CHICAGO — Plaintiffs’ attempt to bring alternative claims under state law in an Employee Retirement Income Security Act class suit that alleges that two defined-benefits plans were improperly classified as “church plans” creates an “absolute conflict,” an Illinois federal judge ruled Dec. 5 dismissing the five state law claims (Sheilar Smith, et al. v. OSF Healthcare System, et al., No. 16-467, S.D. Ill., 2017 U.S. Dist. LEXIS 199805).
ST. LOUIS — The Eighth Circuit U.S. Court of Appeals on Dec. 6 reversed and remanded a district court’s dismissal of a health care plan participant’s claim seeking to recover premiums paid under the plan after determining that a restitutionary claim for premiums under the Employee Retirement Income Security Act may be available if there was a violation of the plan’s terms (CeCelia Catherine Ibson v. United Healthcare Services Inc., No. 16-3260, 8th Cir., 2017 U.S. App. LEXIS 24608).
NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on Dec. 4 affirmed a lower court’s ruling that a claimant’s state law claims against a life insurer are preempted by the Employee Retirement Income Security Act, finding that ERISA’s savings clause does not permit state law claims seeking recovery of ERISA benefits to escape preemption (Katheryn Swenson v. United of Omaha Life Insurance Co., No. 17-30374, 5th Cir., 2017 U.S. App. LEXIS 24465).
CHICAGO — Three women may largely proceed with their class action claiming that their health insurance company erected insurmountable barriers rendering it impossible to procure in-network lactation services and imposed illegal cost-sharing on out-of-network services in violation of the Patient Protection and Affordable Care Act (ACA) and Employee Retirement Income Security Act (ERISA), a federal judge in Illinois held Dec. 4 (Laura Briscoe, et al. v. Health Care Service Corp., et al., No. 16-10294, N.D. Ill., 2017 U.S. Dist. LEXIS 198452).
NEW YORK — A New York federal judge, in an order filed Dec. 1, declined preliminary approval of a class settlement worth up to $7,425,000 offered by Dave & Buster’s Inc. to end claims that the nationwide restaurant/entertainment chain violated the Employee Retirement Income Security Act by reducing the hours of its work force in 2013 to avoid the costs associated with providing health insurance to its full-time employees in compliance with the Patient Protection and Affordable Care Act (ACA) (Maria De Lourdes Parra Marin v. Dave & Buster’s, Inc., et al., No. 15-3608, S.D. N.Y.).
DULUTH, Minn. — A class action lawsuit was filed Nov. 17 in Minnesota federal court against the fiduciaries of the Wells Fargo & Company 401(k) Plan pursuant to the Employee Retirement Income Security Act, alleging that the defendants breached their fiduciary duties of prudence and loyalty by their lack of systematic and unbiased review of the plan’s investment options (Stacey Wayman, individually and on behalf of herself and all others similarly situated v. Wells Fargo & Co., et al., No. 17-05153, D. Minn.).
SEATTLE — A Washington federal judge on Nov. 28 denied a motion to dismiss filed by health plan defendants after determining that the health plan may have violated the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 by excluding coverage for two specific types of treatments for autism spectrum disorder (ASD) because the plan does not exclude all types of treatments for those diagnosed with ASD (D.T., et al. v. NECA/IBEW Family Medical Care Plan, et al., No. 17-00004, W.D. Wash., 2017 U.S. Dist. LEXIS 195186).
SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on Nov. 27 affirmed that a health plan participant who filed suit against the plan is not entitled to attorney fees because the parties submitted their dispute to arbitration, which is not considered an action under the Employee Retirement Income Security Act’s fee-shifting rule (Francisco Ponce De Leon v. International Longshoremen’s and Warehousemen’s Union-Pacific Maritime Association Welfare Plan, No. 16-55364, 9th Cir., 2017 U.S. App. LEXIS 23918).
WASHINGTON, D.C. — The U.S. Department of Labor’s Employee Benefits Security Administration on Nov. 29 published a notification in the Federal Register of a 90-day delay in the applicability of a final rule amending the claims procedure requirements that are applicable to employee disability benefit plans governed by the Employee Retirement Income Security Act.
WASHINGTON, D.C. — Review of the Second Circuit U.S. Court of Appeals’ ruling that New York law bars the offset of a claimant’s disability benefits with the proceeds of the claimant’s settlement of a personal injury suit is warranted because the Employee Retirement Income Security Act preempts the New York law at issue, a disability insurer argues in a Nov. 17 reply brief filed in the U.S. Supreme Court (Aetna Life Insurance Co. v. Salvatore Arnone, No. 17-416, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 4511).
