Alston + Bird

“Enbancworthy” - Fifth Circuit Weighs in on Whether Company Can Recover Funds from Special Needs Trust

Thu, 16 May 2013 15:22:35 GMT

In the wake of the Supreme Court’s decision in McCutchen v. US Airways, the Fifth Circuit reconsidered ACS Recovery Services v. Griffin, deeming “enbancworthy” the question of whether a plan administrator can recover paid medical expenses from a covered employee, his special needs trust and/or from his ex-wife (in case you are wondering, that’s the Court’s word, not ours). The Fifth Circuit held en banc that the plan administrator could recover the medical costs borne by the Plan from the Special Needs Trust, that the Trust was a proper ERISA defendant, and that the Plan held a pre-existing equitable lien on the proceeds of any tort recovery that the employee received, after the Plan paid his medical bills.

For more on the Fifth Circuit’s en banc reversal of its previous decision in ACS Recovery Services v. Griffin, please read the full blog entry.

Seventh Circuit Addresses Whether Financial Service Provider is ERISA Fiduciary

Thu, 02 May 2013 10:12:31 GMT

The U.S. Court of Appeals for the Seventh Circuit has recently decided a case challenging the amount of fees paid by 401(k) plan participants. Leimkuehler v. Am. United Life Ins. Co., _ F.3d _, 2013 WL 1591450 (7th Cir. 2013). This opinion is likely to have vast implications for that type of litigation specifically and the scope of fiduciary status generally. In recent years, a number of lawsuits have been brought accusing 401(k) plan service providers of improperly receiving “revenue sharing” payments from the expense ratios of the mutual funds in which the plan’s assets are invested. The Leimkuehler opinion addresses a threshold issue in such cases – whether financial service providers are fiduciaries under ERISA for purposes of negotiating or receiving revenue sharing payments.

To find out more about the Seventh Circuit's decision, continue reading.

No More Beating Around The Bush: The Seventh Circuit Finally Adopts The Moench Presumption

Tue, 30 Apr 2013 09:30:16 GMT

After multiple cases in which the United States Court of Appeals for the Seventh Circuit had expressed approval for the “Moench presumption,” without formally adopting the presumption, the Court recently took the final step. Indeed, the Seventh Circuit’s take on the presumption may be the hardest to overcome of any circuit. How so? Read on to find out.

Rosy Relief in Sight for the Plan in CGI Technologies & Solutions v. Rose

Thu, 25 Apr 2013 18:14:25 GMT

On April 22, 2013, the Supreme Court granted the petition for a writ of certiorari in CGI Technologies & Solutions v. Rose, et al., and then immediately vacated and remanded the Ninth Circuit’s judgment in light of US Airways, Inc. v. McCutchen, 569 U.S. ____ (2013).

The facts of this case are quite similar to McCutchen. However, unlike in McCutchen, the plan in CGI Technologies & Solutions v. Rose expressly disclaims the common-fund and make-whole doctrines. Thus, on remand under McCutchen, we expect that the Ninth Circuit will allow the express terms of the plan to govern and require Rose to reimburse the plan in full for medical expenses it incurred on her behalf.

ERISA Litigation Advisory - High Court Issues Half-Victory for ERISA Plan Administrators—Reinforcing the Importance of Clear, Unambiguous Plan Terms

Fri, 19 Apr 2013 10:14:47 GMT

This advisory discusses the Supreme Court’s recent decision in US Airways v. McCutchen—a decision that can best be described as a half-victory for sponsors and administrators of ERISA-governed plans.

To access the full advisory, continue reading below.

Second Circuit: Former Fiduciary Has Standing To Bring Action For Breach Of Fiduciary Duty

Fri, 29 Mar 2013 10:11:01 GMT

ERISA provides standing to bring an action for breach of fiduciary only to a plan’s participants, beneficiaries, and fiduciaries. However, the United States Court of Appeals for the Second Circuit recently held that an entity had standing to bring an action even though it had ceased being a fiduciary more than 20 years prior to the decision. What led the court to reach this result? Read on to find out.

