Joshua Bachrach represents clients in state and federal courts throughout the United States in litigation involving ERISA and non-ERISA disputes over disability, life and health coverage as well as disputes over pension benefits. Josh also represents insurers in coverage and bad faith litigation and has experience with disputes involving managed care issues, including medical necessity and provider reimbursement. He is a frequent speaker at national seminars on ERISA-related subjects and has written numerous articles on ERISA and related topics.

Josh is regarded as a valuable resource by clients and colleagues based on his knowledge of ERISA, life, health and disability law as well as his appellate work. He is often engaged nationally in litigation matters and frequently consulted to evaluate issues prior to the commencement of litigation. Josh has personally handled several hundred ERISA cases nationally.

Areas of Focus

Appellate
Josh has argued appeals before nearly all of the U.S. Courts of Appeals the Supreme Court of Alaska and Pennsylvania state appellate courts.

Life, Health, Disability & ERISA
Josh is national counsel for several major disability and life insurers. In that capacity he represents clients in all phases of litigation throughout the United States. In addition, he consults with clients on issues involving claim administration and plan language. Josh also provides representation and advice to self-funded employee benefit plans. He is a cochair of the firm's Life, Health, Disability & ERISA practice.

    Education

    • Widener University School of Law (J.D., cum laude, 1993)
    • Temple University (B.A., 1986)

    Bar Admissions

    • Pennsylvania
    • New Jersey

    Court Admissions

    • Supreme Court of the United States
    • U.S. Court of Appeals, First Circuit
    • U.S. Court of Appeals, Second Circuit
    • U.S. Court of Appeals, Third Circuit
    • U.S. Court of Appeals, Fourth Circuit
    • U.S. Court of Appeals, Fifth Circuit
    • U.S. Court of Appeals, Sixth Circuit
    • U.S. Court of Appeals, Seventh Circuit
    • U.S. Court of Appeals, Eighth Circuit
    • U.S. Court of Appeals, Ninth Circuit
    • U.S. Court of Appeals, Tenth Circuit
    • U.S. Court of Appeals, Eleventh Circuit
    • U.S. District Court, District of Colorado
    • U.S. District Court, Eastern District of Michigan
    • U.S. District Court, Western District of Michigan
    • U.S. District Court, District of Nebraska
    • U.S. District Court, District of New Jersey
    • U.S. District Court, Southern District of New York
    • U.S. District Court, Eastern District of New York
    • U.S. District Court, Western District of New York
    • U.S. District Court, Northern District of New York
    • U.S. District Court, District of North Dakota
    • U.S. District Court, Eastern District of Pennsylvania
    • U.S. District Court, Western District of Pennsylvania

    Professional Affiliations

    • American Bar Association
    • DRI: The Voice of the Defense Bar

    Awards & Honors

    • AV® Preeminent™ Rated by Martindale-Hubbell
    • Program Chair for the 2015 DRI Life, Health, Disability and ERISA Seminar
    • Former editor-in-chief of the ABA–TIPS Law Journal
    • Former chair of the Health and Disability Law Committee of the ABA TIPS Section

Joshua Bachrach

Joshua Bachrach represents clients in state and federal courts throughout the United States in litigation involving ERISA and non-ERISA disputes over disability, life and health coverage as well as disputes over pension benefits. Josh also represents insurers in coverage and bad faith litigation and has experience with disputes involving managed care issues, including medical necessity and provider reimbursement. He is a frequent speaker at national seminars on ERISA-related subjects and has written numerous articles on ERISA and related topics.

Josh is regarded as a valuable resource by clients and colleagues based on his knowledge of ERISA, life, health and disability law as well as his appellate work. He is often engaged nationally in litigation matters and frequently consulted to evaluate issues prior to the commencement of litigation. Josh has personally handled several hundred ERISA cases nationally.

Events

Joshua Bachrach represents clients in state and federal courts throughout the United States in litigation involving ERISA and non-ERISA disputes over disability, life and health coverage as well as disputes over pension benefits. Josh also represents insurers in coverage and bad faith litigation and has experience with disputes involving managed care issues, including medical necessity and provider reimbursement. He is a frequent speaker at national seminars on ERISA-related subjects and has written numerous articles on ERISA and related topics.

Josh is regarded as a valuable resource by clients and colleagues based on his knowledge of ERISA, life, health and disability law as well as his appellate work. He is often engaged nationally in litigation matters and frequently consulted to evaluate issues prior to the commencement of litigation. Josh has personally handled several hundred ERISA cases nationally.