By Robert M. Forni, Jr.
DENVER — A woman’s ERISA suit seeking $377,233.50 for multilevel fusion surgery fails, first because the doctor who performed the procedure failed to exhaust administrative remedies and because the insured has not shown that her insurer erred in denying coverage sought by other doctors, a federal magistrate judge in Colorado held Nov. 30 in recommending dismissal of the suit (Rebecca Concilio v. Cigna Health and Life Insurance Co., No. 16-1863, D. Colo.).
SANTA ANA, Calif. — Participants and beneficiaries of a multiemployer defined contribution retirement plan on Nov. 28 filed suit in federal court under the Employee Retirement Income Security Act, alleging that the plan’s sponsor, the board of trustees and its past and present members breached their fiduciary duties by offering retail class mutual fund shares when identical lower-cost institutional class shares were available (Felipe Ybarra, et al. v. Board of Trustees of Supplemental Income Trust Fund, No. 17-2091, C. D. Calif.).
HONOLULU — A pension fund trustee’s breach of fiduciary duty claims arising out of the defendants’ failure to make payments to a pension trust fund must be dismissed because unpaid contributions are not plan assets that would create a fiduciary obligation, a Hawaii federal judge said Nov. 13 (Hawaii Masons’ Pension Trust Fund, et al. v. Global Stone Hawaii Inc., No. 17-289, D. Hawaii, 2017 U.S. Dist. LEXIS 188771).
WASHINGTON, D.C. — A retiree seeking reinstatement of his terminated health benefits under the Employee Retirement Income Security Act and asking the U.S. Supreme Court to decide a forum-selection dispute is not likely to have his petition for writ of certiorari granted and so no stay should be issued pausing the district court proceedings, the retiree’s former employer, Caterpillar Inc., argues in its opposition to application to stay filed Nov. 29 in the U.S. Supreme Court (George W. Mathias v. United States District Court for the Central District of Illinois, et al., No. 17-740, U.S. Sup.).
LEXINGTON, Ky. — A Kentucky federal judge on Nov. 28 determined that a plaintiff’s claim for negligence per se for the practice of medicine without a license based on a defendant’s certification of information about the plaintiff’s disability without approval from the plaintiff’s doctor is preempted by the Employee Retirement Income Security Act and must be dismissed (Mark Morcus v. Medi-Copy Services Inc., et al., No. 17-229, E.D. Ky., 2017 U.S. Dist. LEXIS 195485).
WASHINGTON, D.C. — The U.S. Department of Labor (DOL) announced on Nov. 27 an 18-month extension of the special transition period for the Fiduciary Rule’s Best Interest Contract Exemption and the Principal Transactions Exemption as well as the applicability of certain amendments to Prohibited Transaction Exemption 84-24.
NEW YORK — A New York federal judge on Nov. 27 granted a motion for class certification filed by plaintiffs alleging that a retirement plan’s administrative and investment committees breached their fiduciary duties by selecting company-affiliated mutual funds as plan investments rather than other better-performing mutual funds after determining that the plaintiffs established the requirements necessary for class certification (Marya J. Leber v. Citigroup, Inc., et al., No. 07-9329, S.D. N.Y., 2017 U.S. Dist. LEXIS 194293).
WASHINGTON, D.C. — In a Nov. 27 response brief, a pension plan participant urges the U.S. Supreme Court to deny a petition for writ of certiorari filed by a group of affiliated brokers who manage funds on behalf of the pension plan on the basis that the Second Circuit U.S. Court of Appeals correctly found that the plan participant has standing to sue on behalf of himself, his pension plan and other similarly situated Employee Retirement Income Security Act plans over alleged improper fiduciary conduct (Convergex Group LLC, et al. v. Landol Fletcher, No. 17-343, U.S. Sup.).
PHILADELPHIA — The Third Circuit U.S. Court of Appeals on Nov. 24 affirmed a lower federal court’s finding that the former employee of the University of Pittsburgh Medical Center cannot recover pension benefits under the Employee Retirement Income Security Act because he sought benefits under a top-hat plan, rejecting the appellant’s argument that plan participant bargaining power is a substantive element of a top-hat plan (Paul F. Sikora v. UPMC, et al., No. 17-1288, 3rd Cir., 2017 U.S. App. LEXIS 23796).