Employee Benefits Law Outline

Employee Benefits Law Cases and Casenotes

Colleen E. Medill, Introduction to Employee Benefits Law: Policy and Practice (Thompson West 2004).

Donovan v. Dillingham:

United States Appellate Court, 1982.

Statement of the Case:

Secretary of Labor brought suit under ERISA against trustees of Union Insurance Trust alleging they had a fiduciary duty under part 4 of Title I of ERISA when employees got health insurance through the organization.

Procedure:

Trial court dismissed for lack of SMJ.

Facts:

Trust was developed to allow employers of small numbers of employees to secure group health insurance at favorable rates, but the trustees claim that there was not an ERISA fiduciary duty because it was not an insurance plan, just a buying and selling of insurance.

Issue:

Whether there is a benefits “plan” recognized under ERISA, so that fiduciary duties exist, when the trustees claim that this was just the sale of insurance, not a “plan.”

Procedural Result:

Remanded for determination of the issue.

Holding:

No judgment.

Reasoning:

A welfare benefits plan requires:

a “plan, fund, or program”

established or maintained
by an employer or an employee organization, or both
for the purpose of providing medical, surgical, hospital care, sickness, accident, disability, death, unemployment, vacation benefits, apprenticeship, training programs, day care centers, scholarship funds, prepaid legal services, or severance benefits
to participants or their beneficiaries

ERISA does not require a formal, written plan, but a plan can be inferred by actions.

Dillingham “Plan” Factors: A “plan, fund, or program” under ERISA is established if, from the surrounding circumstances, a reasonable person:

can ascertain the intended benefits,

a class of beneficiaries,
the source of financing, AND
procedures for receiving benefits.

Additional Points:

Fort Halifax Packing Co. v. Coyne (1987): Supreme Court ruled that “ongoing plan administration” (such as determining eligibility for benefits, calculating benefit amounts, and monitoring plan funding) was another important factor to consider

Musmeci v. Schwegmann Giant Super Markets, Inc.:

United States Appellate Court, 2003.

Procedure:

Trial court ruled that the voucher plan fell under ERISA and the ?s were entitiled to money judgments.

Facts:

Store operated with over 5000 employees and 40 stores, and the owner wanted to give free groceries for life to long term employee retirees, by getting them vouchers per month, out of the company’s general revenue. The business was sold and the recipients were notified that they no longer would get vouchers, then suing on the claim they had a vested pension voucher plan.

Issue:

Whether the admitted “voucher plan” provided to retired employees constituted “retirement income” to which ERISA applied.

Procedural Result:

Reversed for ?.

Holding:

The admitted “voucher plan” provided to retired employees constituted “retirement income” to which ERISA applied.

Reasoning:

Court broadly interprets “income” under the IRC to mean anything that can be valued as currency, and does so in this case.
This plan gave the employees currency to pay for groceries.
This is different from waiting for a seat on a plane, if one was open.
Dillingham Construction does not apply since it is a preemption case.

Nationwide Mutual Insurance Co. v. Darden:

United States Supreme Court, 1992.

Procedure:

Trial court ruled Darden was an independent contractor, and thus not an employee. Appellate court reversed.

Facts:

Darden worked for Nationwide as an insurance salesman paid on commission, and enjoyed an Agent’s Security Compensation Plan that stated he would lose his entitlement to the plan if within a year of his termination sold insurance for a competitor within 25 miles of his old office or got a Nationwide policyholder to cancel a policy. He was eventually fired, started selling insurance himself, was cut off from the pension, and sued, claiming that his benefits had vested and could not be cancelled.

Issue:

Whether Darden, a commission insurance salesman, was an “employee” for the purpose of ERISA.

Procedural Result:

Judgment reversed for ?.

Holding:

Darden, a commission insurance salesman, was an “employee” for the purpose of ERISA, since the definition is based on traditional agency law principles.

Reasoning:

Congress intended for an employee to fall under the conventional “master-servant” understanding of what an employee was, namely considering the hiring party’s right to control the manner and means by which the product is accomplished.

Curtiss-Wright Corp. v. Schoonjongen:

United States Supreme Court, 1995.

Procedure:

District Court ruled that the claim was a valid amendment to the plan, since it stated “The Company.” Appellate court reversed, calling the clause too vague.

Facts:

Curtiss-Wright maintained a postretirement health plan for employees who worked at certain facilities. In 1983, they amended the plan to state that when their old plant closed, the beneficiaries would no longer receive the benefits. They later announced that the ?s' plant was closing, and they were being terminated from the plan.

Issue:

Whether the standard provision in many employer-provided benefit plans stating “The Company reserves the right at any time to amend the plan” sets forth an amendment satisfying ERISA § 402(b)(3), which states that every employee benefit plan must provide a procedure for amending the plan, and identifying those who have authority to amend the plan.

Procedural Result:

Judgment reversed for ?s.

Holding:

The standard provision in many employer-provided benefit plans stating “The Company reserves the right at any time to amend the plan” sets forth an amendment satisfying ERISA § 402(b)(3), which states that every employee benefit plan must provide a procedure for amending the plan, and identifying those who have authority to amend the plan.

Reasoning:

Everyone agrees that ? had the right to amend the clause, and the “company” is a valid person, and “any time” is a valid procedure.
This clause is deceptively simple, as it eliminates tons of other options.

Glocker v. W.R. Grace & Co.:

United States Appellate Court, 1995.

Statement of the Case:

Policy holder’s widow, Mrs. Glocker, is suing the decedent’s former employer and Medicare plan provider, Grace, for failure to pay medical benefits, when Mr. Glocker’s doctor said he needed private nurses to perform custodial type functions for him, until his death from prostate cancer, and for a civil penalty, when Grace failed to provide “the whole policy” upon 16 requests by Mrs. Glocker’s attorney and well over a year in time, only providing it upon the filing of a motion to compel and amending the complaint to include a count for civil penalties under ERISA.

Procedure:

Trial court granted summary judgment on both issues to Grace, claiming “custodial nurses” were not covered by the insurance plan, and she was not prejudiced by the delay.

Facts:

See above.

Issue:

Whether an insurance company should reimburse the policy holder’s widow for medical benefits, when the holder’s doctor said he needed private nurses to perform custodial type functions for him, until his death from prostate cancer, and whether the plan provider should pay a civil penalty, when they failed to provide “the whole policy” upon 16 requests by the policy holder’s attorney and well over a year in time, only providing it upon the filing of a motion to compel and amending the complaint to include a count for civil penalties under ERISA.

Procedural Result:

Judgment affirmed in part, reversed in part, and remanded for determination of the due civil penalty.

Holding:

The insurance company should NOT reimburse the policy holder’s widow for medical benefits, when the holder’s doctor said he needed private nurses to perform custodial type functions for him, since the plan specifically denies coverage for custodial nurses, BUT, the plan provider SHOULD PAY a civil penalty, when they failed to provide “the whole policy” upon 16 requests by the policy holder’s attorney and well over a year in time, only providing it upon the filing of a motion to compel and amending the complaint to include a count for civil penalties under ERISA, since prejudice is merely a factor to consider, not dispositive alone, when deciding whether to fine a plan provider.

Reasoning:

Regarding coverage:

The plan states that no medicare is provided for custodial care, which is still covered as defined in the plan when the nurses are performing medical treatment which can reasonably be expected to substantially improve the individual’s medical condition.
In this case, the nurses helped him with everyday activities, was custodial in nature, and because he was terminally ill, this help was not designed to help him improve his condition, but to comfort him.

Regarding the fine:

Grace failed to provide “the whole policy” upon 16 requests by the policy holder’s attorney and well over a year in time, only providing it upon the filing of a motion to compel and amending the complaint to include a count for civil penalties under ERISA.
No one factor is dispositive in determining whether to grant a civil fine under ERISA, and here, the factors indicate that one should be granted, since the only reason Grace said it couldn’t produce was because they “couldn’t find everything.”
Civil Fine Factors Under ERISA: The fines average between $10 and $30 per day
- Bad Faith
- Prejudice to the plan holder
- Length of delay
- Time and expense incurred in trying to compel production
- Amount needed to suitably punish the plan provider
Excuse from Fine Rule: ERISA 502(c)(1) excuses failure to comply with a request for information if it results “from matters reasonably beyond the control of the administrator.”

Lorenzen v. Employees Retirement Plan of the S & H Co. (7^th Cir. 1990, Posner):

Statement of the Case:

Widow of a deceased S & H employee is suing the company’s ERISA qualified retirement plan for violating its fiduciary duties to her husband and herself, causing a loss of retirement benefits, when her husband stayed on the job past his planned retirement date, at S & H’s request, to finish some loose ends, and then died before his defined benefits pension LUMP SUM distribution commenced, thus leaving his wife with only a Qualified Joint Survivor Annuity, which is 50% of what she would otherwise have inherited from him.

Procedure:

Lower court ruled for wife, for $192,000, but she appealed anyway, for prejudgment interest.

Facts:

Husband desired to take the lump sum, instead of annuity with 50% payments for his wife.
He would have probably reached the date of his true retirement if wife had not unplugged him from life support after his heart attack.

Issue:

Whether a wife is due the lump sum amount her husband planned to take, instead of a 50% QJSA, when he was asked to stay on for a few months and then died.

Procedural Result:

Judgment reversed for Employer.

Holding:

A wife is NOT due the lump sum amount her husband planned to take, instead of a 50% QJSA, when he was asked to stay on for a few months and then died, since they were benefiting from the retirement income getting larger while the husband kept working.

Reasoning:

The husband voluntarily took a risk, not thinking he would die.
The couple was benefiting from the retirement income getting larger while the husband kept working.
There was no duty by the Company to advise the husband that if he died, the wife would only get a QJSA, or to the wife as to the repercussions of unplugging her husband’s life support.

Additional Points:

Spousal Waivers of QJSA and QPSA Requirements (Treasury Department Regs)
- Spouse must consent to the substitution of any nonspouse beneficiary.
- Consent is personal only to that spouse, and is not binding on subsequent spouses.
- Cannot be waive by premarital agreement, either.

Dickerson v. Dickerson (US District Court, Tennessee 1992):

Statement of the Case:

Action is a demand by the divorcing wife, Janet Dickerson, for the immediate alienation and distribution to her of a portion of her former husband’s pension assets under the terms of the circuit court’s divorce decree, when the Southern Electrical Retirement Fund (SERF) contends that such a distribution of funds before the husband reaches the age of disbursement (55 years old – in 2013) violates ERISA § 206(d) and Code § 401(a)(13) and 414(p), and SERF seeks declaratory judgment that the divorce decree does not meet the Qualified Domestic Relations Order (QDRO) requirements.

Procedure:

Circuit court wrote the failing decree.

Facts:

Divorce proceedings divided the marital assets, including the wife being granted $8,000 to be paid from the husband’s pension benefits.
Circuit Court wrote an alleged Qualified Domestic Relations Order, which provided that the money be disbursed from the fund “as soon as administratively possible.” This was taken to mean, and meant to mean, now.

Issue:

Whether the divorce decree is a QDRO within the meaning of ERISA § 206(d), when it entitles the wife to an immediate disbursement to her from her ex-husband’s pension plan, even though he is not at the age of disbursement.

Procedural Result:

Divorce decree is rejected.

Holding:

The divorce decree fails to meet the QDRO requirements within the meaning of ERISA § 206(d), since it entitles the wife to an immediate disbursement to her from her ex-husband’s pension plan, even though he is not at the age of disbursement.

Reasoning:

Rules:
- ERISA contains a spendthrift provision that prohibits alienation or assignment of retirement benefits. § 206(d)(1)
- In order to protect women who may suffer inequities as the economic victims of divorce or separation from their wage earning husbands, the Retirement Equity Act of 1984 creates an express exception to the spendthrift provision, by allowing for a QDRO.
Dickerson is not a plan participant, and is merely an alternate-payee / beneficiary.
Policy:
- If the courts allowed divorce decrees to cause sudden, unanticipated, and immediate withdrawals from pension funds, it would be in contravention of the purposes of ERISA.
QDRO Rule: A domestic relations order is not a “qualified order” if it requires a plan to provide any type of form or benefit, or any option, not otherwise provided under the plan.
- Thus, this is not a QDRO, since it would require disbursement in a way not allowed under the plan.

