By Michael W. Stevens, Jonathan A. Braunstein and Mark Casciari

Seyfarth Synopsis: Reversing course and overruling previous precedent, the Court of Appeals for the Ninth Circuit now holds that ERISA plan mandatory arbitration and class action waiver provisions are enforceable, and can require individualized arbitration of claims for breach of fiduciary duties.

In Dorman v. Charles Schwab Corp., No. 18-15281, 934 F.3d 1107 and 2019 WL 3939644 (Aug. 20, 2019), the Ninth Circuit reversed course, overruled precedent, and enforced an arbitration provision in an ERISA 401(k) plan that mandated individual, and not class, arbitration of ERISA § 502(a)(2) and (3) claims.

In Dorman, a 401(k) participant brought suit on behalf of a putative class of plan participants and beneficiaries, alleging that the fiduciaries had breached their fiduciary duties by investing assets in the funds affiliated with the defendant. However, nine months prior to the named plaintiff’s termination of employment and nearly a year before his account withdrawal, the plan was amended to expressly include an arbitration provision binding the plan to arbitration, and forbidding class actions.

The defendant moved to compel arbitration. The district court denied the motion on multiple grounds, ruling that ERISA claims cannot be subject to mandatory arbitration; the arbitration provision was added after the named plaintiff’s participation in the plan began; and the plaintiff’s claims were brought on “behalf of the plan,” rather than as an individual, and thus could not be subject to the plan’s arbitration clause.

Thirty-five years ago, in Amaro v. Continental Can Co., 724 F.2d 747 (9th Cir. 1984), the Ninth Circuit had held that ERISA claims were not subject to arbitration. Amaro reasoned that an arbitral forum may “lack the competence of courts to interpret and apply statutes as Congress intended.” In Dorman, however, the Ninth Circuit recognized that later Supreme Court cases, including American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013), had held that arbitrators were competent to interpret and apply federal statutes. Thus, Dorman expressly overruled Amaro.

In an unpublished companion opinion, the Ninth Circuit addressed and reversed other holdings by the Dorman district court. Although the Ninth Circuit had recently held, in Munro v. Univ. of S. Cal., 896 F.3d 1088 (9th Cir. 2018), that Section 502(a)(2) claims belong to the plan, rather than the individual (see our discussion of that case here), the critical difference in Dorman was that the plan had been amended to include an arbitration provision binding the plan. Thus, the Ninth Circuit found, the plan “expressly agreed” that all ERISA claims should be arbitrated. The Ninth Circuit also held, citing LaRue v. DeWolff Boberg & Assocs., Inc., 552 U.S. 48 (2008), that although a § 502(a)(2) claim may belong to the plan, losses are inherently individualized in the context of a defined contribution plan such as the one at issue. The Ninth Circuit reversed and remanded with instructions to the district court to compel arbitration.

The Dorman plaintiff recently filed a petition for en banc review, so it remains to be seen whether the latest Dorman decisions will stand.

The Ninth Circuit has been the most hostile to arbitration, so Dorman (unless vacated) is a monumental change that could be the start of trend favoring ERISA plan arbitration. As we have noted here and here, arbitration in lieu of court litigation has pros and cons that need to be considered carefully before mandating arbitration and a class action waiver in ERISA plans, even though the court most hostile to forced arbitration now seems to allow it. 

By: Jon Karelitz and Mark Casciari

Synopsis:  A recent 4th Circuit decision reiterates the importance of aligning a plan fiduciary’s administrative claim and appeal review process with the standards for a “full and fair review” under U.S. Department of Labor regulations, including disclosing all documents considered in the course of determining a claim (absent compelling reasons not to). 

In Odle vs. UMWA 1974 Pension Plan, the Court of Appeals for the Fourth Circuit reversed a district court’s decision on summary judgment in favor of a pension plan’s fiduciaries (in this case, the board of trustees for a coal industry multiemployer fund).  The case involved a dispute over service credit towards a deceased participant’s pension.  The plan fiduciaries had denied a claim by the participant’s surviving spouse, concluding that 13.5 years of the participant’s service was actually performed in a position that was not classified as eligible under an industry-wide union agreement.  The administrative record indicated that the fiduciaries based their denial, in part, on an audit of employer timesheet records that was not disclosed to the claimant. The claimant alleged as well that she requested the audit records, and the plan refused to provide them.  The Fourth Circuit held that “by failing to disclose that audit during the administrative process, the Plan denied [the claimant] the ‘full and fair review’ of her claim that she was entitled to under ERISA.”

