This document provides an overview and analysis of the Supreme Court's 2011 decision in CIGNA Corp. v. Amara and its implications. It summarizes the key holdings of Amara, including that SPDs are not plan documents but equitable remedies like reformation, estoppel, and surcharge are available under ERISA 502(a)(3). It then discusses several post-Amara appellate cases that have addressed issues like reliance, harm, and the scope of available remedies. The document analyzes open legal questions around these issues and cites relevant state trust law principles discussed in Amara.
Insider Tactics That Can Reduce or Eliminate ERISA LiensLarry Bodine
The 21st century trial attorney faces post settlement/award issues the likes of which could not have been foreseen even 20 years ago. Foremost among these post settlement issues is lien resolution. Today’s trial attorneys have clients who have their medical benefits provided by a wide variety of sources such as; Medicare, Medicaid, Medicare Advantage plans, ERISA, FEHBA, military or private health insurance plans.
ERISA liens are quickly becoming one of the biggest sources of frustration for personal injury attorneys. The Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001, et seq. governs most employee health plans. Many ERISA plans rely on preemption principles to assert that they are under no obligation to reduce their lien claims, and purport that they are entitled to their entire reimbursement claim regardless of the circumstances of the case. Clients may end up with very little out of their personal injury settlement, particularly if the third party has a limited policy.
Join ERISA expert, David Place, to get what you are owed! He will go over language that works when dealing with ERISA claims and show you how he was able to get more than $2 million in total savings in self-funded ERISA cases in 2014 alone.
Topics covered:
- When ERISA is subject to state law.
- How to Determine Funding Status
- Get What You Are Owed from the Plan Administrator
- Tracking Penalties
- SPD v. MPD: Cigna v. Amara, 131 S. Ct. 1866 (U.S. 2011)
- Language That Does Work, and What Doesn’t
- How to Attack the Language
RETS Presentation - Home Inspector's Insurance & Risk ManagementGerald Brunker
This document provides an overview and summary of home inspector's insurance and risk management. It discusses the home inspection industry, inspector duties and liabilities, types of insurance like professional liability and general liability, and tips to reduce liability exposures. The key points covered are the regulation of home inspectors, what constitutes negligence, types of insurance required by states like Texas, and how claims are handled under different insurance policies.
Home Inspector's Insurance & Risk Management - July 19, 2013Gerald Brunker
Home Inspector professional liability, general liability and other applicable insurances for home inspectors. Risk management tips and hints and home inspector claim information.
The document discusses approaches to dealing with consequential damages in construction contracts. It notes that consequential damages are difficult to recover as the plaintiff must prove they were reasonably foreseeable. The American Institute of Architects' mutual waiver of consequential damages is discussed, but it is noted that waivers simply shift disputes rather than resolving them. Liquidated damages are presented as a potential alternative that provides compensation to both parties without the need for extensive proof of damages. The document also suggests both parties identify and allocate risks of consequential damages upfront during contract drafting to avoid later disputes.
This document contains summaries of key sections from a business law textbook chapter on contract remedies. It defines and distinguishes between major and minor breaches of contract. It describes the remedies of rescission, specific performance, and various types of damages awards. It also discusses the requirements to mitigate damages, statutes of limitations, bankruptcy, election of remedies, and how these factors can impact available legal remedies for breach of contract. Practice questions are included relating to these concepts.
United Corporate Services provides search and filing results tailored specifically to our clients’ needs. Reports sorted by individual debtor per page, or a more comprehensive summary report of all search results on one page, both are easily provided in either .pdf format for secure closings or in Excel format for easy manipulation into your existing closing binder. United Corporate Services files and searches in over 3,000 jurisdictions in the U.S. Understanding their unique requirements ensures accurate processing of all your UCC transactions. Revised Article 9 is once again being “revised,” and we have done the legwork necessary to walk with you through your projects to ensure they are completed timely and accurately.
the Supreme Court has reversed the Court of Appeals in this case (and the companion Floyd case), ruling that an injured person is not entitled to reduce available liability coverage by the amount of a statutory medical lien in order to increase available UM benefits. The decision is attached. The court did not disturb the underlying rationale of Thurman and Toomer but simply distinguished hospital liens from the federal subrogation claims present in those cases.
Insider Tactics That Can Reduce or Eliminate ERISA LiensLarry Bodine
The 21st century trial attorney faces post settlement/award issues the likes of which could not have been foreseen even 20 years ago. Foremost among these post settlement issues is lien resolution. Today’s trial attorneys have clients who have their medical benefits provided by a wide variety of sources such as; Medicare, Medicaid, Medicare Advantage plans, ERISA, FEHBA, military or private health insurance plans.
ERISA liens are quickly becoming one of the biggest sources of frustration for personal injury attorneys. The Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001, et seq. governs most employee health plans. Many ERISA plans rely on preemption principles to assert that they are under no obligation to reduce their lien claims, and purport that they are entitled to their entire reimbursement claim regardless of the circumstances of the case. Clients may end up with very little out of their personal injury settlement, particularly if the third party has a limited policy.
Join ERISA expert, David Place, to get what you are owed! He will go over language that works when dealing with ERISA claims and show you how he was able to get more than $2 million in total savings in self-funded ERISA cases in 2014 alone.
Topics covered:
- When ERISA is subject to state law.
- How to Determine Funding Status
- Get What You Are Owed from the Plan Administrator
- Tracking Penalties
- SPD v. MPD: Cigna v. Amara, 131 S. Ct. 1866 (U.S. 2011)
- Language That Does Work, and What Doesn’t
- How to Attack the Language
RETS Presentation - Home Inspector's Insurance & Risk ManagementGerald Brunker
This document provides an overview and summary of home inspector's insurance and risk management. It discusses the home inspection industry, inspector duties and liabilities, types of insurance like professional liability and general liability, and tips to reduce liability exposures. The key points covered are the regulation of home inspectors, what constitutes negligence, types of insurance required by states like Texas, and how claims are handled under different insurance policies.
Home Inspector's Insurance & Risk Management - July 19, 2013Gerald Brunker
Home Inspector professional liability, general liability and other applicable insurances for home inspectors. Risk management tips and hints and home inspector claim information.
The document discusses approaches to dealing with consequential damages in construction contracts. It notes that consequential damages are difficult to recover as the plaintiff must prove they were reasonably foreseeable. The American Institute of Architects' mutual waiver of consequential damages is discussed, but it is noted that waivers simply shift disputes rather than resolving them. Liquidated damages are presented as a potential alternative that provides compensation to both parties without the need for extensive proof of damages. The document also suggests both parties identify and allocate risks of consequential damages upfront during contract drafting to avoid later disputes.
