Joshua Bachrach Partner





  • A Claimant’s Duty to Cooperate

    DRI: For the Defense | Life, Health and Disability

    August 2020

  • Montanile v. Board of Trustees: A New Model for Recovery

    DRI: The Newsletter of the Life, Health and Disability Committee

    March 18. 2016

  • Montanile v. Board of Trustees: A New Model for Recovery

    Montanile: A New Model for Recovery

    February 22, 2016

    A recent decision by the U.S. Supreme Courtmakes it more difficult for benefit plans to seek reimbursement and recover overpayments, but insurers and self-funded plans are not left without recourse. Amending plan language and acting promptly when made aware of a potential recovery can add viability to the claim.

  • Third Circuit Rules Failure to Disclose Deadline to File Suit in Denial Letter Warrants Setting Aside Limitations of Suit Provision in Plan

    Disclosure of Deadline to File Suit in Denial Letter

    September 1, 2015

    Now binding law in the Third Circuit, all denial letters must include the plan-imposed suit limitation deadline, if any. Failure to include the deadline will result in application of the most analogous limitations period imposed under state law, which in New Jersey is the six-year statute of limitations applicable to breach of contract actions.

  • Eleventh Circuit Addresses Statutory Penalty Claims under ERISA

    11th Circuit Addresses ERISA Statutory Penalty Claims

    August 25, 2015

    In a recent case, the Eleventh Circuit took a step closer to joining ten other circuits that have refused to recognize ERISA penalty claims against de facto plan administrators.

  • Third Circuit Adopts Catalyst Theory in ERISA Cases for Attorney Fee Awards

    Attorney Fee Awards in ERISA Cases

    May 14, 2015

    The Third Circuit has opened the door to fee recoveries in ERISA cases in a way not contemplated by previous law. The court decided that a party can achieve success on the merits without any judicial action and that the defendants’ voluntary payment of interest is sufficient to make the claimants eligible for attorney fees.

  • Seller Beware: Eighth Circuit Finds Insurer Potentially Liable for Enrollment Mistakes of Employer

    Insurer Potentially Liable for Enrollment Errors

    February 27, 2015

    In a 2014 case, the Eighth Circuit joined a number of other circuits in recognizing equitable remedies of reformation and surcharge based on a breach of fiduciary duty under ERISA. A claim for supplemental life insurance benefits under the employer’s group policy was denied because the employee failed to submit evidence of insurability as required under the plan. However, in concluding that the plan insurer breached its fiduciary duties, the court relied primarily on the actions and omissions of the employer.

  • De Facto Plan Administrator Claims in the First Circuit

    De Facto Plan Administrator Claims in the First Circuit

    July 10, 2014

    The term “administrator” is defined in the ERISA statute as “the person specifically so designated by the terms of the instrument under which the plan is operated.” If no one is named plan administrator, it is deemed to be the plan sponsor, which is usually the employer. Based on the specific definition of the term “administrator,” nearly every circuit has refused to recognize “de facto” plan administrators.

  • Ninth Circuit Refuses to Recognize ERISA Plan’s Right to Recover Overpayment of LTD Benefits

    Ninth Circuit on Recovery of LTD Benefit Overpayment

    February 26, 2013

    The U.S. Supreme Court’s recent decision not to hear a petition for a writ of certiorari in a case in which the Ninth Circuit refused to recognize an ERISA plan’s right to recover an overpayment of long-term disability benefits consistent with the terms of the applicable policy could cast serious doubts on a carrier’s ability to recover such overpayments, at least in certain circumstances, particularly in the Ninth Circuit.

  • Comprehensive Analysis of the Ninth Circuit’s Application of the Standards of Review under ERISA

    Application of the Standards of Review under ERISA

    December 2012

    This monograph provides a comprehensive discussion of the application of the abuse of discretion and de novo standards of review for courts within the Ninth Circuit in matters governed by the Employee Retirement Income Security Act of 1974. In focusing on the opinions issued by district courts, the monograph gives insight into the type of evidence and the arguments that generally succeed, as well as the arguments that should be avoided.

  • A Comprehensive Analysis of the Ninth Circuit’s Application of the Standards of Review Under ERISA

    June 2012

  • ERISA Survey of Federal Courts

    ABA Publishing

    2012 Edition

  • Life, Health, Disability & ERISA Newsletter

    Insurance Fraud & Group Policy Limitations

    February 2010

    This Life, Health, Disability & ERISA Newsletter discusses insurance fraud, important ERISA holdings, new California law on group policy, and more.

  • Eighth Circuit concludes that decision in Abram v. Cargill, Inc. does not apply under new ERISA regulations

    April 2009

    In Midgett v. Washington Group Int'l Long Term Disability Plan, __ F.3d __, 2009 WL 996682 (8th Cir. April 15, 2009), the Eighth Circuit considered the amended ERISA claim regulations in deciding whether a claimant received a "full and fair review" of the denial of benefits. The court ultimately agreed with the Tenth and Eleventh Circuits and concluded that a plan is under no obligation to provide a claimant with copies of reports obtained during the appeal so they may comment on them prior to a final decision.

Additional Publications

“ERISA Disability Policies in California and Beyond: The Future of Discretionary Clauses,” For The Defense, DRI, February 2006

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