Additional Points:

QDRO Review Procedures:

Plan administrator is responsible for determining whether a domestic relations order issued by a state court satisfies the statutory requirements for a QDRO.
- Plan administrator is not required to look beyond the face of the order to ascertain its validity.
Administering funds incorrectly would violate both:
- IRC: Since it breaks the anti-alienation rule, it causes plan disqualification.
- ERISA: For the same reasons, but also is a breach of fiduciary duty, and triggering civil actions.
To avoid problems, plan administrators generally have “model” QDROs for alternate-payees to use.

Income and Gift Tax Consequences of QDRO Distributions:

Distribution to an alternate-payee is considered in that person’s gross income, UNLESS it is done as a direct rollover.
If the alternate-payee is a dependent child of the participant, the income is counted as the participant’s own gross income.

Dividing Benefits Under QDRO:

Shared Payment Approach: Used for alimony or child support when participant has already begun to receive payments from the plan.
- QDRO requires an amount to be paid in each installment to the alternate-payee.
Separate Interest Approach: Divides plan benefits as part of a marital property settlement.
- The benefit for the alternate payee is turned into a separate account, which is independent in time and form from the participant.

Central States, Southeast, and Southwest Areas Pension Fund v. Gerber Truck Service, Inc. (7^th Cir. 1989):

Statement of the Case:

Central States, Southeast, and Southwest Areas Pension Fund seeks payment to the fund in accordance to the collective bargaining agreement, when BOTH parties had agreed to only include 3 truck drivers in the multiemployer plan, but executed documents stating that either all drivers or all employees would be included, since that was what was available to them.

Procedure:

District court held that Gerber’s obligations were limited to the Fat’s 3, that Gerber’s obligation ended in 1982 upon oral notice, and that liquidated damages for the fund were not in order.

Facts:

Gerber, a small trucking company, purchased another small trucking company, and assumed its 3 drivers (Fat’s 3), union employees, and its other employees.
Fat’s 3 were close to retirement, and union workers, so Gerber approached the Teamsters Local and asked if he could joint the union’s collective bargaining agreement, and keep just the 3 under the multiemployer pension and welfare plans, since he didn’t want them to lose their retirement – so long as he had no other obligation under the plan. THEY AGREED.
Both Parties Signed Benefit Plan Agreements:
- The collective bargaining agreement that the parties signed specifically said that all “drivers, helpers, dockmen, warehousemen, checkers, powerlift operators, etc., were represented by the union”, AND
- The participation agreement said that fixed sums needed to be contributed each week to the multiemployer plan for EACH “driver.”
The parties continued pursuant to their own agreement, with Gerber only contributing for Fat’s 3 until 1982, when Gerber merely stated it would no longer participate in collective bargaining, and the Union accepted. In 1984 they sent the plan a notice saying they would stop paying.
When Fat’s 3 retired, and sought their money, the plans noticed the problems and audited Gerber, finding that they had 18 employees no contributions were made for. The plans sought those payments under ERISA, and Gerber refused.

Issue:

Whether, when an employer and union submit to pension fund documents on behalf of all employees, understandings and practices that would prevent the enforcement of the writings between employer and union also defeat the fund’s claims.
Whether termination of participation in a fund is valid when notice is not given in writing.
Whether the fund is entitled to liquidated damages and attorney’s fees, in addition to the fund payments, pursuant to ERISA § 502(g)(2).

Procedural Result:

District court reversed in favor of the funds. Remanded to determine whether all employees or just drivers are included in the plan.

Holding:

When an employer and union submit to pension fund documents on behalf of all employees, understandings and practices that would prevent the enforcement of the writings between employer and union DO NOT defeat the fund’s claims, as ERISA § 515 governs, instead of general contract law, and it states that an executed promise to pay a fund cannot be reneged upon due to policy reasons, like creating chaos through underfunding of retirement plans.
Termination of participation in a fund is only valid when notice is given in writing, so termination did not occur here until 1985, and Gerber is responsible for all those contributions.
Also, the fund is entitled to liquidated damages and attorney’s fees, in addition to the fund payments, pursuant to ERISA § 502(g)(2).

Reasoning:

ERISA § 515: “Every employer who is obligated to make contributions to a multiemployer plan under the terms of a plan or collective bargaining agreement shall, to the extent not inconsistent with the law, make such contributions in accordance with the terms and conditions of such plan or agreement.”
“To the extent not inconsistent with the law” is the problematic language, since under basic contract law, the fund’s requests would not be valid, since there was no intent to contract by the parties for what the fund seeks.

HOWEVER:

In multiemployer plans, if some employers do not pay, the other plans have to make up the difference through higher contributions, or give the workers less than promised.
- Trusts have an independent obligation to workers, and the funds cannot be allowed to default.
ERISA’s legislative history makes it clear that the parties should not be allowed to back out of the agreements they signed: “Costs of litigation detract from the ability of plans to formulate or meet funding standards…[so] Federal pension law must permit trustees of plans to recover delinquent contributions efficaciously, and without regard for issues that might arise under labor-management relations law. Sound national pension policy demands that employers who enter into agreements providing for pension contributions not be permitted to repudiate their pension promises.”
Multiemployer Plan Funding Rules:
- If the employer points out a defect in formation of the plan (like fraud or oral promises to disregard the text), it must still keep its promise to the pension plans.
- Pension plans believe that their obligations to employees stem from the terms of the participation agreements, and that employers’ failure to fulfill their promises is irrelevant.
Here, ERISA § 515 prevents a court from giving force to oral understandings between unions and employers that contradict the writings.

Concurring and Dissenting in part:

Enforcement of this holding is impossible, as it is to tough.
ERISA does not repeal basic contract law.
Gerber lived up to his commitment, but was punished anyway.
ALL rules must admit for equitable exception and modification in appropriate cases, so the “tyrrany of theory over reality [does not] bring about obnoxious results.”

Metropolitan Life Insurance Co. v. Massachusetts (US 1985):

Statement of the Case:

Attorney General of MA brought suit for declaratory and injunctive relief against Metropolitan for selling life insurance in MA to health benefit plans which does not provide mental health coverage, when Metropolitan contends that the law does not apply, since ERISA states that it preempts all State law “relating to any employee benefit plans” (§ 514(a)), but the Attorney General contends that it does not preempt the State law, since it provides for an “insurance saving clause (the “Deemer Clause”)” that states ERISA “shall not be construed to exempt or relieve any person from any State law that regulates insurance, banking, or securities” (§ 514(b)(2)(A)).

Procedure:

MA Supreme Court ruled that the § was saved from ERISA preemption as a law regulating insurance.

Facts:

See above.

Issue:

Whether a State statute that requires insurance companies to provide mental health insurance when selling their insurance to health care plans in the State is preempted by ERISA, since ERISA states that it preempts all State law “relating to any employee benefit plans” (§ 514(a)), but provides for an “insurance saving clause (the “Deemer Clause”)” that states ERISA “shall not be construed to exempt or relieve any person from any State law that regulates insurance, banking, or securities” (§ 514(b)(2)(A)).

Procedural Result:

Judgment affirmed for Attorney General.

Holding:

A State statute that requires insurance companies to provide mental health insurance when selling their insurance to health care plans in the State is NOT preempted by ERISA, since ERISA states that it preempts all State law “relating to any employee benefit plans” (§ 514(a)), but provides for an “insurance saving clause (the “Deemer Clause”)” that states ERISA “shall not be construed to exempt or relieve any person from any State law that regulates insurance, banking, or securities” (§ 514(b)(2)(A)). If a state law “regulates insurance,” as mandated benefit laws do, it is not preempted.

Reasoning:

Reason for the statute was to address a threat the MA legislature saw in MA.
Mandated Benefit Statutes regarding insurance have existed in all 50 states for 30 years.
ERISA § 3(1): Plans may self-insure or purchase insurance for their participants (these are “Insured Plans”).
- ERISA does not regulate the substantive content of welfare benefit plans.
- ERISA states that it preempts all State law “relating to any employee benefit plans” (§ 514(a)), but provides for an “insurance saving clause (the “Deemer Clause”)” that states ERISA “shall not be construed to exempt or relieve any person from any State law that regulates insurance, banking, or securities” (§ 514(b)(2)(A)).
Preemption may be either express or implied, and the term “RELATE TO” welfare plans was given broad meaning.
Nonetheless, the insurance saving clause still applies.
- We must presume that congress did not want to regulate areas of traditional state regulation.
- Presumption is against preemption, and we are not inclined to read limitations into federal statutes.
- Mandated benefit laws ARE TRADITIONAL insurance laws.
Whether a Particular Practice Falls within the “Business of Insurance”:
- 1^st: Whether the practice has the effect of transferring or spreading a policyholder’s risk.
- 2^nd: Whether the practice is an integral part of the policy relationship between the insurer and insured.
- 3^rd: Whether the practice is limited to entities within the insurance industry.
All of these are met, so this is an insurance regulation.
If a state law “regulates insurance,” as mandated benefit laws do, it is not preempted.

FMC Corp. v. Holliday (US 1990):

Statement of the Case:

FMC, health care provider, sought declaratory judgment when the daughter of insured was injured in a car accident, the father/plan participant won recovery, FMC’s plan had a subrogation clause requiring reimbursement for the benefits paid when there is a claim recovery against a 3^rd party, but there is a PA law making insurance subrogation clauses by a health care plan illegal. FMC claimed that ERISA preempted the PA law.

Procedure:

District Court and Court of Appeal granted the family’s MSJ.

Facts:

FMC operates a self-insured ERISA health care plan.
It has a subrogation clause requiring reimbursement for the benefits paid when there is a claim recovery against a 3^rd party, but there is a PA law making insurance subrogation clauses by a health care plan illegal.
Daughter of insured was injured in a car accident, the father/plan participant won recovery, and FMC claimed the right to reimbursement.

Issue:

Whether ERISA preempts a PA State law precluding employee welfare benefit plans from exercising insurance-type subrogation rights on a claimant’s tort recovery when the plan is self-insured.

Procedural Result:

Judgment reversed for the insurance company.

Holding:

ERISA does not preempt a PA State law precluding employee welfare benefit plans from exercising insurance-type subrogation rights on a claimant’s tort recovery when the plan is self-insured, since a self insured plan falls under the Deemer Clause, specifically because ERISA states that a State law cannot regulate a health care plan by “deeming it” to really be an insurance provider.

Reasoning:

Summary of Preemption Law Under ERISA:
- ERISA § 514(a): Preemption Law establishes an area of exclusive federal concern for every state law that “relates to” an employee benefit plan governed by ERISA.
- ERISA § 514(b)(2)(A): Savings Clause returns to the State the power to enforce those state laws that “regulate insurance,” except for the deemer clause.
- ERISA § 514(b)(2)(B)): Deemer Clause states that an employee benefit plan under ERISA shall not be “deemed” an insurance company, insurer, or engaged in the business of insurance for purposes of state laws “purporting to regulate” insurance companies or insurance contracts.
This state law meets the preemption law, then the savings clause, but also falls under the DEEMER CLAUSE.
- 1) State laws directed towards the Employee Benefit Plans are preempted because they relate to an employee benefit plan, and are not “saved” because they do not regulate insurance.
- 2) Employee Benefit Plans that are insured are subject to indirect state insurance regulation.
Dissent (Stevens):
- Court’s construction of the § draws a line that Congress would have made if it really wanted it in there.
- If Congress wanted this, they could have made the distinction, and not have had a “savings clause.”

American Medical Security, Inc. v. Bartlett (4^th Cir. 1997):

Statement of the Case:

Maryland employers, their Stop-Loss Insurance Company, and the Plan Administrator field for declaratory judgment that a Maryland law stating that the minimum attachment point for stop-loss insurance plans would be $10,000 violated ERISA, since the law’s stated purpose was to impose the state’s mandated health benefits on self-funded ERISA plans when they purchase certain types of stop-loss insurance that were the equivalent of making them insured health care plans (which would fall under ERISA).