This document contains summaries of key sections from a business law textbook chapter on contract remedies. It defines and distinguishes between major and minor breaches of contract. It describes the remedies of rescission, specific performance, and various types of damages awards. It also discusses the requirements to mitigate damages, statutes of limitations, bankruptcy, election of remedies, and how these factors can impact available legal remedies for breach of contract. Practice questions are included relating to these concepts.
United Corporate Services provides search and filing results tailored specifically to our clients’ needs. Reports sorted by individual debtor per page, or a more comprehensive summary report of all search results on one page, both are easily provided in either .pdf format for secure closings or in Excel format for easy manipulation into your existing closing binder. United Corporate Services files and searches in over 3,000 jurisdictions in the U.S. Understanding their unique requirements ensures accurate processing of all your UCC transactions. Revised Article 9 is once again being “revised,” and we have done the legwork necessary to walk with you through your projects to ensure they are completed timely and accurately.
the Supreme Court has reversed the Court of Appeals in this case (and the companion Floyd case), ruling that an injured person is not entitled to reduce available liability coverage by the amount of a statutory medical lien in order to increase available UM benefits. The decision is attached. The court did not disturb the underlying rationale of Thurman and Toomer but simply distinguished hospital liens from the federal subrogation claims present in those cases.
2009.08.07 nance sued by Introgen debtors for excessive expendituresHindenburg Research
The Debtors are seeking to recover payments made to David G. Nance, the former CEO and President of the Debtors, totaling over $669,000. The Debtors allege the payments made within two years prior to filing for bankruptcy (totaling over $427,000) and between 2004-2008 (totaling over $669,000) were fraudulent transfers under bankruptcy law and state law. Additionally, the Debtors allege Nance wasted corporate assets and engaged in self-dealing through his unnecessary and extravagant expenditures. The Debtors are seeking repayment of the fraudulent transfers, damages, attorney's fees, and interest.
PANELISTS:
DAMIAN NASSIRI | CUONG M. NGUYEN
LYNDA T. BUI | ANN N. NGUYEN
National Conference of Vietnamese American Attorneys
NCVAA is the only national organization that provides a forum for distinguished Vietnamese American judges, elected officials and attorneys to celebrate our accomplishments in the U.S. and abroad, promote the high standards of professionalism in law and politics, and discuss legal and community issues affecting Vietnamese Americans.
Past guests, panelists and speakers of NCVAA include Vietnamese Americans that are prominent judges, highly regarded elected officials and accomplished attorneys: Hon. Thang Nguyen Barrett, Hon. Tam Bui, Hon. Jacqueline Duong, Prof. Wendy Duong, Viet V. Le, Hon. Jacqueline Nguyen, Madison Nguyen, Hon. Nho Nguyen, Tasha Nguyen, Prof. Xuan-Thao Nguyen, Thuy Thi Nguyen, Hon. Tu Pham, Assemblyman Van Tran, Prof. Nhan Vu and many more.
We have also been honored with the attendance of esteemed non-Vietnamese Americans that either gave speeches, sat as panelists or attended the events: Jeffrey Bleich (Pres. of CA State Bar), Hon. David O. Carter (U.S. District Court, Central District of CA) Hon. John Chiang (CA State Controller), Justice Ming W. Chin (California Supreme Court), Kamala Harris (San Francisco District Attorney), Peter McHugh (Santa Clara County Supervisor), Hon. Nathan Mihara (CA Sixth Appellate District Court of Appeals), Justice Carlos R. Moren (California Supreme Court), Hon. Alicemarie Stotler (Chief Judge of the US District Court, Central District of CA) and many others.
Washington Court Holds Stipulated Covenant Judgment Sets Minimum Amount of Da...NationalUnderwriter
Washington Court Holds Stipulated Covenant Judgment Sets Minimum Amount of Damages in Bad Faith Case. (from FC&S Legal: The Insurance Coverage Law Information Center)
Recently, Division One of the Court of Appeals of Washington State affirmed a jury verdict awarding $13 million in damages to a passenger injured in a car accident, finding that the $4.15 million agreed amount of the covenant
judgment in the insurance bad faith case sets a floor, not a ceiling, on the damages a jury can award.
In Miller v. Kenny and Safeco Ins. Co.,[1] the Court of Appeals ruled on several additional issues on appeal including whether evidence of an insurance company’s loss reserves is properly admissible at trial.
The court affirmed the trial court's granting of summary judgment in favor of the defendants. The court found that there was no genuine issue of material fact regarding whether the special employer doctrine applied. Under the special employer doctrine, an employee can be considered simultaneously employed by both their primary employer and any other employer to whom their services were loaned, if three conditions are met: (1) an express or implied contract with the special employer; (2) the work being done is essentially for the special employer; and (3) the special employer has the right to control the work details. The court determined all three conditions were met, making the defendant the plaintiff's special employer and entitling the defendant to workers' compensation immunity.
Commercial and Legal Aspects of Liquidated Damages and PenaltiesAMILA GAYAN
This document discusses liquidated damages and penalties in commercial contracts. It begins with an introduction explaining damages for breach of contract and how liquidated damages provisions aim to provide certainty. It then covers the differences between general damages and liquidated damages, and how liquidated damages differ from penalties. The document discusses best practices for calculating liquidated damages and their advantages. It also examines liquidated damages in standard forms of contract and case law from various jurisdictions. An example case study is also provided to illustrate liquidated damages in practice.
In today’s litigation and regulatory climate, class actions alleging statutory violations can pose some of the most persistent and troublesome threats to lenders...
The document discusses different methods of allocating liability among multiple insurance policies that cover a loss ("allocation methods") and their effects. It describes the majority "all sums" method, adopted in many states, which allows an insured to choose which triggered policies will pay and obtain contribution from other insurers. It also describes the minority "pro rata" method, adopted in some states, which divides liability proportionately among all triggered policies. The document provides an example comparing the results of applying each method. It also discusses issues that can arise, such as when a policy has a high self-insured retention or an insolvent insurer.
