You have made a claim for Life, Health, or LTD benefits under your employer’s Benefit Plan. The claim has been denied or your benefits terminated. You need[1] to appeal the denial, or if you have already appealed, and the appeal was denied, and you now want to file a lawsuit to obtain the benefits. You learn your claim is governed by ERISA. In either event, you suspect you are unable to competently fight the denial without hiring an ERISA lawyer. But you don’t know how to find, or how to select, the lawyer best able to represent your interests.
You can use Google to find lawyers who claim they have the necessary expertise and skill. But for good reason, you do not feel getting a name off the internet, without further investigation, is the way to select an attorney. So, what do you do?
Many people know lawyers you can speak with or you may know one yourself. However, the lawyer you ask for a referral may know little more than you do. He or she may just have “heard the name” of a local lawyer who “does some ERISA work.” Even if they know the lawyer, they may not be asking the right questions.
Having been an ERISA benefits litigator since 1986, here are my suggestions on the information you need to obtain about a prospective ERISA attorney to ensure you are making the best decision:
1. Are ERISA claims a major component of the lawyer’s practice?
We are in the age of specialization. ERISA is a complex statute with many traps for the unwary. In the same way, you would not use a family doctor to perform orthopedic surgery, you should not hire an attorney who is not an ERISA specialist. A workers compensation attorney, a Social Security attorney, or a personal injury attorney may all have handled “one or two” ERISA cases, and claim they have the knowledge to take on your case. But if they are not in the ERISA trenches on a daily basis, they are likely not going to be aware of the current case law, the information which needs to be obtained to best support your case, or the tendencies of each of the individual insurance companies who are making the decisions about paying, or not paying your claim.
It is appropriate and necessary to ask, “What percentage of your practice is devoted to ERISA claims.” If the answer is anything less than 75% of my practice is handling ERISA cases, you should probably keep looking for a lawyer more tuned in to your needs.
2. What do your former clients think of you?
During your discussion with a potential ERISA attorney, your second question might well be, “Who would recommend that I hire you to represent me?”
Any professional should be able to refer you to former clients, and there is no better source of information than a former client. There are numerous cites for lawyer reviews, and you should look at them. AVVO.com, Yelp, and Google all provide reviews of attorneys, and these may be helpful. But if there are former clients you can speak with, you should take that opportunity. Ask these former clients not only about the lawyer’s legal skills but how the lawyer communicated with them. Did they have to hound the attorney to get a status report about their case, or were they kept informed as to important events? You also want to get a sense of whether they cared about the case, or whether the client was merely a name on file to them. Did they seem to be more interested in what was best for the client, or what was best for them?
[1] The individual’s right and obligations to “appeal” is a discussion for another blog. But in almost all circumstances, you are not permitted to file suit unless you have appealed the claim denial to the entity which denied the claim. With very limited exceptions, ONLY the information provided as part of your appeal will be considered by a Judge if the case goes to court.
You can also google ERISA defense attorneys or former Judges who mediate ERISA cases in your geographic area.[2] These are people with invaluable information for you. Defense lawyers almost NEVER handle cases on behalf of individuals, and neither do mediators. But they do KNOW which attorney does the best job for their clients. Ask them whom would THEY hire if they needed an ERISA lawyer? It is the highest compliment is when a client tells me they were referred by an adversary.
3. Does the lawyer litigate and win cases or are the firms mere “settlement operations”?
The manner in which ERISA firms advocate on their clients’ behalf is almost certainly the single most important factor in deciding who to retain as your counsel. You need a lawyer who, at every turn, will take all reasonable steps to maximize your recovery. Of course, every lawyer will promise that, but in order for you to understand the nature of their promises, you may have to understand some basics about ERISA.
As discussed above, if an initial claim is denied, before proceeding to litigation, the ERISA claims handling regulations issued by the U.S. Department of Labor allow insurance companies to require you to appeal a denial before going to court. Equally important, ONLY the information provided by you to the insurance company before you file a lawsuit will be considered by the Judge in deciding if you win or lose. For these reasons, the appeal is all-important.
Some ERISA firms offer to handle your appeal for FREE. Sounds great, right? What do you have to lose if you aren’t paying for their services? The answer is, “A LOT.”
Realistically, while law is a profession, it is also a business. Firms cannot put in the necessary resources to complete a top notch appeal if they aren’t charging for their services. When my firm handles an appeal, we put in hours upon hours reviewing the claim file, speaking to doctors, vocational experts, or other witness to make sure that any evidence we can obtain to support your claim will be submitted as part of your appeal.
Firms who offer to handle your appeal at no charge cannot provide this level of representation. They are essentially offering to throw together a hurried appeal, which will be denied, in hopes that they can file a lawsuit and settle the claim without going to trial. But without having performed enough work in preparing the appeal, they will have to settle the case for whatever they can get. There is much truth to the adage that, “you get what you pay for.”
