader against Defendants who were competing claimants to Michael Hernandez’s pension and annuity trust benefits after he had passed away. Hernandez answered.  McKeague did not.  The Clerk of the Court entered McKeague’s default. The issue addressed in this decision is Plaintiff’s motion for entry of default judgment against McKeague. The court considered seven factors including the strong policy favoring decisions on the merits and granted Plaintiff’s motion. Plaintiff was ordered to deposit the benefits with the court.

Eleventh Circuit

Stevens v. Plumbers & Pipefitters Local 219, No. 20-10976, __F.App’x__, 2020 WL 6781477 (11th Cir. Nov. 18, 2020) (Before Martin, Newsom, and Anderson, Circuit Judges). Plaintiff, proceeding pro se, appealed the dismissal of his amended complaint alleging wrongful denial of pension and annuity benefits. He brought claims under ERISA and 42 U.S.C. § 1983 for violations of his civil rights and alleged a “scheme … to deny [Stevens] retirement benefits.” The district court dismissed Stevens’s ERISA claims without prejudice and granted leave to amend. Instead of amending his ERISA claims, Plaintiff appealed the district’s court order dismissing his § 1983 claim. While Stevens’s appeal was pending in this court, he amended his complaint, and Defendants again moved to dismiss. The district court dismissed the complaint because prior to filing his amended complaint, Plaintiff appealed the court’s dismissal of his Section 1983 claim, and by doing so, he treated the dismissal of the ERISA claims as final and waived his right to amend. The court held that the district court correctly dismissed the amended complaint.

Remedies

Fifth Circuit

Jones v. Int’l Bus. Machines Corp. (“IBM”), No. 1:19-CV-00251-RP, 2020 WL 6729088 (W.D. Tex. Nov. 15, 2020) (Magistrate Judge Susan Hightower). On report and recommendation, the court denied summary judgment to both parties. Jones alleged that she took early retirement from IBM after IBM’s pension plan administrator told her that she would receive a lump sum pension benefit of more than $331,000. After Jones retired, however, she received a pension of only $53,477.51. In 2014 or 2015, IBM and Fidelity became aware that, due to a software error, certain employees would receive an inaccurate pension calculation if, like Jones, they took pension payouts and then returned to IBM. In May 2017, Jones became eligible, and was invited, to retire early through IBM’s “Transition to Retirement” program. Before she retired, Jones received three pension reports stating her estimated lump sum payment—all of which were consistent with an eventual $300k+ benefit. In addition, Jones called IBM’s Employee Service Center on February 22, 2018, and March 6, 2018, and spoke to members of IBM’s “Retirement Coordination Team,” who confirmed that the $331,250.95 figure was correct. Jones sued IBM asserting equitable estoppel. The court found the benefit statements satisfied the material misrepresentation prong. The court found extraordinary circumstances existed because Jones repeatedly and diligently inquired about the benefits and was repeatedly mislead. The court found Jones had relied on IBM’s misrepresentation to her detriment because she took early retirement and was not able to find alternative employment. The court could not decide the issue of reasonable reliance at the summary judgment stage. It concluded that clear plan documents did not render the reliance unreasonable despite misrepresentations because the benefit amount was not ascertainable from those terms. While the court would wait until trial to weigh the evidence and assess the credibility of witnesses to determine whether Jones had met the reasonable reliance requirement to prevail on her ERISA-estoppel claim, it noted that money damages were appropriate. It observed that ERISA-estoppel may be an independent remedy under federal common-law (meaning not tied to (a)(3) or any other remedies section). Even if tied to (a)(3), money damages were available under the surcharge doctrine.