The regulations under ERISA Section 503 require that a claimant “be given reasonable access to documents relevant to her claim,” The regulations provide that documents, records and other information are “relevant” if they are “submitted, considered, or generated in the course of making the benefit determination.”

Under the Odle holding, a fiduciary should disclose all documents upon which a claim or appeal decision was based, unless there is a good reason not to.  Such disclosure should provide the claimant with an opportunity to consider all relevant information, and use that information in making arguments in support of the claim.  Of course, there may be compelling reasons not to disclose, under certain circumstances, and Odle does not address all possible arguments that cut against disclosure

By: Mark Casciari and Joy Sellstrom

Synopsis: HIPAA provides no federal cause of action, but alleged HIPAA violations may be remedied in state court under state negligence law.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal statute providing for confidentiality of medical records under certain circumstances. It is administered by the federal Department of Health and Human Services (HHS), which can extract substantial fines for non-compliance. Although HIPAA does not provide a private right to sue for HIPAA violations, employers should be aware that remedies for non-compliance are not necessarily limited to federal agency fines.

A recent decision out of the Arizona Court of Appeals makes this point. In Shepherd v. Costco Wholesale Corp., 246 Ariz. 470 (2019), petition for review pending, the plaintiff alleged that, after he cancelled one of two prescriptions with the pharmacy, he requested that his wife (with whom he was reconciling) pick up the live prescription, and that the pharmacy mistakenly gave both to the wife. Plaintiff alleged as well that the cancelled prescription was embarrassing in nature, and that the pharmacist joked about it with the wife. The wife thereafter divorced the plaintiff, and the plaintiff sued the pharmacist to recover damages under a variety of state law tort theories, including negligence based on a state law duty of care informed by HIPAA.

The trial court granted a motion to dismiss, and the plaintiff appealed.

The state intermediate appellate court upheld the dismissal of all counts in the complaint, save the negligence count.

The appellate court stated that, although the negligence claim did not arise under HIPAA, the parties agreed that the pharmacy owed the plaintiff a duty of care to act as a reasonably prudent pharmacist would under the circumstances. The court then found that the allegations in the complaint for wrongful disclosure of protected information were sufficient to survive a motion to dismiss, and allowed the case to enter discovery and perhaps trial phases.

It is noteworthy that the pharmacy argued that HIPAA preempted state law. The court rejected the preemption argument, reasoning that allowing state law claims in this context does not interfere with government enforcement actions authorized by HIPAA. The court stated: “[A]dditional state law remedies encourage compliance with HIPAA by providing further means for patients to recover for harm suffered due to non-compliance.” The court concluded: “[W]e hold HIPAA’s requirements may inform the standard of care in state-law negligence actions just as common industry practice may establish an alleged tortfeasor’s duty of care.”

Lastly, the court, with one judge dissenting, kept alive the related punitive damages claim. Arizona law places no cap on punitive damages, although the United States Constitution forbids excessive punitive damages.

The take-away is — alleged HIPAA violations may be remedied by state lawsuits in addition to HHS fines. Also, stay tuned to state court developments. As noted, a petition for review of the Shepherd intermediate appellate court decision is pending in the Arizona Supreme Court.

By Diane Dygert and Richard Schwartz 

Seyfarth Synopsis: The IRS recently issued somewhat helpful guidance to plan administrators on what to do about the constant problem of uncashed benefit checks from qualified retirement plans. The initial excitement upon hearing the news, however, was quickly met with disappointment as the realization set in that the guidance was limited. 

For more background on this IRS Revenue Ruling, click on our client alert. For now, suffice it to say that the guidance applied narrowly to benefit checks that are required to be issued to participants. So, for example, a small amount cash-out check issued following termination of employment, or a check issued to a participant who made a distribution election. In these situations, the IRS advises that the participant’s failure to cash the distribution check does not affect the employer’s obligation to withhold and report taxes under the assumption that the participant had control of the check but for one reason or another simply didn’t cash it.