Procedure:

District court granted SMJ for the Insurance Company and plan providers.

Facts:

MD employers that sponsor self-insured employee health benefit plans purchased stop-loss incurance from United Wisconsin Life, and hired AMS to administrate their plans.
The MD State § requires 28 mandated benefits, and the self-insured plans did not provide all of these, but weren’t required to under ERISA.
The Stop-Loss Insurance companies cut a deal with the employers’ plans so that the attachment point could be dropped really low.
MD then, frustrated, created a law stating that the minimum attachment point for stop-loss insurance plans would be $10,000.

Issue:

Whether ERISA preempts a MD insurance regulation that fixes the minimum attachment point for a Stop-Loss Insurance policy issued to self-funded employee benefit plans covered by ERISA, when the regulation is designed to prevent insurers and self-funded employee benefit plans from depriving plan participants and beneficiaries of state mandated health benefits.

Procedural Result:

Judgment affirmed for the plan providers and insurance companies.

Holding:

ERISA preempts an insurance regulation that fixes the minimum attachment point for a Stop-Loss Insurance policy issued to self-funded employee benefit plans covered by ERISA, specifically because the regulation is designed to prevent insurers and self-funded employee benefit plans from depriving plan participants and beneficiaries of state mandated health benefits by imposing the state’s mandated health benefits on self-funded ERISA plans when they purchase certain types of stop-loss insurance, thus violating the DEEMER CLAUSE.

Reasoning:

Stop-Loss Insurance provides protection to the plan itself, not the participants or beneficiaries, for claims that go past the attachment point.
- Specific Attachment Points – define the level of benefits paid to individual beneficiaries beyond which the insurance company will indemnify the plan.
- Aggregate Attachment Points – define the total amount of benefits paid to all participants or beneficiaries beyond which the insurance company will indemnify the plan.
By absorbing the risks involved with using Stop-Loss Insurance, the plans are allowed to circumvent the State health benefit requirements.
Here, the complications of the 2^nd and 3^rd Metropolitan Life Test factors, together with the DEEMER CLAUSE provide for the holding that the State’s regulation of stop-loss insurance should be barred by ERISA.
- While the state’s fear is udnderstandable, this is an area for Congress to change.
The State’s argument is flawed because:
- It overlooks the risks of liability if the stop-loss insurance company becomes involvement still assumed by the employer, OR
- The fact that unless the employer can pay up to the attachment point, the insurance company will not pay its part.

Additional Points:

“Lasering” Individual Health Care Plan Participants under Stop-Loss Policies:

Lasering: Technique used by the insurance issuer policies to reduce the cost of coverage for high risk participants, by the carrier carving out an exception to the employer’s coverage for that particular person.
- Employer must pay this person’s bills alone.
- Person must be charged the same premium by the employer, under ERISA § 702.

Regulation of Multiple Employer Welfare Benefit Plans (MEWAs) Under State Insurance Laws and ERISA:

MEWA: An employee welfare benefit plan for more than one employer.
- Different from multiemployer plan because there is no collective bargaining agreement.
- Often used by industry trade associations to offer health care, but the plans often collapse.
- ERISA § 516(b)(6) creates preemption rules for these:
  - If fully insured, the MEWA is only governed by state insurance laws that govern financial standards.
  - If not fully insured, the plan is subject to ERISA Title I and applicable state insurance laws that are consistent with ERISA.

Holford v. Exhibit Design Consultants (MI USDC 2002):

Statement of the Case:

Holford, terminated plan participant, seeks actual and statutory damages, and legal fees, alleging that her Company violated ERISA § 606 by failing to provide her with written notice of her right to continue health coverage upon termination of her employment under COBRA, since the notice was only in the Employee Handbook.

Issue:

Whether a terminated employee’s Company violated ERISA § 606 by failing to provide her with written notice of her right to continue health coverage upon termination of her employment under COBRA, since the notice was only in the Employee Handbook.

Procedural Result:

Judgment for the Participant.

Holding:

Terminated Employee’s Company violated ERISA § 606 by failing to provide her with written notice of her right to continue health coverage upon termination of her employment under COBRA, since the notice was only in the Employee Handbook, thus entitling her to actual damage payment of medical expenses, punitive statutory damages, and attorney’s fees.

Reasoning:

COBRA Litigation Rules:
- Notification requirements of COBRA are clear that an employer must notify plan administrator of a termination within 30 days (606(a)(2)).
- Administrator then has 14 days to notify the beneficiary of her right to continue coverage under COBRA, and the participant has 60 days to accept (606(a)(4)).
- Notice Under COBRA:
  - § gives no direction on what constitutes notice.
  - Mailed notice to the employee’s last known address is deemed “Good Faith Compliance” with COBRA’s notification requirement.
Defendant’s claims that this is a windfall are unpersuasive because insurance is a contract where premiums are paid, and there is no duty to mitigate.
Notice was inadequate, since it was ambiguous and failed to explain the Terms of:
- Payment
- Insurability
- Coverage
Thus, the Participant is entitled to:
- Actual damage payment of medical expenses
- Punitive statutory damages (can be raised or lowered, and lowered to $55/day/participant)
- Attorney’s fees and costs.

McGann v. H & H Music Co. (US Appellate Ct. 1991):

Statement of the Case:

McGann, H & H Employee, filed suit under ERISA § 510 against H & H, Brook Mays Music, and General American Life Insurance Company, the defendants, alleging that they unlawfully discriminated against him by reducing medical plan benefits available to H & H employees for the treatment of AIDS.

Procedure:

District court granted ?’s MSJ, on the ground that the employer has an absolute right to alter the terms of medical coverage available to plan beneficiaries, regardless of their intent.

Facts:

McGann discovered he had AIDS in 1987, and soon afterwards sought medical coverage to treat it.
In March 1988 he met with company officials, and they discussed his illness and coverage, which provided lifetime medical benefits up to $ 1 million for all employees.
In July 1988, the company informed their employees that their medical coverage was being changed in a few ways, but the main change was that AIDS medical assistance was only covered up to $5,000 for the whole lifetime. No other illness was limited.
H & H also became self-insured under the new plan…
By January 1990, McGann had exhausted his total coverage for AIDS.

Issue:

Whether the alteration of an employee welfare benefits plan to reduce benefits available to AIDS victims violates ERISA § 510, when the change was prompted by the company finding out that one of its employees had AIDS.

Procedural Result:

Judgment affirmed for the Companies.

Holding:

Under ERISA § 510, discrimination is only illegal if it is motivated by a desire to retaliate against an employee for taking advantage of benefits, or to deprive an employee of an existing right to which he may become entitled, neither of which occurred in this case.

Reasoning:

ERISA § 510: It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the employee benefit plan…or for the purpose of interfering with the attainment of any right to which the participant may become entitled to under the plan.
? contends that the reductions in coverage were made because of the knowledge gained through dealing with McGann, since he was the only beneficiary with AIDS, but it was intended to target anyone with AIDS, not just him.
In order for § 510 to apply, ? must show, which he did not do, that the ? had a specific intent to interfere with a right to which he may become entitled.
- This is not possible:
  - The reduction applied to ALL employees with AIDS,
  - Welfare benefits are not something that VESTS into an entitlement, and McGann has not shown that there was any PROMISE that the benefits would not be eliminated.
    - In fact, the plan reserves the right to amendment.
Law:
- ERISA does not require vesting of medical benefits.
- § 510 relates to discriminatory conduct directed against individuals, not actions involving the plan in general.
  - An overly literal interpretation of the language would make any partial termination illegal.
- ERISA does not mandate that employers provide any particular benefits, and does not proscribe discrimination of those employee benefits.
- Absent a federal or non-preempted state law violation, a federal court may not modify a substantive provision of a pension plan.
Policy:
- Automatic vesting of welfare benefits was rejected by Congress because the costs of such plans are subject to fluctuation and unpredictable variables.
- Unstable welfare variables not present in pensions prevent accurate predictions of future needs and costs.

Additional Points:

Constraints on the Settlor Function Doctrine Imposed by Other Federal Laws:

Other federal laws, since not preempted by ERISA, may constrain the employer’s ability to dictate the terms and conditions of the welfare plans.
Americans with Disabilities Act (adopted after this case, in 1992) is one such law.

Cases where the Courts ruled against the fiduciaries for violating their duty of loyalty:

Brock v. Hendershott (6^th Cir. 1988): High ranking union officials used their influence in the union to demand dental plan benefits from various employers and proposed a group they had personally started as the choice for these dental plans.

Donovan v. Mezzola (9^th Cir. 1983): Union benefits fiduciaries authorized making loans from the pension fund to the convalescents fund that they also were fiduciaries for at below market interest rates and on terms that were not commercially reasonable.

GIW Industries v. Trevor, Stewart, Burton & Jacobsen, Inc. (11^th Cir. 1980): Investment decision violated both the duty of prudence and duty of prudent diversification when 70% of the assets were put into US government bonds with a single maturity date, not anticipating future withdrawals.

The Duty to Follow (or Disregard) Plan Terms – ERISA 404(a)(1)(D): This duty arises in many areas:

Marshall v. Teamsters Local Pension Trust Fund (EDNY 1978): Court found a violation of this 404(a)(1)(D) when the trustees failed to follow the plan’s requirement that they must make a specific determination that any single investment exceeding 25% of the total value of the plan’s assets was prudent.

Herman v. NationsBank Trust Co.: Court found that the trustee of an employee stock ownership plan could not blindly follow the plan’s requirement that the trustee must vote unallocated shares of company stock in the same proportion as participants voted their allocated shares, rather finding that the Duty of Prudence should be applied.

Best v. Cyrus (6^th Cir. 2002): Plan trustee also served as Treasurer of the Plan’s sponsoring employer. Employer was required to contribute 15.5% of the participants’ annual salaries to the plan, but allowed loans from this money. When the employer hit financial hardship, the trustee used the loan repayments for covering operating and payroll expenses of the employer, leading the trustee to be sued for fiduciary breach of duty for not reporting what he did, and the 6^th Circuit held that the duties went beyond what was in the plan document, finding him guilty.

Duty to Inform:

Eddy v. Colonial Life Insurance (DC Cir. 1990): Participant was diagnosed as HIV positive and his health benefits were cancelled a week before his surgery. When trying to convert his policy to a private one, he was mistakenly told it could not be done, claiming he worded his question in a way they did not understand. The Court ruled for the participant saying it did not matter how he phrased his question, the participant was entitled to being informed.

Barrs v. Lockheed Martin (1st Cir. 2002): Divorce order only spoke about one of two life insurance policies when imposing a duty on Lockheed to inform ex-wife of the participant’s termination, and the other one never reached her because she moved and they mailed it to her last address. Court held there was no duty to find her or tell her the policy did not apply to her.

Berlin v. Michigan Bell Telephone Co. (6^th Cir. 1988): Company offered 1^st round of severance packages, and it became clear people were holding out, so the company made misrepresentations that it would be the only round – which proved untrue as several people were screwed when a 2^nd round opened. Court ruled that when a “serious consideration” was given to potentially do something, the plan administrator then has an affirmative duty to not make misrepresentations.

Lowen v. Tower Asset Management, Inc. (2d Cir. 1987):

3 individual ?s owned an investment management company and registered securities broker-dealer. They invested investment management company money in risky security ventures through their other company and lost a ton.
Court found ERISA 406(b)(1) prohibited the investment of plan assets into their other company and were found jointly and severally liable.

Commissioner v. Keystone Consolidated Industries, Inc. (US 1993): Employer contributed unencumbered real property to a defined benefit plan to satisfy the employer’s minimum funding obligation under Part III, Title I of ERISA.