Joshua Bachrach

Bachrach & Heim Obtain Win at the Tenth Circuit in ERISA Case

Joshua Bachrach (Partner-Philadelphia, PA) and Angela Heim (Of Counsel-Philadelphia, PA) represented a group long-term disability insurer in an appeal related to the denial of benefits. As a result of the plaintiff’s administrative appeal and before the lawsuit was filed, the client reversed the claim denial. The plaintiff still filed a lawsuit in the U.S. District Court, Western District of Oklahoma seeking attorney’s fees for the appeal. The plaintiff also challenged the client’s reduction of benefits under the policy based on her receipt of social security benefits, claiming financial hardship. The district court granted the defendant’s motion to dismiss the complaint for failure to state a claim, which was appealed to the Tenth Circuit. In a published decision, the Court of Appeals affirmed the judgment in our client’s favor. The Tenth Circuit joined seven other circuits in concluding that fees under ERISA’s fee-shifting statute are unavailable for pre-litigation proceedings. The court also rejected the plaintiff’s “backdoor route” seeking fees as equitable relief. As for the plaintiff’s claim related to the social security offset, the Tenth Circuit held that there was no need to consider the merits of it because she failed to exhaust her administrative remedies as courts have required under ERISA, the claim was time-barred, and the argument was waived because it was not pursued in the district court. Finally, the Court of Appeals rejected the claim that the plaintiff was entitled to equitable relief because our client failed to provide documents to her. Because she did not allege any separate harm related to this conduct, the court agreed with the district court that she was not entitled to any relief. The Tenth Circuit concluded its decision affirming the judgment of the district court by stating that “Plaintiff is receiving all the benefits to which her policy entitles her.”

Joshua Bachrach and Angela M. Heim

Bachrach and Symonds Obtain Summary Judgment in ERISA Disability Claim in Missouri

Josh Bachrach (Partner-Philadelphia, PA) and Hannah Symonds (Of Counsel-Raleigh, NC) secured summary judgment for the firm’s carrier client in an ERISA long-term disability lawsuit in the United States District Court for the Eastern District of Missouri. The plaintiff, a truck driver, sought long-term disability benefits due to neck and back problems after claiming she was assaulted by a co-worker. The claim was denied based on the policy’s preexisting conditions limitation because the plaintiff was treated for neck and back problems within 12 months of her effective date of coverage. The court rejected the plaintiff’s argument that the treatment record relied upon in denying the claim was misdated. Under de novo review, the court concluded that the plaintiff was not entitled to benefits because she received treatment for chronic neck and back pain during the policy’s look-back period. Therefore, Josh and Hannah’s client was entitled to judgment in its favor. 

Joshua Bachrach

Bachrach Obtains Summary Judgment in “Long-Running Dispute”

Joshua Bachrach (Partner-Philadelphia, PA) obtained summary judgment in favor of a claim administrator client in what the district court described as a “long-running dispute over disability coverage” under ERISA. The claims administrator concluded that the claimant was not totally disabled from any occupation after 24 months and discontinued benefits. After the ERISA lawsuit was filed, the court remanded the claim to our client regarding the applicability of a special conditions limitation rider. The plaintiff opposed the remand in multiple filings, arguing that the court should only consider whether she was disabled from any occupation because the rider was not initially raised. The court rejected the plaintiff’s argument and, after the claim was again denied based on the rider, it entered judgement in favor of our client. The court held that the rider applied to the claim “because Defendant cannot be required to provide benefits that are plainly excluded from the Policy’s coverage.” In response to the plaintiff’s equitable argument, the court responded that she produced no evidence that she was unaware of the rider at the time she applied for benefits. Also, “although the rider’s bar on long-term benefits has caused the plaintiff frustration and prolonged litigation, the defendant cannot be required to provide benefits that the plaintiff was never entitled to in the first place.”

Joshua Bachrach

Bachrach and Heim Achieve Reversal of Judgment in Death Benefits Case

Joshua Bachrach (Partner-Philadelphia, PA) and Angela Heim (Of Counsel-Philadelphia, PA) convinced the U.S. Court of Appeals for the Eleventh Circuit to reverse the judgment of the Southern District of Florida against our firm insurer client. The plaintiffs submitted a claim for $500,000 in accidental death benefits following the disappearance and presumed death of their father while mountain climbing in Pakistan. The district court concluded that because there was no evidence that the insured committed suicide, the denial of benefits was arbitrary and capricious under ERISA. In a published decision, the Eleventh Circuit reversed and remanded for entry of judgment in favor of our client. In doing so, the Eleventh Circuit adopted the Wickman test, which is used in seven other circuits for deciding whether a loss is an accident. Under this test, a court asks “whether a reasonable person, with background and characteristics similar to the insured, would have viewed [injury or death] as highly likely to occur as a result of the insured’s intentional conduct.” Here, the insured, a medical doctor, attempted to ascend a major peak solo after his climbing partner, a certified climbing instructor, concluded that it was too dangerous due to hidden crevasses and black ice that broke off and offered no grip. Based on these facts, the appellate court concluded that “[a] reasonable mountain climber likely would have expected a higher risk of injury or death from a summit attempt on an already dangerous winter climb.” The Eleventh Circuit rejected the claimants’ argument that the burden should shift to the insurer to prove there is no coverage when the actual cause of death is unknown. The appellate court also rejected the claimant’s argument that death while mountain climbing should be considered an accident because there is no mountain climbing exclusion in the policy. Accordingly, the Eleventh Circuit reversed the district court judgment and directed the district court to enter judgment in favor of our insurer client.

