This week’s notable decision is Black v. Pension Benefit Guar. Corp., No. 19-1419, __ F.3d __, 2020 WL 5201400 (6th Cir. Sept. 1, 2020). Plaintiffs in this case were retirees of Delphi Corporation, an automotive parts supplier and former subsidiary of General Motors. In 2005, Delphi filed for bankruptcy and sought to terminate its pension benefit plan for its salaried workers, including Plaintiffs. The Pension Benefit Guaranty Corporation (“PBGC”) then stepped in and notified Delphi that while it agreed the plan should be terminated, it would seek to be appointed as statutory trustee of the plan. PBGC filed a new civil action to adjudicate termination and transfer of the plan. The bankruptcy court then confirmed Delphi’s bankruptcy plan, which terminated the pension plan. PBGC responded by voluntarily dismissing its civil action, after which it reached a termination and trusteeship agreement with Delphi.
Plaintiffs, unhappy with the way their pension plan had been terminated, filed this action, raising three arguments. First, Plaintiffs contended that PBGC should not have dismissed its civil action. They argued that under the statute that gives PBGC the authority to institute termination proceedings, 29 U.S.C. § 1342(c), a distressed pension plan cannot be terminated without a judicial adjudication. Second, Plaintiffs contended that their due process rights had been violated because they were not afforded a hearing prior to the termination of the pension plan. Third, they argued that PBGC’s decision was arbitrary and capricious. After protracted litigation, the district court granted summary judgment to PBGC. Plaintiffs appealed.
On appeal, the Sixth Circuit conducted a detailed analysis of the statute and determined that pension plan terminations do not necessarily require a judicial adjudication. Instead, “the statutory scheme provides two procedural alternatives for terminating a distressed pension plan, including by agreement between PBGC and the plan administrator.” Because PBGC had reached an agreement with Delphi regarding the termination and trusteeship of the pension plan, it had complied with the statute. The court noted that this conclusion was consistent with Second Circuit case law, as well as dicta from other circuit courts, and that Plaintiffs had not cited any authority supporting their proposed interpretation, i.e., that termination of a distressed pension plan must be accomplished through court adjudication.
As for Plaintiffs’ due process claim, the court looked to the source of their claimed property interest: the pension plan. The plan stated that pension benefits were nonforfeitable, but only to the extent they had accrued and were funded. As a result, the court found that Plaintiffs did “not have a property interest in the full amount of their vested pension benefits because the Salaried Plan document provides that only funded benefits at the time of plan termination are nonforfeitable.” The court further found that this interpretation did not violate ERISA’s anti-cutback rule because that rule only addresses amendments to plans, whereas here the plan had been terminated.
Finally, the court determined that PBGC’s decision was not arbitrary and capricious. Plaintiffs contended that the plan was not sufficiently underfunded, that GM was willing to consider assuming the plan, and that PBGC went along too willingly with the 2008 automotive industry bailout. However, the court found that there was “sufficient countervailing evidence” to support PBGC’s decision. The court noted that the plan had missed minimum funding contributions, GM never promised that it would assume the plan, and PBGC explored various alternatives for several years before deciding to terminate the plan. The court thus determined that any decision to the contrary would be playing “armchair administrative agency with the benefit of hindsight.”
This week’s notable decision was prepared by Kantor & Kantor attorney, Peter Sessions. Peter has been practicing in the insurance and ERISA-related fields of law for more than 20 years and has special expertise in appellate litigation.
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Anne M., et al. v. United Behavioral Health, Case No. 18-cv-00808, 2020 WL 5107634 (D. Utah Aug. 31, 2020) (Magistrate Judge Daphne A. Oberg). The M. Plaintiffs brought two causes of action against UBH and the Motion Picture Industry Health Plan for Active Participants (“Plan”) for failure to pay for treatment E.W.-M. received at Unita Academy, a licensed residential treatment facility in Utah. Here, the M. Plaintiffs sought leave to conduct discovery with respect to their Mental Health Parity Act claim on the grounds that their Parity Act claim is distinct and not subject to the limitations imposed by ERISA on discovery. The Court held that the M. Plaintiff’s Parity Act discovery is separate from ERISA and that limiting discovery to the plan documents and the pre-litigation administrative record would improperly hamstring the M. Plaintiffs from their ability to prove a violation of the Parity Act as applied.