The more prevalent problem plaguing plan administrators is the “case of the missing participant.” These are participants who have gone missing despite the plan’s good faith efforts to find them. Plan administrators face a genuine dilemma about how to handle required distributions to such AWOL account holders. If the administrator gets returned mail and is unable to identify a better address, no distribution check will be able to be issued. Or perhaps a check is issued but gets returned as undeliverable. In these situations, plan administrators have been left to devise their own practices aligning with the plan qualification rules and their third party administrator’s systems as best they can.

The very agencies in charge of enforcing the plan qualification rules and fiduciary obligations appear to not have their arms around the situation. They acknowledge that guidance is needed in this area and are working on it. So, as the saying goes “the check is in the mail.”

By Jules Levenson and Mark Casciari

Seyfarth Synopsis: The Court of Appeals for the Seventh Circuit recently held that once a multi-employer pension fund accelerates withdrawal liability periodic payments into a lump sum liability, there is no statutory mechanism to revoke that acceleration. So the Court affirmed a finding that the fund’s trustees waited too long to collect on the lump sum debt when it sued more than six years after the initial acceleration.

Bauwens v. Revcon Tech. Grp. et al., No. 18-3306, — F.3d –, 2019 WL 3797983 (7th Cir. Aug. 13, 2019) concerned the decade-long quest of multiemployer pension fund trustees to recover defaulted withdrawal liability payments triggered by a withdrawal in 2003 (and 2004).

In 2008, the employer defaulted on its quarterly payments and, after it failed to cure the default in a timely fashion, the trustees accelerated the remaining liability, and filed suit to recover the liability in a lump sum. The trustees voluntarily dismissed the suit when the company agreed to resume quarterly payments. In April 2009 the same scenario happened again. And then it happened three more times, in 2011, 2013 and 2015.

In 2018, after yet another non-payment, the trustees sued again for the lump sum. This time, the employer moved to dismiss on the ground that the six-year statute of limitations accrued upon the 2008 acceleration and expired in 2014. The trustees argued that they had revoked the acceleration after each of the voluntary dismissals (so that the statute of limitations ceased to run). The district court sided with the employer and granted the motion to dismiss.

The Court of Appeals agreed with the district court. The Court noted that ERISA’s withdrawal liability provisions explicitly allow accelerating debt under certain circumstances, but are silent on deceleration. The trustees asked the Court to create federal common law to fill this “gap,” but the Court said that it is reticent to create common law remedies or implied causes of action. The Court also noted that deceleration, when allowed, is permitted by a contractual or statutory authorization. The Court said that Congress could have authorized — but did not authorize — a deceleration provision.

The key takeaway from Bauwens is that courts tend to interpret the ERISA statute consistent with its plain language. This means that they are reluctant to read into the statute what is not there to create expedient remedies that ameliorate statutory missteps.

By: Mark Casciari and Ian Morrison

Synopsis: A recent decision of the federal district court for the Southern District of New York warns ERISA fiduciaries that even innocent mistakes that do not misuse plan assets or unjustly enrich the fiduciaries can cause an unexpected and substantial expense to the plan, at least in the context of a less than clear summary plan description (SPD)

Chief Justice Roberts once famously said: “People make mistakes. Even administrators of ERISA plans.” Conckright v. Frommert, 559 U.S. 506, 509 (2010). He was right, of course, but the legal consequence, or not, of innocent ERISA mistakes remains a matter of some debate.

A recent decision on remand from the Court of Appeals for the Second Circuit presents a disturbingly common fact situation and legal analysis that shows, in one district judge’s view, how an innocent ERISA plan administrator mistake can lead to monetary relief.

In DeRogatis v. Board of Trustees of the Welfare Fund of the International Union of Operating Engineers Local 15, No. 14 Civ. 8863 (S.D.N.Y. June 13, 2019), Chief Judge McMahon denied the plan trustees’ motion for summary judgment on a claim for “surcharge” damages resulting from an innocent misrepresentation by a welfare plan benefits counselor. The counselor advised a beneficiary spouse not to submit her dying husband’s application for early retirement benefits out of a misplaced concern that doing so would cut off his medical benefits. (It would have cut off future medical benefit accruals, but not current eligibility). This failure caused her to lose $300 per month in additional surviving spouse benefits under a separate, but related, pension plan.

The surviving spouse sued the trustees for relief equivalent to the $300 per month benefit. She claimed a right to the money under the equitable theory of surcharge, described by the Supreme Court in CIGNA Corp. v. Amara, 563 U.S. 421 (2011).

