TreatiseAnswer Book

ERISA Benefits Litigation Answer Book (2013 Edition)

 by Amanda S. Amert, Craig C Martin
 
 Copyright: 2013

 Product Details >> 

Product Details

  • ISBN Number: 9781402417047
  • Page Count: 394
  • Number of Volumes: 1
  •  

ERISA Benefits Litigation Answer Book provides a comprehensive overview, in question and answer format, of the various causes of action the Employee Retirement Income Security Act provides to remedy violations of the statute, enforce the terms of a benefit plan, or provide other relief to a plan, its participants or its fiduciaries. [PLI1] 

Written by a team of authors with many years of ERISA litigation experience, and filled with practical illustrations and tips, ERISA Benefits Litigation Answer Book describes the legal requirements of, defenses to, and unique aspects of litigation involving: stock drops, ESOPs, cash balance plans, prohibited transactions, 401(K) fees, recovery of benefits due under a plan, multi-employer plans, managed care plans, and discrimination and interference with benefits rights. Also covered are chapters discussing litigation of claims arising under federal common law, affirmative defenses to ERISA claims, and limitations on actions under ERISA.

  Table of Contents
Chapter 1: ERISA Causes of Action
  • Q 1.1 : What are the most common ERISA causes of action?2
  • Q 1.2 : What rights or duties are at issue in claims for denial of benefits?3
    • Q 1.2.1 : Who are the proper parties in a claim for denial of benefits?4
    • Q 1.2.2 : What are common allegations in claims for denial of benefits?4
    • Q 1.2.3 : What elements must a plaintiff generally establish in a claim for denial of benefits?5
    • Q 1.2.4 : What relief is available for claims for denial of benefits?6
  • Q 1.3 : What rights or duties are at issue in breach of fiduciary duty claims?6
    • Q 1.3.1 : Who are the proper parties in a claim for breach of fiduciary duty?8
    • Q 1.3.2 : What are some common allegations in a claim for breach of fiduciary duty?8
    • Q 1.3.3 : What elements must generally be proved to prevail in a claim for breach of fiduciary duty?8
    • Q 1.3.4 : What relief is available?9
  • Q 1.4 : What rights or duties are at issue in knowing participation claims?10
    • Q 1.4.1 : Who are proper parties in claims for knowing participation in a violation of ERISA?10
    • Q 1.4.2 : What are common allegations in knowing participation actions?10
    • Q 1.4.3 : What elements must a plaintiff generally establish?10
    • Q 1.4.4 : What relief is available?11
  • Q 1.5 : What rights or duties are at issue in interference claims?11
    • Q 1.5.1 : Who are the proper parties for an interference claim?12
    • Q 1.5.2 : What are some common types of interference actions?12
    • Q 1.5.3 : What elements must a plaintiff generally establish?12
    • Q 1.5.4 : What relief is available?13
  • Q 1.6 : What common law claims may be made under ERISA?13
Chapter 2: ERISA Actions in Federal Court
  • Q 2.1 : How does ERISA interact with state and local laws governing contract, employment, insurance, and other areas?18
  • Q 2.2 : Does ERISA preempt state laws?18
    • Q 2.2.1 : What is the scope of ERISA’s preemption?18
  • Q 2.3 : What civil remedies does ERISA exclusively provide?19
    • Q 2.3.1 : What does it mean for a state law to “relate” to ERISA?19
    • Q 2.3.2 : What does it mean for a state law to “refer” to ERISA?20
    • Q 2.3.3 : What does it mean for a state law to have a connection to ERISA?21
    • Q 2.3.4 : Which state laws are excepted from ERISA preemption?21
    • Q 2.3.5 : Are employer-funded ERISA plans subject to state insurance laws?22
    • Q 2.3.6 : What indicates whether a law regulates insurance so as to avoid preemption under ERISA?22
  • Q 2.4 : Who has standing to bring an ERISA suit?23
    • Q 2.4.1 : Who has standing to sue for monetary relief for breach of fiduciary duty claims?23
    • Q 2.4.2 : Who has standing to sue for equitable relief?25
    • Q 2.4.3 : What parties have standing to sue based on information requests?25
    • Q 2.4.4 : Are any other parties allowed to bring ERISA suits?26
  • Q 2.5 : Are ERISA actions in state court subject to removal?26
  • Q 2.6 : How does a defendant remove an ERISA case?28
Chapter 3: Class Action Litigation
  • Q 3.1 : Why would a plaintiff bring a class action in an ERISA case?32
  • Q 3.2 : What types of ERISA claims are brought as class actions?33
    • Q 3.2.1 : Can a claim for breach of fiduciary duty under ERISA § 502(a)(2) be brought as a class action?33
    • Q 3.2.2 : Can a claim for individual relief under ERISA § 502(a)(3) be brought as a class action?33
  • Q 3.3 : What are the requirements for the certification of an ERISA class?33
    • Q 3.3.1 : What issues or classes can be certified?34
    • Q 3.3.2 : When does class certification occur?34
  • Q 3.4 : What are the requirements of Rule 23(a)?34
    • Q 3.4.1 : What is required under Rule 23(a)(1)?34
    • Q 3.4.2 : What is required under Rule 23(a)(2)?35
    • Q 3.4.3 : What is required under Rule 23(a)(3)?36
    • Q 3.4.4 : What is required under Rule 23(a)(4)?36
    • Q 3.4.5 : Is there interplay among the four requirements of Rule 23(a)?37
    • Q 3.4.6 : When an ERISA breach of fiduciary duty claim is based upon representations made to beneficiaries, what class certification issues arise under Rule 23(a)?38
    • Q 3.4.7 : How do potential defenses affect the requirements of Rule 23(a)?39