Haghighi v. Horizon Blue Cross Blue Shield of New Jersey, No. CV 19-20483 (FLW), 2020 WL 5105234 (D.N.J. Aug. 31, 2020) (Judge Wolfson). Plaintiff is a doctor who performed surgery on a person insured by an ERISA health insurance plan. Dr. Haghighi sued Defendant Horizon, the administrator of the health insurance plan in question, alleging violations of state law for breach of contract, unjust enrichment, tortious interference, and negligent misrepresentation. The court determined all these claims were preempted by ERISA because Plaintiffs did not have a separate agreement with Horizon to administer claims outside the plan document. The claims therefore “relate” to a plan document and are governed by ERISA. The court dismissed Plaintiffs’ complaint, allowing 21 days to amend.
Pappayliou v Johnson Controls, Inc.., No. 3:20-cv-008, 2020 WL 5201144 (S.D. Ohio. Sept. 1, 2020) (Judge Walter H. Rice). Plaintiff was General Counsel of Tomkins Limited, which was acquired by defendant Johnson Controls after his 2011 retirement. As General Counsel, he was party to an Executive Employment Agreement, which governed his employment, including his employment benefits. He entered into a Retirement Agreement, binding on Defendant, which stated that Plaintiff and his dependents would retain all benefits he had under the Executive Employment Agreement. That Executive Employment Agreement stated that charges related to his health, dental and medical benefits could not be greater than those charged to similar company executives at the time Plaintiff began receiving the benefits. But starting January 1, 2020, Defendant increased his premium and provided that it would be variable for the remainder of his life. After Defendant removed to federal court based on ERISA preemption, Plaintiff moved to remand, arguing that he was enforcing the terms of his employment and retirement agreements, neither of which are welfare benefit plans under ERISA. The court agreed, noting that while the contracts did create ongoing demands on an employer’s assets as required of an ERISA plan, they did not provide any discretion over the distribution of benefits, which were mandated for life. Moreover, neither contract mentioned ERISA. Nor did the actual ERISA plan have any involvement with the legal duties at issue in the employment and retirement contracts. Therefore, under Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004), the court held that the claims were not preempted by ERISA.
Goodson v. Aetna Life Ins. Co., No. 4:19-CV-00092-HFS, 2020 WL 5229118 (W.D. Mo. Sept. 2, 2020) (Before District Judge Howard F. Sachs). Plaintiff filed suit against Aetna after it reduced his disability benefits by the amount received in a personal injury settlement. Aetna argued that part of the settlement was paid to compensate for future lost earnings, which makes the income deductible under the Policy terms. Plaintiff argued that such an offset was 1) improper according to the terms of the policy, and 2) in violation of a Missouri State Law which prohibits such “subrogation rights” of insurers. The court found that even if the offset was proper according to policy language, Missouri State Law which prohibits subrogation rights was saved from preemption, and thus applicable to Plaintiff’s ERISA case. Thus, Aetna acted arbitrarily and capriciously by violating Missouri state law, regardless of the content of the policy language.
Lewis v. Eli Lilly & Co., et al., No. CV-19-05740-PHX-JJT, 2020 WL 5210815 (D. Ariz. Sept. 1, 2020) (Judge John J. Tuchi). Defendants denied Plaintiff’s short-term disability benefits under Eli Lilly’s Illness Pay Program, which is administered by Sedgwick. The denial interfered with his eligibility for long-term benefits under the Extended Disability Leave (“EDL”) Plan. Plaintiff filed this case in state court alleging four counts: (1) breach of contract against Eli Lilly; (2) breach of the duty of good faith and fair dealing against Eli Lilly; (3) aiding and abetting Eli Lilly’s breach of the duty of good faith and fair dealing against Sedgwick; and (4) in the alternative, breach of the duty of good fair and fair dealing as a “joint venturer” of Eli Lilly against Sedgwick. Defendants timely removed the action to this court, asserting diversity jurisdiction. They also contend Plaintiff’s lawsuit seeks a declaration and enforcement of his rights under the EDL Plan, which is governed by ERISA and completely preempted by ERISA. On Plaintiff’s motion to remand, the court noted that the complaint alleged that Plaintiff is entitled to a judgment finding he has satisfied the criteria for eligibility under the EDL Plan. However, Plaintiff did not assert a claim for declaratory relief, and the court was not convinced Plaintiff’s requested relief is a remedy for a breach of contract or breach of the duty of good faith and fair dealing claim. Accordingly, the court declined to find removal jurisdiction on this basis. However, because it has diversity jurisdiction over the action, the court denied Plaintiff’s Motion to Remand.
