[00:00:00] Speaker 03:
OK, we'll press on to case number 246137, Stark versus Reliant Standard Life Insurance Company.

[00:00:10] Speaker 01:
Counsel.

[00:00:11] Speaker 01:
May it please the court.

[00:00:13] Speaker 01:
My name is Glenn Mullins.

[00:00:14] Speaker 01:
Jerry Durbin and I are representing Jill Finley and Nancy Stark, her mother and her guardian in this case.

[00:00:22] Speaker 01:
Mr. Durbin and I will both be

[00:00:25] Speaker 01:
making presentations during this argument.

[00:00:27] Speaker 01:
So you may see a wrestling match to some extent if the clock gets too low, but I understand.

[00:00:33] Speaker 03:
I'll just, I'll just warn you.

[00:00:34] Speaker 03:
Sometimes we mess that up, but go for it.

[00:00:38] Speaker 01:
I understand.

[00:00:39] Speaker 01:
And your honor, what I would like to do in my presentation is to show the particular provisions in ERISA that allow for the make whole relief that Jill Finley is seeking in this case.

[00:00:54] Speaker 01:
And then I would like to discuss the decisions that the district court cited where attorney fees have not been allowed by other circuit courts.

[00:01:07] Speaker 01:
And I would like to explain our position regarding why those do not apply in this case.

[00:01:15] Speaker 01:
Mr. Durbin will then, in rebuttal, will be providing the argument to the court to show why, in this case,

[00:01:25] Speaker 01:
make-over relief should be applied.

[00:01:28] Speaker 01:
The main contention, Your Honor, this is a ruling from the district court granting a 12 v 6 motion to dismiss for failing to state a claim.

[00:01:40] Speaker 01:
The standard of review the circuit has said is de novo.

[00:01:47] Speaker 01:
To the extent the district court interpreted the ERISA statutes relating to remedies, that would also be a de novo review.

[00:02:01] Speaker 01:
Our contention is that in the complaint that we filed, as well as the documents that were attached to that complaint, which most, if not all, came from documents which would eventually be in the administrative record for reliance, these allegations were made.

[00:02:23] Speaker 01:
Jill Finley, when she was 31 years old, had a sudden death, cardiac arrest.

[00:02:30] Speaker 01:
And as a result of that, was in a coma for two weeks, had brain injury, cardiac damage.

[00:02:39] Speaker 01:
The Social Security determined that she was disabled from all work.

[00:02:45] Speaker 01:
At the time of her event and her disability, Ms.

[00:02:52] Speaker 01:
Finley was working as a mortgage underwriter.

[00:02:55] Speaker 01:
at Providence and under that was entitled to disability benefits under an own occupation policy if she could not work or perform the material duties of her occupation as a mortgage underwriter.

[00:03:11] Speaker 01:
For the next 14 years, Reliance received records from Ms.

[00:03:17] Speaker 01:
Finley's doctors, and they did internal reviews, and all those records showed she continued to be disabled.

[00:03:25] Speaker 01:
After paying benefits for 14 years, Reliance terminated her benefits and gave Ms.

[00:03:33] Speaker 01:
Finley two reasons for why they were terminating.

[00:03:37] Speaker 01:
Both of those were false.

[00:03:38] Speaker 03:
Let me divert the argument a little bit and ask you a question about surcharges.

[00:03:45] Speaker 03:
Do you have any authorities where a circuit court has

[00:03:49] Speaker 03:
agreed that pre-district court litigation, attorney's fees are properly recoverable as surcharges?

[00:04:01] Speaker 03:
No, sir.

[00:04:01] Speaker 01:
Okay.

[00:04:03] Speaker 01:
We have some district court.

[00:04:05] Speaker 01:
We've looked for those, obviously.

[00:04:07] Speaker 01:
I'm sure, yes.

[00:04:09] Speaker 01:
But the

[00:04:10] Speaker 01:
There are some district court cases that have denied motions to dismiss where that has been claimed, the pre-legation administrative proceedings, attorney fees for those, and has denied the motion to dismiss to allow that be evaluated by the court once discovery, if allowed, and evidence is presented as far as the fiduciary bill.