  • Q 3.5 : What are the requirements of Rule 23(b)?39
    • Q 3.5.1 : How can a plaintiff meet the requirements of Rule 23(b)(1) in an ERISA case?40
    • Q 3.5.2 : How can a plaintiff meet the requirements of Rule 23(b)(2) in an ERISA case?40
    • Q 3.5.3 : How can a plaintiff meet the requirements of Rule 23(b)(3) in an ERISA case?42
    • Q 3.5.4 : What is the practical effect of having a class certified under Rule 23(b)(1), 23(b)(2) or 23(b)(3)?43
  • Q 3.6 : Are jury trials available in class action cases?43
  • Q 3.7 : What unique issues arise in settlement of ERISA class actions?43
    • Q 3.7.1 : How effective are releases of liability in class situations?44
    • Q 3.7.2 : What exempts class action settlements from ERISA’s prohibited transaction provisions?44
Chapter 4: Fiduciary Duties Under ERISA
  • Q 4.1 : What does it mean to be a “fiduciary” of an ERISA plan?48
  • Q 4.2 : How does a person or an entity become a “fiduciary” of an ERISA plan?48
    • Q 4.2.1 : What makes someone a “named” or “designated” fiduciary?49
    • Q 4.2.2 : What does it mean to function as a fiduciary by exercising discretionary authority or control?49
  • Q 4.3 : When is someone a fiduciary for certain purposes or particular actions?49
  • Q 4.4 : How many fiduciaries must an employee benefit plan have?51
  • Q 4.5 : For what is a fiduciary responsible?51
  • Q 4.6 : For what is a fiduciary liable?51
  • Q 4.7 : How does a fiduciary terminate its fiduciary status arising from being a named or designated fiduciary?52
    • Q 4.7.1 : How does a fiduciary formally terminate its fiduciary status?52
    • Q 4.7.2 : How does a fiduciary unequivocally terminate its fiduciary status?53
    • Q 4.7.3 : How does a fiduciary ensure that its resignation or termination of fiduciary status is in compliance with plan documents?53
    • Q 4.7.4 : What are a fiduciary’s obligations after resigning or terminating its fiduciary status?54
    • Q 4.7.5 : Must a resigning fiduciary appoint a successor fiduciary?54
    • Q 4.7.6 : Must a resigning fiduciary disclose material information necessary for the protection of the plan upon termination?55
    • Q 4.7.7 : Must a resigning fiduciary investigate the successor prior to termination?55
  • Q 4.8 : How does a fiduciary terminate its fiduciary status arising from the performance of fiduciary functions?55
  • Q 4.9 : Can fiduciary responsibility be waived?56
  • Q 4.10 : Can fiduciary responsibility be delegated?56
    • Q 4.10.1 : Does the fiduciary have ongoing responsibilities with respect to these delegations?57
  • Q 4.11 : What does it mean to be a fiduciary with a duty of loyalty to plan beneficiaries under ERISA?58
    • Q 4.11.1 : What is the standard of loyalty required of fiduciaries?58
    • Q 4.11.2 : Can a fiduciary have interests adverse to those of plan beneficiaries?58
    • Q 4.11.3 : Can an employer-trustee invest trust assets in its own securities?59
    • Q 4.11.4 : Can a fiduciary with a conflicting interest ever make decisions that are adverse to the interests of the beneficiaries?59
    • Q 4.11.5 : To what extent do fiduciary duties apply during plan creation and amendment?60
  • Q 4.12 : What is the duty to disclose information and avoid misrepresentations?61
    • Q 4.12.1 : What is “material information”?62
    • Q 4.12.2 : Does the duty to disclose information extend to future plans or plan amendments?62
    • Q 4.12.3 : Is the duty to disclose violated if no one asks for information specifically?63
    • Q 4.12.4 : What information does a fiduciary not have to disclose?64
    • Q 4.12.5 : What actions may plan beneficiaries take if this duty is violated?64
  • Q 4.13 : What is the duty to manage plan funds in the interests of participants and beneficiaries?64
    • Q 4.13.1 : Can a fiduciary ever benefit personally from investment decisions made for the plan beneficiaries?65
    • Q 4.13.2 : What should a fiduciary consider when making investment decisions?65
  • Q 4.14 : What is the duty of prudence?65
    • Q 4.14.1 : How do courts interpret the duty of prudence?66
    • Q 4.14.2 : What is the duty to invest prudently and how does it relate to the duty to investigate?66
    • Q 4.14.3 : How far must a fiduciary go to satisfy the duty to investigate?67
    • Q 4.14.4 : To what extent can a fiduciary rely on expert assistance?67
    • Q 4.14.5 : To what extent can a fiduciary rely on non-experts?68
    • Q 4.14.6 : How do courts assess the prudence of an investment?69
    • Q 4.14.7 : How do courts determine the prudence of loans?69
    • Q 4.14.8 : How do courts determine prudent management of Employee Stock Ownership Plans?70
    • Q 4.14.9 : May a fiduciary decide to invest in the securities of the plan’s sponsor?70
    • Q 4.14.10 : What are the obligations of a fiduciary with respect to sell-back options?71
    • Q 4.14.11 : What qualifies as prudent purchasing of annuities in connection with plan termination?71
  • Q 4.15 : What is the duty to diversify?72
    • Q 4.15.1 : What is the purpose of the duty to diversify?73
    • Q 4.15.2 : How can violations of the duty to diversify be challenged?73
    • Q 4.15.3 : What assets are subject to the duty to diversify?73
    • Q 4.15.4 : Is the final distribution of assets of a plan subject to the duty to diversify?74
    • Q 4.15.5 : Are investments in employer securities, including employee stock ownership plans (ESOPs), subject to the duty to diversify?74