Fourth Circuit Joins Third Circuit In Holding ERISA Does Not Preempt Post-Distribution Suits Against Beneficiaries

Mon, 11 Mar 2013 15:23:33 GMT

ERISA requires that “[e]very employee benefit plan . . . be established and maintained pursuant to a written instrument” that “specif[ies] the basis on which payments are made to and from the plan.” 29 U.S.C. §§ 1102(a)(1), (b)(4). ERISA then directs the plan administrator to discharge his duties “in accordance with the documents and instruments governing the plan.” Id. § 1104(a)(1)(D).

In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285 (2009), the Supreme Court held that an ERISA plan administrator must distribute benefits to the beneficiary named in the plan, regardless of any state-law waiver purporting to divest that beneficiary of his right to the benefits. However, Kennedy explicitly left open the question of whether, once the benefits are distributed by the administrator, the decedent’s estate can enforce a waiver against the plan beneficiary. See id. at 299 n. 10 (“Nor do we express any view as to whether the Estate could have brought an action in state or federal court against [the plan beneficiary] to obtain the benefits after they were distributed.”). The Fourth Circuit recently addressed this question in the affirmative, following the Third Circuit’s holding in Estate of Kensinger v. URL Pharma, Inc., 674 F.3d 131 (3d Cir. 2012). See Andochick v. Byrd, No. 1:11–cv–739, 2013 WL 781978 (4th Cir. March 4, 2013).

Fourth Circuit: Defined Benefit Pension Plan Participants Lack Standing To Challenge Plan’s Investment In Sponsor-Affiliated Funds

Mon, 28 Jan 2013 15:13:43 GMT

The United States Court of Appeals for the Fourth Circuit recently held, over the objections of not only the putative class representatives but amicus briefs filed by the Department of Labor, the Pension Benefit Guaranty Corporation, and the AARP, that participants in a defined benefit pension plan lack standing to challenge the plan’s investments in mutual funds that were affiliated with the plan’s sponsor. Why did the plaintiffs lack standing? Read on to find out.

Class Certified in Pfeil v. State Street Bank & Trust Co.

Mon, 14 Jan 2013 16:50:27 GMT

On January 4, 2013, federal district court judge Denise Hood of the Eastern District of Michigan certified a class action in Pfeil v. State Street Bank & Trust Co. under Fed. R. Civ. P. 23(a), 23(b)(1)(B) and 23(b)(3). The certified class includes all participants or beneficiaries of the GM retirement plans who suffered losses to their investments in the GM stock fund during the class period of July 15, 2008 to April 24, 2009. This blog post provides a brief recap of the litigation and class certification in Pfeil.

Supreme Court Says “Bah Humbug” to Cert Petition from State Street Bank

Thu, 20 Dec 2012 15:23:20 GMT

On December 3, 2012, the Supreme Court denied State Street’s petition for a writ of certiorari with regard to the Sixth Circuit’s decision in Pfeil v. State Street Bank & Trust Co., 671 F.3d 585 (6th Cir. 2012). Decided February 22, 2012, the Sixth Circuit held in Pfeil that the presumption of prudence for employer stock is evidentiary in nature and thus does not apply at the pleading stage. The Sixth Circuit’s rejection of the application of the presumption at the pleadings stage is unique among the Circuit Courts of Appeals.

Perhaps State Street is getting coal in its stocking because it abandoned the controversial presumption of prudence ruling in its cert petition and instead raised two more narrow issues.

For more on this case, please continue reading.