[00:04:32] Speaker 00:
Of course, that's ambiguous because there are many district judges

[00:04:36] Speaker 00:
Some of whom probably we all know personally that simply dismiss motions on that basis that it's inefficient to resolve things prematurely unless there's a clear record already established.

[00:04:50] Speaker 01:
That's correct, Your Honor.

[00:04:53] Speaker 01:
And as I want to get into, the problem we have with the other circuit court cases is that those all are applying the 1132G1 attorney fee statute under RISA.

[00:05:11] Speaker 01:
And that statute is not providing make-hold relief

[00:05:16] Speaker 01:
That is providing attorney fees where there's been a claim for benefits made.

[00:05:22] Speaker 01:
And then there's a claim for attorney fees to include both during the action as well as before and during the administrative proceedings.

[00:05:31] Speaker 01:
Our argument and our contention is our claim for make-hole relief for Jill is under 1132A3.

[00:05:43] Speaker 01:
It is a specific make whole relief provision there.

[00:05:48] Speaker 01:
And that's what we say makes the difference between what happens in those cases and what happens in our case.

[00:05:56] Speaker 03:
Isn't it an issue?

[00:05:57] Speaker 03:
So attorney's fees are a special animal in federal litigation.

[00:06:11] Speaker 03:
in litigation period, generally, you don't get to recover your attorney's fees.

[00:06:16] Speaker 03:
And here we have a comprehensive statute that addresses many things.

[00:06:23] Speaker 03:
And one of the things it says is there are going to be some instances where we're going to let you recover attorney's fees.

[00:06:30] Speaker 03:
And it specifies what those are.

[00:06:32] Speaker 03:
But one of those instances is not yours.

[00:06:37] Speaker 03:
And so it seems

[00:06:39] Speaker 03:
that when you have a comprehensive statute and a disfavored recovery, I'm going to just throw it out there.

[00:06:46] Speaker 03:
The recovery of attorney's fees is generally disfavored in American law.

[00:06:53] Speaker 03:
That creates a problem for you trying to sweep those into a surcharge recovery.

[00:07:02] Speaker 01:
Yes, Your Honor.

[00:07:03] Speaker 01:
And I think it was significant as far as the Castillo decision by the Ninth Circuit.

[00:07:07] Speaker 01:
In the Castillo decision, it stated that the attorney fee provision, 1132 G1, does not prohibit there being attorney fees recovered as a make-hole relief under 1132 A3.

[00:07:25] Speaker 01:
And so our position is that the comprehensiveness of the RISA

[00:07:32] Speaker 01:
is providing the fact that if there is a breach done by a fiduciary, and that is a situation where there can be equitable relief provided.

[00:07:48] Speaker 01:
The Supreme Court has indicated that that can include a surcharge

[00:07:55] Speaker 01:
monetary relief in the form of a surcharge to make whole the victim of the fiduciary breach.

[00:08:04] Speaker 01:
In our case.

[00:08:05] Speaker 02:
Can I just jump in and ask you a question about what you just said.

[00:08:13] Speaker 02:
So let's assume that you can get around 1132 G and make an argument for equitable relief

[00:08:23] Speaker 02:
under 1132A3.

[00:08:27] Speaker 02:
Don't you still, under the law of equity, need to point to a specific fund or asset in reliance's possession to recover the surcharge?

[00:08:47] Speaker 02:
In other words,

[00:08:50] Speaker 02:
where we're getting, even if the statute doesn't block you from doing that, isn't that a requirement for equitable relief?

[00:09:02] Speaker 01:
I don't believe so, Your Honor.

[00:09:04] Speaker 01:
I think once the Cigna versus Amara case decision came out, it didn't discuss the fact of going back to where you had to have a specific fund.

[00:09:18] Speaker 01:
This is where you have a fiduciary breach and you're providing make-ho relief from the fiduciary who did the breach.

[00:09:27] Speaker 02:
Well, but then what do you do with the follow-on case from the Supreme Court, Montanils, that discussed the signet language as dicta and reasserted the specific fund

[00:09:48] Speaker 02:
or asset requirements.

