Seventh Circuit

A recent Seventh Circuit case, Killian v. Concert Health Plan (Nov. 7, 2013), highlights two important principles for any plan sponsor or fiduciary:

  1. If a plan document or summary plan description leaves out information and says to call a phone number for details, plan fiduciaries can be responsible for call center representatives’ oral statements and omissions.
  2. A call center representative might have a responsibility to provide more information than a caller specifically requests, if the caller’s questions indicate that additional information would be important to the caller under the circumstances.

The Killian case involved unfortunate circumstances.  An employee was admitted to a hospital for emergency cancer surgery.  The insurance certificate for the employee’s health plan cautioned participants to call a phone number to confirm that their health provider was in-network.  The employee’s husband followed this suggestion and called the number.

The husband explained to the call center representative that his wife needed immediate treatment, and was seeking admission to St. Luke’s Hospital.  The representative could not find St. Luke’s Hospital in her database (possibly because St. Luke’s had changed its name to Rush several years earlier), but told the caller to “go ahead with whatever had to be done.”  The caller never asked whether the hospital’s services would be covered, and the representative did not address that question.  She told him to call back later.
Continue Reading Fiduciaries May Be Responsible for Call Center Statements to Fill in Gaps in SPD

The Seventh Circuit’s recent decision in White v. Marshall & Ilsley Corp. awarded another early-round victory to employers in ERISA stock-drop litigation.

The plaintiffs in this case sought to recover losses in the M&I Bank 401(k) Plan’s stock fund that were attributable to a 54% decline in the market price of M&I stock that occurred during the financial crisis of 2008 and 2009.  The district court granted M&I’s motion to dismiss the plaintiffs’ misrepresentation and imprudent investment claims, but the plaintiffs appealed only the dismissal of their imprudent investment claims.

The Seventh Circuit affirmed the district court’s judgment.  Consistent with rulings by the Second, Third, and Eleventh Circuit (and contrary to a ruling by the Sixth Circuit), the Court ruled that the presumption of prudence adopted by the Third Circuit in Moench v. Robertson, 62 F.3d 553 (3d Cir. 1995) applied at the pleading stage as a substantive standard of conduct and that the presumption was not an evidentiary standard to be applied at the summary judgment stage, as urged by the plaintiffs and their amicus, the Secretary of Labor.
Continue Reading Employers Continue to Prevail in Stock Drop Litigation