Life Insurance & AD&D Benefit Claims
ESCO Employee Sav. Inv. Plan v. Walsh, No. 4:19CV77 HEA, 2020 WL 5203789 (E.D. Mo. Sept. 1, 2020) (Judge Henry Edward Autrey). The case involves a dispute over life insurance benefits between the spouse and the daughters (from prior marriages) of decedent Patrick Walsh. Mr. Walsh executed a beneficiary designation form listing his wife (Kerry) as his sole primary beneficiary under the Plan provided by his employer. At the time of his death, Mr. Walsh and Kerry had been married for 23 years. On October 24, 2018, the day of Mr. Walsh’s death, the Plan received a request to change Mr. Walsh’s beneficiary designation under the Plan and mailed a confirmation of the request to Mr. Walsh at his home address, enclosing forms needed to complete the requested change, including a beneficiary change authorization form. The Plan required spousal consent to Mr. Walsh’s designation of a beneficiary other than spouse. Three days after Mr. Walsh’s death, the daughters presented Kerry with the Change Form and insisted that she sign it, which she did so the daughters would leave her alone to grieve. At the time of Mr. Walsh’s death, Kerry was Mr. Walsh’s surviving spouse and the sole primary beneficiary designated under the Plan. The court found in favor of Kerry. The unambiguous language of the Plan provided that upon the death of the participant, the fund shall be distributed to the surviving spouse, unless the spouse has consented to a change of beneficiaries. This language requires a consent prior to the death of the participant. At the time of Mr. Walsh’s death, the beneficiary was Kerry; the consent presented by daughters was executed by Kerry post-mortem, and therefore ineffective. Kerry, therefore, is the sole beneficiary, and is entitled to summary judgment.
Medical Benefit Claims
Wilson v. United HealthCare Ins. Co., No. 2:17-CV-03059-DCN, 2020 WL 5203782 (D.S.C. Sept. 1, 2020) (Judge David C. Norton). Plaintiff seeks benefits for residential treatment. The court found that Plaintiff failed to fully exhaust administrative remedies for the second and third dates of service. The court found that futility did not apply because there was not “clear and positive evidence” that the administrative remedies are futile. The court then considered the Booth factors to determine if UHIC abused its discretion in denying benefits for the first dates of service. The court refused to apply Wit v. United Behavioral Health because there has been no final ruling on the merits in that case. The court also would not consider Wit because the Wit decision was issued on March 5, 2019 and the UHIC decision was in 2015 and 2016 and UHIC would not have known about the Wit decision. The court found that the materials considered by UHIC to make its decision were adequate and supported the decision, UHIC followed policies and procedures pursuant to the Plan, and its decision-making was reasoned or principled. The court finds judgment for UHIC.
Todd R. v. Premera Blue Cross Blue Shield of Alaska, No. 19-35475, __F.App’x__, 2020 WL 5202077 (9th Cir. Sept. 1, 2020) (Before Judges Richard R. Clifton, D. Michael Fisher, Milan D. Smith Jr.). Defendant appealed judgment for Plaintiffs who sought reimbursement for residential treatment. The district court found that the patient Lillian’s treatment was medically necessary based on a factor not argued by Plaintiffs. The Ninth Circuit held that it need not resolve the parties’ disagreement as to the appellate standard of review because even under a deferential standard, the district court’s departure from the principle of party presentation was an abuse of discretion. “Out of concern for fairness,” the Ninth Circuit did not reverse but instead vacate and remand for resolution of the party-presented controversy.