    • Q 4.15.6 : Are annuities subject to the duty to diversify?74
    • Q 4.15.7 : Are real estate and mortgages subject to the duty to diversify?74
    • Q 4.15.8 : What is the scope of the duty to diversify?75
    • Q 4.15.9 : In a claim for breach of the duty to diversify, what is the plaintiff’s burden?75
    • Q 4.15.10 : In defending a claim for breach of this duty, what is the defendant’s burden?75
  • Q 4.16 : What is the duty to act in accordance with the documents and instruments governing the plan?76
    • Q 4.16.1 : In what circumstances have courts found this duty violated?76
    • Q 4.16.2 : When a court finds that this duty was violated, what types of damages are awarded?77
    • Q 4.16.3 : How has this duty been construed by courts in claims for improper denial of benefits?77
    • Q 4.16.4 : Does this duty change if the plan documents and other ERISA provisions conflict?78
    • Q 4.16.5 : If a fiduciary violates other ERISA duties but acts in accordance with the documents and instruments governing the plan, has he violated the duty of loyalty?78
    • Q 4.16.6 : What should a fiduciary do if the plan documents contain provisions that partially conflict with an ERISA provision?79
    • Q 4.16.7 : How have courts construed language in plan documents granting fiduciaries discretionary authority?79
    • Q 4.16.8 : Is a grant of discretionary authority in unincorporated trust agreements or other instruments sufficient?79
    • Q 4.16.9 : How have courts construed a fiduciary’s authority to interpret and apply trustee-created rules?79
    • Q 4.16.10 : What is a fiduciary’s authority to interpret and define ambiguous terms in the plan document?80
    • Q 4.16.11 : What actions do not fall within the duty to comply with plan documents?80
    • Q 4.16.12 : Which documents and instruments govern the plan?80
    • Q 4.16.13 : Can an employee recover promised benefits even if the promise was not contained in a governing document?81
Chapter 5: Breach of Fiduciary Duty Litigation
  • Q 5.1 : What actions are available for breach of fiduciary duty under ERISA?88
  • Q 5.2 : Who may bring a claim for breach of fiduciary duty?89
    • Q 5.2.1 : Who is a “participant”?89
    • Q 5.2.2 : Who is a “beneficiary”?90
    • Q 5.2.3 : Who is a “fiduciary”?90
  • Q 5.3 : Who may recover for breach of fiduciary duty?91
  • Q 5.4 : What remedies are available for a breach of fiduciary duty under ERISA?91
    • Q 5.4.1 : Are compensatory damages recoverable?92
    • Q 5.4.2 : Are punitive damages recoverable?92
    • Q 5.4.3 : Is restitution available?92
    • Q 5.4.4 : Can a fiduciary’s transaction in breach of its fiduciary duties be canceled or avoided?93
    • Q 5.4.5 : Can the court impose a constructive trust?93
    • Q 5.4.6 : Is an injunction available?94
  • Q 5.5 : What is the applicable statute of limitations?94
  • Q 5.6 : In what court can an action for breach of fiduciary duty be filed?95
  • Q 5.7 : Is a jury trial available?96
  • Q 5.8 : When can a § 502(a)(2) action on behalf of the plan be brought?96
    • Q 5.8.1 : Who may bring a § 502(a)(2) action?96
    • Q 5.8.2 : Who is a proper defendant in a § 502(a)(2) action?96
    • Q 5.8.3 : What relief is available in a § 502(a)(2) action?96
  • Q 5.9 : When can a § 502(a)(3) action seeking individual relief be brought?97
    • Q 5.9.1 : Who may seek individual relief under a § 502(a)(3) action?97
    • Q 5.9.2 : Who is a proper defendant in a § 502(a)(3) action?97
    • Q 5.9.3 : What relief is available in a § 502(a)(3) action?97
    • Q 5.9.4 : What is “other appropriate equitable relief”?98
    • Q 5.9.5 : What if relief is available under other ERISA provisions?98
Chapter 6: Stock Drop Litigation
  • Q 6.1 : What are ERISA “stock drop suits”?102
  • Q 6.2 : Which types of ERISA plans are permitted to invest in employer stock?102
  • Q 6.3 : Which fiduciary duties apply to fiduciaries of EIAPs and ESOPs?103
  • Q 6.4 : What is the duty of loyalty?104
    • Q 6.4.1 : When does the duty of loyalty apply?104
    • Q 6.4.2 : What facts do plaintiffs typically allege are indicative of a breach of the duty of loyalty?105
  • Q 6.5 : What obligations do the duties of prudence and loyalty encompass in stock drop litigation?106
  • Q 6.6 : What is the duty to investigate and when does it arise?106
    • Q 6.6.1 : When does an ERISA fiduciary have a duty to investigate company affairs affecting stock value?106
    • Q 6.6.2 : What does the duty to investigate investment decisions entail?107
  • Q 6.7 : What is the duty to monitor?108
    • Q 6.7.1 : How broad is the duty to monitor?109
    • Q 6.7.2 : What conduct does the duty to monitor require?109
  • Q 6.8 : What is the duty to disclose?110
    • Q 6.8.1 : How does a claim for breach of the duty to disclose arise?110
    • Q 6.8.2 : When does an individual act as a fiduciary?111
    • Q 6.8.3 : How broad is the scope of the duty to disclose?112
  • Q 6.9 : What is the duty of prudence?114
    • Q 6.9.1 : What must a plaintiff show to establish a breach of the duty of prudence?114
  • Q 6.10 : What is the Moench presumption?114
    • Q 6.10.1 : In what context does the Moench presumption apply?115
    • Q 6.10.2 : At what stage of the litigation does the Moench presumption apply?115
    • Q 6.10.3 : Which circuits have adopted the Moench presumption?115
    • Q 6.10.4 : What must a plaintiff show to rebut the Moench presumption?116