Claims Spanning Decades, Ten Subclasses No Problem for ERISA Class Cert Bid in Seventh Circuit

Mon, 17 Dec 2012 13:01:00 GMT

Federal Rule of Civil Procedure 23(b)(2) authorizes class action treatment if the defendant “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” But is it really possible for a defendant to “act” or “refuse to act” the same way with respect to a group that is so large and varied that it is broken into 10 separate and distinct subclasses? Judge Posner thinks so. Indeed, writing on behalf of a three-judge panel of the Seventh Circuit, Judge Posner recently affirmed certification under Rule 23(b)(2) of a class of more than 4,000 individuals who participated in an ERISA-governed pension plan over a span of 23 years, and comprising 10 distinct subclasses. See Johnson v. Meriter Health Services Employee Retirement Plan, --- F.3d ----, 2012 WL 6013457 (7th Cir. Dec. 4, 2012).

Update on Oral Argument in U.S. Airways, Inc. v. McCutchen

Mon, 10 Dec 2012 17:17:05 GMT

The Supreme Court heard oral argument of US Airways, Inc. v. McCutchen on November 27, 2012. The topics considered during oral argument were far-reaching and show that this case is far from decided. However, while oral argument can shed some light on the Supreme Court’s current thoughts on McCutchen, the ERISA community will ultimately have to just sit back and wait to see whether the Supreme Court will resolve the question of whether “equitable defenses” can trump express plan language to limit a plan’s recovery under § 502(a)(3). If so, this case will have a far-reaching impact on related reimbursement and underlying tort litigation.

Eighth Circuit: Multiemployer Funds Not Required To Refund Mistaken Contributions To Employer

Thu, 29 Nov 2012 14:49:11 GMT

The United States Court of Appeals for the Eighth Circuit recently reviewed a case in which the evidence suggested that the employer had mistakenly overpaid over a half-million dollars to multiemployer funds based upon a misunderstanding as to the scope of its collective bargaining agreement. In the process of reviewing that decision, the Court noted that ERISA specifically exempts mistaken overpayments from its anti-inurement provision and that its own precedent specifically granted employers a common law action for restitution of mistaken payments.

Nevertheless, the Eighth Circuit held that, under the circumstances of the case, equity did not justify a refund of the overpayment to the employer and affirmed summary judgment in favor of the funds. What led the Court to reach this decision? Read on to find out.

Judge Refuses to Back Chiropractors’ Putative Class Action Complaint against Horizon Healthcare

Tue, 27 Nov 2012 17:29:38 GMT

Judge Martini of the United States District Court for the District of New Jersey recently dismissed a putative class action lawsuit against Horizon Healthcare Services. The plaintiffs (various chiropractors who regularly provide certain chiropractic treatments for plan participants) alleged that Horizon systematically and improperly denied reimbursement for certain types of chiropractic services. Horizon later claimed that it “bundled” reimbursement for the chiropractic services into a “global fee.”

The Court granted Horizon’s motion to dismiss, finding that the plaintiffs’ “vague references to a common practice and purported assignment” were not enough to satisfy the chiropractors’ burden to prove that they had standing to sue under ERISA. See Demaria v. Horizon Healthcare Services, Inc., No. 2:11–cv–7298 (WJM), 2012 WL 5472116, at *4 (D.N.J. Nov. 9, 2012).

Read the entire blog entry to find out why Judge Martini decided to not back the chiropractors in response to Horizon’s motion to dismiss.

No Good Deed Goes Unpunished: Fiduciaries May Seek Contribution From Co-Fiduciaries

Wed, 14 Nov 2012 15:00:12 GMT

We all know that a fiduciary must act solely in the interests of the participants and beneficiaries of the plan at all times. This includes, for example, bringing a lawsuit against former fiduciaries or current co-fiduciaries for breaches of their fiduciary duty that caused harm to the plan. But, what happens when Fiduciary No. 1 brings a lawsuit against Fiduciary No. 2, and then Fiduciary No. 2 turns around and seeks contribution and indemnification from Fiduciary No. 1? There is no statutory right to contribution and indemnification under ERISA, but is this permitted under common law? The Supreme Court has not ruled on whether an ERISA fiduciary has the right to seek contribution and indemnity from a co-fiduciary, and several Circuits and district courts are split on this issue. However, a recent decision from the Middle District of Florida relied on trust principles to hold that the rights to contribution and indemnity from co-fiduciaries under ERISA are properly permitted pursuant to federal common law. See Guididas v. Community National Bank Corp., Case No. 8-11-cv-02545-JSM-TBM (M.D. Fla., Nov. 5, 2012).

