May 24, 2018
Thanks to Roy Harmon for his roundup of comments from the blogosphere regarding MetLife v. Glenn. I won’t say more about the basics of the decision other than to note that, between the four separate opinions, there’s something for just about everyone. The law on conflict is about as muddled as what the Court started with. The district and circuit courts across the country will make their way through the morass on a case by case basis.
But there’s an area I haven’t seen a lot of discussion about and that I and other ERISA lawyers will be dealing with regularly: what latitude will the federal courts give claimants to develop the information this decision identifies as being relevant to consideration of conflict in a benefit denial case? What will the federal judiciary require of claimants to be in a position to present information about conflict of interest? Does Glenn open the door to more discovery about conflict of interest? Or will claimants be required to more diligently uncover information about conflict of interest before litigation begins? And if the answer to the last question is yes, what assistance will claimants have from the federal judiciary when insurers stonewall them (as they almost always have done and will continue to do in the future) about providing conflict of interest information in the pre-litigation process?
My prediction is that Glenn will cause renewed effort by good claimants' counsel to uncover facts relating to conflict of interest. As they become more aggressive in the pre-litigation appeal process and insurers continue in their reluctance to disclose what they view to be proprietary financial or other operating information, challenges about whether insurers have complied with ERISA's fiduciary standards relating to "full and fair review" of denied claims will become more common and important. The harm to claimants of insurer stonewalling will become more self evident and this is likely to lead to a renewed emphasis by the federal judiciary on the need for ERISA fiduciaries to more rigorously comply with ERISA’s claims procedure requirements. The willingness of ERISA fiduciaries to faithfully carry out those claims procedure obligations in an open handed way is the key to developing information about conflict of interest factors the Glenn decision identifies.
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