[00:09:51] Speaker 02:
Why doesn't Montanillo block your surcharge argument?

[00:09:57] Speaker 01:
I think it does not apply to this case.

[00:10:01] Speaker 01:
Montanillo was a planned reimbursement claim.

[00:10:05] Speaker 01:
And in the footnote where they made that reference, there's been no other circuit court that's followed that other than the Rose decision that we cited in our brief.

[00:10:16] Speaker 01:
There have been several circuit courts that have discussed the surcharge, the monetary relief since Montenegro, and none of them have adopted the interpretation that Rose did of that provision.

[00:10:34] Speaker 01:
And so from our perspective, it does not change AMARA.

[00:10:40] Speaker 01:
and the statement in Amara that make whole relief is available for fiduciary breaches.

[00:10:48] Speaker 02:
And that's what we're, you know- Didn't this court rely on Montanil and the Great Western, Keats versus Great Western?

[00:10:59] Speaker 02:
Did it rely on Montanil to deny relief because of the lack of a specific fund from which

[00:11:08] Speaker 02:
the equitable release with the recoveries.

[00:11:14] Speaker 01:
And your honor, I hope I'm understanding correctly, but my understanding of that case was the court cited Amara for the fact that the surcharge or make-hold relief could be made available.

[00:11:26] Speaker 02:
I thought it also cited Montevideo.

[00:11:32] Speaker 01:
I believe so, but I don't think it did preclude the statement in Amara that make-hold relief is available.

[00:11:42] Speaker 01:
The point that I would like to also make before my time is that the attorney fees are obviously a large part of the make-hold relief that Ms.

[00:11:56] Speaker 01:
Finley is seeking.

[00:11:57] Speaker 01:
There were also additional costs that would be

[00:12:01] Speaker 01:
The cost of having a consultation with medical experts, vocational experts, those would be something that Ms.

[00:12:11] Speaker 01:
Finley should be entitled to for make-hold relief.

[00:12:15] Speaker 01:
There's also the refusal to provide information that is requested.

[00:12:20] Speaker 01:
There's also statutory penalties that can be provided if they don't provide the documents that are required to do by a risk law.

[00:12:30] Speaker 01:
So those are other types of make-or-relief that Ms.

[00:12:35] Speaker 01:
Finley's entitled to.

[00:12:37] Speaker 01:
I'd like to now reserve the rest of our time so I can stay alive on the trip home for rebuttal.

[00:12:45] Speaker 01:
Thank you.

[00:12:47] Speaker 01:
Thank you, Your Honor.

[00:12:48] Speaker 03:
Yeah, thanks.

[00:12:53] Speaker 05:
Morning, Your Honors.

[00:12:54] Speaker 05:
May it please the court?

[00:12:56] Speaker 05:
I'm Joshua Bacharach.

[00:12:57] Speaker 05:
I represent the Appellee Reliance Standard Life Insurance Company.

[00:13:01] Speaker 05:
And turning first to the issue of the fees, Council had also mentioned just now that they're also requesting costs, but the ERISA statute, G1, includes fees and costs of action.

[00:13:16] Speaker 05:
It encompasses not only any claim for fees, but also costs they're saying that they should get, but they're not entitled to it because under the plain language in the statute, and as seven circuits have held, it does not apply to fees and costs for appealing a denied claim for exhausting administrative remedies.

[00:13:38] Speaker 05:
So council is trying to backdoor that by saying, no, I want it under A3 as appropriate equitable relief.

[00:13:46] Speaker 05:
But the problem there, as the court alluded to, is that in Mass Mutual versus Russell and in other cases by the Supreme Court of the United States,

[00:13:57] Speaker 05:
The court said that the six carefully enacted remedial provisions in the ERISA statute demonstrate that Congress didn't intend courts to infer additional remedies that it simply forgot.

[00:14:12] Speaker 05:
But that's what they're trying to do here.

[00:14:15] Speaker 05:
They're saying, yes, there's the statute.