Mark M. v. United Behavioral Health, No. 2:18-CV-00018-BSJ, 2020 WL 5259345 (D. Utah Sept. 3, 2020) (J. Bruce S. Jenkins). Plaintiffs, the parents of a minor suffering from mental health illnesses, brought this action under ERISA against the insurer of their employee medical benefit plan, alleging that the insurer wrongfully denied their claims for residential and other treatment for their child. The parties filed cross-motions for summary judgment. The court granted the insurer’s motion and denied Plaintiffs’ motion. The court found that the plan granted the insurer discretionary authority to determine eligibility for benefits, that the insurer substantially complied with ERISA’s claim procedure requirements, and thus the proper standard of review was whether the insurer was arbitrary and capricious. The court recognized that the insurer had a conflict of interest but assigned it “little weight” due to the absence of evidence showing that the conflict affected the claims decisions. On the merits, the court found that the insurer’s decision “was not arbitrary and capricious because it was predicated on a reasoned basis, based on substantial evidence, contained an analysis of the application of the plan language to the facts in the record, and considered the entirety of the information available to the reviewer at the time.”
Pension Benefit Claims
Black v. Pension Benefit Guar. Corp., No. 19-1419, __ F.3d __, 2020 WL 5201400 (6th Cir. Sept. 1, 2020) (Before Circuit Judges Siler, Gibbons, and Nalbandian). See Notable Decision summary above.
Loach v. Boilermaker-Blacksmith Nat’l Pension Tr., No. 119CV00351TAVHBG, 2020 WL 5209536 (E.D. Tenn. Sept. 1, 2020) (Before District Judge Thomas Varlan). Plaintiff John Loach initiated an action against Defendant alleging that he was wrongfully denied pension benefits. Plaintiff became entitled to these benefits as a result of his father’s (“Mr. Loach”) employment and subsequent Retirement Pension with Defendant. Defendant argued that Plaintiff had failed to successfully establish paternity, despite 1) a declaration from Plaintiff’s mother stating that Mr. Loach was Plaintiff’s father and the only man she slept with during the year preceding Plaintiff’s birth, 2) a DNA test reporting 97.6% probability that Plaintiff is related to Mr. Loach’s brother, and 3) a pleading from Tennessee Probate Court identifying Plaintiff as Mr. Loach’s son. Defendants filed two motions to dismiss, while Plaintiff filed a motion for Judgement on the Administrative record. The court dismissed Plaintiff’s 502(a)(3) cause of action, finding it to be duplicative of his claim for benefits under 502(a)(1)(B), as Plaintiff failed to explain why the remedies available under (a)(1)(B) would not make him whole. Simultaneously, the court found that Defendant did abuse its discretion and awarded benefits to Plaintiff under his claim for (a)(1)(B) benefits. It refused Defendant’s request for a remand, finding that a remand would be a “useless formality.”
Beck v. Xcel Energy, Inc., No. 19-CV-1829 (NEB/HB), 2020 WL 5106791 (D. Minn. Aug. 31, 2020) (Judge Brasel). Beck is an employee of Xcel Energy. In 1998, employees of Xcel were given the option to continue with the traditional pension benefit program or switch to a new pension equity program. Beck claims she never elected to change to the new program, and Xcel claims its records indicate she did elect to make the change. Xcel was not able to produce any documents that show Beck’s election of the new plan. It relied on its electronic record of elections which indicates Beck did make the election. Beck sued to clarify her rights to future pension benefits. The court found that Xcel was not required by the DOL record retention requirements to save Beck’s election form. It also determined that Xcel’s decision to place Beck in the new pension program was not arbitrary and capricious because it relied on reasonable evidence to support its decision: Beck had been contributing at the rate for the new pension program, and its electronic records showed she had chosen the new program. Beck’s motion for summary judgment was dismissed and Xcel Energy’s motion for summary judgment was granted.
Pleading Issues & Procedure
Am. Fed’n of Musicians & Employers’ Pension Fund v. Neshoma Orchestra & Singers, Inc., No. 19-1093-CV, __F.3d__, 2020 WL 5240621 (2d Cir. Sept. 3, 2020) (Before: Winter, Walker, and Carney, Circuit Judges). “This appeal presents the questions of (1) whether arbitration was properly initiated by defendant-appellant Neshoma Orchestra and Singers, Inc. (Neshoma) in response to this suit to recover $1.1 million in withdrawal liability by the American Federation of Musicians and Employers’ Pension Fund (Fund) and (2) whether Neshoma’s third-party claim against its union was preempted by the National Labor Relations Act (NLRA).” The court affirmed the district and concluded “that, in the ERISA context, the parties must comply with the arbitration rules specified in their agreement. Here, Neshoma failed to comply with its obligations under the agreed-upon Fund rules to timely initiate arbitration.”
