INTRODUCTION TO ERISA WELFARE BENEFIT CLAIMS

1. INTRODUCTION TO ERISA WELFARE BENEFIT CLAIMS Jonathan M. Feigenbaum Phillips & Angley One Bowdoin Square Boston, MA 02114 617-367-8787 JonF@phillips-angley.com www.phillips-angley.com

2. ERISA • On September 2, 1974 (Labor Day) Congress enacted the Employee Retirement Income Security Act (ERISA). Although the statute uses the word retirement in its title, ERISA governs both retirement benefits (pensions) and employee welfare benefit plan. Those are benefits that private sector employers provide to employees; government employees and those employed by churches are not subject to ERISA.

3. The History Behind ERISA. • Originally drafted with pension plans in mind, over time ERISA has come to govern much more. Part of the concept behind ERISA was to create a uniform law for employee benefits and pensions nationwide. This was thought to protect employees and to make it more reasonable for employers that operated in many states. Rather than dealing with 50 different state laws, employers would be governed by one Federal law

4. The Two Sides of ERISA. 1. PENSION -Defined Benefit Plans -Defined Contribution Plans 2. WELFARE BENEFIT PLANS -Disability Plans -Health Plans

5. ERISA Protects Employees, right?

6. This must be good for employees! • It is hereby declared to be the policy of this chapter to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts. ERISA Sec. 2., 29 U.S.C.  1001(b)

7. ADAM • A 16th Century Interpretation of Adam

8. Is ERISA That Good.Absolutely Not! • "Everything Ridiculous Imagined Since Adam. This court does not take so dim a view of the Employee Retirement Income Security Act of 1974. Instead, this court is willing to believe that ERISA has lurking somewhere in it a redeeming feature. Florence Nightingale Nursing Service, Inc. v. Blue Cross/Blue Shield of Alabama, 832 F.Supp. 1456, 1457 (N.D.Ala. 1993).

9. ERISA – How Does It Work? • ERISA is truly a creature of its own. It ‘s a blend of: • trust law • contract law • disability insurance law • Health insurance law • federal common law of its own

10. ERISA PREEMPTION, IT DOESN’T GET MUCH BROADER • Section 514(a) of ERISA states that the statute "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" that is covered by ERISA. Section 514(b)(2)(A)

11. The Savings Clause • 29 U.S.C. § 1144(a). The saving clause states as follows: • Except as provided in subparagraph (B) [the deemer clause], nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.

12. The Deemer Clause • 29 U.S.C. § 1144(b)(2)(A). The deemer clause states as follows: • Neither an employee benefit plan... nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts companies., banks, trust companies, or investment

13. The Genesis of the Trouble • Referring to ERISA as a carefully “reticulated statute.”

14. "Pilot Life Ins. Co. v. Dedeaux,, 481 U.S. 41, 54 (1987). • [T]he detailed provisions of 502(a) set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. 'The six carefully integrated civil enforcement provisions found in 502(a) of the statute as finally enacted ... provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.' "Dedeaux, 481 U.S. at 54.

15. The Hidden Menace. • Would a reasonable employer pay premiums to an insurer if that employer really understood how long term disability benefits are calculated and paid? Would an employee make a partial or full payment toward the premium?

16. The Curses of ERISA. • No Jury Trial • No Damages – All actions are equitable • No Consequential Damages • No Punitive Damages • No Make Whole Remedies • Federal Court Jurisdiction • Almost Suspension of Fed. Rules of Civil Procedure • Extremely Difficult Burden to Obtain Discovery • Rarely Live Testimony • Claims Usually Decided on Cross Motions • Insurers are treated as fiduciaries and their decisions will only be overturned if “arbitrary and capricious,” not just unfair or probably wrong

17. Semien v. Life Ins. Co. of America, 436 F.3d 805, 815 (7th Cir. 2006). • Congress has not provided Article III courts with the statutory authority, nor the judicial resources, to engage in a full review of the motivations behind every plan administrator's discretionary decisions. To engage in such a review would usurp plan administrators' discretionary authority and move toward a costly system in which Article III courts conduct wholesale reevaluations of ERISA claims. Imposing onerous discovery before an ERISA claim can be resolved would undermine one of the primary goals of the ERISA program: providing "a method for workers and beneficiaries to resolve disputes over benefits inexpensively and expeditiously." Perry v. Simplicity Eng'g, 900 F.2d 963, 967 (6th Cir. 1990) (internal citation omitted).

18. The Nightmare, offsets and other recoveries. Who wants reimbursement? -Health Plan -Comp Insurer -LTD Insurer -All or some of the above.

19. What Does One Do? • Read the documents. • Plan Ahead. • Advise your client well. • Get other counsel involved as necessary. • Negotiate a settlement that that your client can accept. • Tell your client about the nightmare of ERISA.

20. Fight back! • Help your clients achieve justice. Sleep well at night!