D. Michael Reilly

D. Michael Reilly

Lane Powell PC

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Latest Publications


Be On The Lookout: New Proposed Claims Procedures For ERISA-Governed Disability Benefits Are Coming

The Employee Benefits Security Administration (EBSA) announced plans to publish, on November 18, 2015, new proposed claims procedures for handling ERISA-governed disability benefits. ...more

11/25/2015 - Claims Appeal Procedures Comment Period Disability Benefits EBSA ERISA

ERISA: Medical Providers Lack Standing For Reimbursement — Anti-Assignment Provisions Enforceable

You know that patients typically assign rights under a health insurance plan to the provider of medical services. This is accomplished by signing an assignment form upon intake/admission. Then, the healthcare provider sends...more

11/17/2015 - Anti-Assignment Clauses ERISA Health Care Providers Health Insurance Reimbursements Standing

ERISA: Shutting Down Equitable Relief Claims — Disgorgement Claim Dismissed On Rule 12(c) Motion

You already know that in March 2015, the 6th Circuit issued an en banc decision rejecting disgorgement of profits claims. Rochow v. Life Ins. Co. of N. Am., 780 F.3d 364, 372 (6th Cir. 2015)(en banc) (rejecting $3.8 million...more

10/30/2015 - Breach of Duty Disability Benefits Disgorgement Equitable Relief ERISA Fiduciary Duty Motion to Dismiss Prejudgment Interest Prudential Insurance

ERISA — ATTORNEY FEES: What Happens When The Plan And The Insurer Don’t Agree On The Benefit Denial?

You already know that under ERISA the court has discretion to award attorney fees to a party that has “some success on the merits.”...more

10/28/2015 - Attorney's Fees Disability Benefits ERISA Indemnification Insurance Industry Prevailing Party

Three Quick Strategic Responses to Title III ADA Class Action Claims

Our firm is handling a growing tide of Title III of the Americans with Disabilities Act (ADA) claims. Public accommodations — which include retailers, mall owners and restaurants, are prohibited from discriminating against...more

10/26/2015 - ADA Class Action Class Certification Commonality Disability Discrimination Injunctive Relief Injury-in-Fact Public Accommodation Standing Title III Typicality

ERISA – Subrogation: Summary Plan Descriptions Can Be A “Controlling Document” Requiring Reimbursement… Sometimes

You already know that when a Summary Plan Description conflicts with ERISA plan language, the ERISA plan language controls. But what happens when all you have is a Summary Plan Description (SPD), and… no ERISA Plan? Can...more

9/30/2015 - ERISA Reimbursements Subrogation Summary Plan Description

ERISA — 7th Circuit: Illinois State Law Ban On Discretionary Clauses Upheld

You already know about the big trend in states to ban discretionary clauses in insurance policies that fund ERISA benefits. Chalk up another circuit deciding to enforce the ban....more

9/18/2015 - Arbitrary and Capricious De Novo Standard of Review Denial of Benefits Disability Benefits ERISA Insurance Industry Insurance Litigation MetLife Preemption

ERISA: When Does A Claimant Get To “Augment” The Administrative Record?

You already know that judicial review of ERISA claims generally will be limited to the administrative record considered by the claim administrator. But the courts will allow claimants to augment the record if ERISA...more

9/11/2015 - Abuse of Discretion Administrative Appeals Claim Procedures Disability ERISA Judicial Review Notice for Independent Medical Exam

ERISA: 3rd Circuit — Denial Letters That Fail to Detail Plan’s Limitation Period Are Invalid

The courts are expecting more detail in your denial letters about the limitations period. Here’s the case of Mirza v. Insurance Administrator of America, Inc.., No. 13-3535 (3rd Cir. August 26, 2015)(“One very simple...more

9/2/2015 - Adverse Action Claim Denial Letters Deadlines Denial of Benefits ERISA Judicial Review Limitation Periods Plan Administrators

Best Practices for Best Employers: How to Become a Best Workplace Starting Today! - August 2015

Top 5 Legal Developments Every Employer Needs to Know Now - Laws affecting employers are changing faster than ever. If you don’t keep up, you can get burned. Here are a few of the most recent big changes every employer...more


ERISA: Clarity on When ERISA Applies to Working Owners of Small Companies

You probably already know that in small, wholly owned “mom and pop” businesses, benefits covering only the owners of the business may be exempt from ERISA....more

8/14/2015 - Benefit Plan Sponsors ERISA Family Businesses Preemption Shareholders Small Business Spouses

ERISA (Sixth Circuit) — Medical Reviews: You Need to Explain WHY You are Rejecting the Treating Physician’s Opinions; and Don’t...

You already know that you do not have to give special deference to the opinions of treating physicians. But you need to explain why the treating physician’s opinions are being rejected....more

8/7/2015 - Conflicts of Interest Denial of Benefits ERISA Long Term Disability Insurance Notice for Independent Medical Exam Physicians Plan Administrators Plan Documents Standard of Review

ERISA (11th Cir.): Tougher for Claimants to Win ERISA Statutory Penalty Claims

We see plaintiffs asserting an ERISA claim for statutory penalties more frequently now. These claims seek statutory penalties (up to $110 per day), alleging the plan administrator “fail[ed] or refus[ed] to comply with a...more

7/22/2015 - Disclosure ERISA Plan Administrators Plan Documents Statutory Penalties

The Cost of Bad Performance Reviews: ‘I’m Getting Sued Because My Evaluations Were Too Nice?’

