Green & Humbert 220 Montgomery St San Francisco CA (415)

Cigna changed its retirement plan from a defined benefit based on salary and length of service to a cash balance plan Participants sued, claiming insufficient notice of Plan changes and that new plan was less generous Holding: participants have no claim for relief under (a)(1)(B), which does not give Court authority to change the terms of the plan; SPD not a Plan document However, (a)(3) provides those forms of relief available in equity, including reformation of contracts as a remedy for false or misleading information; claimant must show “actual harm” although not necessarily detrimental reliance (except still required for estoppel) Green & Humbert 220 Montgomery St San Francisco CA (415)

Skinner v. Northrup Grumman Retirement Plan B, 673 F.3d 1162 (9 th Cir. 2012) – retirement plan case - Claimant alleged Plan terms differed from SPD - Held, SPD not a Plan document – Circuit had previously held SPD language “enforceable part of plan” - Claims available under (a)(3): estoppel, reformation, or surcharge - no reliance on SPD terms = no estoppel - No fraud/mistake = no reformation - No showing that Plan benefitted from alleged breach = no surcharge Green & Humbert 220 Montgomery St San Francisco CA (415)

-Employer switched from a defined benefit plan to a cash balance plan - Claimants alleged insufficient notice period prior to changeover - Held: Amara requires only showing of “actual harm”, not necessarily detrimental reliance: “The Supreme Court recently altered the required showing of prejudice for some ERISA claims, but even under this new, more lenient standard, ‘actual harm must be shown.’” - Claimants failed to demonstrate “actual harm” as a result of late notice Green & Humbert 220 Montgomery St San Francisco CA (415)

U.S. Airways, Inc. v. McCutchen, 663 F.3d 671 (3d Cir.2011) - Plan participant injured in auto accident - Plan paid $67,000 in medical expenses - Participant recovers $110,000 from third parties (incl. legal fees) - - Plan sues participant for reimbursement of medical expenses as (a)(3) equitable relief; participant claimed no allowance for attorney’s fees incurred - Held: Amara holds that equitable relief = relief “typically available in equity,” which means such relief is subject to equitable defenses - Cert granted June 2012 Green & Humbert 220 Montgomery St San Francisco CA (415)

- Health insurance plan included subrogation/reimbursement provisions - Employee injured in auto accident - Plan paid $32,000 in medicals - Employee obtained 3d party recovery paid in trust to attorney - Plan sued employee and attorney seeking reimbursement - -Held, attorney not a proper party Under (a)(3) because did not participate in an “unlawful transaction” - -Held, under Amara the application of “traditional equitable relief” includes traditional equitable defenses, such as “make whole” and “common fund” doctrines - Under Amara the court “need not honor the express terms of the Plan where traditional notions of equitable relief so require. “ Green & Humbert 220 Montgomery St San Francisco CA (415)

- Claimant received benefits under a LTD plan - Later also received Social Security payments, creating an overpayment of benefits - Claim review fiduciary sued for reimbursement of overpaid benefits under (a)(3), citing “other appropriate equitable relief” provision - Held, an equitable lien requires (1) a promise to reimburse out of a third party recovery, (2) a specific fund separate from the claimant’s general assets, and (3) funds must be within claimant’s possession and control - Amara cited for proposition that equitable lien requires “particular funds or property in the defendant’s possession” Green & Humbert 220 Montgomery St San Francisco CA (415)

Sullivan v. CUNA Mutual Ins. Society, 649 F.3d 553 (7 th Cir.2011) - Employer paid a portion of retiree healthcare premiums; allowed retirees to use unused sick leave credits to pay the rest - Employer discontinued its contribution and cancelled credits program - Retirees sued, alleging Plan diverted “assets” to itself (balance sheet gain $120 million) - Held, sick leave balances are not a Plan “asset” - Held, health care benefits not vested - Amara cited for proposition that “silence in a summary plan description about some feature of a pension plan does not override language in the plan itself” Green & Humbert 220 Montgomery St San Francisco CA (415)

-Action challenging denial of residential treatment under a healthcare plan - Claimant challenged appropriate standard of review; grant of discretion contained in SPD; no other plan document in evidence - Court cited Amara for two “fairly simple propositions: “(1) the terms of the SPD are not enforceable when they conflict with governing plan documents, or (2) the SPD cannot create terms that are not also authorized by, or reflected in, governing plan documents.” Held, Amara inapplicable where the SPD IS the Plan Green & Humbert 220 Montgomery St San Francisco CA (415)

-Employer provided HMO plan Employee sought reimbursement for treatment by out of network physician - Aetna denied claim based on Plan provision requiring pre-authorization - Court found pre-authorization provision in SPD to be ambiguous - Amara cited for proposition that (a)(1)B) claims may be based only on Plan terms, not terms of SPD, but “a beneficiary may still seek to hold the administrator to conflicting terms in the plan summary through a breach- of-fiduciary-duty claim under § 1132(a)(3). “§ 1132(a)(3) Green & Humbert 220 Montgomery St San Francisco CA (415)

-MetLife provided AD&D coverage and administered plan - Coverage provided to “eligible dependent children” i.e. < 19 or < 24 if full time student - Claimant paid premiums to cover her daughter, who was murdered in 2007 at the age of 25 - Met denied claim, refunded premiums - Claimant refused refund, sued for coverage “surcharge” or “estoppel” - - Dist. Ct. remedy = return of premium - Held, under Amara the claimant may seek “surcharge” in the form of the Plan benefits as a remedy under (a)(3) for breach of fiduciary duty; - claimant may also state a claim for equitable estoppel, i.e. allowing claimant to retroactively convert dependent coverage into individual coverage - Court’s concern: “risk-free windfall profits” Green & Humbert 220 Montgomery St San Francisco CA (415)

-LTD claim based on fibromyalgia - Claim administrator limits benefits to 2 years based on “self reported symptoms” limitation - 7 th Circuit holds that limitation applies to diagnoses based on self-reports, rather than conditions where the extent of impairment is self-reported - Amara cited for proposition that failure to mention plan limitation in SPD is not a basis for equitable relief: “This conclusion obviates our need to address the issue on which we rested our initial opinion, that Unum's failure to include the self-reported symptoms limitation in the SPD warranted granting Weitzenkamp equitable relief. We acknowledge, without deciding, that CIGNA Corp. v. Amara, U.S.,, 131 S. Ct. 1866, 1877, 179 L. Ed. 2d 843 (2011), may undermine that result...” Green & Humbert 220 Montgomery St San Francisco CA (415)

-FIRST CIRCUIT - SECOND CIRCUIT - EIGHTH CIRCUIT - D.C. CIRCUIT Green & Humbert 220 Montgomery St San Francisco CA (415)