Surcharge damages can be awarded upon a showing of “but for” causation, the court said — here, a showing that the misrepresenting benefits counselor, acting on behalf of ERISA fiduciaries, caused harm. No showing that the defendant fiduciary misused plan assets or was enriched by the breach was needed. Nor was a showing of detrimental reliance or an intent to deceive necessary.

The Court of Appeals had previously found that a genuine issue of material fact exists as to whether the SPD at issue clearly advised the surviving spouse (contrary to the oral misrepresentation) to submit her husband’s early retirement papers. So the trustees could not argue that the misrepresentation was immaterial, or did not cause the harm at issue.

The parties will now presumably proceed to a trial on the merits of the surviving spouse claim.

To be sure, the DeRogatis summary judgment decision is that of just one district judge in a case with unfortunate facts. But it, and decisions like it, increase plan sponsor expenses in administering ERISA plans. That in turn may reduce benefits, if employment market forces would allow it.

Benefit administration is necessarily complicated, and, being summaries, SPDs often do not contain complete plan details or instructions for every situation. Further complicating matters is the reality that reliance on oral representations or other informal guidance about what is in a plan, for many, is a necessary feature of hyper-paced modern living.

What is an ERISA fiduciary to do? There are ways to minimize risk, including (i) writing plans simply, succinctly and clearly, (ii) authorizing only knowledgeable, articulate and appropriately cautious benefits counselors to speak on behalf of the fiduciary, and (iii) recording all authorized oral or other informal communications. We are reminded about the admonition of one of our retired partners, who often said in the benefits plan context:  “Write like you are writing a coloring book.”  This is overstatement to be sure, but overstatement often best makes the point. Still, mistakes are sure to happen — one can only hope to minimize them.

By: Mark Casciari and Kathleen Cahill Slaught

The hyper-partisan political warfare in the American health care industry is far from over. But another small battle in a federal district court was just resolved in favor of the Trump Administration.

In Association for Community Affiliated Plans v. U.S. Department of Treasury, No. 18-2133, Judge Richard Leon of the federal district court for the District of Columbia granted a summary judgment in favor of the Trump Administration’s efforts to reform health care regulation outside the confines of the Affordable Care Act (ACA).

At issue in Association for Community Affiliated Plans is a 2018 rule promulgated by the Departments of Labor, Treasury, and Health and Human Services that broadened the definition of “short-term, limited duration insurance,” or STLDI, to mean a contract that caps its maximum initial term at 12 months and (after two renewals) its maximum total duration at 36 months. This category of insurance was exempted from individual market regulations in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and not addressed by the ACA.

The Trump 2018 rule superseded an Obama Administration rule that capped the maximum term and duration of STLDI to less than three months in duration (including renewals). The Obama rule was itself a cut back on the original 1997 STLDI rule, during the Clinton Administration, that mirrored the Trump 2018 rule (without regard to renewals). The Obama Administration cut back on the original rule because STLDI was not addressed in the ACA, and it feared that the STLDI market would rob the ACA Exchanges of healthy insureds and cause Exchange premiums to rise.

Insurers, providers, and consumers who operate in the ACA Exchanges initiated Association for Community Affiliated Plans   These plaintiffs first argued that the new rule would affect the competitive standing of Exchange insurers, and the court agreed. To be sure, the new rule would cause at least some business to move to the STLDI market. This relative competitive disadvantage was enough to afford federal district court standing to secure a ruling on the merits.

The district court then considered whether the new rule was illegal under the Administrative Procedure Act — is it agency action beyond what Congress has allowed and is it arbitrary or capricious?

The court found that the ACA did not forbid the Trump 2018 definition of STLDI because the original rule went unchallenged in the courts, and because the ACA did not alter that status quo. The court added that there is nothing “extraordinary” about the new rule because it is unlikely to cause an exodus from the individual market Exchanges and thus unlikely to threaten the ACA’s structural core. The court also found that the new rule affords consumers the option to pay ACA plan premiums or buy insurance in the STLDI market, in lieu of being uninsured (now that the individual mandate is effectively repealed and thus provides no incentive to pay Exchange premiums). The court also found that the new rule applies a reasonable dictionary definition of “short term” and “duration,” the key words in the Congressional delegation of authority to the agencies at issue.