[00:14:17] Speaker 05:
Even though it's specific, you should

[00:14:19] Speaker 05:
you should get around it and give us more remedies and and you're not allowed to do it especially in the context of fee statutes where congress has said that you or the i'm sorry the supreme court has said you have to interpret fee statutes strictly because it is not the norm well i was writing something down at the time and i missed which case you were referring to here

[00:14:41] Speaker 05:
Massachusetts Mutual Life Insurance Company versus Russell.

[00:14:45] Speaker 05:
Yeah, the site on that is 473 US 134.

[00:14:49] Speaker 05:
And there are subsequent cases that make the same point, including I believe, Etna Health Inc versus Davila by the Supreme Court, which is mid 2000s.

[00:15:01] Speaker 05:
The other problem here is, so under A3, you have to make a claim for other appropriate equitable relief.

[00:15:09] Speaker 05:
But if we already have a provision in the statute that addresses fees, it can't be considered appropriate or other relief.

[00:15:18] Speaker 05:
It's the same relief that's in the statute, but it's not allowed under these circumstances.

[00:15:23] Speaker 05:
So A3 doesn't apply.

[00:15:26] Speaker 05:
And then the other point on is, it can't even be considered equitable.

[00:15:30] Speaker 05:
As Judge Matheson pointed out, this court, the Supreme Court, in numerous cases, you start out with the Knudsen case, then the Serebov case, and most recently, the Montanil cases said that if you're seeking monetary damages as equitable relief, you have to have strict tracing.

[00:15:51] Speaker 05:
You have to be able to identify that race, that money, that in good conscience belongs to you.

[00:15:57] Speaker 05:
Once you're claiming any money,

[00:16:00] Speaker 05:
from the general assets of the defendant, it's not equitable, it's a legal relief.

[00:16:05] Speaker 05:
And as Your Honor pointed out in the Teets versus Great West Life Case 921F3rd1200, this is a good discussion of this issue of what is equitable birth versus legal relief.

[00:16:20] Speaker 05:
And it addresses not specifically this issue, but I think it's directly on point with this issue in saying that they're seeking money damages.

[00:16:28] Speaker 05:
You can't get that.

[00:16:29] Speaker 03:
What about her claim about the Social Security deducts and her position on that?

[00:16:35] Speaker 03:
I mean, that would be her money that's in your client's position.

[00:16:39] Speaker 05:
Yeah, but it's not a valid claim for a number of reasons.

[00:16:43] Speaker 05:
So what happens here is the policy has a gross benefit amount and from it you subtract other income benefits that a person receives.

[00:16:52] Speaker 05:
There is no language in the policy that says, if it causes you financial hardship, we're not going to do it.

[00:16:59] Speaker 05:
They are confusing an issue that, if Social Security isn't yet awarded and is estimated, will not collect it.

[00:17:06] Speaker 05:
And we did that with Ms.

[00:17:07] Speaker 05:
Stark.

[00:17:08] Speaker 05:
But as soon as it was awarded, she repaid all the money back.

[00:17:12] Speaker 05:
and the offset applied.

[00:17:13] Speaker 05:
And that happened for 12 years.

[00:17:16] Speaker 05:
It's not until this most recent lawsuit that she then complained, I'm sorry, prior to the lawsuit when the claim was denied and then reinstated, that she complained and said, no, it causes me financial hardship.

[00:17:26] Speaker 03:
Right.

[00:17:26] Speaker 03:
I guess my point was, though, that your position on that and your position on the attorney's fees as a surcharge are different.

[00:17:33] Speaker 05:
Oh, clearly.

[00:17:34] Speaker 05:
Yeah.

[00:17:34] Speaker 05:
Yeah, they're clearly different for a number of reasons.

[00:17:37] Speaker 05:
One is

[00:17:38] Speaker 05:
Financial hardship isn't a form of equitable relief.

[00:17:41] Speaker 05:
I've done research on this.

[00:17:43] Speaker 05:
I couldn't find a single case in any treatise referring to it that says financial hardship is equitable.

[00:17:51] Speaker 05:
It's just not true.