Dead Hand Change of Control Default Provisions PPT 3-25-15Kevin Miller
This document summarizes recent developments regarding dead hand change of control default provisions. It discusses the Healthways case in Delaware Chancery Court where the court found that lenders could potentially aid and abet fiduciary duty breaches by negotiating terms that create conflicts of interest for company directors. It also mentions several similar shareholder lawsuits filed against other companies and banks. The document reviews plaintiffs' attorneys fees awards in recent cases and potential alternatives for banks going forward regarding these contractual provisions. An appendix discusses precedent set in the Amylin and SandRidge cases regarding change of control provisions.
This document provides an overview of key considerations for contractors who have been awarded a government contract. It discusses understanding the contract terms and format, conducting a post-award debriefing to assess the winning proposal, introducing your team at a kickoff meeting, important government players to know, common issues that may arise, and procedures for managing changes to the original scope of work. The goal is to help new contractors successfully execute their contract and avoid common pitfalls.
The document discusses UCC-1 financing statements. It provides background on the Uniform Commercial Code and how Article 9 deals with secured transactions and financing statements. The summary focuses on key aspects of UCC-1 financing statements, including:
- Conducting a UCC search during underwriting to check for existing liens and filing a post-lien search to verify the bank's filing.
- The financing statement serves to provide notice of a lien, perfect the lien, and determine priority among multiple liens.
- Key parts that must be completed correctly include the debtor's name and address, secured party's name and address, and collateral description.
- The collateral description must "reasonably identify"
What Is Personal Injury? A Great Slideshow from Deanza.eduCasey Meraz
Have you ever wondered what personal injury actually is? Check out this deck from http://www.Deanza.edu and learn more!
This was uploaded by http://www.RobertReevesLaw.com
The Reeves Law Group
515 South Flower Street, 36th Floor
Los Angles, CA 90071
(213) 271-9318
Other Meeting Locations
The Reeves Law Group 1 World Trade Center #800, Long Beach, California 90831 (562) 528-3135
The Reeves Law Group 198 N Arrowhead Ave, San Bernardino, CA 92408 92408 (909) 657-0576
The Reeves Law Group 4900 California Ave B210, Bakersfield, California 93301 (661) 202-3056
The Reeves Law Group 28202 Cabot Rd #300, Laguna Niguel, CA 92677 (949) 614-1142
The Reeves Law Group 300 Esplanade Drive #900, Oxnard, CA 93030 (805) 367-3414
The Reeves Law Group 3890 11th St, Riverside, California 92501 (951) 324-5174
The Reeves Law Group 3350 Shelby St #200, Ontario, California 91764 (909) 563-8162
The Reeves Law Group 200 W Santa Ana Blvd #630, Santa Ana, California 92701 (714) 550-6000
The Reeves Law Group 21250 Hawthorne Blvd #700, Torrance, California 90503 (310) 893-1742
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
This document summarizes an ERISA case in which the plaintiff, Marilyn Anderson, sought to recover attorney's fees for legal assistance during her administrative appeal of the denial of disability benefits by the defendant's disability plan. The court reviewed the relevant ERISA provisions and determined that section 1132(g) only allows recovery of attorney's fees for civil actions filed for specific reasons listed in section 1132(a), not for legal work during administrative proceedings. Therefore, the court found that ERISA does not permit Anderson to recover her attorney's fees and affirmed the district court's denial of fees.
This affidavit provides background information and summarizes recent events regarding Allied Systems Holdings, Inc. and Allied Systems, LTD. (L.P.) (collectively "Allied"), who filed for Chapter 11 bankruptcy in 2005 and emerged in 2007.
Events of default occurred under Allied's credit agreements due to its deteriorating financial condition. In order to prevent majority shareholder Yucaipa from gaining control and harming lender interests, an amendment placed restrictions on Yucaipa becoming a lender, including limits on the amount of loans it could acquire.
This affidavit supports a motion by petitioning creditors to appoint a Chapter 11 trustee for Allied, claiming Yucaipa's actions have harmed their
This document is the defendants' response to the plaintiff's supplemental motion for summary judgment in case 11-cv-20120-AMS. The defendants argue that the plaintiff's motion should be denied for three reasons: 1) The plaintiff failed to follow the local rules requiring a statement of material facts with citations; 2) The plaintiff's amended complaint fails to state a valid claim; 3) The plaintiff's motion seeks judgment on claims that were not asserted in the amended complaint and provides no factual basis or support for summary judgment.
When Do Liquidated Damages Become an Irrecoverable Penalty?Sarah Fox
The document summarizes guidelines from the case Makdessi v Cavendish for determining whether a contractual sum is an unenforceable penalty or a valid liquidated damages clause. It outlines seven guidelines from the case, including that a sum is more likely to be considered a penalty if it is extravagant compared to possible losses or applies to breaches of different types. It also notes that the guidelines have limitations and contracting parties have freedom to agree terms, making penalties difficult for courts to invalidate.
This document discusses various issues relating to statutes of limitations (SOLs) and notice provisions in insurance and reinsurance contracts. It provides an overview of SOL rules and accrual dates for direct insurance policies and reinsurance contracts. It also discusses how SOL defenses are addressed in reinsurance arbitrations and ways SOLs may be avoided, such as through tolling agreements. The document further examines issues around exhaustion of underlying limits for excess policies and notice requirements in reinsurance contracts.
Rights of the Parties and Discharge; Remedies for Breach of ContractHelpWithAssignment.com
Business law is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales.It is often considered to be a branch of civil law and deals with issues of both private law and public law.
This document summarizes three workers' compensation case law reviews related to attorney fees and benefits. The first case discusses whether attorney fees should be calculated on the gross or net amount of benefits when an offset is taken for social security disability income. The second case examines whether a third party respondent can be awarded attorney fees. The third case addresses when impairment ratings should be determined under the edition of the AMA Guides in effect at the time of injury or time of MMI.
The document summarizes a presentation on recent updates to federal procurement rules and regulations. It discusses the mandatory disclosure rule, contract disputes, statutes and regulations, bid protests, and organizational conflicts of interest. Key points include requirements for contractors to disclose violations, recent case law on jurisdiction and claims, new laws like the stimulus bill and its reporting requirements, common reasons for sustained bid protests, and new rules tightening restrictions on organizational conflicts of interest.
2009.08.07 nance sued by Introgen debtors for excessive expendituresHindenburg Research
The Debtors are seeking to recover payments made to David G. Nance, the former CEO and President of the Debtors, totaling over $669,000. The Debtors allege the payments made within two years prior to filing for bankruptcy (totaling over $427,000) and between 2004-2008 (totaling over $669,000) were fraudulent transfers under bankruptcy law and state law. Additionally, the Debtors allege Nance wasted corporate assets and engaged in self-dealing through his unnecessary and extravagant expenditures. The Debtors are seeking repayment of the fraudulent transfers, damages, attorney's fees, and interest.