Supreme Court Briefs Filed in US Airways, Inc. v. McCutchen, Oral Argument Set For November 27, 2012

Fri, 09 Nov 2012 10:15:23 GMT

Both parties have filed their briefs on the merits in McCutchen, and oral argument is less than three weeks away. We are eagerly awaiting the Supreme Court’s input on whether plan provisions seeking full reimbursement under § 502(a)(3) can be subject to “equitable defenses.” While we wait, what can the parties’ briefs tell us about this contentious fight?

Supreme Court Denies Cert in Citigroup- Is the Fate of the Moench Presumption Certain?

Tue, 23 Oct 2012 16:13:31 GMT

On October 15, 2012, the Supreme Court denied the petition for writs of certiorari filed by plan participants in 401(k) plans sponsored by Citigroup and McGraw-Hill Companies, meaning that the high court chose not to weigh in on the Second Circuit’s adoption of the presumption of prudence regarding investment in employer stock, otherwise known as the Moench presumption. However, the Moench presumption may yet make its way to the Supreme Court, thanks to the Sixth Circuit’s minority holding that rejected the application of the presumption at the pleadings stage. Will the Supremes be more willing to take up this issue on a cert petition in Pfeil v. State Street Bank & Trust Co., 671 F.3d 585 (6th Cir. 2012)?

Pat DiCarlo Is Honored With St. Thomas More Award

Fri, 12 Oct 2012 16:09:38 GMT

Pat DiCarlo is an honored recipient of the Saint Thomas More Award, which is presented annually to one or more judges and lawyers, to recognize actions manifesting a commitment to justice and humanity, especially in difficult circumstances. Mr. DiCarlo and Lane Dennard were honored concurrently for their work with the Georgia Justice Project. Mr. DiCarlo and Mr. Dennard began providing pro bono representation to individuals who were unable to obtain employment, housing or governmental benefits due to a criminal history. Together with other volunteers, Mr. DiCarlo and Mr. Dennard gathered empirical research and co-authored a book on the ramifications of criminal arrests and convictions, entitled Consequences of Arrest and Conviction: Policy and Law in Georgia. They testified in front of the Georgia legislature and worked tirelessly to reform Georgia’s expungement statute. Now, the circumstances in which criminal arrest information can be removed from criminal histories has been expanded, easing the path to jobs and housing for countless Georgians.

Supreme Court Refuses To Review Decision Requiring Union To Indemnify Employer For Withdrawal Liability

Thu, 11 Oct 2012 14:24:12 GMT

On October 1, 2012, the Supreme Court of the United States declined to review a decision of the United States Court of Appeals for the Sixth Circuit which upheld a provision of a collective bargaining agreement (“CBA”) requiring the union to indemnify the employer for withdrawal liability.

Seventh Circuit Achieves Broad Interpretation of ERISA § 510

Mon, 08 Oct 2012 13:29:30 GMT

In a recent anti-retaliation lawsuit, the Seventh Circuit decided as a matter of first impression that unsolicited, informal complaints constitute a protected “inquiry” under ERISA § 510. In doing so, the Seventh Circuit became the most recent circuit to join in a split on this issue, joining with the Fifth and Ninth Circuits, despite opposing opinions from the Second, Third and Fourth Circuits.

Doug Hinson Named 2013 "Lawyer of the Year"

Thu, 04 Oct 2012 17:13:00 GMT

Doug Hinson, the leader of Alston & Bird’s ERISA Litigation Practice Group, was recently named a 2013 “Lawyer of the Year,” by The Best Lawyers In America, one of the oldest and most respected peer-review publications in the legal profession. Mr. Hinson was one of eighteen Alston & Bird attorneys across a wide range of practices who were named a 2013 “Lawyer of the Year.” For more information regarding the “Lawyers of the Year,” click here.