Dixon v. Washington Tr. of First Baptist Church of Fairview, No. 19-2991, __F.App’x__, 2020 WL 5230725 (3d Cir. Sept. 2, 2020) (McKee, Bibas, and Fuentes, Circuit Judges). Multiple church officials stole from the organization for personal profit. The congregation sued the church officials for breach of fiduciary duty under ERISA. The Third Circuit upheld the district court’s dismissal of the ERISA claims because (1) there was no employee benefit plan because there were no applicable employees, and (2) the church members were neither plan participants nor beneficiaries so they lacked statutory standing.
Vlk v. Iron Workers’ Local 25 Vacation Pay Fund, Case No. 19-cv-12963, 2020 WL 5209360 (E.D. Mich. Sep. 1, 2020) (Judge Terrence G. Berg). Plaintiffs Chris Vlk, Richard J. Sawhill, and James Buzzie, Trustees of the Iron Workers’ Local 25 Vacation Pay Fund (“Trustees”), have brought this action seeking declaratory judgment and equitable relief under ERISA §502(a)(3) against Defendants Iron Workers’ Local 25 Vacation Pay Fund (“Fund”). The Trustees seek a declaratory judgment that would require the Fund to amend the Form 990 it filed with the IRS in connection with its 2018 taxes. The Fund has purported to operate as a tax-exempt voluntary employee benefits arrangement (“VEBA”) under Section 501(c)(9) of the Internal Revenue Code, 26 U.S.C. § 501(c)(9). Having this status ensures that earnings on dollars invested by the Fund are considered tax-exempt by the IRS. In 2017, the Board of Trustees directed the Management Trustees’ counsel to perform a comprehensive compliance review of the Fund. As a result of this compliance review, the Management Trustees and their counsel found that there were certain features of the Plan that could compromise the tax-exempt status of the Fund, because the features appeared to violate the requirements for a tax-exempt VEBA that can provide “other benefits.” The court granted the Fund’s motion to dismiss on the grounds that any dispute arising from a stalemate between the Union Trustees and the Management Trustees over a routine tax-filing issue, and any ambiguities in the language of the arbitration provision should be read in favor of arbitration. As such, the court retained jurisdiction over this matter but ordered the parties to seek dispute resolution through a neutral umpire as required under the Plan’s governing documents.
White v. Mancini’s Sleepworld, Inc., Case No. 20-cv-03295 HSG, 2020 WL 5258252 (N.D. Cal Sept. 3, 2020) (Judge Haywood S. Gilliam, Jr.). The court considered whether to set aside defaults entered against two defendants. A three-factor test was considered and analyzed by the court with the court noting that the inquiry “is at bottom an equitable one.” It was determined that the defaults should be set aside as Defendants did not engage in intentional conduct, had meritorious defenses and reopening the default would not prejudice Plaintiff. This is a somewhat colorful opinion as Plaintiff’s attorney missed the deadline to file an opposition to Defendants’ motion to set aside the default in which the “irony was not lost on the Court” and Plaintiff wanted an order preventing an “effort to hide evidence in the future.” Also, the court explained that the challenges presented by COVID-19 are not an excuse for missed deadlines.
