What does it take to assert an effective  exhaustion of remedies defense in ERISA cases? Properly drawn plan documents that expressly impose the duty upon the claimant to exhaust remedies before bringing a lawsuit.

Here is an excellent blog post by one of the true experts in the field, Stephen Rosenberg, and his Boston ERISA & Insurance Litigation Blog.

http://www.bostonerisalaw.com/archives/benefit-litigation-opening-up-the-courthouse-door-the-second-circuit-weighs-in-on-exhaustion-of-administrative-remedies.html

Key points:

1. The Second Circuit may have weakened the “failure to exhaust administrative remedies” defense.

2.  In addition to the Second Circuit, two other “circuits have held that, where a plaintiff reasonably interprets the plan terms not to require exhaustion and, as a result, does not exhaust her administrative remedies, the case may proceed in federal court.”

3.  “[T]here have been a smattering of decisions over the years . . .finding that an administrator cannot insist on particular internal claim procedures if the plan documents themselves do not clearly impose them.”

4.  KEY TAKE AWAY:  “Properly drawn plan documents, which clearly imposed such an obligation, would have been sufficient to preclude the Court’s ruling, and to allow the plan to prevail solely on the ground that the participant had failed to exhaust administrative remedies available under the plan.”

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Photo of Mike Reilly Mike Reilly

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment…

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment advice, and has represented clients in more than 75 jury trials, arbitrations, bench trials and claims before the EEOC and Washington State Human Rights Commission.

Small and large employers retain Mike for his strategic advice and decades of experience in employment issues and litigation, business decisions and litigation avoidance. Mike provides advice in claims involving discrimination, retaliation, wrongful discharge, disability accommodation, ERISA and non-ERISA employee benefit claims, and wage/hour claims. He served as lead counsel in an employee raiding/trade secret case as reported in the Wall Street Journal, and defends employers in class action claims.

Mike’s remarks on employment issues have been quoted in NewsweekCorporate Legal TimesSeattle TimesEmployee Relations Law JournalPuget Sound Business JournalCFO.com, and other professional journals and management publications. Chambers USA’s Guide to America’s Leading Lawyers for Businessrates Mike in the top ranking (band one) for his work in labor and employment law, and has described him as “one of Seattle’s top-rate attorneys” who is “truly phenomenal [with] superb legal instincts” and “an amazingly assertive litigator.” His clients include Nordstrom, Seattle Seahawks, Home Depot, KeyBank, Starbucks, Fred Hutchinson Cancer Research Center, Red Robin and Seattle Chamber of Commerce, among others.