So what can a court consider, in determining whether a conflict of interest affected the benefit denial?

 

Can a court consider evidence outside of the administrative record to assess the potential bias of the decision-maker in a case involving conflict of interest? YES

Here is Howley v. Mellon Financial Plan et al, __ F. 3d __ (3rd Cir. August 31, 2010)(pdf).

FACTS: Howley wanted ERISA plan benefits–which included severance benefits. When they were denied, he appealed and the program administrator affirmed the denial. So, he sued, alleging wrongful denial of benefits, and some wrongful discharge claims.

The plan had discretionary language, and there was a structural conflict of interest.

TRIAL COURT: Considered evidence outside the administrative record and found an abuse of discretion.

THIRD CIRCUIT COURT OF APPEALS: Affirmed abuse of discretion, but on other grounds, and remanded for further proceedings.

  1. Conflict of interest does not alter the standard of review. Conflict is merely one factor to be considered in evaluating whether the plan decision actually constituted an abuse of discretion. Op. at 16.
  2. Considering evidence outside the record:
  • Courts generally must base review on the materials that were before the administrator when the decision was made. Op. at 16-17
  • A court may consider evidence of potential bias that is not found in the administrative record. Op. at 17 (Adopting 9th Circuit case.)
  • The district court gave too much weight to extra-record evidence, and erred in resolving the disputed facts in favor of the claimant. Op. at 21.
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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.