[00:17:53] Speaker 05:
The bigger problem that they have is this.

[00:17:56] Speaker 05:
There's something called the plan document rule under ERISA.

[00:17:59] Speaker 03:
The Supreme Court has said... The plan document.

[00:18:02] Speaker 05:
The plan document rule, I apologize.

[00:18:04] Speaker 05:
That Boston accent comes out once in a while.

[00:18:07] Speaker 05:
And what that says is, and it was in the State of Kennedy case, it was in Boggs v. Boggs, you have to follow the plain language in a plan document.

[00:18:17] Speaker 05:
And this plan document says this offset applies.

[00:18:21] Speaker 05:
There is no language that allows it to be excused.

[00:18:24] Speaker 05:
So in US Airways versus McCutcheon, the Supreme Court addressed a claim saying, we want to avoid obligations under unjust enrichment theory.

[00:18:36] Speaker 05:
And unjust enrichment can be an equitable theory, yeah.

[00:18:39] Speaker 05:
But the Supreme Court said, you can't still rely on it.

[00:18:42] Speaker 05:
Why?

[00:18:46] Speaker 05:
it would eliminate the language in the plan.

[00:18:49] Speaker 05:
You can't use equitable principles to avoid the language in a plan document.

[00:18:55] Speaker 05:
So for that reason, there is no valid claim related to the social security issue.

[00:19:02] Speaker 05:
And again, they didn't even protest it for years and years.

[00:19:05] Speaker 05:
Now they're arguing that she was forced or coerced into it.

[00:19:09] Speaker 05:
That wasn't raised in the district court.

[00:19:10] Speaker 05:
It's been waived.

[00:19:11] Speaker 05:
It's also non-existent.

[00:19:13] Speaker 05:
It's just not a fact.

[00:19:15] Speaker 05:
Going back to the fees, I'd like to point out council had mentioned the Castillo case out of the Ninth Circuit and suggested that it supports their position on fees under A3.

[00:19:27] Speaker 05:
But that's simply not true.

[00:19:29] Speaker 05:
In Castillo, there is a claim for attorney's fees for exhausting administrative remedies.

[00:19:36] Speaker 05:
under A3, and the circuit court rejected it.

[00:19:40] Speaker 05:
In fact, the court said after discussing the lock, the con decision, which says you can't get those fees, the court says that any inference that you should be authorized, that fees for administrating can be authorized, persuades us that A3 does not authorize an award of attorney's fees incurred during the administrative phase of the ERISA claims process.

[00:20:07] Speaker 05:
So that case clearly does not support their position.

[00:20:11] Speaker 05:
The only other point I'd like to make is there is an argument.

[00:20:14] Speaker 05:
The third claim for relief deals with a claim that we did not provide documents or information during the appeal.

[00:20:23] Speaker 05:
Now, counsel says that that leads to a statutory penalty claim.

[00:20:27] Speaker 05:
There is no statutory penalty claim in the complaint.

[00:20:32] Speaker 05:
And there can't be under section 1132C of ERISA, there can only be a statutory penalty claim for failing to provide plan documents, and it can only be asserted against the plan administrator.

[00:20:48] Speaker 05:
My client is not the plan administrator.

[00:20:51] Speaker 05:
My client is the claim fiduciary.

[00:20:53] Speaker 05:
So there is not a valid claim to begin with.

[00:20:56] Speaker 05:
But as I said, that only applies anyway

[00:21:00] Speaker 05:
to plan documents.

[00:21:02] Speaker 05:
If you look at the complaint, the third claim for relief identifies what they're saying we should have provided during the appeal.

[00:21:08] Speaker 05:
And it is information on the qualifications of our medical and vocational experts, information on the conflict of interest, as well as information on what steps were taken by reliance to investigate the claim.

[00:21:24] Speaker 05:
There is nothing in the risk of statute that requires us to provide that information.

[00:21:29] Speaker 05:
And the regulation, by the way, is very thorough.

[00:21:32] Speaker 05:
We have to provide a copy of the claim file during the appeal.

[00:21:36] Speaker 05:
We don't have to answer those questions.