Held: Because the employer’s property was contributed to the plan in satisfaction of the employer’s legal obligation under the minimum funding rules, it was a “prohibited sale or exchange under Code 4975.
- This would NOT have been invalid IF the employer did not have an outstanding funding obligation, and was making a discretionary decision.
Note:
- Today, the most common form of “voluntary” noncash contribution is qualifying employer securities, often in the form of matching 401(k) contributions, or discretionary contributions to a profit sharing plan…since they are exempt from ERISA minimum funding requirements.

Lockheed Corporation v. Spink (US 1996):

Statement of the Case:

Spink, a retired Lockheed employee, sued for monetary, declaratory, and injunctive relief against Lockheed for violating its duty of care and the prohibited transactions ERISA rules, under the theory that the payment of benefits through an early retirement program violate ERISA as a “prohibited transaction” when the retirement program is conditioned on the participant’s release of any employment-related claims.

Procedure:

District court dismissed it, and the 9^th Circuit held that ERISA 406(a)(1)(D) prohibited a fiduciary from causing a plan to engage in a transaction that transfers plan assets to a party in interest or involves the use of plan assets for the benefit of a party in interest.

Issue:

Whether the payment of benefits through an early retirement program violate ERISA as a “prohibited transaction” when the retirement program is conditioned on the participant’s release of any employment-related claims.

Procedural Result:

Claim dismissed.

Holding:

Because a plan sponsor who amends a plan is not, by definition, acting as a fiduciary, payment of benefits to an amended plan, regardless of what condition the plan requires of an employee in return for those benefits, does not constitute a prohibited transaction.

Reasoning:

ERISA does not require the establishment of employee benefits, nor what type of benefits they had to provide if they did so.
ERISA DOES, though, seek to ensure that employees will not be left empty handed once the employers guaranteed them certain benefits.
§ 406 applies to keeping fiduciaries from getting involved in certain types of business deals, so it is integral to determine whether the plan provider and amender was functioning as a fiduciary.
Rule: Plan sponsor who alters the plan is NOT a fiduciary.
Thus, Lockheed was acting as a settlor, and not a fiduciary when it amended the plan, so these fiduciary provisions are not triggered.
Additionally:
- The execution of release claims against he employer is functionally no difference from asking the employee to perform certain acts in return for benefits, which is legal.

Additional Points:

Hughes Aircraft Co v. Jacobson (US 1999): Employer amended the benefit formula of its pension plan, and the employees claimed it violated ERISA’s fiduciary duties under § 406. The Supreme Court rejected this though, based directly on Spink’s decision that plan sponsors who alter the terms of a plan do not fall into the category of fiduciaries.

Varity Corporation v. Howe (US 1996):

Statement of the Case:

A group of misled beneficiaries of Varity Corporation’s welfare benefits plan sued the administrator of the plan, ALSO their employer Varity Corporation, claiming that the administrator, through trickery, led them to withdraw from their old plan and move to a new one, leading to the forfeiture of their benefits when the new plan was intentionally bankrupted.

Procedure:

District Court found that Varity, acting as ERISA fiduciaries, had harmed plan beneficiaries through deliberate deception, which gave the employees to right to relief, including the reinstatement to the old plan. The Court of Appeals affirmed.

Facts:

Employees all were participants in, and beneficiaries of, the ERISA compliant employee welfare benefit plan, that the employer administered itself.
When certain divisions started losing money, Varity decided to transfer them to a separately incorporated subsidiary, Massey Combines.
Varity also persuaded the employees of the failing divisions to change employers and benefit plans, conveying the message that employees' benefits would remain secure when they transferred.
- This “information session” assured them that it was the same exact thing as their current plan, and that their benefits would be completely protected, like the employees working in the old company.
Ultimately, the employees lost their non-pension benefits, and filed an action under ERISA, claiming that Varity, through trickery, had led them to withdraw from their old plan and forfeit their benefits.

Issue:

Whether the Varity Corporation acted in its capacity as an ERISA fiduciary when it significantly and deliberately misled the beneficiaries.
Whether Varity violates the fiduciary obligations that ERISA imposes upon plan administrators.
Whether ERISA authorizes private lawsuits if these claims are found to be true.

Procedural Result:

Judgments affirmed for the plan participants.

Holding:

The factual context in which the statements were made, combined with the plan-related nature of the activity, engaged in by those who had plan-related authority to do so, together provide sufficient support to conclude Varity was acting as a fiduciary.
Varity violated the fiduciary obligations that ERISA imposes upon plan administrators, by knowingly and significantly deceiving the employees as to the financial viability of the new entity and the future of the new entity's benefits plan, in order to save the employer money at the expense of the beneficiaries.
Whether ERISA authorizes private lawsuits if these claims are found to be true is discussed in a later chapter…

Reasoning:

ERISA’s goals: Protect employee pensions and other benefits by:
- providing insurance (§ 4001)
- specifying certain plan characteristics in detail (§§ 201-211)
- setting forth certain general fiduciary duties applicable to the management of both pension and non-pension benefit plans (§ 404)
The law of trusts is helpful in interpreting and determining ERISA’s fiduciary duties, but is only a starting point:

Whether the Varity Corporation acted in its capacity as an ERISA fiduciary when it significantly and deliberately misled the beneficiaries:

1. § 3(21)(A): A person is a fiduciary with respect to a plan to the extent that he exercises any discretionary authority or discretionary control regarding management of the plan, OR has any discretionary authority or responsibility in the plan administration.
2. What are “Administrative Duties”?
  1. Plan administration includes the activities that are “ordinary and natural means” of achieving the objective of the plan.
3. Under the specific factual circumstances, Varity acted in its capacity as an ERISA fiduciary when it significantly and deliberately misled the plan's beneficiaries, thereby violating their fiduciary obligations imposed by ERISA
  1. They gave everyone pamphlets stating that “there will be no change in your benefits through” this transfer.
  2. The Company completely planned to screw these people over, and acted as a plan administrator through having this detailed information lecture regarding the rules and benefits of the Plan.
4. ERISA's general purpose of protecting beneficiaries' interests also favors a reading that provides a remedy.

Whether Varity violates the fiduciary obligations that ERISA imposes upon plan administrators.

1. ERISA § 404(a): Requires a “fiduciary” to discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries.
2. Varity violated the fiduciary obligations imposed upon the plan's administrator by ERISA, by knowingly and significantly deceiving the employees as to the financial viability of the new entity and the future of the new entity's benefits plan, in order to save the employer money at the expense of the beneficiaries.

Dissent (Thomas, O’Connor, Scalia):

Congress understood that every business decision an employer makes can have an adverse impact on the plan, and a business could not be run properly if every business decision had to be made with the best interests of the plan participants.
The STATUTORY LANGUAGE, not the law of trusts, should govern.
These communications were not plan administration, as an employer will say anything to its employees to stop panic.
No ERISA provision requires an employer to keep plan participants abreast of the sponsor’s future intentions regarding termination or reduction of benefits.

Pegram v. Herdich (US 2000):

Statement of the Case:

HMO user, Herdich, sued her HMO, Carle, and her HMO employee doctor, Pegram, for state-law malpractice and breach of fiduciary duty under ERISA when the doctor found a lump in her abdomen, but in order to save money made her wait 8 days and travel 50 miles for an ultrasound, since the HMO had a policy of financially rewarding doctors who kept the cost of care down.

Procedure:

District Court granted Carle's motion to dismiss on the ground that Carle was not acting as an ERISA fiduciary. The Court of Appeals reversed the dismissal.

Facts:

Herdrich, after feeling an unusual pain in her stomach, was examined by Pegram, a physician affiliated with Carle.
- Carle functions as a health maintenance organization (HMO) organized for profit.
Pegram then required Herdrich to wait eight days for an ultrasound of her inflamed abdomen, which was to be performed at a facility staffed by Carle more than 50 miles away.
During that period, Herdrich's appendix ruptured.
Herdrich sued Carle, including Pegram, in State court for medical malpractice and two counts of fraud.
Carle and Pegram, under ERISA, removed the case to federal court.
Ultimately, Herdrich was only able to pursue one fraud count, which was amended to allege that Carle's HMO organization provisions rewarding its physician owners for limiting medical care, entailed an inherent or anticipatory breach of an ERISA fiduciary duty, because the terms create an incentive to make decisions in the physicians' self-interest, rather than the plan participants' exclusive interests.

Issue:

Whether treatment decisions made by an HMO, acting through its physician employees, are fiduciary acts within the meaning of the ERISA.

Procedural Result:

Appellate court reversed.

Holding:

Treatment decisions made by an HMO, acting through its physician employees, are NOT fiduciary acts within the meaning of the ERISA, as holding otherwise, the Court would be acting contrary to the congressional policy of allowing HMO organizations if it were to entertain an ERISA fiduciary claim, allowing wholesale attacks on existing HMOs solely because of their structure

Reasoning:

ERISA § 409: Any person who breaches fiduciary duties under ERISA shall be liable to restore the injured party to whole, paying equitable or remedial relief.
HMOs are constructed in a way that requires giving less treatment, but Carle had a program for reducing the cost by offering the doctors financial incentives for keeping them down.
- No HMO organization could survive without some incentive connecting physician reward with treatment rationing.
- Herdrich's remedy -- return of profit to the plan for the participants' benefit -- would be nothing less than elimination of the for-profit HMO.
Mixed treatment and eligibility decisions to delay medical treatment by sending a patient to a HMO owned facility, with adverse consequences, made by a health maintenance organization through its physician, are not fiduciary decisions under ERISA.
- Eligibility and treatment decisions are made by the same person, and cannot be untangled because they are both judgment calls.
- Thus, it is not possible to separate a fiduciary thought from a doctor’s thought.
Thus, Herdrich did not state an ERISA claim.

Metropolitan Life Insurance v. Taylor (US 1987):

Statement of the Case:

Taylor, fired General Motors (GM) employee, sued GM and Metropolitan Life, the plan insurer, for compensatory damages for money contractually owed, mental anguish for this contract breach, immediate reimplementation of his benefits and insurance, wrongful termination, and wrongful failure to promote him, BUT GM and Metropolitan removed to federal court alleging federal question jurisdiction over the benefits claims through ERISA, and pendent jurisdiction over the other claims.

Procedure:

Trial court found the case properly removeable and granted GM’s MSJ. Appellate court found that only state law causes of action were made, and the only federal part was a federal defense of preemption, and based on the well-pled complaint rule, a federal defense is not enough for removal.

Facts:

Taylor was injured in a job-related car accident in 1961, and went back to GM when he was ruled to no longer be disabled.
He worked at GM between 1959 and 1980.
In the midst of a messy divorce, he left work because of severe emotional problems, and, upon being examined by a phychologist, was ruled emotionally unable to work.
6 weeks later, the psychologist said he was ready to go back, but Taylor refused.
GM then had an in-house physicial check him, ruled he was mentally fit, and when Taylor refused to go back to work, he was fired.

Issue:

Whether state common law claims are not only preempted by ERISA, but also displaced by ERISA’s § 502(a)(1)(B) civil enforcement provision to the extent that complaints filed in state courts pleading state law claims are removable to federal court.

Procedural Result:

Appellate court reversed for GM.

Holding:

State common law claims are not only preempted by ERISA, but are also displaced by ERISA’s § 502(a)(1)(B) civil enforcement provision to the extent that complaints filed in state courts pleading state law claims are removable to federal court, since they were meant to be necessarily federal in nature.

Reasoning:

These state common law contract and tort claims are preempted by ERISA § 514(a) because they “related to an employee benefit plan.”
The other claim is as a suit by a beneficiary to recover benefits from a covered plan, which falls directly under ERISA § 502(a)(1)(B), which provides an exclusive federal cause of action for resolution of these disputes.
Preemption Rules:
- Federal preemption is normally a defense to the ?'s suit, and is not enough for removal, BUT Congress may so completely preempt an area that any complaint in that area is necessarily federal in character.
  - Ex. § 301 of the Labor Management Relations Act states that it is so powerful that it “displaces” any state cause of action.
- Supreme Court ruled that ERISA preemption does not make a claim arise under federal law, BUT said that if it arose under ERISA § 502, it would.
This complaint only raises STATE causes of action, BUT:
- § 502(f): District courts have jurisdiction here based on § 502(a).
- § 502(a), Conference Report: All actions in Federal or State court are to be regarded as they would be if brought under the LMRA § 301.
- LMRA § 301 states that it displaces State causes of action, SO:
This common law action was both preempted by § 514(a) and displaced by the civil enforcement provision of § 502(a).