    • Q 6.10.5 : To what extent does the language of the plan documents affect the analysis of a duty of prudence claim?118
    • Q 6.10.6 : What test do courts use to determine whether a fiduciary acted prudently once the Moench presumption has been rebutted?119
  • Q 6.11 : What defenses are available to defendants in stock drop litigation cases?120
Chapter 7: ESOP Litigation
  • Q 7.1 : What is an ESOP?126
  • Q 7.2 : What are common types of litigation that involve ESOPs?126
    • Q 7.2.1 : What do plaintiffs typically allege in a claim that an ESOP did not purchase stock for adequate consideration?127
    • Q 7.2.2 : What claims do plaintiffs typically assert in “stock drop” litigation involving an ESOP?128
  • Q 7.3 : What is a “prohibited transaction”?129
  • Q 7.4 : What is “adequate consideration”?129
  • Q 7.5 : What does “good faith” mean?130
  • Q 7.6 : How are pension plans able to invest in employer securities in light of the prohibited transaction restrictions?131
    • Q 7.6.1 : Can an ESOP own assets other than the employer’s stock?131
    • Q 7.6.2 : Can an ESOP sell the employer’s stock?132
  • Q 7.7 : How do courts determine whether it is imprudent to continue investing in employer stock?132
    • Q 7.7.1 : Does a significant downward trend in the employer’s stock render it imprudent for a fiduciary to continue to invest in, or offer as an option investment in, the employer’s stock?133
  • Q 7.8 : What are “unusual circumstances” that may result in a duty to sell the employer’s stock?133
    • Q 7.8.1 : Does the employer have to be on the brink of collapse before a fiduciary will be required to sell the employer’s stock?134
  • Q 7.9 : With respect to public companies, is the fiduciary required to consider any factors beyond the public price?134
  • Q 7.10 : What other claims are typically brought related to ESOPs?134
    • Q 7.10.1 : Under ERISA, how may a fiduciary be protected from liability for plan losses?134
    • Q 7.10.2 : Have courts rejected indemnification claims made by ESOP fiduciaries?135
Chapter 8: Cash Balance Plan Litigation
  • Q 8.1 : What is a cash balance plan?140
  • Q 8.2 : What are the potential litigation risks posed by moving from a traditional pension plan to a cash balance plan?141
  • Q 8.3 : What are the most common ERISA claims relating to cash balance plans?142
  • Q 8.4 : What are courts doing with ERISA age discrimination claims against employers that convert to cash balance plans?142
  • Q 8.5 : What legislative action has been taken to combat anti-discrimination claims arising from cash balance plan conversions?143
  • Q 8.6 : How does the anti-cutback rule apply to conversions to cash balance plans?143
  • Q 8.7 : What is wearaway and what are its effects?144
    • Q 8.7.1 : What are the statutory and regulatory requirements related to wearaway?145
    • Q 8.7.2 : How are courts treating wearaway claims by plaintiffs?145
    • Q 8.7.3 : What is the interplay between wearaway and ERISA’s anti-cutback rule?146
  • Q 8.8 : What is the “whipsaw” calculation and how does it apply to cash balance plans?146
    • Q 8.8.1 : What are courts doing with the “whipsaw” dilemma?148
    • Q 8.8.2 : What are the remedies for improper whipsaw calculations?148
    • Q 8.8.3 : What is the “normal retirement age” for purpose of the whipsaw calculation?149
Chapter 9: Prohibited Transaction Litigation
  • Q 9.1 : What is a prohibited transaction?152
  • Q 9.2 : Who is considered a party in interest?153
  • Q 9.3 : Which types of transactions between a plan and a party in interest are prohibited?153
  • Q 9.4 : Is a transaction still prohibited if a party-in-interest relationship ends before the dispersal of funds in connection with a potential loan?154
  • Q 9.5 : What level of intent is required for a fiduciary to be liable for a prohibited transaction?155
    • Q 9.5.1 : What additional level of intent is required for a fiduciary to be liable for a transfer of plan assets for the benefit of a party in interest?155
  • Q 9.6 : Can a prohibited transaction occur if a third party was involved?155
  • Q 9.7 : What constitutes prohibited “self-dealing” by a plan fiduciary?156
  • Q 9.8 : Does good faith, legitimate business purpose or lack of harm cure an otherwise prohibited transaction?157
  • Q 9.9 : Are there any exemptions from ERISA’s prohibited transaction bar?158
  • Q 9.10 : What are statutory exemptions?158
    • Q 9.10.1 : What types of prohibited transactions are subject to statutory exemptions?158
    • Q 9.10.2 : What is considered a reasonable contract or arrangement entitled to relief under the statutory exemption?158
  • Q 9.11 : What are class exemptions?159
    • Q 9.11.1 : What types of prohibited transactions are subject to class exemptions?159
  • Q 9.12 : What are individual exemptions?159
  • Q 9.13 : How may fiduciaries have personal liability held liable for prohibited transactions under ERISA? [ED? Please confirm title?]160
  • Q 9.14 : What penalties can the Department of Labor and the IRS assess for non-exempt prohibited transactions? [ED? Please confirm title?]160
  • Q 9.15 : What are the private remedies available for a violation of prohibited transaction provisions that cause a loss of money or assets?160
  • Q 9.16 : What are the private remedies available for a violation of prohibited transaction provisions that do not cause a loss of money or assets?161
Chapter 10: 401(k) Fee Litigation
  • Q 10.1 : What is 401(k) fee litigation?166