Ninth Circuit Finds The “Fiduciary Exception” To The Attorney-Client Privilege Extends To Insurance Companies Acting As Fiduciaries To ERISA Plans

Tue, 02 Oct 2012 13:00:10 GMT

In a matter of first impression, the Ninth Circuit recently held that the attorney-client privilege does not apply to communications between an insurer and counsel before a claims decision is made. Creating a split with the Third Circuit, the Ninth Circuit held that the “fiduciary exception” to the attorney-client privilege should be extended to insurers that administer benefit plans governed by ERISA, and acting in a fiduciary capacity. See Stephan v. Unum Life Ins. Co. of Am., No. 10-16840l, --- F.3d ----, 2012 WL 3983767 (9th Cir. Sept. 12, 2012). This is a chilling decision for all practitioners who advise insurers of ERISA plans.

ERISA Practice Group Leader Doug Hinson Leads Upcoming Webinar

Fri, 28 Sep 2012 13:36:28 GMT

ERISA Litigation leader Doug Hinson is leading a webinar entitled ERISA Updates & Best Practices for Lawyers on Friday, October 5th, 12:30 EDT. In this webinar, ExecSense examines the latest updates and developments concerning litigation under the Employee Retirement Income Security Act of 1974 (ERISA). Click for details.

Second Circuit: Amending a Plan is Not a Fiduciary Act

Fri, 07 Sep 2012 07:38:11 GMT

On August 27, 2012, in Janese, et al. v. Fay, et al., the Second Circuit held that trustees of a multi-employer pension fund do not act as fiduciaries when they amend the pension plan. Although it may not be a controversial decision, this holding is still significant because it expressly overruled contrary Second Circuit authority, specifically Chambless v. Masters, Mates & Pilots Pension Plan, 772 F.2d 1032 (2d Cir. 1985) and Siskind v. Sperry Ret. Program, Unisys, 47 F.3d 498 (2d Cir. 1995).

In Control: Sixth Circuit Hones in on the Key to Fiduciary Status under ERISA

Wed, 05 Sep 2012 18:01:14 GMT

In an opinion covering two cases, the Sixth Circuit recently held that ERISA confers fiduciary status to any entity that controls plan assets. The cases are Guyan International Inc. v. Professional Benefits Administrators Inc., No. 11-3126, 2012 WL 3553281 (6th Cir. Aug. 20, 2012) and Pritchard Mining Co. Inc. v. Professional Benefits Administrators Inc., No. 11-3640 (6th Cir. Aug. 20, 2012).

Eighth Circuit Upholds Right of Employers to Unilaterally Modify Retiree Benefits Where There is No Clear Evidence of Vesting

Wed, 15 Aug 2012 14:45:28 GMT

On August 7, 2012, the United States Court of Appeals for the Eighth Circuit upheld unilateral changes to retiree benefits by Whirlpool Corporation (“Whirlpool”) for former employees of Maytag Corporation (“Maytag”), which was acquired by Whirlpool in 2006.

Rose Named Chair of ABA’s Joint Committee on Employee Benefits

Mon, 13 Aug 2012 17:39:49 GMT

Jonathan Rose, a partner in the ERISA Litigation Group in the firm’s Washington, D.C. office, has been appointed chair of the American Bar Association’s (ABA) Joint Committee on Employee Benefits (JCEB). Rose was appointed during the ABA’s 2012 Annual Meeting in Chicago and will serve a one-year term.

Mars, Inc. Lands Victory in Pension Benefits Misrepresentation Suit

Thu, 09 Aug 2012 14:07:32 GMT

In a recent pension benefits misrepresentation decision, the Southern District of Ohio granted summary judgment for the defense on Plaintiff Virginia Stark’s claims for estoppel and breach of fiduciary duty. Stark v. Mars, Inc., et al., No. 2:10-cv-642, 2012 WL 2918410 (S.D. Ohio July 17, 2012).