PANELISTS:
DAMIAN NASSIRI | CUONG M. NGUYEN
LYNDA T. BUI | ANN N. NGUYEN
National Conference of Vietnamese American Attorneys
NCVAA is the only national organization that provides a forum for distinguished Vietnamese American judges, elected officials and attorneys to celebrate our accomplishments in the U.S. and abroad, promote the high standards of professionalism in law and politics, and discuss legal and community issues affecting Vietnamese Americans.
Past guests, panelists and speakers of NCVAA include Vietnamese Americans that are prominent judges, highly regarded elected officials and accomplished attorneys: Hon. Thang Nguyen Barrett, Hon. Tam Bui, Hon. Jacqueline Duong, Prof. Wendy Duong, Viet V. Le, Hon. Jacqueline Nguyen, Madison Nguyen, Hon. Nho Nguyen, Tasha Nguyen, Prof. Xuan-Thao Nguyen, Thuy Thi Nguyen, Hon. Tu Pham, Assemblyman Van Tran, Prof. Nhan Vu and many more.
We have also been honored with the attendance of esteemed non-Vietnamese Americans that either gave speeches, sat as panelists or attended the events: Jeffrey Bleich (Pres. of CA State Bar), Hon. David O. Carter (U.S. District Court, Central District of CA) Hon. John Chiang (CA State Controller), Justice Ming W. Chin (California Supreme Court), Kamala Harris (San Francisco District Attorney), Peter McHugh (Santa Clara County Supervisor), Hon. Nathan Mihara (CA Sixth Appellate District Court of Appeals), Justice Carlos R. Moren (California Supreme Court), Hon. Alicemarie Stotler (Chief Judge of the US District Court, Central District of CA) and many others.
Washington Court Holds Stipulated Covenant Judgment Sets Minimum Amount of Da...NationalUnderwriter
Washington Court Holds Stipulated Covenant Judgment Sets Minimum Amount of Damages in Bad Faith Case. (from FC&S Legal: The Insurance Coverage Law Information Center)
Recently, Division One of the Court of Appeals of Washington State affirmed a jury verdict awarding $13 million in damages to a passenger injured in a car accident, finding that the $4.15 million agreed amount of the covenant
judgment in the insurance bad faith case sets a floor, not a ceiling, on the damages a jury can award.
In Miller v. Kenny and Safeco Ins. Co.,[1] the Court of Appeals ruled on several additional issues on appeal including whether evidence of an insurance company’s loss reserves is properly admissible at trial.
The court affirmed the trial court's granting of summary judgment in favor of the defendants. The court found that there was no genuine issue of material fact regarding whether the special employer doctrine applied. Under the special employer doctrine, an employee can be considered simultaneously employed by both their primary employer and any other employer to whom their services were loaned, if three conditions are met: (1) an express or implied contract with the special employer; (2) the work being done is essentially for the special employer; and (3) the special employer has the right to control the work details. The court determined all three conditions were met, making the defendant the plaintiff's special employer and entitling the defendant to workers' compensation immunity.
Commercial and Legal Aspects of Liquidated Damages and PenaltiesAMILA GAYAN
This document discusses liquidated damages and penalties in commercial contracts. It begins with an introduction explaining damages for breach of contract and how liquidated damages provisions aim to provide certainty. It then covers the differences between general damages and liquidated damages, and how liquidated damages differ from penalties. The document discusses best practices for calculating liquidated damages and their advantages. It also examines liquidated damages in standard forms of contract and case law from various jurisdictions. An example case study is also provided to illustrate liquidated damages in practice.
In today’s litigation and regulatory climate, class actions alleging statutory violations can pose some of the most persistent and troublesome threats to lenders...
The document discusses different methods of allocating liability among multiple insurance policies that cover a loss ("allocation methods") and their effects. It describes the majority "all sums" method, adopted in many states, which allows an insured to choose which triggered policies will pay and obtain contribution from other insurers. It also describes the minority "pro rata" method, adopted in some states, which divides liability proportionately among all triggered policies. The document provides an example comparing the results of applying each method. It also discusses issues that can arise, such as when a policy has a high self-insured retention or an insolvent insurer.
Dead Hand Change of Control Default Provisions PPT 3-25-15Kevin Miller
This document summarizes recent developments regarding dead hand change of control default provisions. It discusses the Healthways case in Delaware Chancery Court where the court found that lenders could potentially aid and abet fiduciary duty breaches by negotiating terms that create conflicts of interest for company directors. It also mentions several similar shareholder lawsuits filed against other companies and banks. The document reviews plaintiffs' attorneys fees awards in recent cases and potential alternatives for banks going forward regarding these contractual provisions. An appendix discusses precedent set in the Amylin and SandRidge cases regarding change of control provisions.
This document provides an overview of key considerations for contractors who have been awarded a government contract. It discusses understanding the contract terms and format, conducting a post-award debriefing to assess the winning proposal, introducing your team at a kickoff meeting, important government players to know, common issues that may arise, and procedures for managing changes to the original scope of work. The goal is to help new contractors successfully execute their contract and avoid common pitfalls.
The document discusses UCC-1 financing statements. It provides background on the Uniform Commercial Code and how Article 9 deals with secured transactions and financing statements. The summary focuses on key aspects of UCC-1 financing statements, including:
- Conducting a UCC search during underwriting to check for existing liens and filing a post-lien search to verify the bank's filing.
- The financing statement serves to provide notice of a lien, perfect the lien, and determine priority among multiple liens.
- Key parts that must be completed correctly include the debtor's name and address, secured party's name and address, and collateral description.
- The collateral description must "reasonably identify"
What Is Personal Injury? A Great Slideshow from Deanza.eduCasey Meraz
Have you ever wondered what personal injury actually is? Check out this deck from http://www.Deanza.edu and learn more!