Angela M. Heim and Joshua Bachrach

Bachrach Obtains Dismissal for Insurer Client in ERISA Denial

Joshua Bachrach (Partner-Philadelphia, PA) obtained dismissal of a complaint against an ERISA client in the Western District of Oklahoma. After her disability benefits were briefly terminated, the plaintiff filed a lawsuit seeking reimbursement of attorney’s fees. She also claimed that the client wrongly denied her request for hardship relief. Based on the wording in the ERISA statute – which refers to “fees and costs of action” – the court agreed that attorney’s fees are limited to work performed during litigation. Because the requested fees predated the lawsuit, there was no viable fee claim. Turning to the hardship claim, the plan provides for a reduction in disability benefits based on social security benefits a claimant receives or is eligible to receive. The client previously waived the estimated offset due to hardship when the plaintiff was still waiting for approval of her social security claim. She alleged in the complaint that the hardship relief should have continued after those benefits were actually awarded to her. The court disagreed. The dismissal order recognized that even when estimated benefits are waived, once there is an actual award, disability benefits are recalculated and any overpayment must be refunded, as was done with the plaintiff’s claim. As such, there was no viable claim because the requested relief would be contrary to the plan requirements. Although leave to amend is typically granted when a complaint is dismissed, the court concluded that any amendment or new claim would be futile. Therefore, the dismissal was with prejudice.

Joshua Bachrach

Bachrach Wins Summary Judgment in ERISA Disability Case in Rhode Island

Joshua Bachrach (Partner-Philadelphia, PA) prevailed on a motion for summary judgment in an ERISA disability lawsuit seeking short- and long-term disability benefits. The district court agreed with our client, the insurer and claim administrator of the plans, that the plaintiff received benefits under the short-term disability plan for the maximum period allowed. Therefore, the court rejected the plaintiff’s argument that our client improperly transitioned his claim to the long-term disability plan to avoid further liability. Unlike the short-term disability plan, the long-term disability plan included an exclusion for preexisting conditions, which barred the claim. Therefore, Chief Judge John McConnel concluded that no short- or long-term disability benefits were owed and granted the motion for summary judgment in favor of the client.

Joshua Bachrach

Bachrach and Austin Obtain Summary Judgment in Disability Case Involving Focal Epilepsy

Philadelphia partners Josh Bachrach and Heather Austin obtained summary judgment in favor of our carrier client in an ERISA case pending in federal court in Pennsylvania. The plaintiff previously worked as a registered nurse but stopped due to symptoms related to focal epilepsy. She described her symptoms as a déjà vu-like feeling that lasted for one to two minutes, followed be a few hours of fatigue and brain fog. Benefits were initially approved but denied after 24 months when the plaintiff had to prove that she was totally disabled from pursuing any occupation. The court rejected the plaintiff’s procedural challenges to the claim decision, including to the applicable standard of review in court. On the merits, the court concluded that our client reasonably rejected the opinions of the treating doctor, who overstated the number of episodes the plaintiff experienced each month and recommended testing to objectively confirm the claimed symptoms, but testing was never performed. The court also concluded that the alternative occupations identified by our client were reasonable. Therefore, the denial of additional benefits was not arbitrary and capricious and Josh and Heather proved our client was entitled to judgment in its favor. 

Joshua Bachrach and Heather Austin

Austin, Bachrach and Stone Obtain Summary Judgment on Preexisting Conditions Limitation

Heather Austin (Partner-Philadelphia, PA), Josh Bachrach (Partner-Philadelphia, PA) and Parks Stone (Partner-Atlanta, GA) obtained summary judgment in favor of our client carrier in an ERISA lawsuit pending in the U.S. District Court for the Northern District of Georgia. The plaintiff sought disability benefits shortly after she began working for the policyholder. But in the months before her coverage began, she was seen by doctors for fatigue, joint pain and swelling, muscle weakness, nausea, lung issues and stomach issues. A few months after she began working she was diagnosed with scleroderma and then stopped working. While scleroderma was responsible for all of the plaintiff’s symptoms, she argued that the policy’s preexisting conditions limitation did not apply to her claim because a diagnosis was not made until after she stopped working. Citing to an earlier Eleventh Circuit decision in which Wilson Elser represented the defendant, the court reached “the inescapable conclusion” that the client’s decision was reasonable and it was entitled to judgment in its favor. 

Heather Austin, Joshua Bachrach and Parks K. Stone

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