For many companies, employee performance reviews are often an afterthought. A recent survey showed that only 10 percent of employers actually found their current performance review process a “good use of time.” Many...more

7/10/2015 - Collaboration Employee Engagement Employee Evaluations Employee Retention Employer Liability Issues Harassment Performance Reviews Poor Job Performance Retaliation Wrongful Termination

ERISA 11th Circuit: Claimant Has “Duty to Investigate” When Asserting Equitable Tolling of a Contractual Limitations Provision

You already know that contractual limitations provisions in ERISA plans are generally enforceable and can bar untimely claims. But when does the court apply “equitable tolling” to extend the time by which a claimant may...more

6/13/2015 - Claim Denial Letters Disability Benefits Duty to Investigate Equitable Tolling ERISA Limitation Periods Long Term Disability Insurance

ERISA (9th Cir.) A Day Late, But Not A Dollar Short — Counting The 180 Day Appeal Period Gets Easier For Claimants

You know that under ERISA regulations a claimant has at least 180 days to appeal a benefit denial. ERISA plans set out contractual timelines for appeals. But what happens when that 180 day period runs out on a weekend?...more

6/3/2015 - Aetna Appeals Denial of Benefits Disability Disability Benefits Disability Insurance ERISA Exhaustion Doctrine FedEx Plan Administrators

ERISA (3rd Circuit): Even a Voluntary Settlement Can Mean “Some Success on the Merits” When Awarding Attorney Fees?

You know that a court has discretion to award attorney fees under ERISA if a party shows “some degree of success on the merits.” But how do you define “success”? A new third circuit case reminds one of that old Milton...more

5/20/2015 - Attorney's Fees Blue Cross ERISA Prevailing Party Settlement

ERISA: Public School Teacher’s Employee Benefits Governed by ERISA? Yes!

When you see a claim for disability or life insurance benefits by a public school teacher, you might assume the claim is not governed by ERISA because of the governmental plan exception....more

5/1/2015 - Disability Insurance Employee Benefits ERISA Life Insurance Public Employees Public Schools Teachers

ERISA: Supreme Court to Determine Whether Money is Fungible…When it Comes to Recovery of Overpayments from ERISA Beneficiaries

When it comes to recovery of overpayments from ERISA beneficiaries… money is a fungible commodity in the Eleventh Circuit, but is not a fungible commodity in the Ninth Circuit....more

4/7/2015 - ERISA Medical Reimbursement National Elevator v Montanile Overpayment SCOTUS Subrogation

ERISA: 6 New Trends in DOL Enforcement Actions

The U.S. Department of Labor (DOL) and the Employee Benefits Security Administration (EBSA) just issued a “Fact Sheet” describing Fiscal Year 2014 civil and criminal enforcement activity under ERISA....more

3/30/2015 - DOL Employer Liability Issues ERISA Strategic Enforcement Plan

ERISA — 5 Quick Points: Blowing a Deadline for Decision is Not Necessarily Fatal to Abuse of Discretion Standard

You already know that ERISA regulations require the plan administrator to render a decision on an administrative appeal within 45 days....more

3/24/2015 - Abuse of Discretion Administrative Appeals ERISA Plan Administrators

ERISA: 6th Circuit — Plop Plop, Fizz Fizz: Oh What A RELIEF It Is: No Disgorgement For Arbitrary Denial Of Benefits

Does an arbitrary and capricious denial of ERISA governed disability benefits create a right to disgorgement of profits? NO....more

3/12/2015 - Appeals Denial of Benefits Disability Benefits Disgorgement ERISA

ERISA: Sometimes A Government Employee’s Benefits Could Be Governed By ERISA?

You already know that employee benefit plans established by governmental entities are exempt from ERISA. But ERISA might apply if the employee benefit for the government employee is established through an association....more

2/27/2015 - Benefit Plan Sponsors Employee Benefits ERISA Government Entities Public Employees Public School Boards Public Schools School Districts Trade Associations

ERISA – 9th Cir. Telephonic Beneficiary Designation Enforced — Beneficiary Designation Forms Are NOT Plan Documents

Can a participant designate a beneficiary merely with a phone call? You need to look at the plan documents. But are beneficiary designation forms ERISA “plan documents”? It depends, and it makes a difference....more


The BYOD Question - Sound advice on ‘Bring Your Own Device’ to work.

The “Bring Your Own Device” to work movement, or BYOD, has drastically changed today’s workplace. In a recent study, Cisco Systems found that 95 percent of the 600 companies surveyed permitted the use of personal devices at...more

2/2/2015 - Bring Your Own Device Data Protection Employer Liability Issues Popular Privacy Concerns Wage and Hour

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