It remains to be seen whether this district court ruling, like so many other judicial resolutions regarding small partisan political battles, will be appealed. At its core, Judge Leon decided that the Trump Administration did not attempt an end-around Congress, and permissibly took a small administrative step to further its political agenda.

By Michael W. Stevens and Mark Casciari

Seyfarth synopsis: Arkansas has sought certiorari on the question of the ability of states under the ERISA preemption clause to regulate the rates charged by PBMs, and the Supreme Court has asked for the input of the Solicitor General on whether it should decide the issue..

In Rutledge v. Pharmaceutical Care Management Association, No. 18-540, the Supreme Court has again been asked to define the scope of ERISA preemption. Thirty-six states have passed legislation regulating the rates charged by PBMs. The issue is whether such state laws are preempted by ERISA.

PBMs are entities that manage prescription drug benefits. They operate by billing health plans for participant prescriptions and then reimbursing pharmacies on behalf of the plans.

In 2013, Arkansas enacting a law purporting to regulate PBMs, and amended the law in 2015. The statute created an appeals process through which pharmacies could challenge the reimbursement rates offered by PBMs. The stated goal of the law was to protect pharmacies against below-cost reimbursement. The law applied to both ERISA and non-ERISA health plans.

An Arkansas district court found the law preempted by ERISA but not by Medicare Part D. The Court of Appeals for the Eighth Circuit affirmed as to ERISA preemption, but reversed on Medicare Part D preemption.

The Eighth Circuit held that the Arkansas law included PBMs that cover ERISA plans, so the law “relate[d] to and has a connection with employee benefit plans,” and was therefore preempted. In its petition for certiorari, Arkansas argued that merely because the law included ERISA governed plans, in addition to non-ERISA plans, there should be no preemption: “If a law regulates a class of third-party administrators or claims processors whose customers merely include ERISA plans, it logically follows that the law does not act immediately and exclusively upon ERISA plans, and that the existence of ERISA plans is not essential to the law’s operation.” Pet. at 18 (emphasis in original).

The Circuits are split on whether ERISA preempts all regulation of PBMs (the D.C. and Eighth Circuits), or whether ERISA preempts no regulations of PBMs (the First Circuit). After Arkansas submitted its petition for certiorari, the Supreme Court has requested that the Solicitor General provide the position of the United States. The Solicitor General has not yet submitted his brief.

Stay tuned to this blog for further updates. If the Supreme Court grants certiorari in this case, it will likely affect the operation of PBMs, and further define the scope of ERISA preemption.


By: Mark Casciari

Synopsis: ERISA stock-drop litigation has diminished in recent years due to the Supreme Court’s Dudenhoeffer decision (and a rising stock market). Now, the Court will have another chance to weigh in on whether federal ERISA litigation in this space should breathe new signs of life.

There is a trend-line in recent Supreme Court decisions limiting federal court jurisdiction before a plaintiff ever enters the world of expansive and expensive discovery. This trend-line is a great assist to all federal court defendants, including ERISA defendants. Key decisions to note are Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Spokeo, Inc. v. Robbins, 136 S. Ct. 1540 (2016).   As to Twombly’s “plausibility” precondition to discovery, see generally here. As to Spokeo’s “concrete injury” precondition to discovery, see generally here.

The Supreme Court has just accepted certiorari in Jander v. Retirement Plans Committee of IBM, 910 F.3d 620 (2d Cr. 2018). In Jander, ESOP plan participants claimed that the ERISA plan fiduciaries knew but failed to disclose that IBM’s microelectronics division (and thus IBM’s stock) was overvalued. The district court found that the plaintiffs did not plausibly plead a violation of the ERISA fiduciary duty of prudence. The Court of Appeals for the Second Circuit reversed.

The Second Circuit ruled that the following allegations equated to plausibility: (i) the fiduciaries knew that IBM stock was artificially inflated by virtue of the impairment of a business unit and its associated accounting violations, (ii) the fiduciaries had the power to disclose the truth to SEC filing recipients and to plan participants, (iii) the failure to disclose long-term investment prospects was harmful because uncorrected fraud causes greater damages the longer the fraud continues, (iv) correcting the fraud would reduce the stock price only by the amount of the artificial inflation, and (v) the fiduciaries knew that disclosure of the truth was inevitable. The Second Circuit was not dissuaded by the fact that the district court dismissed a related securities fraud claim that the plaintiffs did not appeal.