  • Q 10.2 : Who are the typical plaintiffs in 401(k) fee litigation?167
  • Q 10.3 : Do plaintiffs need to establish standing in fee litigation cases?167
    • Q 10.3.1 : How do plaintiffs establish standing in fee litigation cases?167
    • Q 10.3.2 : Can a named plaintiff establish standing on behalf of a class of past or future participants?168
  • Q 10.4 : Who are the typical defendants in 401(k) fee litigation?168
    • Q 10.4.1 : Who are typical corporate defendants in 401(k) fee litigation?168
    • Q 10.4.2 : Who are typical individual defendants in 401(k) fee litigation?168
    • Q 10.4.3 : What particular issues relating to board committee and officer defendants arise in 401(k) fee litigation?169
    • Q 10.4.4 : Who are typical service provider defendants in 401(k) fee litigation?169
    • Q 10.4.5 : What particular issues relating to service provider defendants arise in 401(k) fee litigation?169
  • Q 10.5 : What are the typical claims brought in fee litigation?170
    • Q 10.5.1 : How have plaintiffs alleged that defendants paid excessive fees?170
    • Q 10.5.2 : How have plaintiffs alleged that defendants failed to capture revenue streams?171
    • Q 10.5.3 : How have plaintiffs alleged claims for imprudent decision-making?171
    • Q 10.5.4 : How have plaintiffs alleged that defendants engaged in prohibited transactions and breached the duty of loyalty?172
    • Q 10.5.5 : How do plaintiffs bring claims for failure to disclose or misrepresentation of excessive fees?172
    • Q 10.5.6 : How have plaintiffs framed claims against defendants for holding excessive cash positions in company stock funds?173
  • Q 10.6 : What type of relief do plaintiffs seek in fee litigation cases?173
  • Q 10.7 : What standards do courts use in determining if defendants paid excessive fees?174
  • Q 10.8 : How have courts adjudicated claims alleging the failure to disclose certain fee arrangements?176
  • Q 10.9 : What is the applicable statute of limitations in fee litigation cases?176
  • Q 10.10 : Does ERISA’s safe harbor provision apply in fee litigation cases?177
Chapter 11: Litigation to Recover Benefits Due Under a Plan
  • Q 11.1 : Can a plan participant file a civil claim seeking benefits under an ERISA plan?182
    • Q 11.1.1 : Under what circumstances do such claims typically arise?183
    • Q 11.1.2 : What kinds of relief are available to a successful claimant?183
  • Q 11.2 : Who can bring claims for benefits?183
    • Q 11.2.1 : Who is a “participant”?183
    • Q 11.2.2 : Who is an “employee”?184
    • Q 11.2.3 : Who is a “beneficiary”?184
    • Q 11.2.4 : May benefits available under an ERISA plan be assigned, and does an assignee have standing to bring a claim for benefits?184
  • Q 11.3 : Which provision discusses jurisdiction and venue for claims for benefits?185
  • Q 11.4 : Does ERISA require exhaustion of claims review procedures as a prerequisite to bringing a claim for benefits?185
    • Q 11.4.1 : Are there any exceptions to the exhaustion requirement?186
  • Q 11.5 : Does ERISA address a participant’s or beneficiary’s entitlement to insurance proceeds?186
  • Q 11.6 : What other kinds of claims may accompany a claim seeking benefits?186
  • Q 11.7 : Who may be sued in an action seeking ERISA benefits?187
    • Q 11.7.1 : May a party other than an ERISA plan properly be named a defendant in a claim for benefits action?187
    • Q 11.7.2 : What is a “plan administrator”?188
    • Q 11.7.3 : May a party other than the designated plan administrator be sued as a de facto plan administrator in a benefits action?188
  • Q 11.8 : What standard of review applies to a district court’s review of a plan administrator’s interpretation of plan terms?189
  • Q 11.9 : What damages are available to a claimant in a benefits action?189
    • Q 11.9.1 : Are claimants also entitled to additional relief, including consequential and punitive damages?190
    • Q 11.9.2 : Have district courts subsequent to Ingersoll-Rand Co. expanded the scope of available remedies?191
    • Q 11.9.3 : What kinds of relief are included in the equitable relief available in a benefits action?191
  • Q 11.10 : In a benefits action, under what circumstances is a party entitled to an award of costs and attorney’s fees?192
    • Q 11.10.1 : Do courts consider whether the offending party has prevailed in the litigation in deciding to award attorney’s fees?192
    • Q 11.10.2 : Do courts consider the degree of bad faith or frivolity in deciding whether to award attorney’s fees?192
    • Q 11.10.3 : Do courts consider whether the party has been successful in the litigation in deciding to award attorney’s fees?192
  • Q 11.11 : What type of retirement income benefits can form the basis of a claim for benefits under ERISA?193
  • Q 11.12 : What is a defined benefit plan?193
    • Q 11.12.1 : What are the characteristics of a defined benefit plan?194
    • Q 11.12.2 : When can a participant or beneficiary bring a claim for benefits under a defined benefit plan?195
  • Q 11.13 : What is a defined contribution plan?195
    • Q 11.13.1 : What are the characteristics of a defined contribution plan?196
    • Q 11.13.2 : When can a beneficiary bring a claim for benefits under a defined contribution plan?197
  • Q 11.14 : What type of welfare benefits can form the basis of a claim for benefits under ERISA?197
  • Q 11.15 : What standards of review do courts apply to an administrator’s decision denying benefits?198
