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Tibble v. Edison Int’l, — F.3d –, 2016 WL 1445220 (9th Cir. Apr. 13, 2016) (“Tibble II”), marks the Ninth Circuit’s second review of the case after its earlier decision was vacated by the Supreme Court. Tibble v. Edison Int’l, 135 S.Ct. 1823 (2015) (“Tibble I”). Tibble I concerns the commencement of the statute of limitations for breach of fiduciary duty under 29 U.S.C. § 1113, which provides that an action must be brought within six years of “the last action which constituted a part of the breach or violation.”
Continue Reading On Tibble remand, court finds plaintiffs forfeited continuing-duty-to-monitor argument

Bos v. Bd. of Trustees, 795 F.3d 1006 (9th Cir. 2015), involved the owner of a company that participated in a multi-employer pension plan. Because the owner had full control over the company finances, he was personally responsible for making the required contributions. Moreover, he signed a promissory note for some $360,000 in payments that the company had failed to make. Then he filed bankruptcy. The bankruptcy court and the district court held that the debt was not dischargeable, because it was incurred due to the debtor’s “fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” 11 U.S.C. § 523(a)(4). To so hold, the lower courts had concluded that the unpaid contributions were plan assets, and plaintiff’s control over those unpaid contributions made him a fiduciary, which gave rise to non-dischargeability.
Continue Reading Unpaid employer contributions cannot be plan assets; debt is dischargeable in bankruptcy

In Oregon Teamster Employers Trust v. Hillsboro Garbage Disposal, Inc., 800 F.3d 1151 (9th Cir. 2015), the corporate defendant, Hillsboro Garbage entered into contracts with a union health plan that provided coverage for Hillsboro’s union and non-union employees. Beginning in 2003, the union received contributions for the two individual defendants, who purportedly worked for Hillsboro, but actually were employed by a different company owned by Hillsboro’s owner. The plan covered these defendants until 2011, even though a 2006 audit showed that they were not eligible for coverage.
Continue Reading Ninth Circuit judge calls for en banc review to overturn Providence Health v. McDowell

In LeGras v. Aetna Life Ins. Co., 786 F.3d 1233 (9th Cir. 2015), plaintiff’s 180-day period to administratively appeal ended on a Saturday, and he mailed his appeal the following Monday. Aetna denied the appeal as untimely. Plaintiff sued, and the district court had dismissed the claim for failure to exhaust administrative remedies.…

Williams v. Natl. Union Fire Ins. Co. of Pitt., 2015 WL 4080909 (9th Cir. July 7, 2015) involved the death of “an acclaimed horticulturist” from pulmonary embolism triggered by deep vein thrombosis after flying approximately 28 hours over five days. Plaintiff was covered by an AD&D policy through his employer. The policy covered death as “a direct result of an unintended, unanticipated accident that is external to the body[.]”
Continue Reading Death Resulting From DVT Caused By Long Flights Not Covered Under AD&D Policy

In Becker v. Williams, — F.3d –, 2015 WL 348872 (9th Cir. Jan. 28, 2015), the plan participant called the plan administrator to change the beneficiary of his pension plans from his ex-wife to his son. His employer sent him beneficiary change forms, but he never completed them in the years before he died. After his death, both the son and ex-wife claimed the benefits, and the employer interpleaded.
Continue Reading Beneficiary Designation Forms Are not Plan Documents; Change of Beneficiary By Phone Was Sufficient

We previously reported on Gabriel v. Alaska Electrical Pension Fund, 755 F.3d 647 (9th Cir. 2014), which addressed limits on make-whole relief under 1132(a)(3), and affirmed judgment for the plan fiduciary. That decision was a divided one, with a partial dissent by Judge Berzon. In December, the panel withdrew its earlier decision, and replaced it with a new decision, Gabriel v. Alaska Electrical Pension Fund, — F.3d –, 2014 WL 7139686 (9th Cir. Dec. 16, 2014). The new decision affirmed summary judgment on two of the three measures of damages, and remanded to the district court on the third.
Continue Reading Ninth Circuit Replaces Gabriel Decision On Equitable Remedies; Modifies Interpretation of Amara

In Gabriel v. Alaska Electrical Pension Fund, 755 F.3d 647 (9th Cir. 2014), a venal claimant met a not-very competent plan administrator, and the result was a helpful discussion of limits on make-whole equitable claims. [Note, on December 16, 2014, the Ninth Circuit panel withdrew this opinion, and replaced it with a new one, at 773 F.3d 945]
Continue Reading Ninth Circuit Discusses Limits On Make-Whole Equitable Remedies for Breach of Fiduciary Duty

Every so often a bit of legal synchronicity seems to occur. Sometimes its personal, like when you have several cases with the same uncommon issue, or multiple cases in the same rarely visited court. In 2013, there appears to be a larger force at work that has caused three circuits to address the question whether a plan that requires proof to be satisfactory to the insurer confers discretion.

It has long been clear that a plan document must give discretionary authority to an insurer in order to require courts to conduct an arbitrary and capricious review. It is also well-established that no “magic words” are required to give discretion. However, the vast majority of plans intending to grant discretion use the magic words anyway, and say that the insurer has “discretionary authority to determine claims and construe the plan” or some variant.

But what happens when a plan does not use the magic words?  
Continue Reading Effect of Requiring “Satisfactory” Proof Is A Popular Issue in the Circuits This Year