Second Circuit Affirms Dismissal of Retiree Welfare Benefit Termination Class Action Against Xerox

Mon, 06 Aug 2012 10:13:09 GMT

On August 3, 2012, the Second Circuit affirmed dismissal of a putative ERISA class action against Xerox Corporation (“Xerox”), because the plaintiffs did not allege sufficient factual content from which to conclude that Xerox (and the other defendants) misrepresented any material matter to plan participants regarding the receipt of their lifetime health care benefits and, in the absence of any other alleged breach of fiduciary duty, the plaintiffs did not state a plausible claim for relief under Sections 1132(a)(2) or (a)(3) of ERISA. See Coriale v. Xerox Corp., et al., Case No. 11-1724-cv (2d Cir. Aug. 3, 2012).

Sixth Circuit Still Feels Pfeil and Finds Presumption of Prudence Inapplicable at Pleading Stage

Tue, 31 Jul 2012 09:53:16 GMT

In a recent case, Griffin v. Flagstar Bancorp, Inc., No. 11–1497, 2012 WL 2989231 (6th Cir. July 23, 2012), the Sixth Circuit stuck with its position that the presumption of prudence does not apply at the pleadings stage, when it reversed an order dismissing a putative ERISA class action.

U.S. Airways Class Action Fails to Take Off

Fri, 20 Jul 2012 16:43:47 GMT

On July 18, 2012, Judge Rosemary Collyer of the United States District Court for the District of Columbia denied certification of a class of 1,350 U.S. Airways pilots in an ERISA class action to recover interest on lump sum pension distributions, in a case that has been pending for more than a decade. Judge Collyer held that the named plaintiff’s exhaustion of his administrative remedies under the pension plan did not suffice for the entire class, and does not, as a matter of law, excuse the entire putative class from exhausting their administrative remedies. Therefore, the pilots’ claims could not be maintained as a class action.

Post-Amara Fourth Circuit Approves Equitable Remedies under ERISA § 502(a)(3)

Thu, 12 Jul 2012 10:30:22 GMT

In light of the Supreme Court’s decision in CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011), a panel of the Fourth Circuit has allowed the pursuit of equitable remedies – including surcharge and equitable estoppel – under ERISA § 502(a)(3).

Sixth Circuit Keeps Safe Harbor For Plan Sponsors Transferring Elected Investments Into QDIAs

Wed, 11 Jul 2012 14:25:30 GMT

On June 29, 2012, the United States Court of Appeals for the Sixth Circuit held that regulations promulgated by the Department of Labor (“DOL”) authorizing plans to place default investments in Qualified Default Investment Alternatives (“QDIA”) protect plan sponsors who transfer funds from elected investments into a QDIA, as long as adequate notice and other requirements are satisfied.

Alston & Bird Special Edition Health Care Advisory regarding the Supreme Court’s Decision the Affordable Care Act

Tue, 03 Jul 2012 11:33:37 GMT

On June 28, the highly anticipated decision in National Federation of Independent Business v. Sebelius was released by the Supreme Court. Alston & Bird’s Health Care, Legislative & Public Policy, Litigation, and Tax groups collaborated to prepare a full advisory regarding the major holdings of this critical case.

Cert Alert: Supreme Court to Consider Appeal regarding Right of Plans to Seek Reimbursements from Plan Participants

Mon, 02 Jul 2012 10:34:58 GMT

On June 25, the Supreme Court granted the petition for a writ of certiorari submitted by US Airways, regarding the Third Circuit’s ruling in US Airways, Inc. v. McCutchen, 663 F.3d 671 (3d Cir. 2011). The Third Circuit held that a judgment requiring a plan participant to provide full reimbursement to the plan administrator for medical expenses which the administrator paid to the participant constituted “inappropriate and inequitable relief.”

Ninth Circuit Allows Equitable Defense to Trump Express Plan Terms in § 502(a)(3) Reimbursement Actions

Mon, 25 Jun 2012 16:40:17 GMT

On June 20, the Ninth Circuit ruled that equitable defenses can trump express contractual language in lawsuits seeking “appropriate equitable relief” under ERISA § 502(a)(3).