    • Q 11.15.1 : How do courts determine which standard of review applies to a particular administrative decision?198
    • Q 11.15.2 : How do courts determine whether a benefit plan gives the administrator discretionary authority?199
    • Q 11.15.3 : Must the plan contain an express grant of discretion to warrant deference to the administrator’s decision?199
    • Q 11.15.4 : What must a plan say to confer discretion or the plan administrator?199
    • Q 11.15.5 : Must discretion be granted to a plan administrator or fiduciary in a particular plan document?200
  • Q 11.16 : What factors do courts take into consideration when applying a de novo standard of review?202
  • Q 11.17 : What determinations are subject to de novo review by courts?202
  • Q 11.18 : What interpretive principles do courts use when interpreting ERISA plan documents?203
    • Q 11.18.1 : Can courts consider extrinsic evidence when construing plan language?204
  • Q 11.19 : When do courts apply an abuse of discretion standard of review to an administrator’s or fiduciary’s decision?204
    • Q 11.19.1 : What factors do courts consider when applying the abuse-of-discretion standard of review?205
    • Q 11.19.2 : What is the scope of evidence considered under the abuse-of-discretion standard of review?205
    • Q 11.19.3 : When can a court remand a case for further administrative review?206
    • Q 11.19.4 : What showing do courts require to sustain a denial of benefits?206
    • Q 11.19.5 : What standard does a court apply in a deferential review of a plan administrator’s decision?206
    • Q 11.19.6 : When is a plan administrator’s decision “reasonable”?207
    • Q 11.19.7 : How does a court evaluate the “reasonableness” of a plan administrator’s decision?207
    • Q 11.19.8 : What impact does a conflict of interest have on the evaluation of a fiduciary’s duties?209
    • Q 11.19.9 : What constitutes a conflict of interest?209
    • Q 11.19.10 : How does a conflict of interest impact the standard of review applied by the court?210
    • Q 11.19.11 : What is the sliding scale standard?211
    • Q 11.19.12 : What is the modified sliding scale standard?211
    • Q 11.19.13 : What is the reasonableness approach?212
  • Q 11.20 : Do courts impose a “treating physician rule” on administrators?213
  • Q 11.21 : What is anti-cutback litigation?214
    • Q 11.21.1 : What is ERISA’s anti-cutback provision?214
    • Q 11.21.2 : How is a claim for violation of ERISA’s anti-cutback provision pled?215
    • Q 11.21.3 : Who are proper parties in an anti-cutback claim?215
    • Q 11.21.4 : What remedies are available for violation of ERISA’s anti-cutback provision?215
Chapter 12: Multiemployer Plan Litigation
  • Q 12.1 : What is a multiemployer plan?224
    • Q 12.1.1 : What factors are relevant to determining whether a multiemployer plan is established for a substantial business purpose?225
    • Q 12.1.2 : What kinds of plans may be structured as multiemployer plans?225
  • Q 12.2 : How are multiemployer plans controlled and administered?226
  • Q 12.3 : What claims may be brought against a participating employer in a multiemployer plan?226
  • Q 12.4 : Which statutes govern multiemployer plans?226
  • Q 12.5 : How are multiemployer pension plans funded?227
  • Q 12.6 : What requirements does the Labor Management Relations Act impose on multiemployer plans?228
  • Q 12.7 : How does ERISA apply to multiemployer plans?228
  • Q 12.8 : What is the result of an employer’s exit from a plan?229
  • Q 12.8.1 : What types of withdrawal exist?230
    • Q 12.8.2 : What is complete withdrawal?230
    • Q 12.8.3 : What is partial withdrawal?230
    • Q 12.8.4 : Does the suspension of contributions constitute withdrawal?230
    • Q 12.8.5 : Is the sale of stock considered an employer withdrawal?230
  • Q 12.9 : How does the plan sponsor respond to an employer’s withdrawal?231
    • Q 12.9.1 : How is the employer’s withdrawal liability calculated?231
  • Q 12.10 : How does an employer respond to the plan sponsor’s imposed withdrawal liability?232
  • Q 12.11 : Are withdrawal disputes subject to mandatory arbitration?232
    • Q 12.11.1 : What deference is given to the plan sponsor’s decision during arbitration?233
  • Q 12.12 : When must the withdrawing employer begin to make payments?234
    • Q 12.12.1 : Who is responsible for liability payments?234
  • Q 12.13 : What judicial review is available?235
    • Q 12.13.1 : What remedies exist for collecting contributions?235
  • Q 12.14 : What private causes of action exist for plan participants and beneficiaries?236
Chapter 13: Managed Care Plan Litigation
  • Q 13.1 : What is an ERISA managed care plan?240
    • Q 13.1.1 : What is utilization review?240
    • Q 13.1.2 : What advantages do managed care plans offer over traditional benefits plans or fee-for-service arrangements?241
    • Q 13.1.3 : What are some common criticisms of managed care plans?241
  • Q 13.2 : When are employer-sponsors of managed care plans subject to ERISA liability?241
    • Q 13.2.1 : When is an employer-sponsor of a managed care plan also considered the plan administrator?242
    • Q 13.2.2 : Can an employer sponsoring a managed care plan be liable as an ERISA fiduciary if the employer is not formally designated as the plan administrator?243
    • Q 13.2.3 : For what acts is an employer who is also a plan administrator subject to liability as an ERISA fiduciary?243