[00:21:39] Speaker 05:
So there is no statutory penalty claim.

[00:21:42] Speaker 05:
More importantly, there was no breach of fiduciary duty by my client not providing that information.

[00:21:46] Speaker 00:
Are you saying your only obligation, no matter what claim it asks, is not

[00:21:52] Speaker 00:
any obligation to answer the question, but simply refer to a document and say, that's the end of the story.

[00:21:58] Speaker 00:
It's kind of like a judge that would say, I'm sorry, we can't answer your jurors questions.

[00:22:04] Speaker 00:
You've got to look at the evidence.

[00:22:06] Speaker 05:
I would never say that the plans are like judges.

[00:22:11] Speaker 05:
although they do make important decisions.

[00:22:14] Speaker 05:
But there are times when they will respond.

[00:22:16] Speaker 05:
But what happened here was council was asking questions that are maybe important during the lawsuit litigation, conflict of interest.

[00:22:26] Speaker 05:
Are your experts qualified?

[00:22:27] Speaker 05:
That may be important during litigation.

[00:22:29] Speaker 05:
It's not important during the appeal.

[00:22:32] Speaker 05:
But the big point here is for an A3 claim for breach of fiduciary duty under Cigna versus Amara,

[00:22:40] Speaker 05:
they have to show that there was actual harm to the claimant.

[00:22:45] Speaker 05:
So they're saying, I need this information during the appeal.

[00:22:48] Speaker 05:
There was no actual harm because the appeal was granted.

[00:22:51] Speaker 05:
Benefits were reinstated.

[00:22:52] Speaker 05:
So they suffered zero harm whatsoever.

[00:22:56] Speaker 05:
So that claim also failed.

[00:22:58] Speaker 05:
The district court did a good job in analyzing the issues.

[00:23:01] Speaker 05:
The fact here is that the law does not support any of the claims that were certainly complained.

[00:23:07] Speaker 05:
And unless there are

[00:23:09] Speaker 05:
Any questions from the panel?

[00:23:12] Speaker 05:
It's our position that this isn't even a close call that the district court correctly dismissed the complaint, and that should be affirmed.

[00:23:20] Speaker 03:
And the harm that they have to allege has to flow from the not providing the information they want?

[00:23:27] Speaker 03:
That is correct.

[00:23:28] Speaker 03:
That is correct, Ron.

[00:23:29] Speaker 02:
Now, so could I just add on the fees and costs issue.

[00:23:35] Speaker 02:
Is it your position that a plan participant like

[00:23:39] Speaker 02:
Ms.

[00:23:39] Speaker 02:
Finley can never recover fees and costs in fighting termination of benefits as long as they're reinstated before litigation.

[00:23:52] Speaker 05:
That is what seven other circuit courts of appeal have held based on the fact that the language in the statute says action, action meaning court proceedings.

[00:24:01] Speaker 02:
Your honor, we have others.

[00:24:02] Speaker 02:
Even if the termination is groundless and arbitrary, there's no recourse.

[00:24:09] Speaker 02:
That's what you're saying the law is.

[00:24:13] Speaker 05:
That's the law, because that's basically what your honor is saying, that now you're having a bad faith claim, but bad faith claims we know are preempted.

[00:24:22] Speaker 02:
Well, I'm just trying to determine how far this prohibition goes from your perspective.

[00:24:32] Speaker 02:
So no recourse really, no matter what happens in termination proceedings.

[00:24:39] Speaker 05:
Well, if the appeal is not granted and it goes to litigation, they can recover their fees and costs during the litigation.

[00:24:51] Speaker 05:
But the statutory language is clear.

[00:24:54] Speaker 05:
And since you've brought up, Your Honor, I do want to, I guess, address a few brief points.

[00:25:00] Speaker 05:
This claim denial wasn't arbitrary and it wasn't thrown at the left.

[00:25:05] Speaker 02:
I'm not suggesting that.

[00:25:06] Speaker 02:
I just want to see how far you're going with your

[00:25:09] Speaker 02:
position.

