Nov 262013

Although the goal, or at least the primary goal, of most ERISA cases is the recovery of some sort of employment “benefit,” as to which suit is authorized under 29 U.S.C. 1132(a)(1)(B), occasionally an ERISA litigant will pursue a claim under 29 U.S.C. 1132(a)(1)(A). That subsection authorizes suit “for the relief provided for in” 29 U.S.C. 1132(c), which, in turn, requires that certain information be made available to a beneficiary within thirty (30) days of a request, and sets out a penalty — currently $110.00 per day — for noncompliance.

The number of reported decisions that have addressed (a)(1)(A) claims is minuscule in comparison to those that have addressed (a)(1)(B) claims, but from those that exist, a common theme has emerged to the effect that there are two (2) primary obstacles to an (a)(1)(A) claim. The first is that not every information “possessor” is a proper target for an (a)(1)(A) claim; only an “administrator” is. The second is that the subsection only covers certain “information,” to wit, “information which [the] administrator is required by [subchapter I of ERISA] to furnish.” The consensus is that this boils down to 29 U.S.C. 1024(b)(4), which lists, among other things, the “latest updated summary plan description” and “other instruments under which the plan is established or operated.” No where on the list does “claim material” or the like appear, and since it is that brand of “information” that forms the basis for most (a)(1)(A) claims that have resulted in reported decisions, most have come up short.

A recent decision out of the Southern District of New York, Curran v. Aetna Life Ins. Co., 2013 WL 6049121, highlights these issues quite effectively.

Curran v. Aetna Life Ins. Co., 2013 WL 6049121 (S.D.N.Y. Nov. 15, 2013)

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