ERISA section 502(a)(3)

We recently observed that ERISA gives employers considerable leeway to design plan rules that fill in gaps in ERISA.  A recent Second Circuit case, Thurber v. Aetna Life Ins. Co., illustrates two important ways that plan drafting can meaningfully affect the outcome of litigation involving the plan:

  • First, a plan may specify the standard of review that a court must apply in a dispute.
  • Second, plan language can affect a plan’s ability to recover overpayments.

The case illustrates that good language that fills in gaps can save a lot of money.  In contrast, not filling in gaps — or having language that is not clear — can prove costly.
Continue Reading Second Circuit Reinforces Plan Drafting Opportunity for Employers

On Tuesday, November 27th, the Supreme Court will hear oral arguments in U.S. Airways v. McCutchen.  The case will address a medical plan’s ability to recover the cost of medical benefits for injuries caused by a third party.  McCutchen is important to employers, because a ruling against U.S. Airways might significantly increase the cost of providing medical and other benefits.
Continue Reading Supreme Court to Address Plan’s Ability to Recover the Cost of Medical Benefits for Injuries Caused by a Third Party