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.”