Book Review: ERISA Benefits Litigation Answer Book 2013

I recently received an inquiry from the Practicing Law Institute asking whether I would be interested in reviewing a new book, ERISA Benefits Litigation Answer Book 2013, by Craig C. Martin and Amanda S. Amert. I googled the authors and discovered that they are partners at Jenner & Block, a firm of approximately 450 lawyers. Now, I must admit my prejudice; as a lawyer whose practice is focused entirely on representing ERISA claimants, I doubt that I would have bought this book because it is written by lawyers whose ERISA practice in almost guaranteed to be representation of employers, insurers, and plan administrators. In other words, the other side.

In my smug myopia I didn’t think that I had much to learn from this book. However, I agreed to review it (probably because I was flattered to be asked to do so); and am glad I did. I was wrong about its value to me (as most of my prejudgments probably are). It is really well written and organized in such a way as to lend itself to easy use. The topics are presented in a sensible question-and-answer format and in logical order. This is not a how-to book, but it is a handy reference for the seasoned practitioner or the attorney who only occasionally finds himself representing either side in ERISA benefits litigation.

The first chapter is an overview of ERISA causes of action. Succeeding chapters more fully flesh these out. There are chapters covering such topics as federal court jurisdiction, fiduciary duties (and another devoted to breach thereof), affirmative defenses, discrimination and interference with benefits litigation, and litigation to recover benefits, to name but a few of the 18 chapters.

For example, chapter 11 is titled, Litigation to Recover Benefits Due Under a Plan. This is the area in which I practice and feel most competent to offer comment. However, all the other chapters are as well written and logically organized.

Section headings in chapter 11 include (among others) topics such as who can bring a claim, who may be sued, damages available, standard of review, conflict of interest, and exhaustion of administrative remedies.

Every answer to every question is presented in an even-handed manner and supported by appropriate authority. In addition to the questions and answers there are “practice notes” that are tips that take the reader beyond the mere answers. For example, after Question 11.7.2 “What is a ‘plan administrator’?” there is the straightforward answer and then the following practice note:

It is common for an ERISA plan – and particularly a welfare benefit plan – to have both an “administrator” for statutory purposes (most typically, the employer and plan sponsor) and a “claims administrator” paid by the plan or the employer to process claims and perform other services. The fact that a claims administrator performs these services is not in and of itself relevant to an analysis of who is the plan administrator for ERISA purposes although a claims administrator could be designated as a plan administrator in a plan document.

I assume that this is information that most seasoned practitioners of ERISA benefits already know. But, it would take a novice an untold amount of time digging that gem out of the jurisprudence. This is just one small example of the little nuggets these “practice notes” contain. The book would be worth the price if it had nothing else.

If there is a valid criticism of this book, it is this: Probably the most litigated issues in ERISA benefits cases center on evidence and discovery. Since it is relatively easy for a plan sponsor to grant discretion to a plan administrator, most cases are reviewed by federal courts using the abuse of discretion standard. Generally, that means that the federal court sits as a court of review and will not reverse an administrator’s decision to deny or terminate benefits if that decision is supported by substantial evidence. But that raises a serious question of what evidence should be before the reviewing court.

With few exceptions courts have held that a reviewing court cannot go beyond the administrative record maintained by the plan administrator. In the usual case, this is what in any other context would be referred to as the insurance company’s claim file. So, if all the evidence is already in the claim file, the only thing necessary is to file that record into evidence. That was surely the case before Metropolitan Life Ins. Co, v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 2345, 171 L.Ed.2d 299 (2008). The Glenn decision held that when the entity making the claim decision is also the entity that will pay benefits, there is a conflict of interest. The administrator’s conflict of interest is one factor the reviewing court is to consider when making the determination whether a claim decision was an abuse of discretion.

The proof of the extent to which the administrator’s decision is infected with its own self interest cannot usually be found in the claim file maintained by the administrator. Thus, some discovery may be necessary. The scope and extent of that discovery has been the subject of much post Glenn litigation.

That said, I still heartily recommend this book to any lawyer involved in any ERISA benefits litigation.

This review is already too long. But, for those of you still reading, let me sum up by saying that I believe that my every research project will start with this book, and it will be on my desk at all times that it is not with me at a mediation or some other conference.

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