Subrogation/Reimbursement Claims

Ninth Circuit

Colorescience, Inc. v. Bouche, Case No.: 20cv595-GPC (DEB), 2020 WL 6712221 (S.D. Cal. Nov. 16, 2020) (Judge Gonzalo P. Curiel). Plaintiff Colorscience employed Deborah Bouche, who was the mother of an adult son, Stephen Bouche. Stephen turned 26 in 2013. In 2014, when he was over the age of 26, he had a slip and fall accident. In 2017, Deborah Bouche inquired with Colorscience about obtaining health insurance coverage for her adult son, who had been awarded Social Security disability due to his injuries from the fall. Stephen was enrolled as her dependent under the Plan as of January 1, 2018. Stephen underwent back surgeries in February 2018 costing over $1.2 million. Due to the size of the claim, the third party administrator Healthscope conducted an audit of the coverage and determined that he had not qualified for coverage as he was not under age 26 when enrolled, and was not disabled prior to the age of 26. Where the Plan had authorized the surgeries, it agreed to pay them and terminated his coverage as of September 1, 2018. The Plan ultimately paid $477,093.98 for Stephen’s back surgeries. The Plan then sought subrogation when Stephen obtained a settlement from the slip and fall. The Bouches argued that because Stephen was determined never to be eligible under the Plan, the reimbursement and subrogation provisions did not apply to him. The plain language of the Plan states that those provisions apply to an employee and employee dependent “who is eligible for benefits under the Plan.” The court found for the Bouches and determined that Colorscience had no legal basis to enforce the subrogation or reimbursement provisions of the Plan against Stephen.

Withdrawal Liability & Unpaid Contributions

Second Circuit

The Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of the Int’l Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, by their Trustees James T. Callahan, Thomas A. Callahan, Michael Salgo & Denise M. Richardson v. Intercounty Paving Assocs. of New York, LLC, No. 19-CV-0733 (RER), 2020 WL 6826197 (E.D.N.Y. Nov. 20, 2020) (Magistrate Judge Ramon E. Reyes, Jr.). The court granted Plaintiffs’ Motion for Summary Judgment and ordered “Defendant to pay Plaintiffs the following: (1) $55,308.56 in all unpaid ERISA and non-ERISA contributions; (2) $17,500.39 in prejudgment interest on all unpaid ERISA contributions; (3) $1,958.48 in prejudgment interest on all unpaid non-ERISA contributions; (4) $5,125.84 in liquidated damages; (5) $11,255 in attorneys’ fees; (6) $400 in legal costs; (7) $14,387.55 in audit fees; and (8) Post-judgment interest on the entire monetary award at the rate set out in 28 U.S.C. § 1961.”

Trustees of New York City Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. L.A. Mays Inc., No. 20CV0976VSBOTW, 2020 WL 6827995 (S.D.N.Y. Nov. 19, 2020) (Judge Vernon S. Broderick). “The Petition is granted and the arbitration award is confirmed in full. Respondents are directed to pay Petitioners $2,400 in damages, with interest to accrue at the rate set by 28 U.S.C. § 1961. Petitioners are also awarded $997.50 in attorney’s fees and costs.”

Trustees Of The New York City District Council Of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educational And Industry Fund v. JB Squared Construction Corp., No. 20 CIV. 2659 (KPF), 2020 WL 6825693 (S.D.N.Y. Nov. 19, 2020) (Judge Katherine Polk Failla). The court granted the Petition to confirm the arbitration award. “Judgment will be entered in the amount of $22,106.98, which consists of the arbitration award of $18,091.55, $1,278.80 in prejudgment interest, $2,734.00 in attorneys’ fees, and $2.63 in costs. Post-judgment interest will accrue at the statutory rate pursuant to 28 U.S.C. § 1961.”