[2] While it would be nice to be able to ask these questions of a current Judge, it just is not possible. They will (1) Never take your call; and (2) even if they did, they would never give their opinion. Again, retired Judges have no such reticence. If you can find one, they will answer your questions.
These same firms may boast a 98% success rate. Again, that sounds great, but it depends on how success is defined. If any time they obtain a settlement for a client – even if it is pennies on the dollar – this qualifies as a “success,” that is problematic. The clients may well be having less “success” than they were entitled to.
How do you make sure you are not hiring an attorney whose practice is based on settling cases fast, and for whatever they can get? Here are 2 simple tips:
- NEVER give your lawyer the authority to settle your case without your specific permission, and more importantly, your involvement in the process. If you do, you may end with a lawyer who takes 20 cases they have against a particular insurance company and settles them in bulk, without giving the facts of YOUR CASE the attention it deserves. A discussion of the settlement of your case should involve you and the specific merits of your case.
- Ask for a list of the ERISA cases the firms has litigated and won in Federal Court. ERISA firms whose business model is to settle their clients’ cases quickly for whatever they can get have one thing in common – They don’t go to trial and win cases. There are many excellent firms across the country who will enthusiastically take cases to trial when appropriate.
If the insurance company that has denied your claim is confident that your attorneys will never take the case to trial[3], they have no incentive whatsoever to offer a fair settlement. They will offer far less than the case is worth, KNOWING that the lawyer with whom they are dealing is almost certain to accept a low offer. If you are concerned that the firm you are talking to is a “settling” firm, it is easy to find out. Law firms either have a list of the cases they have won, or they don’t.
I am very proud of Kantor & Kantor’s track record in this regard. While we accept fewer clients than firms who spend their efforts mostly marketing rather than on zealous representation, we have probably tried and won more cases than any ERISA firm in the country. In the last 18 months, not only have we won a number of cases, but we have prevailed in six appeals to the Circuit Courts. Many ERISA lawyers will go their entire careers without a single Circuit-level victory, and we have six in the last 18 months. Listed below is a sampling of some of Kantor & Kantor’s ERISA trial victories.[4] [5]
[3] You should understand at the outset of your case, that ERISA “trials” are nothing like what you see on television. The cases are decided, not by a jury, but only by a Federal Court Judge. There are no witnesses at trial, and you almost certainly won’t be present. The Judge will review the documents in your claim file, read the briefs submitted by the lawyers, and MAYBE hear oral argument. So, don’t be intimidated by the possibility of your case going to trial. It likely won’t happen, and even if it does, it will not involve anything stressful on your part, and the decision to go to trial is because you have a strong case and trial is the best way to maximize your recover. Fear of trial is never a reason to take a quick settlement, and any lawyer who tells you otherwise is not putting your interests first.
Am I suggesting that as a firm, we never settle cases? Of course not. We either win our pre-litigation appeals or settle a significant majority of our cases after filing suit. However, Kantor & Kantor is different from the settling firms, because the insurance companies are on notice that if they don’t reverse themselves before litigation, or pay fair money to settle, we WILL go to trial with our team of ERISA litigation attorneys who have stellar records.
4. Is the law firm within your geographic area?
To be frank, this factor is far less important than it used to be before certain technological advances. I used to tell prospective clients to meet with their potential lawyer, and make sure there was a good fit. This meant hiring a lawyer whose practice was in the same state as the client.
Now, with zoom and the ability to speak over the internet, you can often have that meeting, and be comfortable hiring a lawyer whose offices are in a different state. Notwithstanding the changes including the ability to work remotely and interview clients and witness remotely, there are still advantages to hiring a lawyer in your state. A local lawyer will have a greater knowledge of the doctors and other relevant professionals in your area (vocational experts, functional capacity examiners, and other testing professionals), and they will both know and be known to the Judge who will potentially hear your case.
However, while there are definitely advantages to hiring a lawyer within your state, it is more important that you hire a lawyer who you believe will do everything possible to best serve your interests, even if that lawyer is three time zones away.
Conclusion
Before hiring an ERISA lawyer, you need to decide for yourself your goal. If it is to get a quick settlement, you may decide to hire a lawyer or firm that uses that business model. On the other hand, if you are willing to spend a little more time to maximize your recovery, you may be looking for a lawyer who goes the extra mile to best support your claim. The choice is yours, and hopefully, the foregoing will be of some assistance to you in interviewing and selecting an attorney to handle your ERISA case.
[4] LIFE INSURANCE
Husband’s fatal heroin overdose was an “accident” for which employee could recover accidental death benefits from ERISA plan. Yates v. Symetra Life Insurance Co., 578 F.Supp.3d 1024 (E.D. Mo. 2022)
- Incontestability clause in life insurance policy required insurer to pay $678,000.00 in life insurance benefits. Pottayil v. Thyssenkrupp Elevator Corporation, 574 F.Supp.3d 1282 (N.D. Ga. 2021)
- Established precedent in the 9th Circuit determining what constitutes an accidental death.