This was uploaded by http://www.RobertReevesLaw.com
The Reeves Law Group
515 South Flower Street, 36th Floor
Los Angles, CA 90071
(213) 271-9318
Other Meeting Locations
The Reeves Law Group 1 World Trade Center #800, Long Beach, California 90831 (562) 528-3135
The Reeves Law Group 198 N Arrowhead Ave, San Bernardino, CA 92408 92408 (909) 657-0576
The Reeves Law Group 4900 California Ave B210, Bakersfield, California 93301 (661) 202-3056
The Reeves Law Group 28202 Cabot Rd #300, Laguna Niguel, CA 92677 (949) 614-1142
The Reeves Law Group 300 Esplanade Drive #900, Oxnard, CA 93030 (805) 367-3414
The Reeves Law Group 3890 11th St, Riverside, California 92501 (951) 324-5174
The Reeves Law Group 3350 Shelby St #200, Ontario, California 91764 (909) 563-8162
The Reeves Law Group 200 W Santa Ana Blvd #630, Santa Ana, California 92701 (714) 550-6000
The Reeves Law Group 21250 Hawthorne Blvd #700, Torrance, California 90503 (310) 893-1742
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
This document summarizes an ERISA case in which the plaintiff, Marilyn Anderson, sought to recover attorney's fees for legal assistance during her administrative appeal of the denial of disability benefits by the defendant's disability plan. The court reviewed the relevant ERISA provisions and determined that section 1132(g) only allows recovery of attorney's fees for civil actions filed for specific reasons listed in section 1132(a), not for legal work during administrative proceedings. Therefore, the court found that ERISA does not permit Anderson to recover her attorney's fees and affirmed the district court's denial of fees.
This affidavit provides background information and summarizes recent events regarding Allied Systems Holdings, Inc. and Allied Systems, LTD. (L.P.) (collectively "Allied"), who filed for Chapter 11 bankruptcy in 2005 and emerged in 2007.
Events of default occurred under Allied's credit agreements due to its deteriorating financial condition. In order to prevent majority shareholder Yucaipa from gaining control and harming lender interests, an amendment placed restrictions on Yucaipa becoming a lender, including limits on the amount of loans it could acquire.
This affidavit supports a motion by petitioning creditors to appoint a Chapter 11 trustee for Allied, claiming Yucaipa's actions have harmed their
This document is the defendants' response to the plaintiff's supplemental motion for summary judgment in case 11-cv-20120-AMS. The defendants argue that the plaintiff's motion should be denied for three reasons: 1) The plaintiff failed to follow the local rules requiring a statement of material facts with citations; 2) The plaintiff's amended complaint fails to state a valid claim; 3) The plaintiff's motion seeks judgment on claims that were not asserted in the amended complaint and provides no factual basis or support for summary judgment.
When Do Liquidated Damages Become an Irrecoverable Penalty?Sarah Fox
The document summarizes guidelines from the case Makdessi v Cavendish for determining whether a contractual sum is an unenforceable penalty or a valid liquidated damages clause. It outlines seven guidelines from the case, including that a sum is more likely to be considered a penalty if it is extravagant compared to possible losses or applies to breaches of different types. It also notes that the guidelines have limitations and contracting parties have freedom to agree terms, making penalties difficult for courts to invalidate.
This document discusses various issues relating to statutes of limitations (SOLs) and notice provisions in insurance and reinsurance contracts. It provides an overview of SOL rules and accrual dates for direct insurance policies and reinsurance contracts. It also discusses how SOL defenses are addressed in reinsurance arbitrations and ways SOLs may be avoided, such as through tolling agreements. The document further examines issues around exhaustion of underlying limits for excess policies and notice requirements in reinsurance contracts.
Rights of the Parties and Discharge; Remedies for Breach of ContractHelpWithAssignment.com
Business law is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales.It is often considered to be a branch of civil law and deals with issues of both private law and public law.
This document summarizes three workers' compensation case law reviews related to attorney fees and benefits. The first case discusses whether attorney fees should be calculated on the gross or net amount of benefits when an offset is taken for social security disability income. The second case examines whether a third party respondent can be awarded attorney fees. The third case addresses when impairment ratings should be determined under the edition of the AMA Guides in effect at the time of injury or time of MMI.
The document summarizes a presentation on recent updates to federal procurement rules and regulations. It discusses the mandatory disclosure rule, contract disputes, statutes and regulations, bid protests, and organizational conflicts of interest. Key points include requirements for contractors to disclose violations, recent case law on jurisdiction and claims, new laws like the stimulus bill and its reporting requirements, common reasons for sustained bid protests, and new rules tightening restrictions on organizational conflicts of interest.
Developing a Severance Outplacement Strategy - Ogletree DeakinsCareerminds
What are your expectations when you decide to pay severance to a terminated employee?
How close can you get to your expectations?
Title VII, Equal Pay Act, Rehabilitation Act, ADA, Section 1981, ERISA, WARN Act
- knowing and voluntary test
- totality of the circumstances
- Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).
Daniel P. O’Gorman, A State of Disarray: The “Knowing and Voluntary” Standard for Releasing Claims Under Title VII of the Civil Rights Act of 1964, 8 U. Pa. J. Lab. & Emp. L. 73 (2005).
Thesis: While an agreement to release Title VII claims might not require the application of the objective theory of contracts like a contract in a commercial transaction, it also does not require application of the “voluntary, knowing, and intelligent” constitutional waiver standard.
Craig Robert Senn, Knowing and Voluntary Waivers of Federal Employment Claims: Replacing the Totality of Circumstances Test with a “Waiver Certainty” Test, 58 Fla. L. Rev. 305 (2006).
Thesis: Due to the totality test’s shortcomings and problematic consequences for employers, employees, and the courts, a new and reformed analysis is needed to determine whether a waiver of non-ADEA federal employment claims is knowing and voluntary.
This document discusses remedies for breach of contract. It defines key terms like contract, breach, and remedy. The main remedies for breach of contract are discussed in detail, including damages (compensatory, liquidated, punitive, and nominal), contract rescission, specific performance, contract reformation, and restitution. Compensatory damages aim to make the injured party whole by reimbursing expectation and consequential losses. Liquidated damages clauses must be reasonable. Punitive damages punish and deter wrongdoing. Nominal damages vindicate rights without compensation.
United States Court of Appeals Reverses Top Hat Violation of ERISA's Anti-Cut...Steve Carter
The document summarizes a court case where a top hat pension plan was found to violate ERISA's anti-cutback rule. It provides background on top hat plans and the key issues in the case. The court reversed the lower court's ruling, finding that amending a welfare plan to eliminate benefits for those who elected a lump sum pension payment indirectly amended the pension plan in violation of ERISA. The document also discusses ambiguity in plan terms and a administrator's discretion.
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1. CIGNA Corp. v. Amara Revisited:
The Ongoing Fallout From this
Landmark Case and Its Progeny
2. Presented by:
Deidre A. Grossman
Littler Mendelson, P.C.