Bricklayers and Allied Craftworkers Local 2, Albany, New York Pension Fund, et al. v. Mainstream Specialties Inc., et al., No. 120CV463MADCFH, 2020 WL 6781512 (N.D.N.Y. Nov. 18, 2020) (Judge Mae A. D’Agostino). The court granted Plaintiffs’ motion for default judgment against Defendants Mainstream Specialties and ordered judgment in the amount of $133,049.11 against Mainstream Specialties Inc., consisting of (1) $73,866.41 in unpaid contributions and deductions, (2) $32,500.76 in interest, and (3) $26,681.94 in liquidated damages. The court also entered judgment in the amount of $68,777.44 against Peter Stevens, consisting of (1) $58,904.01 in unpaid contributions and deductions and (2) $9,873.43 in interest. Lastly, the court entered judgment in the amount of $17,561.15 against Mainstream Specialties Inc. and Peter Stevens consisting of (1) $9,083.75 in attorneys’ fees, (2) $667.40 in costs, and (3) $7,810.00 in audit fees.

Seventh Circuit

Pipe Fitters’ Retirement Fund, Local 597 v. Chicago Piping Systems, Inc., No. 19-CV-00907, 2020 WL 6870821 (N.D. Ill. Nov. 23, 2020) (Judge John J. Tharp, Jr.). “Plaintiffs’ motion for summary judgment is granted. Plaintiff is awarded $7,106.52 in liquidated damages and interest as well as $14,882.28 in attorney’s fees and costs to be paid by Chicago Piping.”

Central States, Southeast and Southwest Areas Pension Fund, et al. v. Transervice Logistics, Inc., No. 20 C 4610, 2020 WL 6747027 (N.D. Ill. Nov. 17, 2020) (Judge Ronald A. Guzman). Plaintiffs seek to recover a year’s worth of contributions, interest, and damages from Defendants for work done between February 2019 and February 2020. The court granted Defendants’ motion to dismiss since Local 89 provided Defendants with unequivocal, timely notice of its intent to terminate the 2013 CBAs.

Wisconsin Laborers Pension Fund v. R.L. Davis Contracting Servs., LLC, No. 19-CV-400-JDP, 2020 WL 6730912 (W.D. Wis. Nov. 12, 2020), judgment entered, No. 19-CV-400-JDP, 2020 WL 6684526 (W.D. Wis. Nov. 12, 2020) (Judge James D. Peterson). In this dispute over nine years of unpaid contributions, the court determined that “even if the discovery rule applies, plaintiffs are not entitled to the benefit of it. I will apply the Wisconsin six-year statute of limitations. Plaintiffs are entitled to damages only from May 16, 2013, forward. The court finds that plaintiffs are entitled to total damages of $37,981.95. The damages owed to the Building Trades Fund are $3,951.24 ($24,933.90 in contributions and liquidated damages, see Dkt. 49-1, offset by the credit of $20,982.66, see Dkt. 36, ¶ 7). The damages owed to the Wisconsin Laborers Pension Fund are $34,030.71, in contributions, liquidated damages, and interest, see Dkt 49-2. The court finds that plaintiffs are entitled to $5,832 in attorneys fees and $500 in taxable costs. Dkt. 43.”

Ninth Circuit

Northwest Administrators, Inc. v. National Express Transit Services Corporation, No. 2:19-CV-00744 WBS AC, 2020 WL 6867365 (E.D. Cal. Nov. 23, 2020) (Magistrate Judge Allison Claire). The court recommended granting Plaintiff’s motion for partial default judgment and ordering defendants Durham School Services and National Express LLC, to make available to plaintiff’s Trust Fund’s authorized representatives the following documents: All tax documents listed on the contract and confirmation letter; Complete employee roster that includes the route-type for each driver; Payroll for all employees for 10/01/2013 to 6/30/2019; and Job descriptions for each iteration of the Driver and Mechanic position (Teamsters, ATUs, None’s, Trainees and any others that do driving or mechanic work).

Your ERISA Watch is made possible by the collaboration of the following Kantor & Kantor attorneys:  Brent Dorian Brehm, Sarah DemersElizabeth GreenAndrew Kantor, Anna Martin, Michelle RobertsTim Rozelle, Peter Sessions, Stacy Tucker, and Zoya Yarnykh.

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