  • Q 13.3 : Under what circumstances may an employer-administrator have obligations to plan beneficiaries under ERISA?244
  • Q 13.4 : What are an employer-administrator’s obligations when denying or terminating healthcare coverage?244
    • Q 13.4.1 : What information should be included in a denial/termination notice?244
    • Q 13.4.2 : What happens if a qualified beneficiary does not receive adequate notice?245
  • Q 13.5 : What are an employer-administrator’s obligations when considering amendments to a managed care plan?245
  • Q 13.6 : What are an employer-administrator’s obligations upon termination of employment?246
    • Q 13.6.1 : What is COBRA?246
    • Q 13.6.2 : What is a “qualifying event”?246
    • Q 13.6.3 : How should a discharged employee be notified of his or her COBRA rights?246
    • Q 13.6.4 : What information should a COBRA notice contain?247
    • Q 13.6.5 : What happens if a qualified beneficiary does not receive adequate notice?249
  • Q 13.7 : Do courts apply more stringent standards when reviewing decisions made by employers acting as plan administrators, as opposed to decisions made by non-administrator employers?249
  • Q 13.8 : Can a non-administrator employer be held liable for the actions or decisions of the managed care plan or administrator chosen by the employer?249
    • Q 13.8.1 : Is an employer-sponsor acting as an ERISA fiduciary when selecting a managed care plan?250
    • Q 13.8.2 : Does ERISA protect an employer-sponsor alleged to be liable for the actions of a managed care plan or administrator?250
    • Q 13.8.3 : How can an employer-sponsor protect itself against possible liability for the actions of a managed care plan or administrator?252
Chapter 14: Discrimination and Interference with Benefits Rights Litigation
  • Q 14.1 : What provision of ERISA permits claims for discrimination or interference with benefits?256
  • Q 14.2 : Who are the appropriate parties to a suit under § 510?257
    • Q 14.2.1 : Who are proper defendants in an action under § 510?258
    • Q 14.2.2 : Who is a proper plaintiff in an action under § 510?258
  • Q 14.3 : What types of conduct are prohibited by ERISA § 510?259
  • Q 14.4 : Are state law employment actions relating to benefits under an ERISA plan preempted by ERISA?260
  • Q 14.5 : What is the applicable statute of limitations for a § 510 claim?261
  • Q 14.6 : What are the elements of an action under ERISA § 510?262
    • Q 14.6.1 : What is the direct evidence framework?263
    • Q 14.6.2 : What is the indirect or McDonnell Douglas framework?263
    • Q 14.6.3 : How does a plaintiff establish a prima facie case?264
    • Q 14.6.4 : How does a defendant rebut the initial presumption of discrimination?264
    • Q 14.6.5 : How does the plaintiff show that a proffered legitimate non-discriminating reason is pretextual?265
  • Q 14.7 : What remedies are available to a plaintiff under ERISA § 510?267
  • Q 14.8 : How does ERISA’s anti-retaliation provision relate to other federal discrimination statutes?267
    • Q 14.8.1 : How does ERISA § 510 interact with the ADEA?268
    • Q 14.8.2 : How does ERISA § 510 interact with the ADA?269
Chapter 15: Litigation of Claims Arising Under Federal Common Law
  • Q 15.1 : How does federal common law provide guidance to courts applying ERISA?274
  • Q 15.2 : What justifies the federal judiciary’s power to develop federal common law, preempting state law, in ERISA cases?274
  • Q 15.3 : What principles of law have courts looked to in developing ERISA federal common law?275
    • Q 15.3.1 : How has trust law played a role in the development of ERISA federal common law?275
    • Q 15.3.2 : How has agency law played a role in the development of ERISA federal common law?275
    • Q 15.3.3 : How has contract law played a role in the development of ERISA federal common law?276
  • Q 15.4 : What federal common law theories of liability do ERISA participants or beneficiaries most frequently raise?276
  • Q 15.5 : Is a claim for restitution a permissible federal common law theory?276
    • Q 15.5.1 : Are claims for restitution “at law” permissible?276
    • Q 15.5.2 : What distinguishes restitution “at law” from equitable restitution?277
    • Q 15.5.3 : Can non-fiduciary employers recover amounts mistakenly contributed to ERISA plans under a theory of restitution?277
    • Q 15.5.4 : What factors do courts consider in balancing equities to decide whether to order restitution in a mistaken contribution case?278
    • Q 15.5.5 : May non-fiduciary employers recover funds mistakenly contributed to ERISA plans under a theory of restitution?279
  • Q 15.6 : Is a claim for rescission a permissible federal common law theory?279
  • Q 15.7 : Are claims for indemnification or contribution permissible federal common law theories?280
  • Q 15.8 : Is a claim for estoppel a permissible federal common law theory?280
    • Q 15.8.1 : Can an estoppel theory be used to enforce oral representations about a plan?281
    • Q 15.8.2 : Can an estoppel theory be used to enforce written representations about a plan?281
    • Q 15.8.3 : Is a claim for estoppel treated differently in the context of a welfare benefit plan versus a pension plan?281
  • Q 15.9 : Is a claim for prejudgment interest a permissible federal common law theory?282
    • Q 15.9.1 : Are pension beneficiaries entitled to interest for denial of benefits where the benefits are later restored without resort to litigation?282