Firestone Tire & Rubber Co. v. Bruch (US 1989):

Statement of the Case:

Six Firestone employees who were rehired by the new company after Firestone was sold sought severance pay under their Firestone termination pay plan, and some sought information from Firestone regarding their benefits pursuant to the ERISA disclosure provisions (104, 105), subsequently changing this to a class action and claiming severance because the sale should be seen as a “reduction in workforce,” which would make severance appropriate.

Procedure:

Trial court granted Firestone’s MSJ. Appellate court reversed saying that denial of benefits should be judged under the arbitrary and capricious standard.

Facts:

Firestone sold 5 plants, and a new company took them over.
Firestone had 3 pension and welfare plans at the time of sale, which were all governed by ERISA, although Firestone was unaware of this at that time.

Issue:

Whether de novo is the appropriate standard of review of benefit determinations by fiduciaries or plan administrators under ERISA.

Procedural Result:

Judgment for the COURTS.

Holding:

De novo is the appropriate standard of review of benefit denials by fiduciaries or plan administrators under ERISA, regardless of whether funded or unfunded, since the common law of trusts (de novo) is the basis for ERISA law, NOT the Labor Management Relations Act (arbitrary and capricious).

Reasoning:

ERISA § 502(a)(1)(B) does not set out a standard of review.
Comparison between the LRMA and ERISA is bad, since the former does not allow for judicial review of LRMA trustees, BUT ERISA expressly authorizes challenges of this type in 502(a) and (f).
ERISA abounds with trust law, and the trustee’s determinations should be questioned.
The extent and duties of the trustee is determined by the terms of the trust as the court may interpret them!!!!
Hence, DE NOVO standard.

Massachusetts Mutual Life Insurance Co. v. Russell (US 1985):

Statement of the Case:

Russell, injured health plan beneficiary, sought compensatory or punitive damages caused by improper or untimely processing of benefit claims under ERISA § 502(a) for relief under § 409(a), when her claim for benefits to treat a psychosomatic disability with physical manifestations rather than an orthopedic illness were initially rejected, and then later reinstated upon appeal and paid in full.

Procedure:

District court granted the Company MSJ on the grounds that ERISA bars any state law contractual damage claims.

Appellate court ruled that ERISA was preempted, BUT § 409(a) fiduciary duty provision was violated through the Plan not processing the claim in good faith and fair and diligent manner, and could be asserted by a plan beneficiary under § 502(a)(2).

Facts:

Woman’s claim for surgery was paid, and she then did not want to go back to work under the claim that she suffered from a psychosomatic disability with physical manifestations rather than an orthopedic illness.
This claim was rejected initially, and only restored a month later upon review, and 3 days later the benefits were paid in full.

Issue:

Whether, under ERISA, a fiduciary to an employee benefit plan may be held personally liable to a plan participant or beneficiary for extra-contractual compensatory or punitive damages caused by improper or untimely processing of benefit claims.

Procedural Result:

Judgment of appellate court reversed for the Insurance Company.

Holding:

Under ERISA, a fiduciary to an employee benefit plan MAY NOT be held personally liable to a plan participant or beneficiary for extra-contractual compensatory or punitive damages caused by improper or untimely processing of benefit claims.

Reasoning:

§ 409(a): Plan fiduciary is personally liable for, and must make good to the plan, any losses that result from his breach of fiduciary duty, including:
- plan losses due to a breach,
- plan assets lost due to a breach, or
- appropriate equitable or remedial relief
§ 502(a): Civil action may be brought by a participant or beneficiary to recover benefits due to him under the terms of the plan. OR clarify his rights to future benefits under the terms of the plan.
Here, looking only at “equitable or remedial relief” being available, without seeing that this is qualified by “TO THE PLAN,” is using the Blue Pencil Method of Statutory Interpretation, and is giving a misleading idea of what the statute says.
The goal of ERISA is to protect the whole plan, not give remedies to individual people.
§ 502(a) does NOT mention any of these possible compensatory or punitive damages, so they should not be allowed.
Cort v. Ash Implied Remedies Test: In order for remedies to be implied in a statute, they must meet the 4 prongs:

Injured party is a member of the class meant to be protected (met!)

No state law impediment to implying a remedy (met!)
Legislative intent (NOT MET!)
1. These remedies were taken out of the legislation, as is shown through the history.
Consistency with the legislative scheme (NOT MET!)
1. Because there are specific remedies allowed in the statute, extra ones should not be allowed.
2. Inclusion of Remedies = Exclusion of Non-included Remedies

Dissent:

- The real issue is whether “appropriate relief” includes extra-contractual damages in order to grant “equitable or remedial relief.”
- The legislative history shows that fiduciary standards in § 404(a) were supposed to be understood as they were in the law of trusts – where the fiduciaries owe strict duties directly to the beneficiaries!

Additional Points:

Significance of Russell – The Russell Rule is the Majority Rule:

Federal courts have consistently ruled that compensatory damages are not available under EITHER § 502(a) or 502(3) of ERISA, showing that Russell’s dicta was adopted by the courts.

Comparing Remedies between § 409(a) and 502(a)(3):

409(a): Breaching fiduciary must pay monetary damages for losses suffered by the plan, and restore all ill-gotten profits to the plan.
- These are only available to the plan itself.
502(a)(3): A breaching fiduciary is limited to injunctive or “other appropriate equitable relief.”
- Individual plan participants who suffer a personal financial loss due to a fiduciary’s breach use this section.

Punitive Damages Awards and ERISA Public Policies:

Available under the common law of trusts against a breaching fiduciary.
In Russell, the Court did not answer weather a plan might recover punitive damages against a breaching fiduciary under § 409(a).

Donovan v. Bierwirth (2^nd Cir. 1985):

Statement of the Case:

The Plan is suing its Trustees for a breach of fiduciary duty seeking “loss[es]” incurred under § 409(a), despite the fact that the when the fiduciary trustees sold the stock that they had violated the fiduciary duty by purchasing, they ended up making over $13 million.

Procedure:

District court dismissed the complaint because they did not find the plan had a “loss.”

Facts:

Trustees of a corporation bought over a million shares of one company’s stock in order to stop another corporation from getting a controlling share of that stock.
The reason they did this was because the trustees personally were high ranking officials of that same company, and did not want to loose the controlling interest!
The stock value went really high, but then fell back down to only $23/share.
They then sold the stock, and made $13 million on it.

Issue:

Whether there can be a “loss” within the meaning of ERISA § 409(a) when the plan actually makes money through a breach of fiduciary duty by trustees.

Procedural Result:

Judgment reversed for the Plan.

Holding:

There can be a “loss” within the meaning of ERISA § 409(a) when the plan actually makes money through a breach of fiduciary duty by trustees, because “loss” should be measured by the value of restoring the plan beneficiaries to the position they would have occupied but for the breach of fiduciary duty, not just by a net loss or gain.

Reasoning:

Congress intended to provide the courts with broad remedies to protect the interests of participants and beneficiaries.
Loss Test:
- Comparing ERISA recovery to the law of trusts, the way of calculating loss is to “restore the trust beneficiaries to the position they would have occupied but for the breach of trust.
- The trial court should have discretion to fix a reasonable time at which the actual performance of the improper investment should be measured, and compared with a simulated earnings performance they would have gotten but for the breach.
Here:
- The price at the date of sale should be compared with the earnings that would have been realized through an alternative investment over the same time.

Additional Points:

California Iron Field Pension Trust v. Loomis Sayles Co. (9^th Cir. 2001): Court ruled that when an investment decision is imprudent because of an excessive percentage of plan funds being used to buy the same stock, the loss should be derived solely from measuring the excess that was invested, not the whole thing.

Breach of Fiduciary Duty and Disgorgement of Profits:

Disgorgement: Recovery of the fiduciaries’ profits made by misuse of the plan’s assets.
“Disgorgement” is a remedy under § 409(a):
Leigh v. Engle (7^th Cir. 1984):
- If ERISA fiduciaries breach their duties by risking trust assets for their own purposes, beneficiaries may recover the fiduciaries profits made by misuse of the plan’s assets.

Losses in Defined Benefit Plans with a Funding Surplus:

Harley v. MN Mining and Manufacturing Co. (8^th Cir. 2002): Hedge fund went bankrupt, causing a loss of $20 million to the plan, BUT the plan still maintained a positive funding surplus.

Court ruled there was NO concrete injury, so there was no Article III Constitutional standing!!!
This conflicts with several other circuit decisions…

Proof of Causal Connection:

Plaintiff must prove a causal connection between either:
- The breach of fiduciary duty and the losses incurred by the plan, OR
- The breach of fiduciary duty and ill-gotten profits obtained by the fiduciaries through the use of plan assets.
Wsol v. Fiduciary Management Associates, Inc. (7^th Cir. 2001): Court ruled that neither damages nor disgorgement is available as a remedy when the breach of fiduciary duty did not result in a loss to a pension plan, and did not produce a profit for the offending parties through the use of plan assets.
- Basically, if no profits are gained, or losses incurred, there is no remedy.

Mertens v. Hewitt Associates (US 1993):

Statement of the Case:

Aside from suing the Plan Fiduciaries, Kaiser Steel Plan Beneficiaries, former employees, sued the Plan Actuary as a non-fiduciary for equitable relief in the form of making the plan monetarily whole under ERISA § 502(a)(3), alleging it had caused losses to the plan by allowing Kaiser to select the plan’s actuarial assumptions, by failing to disclose that Kaiser was one of its clients and the plan had a funding shortfall, thus knowingly participating in a breach of fiduciary duty, despite not being a fiduciary.

Procedure:

District court dismissed the claim and the Appellate court affirmed.

Facts:

Kaiser Steel had an employee benefits plan which was being phased out, and leading to may participants retiring early and getting more benefits.
Plan’s actuary, who is being sued, did not change the plan’s actuarial assumptions to reflect the additional costs imposed by the requirements.
Thus, Kaiser did not adequately fund the plan.

Issue:

Whether a nonfiduciary who knowingly participates in the breach of fiduciary duty imposed by ERISA is liable for losses that an employee benefit plan suffers as a result of the breach.

Procedural Result:

Judgment affirmed.

Holding:

Under the “equitable remedies” clause of ERISA § 502(a)(3), a nonfiduciary who knowingly participates in the breach of fiduciary duty imposed by ERISA is NOT liable for losses that an employee benefit plan suffers as a result of the breach, since the remedies must be traditionally equitable ones, instead of types of remedies given by common law equitable Trust courts.

Reasoning:

Assuming that a remedial wrong has been alleged…
ERISA provides that not only the persons named as fiduciaries by a benefit plan (402(a)), but anyone else who exercises discretionary control or authority over the plan’s management, administration, or assets (3(21)(A)) is an ERISA fiduciary.
Many remedies are available for breaches of these duties, BUT are limited to fiduciaries:
- 409(a) – Personally liable to the plan to restore losses, and equitable or remedial relief
- 502(a)(2) – Secretary of labor can seek appropriate relief under 409(a)
Limited to Express Causes of Action under ERISA Rule: Supreme Court has interpreted ERISA to give limited causes of action to what is expressly granted.
502(a)(3) Expressly Gives Equitable Relief:
- What is Equitable relief?
  - Money damages are not historically equitable, but are compensatory legal damages.
  - Common law of Trusts did grant money damages, and was considered to be a court of Equity.
  - However, ERISA specifically states “equitable relief,” not relief from a court of equity.
  - Classic equitable relief:
    - Injunction
    - Mandamus
    - Restitution
    - (NOT COMPENSATORY DAMAGES)
  - There would be NO limitation on types of damages if the court considered equitable relief to be relief from a court of equity, like under trust law.
Policy of ERISA Does Not Allow Its Rewriting:
- ERISA is a very calculated statute that should not be rewritten because it preempts certain types of remedy that existed before.
- ERISA grants more protection in some ways, like by calling more types of people fiduciaries through § 3(21)(A), so abridging some others is not unreasonable.
Dissent:
- ERISA comes from trust law, and, thus, the “equitable relief” available under trust law should be available under ERISA.
- ERISA would not have been enacted if it afforded less protections to people than already existed, since it was supposed to create more.
- Traditional equitable remedies available to a trust beneficiary included compensatory damages.
- The idea that the use of “legal relief” elsewhere in the § precludes reading it in here is stupid, since they are used inconsistently throughout the §.
- The law of trusts DID have limits on types of remedies, also, since extra-compensatory damages, like Punitive Damages, were never allowed.

