Are you seeing more ERISA Plaintiffs asserting claims seeking penalties for delayed production of ERISA-related documents?

29 U.S.C. 1132(c)(1) allows the Court to impose penalties of up to $110 per day for delays in producing documents requested in writing.

But are those written requests for ERISA documents sufficiently detailed to create a risk of penalties?

Here’s the case of Cultrona v. Nationwide Life Insurance Company, __ F.3d __ (6th Cir. April 9, 2014) [PDF] (Court requires Plaintiff’s written request for ERISA documents to give plan administrator “clear notice” of the documents requested).

FACTS: After her husband died, Cultrona sought accidental death benefits from the ERISA-governed plan. The claim was denied and she appealed.  On November 18, 2011, Cultrona’s counsel requested that the Plan Administrator provide “all documents that you contend prove that [the insurer] provided notice of Amendment No.1…and all documents comprising the administrative record and/or supporting Nationwide’s decision.” The Plan Administrator eventually produced the accidental death policy on June 12, 2012.

The trial court imposed an $8,910 penalty against the Plan Administrator under 29 U.S.C. 1132(c)(1) for the delay in producing the policy.

ISSUE: Whether Plaintiff’s request for documents was specific enough to alert the plan administrator to produce the insurance policy?


  1. The trial court’s decision to impose penalties for delay in furnishing ERISA documents is reviewed under the abuse of discretion standard.  Op. at 9.
  2. 29 U.S.C. 1024(b)(4) provides the list of documents a plan administrator must furnish upon written request.  “If a plan administrator fails to respond … within 30 days, then the district court may in its discretion impose a penalty…of up to $110 per day.” Op. at 9.
  3. Whether the written request is specific enough.  The Court adopts the “clear notice” standard:  “[T]he key question under the clear notice standard is whether the plan administrator knew or should have known which documents were being requested.” Op. at 10.
  4. Plaintiff’s counsel’s “broadly phrased” request should have alerted the plan administrator that this request included the accidental death policy because that was the key document supporting its decision to deny the claim. Op. at 10.
  5. The court did not abuse its discretion in awarding $55 per day penalty rather than the maximum $110 per day because there was a “lack of prejudice” caused by the delay.  Op. at 11.

Key Take Away:

  1. Consider whether the request for documents provides “clear notice” of the documents requested.
  2. Reduce the award from $110 per day by arguing that the delay caused no prejudice.