Evan Miller
Jones Day
James P. McElligott Jr
McGuire Woods
Thomas G. Moukawsher
Moukawsher & Walsh LLC
Mark D. Spencer
McAfee & Taft
3. CIGNA Corp. v. Amara
131 S. Ct. 1866 (2011)
The Supreme Court Opinion:
– Summary Plan Description (SPD) is
not a plan document
– ERISA 502(a)(1)(B) v. 502(a)(3)
– Equitable relief under 502(a)(3)
Implications for ERISA
communication claims
Implications for monetary relief
Post-Amara Rulings
4. Amara’s Pro-Plaintiff Implications
Cabins Mertens’ limitations on monetary relief to non-fiduciaries
– Major change: lower courts had consistently applied Mertens to
claims against fiduciaries
– Not dicta. Even if dicta, it is Supreme Court dicta
– What is Amara’s impact, if any, on ERISA 510 claims?
What is surcharge trust law remedy?
– Punishment of errant trustees.
– Benefits otherwise had “but for” breach (e.g., failure to provide
application for benefits) seem to fit comfortably within trust law
remedies
– Is relief beyond this “extracontractual” or not typically equitable?
(e.g., misinformed had benefits did not have)
5. Amara’s Implications for ERISA
Communication Claims & Class Actions
Reformation – is some form of reliance or causation and harm
required to justify reformatory remedy?
– Not needed?
– Individualized or group?
– Distinction between intentional/fraudulent or merely negligent
misrepresentation?
– See following Wal-Mart discussion on “common answers”
Actual harm from “loss of a right protected by ERISA”
– What is harm, causation, and remedy in relation to this?
– See majority’s discussion of loss of being informed of negative
changes through workplace discussion
6. Amara’s Pro-Defendant Implications
Does Amara negate “implied in law” remedies under
ERISA 502(a)(1)(B)?
– Are statutory violation claims limited to ERISA 502(a)(3)?
– Must equitable requirements also be complied with?
– Is ERISA’s “two-step” (reform under ERISA
502(a)(3)/enforce under 502(a)(1)(B)) dead or alive?
– Impact on fiduciary insurance and/or taxes if remedies are
construed to be non-plan relief?
Does Amara’s actual harm and causation requirements
limit class actions for 502(a)(3) claims?
7. Amara v. CIGNA –Remand
Court awarded under 502(a)(3):
– 204(h) notice
– Reformation to eliminate undisclosed benefit
reduction
– CIGNA enjoined and ordered to enforce reformed
plan
– Interest
8. Amara v. CIGNA - Remand
Key holdings:
– Surcharge, reformation and estoppel are remedies
generally available under 502 (a)(3) even if relief is a
monetary payment
– Reformation can be awarded under contract or trust
case law
9. Amara key holdings (cont.)
Reformation is appropriate here on the grounds of unilateral
mistake paired with “fraud” or “similarly inequitable conduct”.
• Mistake is measure by comparing actual terms to reasonable
expectations
– “Actual harm” is only relevant to surcharge
– Surcharge can be awarded on “make-whole” or “unjust
enrichment” grounds
10. Amara key holdings (cont.)
-Surcharge is not confined to losses to the trust
- “Actual harm” means the loss caused by the breach
- For make whole surcharge Plaintiffs must show a breach
and a “related loss”
- If shown, defendant must show “loss would have occurred
in the absence of a breach of duty”
- For unjust enrichment surcharge but for breach would not
have obtained savings.
- Reformation adequate here, surcharge not needed.
11. Claimed that Foot Locker did not adequately explain the impact of
transitioning from a DB to a cash balance plan (i.e., did not explain “wear
away”) (ERISA 404(a));
Harm alleged: had employees received an adequate explanation, they
would have rebelled and management would have either maintained the
status quo or implemented a better plan (i.e., employees would have been
better off financially);
Relief sought: Surcharge against trustees and reformation of the Plan;
Holding: Summary Judgment for Foot Locker;
Reasoning: Alleged harm is entirely speculative (no evidence that plaintiff
would have selected another option) and no evidence that any conceivable
harm was caused by Foot Locker (no evidence that management would have
refused to implement transition or implemented a not-yet designed plan more
favorable to plaintiff).
Osberg v. Foot Locker, Inc.
(S.D.N.Y. Dec. 2012)
12. Tomlinson v. El Paso Corp.
(10th Cir. 2011)
Tomlinson v. El Paso Corp. (10th Cir. 2011)
– Plaintiffs claimed SPD was inadequate – did not include information
about “wear-away” and reductions
– Evidence showed that plaintiffs did not read SPD
– Post-Amara, reliance need not turn on reading the SPD (can be
based on Amara’s water cooler theory)
– But SPD was not faulty under Section 102 – wear-away need not
have been disclosed in SPD because wear-away is a “consequence
of the change in plan terms,” not “a new eligibility requirement”
– Absent evidence of deceit or failure to communicate “manner of
conversion to cash balance accounts,” SPD that does not disclose
wear-away will not be invalidated. Claim dismissed
13. Skinner v. Northrop Grumman Ret.
Plan B (9th Cir. 2012)
Skinner v. Northrop Grumman Ret. Plan B
(9th Cir. 2012)
– SPD failed to explain benefit offset contained in the plan
– Record showed that plaintiffs did not rely
on SPD
– Plaintiffs pursued reformation and
surcharge, but not estoppel (no reliance)
14. Skinner v. Northrop Grumman Ret.
Plan B (9th Cir. 2012)
Reformation of plan to conform to SPD – claim dismissed
– No mistake – no evidence that plan did not reflect true intent
– No fraud – no misleading statement or reliance (distinguished Amara)
Surcharge – claim dismissed
– No duty on the plan’s administrative committee to enforce SPD over plan
– Committee did not gain benefit from allegedly inaccurate SPD (no unjust
enrichment)
– Deprivation of statutory right to compliant SPD held insufficient to justify
surcharge remedy absent reliance (no actual harm)
15. McCravy v. MetLife
(4th Cir. 2012)
McCravy v. MetLife (4th Cir. 2012)
Participant paid (and insurance company accepted)
premiums for dependent life insurance after dependent was
no longer eligible (age 25).