Harris Trust & Savings Bank v. Salomon Smith Barney (US 2000):

Statement of the Case:

Harris Trust and Savings Bank, Ameritech Pension Trust’s fiduciaries, sued for rescission of the transaction and restitution from Salomon, motel property interest sellers, when it was discovered that the motel property interests were virtually worthless, and the plan fiduciary who made the purchase, National Investment Services of America (NISA), made prohibited transaction purchases from Solomon, as Solomon was an ERISA “party in interest.”

Procedure:

District Court held that ERISA provides a private cause of action against nonfiduciaries who participate in a prohibited transaction.
7^th Circuit reversed that the authority to sue under section 502(a)(3) does not extend to a suit against a nonfiduciary "party in interest" to a transaction barred by section 406(a), as “where ERISA does not expressly impose a duty, there can be no cause of action.

Facts:

Ameritech Pension Trust (APT), an ERISA pension plan, entered into a transaction prohibited by ERISA with Salomon Smith Barney Inc., for purchases of motel property interest that went bust.
APT's fiduciaries sued Salomon under section 502(a)(3), which authorizes a fiduciary to bring a civil action to obtain appropriate equitable relief.
Salomon arguing that section 502(a)(3) only authorizes a suit against the fiduciary who caused the plan to enter the prohibited transaction, and that they were just a “party in interest.”

Issue:

Whether ERISA § 502(a)(3), which authorizes a "participant, beneficiary, or fiduciary" of a plan to bring a civil action to obtain "appropriate equitable relief" to redress violations of ERISA, extends to a suit against a nonfiduciary "party in interest" who violates the prohibited transaction rules in § 406(a).

Procedural Result:

Appellate court reversed for the Plan trustees.

Holding:

ERISA § 502(a)(3), which authorizes a "participant, beneficiary, or fiduciary" of a plan to bring a civil action to obtain "appropriate equitable relief" to redress violations of ERISA, extends to a suit against a nonfiduciary "party in interest" who violates the prohibited transaction rules in § 406(a), INCLUDING the payment of restitution, pursuant to the common law of trusts.

Reasoning:

Applicable ERISA Sections:
- § 406(a) bars a fiduciary of an employee benefit plan from causing the plan to engage in certain prohibited transactions with a "party in interest."
- § 502(a)(3) authorizes a "participant, beneficiary, or fiduciary" of a plan to bring a civil action to obtain "appropriate equitable relief" to redress violations of ERISA.
The 7^th Circuit is correct that § 406(a) imposes a duty only on the fiduciary that causes the plan to engage in the transaction.
HOWEVER:
- § 502(a)(3) itself imposes certain duties on people dealing with benefit plans, and liability under that provision does not depend on whether ERISA's substantive provisions impose a specific duty on the party being sued.
- The remedy under § 502(a)(3) is limited to redress any violations of, or enforcing any provisions of ERISA or an ERISA plan.
- § 502(a)(3) does not say who can be a ?, merely redressing the “act or practice” that violates ERISA Title I.
How do we know that a fiduciary can civilly sue anyone who violates Title I?
- § 502(a)(3) and (5) have the same language in them, except (5) gives the Secretary of Labor the right to sue a violator.
- § 502(l) provides that recovery can be gained from either a fiduciary or from “other persons” who violate § 502(a)(2) or (5).
- Since the language is the same in (5) and (3), the remedy being discussed should be interpreted to apply to (3) also.
How do we know restitution is available?
- In the prohibited transactions arena, the law of trusts allowed for:
  - Restitution
  - Disgorgement of proceeds
  - Disgorgement of profits gained from selling the goods
- That a transferee was not the “original wrongdoer” had no effect on liability for restitution.
- Restitution is also EQUITABLE IN NATURE!

Great-West Life & Annuity Insurance Co. v. Knudson (US 2002):

Statement of the Case:

Great-West filed an action under ERISA § 502(a)(3), which provides for equitable remedies, to enforce the Plan's reimbursement provision by requiring Knudson, the beneficiary, to pay the Plan $411,157, namely what the plan spent paying her medical expenses, of any proceeds recovered from third parties, when the beneficiary negotiated a settlement that earmarked only $13,828.70 to satisfy Great-West's reimbursement claim.

Procedure:

District Court granted Knudson summary judgment, stating that the 13 thousand dollars were enough for the “past medical treatment,” claiming nothing else was covered.
Court of Appeals affirmed, holding that that judicially decreed reimbursement for payments made to a beneficiary of an insurance plan by a third party is not “equitable” relief authorized by ERISA.

Facts:

A car accident rendered Knudson a quadriplegic.
She was covered by a Health and Welfare Plan which covered $411,157.11 of her medical expenses, most of which were paid by Great-West Life & Annuity Insurance Co., since that was the “Stop Loss Provider.”
The Plan contains a reimbursement provision, which gives it the right to recover from a beneficiary any payment for benefits paid by the Plan that the beneficiary recovers from a third party.
She negotiated a settlement that earmarked $13,828.70 to satisfy Great-West's reimbursement claim.

Issue:

Whether ERISA § 502(a)(3) authorizes enforcement of a health care plan reimbursement provision to recover from any proceeds paid to a beneficiary by a third party when the insurance company paid out for the same injury.

Procedural Result:

Judgment affirmed against the Plan.

Holding:

ERISA § 502(a)(3) does NOT authorize enforcement of a health care plan reimbursement provision to recover from any proceeds paid directly to a special needs trust by a third party when the insurance company paid out to the beneficiary for the same injury, since ERISA only allows for “equitable remedy,” and restitution through contract enforcement is legal, not equitable, remedy.

Reasoning:

§ 502(a)(3) Equitable Relief Rule: “Equitable relief” refers to those categories of relief that were TYPICALLY available in equity.
- The insurance company seeks personal liability money, through restitution, which is the quintessential action at law.
- An injunction to compel the payment of money due on a past contract, specific performance, was not typically available at equity, either.
Restitution Categorization Rule: Restitution is a legal remedy when ordered in a case at law, and an equitable remedy when ordered in an equity case.
- Writ of assumpsit (imposing liability for personal funds through a writ) allowed for restitution at law.
- Constructive trust or equitable lien were restitution at equity, since the Plaintiff was the true owner in the eyes of the law.
  - Here, the property was never in the Beneficiary’s possession, so this is restitution at law.
Even though trust law was enforced in equity, and ERISA is a trust based statute:
Internal Inconsistency In § 502(a)(3) Proves Congressional Intent: Congress authorized a civil action for a participant or plan beneficiary without reference to what type of claim. They did not mean both when they specified that fiduciaries could only get “equitable relief.”
Dissent (Stevens):
- An inclusive reading of this § accomplishes Congress’s goal of providing a federal remedy for violations of the terms of plans governed by ERISA.
Dissent (Ginsburg, Stevens, Souter, Breyer):
- ERISA became a law when the distinction between law and equity had been out for 40 years, and the FRCP ruled there was only one form of action.
  - Whether a claim is equitable would turn entirely on the designation of the defendant, even though everything else is exactly the same.
  - The majority frustrates Congress’s goal of establishing a uniform administrative scheme.
  - It is ironic that the majority acts in the name of equity, when the essence of equity is to eschew mechanical rules, depending on flexibility.
- Even under the majority approach, this is a claim “typically available in equity”:
  - Restitution is ordering a return of what lawfully belongs to someone else.
  - Congress ruled that Title VII’s “equitable relief” included “restitution” in the form of “BACKPAY.”
    - That is the delivery of money, and should be read consistently with ERISA!
  - Mertens encompasses those categories of relief that were typically available in equity, not exclusively in equity.
    - Restitution exactly fits that description.
- Equity must remain an evolving and dynamic theory.

Gavalik v. Continental Can Co. (3d Cir. 1987):

Employer was losing money so created a “red flag” plan to try and force out employees that had not yet vested their pension plan benefits.
Appellate court ruled that this “red flag” designation was exactly the type of discrimination that § 510 meant to prevent.

Varity Corporation v. Howe (This is Part II, Regarding Remedies – US 1996 – Plan participants, as individuals, could bring a claim for breach of fiduciary duty under ERISA § 502(a)(3)):

Statement of the Case:

A group of misled beneficiaries of Varity Corporation’s welfare benefits plan sued the administrator of the plan, ALSO their employer Varity Corporation, individually for breach of fiduciary duty, claiming that the administrator, through trickery, led them to withdraw from their old plan and move to a new one, since they wanted to avoid a bad face, leading to the forfeiture of their benefits when the new plan was intentionally bankrupted.

Procedure:

District Court found that Varity and Massey-Ferguson, acting as ERISA fiduciaries, had harmed plan beneficiaries through deliberate deception, which gave the employees to right to relief, including the reinstatement to the old plan. The Court of Appeals affirmed.

Facts:

Employees all were participants in, and beneficiaries of, the ERISA compliant employee welfare benefit plan, that the employer administered itself.
When certain divisions started losing money, Varity decided to transfer them to a separately incorporated subsidiary, Massey Combines.
Varity also persuaded the employees of the failing divisions to change employers and benefit plans, conveying the message that employees' benefits would remain secure when they transferred.
- This “information session” assured them that it was the same exact thing as their current plan, and that their benefits would be completely protected, like the employees working in the old company.
Ultimately, the employees lost their non-pension benefits, and filed an action under ERISA, claiming that Varity, through trickery, had led them to withdraw from their old plan and forfeit their benefits.

Issue:

Whether the Varity Corporation acted in its capacity as an ERISA fiduciary when it significantly and deliberately misled the beneficiaries.
Whether Varity violates the fiduciary obligations that ERISA imposes upon plan administrators.
Whether ERISA’s remedial provision, § 502(a)(3), authorizes individual suits for remedial relief.

Procedural Result:

Judgments ALL affirmed for the plan participants.

Holding:

The factual context in which the statements were made, combined with the plan-related nature of the activity, engaged in by those who had plan-related authority to do so, together provide sufficient support to conclude Varity was acting as a fiduciary.
Varity violated the fiduciary obligations that ERISA imposes upon plan administrators, by knowingly and significantly deceiving the employees as to the financial viability of the new entity and the future of the new entity's benefits plan, in order to save the employer money at the expense of the beneficiaries.
ERISA’s remedial provision, § 502(a)(3), authorizes individual suits for appropriate equitable relief.…SEE THE REASONING BELOW:

Reasoning:

The Plaintiffs are plan participants or beneficiaries, and are suing for equitable relief to redress a violation of § 404(a).
Varity argues that § 502(a) is limited to § 409(a) remedies that are limited to “make good to the plan,” given the Russell holding that § 502(a)(2) is limited to PLAN recovery.
This is invalid for 4 main reasons:

Russell discusses § 502(a)(2), not (3):

1. Russell was a case about compensatory and punitive damages, unlike here.
2. Thus Russell does not control.

The language of § 502(a)(3) does not favor Varity:

1. It says the court can grant “appropriate equitable relief” to “redress” any act that violates this title.
2. This is broad enough to also cover fiduciary obligations.
3. ERISA SPECIFICALLY ALLOWS FOR PENALTIES TO BE PAID TO PLAN BENEFICIARIES AND PARTICIPANTS BY FIDUCIARIES, CREATING A CHAIN TO § 502(a)(3):
  1. § 502(l), adopted in 1989, states that a civil penalty can be paid by a fiduciary to a plan participant or beneficiary under § 502(a)(5), AND
  2. 502(a)(5)’s equitable relief clause is identical to that of § 502(a)(3)!