The petition for certiorari accepted by the Supreme Court presents this issue: Can the Dudenhoeffer standard that a plaintiff must “plausibly allege[] that a prudent fiduciary in the defendant’s position could not have concluded that [an alternative action] would do more harm than good to the fund,” be satisfied by “generalized allegations that the harm of inevitable disclosure of an alleged fraud generally increases over time.”

Cutting through the legal niceties, the issue boils down to the level of detail required in a federal complaint to open the discovery door. Entering that door is of utmost significance to plaintiffs because discovery is so expensive to defendants, even after taking proportionality preconditions into account. Many large cases that find themselves stuck in discovery settle without any adjudication on the merits.

The forthcoming Jander decision will advise ERISA litigants whether the trend towards closing the discovery door will continue. A Court majority seems disinclined to loosen pleading standards in the hyper-partisan political culture now enveloping the country. Should the Court reverse the Second Circuit, moreover, ERISA plaintiffs may find it tougher to assert fiduciary breach claims in contexts other than the stock-drop context, in the absence of inculpatory information uncovered outside discovery.


By: Mark Casciari

Synopsis: A new Third Circuit decision has allowed an ERISA fee complaint to stand even though there were no specific allegations of fiduciary errors in the process of selecting investment options and fees. This development is yet another in the line of decisions that decide if the federal door to discovery will be opened or closed at the complaint stage of the litigation. Expect judges to differ and more such decisions to issue.

We recently reported, in a sister blog, on a Supreme Court decision affirming that a federal plaintiff needs to allege concrete allegations of injury, caused by a defendant, in order to trigger the onerous discovery weapons in the Federal Rules of Civil Procedure. See here.

ERISA lawsuits are not immune from this specificity precondition to discovery, and the expensive consequences if is satisfied.

A new decision from the Court of Appeals for the Third Circuit, Sweda v. University of Pennsylvania, 2019 U.S. App. LEXIS 13284 (May 2, 2019), shows the difference of opinion of judges when it comes to opening the discovery door.

In Sweda, a putative plaintiff class of 20,000 participants in an ERISA-regulated 403(b) defined contribution plan with assets in 2014 totaling $3.8 billion sued plan fiduciaries to recover on alleged overpayments of fees and underperformance of investment options. The class undoubtedly seeks tens of millions of dollars in damages.

The Sweda putative class presented the question whether the allegations of a breach of ERISA fiduciary duties were sufficiently specific and plausible. Two judges answered in the affirmative; one dissented.

The majority employed a “holistic” analysis that did not parse the complaint “piece by piece to determine whether each allegation, in isolation, is plausible.” The majority twice described the allegations as “numerous” — showing that lengthy complaints help plaintiffs pass through the discovery door. The majority also said that the complaint contained “circumstantial” evidence allegations of better performing benchmarks and allegations that the fiduciaries selected high fee retail mutual funds, as opposed to lower fee institutional funds, as investment options.

The majority ignored the lack of allegations of how the fiduciaries mismanaged the plan — there is no fiduciary breach if the fiduciary process is reasonable. To be sure, specific allegations of an illegal fiduciary process are hard to come by because ERISA fiduciary disclosure rules are limited, but that is the balance Congress struck in limiting fiduciary legal obligations in order to encourage the establishment of ERISA plans and not discourage individuals from serving as fiduciaries.

The dissent tracked recent Supreme Court decisions that require “concrete” and “plausible” allegations before allowing the discovery “pressure to settle,” regardless of the merits, to kick in. The dissent found the complaint insufficient, for example, because it lacked allegations of facts linking any of the named plaintiffs to any chosen investment option and shortcoming. The allegations of harm, the dissent reasoned, lacked the specificity (“concreteness”) needed before full discovery can commence.

Sweda shows that federal judges will continue to grapple with whether to find complaint allegations sufficiently specific to allow the case to proceed to discovery and a likely settlement. This is especially so when the complaint is lengthy and the plan assets are substantial. ERISA is no different than other federal statutes in this regard. The result in any one case likely depends on the level of concern a judge has about allowing litigation to devour resources and cause settlements as a result, without a trial on the merits of the federal claim.