Dowdy v. Metropolitan Life Insurance Company, 890 F.3d 802 (9th Cir. 2018)
- California’s notice prejudice rule applies to a life insurance policy even after lapse, so as to reinstate the policy and require death benefits to be paid. Lat v. Farmers New World Life Ins. Co., 29 Cal.App.5th 191 (2018)
LONG-TERM DISABILITY INSURANCE
- Termination of benefits was improper without a showing of medical improvement. Shupe v. Hartford Life & Accident Insurance Company, 19 F.4th 697 (4th Cir. 2021)
- Insurer must investigate whether a pre-existing condition is the cause of a disability and must affirmatively prove the causation. Gustafson-Feis v. Reliance Standard Life Insurance Company, 535 F.Supp.3d 1076 (W.D. Wash. 2021)
- Administrator of LTD plan abused its discretion in terminating benefits of participant who suffered from fibromyalgia. Young v. Sun Life and Health Insurance Company, 285 F.Supp.3d 1109 (E.D. Cal. 2018)
- Overturned Aetna’s denial of benefits and established that symptoms of multiple sclerosis rendered plaintiff totally disabled under LTD plan. Kibel v. Aetna Life Insurance Company, 725 Fed. Appx. 475 (9th Cir. 2018)
- Established California ban on discretionary clauses were binding on insured ERISA Plans.
Orzechowski v. Boeing Company LTD Plan, 856 F.3d 686 (9th Cir. 2017)
- Insurer’s termination of benefits was manifestly unreasonable and “fell far short of fulfilling its fiduciary duty to Plaintiff,” under abuse of discretion standard. Robertson v. Standard Insurance Company, 139 F.Supp.3d 1190 (D. Or. 2015)
- ERISA claims handling regulations must be read to protect insureds, not deprive them of rights. LeGras v. Aetna Life Ins. Co., 786 F.3d 1233 (9th Cir. 2015)
- The ability to sit, while in excruciating pain, does not mean insured is able to perform a sedentary occupation. Hertan v. Unum Life Insurance Company of America, 111 F.Supp.3d 1075 (C.D. Cal. 2015)
- LTD insurer was prohibited from raising new reason for denial for the first time during litigation. Mitchell v. CB Richard Ellis Long Term Disability Plan, 611 F.3d 1192 (9th Cir. 2010)
- Cardiac condition prevented insured from performing the duties of his occupation. Abdel- Malek v. Life Ins. Co. of North America, 359 F.Supp.2d 912 (C.D. Cal. 2005)
- Overturned Aetna’s denial of benefits and held that symptoms of lupus prevented insured from performing her job duties which entitled her to LTD benefits. Wible v. Aetna Life Ins. Co., 375 F.Supp.2d 956 (C.D. Cal. 2005)
HEALTH INSURANCE
- Texas insureds are entitled to a de novo review of factual and policy disputes. Ariana M. v. Humana Health Plan of Texas, 884 F.3d 246 (5th Cir. 2018) (en banc)
- United Healthcare wrongfully denied treatment to a young girl with a life-threatening eating disorder. Pacific Shores Hosp. v. United Behavioral Health, 764 F.3d 1030 (9th Cir. 2014)
- All bases for claim denial must be explained to the insured before claim is denied. Harlick v. Blue Shield of California, 686 F.3d 699 (9th Cir. 2012)
California Mental Health Parity Act requires insurance companies to cover all medically necessary treatment for severe mental illnesses. Harlick v. Blue Shield of California, 686 F.3d 699 (9th Cir. 2012)
Class Actions
Our attorneys have obtained meaningful settlements for insureds
Blue Shield required to pay for residential treatment for members with anorexia or bulimia under California’s Mental Health Parity Act. Rea v. Blue Shield of California (2021)
Anthem agreed to provide treatment for mental illness for members who also had substance use disorders. Ames v. Anthem Blue Cross Life and Health Ins. Co. (2020)
Anthem agreed to apply appropriate medical necessity criteria to claims for eating disorder treatment. Bailey v. Anthem Blue Cross Life and Health Ins. Co. (2022); Oppel v. Anthem Blue Cross (2018); Banken v. Anthem Blue Cross (2018)
Kaiser agreed to stop “patient dumping” members with severe mental illness and requiring those members to cancel their Kaiser coverage to gain admission to locked residential facilities. Kerr v. Kaiser Foundation Health Plan (2018)
[5] I don’t want to be seen as suggesting that Kantor & Kantor are unique in our willingness to take cases to trial. There are many excellent firms across the country who will enthusiastically take cases to trial when appropriate. I could list them and will provide the names of trusted colleagues in your area if asked. However, my recommendation is not going to be as helpful to you as asking your prospective attorney for their list of wins.