§ 409 is not the only place that fiduciary duty actions can be brought, as:

1. 404(a)(1) gives rise to a claim when the plan administrator fiduciarily makes a discretionary determination about whether a claimant is entitled to benefits under the terms of the plan documents.
2. That remedy runs directly to the plan beneficiary.
3. § 502’s Overall Structure Shows Desire to Give Remedies for ALL Types of Fiduciary Breaches:
  1. § 1 – Wrongful denial of benefits or information
  2. § 2 – Fiduciary obligations related to the plan’s financial integrity
  3. § 4 – Tax registration
  4. § 6 – Civil penalties
  5. AND THE LAST TWO, § 3 AND § 5, CREATE TWO CATCH-ALLS PROVIDING APPROPRIATE EQUITABLE RELIEF FOR ANY REMAINING STATUTORY VIOLATION.

One of ERISA’s basic purposes is providing appropriate remedies, under § 2(b).

1. Here, the Plaintiffs must rely on § 502(a)(3) or have NO REMEDY AT ALL.

Could this cause bad results?

- Probably not.
Dissent (Thomas, O’Connor, Scalia):
- “ERISA IS A COMPREHENSIVE AND RETICULATED STATUTE.”
  - Thus it should not be subject to additional remedies.
  - Congress only allowed appropriate equitable relief to be gained by the plan.
  - Congress only intended to give relief for a breach of fiduciary duty under §§ 409 and 502(a)(2).

Helfrich v. PNC Bank (6^th Cir. 2001):

401(k) participant ordered a rollover from an equity mutual fund to another equity fund, but the plan administrator instead rolled it over into a money market mutual fund.
Plaintiff sought recovery of the money that he would have made if the rollowver had been as directed.
Court REJECTED that the lost investment opportunity costs included a monetary award, since there was nothing really to restore.

Shaw v. Delta Air Lines, Inc. (US 1983): Court articulated a 2 pronged test for determining whether a state law “relates to” and employee benefit plan within the meaning of § 514(a):

Shaw’s “Relate To” Test: State law relates to an employee benefits plan if either:

the state law has a connection with an employee benefit plan, OR

the state law has a reference to an employee benefit plan.

Pilot Life Insurance v. Dedeaux (US 1987):

Statement of the Case:

Dedeaux, welfare plan participant, sued his employer’s plan insurance provider in federal court through diversity for tortious breech of contract, breach of fiduciary duties, and fraud in the inducement, all under state law, seeking compensatory and punitive damages, when he injured his back and was denied disability claims, and had his policy cancelled and reinstated several times over a few years.

Procedure:

District court granted Pilot summary judgment, but the 5^th Circuit reversed.

Issue:

Whether ERISA preempts state common law tort and contract claims asserting improper processing of a claim for benefits under an insured employee benefit plan.

Procedural Result:

Judgment reversed for ?.

Holding:

Especially considering the savings clause does not apply, the Business of Insurance test is not met, and congressional intent clearly shows that ERISA’s civil enforcement scheme should be exclusive, ERISA preempts state common law tort and contract claims asserting improper processing of a claim for benefits under an insured employee benefit plan, as it is not saved under § 514(b)(2)(A) and is preempted under § 514(a).

Reasoning:

Goal of ERISA: ERISA § 2 states that the goal of ERISA is to “protect participants in employee benefit plans…by providing for appropriate remedies, sanctions, and ready access to the Federal courts.
Preemption Rule: § 514 preempts state claims that (1) relate to an employee benefit plan, (2) except those which “regulate insurance,” (3) so long as they are not merely “deemed” to regulate insurance so as to not fall under ERISA.
Congressional Intent:
- Record states that ERISA preemption is intended to apply in its broadest sense.
- § 502(a) Conference Report: All employee benefit actions are to be regarded as arising under Federal law in a similar fashion to § 301 of the Labor Management Relations Act.
  - Congress was well aware that this was a statute that completely preempted State law.
Does this fall under the Savings Clause by “regulating insurance”?
- Determined by whether it falls under the “Business of Insurance” based on the:

- McCarran-Ferguson “Business of Insurance Factor” Test:

- 1. Whether the practice has the effect of transferring or spreading the policyholder’s risk,
  2. Whether the practice is an integral part of the policy relationship between the insurer and the insured, AND
  3. Whether the practice is limited to entities within the insurance industry.

- Here, the law is not integral to anything, and applies to EVERY CONTRACT!!!

- Thus, the test is not met.
ERISA Sets Out Other Remedies:
- Granting state remedies would make the ERISA ones pointless, because anyone could just choose.
- The ERISA remedies are complete, and would be undermined if state law claims were allowed.
- They are:
  - 501 – Criminal penalties for failing to report and disclose
  - 503 – reasonable opportunity for review upon claim denial
  - 502(a) – Right to sue for benefits under the plan, enforce rights under the plan, clarify future benefits
  - 502(a)(2) – Claim for accrued benefits due, declaratory judgment, or breach of fiduciary duty
  - 502(g) – Attorney’s fees to either party

Additional Points:

Corcoran v. United Healthcare, Inc. (5^th Cir. 1992 – Shows the real problems with ERISA preemption): Employee became pregnant, was ordered to a hospital bed with a month to go, but the plan denied this, instead sending her home with house nurse monitoring. When the nurse was not there, the baby died.

Corcoran sued for wrongful death, but were rejected as preempted under ERISA by the 5^th Circuit, only being allowed the cost of the overnight stay that was denied…
5^th Circuit said the problem with this ruling is that:
- ERISA plans can just get the cheapest provider of benefits, since they are not liable for bad work.
- ERISA was passed before there were “cost containment” employee benefit plans, and Congress would probably not have approved of this outcome.

Ingersoll-Rand Co. v. McClendon (US 1990):

Statement of the Case:

McClendon, salesman employee of Ingersoll, sued Ingersoll under state law tort and contract theories and seeking compensatory and punitive damages for firing him after almost 10 years, thinking that he was being fired before vesting (turns out he was already vested), and not pursuing any ERISA cause of action.

Procedure:

Lower courts granted summary judgment for ?, but reversed for ? by Texas Supreme Court.

Facts:

Issue:

Whether ERISA preempts a state common law claim that an employee was unlawfully discharged to prevent his attainment of benefits under a plan covered by ERISA.

Procedural Result:

Reversed for ?.

Holding:

Considering § 301 of the Labor Management Relations Act, the broad definition of “Relate To” and § 510’s direct conflict with the state law by providing its own remedy, ERISA preempts a state common law claim that an employee was unlawfully discharged to prevent his attainment of benefits under a plan covered by ERISA.

Reasoning:

Where Congress has expressly included a broadly worded preemption provision in such a comprehensive statute, the intent is more clear.
- “Relate to” a benefits plan is broadly construed, and it is clear that this clause of action related to the essence of the pension plan itself.
- Hence, it is preempted.
§ 514(c)(2) expands the definition of state law to state agencies and local government, to get everything preempted.
Also, § 301 of the of the Labor Management Relations Act is the basis for interpreting § 502(a), and 301 is a COMPLETE FIELD PREEMPTION.
Even if this were not so clear, ERISA § 510 expressly conflict preempts these claims by making it “unlawful to discharge someone for the purpose of interfering with their attainment of any right to which they may become entitled under the plan!”

Additional Points:

Mackey v. Lanier Collection Agency & Service (US 1998): ERISA § 206(a) prohibits state garnishment of a participant’s pension benefits, BUT does not preempt WELFARE BENEFITS from being taken!

Hence, § 514 did not preempt the state law from garnishing the welfare benefits, since it specifically prohibited something else.

New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. (US 1995):

Statement of the Case:

Commercial insurers acting as Fiduciaries of ERISA plans they administer, Travelers, sought to invalidate as preempted New York State surcharge statutes that imposed an additional 24% charge on some plans that did not use New York’s Blue Cross and Blue Shield and 9% on HMOs, so as to get more commercial insurers and health care plans to use the financially struggling Blue Cross.

Procedure:

District court granted ?s MSJ, finding the statute “related to” a plan and was not “saved.”

Appellate court affirmed, based on Shaw’s reading “relate to” in 514(a) so broadly, calling the statutes purposeful interference with ERISA plans, since they impose significant economic burdens on commercial insurers and HMOs.

Issue:

Whether ERISA preempts the state provisions for surcharges on bills of patients whose commercial insurance coverage is purchased by health care plans governed by ERISA or HMOs whose membership fees are paid by an ERISA plan.

Procedural Result:

Judgment reversed for ?.

Holding:

The statutory surcharge provisions do not “relate to” employee benefit plans within the meaning of ERISA § 514(a), and thus are not preempted, since there is no way that cost uniformity was an object of preemption, along with laws that have indirect economic effects on health care plans, AND Congress could not have intended to preempt areas traditionally subject to local regulation.

Reasoning:

Preemption Rules and Basis:
- Supremacy Clause, Article IV: Preemption of state law is possible either expressly, though implication, or through conflict between federal and state law.
- Assumption that the historic police powers of the States were not meant to be superseded unless it was the clear and manifest intent of congress.
- ERISA § 514(a): If a law “relates to” any employee benefit plan, it is preempted by ERISA.
Since “relations stop nowhere,” to interpret this section broadly would to make “Congress’s intent a sham.”
Intent Behind ERISA Preemption:
- Legislative History Statement by Representative Dent: “To eliminate the threat of conflicting and inconsistent State and local regulation.”
- To avoid multiplicity of regulation so as to permit the nationally uniform administration of employee benefit plans.
Indirect Economic Effect is Not Enough to Meet Shaw’s “Relate To” Standard:
- This law does not bind plan administrators to any particular choice, and thus function as a regulation of an ERISA plan itself.
- Nor does the indirect influence of the surcharges preclude uniform administrative practice of the provision of a uniform interstate benefit package.
  - It may affect people choosing the insurance company, BUT does not BIND PLAN ADMINISTRATORS TO ANY PARTICULAR CHOICE IN THE ADMINISTRATION OF ITS PLAN.
Hospitals have traditionally attempted to compensate for their financial shortfalls by adjusting prices, and to read “relate to” so broadly would cause EVERY single law that had any effect on hospitals would be preempted under ERISA § 514(a).
- This result would be horrible, and was definitely unintended.
Mackey v. Lanier Collection Agency: Held that ERISA preemption does not bar application of a state garnishment statute when applied to welfare benefit plans.

Additional Points:

DeBuono v. Medical and Clinical Services Fund (US 1997): State tax imposed on medical centers was not preempted by ERISA when it was applied to all medical centers, and it just so happened that a Plan operated its own clinics, because hospitals are traditionally a State run entity, and an ERISA plan’s buying into one cannot invalidate all laws having to do with hospitals, and having an indirect economic effect on the Plan is not enough to meet the “relate to” standard.

California Division of Labor Standards Enforcement v. Dillingham Construction (US 1997): Court narrowed the potential reach of the Shaw “Reference To” prong, ruling that ERISA did not preempt a CA wage statute that requires apprentices to be paid as one unless the State regulated the apprenticeship, since apprenticeships fall under ERISA § 3(1), since the mere possibility that a statute could apply to a program that was NOT subject to ERISA regulation keeps the state law from being preempted.

UNUM Life Insurance Co. of America v. Ward (US 1999):

Statement of the Case:

Ward, former employee and health care beneficiary under the plan, sued UNUM Life Insurance Company under ERISA's civil enforcement provision to recover permanent disability benefits provided by the plan, arguing that (1) California's Notice-Agency state law, which states an insurer cannot avoid liability although proof the claim is untimely unless actual prejudice is shown, is not preempted by ERISA because it is saved by the “Savings Clause,” and (2) the employer should be deemed an agent of the insurance company, so his notice of permanent disability to his employer, MAC, in March 1993, provided timely notice to UNUM.

Procedure:

District court granted UNUM summary judgment, but was reversed by the Appellate court, which accepted all of Ward’s arguments.

