Justices Won't Review BofA's Denial of Pension Benefits

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By Carmen Castro-Pagan

June 13 — A former Bank of America employee lost her bid to have the U.S. Supreme Court review whether the pension plan fiduciary acted properly by adopting the administrator's decision to deny her benefits ( Whelehan v. Bank of Am. Pension Plan for Legacy Cos.—Fleet—Traditional Benefit, U.S., No. 15-1245, cert. denied 6/13/16 ).

The high court's June 13 denial of review leaves standing a decision of the U.S. Court of Appeals for the Second Circuit that rejected the employee's attempt to shift to the bank the burden of disproving entitlement to benefits. The appeals court said that under the Employee Retirement Income Security Act, the plaintiff has the burden of establishing entitlement to benefits.

In the unpublished opinion, the Second Circuit affirmed a district court's decision, which held that the employee's provision of unsworn and uncertified documentation detailing her alleged entitlement to benefits was insufficient to prove she was employed for 12 years by a financial institution that later merged with Bank of America.

In the petition to the Supreme Court, the justices were asked to decide whether a district court can defer to an ERISA fiduciary's application of the plan's eligibility rules where the fiduciary cites no plan provisions supporting its determination and doesn't even include the plan in the administrative record.

The high court was also asked whether an ERISA fiduciary satisfies the obligation to provide a full and fair review of a participant's appeal if it adopts the administrator's decision denying benefits without reference to the plan and requires the participant to produce contrary evidence and bear the burden of establishing plan compliance.

Ward Greenberg Heller & Reidy LLP represented Whelehan. Schoeman Updike Kaufman & Stern LLP represented Bank of America.

To contact the reporter on this story: Carmen Castro-Pagan in Washington at ccastro-pagan@bna.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bna.com