  • Q 15.10 : Are principles of waiver permissible under federal common law?283
  • Q 15.11 : What standard of review do courts apply when evaluating a plan administrator’s decision?283
  • Q 15.12 : Does federal common law permit the parties to a welfare benefit plan to determine when benefits vest or terminate?284
  • Q 15.13 : What are the limitations on the development and use of federal common law in ERISA cases?284
    • Q 15.13.1 : Can courts develop federal common law that is inconsistent with ERISA’s language?284
    • Q 15.13.2 : Can courts develop federal common law when ERISA is silent on an issue?285
  • Q 15.14 : Do courts, by use of federal common law, permit legal remedies?285
Chapter 16: Affirmative Defenses to ERISA Claims
  • Q 16.1 : What affirmative defenses are available to defend against an ERISA claim?290
  • Q 16.2 : What is the § 404(c) safe harbor provision?290
    • Q 16.2.1 : How does a plan qualify under § 404(c)?291
    • Q 16.2.2 : Does § 404(c) apply to a fiduciary’s decisions about which options to offer?292
  • Q 16.3 : Is a fiduciary’s delegation of a fiduciary function an affirmative defense to a breach of fiduciary duty claim based on the performance of that function?292
  • Q 16.4 : What affirmative defenses apply when a fiduciary is accused of engaging in of the prohibited transactions in ERISA § 406?293
  • Q 16.5 : What is the statute of limitations period for an ERISA claim?294
    • Q 16.5.1 : What is the statute of limitations period for an action for breach of fiduciary duty?294
    • Q 16.5.2 : What is the statute of limitations period for an action for wrongful denial of benefits under § 502(a)(1)(B)?295
    • Q 16.5.3 : What is the statute of limitations period for actions alleging interference with benefits in violation of § 510?296
  • Q 16.6 : Can an ERISA claim be waived?297
  • Q 16.7 : Who has standing to sue under ERISA?298
  • Q 16.8 : Is failure to exhaust administrative remedies an affirmative defense to an ERISA claim?299
Chapter 17: Limitations on Actions Under ERISA
  • Q 17.1 : May employers condition the receipt of employee benefits on a waiver of ERISA rights and claims?306
    • Q 17.1.1 : What factors determine the enforceability of a waiver of benefits?306
    • Q 17.1.2 : What constitutes a knowing and voluntary waiver?307
    • Q 17.1.3 : Is any single factor in the knowing and voluntary test dispositive?308
    • Q 17.1.4 : When can a participant waive his or her spouse’s rights to pension death benefits arising under an ERISA plan?308
    • Q 17.1.5 : Does ERISA’s anti-alienation provision bar waivers of pension benefits?308
    • Q 17.1.6 : May employees waive prospective ERISA claims?309
    • Q 17.1.7 : How do courts interpret the terms of a waiver?309
    • Q 17.1.8 : Can a party bring an ERISA claim after signing a waiver?310
    • Q 17.1.9 : Can a party bring a claim on behalf of a plan after signing a waiver?310
  • Q 17.2 : Can an employer compel arbitration of employee benefits disputes?310
    • Q 17.2.1 : What factors determine the enforceability of a mandatory arbitration policy?311
  • Q 17.3 : What is the statute of limitations for benefits claims?312
    • Q 17.3.1 : Is a contractual limitations period limiting the time to bring a lawsuit benefits claim enforceable?313
    • Q 17.3.2 : What constitutes a “reasonable” limitations period?313
  • Q 17.4 : What is the statute of limitations for breach of fiduciary claims?313
    • Q 17.4.1 : What constitutes actual knowledge for purposes of running the statute of limitations?313
    • Q 17.4.2 : Is there a different statute of limitations in a case of fraud or concealment?314
    • Q 17.4.3 : Do federal equitable tolling principles apply?315
Chapter 18: Special Considerations for ERISA Litigation
  • Q 18.1 : Is there a right to a jury trial under ERISA?320
    • Q 18.1.1 : How do courts determine if a plaintiff seeks a legal or equitable remedy?320
    • Q 18.1.2 : Is a claim for money damages a legal remedy?320
  • Q 18.2 : Does the right to a jury trial depend on which ERISA cause of action is being pled?321
    • Q 18.2.1 : Is a jury trial available for a cause of action brought under ERISA § 502(a)(1)(B)?321
    • Q 18.2.2 : What happens when a plaintiff brings ERISA claims and other claims that give rise to a jury right in the same lawsuit?322
  • Q 18.3 : Is a jury trial available for a cause of action brought under ERISA § 502(a)(2)?322
  • Q 18.4 : Is a jury trial available when the cause of action is brought under ERISA § 502(a)(3)?323
  • Q 18.5 : Does an attorney-client privilege exist between a plan fiduciary and an attorney who provides legal advice?323
  • Q 18.6 : Are there ERISA-specific limitations or exceptions to the attorney-client privilege or other situations where the privilege might not attach?324
    • Q 18.6.1 : Is the fiduciary exception a waiver of the attorney-client privilege?324
    • Q 18.6.2 : Are there limits on when the fiduciary exception applies?325
    • Q 18.6.3 : Are certain legal communications excluded from the fiduciary exception based on their substance?326
    • Q 18.6.4 : Does the fiduciary exception apply to the work product doctrine?327
  • Q 18.7 : Is fee-shifting available in ERISA lawsuits?327
  • Q 18.8 : Must a party prevail in the litigation to recover its fees?328
  • Q 18.9 : In practice, which parties are mostly likely to receive a fee award?328
  Index

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