She sued when daughter died and claim for insurance
was denied
Fourth Circuit dismissed claims for policy
proceeds; only relief was refund of premiums
Fourth Circuit granted rehearing in light of Amara
16. McCravy v. MetLife
(4th Cir. 2012)
Surcharge (if applicable) would allow recovery of full
proceeds – monetary loss caused by fiduciary breach
Estoppel (if applicable) would preclude fiduciary from
enforcing 30 day period for policy conversion and allow
recovery of full proceeds
Case remanded to determine if there
was a fiduciary breach and whether
surcharge and estoppel are
available remedies given
circumstances of the case
17. Killian v. Concert Health Plan
(7th Cir. 2012)
Killian v. Concert Health Plan (7th Cir. 2012)
Participant received treatment from facility outside
network and brought claims (benefit and fiduciary
breach) to recover expenses
Fiduciary breach claim based on: (i) failure to distribute
a valid SPD; (ii) failure to disclose during phone calls
that facility was outside network
Court notes that Amara changed the landscape of ERISA
remedies – active concealment, bad faith, and/or
detrimental reliance not always required
18. Killian v. Concert Health Plan
(7th Cir. 2012)
But court avoids addressing relief issue because it finds
no fiduciary breaches occurred
Absence of a valid SPD did not cause harm because
participant would have sought treatment from out-of-
network facility regardless of the breach
No duty to disclose, including because no inquiry and
fiduciary was unaware of participant’s predicament from
calls
Decision vacated and rehearing en banc granted, but
maybe just on duty to disclose issue
19. Kenseth v. Dean Health Plans, Inc.
(7th Cir., under submission)
Plaintiff alleges that health plan told her it would cover
surgery to correct complications of previous surgery for
obesity
Claim denied post-surgery under exclusion for obesity-
related medical expenses
Pre-Amara, district court held that 502(a)(3) did not
authorize monetary relief
On appeal post-Amara, plaintiff and Sec. of Labor argue
that plaintiff can elect between surcharge remedy (cost
of surgery), or disgorgement of amounts paid by plan to
its affiliated doctors
20. U.S. Airways, Inc. v. McCutchen
(3d Cir. 2011)
U.S. Airways, Inc. v. McCutchen (3d Cir. 2011)
Plan paid for $66k in medical expenses
Participant received settlement of $110k
Paid attorney first, leaving less than $66k
Plan contained clause requiring reimbursement from
“any monies recovered from third parties” and
precluding any negotiations that would undermine
subrogation
Plan sued Participant for $66k
Language created equitable lien by agreement
21. U.S. Airways, Inc. v. McCutchen
(3d Cir. 2011)
Defenses to “appropriate equitable relief” (make
whole, common fund, unjust enrichment, equitable
reformation)
Third Circuit relied on equitable principles discussed in
Amara to reform the plan under inapposite
circumstances
Plan would be unjustly enriched because it would
receive full recovery without contributing toward
attorney’s fees or exercising subrogation rights
Participant would receive less than he would have had
he not commenced a lawsuit
Plan terms are not “inviolable” where equity so requires
22. U.S. Airways, Inc. v. McCutchen
(3d Cir. 2011)
Accord CGI Tech. & Solutions Inc. v. Rose
(9th Cir. 2012)
Certiorari granted in McCutchen
23. Gearlds v. Entergy Services
(S.D. Miss. 2012)
Gearlds v. Entergy Services
(S.D. Miss May 14, 2012):
– Plaintiff overpaid health and pension benefits because misclassified as
disabled
– Plaintiff claims harmed because passed on coverage on his wife’s health plan
offered by her employer since thought he was covered under his employer’s
plan
– District court dismisses: money for lost coverage not equitable relief under
ERISA 502(a)(3), and no showing of “extraordinary circumstances” to
warrant equitable estoppel
On appeal to Fifth Circuit.
U.S. DOL filed brief as amicus - Does surcharge extend beyond
harm from loss of benefits?
24. State Law Trust Authority
Cited by Amara
Reformation - Baltzer v. Raleigh & A. R. Co., 115 U.S. 634, 645 (U.S. 1885):
“[E]quity would reform the contract, and enforce it, as reformed, if the
mistake or fraud were shown. But the mistake must be clearly shown. If the
proofs are doubtful and unsatisfactory, and if the mistake is not made
entirely plain, equity will withhold relief. “ Reformation denied.
Estoppel - Merwin, Principles of Equity and Equity Pleading (1895)
Surcharge - Princess Lida of Thurn and Taxis v. Thompson, 305 U.S.
456, 464 (1939). “[T]he court has the power to fix the compensation of the
trustee, to require him to take over from the trust investments improperly
made and to restore the amount expended for them to the trust estate, to
surcharge him with losses incurred, to allow him his proper expenses, to
find against him a balance due the estate, and to make the balance found
due a lien upon his real estate.”
25. Reformation
Contract reformation is a remedy for altering the terms of a writing that fails
to express the agreement of the parties “owing to the fraud of one of the
parties and mistake of the other.” 27 Williston on Contracts 69:55, p. 160
(4th ed. 2010). (Cited by Scalia)
“Reformation is an appropriate remedy when the evidence clearly and
unequivocally shows that an instrument does not express the true intent or
agreement of the parties." Boyles Bros. Drilling Co. v. Orion
Indus., Ltd., 761 P.2d 278, 281 (Colo. 1988); Thomas Revocable Trust v.
Inland Pac. , 2012 U.S. Dist. LEXIS 138615, 44-45 (D. Colo. Sept. 25, 2012)
Scalia in Amara, “Although in this case CIGNA wrote both the plan and the
SPD, it did so in different capacities: as sponsor when writing the plan, and
as administrator when preparing the SPD.” ERISA “carefully distinguishes
these roles.”
26. Equitable Estoppel
Equitable estoppel prevents one from doing an act differently than the manner
in which another was induced by word or deed to expect. Kreutzer v. Vehicle
Cnty Herald Co., 560 Pa. 600, 747 A.2d 358, 361 (Pa. 2000) (quoting Novelty
Knitting Mills v. Siskind, 500 Pa. 432, 457 A.2d 502, 503 (Pa. 1983)). Reese v.
Ford Motor Co., 2012 U.S. App. LEXIS 20341 (3d Cir. Sept. 28, 2012)
"Equitable estoppel is not an independent cause of action, but instead a
doctrine that may assist a party by precluding the opposing party from
asserting or denying the existence of a particular fact." Conagra, Inc. v. Farmers
State Bank, 237 Mich. App. 109, 140-41, 602 N.W.2d 390 (1999); Presser v.