Rhonda Rose (“Rose”) was employed by CGI Technologies and Solutions, Inc. (“CGI”) and a participant of CGI’s ERISA-governed employee welfare benefits plan. The Plan contains a subrogation and reimbursement clause that expressly: (1) gives CGI the right to full reimbursement for medical expenses paid on behalf of the beneficiary from any funds recovered by the beneficiary from a third party tortfeasor; (2) exempts CGI from responsibility for attorneys’ fees paid in any such recovery (expressly disclaiming the common fund doctrine); and (3) requires full reimbursement to CGI regardless of whether the beneficiary is made whole by the recovery.

D.C. Circuit Upholds Right of Employers To Unilaterally Change Benefit Plans During Negotiations Where The Company Has A History Of Doing So

Thu, 14 Jun 2012 09:58:15 GMT

On June 8, 2012, the United States Court of Appeals for the District of Columbia Circuit held that changes made by E.I. du Pont de Nemours and Company (“DuPont”) to its ERISA-governed medical plan (the “Plan”) after the expiration of collective bargaining agreements (“CBA”) with two local unions did not violate the National Labor Relations Act (“NLRA”) because DuPont had an established practice of unilaterally changing the plan and because the Plan had a provision authorizing DuPont to make such changes.

ERISA “Fiduciary Exception” Does Not Exempt Attorney Correspondence Created After the Filing of a Complaint from Work-Product Protection

Mon, 11 Jun 2012 17:46:56 GMT

On May 31, 2012, Magistrate Judge Ann Marie Donio of the United States District Court for the District of New Jersey denied plaintiffs’ motion to compel the production of 54 e-mails on the basis that these documents were protected from disclosure by the work-product doctrine. In doing so, Judge Donio held that these documents did not fall within the “fiduciary exception” commonly applied in the ERISA context so as to mandate their disclosure because the documents were created specifically for use in litigation against the beneficiary requesting the documents. See Goldenberg v. Indel, Inc., et al., Case No. 09-5202, Order dated May 31, 2012 (Doc. No. 205).

Sixth Circuit Locks the Door on ERISA Class Action in Taylor v. KeyCorp

Wed, 06 Jun 2012 11:42:00 GMT

On May 25, 2012, the United States Court of Appeals for the Sixth Circuit affirmed the dismissal of a class representative’s putative ERISA class action against KeyCorp and related defendants because the proffered “class representative” could not demonstrate that she suffered any actual injury from the alleged breach of fiduciary duty and, therefore, lacked standing. See Taylor v. KeyCorp, No. 10-4163, 2012 WL 1889283 (6th Cir. May 25, 2012).

When the Presumption of Prudence Applies

Tue, 05 Jun 2012 21:40:54 GMT

Although more than fifteen years have passed since the Third Circuit issued its seminal decision in Moench v. Robertson, 62 F.3d 553 (3d Cir. 1995), courts are still grappling with its application and reach. Indeed, district courts nationwide have reached conflicting decisions on whether the “Moench presumption” may be applied when considering a motion to dismiss. On February 22, 2012, the Sixth Circuit resolved a split among its district courts, holding that the Moench presumption of “reasonableness” is not an additional pleading requirement and, thus, does not apply at the motion to dismiss stage. However, on May 8, 2012, the Eleventh Circuit considered and rejected the Sixth Circuit’s reasoning. Embracing the reasoning previously articulated by the Second and Third Circuits, the Eleventh Circuit held that the Moench analysis is not an evidentiary presumption, but can be applied to dismiss a claim under Fed. R. Civ. P. 12(b)(6). The Sixth Circuit now stands as the only Circuit to affirmatively reject the Moench presumption as a standard that may be applied at the pleading stage. These recent Circuit court opinions beg the question: When does the Moench presumption of prudence apply?

Read When the Presumption of Prudence Applies at Law360. Written by Jonathan Rose and Emily Seymour Costin.