[00:25:10] Speaker 02:
But I did not say that.

[00:25:12] Speaker 05:
Understood, Your Honor.

[00:25:13] Speaker 05:
I understand, Your Honor.

[00:25:14] Speaker 05:
I just want to point out that there were reasons why the claim was denied.

[00:25:18] Speaker 05:
She was claiming significant problems at one point, but then we find out she's living on her own.

[00:25:24] Speaker 05:
She's actually driving a car.

[00:25:26] Speaker 05:
There were certain tests that were performed that suggested she had cognitive function that was in the average range.

[00:25:34] Speaker 05:
So

[00:25:35] Speaker 05:
That's the whole purpose of the full and fair review requirement under 29 USC 1133.

[00:25:40] Speaker 05:
If a claim is denied, then they have the right to appeal and correct it.

[00:25:45] Speaker 05:
We received new information, it supported the claim, and that decision was corrected.

[00:25:50] Speaker 05:
And as Your Honor probably knows, going back to your point, you know, the ERISTA statute represents a number of compromises.

[00:25:57] Speaker 05:
And I think that's the best way to view the issue of fees for exhausting your administrative remedies.

[00:26:03] Speaker 05:
That was one of the compromises that was made.

[00:26:05] Speaker 05:
Other statutes, for example, civil rights statutes.

[00:26:09] Speaker 05:
The language in them says actions or proceedings.

[00:26:13] Speaker 05:
So courts have said that if you're going through some administrative proceeding, then you're entitled to those fees.

[00:26:21] Speaker 05:
This one limits us to actions.

[00:26:23] Speaker 05:
That was part of the compromise in enacting ERISA, your honor.

[00:26:28] Speaker 03:
Thank you.

[00:26:29] Speaker 03:
Thank you, counsel.

[00:26:30] Speaker 03:
Judge Matheson, would you oppose giving Mr Mullins an extra two minutes here so his drive home is more friendly?

[00:26:39] Speaker 02:
That sounds I think he doesn't.

[00:26:42] Speaker 03:
Okay, can we add two minutes on here?

[00:26:44] Speaker 03:
Thank you very much.

[00:26:46] Speaker 04:
One thing has not been mentioned here today is that the denial of these benefits was based on lives are based upon lives.

[00:26:56] Speaker 04:
I know it's a harsh word.

[00:26:57] Speaker 04:
But there is nothing in the record.

[00:27:00] Speaker 04:
Every doctor's report in the record, every vocational rehabilitation record in the record says she can't work.

[00:27:10] Speaker 04:
Everyone.

[00:27:10] Speaker 04:
There's not one medical doctor that supports the denial.

[00:27:14] Speaker 04:
And yet this insurance company knows that they have a brain damaged

[00:27:19] Speaker 04:
Art attack woman who doesn't have a legal education, who's living now on $1,100 a month, and they expect her to be able to put together an appeal to raise the issues.

[00:27:32] Speaker 04:
She can't do that.

[00:27:34] Speaker 04:
She can't afford a lawyer.

[00:27:35] Speaker 04:
I hear Glenn and I doing this because we think it's the right thing.

[00:27:38] Speaker 04:
We think it's the right thing because this insurance company put this woman in a position of losing, of living the rest of her life on $1,100 a month.

[00:27:48] Speaker 04:
They denied it because she was cognitively normal.

[00:27:52] Speaker 04:
The doctor who wrote a report that this adjuster took that from wrote a letter to the adjuster said, I am offended that you would characterize my report as cognitively normal.

[00:28:03] Speaker 04:
She is far from cognitively normal.

[00:28:06] Speaker 04:
I twice said, the doctor said in the report, she can't work.

[00:28:10] Speaker 04:
They base this on lies.

[00:28:14] Speaker 04:
And the lies are what we are here to talk about.

[00:28:17] Speaker 04:
This court doesn't support liars.

[00:28:20] Speaker 04:
This court doesn't stand for lies.

[00:28:23] Speaker 04:
And yet, to allow this to go forward, it says to all the insurance companies out there, you can lie to deny claims under ERISA, and they can't do anything about it.