Facts:

UNUM Life Insurance Company issued a long-term group disability policy to Management Analysis Company (MAC) as an insured welfare benefit plan governed by ERISA.
This policy provides that proof of claims must be furnished to UNUM within one year and 180 days after the beginning of disability.
Ward became permanently disabled in May 1992 and informed MAC of his disability March 1993, and UNUM received proof of Ward's claim in April 1994.
Ward was notified that his claim was denied as untimely because his notice was late under the terms of the policy.

Issue:

Whether ERISA preempts California's Notice-Agency state law, which states an insurer cannot avoid liability although proof the claim is untimely unless actual prejudice is shown, when it clearly “relates to a plan” but also may be a “law which regulates insurance” so is saved by the “Savings Clause.”
Whether the employer should be deemed an agent of the insurance company, so the plan participant’s notice of permanent disability to his employer, MAC, in March 1993, provided timely notice to the insurance company also.

Procedural Result:

Judgment affirmed as to Issue 1, Reversed as to Issue 2.

Holding:

ERISA does not preempt California's Notice-Agency state law, which states an insurer cannot avoid liability although proof the claim is untimely unless actual prejudice is shown, because, although it clearly “relates to a plan,” it is a “law which regulates insurance” under the meaning of § 514(b)(2)(A), thus being saved by the “Savings Clause.”
The employer should NOT be deemed an agent of the insurance company, so the plan participant’s notice of permanent disability to his employer, since this would impute liability directly to the plan, and cause a whole new wave of responsibilities for it that ERISA would not support.

Reasoning:

Notice-agency state law preempted?
- This law falls under the preemption clause, 514(a), because it relates to an employee benefits plan.
- However, it is saved under the 514(b)(2)(A) “savings clause,” because it “regulates insurance” based on the following test:
- Does a state law “regulate insurance,” so as to be “saved”?

1. Whether from a “common sense view of the matter,” the contested prescription regulates insurance.
  1. Yes, this rule meets the common sense view of regulating insurance, as that seems its primary purpose.
2. Consider the McCarran-Ferguson Act factors to determine whether the regulation fits within the “business of insurance” (do not all need to be present/met):
  1. Whether the practice has the effect of transferring or spreading the policyholder’s risk:
    1. NOT MET
  2. Whether the practice is an integral part of the policy relationship between the insurer and the insured
    1. Met
  3. Whether the practice is limited to entities within the insurance industry
    1. Met

- The common sense view, coupled with 2 of the 3 McCarran factors, is enough to show this law regulates insurance and is saved.
Employer agent of the insurance company?
- The insurance policy itself states that MAC acts on its own behalf, and under no circumstances will the policyholder be deemed the agent of the insurance company without written permission. So no.
- Plus, deeming the employer the agent of the insurer would have a marked effect on plan administration, forcing him into a role he did not want.

Egelhoff v. Egelhoff:

Statement of the Case:

Children of a previous marriage of the deceased life insurance policyholder, Mr. Egelhoff, sued his ex-wife for the life insurance proceeds and pension plan benefits, when the ex-wife was designated as beneficiary under both, they divorced, and Mr. Egelhoff was soon killed in a car accident, BUT a Washington state statute provides that the designation of a spouse as the beneficiary of a non-probate asset (ie. life insurance contract) is revoked automatically upon divorce.

Facts:

District court granted ex-wife’s summary judgment,
Appellate court reversed for the children, and then the
Washington Supreme Court affirmed this, holding that the statute does not "refer to" employee benefit plans to an extent that would require preemption, since it does not apply directly to an ERISA plan, not does it have the sufficient “connection with” an ERISA plan, since it does not “alter the nature of the plan itself, the administrator’s fiduciary duties, or the requirements for plan administration.”

Issue:

Whether ERISA preempts a Washington statute providing that the designation of a spouse as the beneficiary of a non-probate asset (ie. life insurance contract) is revoked automatically upon divorce.

Procedural Result:

Reversed for ex-wife.

Holding:

Because it conflicts with various sections of ERISA and violates the uniform administration policy behind ERISA, ERISA preempts a Washington statute providing that the designation of a spouse as the beneficiary of a non-probate asset (ie. life insurance contract) is revoked automatically upon divorce.

Reasoning:

“Relate To” Rule: Whether a law relates to an employee benefit plan cannot be taken to its extreme, or everything falls under it.
“Connection With” Rule: Look to the:
- Objectives of the ERISA statute for the intent of what Congress wanted to survive, and the
- Nature of the effect of the state law on ERISA plans.
This law conflicts with ERISA:
- Binds plans to a certain beneficiary ordered by state law, instead of the plan documents.
- Violates the plan payment rules in 402(b)(4) and that a fiduciary shall administer the plan according to the documents in § 404(a)(1)(D).
Violates the Uniform Administrative Scheme of ERISA:
- Meant to keep each plan from having to know the laws of all 50 states, as this is so burdensome and borne by the plan participants and beneficiaries.
This case does involve family and probate law, which are traditionally state regulated, but Congress made clear its desire to preempt in these cases.
Concurring (Scalia, Ginsburg):
- “Relate to” should be judged based solely on ordinary preemption law.
Dissent (Breyer, Stevens):
- We should apply normal conflict and field preemption analysis.
- Doing so, this law is not preempted.
  - There is a strong presumption AGAINST preemption in areas traditionally regulated by the states if they are not expressly preempted.
- Also, this case leads to a windfall to the ex-wife who already took her share from the divorce settlement, at the expense of the children.
  - Congress did not intend this.

Additional Points:

Boggs v. Boggs (US 1997 – Community Property Law Case, Use QDRO): Decedent’s surviving second wife claimed she was entitled to all the pension benefits as designated beneficiary, but the sons claimed they were entitled to a portion under Louisiana community property law.

Court held this interest of the sons’, created under state law, is preempted by ERISA.

Rush Prudential HMO, Inc. v. Moran (US 2002):

Statement of the Case:

Moran, welfare plan beneficiary, sued to compel compliance with an Illinois Act that provided the right to independent medical review of certain denials of benefits, claiming it was saved as a law that regulated insurance, BUT Rush, the HMO, challenged this as preempted as regulating a health benefits plan instead of an insurance company, AND violating the exclusive remedies provision of ERISA § 502, by providing a remedy in conflict with that section.

Procedure:

See procedure below.

Facts:

Rush Prudential HMO, Inc., provides medical services for welfare benefits plans under ERISA.
Rush denied Moran’s claim that it was medically necessary to have an unusual shoulder surgery with unaffiliated specialist.
Moran made a written demand for an independent review of her claim under the Act, which provides the right to independent medical review of certain denials of benefits.
Rush refused to grant her review under the Act.
Case was removed to federal court, which remanded and ordered the review.
Independent reviewer found this case medically necessary, and Rush sued again, claiming that this now violated § 502.
District court now found it preempted, but the 7^th Circuit reversed, as saved under the savings clause and not conflicting with § 502.

Issue:

Whether the Illinois HMO Act, which provides recipients of health coverage by HMOs the right to independent medical review of certain denials of benefits, is preempted by ERISA.

Procedural Result:

Judgment affirmed for ?.

Holding:

Because it “regulates insurance” (since an HMO is both an insurer and health care provider) and does not conflict with the express § 502 ERISA remedies, the Illinois HMO Act, which provides recipients of health coverage by HMOs the right to independent medical review of certain denials of benefits, is NOT preempted by ERISA.

Reasoning:

The act “relates to insurance,” so is subject to 514 preemption, BUT is saved under the “savings clause” as a law that “regulates insurance.”
Whether the law “regulates insurance”: This law regulates insurance under the test:

Examine the Common Sense view of the matter:

1. HMOs are both insurers and health care providers, but they are almost universally regulated as insurers under state law.
2. HMO receives a fixed fee, and keeps the money if no one gets sick.

McCarran-Ferguson factors confirm this:

1. 1) not met
2. 2) independent review is an integral part of the policy relationship between the insurer and insured
3. 3) HMOs are all entities within the insurance industry

Whether the Act creates a remedy?

- § 502 is the sole provision for civil actions under ERISA.
- Small conflicts are the inevitable result of the INTENTIONAL congressional decision to save local insurance regulation.
- This act does not conflict with 502, since the act only allows for one term (medically necessary) to be defined.
Whether this violates the ERISA purpose of “uniform enforcement”?
- No. And it was intended anyway. Nothing is perfect.
Dissent (Thomas, Rehnquist, Scalia, Kennedy):
- § 502 is the exclusive vehicle for asserting a claim for benefits under ERISA, so state law that create additional remedies, like this one, are preempted.
  - Moran could have brought her claim for recovery of benefits under 502(a)(1)(B), but didn’t!
- Metropolitan Life held that a State may require that employee health plans provide certain substantive benefits to people.
  - However, a remedial law like this is not substantive benefits.

Kentucky Ass’n of Health Plans, Inc. v. Miller (US 2003):

The McCarran-Ferguson Act test for determining whether a law regulates the “business of insurance” is confusing, misdirects attention, and fails to provide clear guidance.
Thus, it is rejected, and the new law is:
- Modern Test for Determining Whether a Law “Regulates Insurance” Under § 514(b)(2)(A):

1. State law must be specifically directed toward entities engaged in insurance, AND
2. State law must substantially affect the risk pooling arrangement between the insurer and the insured.

Aetna Health Inc. v. Davila (US 2004):

Statement of the Case:

Davila, plan participant, and Calad, plan beneficiary, sued their respective HMOs for alleged failures to exercise ordinary care in handing their coverage decisions, as violations of the Texas Health Care Liability Act, but the HMOs, Aetna and Cigna, argued that these cases should be brought in Federal court under ERISA, as ERISA § 502(a) remedies completely preempted the State act.

Procedure:

District court declined to remand, finding they were ERISA claims.
Court of Appeals reversed, finding they were not preempted by § 502(a) remedies:
- 502(a)(1)(B): Wrongful Denial of Benefits – Found they were not seeking reimbursement of benefits to them, but TORT damages for failure to use ordinary care.
- 502(a)(2): Breach of Fiduciary Duty – Found claims were not fiduciary in nature.

Issue:

Whether ERISA prohibits individuals from suing their HMOs under a state law when the HMOs refuse to provide a treatment recommended by a physician.

Procedural Result:

Judgment reversed for HMOs.

Holding:

Because the plan participant and beneficiary only bring suit to rectify a wrongful denial of benefits promised under an ERISA regulated plan, the state law claim conflicts with § 502(a)(1)(B), and ERISA prohibits individuals from suing their HMOs under a state law when the HMOs refuse to provide a treatment recommended by a physician.

Reasoning:

Removal is proper in cases where there is a federal question based on the well-pled complaint rule, OR pursuant to the exception, which applies to ERISA also, when a federal statute completely displaces the state law cause of action through COMPLETE PREEMPTION!
Purpose of ERISA:
- Congress intended ERISA to provide a uniform system for regulating retirement schemes and benefits.
§ 502(a)(1)(B) is designed after LMRA § 301, which allows for complete preemption:
- Thus, “any state-law cause of action that duplicates, supplements or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore preempted.”
- Here, the plaintiffs only seek claims based on a relationship due to approval of the benefit claim.
Also, a benefit determination under ERISA is generally a fiduciary act.
Concurring (Ginsburg, Breyer):
- We join the rising judicial chorus urging Congress and the Supreme Court to revisit what is an unjust and increasingly tangled ERISA regime.
- Congress intended ERISA to replicate the core principles of trust remedy law, including the make-whole standard of relief.
- Hopefully, one day, Congress or the Court will confirm this.

Pryzbowski v. U.S. Healthcare, Inc. (3d Cir. 2001):

A mere attack on the quality of benefits is not preempted, but actual enforcement of the benefits (quantity) is preempted.
Quantity or Quality Test (from Pegram v. Herdich):
- Eligibility Decisions: Turn on the plan’s coverage of a particular treatment.
- Treatment Decisions: Choices in diagnosing and treating a partient’s condition.