Fannie Mae, 2012 U.S. Dist. LEXIS 102947 ( E.D. Mich. July 24, 2012)
"Parties seeking to invoke the doctrine of equitable estoppel must prove (1) that
promises or inducements were made; (2) that they reasonably relied upon the
promises; and (3) that they will be harmed if estoppel is not applied." Pollard v.
Southdale Gardens, 698 N.W.2d 449, 454 (Minn. App. 2005) Schmidt
Printing, Inc. v. Pitney Bowes, Inc., 2011 U.S. Dist. LEXIS 129552 (D. Minn. Aug.
29, 2011)
27. Surcharge
In re Estate of Janes, 90 N.Y.2d 41 (N.Y. 1997): Executor failed to
diversify the trust, which consisted of a large amount of one type of
stock which lost one-third of its date-of-death value. Court
approved surcharge of fiduciary for losses incurred by the estate for
failure to diversify trust’s assets.
See also Matter of Hunter, 27 Misc. 3d 1205A (N.Y. Sur. Ct. 2010)
RESTATEMENT (SECOND) OF TRUSTS 205, comment (a): “the
beneficiaries may surcharge the trustee for the amount necessary to
compensate fully for the consequences of the breach.”
In these cases, surcharge seems to be poor cousin to
ERISA 502(a)(2). Cf. Knieriem v. Group Health Plan, 434 F.3d
1058, 1064 (8th Cir. Mo. 2006) (cited in Scalia’s dissent).
28. Proof of Loss in Surcharge
SunTrust Bank v. Farrar , 277 Va. 546, 675 S.E.2d 187
(2009) . Court reversed trial court’s surcharge award for
beneficiaries who claimed that trustee failed to properly
market trust property and allowed the property to
become unproductive and a wasting asset.
Beneficiaries had the burden of proving damages with
reasonable certainty and could not rely on speculation
and conjecture.
Note that this would be an ERISA 502(a)(2) if brought
with respect to an ERISA plan.
29. Israel v. Prudential Ins. Co., US Dist. Lexis
106107 (D.S.C. July 31, 2012)
Plaintiff’s wife was a dependent insured under Lockheed’s life
insurance plan under which eligibility for coverage for a spouse
ceased after divorce. Plaintiff’s wife died after they divorced.
Plaintiff claimed that Lockheed’s benefits department, had told him
that he could continue the life insurance coverage on his ex-
wife. Lockheed continued to deduct premiums from Plaintiff’s
paychecks for the life insurance coverage.
Court granted summary judgment to Lockheed on Plaintiff’s benefit
claim under ERISA sec. 502(a)(1)(B), because plan’s terms did not
provide coverage.
Court denied summary judgment on claim for equitable relief under
ERISA sec. 502(a)(3) because of fact disputes.
Result: Discovery and trial.
30. Strickland v. AT&T Umbrella Benefit Plan, 2012
US Dist. LEXIS 14145 (W.D. NC Sept. 30, 2012)
Plaintiff was a disabled participant of AT&T’s medical
benefit plan. After becoming eligible for Medicare, he
claimed that Blue Cross allegedly told him (contrary to
Plan terms) that he needed to purchase Part A of
Medicare, but not Part B. Blue Cross then denied
payment of his medical bills in accordance with the
terms of the plan.
Court permitted plaintiff’s claim for equitable relief under
ERISA sec. 502(a)(3) to go forward for discovery and
trial, citing Amara and McCravy.
32. Amara Background
Claims: age discrimination, backloading, non-
forfeiture, faulty SPD, deficient 204(h)
notice, and breach of fiduciary duty
Allegations: participant communications failed
to give proper notice of “greater of”
formula, and caused participants to believe they
would receive the frozen pension benefit PLUS
the cash balance benefit (A + B)
33. Amara Procedural History:
District Court
Class of approximately 27,000 participants
Bench trial
Liability as to: 204(h) notice and SPDs
– Failed to adequately disclose the “wear-away” phenomenon; participants
believed A + B rather than “greater of” A or B
– Court found CIGNA intentionally misled participants
Plaintiffs need not demonstrate individual harm flowing
from deficient SPD; rather sufficient to show “likely
harm”
CIGNA did not refute “likely harm” presumption
34. Amara Procedural History:
District Court
Remedy awarded: Each participant receives the
benefit that the SPD suggested – the frozen
traditional defined benefit plus his cash balance
benefits (A + B)
Court awarded relief for the SPD violation under
ERISA 502(a)(1)(B)
Court doubted that the relief awarded was
permissible under ERISA 502(a)(3), citing
Mertens and Great-West
35. Amara Procedural History:
Second Circuit
Summary Opinion Issued
Adopted District Court’s Opinion
Both Parties Sought Certiorari
36. Amara Supreme Court Opinion
SPD is NOT binding contract
– SPD is meant to be a summary of the plan, not the plan itself
– Plan and SPD serve different roles, governed by different rules, and
drafted by separate entities
Accordingly, no relief under ERISA
502(a)(1)(B):
– Participant can bring an action to “enforce” not “change” the terms of
the plan
– Reformation of plan more like an equitable remedy under ERISA
502(a)(3)
37. Amara Supreme Court Opinion
ERISA 502(a)(3) - “appropriate equitable relief”
Had generally been interpreted as precluding monetary
relief under Mertens v. Hewitt Assoc., 508 U.S. 248 (1993)
Amara says Mertens precluded monetary relief against
non-fiduciaries; looking to trust law, concluded
appropriate equitable relief may include monetary relief
against fiduciaries
Amara suggests various remedies may be appropriate
under ERISA 502(a)(3): Estoppel; Surcharge;
Reformation
38. Amara Supreme Court Opinion
Elements of a valid claim/form of relief depend on nature of
the claim. For example:
Equitable estoppel requires detrimental reliance
Reformation: To reflect mutual understanding of parties
where “fraudulent suppression, omission, or insertions…
materially” affected the substance of the contact, even if the
complaining party was negligent in not realizing the mistake
Surcharge (monetary relief for fiduciary breach): Showing of
actual harm by preponderance of the evidence.
– Possible harm from loss of statutory right: Had SPD been sufficient,
likely employees would have heard of negative change from
workplace discussions
39. Amara Supreme Court Opinion:
Scalia/Thomas Concurrence
ERISA 204(h) most natural statutory basis for
remedying failure to disclose impact of plan
amendment
ERISA 502(a)(3) discussion: “purely dicta”
Remedy may be far different than what district
court imposed