:: Seventh Circuit Hands Down Another Post-Glenn “Tie Breaker” Decision
This is not the type of case in which the Glenn conflict-of-interest factor plays an important role. As we noted, the Supreme Court in Glenn instructed that the presence of a conflict will “act as a tiebreaker when the other factors are closely balanced . . . .” Glenn, 128 S. Ct. at 2351. In other words, “[w]hen the case is borderline . . . the inherent conflict of interest that exists in so many of these situations can push it over the edge–towards a finding of capriciousness.” Jenkins, 564 F.3d at 861-62. This is not a borderline case; in light of Liberty’s consideration of no fewer than thirteen expert opinions, it is not possible to say that Liberty’s decision was even close to “downright unreasonable.” Fischer v. Liberty Life Assur. Co., 2009 U.S. App. LEXIS 17226 (7th Cir.) (August 4, 2009)
Rather than examination all factors in “combination”, several courts have emphasized the “tie breaker” reference in Glenn, and only view a conflict of interest as significant in close cases. The Sixth Circuit is a good exemplar the “combination” approach wherein the Court looks at each action of the conflicted fiduciary in terms of whether the fiduciary’s conduct, taken as a whole, reflects evidence of bias.
The recent Seventh Circuit opinion in Fischer provides an example of the “tie breaker” approach. In this case, the critical issue came down to whether the claimant’s condition was organic or psychological:
Fischer maintains that Liberty’s decision that he is ineligible for benefits beyond 24 months is unreasonable because his illness is the result of an organic brain injury, and therefore he is not subject to the Plan’s mental illness limitation. He urges that Liberty’s discontinuation of his benefits is presumptively arbitrary and capricious because Liberty failed to follow its own internal guidelines when it applied the mental illness limitation to his case. He also insists that Liberty’s decision is arbitrary and capricious because it ignored objective evidence that demonstrates that his impairment is organic, not psychological.
In the Sixth Circuit, this sort of argument might well lead to a careful examination of whether the carrier was selective in its review of the evidence and what it chose to weigh as significant. As I previously noted
:
The Sixth Circuit (from which Glenn originated) continues to scrutinize benefit denials with a careful view to procedural consistency and throughness. See, e.g., :: Sixth Circuit Applies Met Life v. Glenn Factors To Overturn ERISA Disability Benefit Denial. In Delisle v. Sun Life Assur. Co., 2009 FED App. 0082P (6th Cir.) (6th Cir. Mich. 2009), for example, the Sixth Circuit expressed concern over the “incentives” of consultants and how they may have been affected by the presentation and communication of issues on which they opined. Evidence of bias was not required to trigger this analysis.
Not so, the Seventh Circuit.
This is not the type of case in which the Glenn conflict-of interest factor plays an important role. As we noted, the Supreme Court in Glenn instructed that the presence of a conflict will “act as a tiebreaker when the other factors are closely balanced . . . .” Glenn, 128 S. Ct. at 2351. In other words, “[w]hen the case is borderline . . . the inherent conflict of interest that exists in so many of these situations can push it over the edge—towards a finding of capriciousness.” Jenkins, 564 F.3d at 861-62. This is not a borderline case; in light of Liberty’s consideration of no fewer than thirteen expert opinions, it is not possible to say that Liberty’s decision was even close to “downright unreasonable.”
Note: The Eighth Circuit appears to be another “tie breaker” circuit. See, :: Eighth Circuit Requires Evaluation Of Conflict Factor As A Tiebreaker. By contrast, see :: Sixth Circuit Applies Met Life v. Glenn Factors To Overturn ERISA Disability Benefit Denial. See also - Jenkins v. Price Waterhouse LTD Plan 564 F.3d 856, (7th Cir. 2009).