[00:28:33] Speaker 04:
Because if they appeal and they catch us lying, we have to say, oh, you get your benefits back.

[00:28:40] Speaker 04:
And that's what happened here.

[00:28:41] Speaker 03:
So if we look at the record, there were some things mentioned by your opposing counsel driving, doing other things that suggest that maybe there was improvement despite these doctors' reports.

[00:28:54] Speaker 03:
If we look at the record, and those are in fact in there, doesn't that change the analysis just a little bit?

[00:28:59] Speaker 03:
I mean, it doesn't make it outright lies, does it?

[00:29:02] Speaker 04:
if the record said those things.

[00:29:04] Speaker 04:
She doesn't live alone.

[00:29:05] Speaker 04:
She lives with a roommate.

[00:29:06] Speaker 04:
She tried to live alone.

[00:29:07] Speaker 04:
She couldn't do it.

[00:29:08] Speaker 04:
She is a guardian.

[00:29:10] Speaker 04:
She drives a car.

[00:29:11] Speaker 04:
She socializes.

[00:29:12] Speaker 04:
The examples they gave the denial letter was she can walk her dog.

[00:29:17] Speaker 04:
She can socialize.

[00:29:18] Speaker 04:
She can

[00:29:20] Speaker 04:
didn't say drive a car, but she can drive a car.

[00:29:22] Speaker 04:
She's not brain dead.

[00:29:25] Speaker 04:
She's brain disabled from performing the material duties of mortgage underwriter.

[00:29:29] Speaker 04:
Once again, every doctor in the file says that.

[00:29:33] Speaker 04:
Every vocational rehabilitationist says that.

[00:29:35] Speaker 04:
It is uncontroverted.

[00:29:38] Speaker 04:
And it is those lies that put this woman in this position of having to appeal.

[00:29:44] Speaker 04:
Probably on hindsight, if we'd have been smart and conniving, we would have written something silly for Jill to file and they would have denied it.

[00:29:55] Speaker 04:
And then we could have come into court and argued this and been entitled to the hours and hours and hours we've spent presenting Jill's case.

[00:30:07] Speaker 04:
She is disabled.

[00:30:09] Speaker 04:
She has not been

[00:30:11] Speaker 04:
said by any doctor that she can work exactly the opposite.

[00:30:16] Speaker 04:
So why should this court allow an insurance company to lie to deny benefits under the protection of ERISA?

[00:30:25] Speaker 00:
Apparently, she's getting all these benefits again, although with the offset of her federal disability, isn't that right?

[00:30:35] Speaker 04:
She's living on $2,000 a month.

[00:30:37] Speaker 00:
But she's getting the equivalent

[00:30:40] Speaker 00:
of what she would have gotten had the insurance company paid those disabilities because they're saying you got it in another way.

[00:30:48] Speaker 04:
That's correct.

[00:30:49] Speaker 04:
And she's getting it because we filed an appeal with the insurance company and caught them with their lives.

[00:30:57] Speaker 04:
And they came and said, oh, OK, you're right.

[00:30:59] Speaker 04:
We'll give her what she's always entitled to.

[00:31:02] Speaker 04:
She isn't getting anything extra.

[00:31:04] Speaker 04:
From the day she had a heart attack,

[00:31:07] Speaker 04:
She has been disabled, and there's nothing that's changed since then, not a doctor's report.

[00:31:14] Speaker 04:
So we just ask for our day in court for Jill.

[00:31:16] Speaker 03:
Thank you, counsel.

[00:31:17] Speaker 04:
I got 10 seconds.

[00:31:18] Speaker 03:
No, you're out of time.

[00:31:19] Speaker 03:
Well, you're 13 over.

[00:31:21] Speaker 03:
Hold on.

[00:31:21] Speaker 03:
Let's make sure Judge Matheson doesn't have anything.

[00:31:25] Speaker 03:
OK.

[00:31:26] Speaker 03:
All right.

[00:31:27] Speaker 03:
No, I think we're good.

[00:31:28] Speaker 03:
The case will be submitted, and counsel are excused.