Trustees of Plumbers and Steamfitters Local Union No. 22 Joint Apprenticeship Training Trust Fund v. Rossman, No. 19-CV-00414 LJV, 2020 WL 5230908 (W.D.N.Y. Sept. 1, 2020) (Judge Lawrence J. Vilardo). This case involved the failure of a trainee (Rossman) to repay in either cash payments or in-kind credits for his participation in an apprenticeship training program which was funded by contributions from employers who were signatories to the Union’s collective bargaining agreement. Rossman did not appear in the lawsuit and default was entered. The court explained that “[a]lthough a party’s default is ‘deemed to constitute a concession of all well[-]pleaded allegations of liability,’ it ‘is not considered an admission of damages.’” The court declined to enter default judgment against Rossman, because the Trustees (Plaintiff) did not establish that they sought equitable relief. The Second Circuit had not squarely addressed this issue, however, the court relied on cases from the Ninth Circuit which held that “fund trustees may not recover unpaid scholarship monies under ERISA because such damages do not constitute ‘appropriate equitable relief’”. The Trustees had explicitly alleged that their action is one for breach of contract and did not suggest that the relief sought is one which includes particular funds or property in Rossman’s possession. Also, the Trustees did not cite any cases which support that a claim for breach of contract, seeking legal, not equitable, damages is actionable under ERISA. The court held that the Trustees did not establish that they were entitled to judgment as a matter of law and denied their motion for default judgment without prejudice.
Wiedo v. Securian Life Ins. Co., No. 3:19-CV-00097-GFVT, 2020 WL 5219536 (E.D. Ky. Sept. 1, 2020) (Judge Gregory F. Van Tatenhove). Plaintiff filed a motion to transfer to the U.S. District Court in San Francisco, California, in accordance with a forum-selection clause included in the McKesson Corporation Health and Welfare Wrap Plan. The McKesson Plan is administered in the Northern District of California. Following guidance from the Supreme Court in Atlantic Marine Const. Co., Inc., the court recognized that the practical result of a valid, enforceable forum-selection clause is that it should control except in unusual cases. In ERISA cases, this was true if the specified venue was either the district where the plan was administered, where the breach took place, or where a defendant resides or may be found. Shortly after Plaintiff filed this motion to transfer venue, McKesson attempted to unilaterally waive the forum-selection clause through a letter sent to Plaintiff’s counsel. The court rejected this effort because “a party may unilaterally waive a provision [of a contract] in certain circumstances, a party cannot waive a contractual requirement that benefits both sides to the transaction.” Since Plaintiff wanted the transfer, the court inferred there was some benefit Plaintiff sought by enforcing the contract term. The court also found Securian, the insurance company providing the benefit under the McKesson Plan, was bound by the clause because it was “closely related” to the contract. The case was transferred in full.
Withdrawal Liability & Unpaid Contributions
Trustees of Nat’l Elec. Benefit Fund v. K-Bros. Elec., LLC, No. GJH-19-2969, 2020 WL 5250292 (D. Md. Sept. 3, 2020) (Judge George J. Hazel). In this dispute seeking delinquent contributions, the court granted Plaintiffs’ Motion for Default Judgment and entered judgement against Defendant in the amount of $7,991.51.
Iron Workers District Council of Southern Ohio & Vicinity Pension Fund v. Lykins Reinforcing, Inc., No. 3:20-CV-00007, 2020 WL 5250414 (S.D. Ohio Sept. 3, 2020) (Judge Douglas R. Cole). The court determined that the fund can seek relief in this court requiring Lykins to make interim withdrawal liability payments pending the arbitral outcome.
Trustees of Ohio Bricklayers Health & Welfare Fund v. Ohio Bldg. Maint. Leasing, Inc., No. 2:20-CV-1267, 2020 WL 5247940 (S.D. Ohio Sept. 3, 2020) (Judge Algenon L. Marbley). The court adopted the Magistrate Judge’s Report and Recommendation and granted Plaintiffs’ Motion for Default Judgment. This court ordered “Defendants to pay Plaintiffs the requested damages and prejudgment interest in the amount of $11,708.05, and attorneys’ fees and costs in the amount of $2,769.00, for a total of $14,477.05.”
Local Union 513 Pension Fund, et al., v. James Martin Excavating Inc., et al., No. 4:20-CV-00499-JAR, 2020 WL 5230884 (E.D. Mo. Sept. 2, 2020) (Judge John A. Ross). The court granted Plaintiffs’ “Motion for Entry of Partial Default Judgment – Accounting.”
Your ERISA Watch is made possible by the collaboration of the following Kantor & Kantor attorneys: Brent Dorian Brehm, Sarah Demers, Elizabeth Green, Andrew Kantor, Anna Martin, Michelle Roberts, Tim Rozelle, Peter Sessions, Stacy Tucker, and Zoya Yarnykh.