We are please to welcome Katherine M. Katchen as counsel in Robinson+Cole’s Managed Care + Employee Benefits Litigation Group. Kate has more than 20 years of litigation experience representing clients in complex commercial litigation matters, particularly in the area of managed care and insurance. She will be
Upcoming Amendments to Federal Rules Will Impact ERISA Litigation
On December 1, 2015, barring action by Congress, amendments to the Federal Rules of Civil Procedure, will take effect. A number of these amendments are intended to fine-tune the discovery process, and they may have an impact on ERISA-related discovery. Of particular note are the increased emphasis on proportionality in discovery; additional requirements in objecting to discovery requests; and a significant limitation on sanctions for loss of electronically stored information.
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Remand May Be Sufficient Success on the Merits to Support Attorneys’ Fee Award
Gross v. Sun Life Assur. Co. of Canada, 763 F.3d 73 (1st Cir. 2014), a divided decision, concerned the question whether a remand by the First Circuit to the administrator qualified for an award of attorneys’ fees. In a prior decision, Gross v. Sun Life Assur. Co. of Canada, 734 F.3d 1 (1st Cir. 2013), the court had accepted plaintiff’s argument that deferential review was not triggered by plan language requiring that proof of disability be “satisfactory to” the insurer. Gross 2013 also found that the administrative record was inadequate to assess plaintiff’s entitlement to benefits, and remanded to the administrator. Plaintiff then apparently filed a motion with the First Circuit seeking attorneys’ fees for the litigation in the district court and on appeal, leading to Gross 2014.
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Evidence Outside of Administrative Record Is Admissible to Determine Standard of Review
In Waldoch v. Medtronic, Inc., 757 F.3d 822 (8th Cir. 2014), the plaintiff argued that the plan’s grant of discretionary authority was overridden by procedural irregularities in plan administration, compelling use of the de novo standard of review. To counter that argument, Medtronic submitted an affidavit with supplemental evidence demonstrating its claims…
When Must a Claim Fiduciary Provide the Administrative Record? It May Be Later Than You Think
Any ERISA claim practitioner knows that a claimant is entitled to get a copy of the documents relevant to her claim on request and without charge. But when does the claimant’s right to this access become effective? More particularly, can the claim administrator defer production until after the claimant files an administrative appeal? A recent case in the Second Circuit suggests that it is sufficient to provide the claim file promptly after the appeal is filed. James v. Unum Life Ins. Co. of America, 2012 WL 4471541 (S.D.N.Y. 2012), aff’d, 2013 WL 4516424 (2d Cir. Aug. 27, 2013). …
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Using Congressional Policy – Part 4 – Litigation Procedures
There are always plaintiffs’ attorneys who live to push the envelope in ERISA benefit litigation. You know who they are. When opposing one of these attorneys, you may feel that he or she is more concerned with chipping away at ERISA procedures than in achieving a quick, favorable result for the client. Such attorneys will fight for as much discovery as possible (even if it has no value in a particular case); they may routinely argue for a de novo review (even where a deferential standard clearly applies). They may argue, repeatedly, that courts should routinely conduct trials in ERISA matters when any fact is in dispute. They may even argue that jury trials are permissible in ERISA claims. If such lawyers can get one judge to agree, even a little, with one of their positions, they will take that decision to the next judge, and argue for another little push to the envelope.
There is no question that arguments like these have to be met head on, and on the merits. But the opposition can be made more powerful by framing it in the context of congressional policy.…
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