Congress enacted the Employee Retirement Income Security Act (ERISA) [2] law to
protect . . . participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal Courts. [3]
ERISA’s scope [4] encompasses both retirement and welfare [5] benefits, i.e., life, health and disability benefits. Notwithstanding ERISA’s salutary purpose and its paternalism, it is often the case that meritorious claims for benefits are defeated when the court applies a deferential standard of review, interchangeably described as “arbitrary and capricious” or “abuse of discretion:” [6] in place of a de novo judicial review standard.
Courts have questioned whether deferential judicial review is contrary to ERISA’s purpose. Judge Richard Posner, an influential jurist and legal scholar, wrote in Van Boxel v. The Journal Company Employees’ Pension Trust, [7] “[benefits] are too important these days for most employees to want to place them at the mercy of a biased tribunal subject only to a narrow form of ‘arbitrary and capricious’ review, relying on the company’s interest in its reputation to prevent it from acting on its bias.” Posner later wrote in, in Herzberger v. Standard Insur. Co., [8] “The very existence of “rights” under [employee benefit] plans depends on the degree of discretion lodged in the administrator. The broader that discretion, the less solid an entitlement the employee has…” [9]
Another reason for questioning deferential review of ERISA benefit denials was made clear in Luby v. Teamsters Health, Welfare and Pension Trust Funds, [10] which observed:
Plan administrators are not government agencies who are frequently granted deferential review because of their acknowledged expertise. Administrators may be laypersons appointed under the plan, sometimes without any legal, accounting or other training preparing them for their responsible position, often without any expertise in or understanding of the complex problems arising under ERISA, and, as this case demonstrates, little knowledge of the rules of evidence or legal procedures to assist them in factfinding. [11]
Thus, deferential review of ERISA-governed denial-of-benefits cases rests on a shaky footing.
Nonetheless, the Supreme Court gave its approval to deferential review of benefit denial claims in Firestone Tire & Rubber Co. v. Bruch, [12] where, despite pronouncing the de novo standard of review the default, the Court permitted benefit plans to insert language that would trigger deferential review. Recognizing the benefits of deferential review, Firestone set off a veritable land grab by insurers and plan administrators to claim that either existing language in their plans or quickly adopted plan amendments granted discretion to interpret plan provisions and render eligibility determinations. [13]
Table of Contents
The Import of Discretionary Clauses
Discretionary review of benefit claim decisions has resulted in a dramatic shift in the outcome of ERISA litigation favoring insurers and plan administrators. An anecdotal survey of the outcome of disability and health insurance litigation put together by a law student at the request of his author showed that when deferential review applied, claimants prevailed far less frequently. [14]
Courts have become aware of the outcome-determinative potential of deferential versus de novo review. In Graham v. L&B Realty Advisors, Inc., [15] the court bemoaned that despite “clear evidence to the contrary” of the insurer’s determination, the arbitrary and capricious standard of review dictated that judgment be entered for the benefit plan, which led the court to pronounce:
The Court is concerned by this result. If the Court were finding the facts based on the administrative record, it would find Graham is disabled. Likewise, if the Court could decide the standard of review to use when a carrier’s decision is based on the opinions of a captive professional, the Court might extend less deference to such decisions. However, under the statutory framework of ERISA as applied in this Circuit, the Court must hold that substantial evidence supports UNUM’s decision. Accordingly, UNUM’s motion for summary judgment is granted.
Other examples of discretionary clauses dictating unlikely if not perverse examples abound. In Brigham v. Sun Life of Canada, [16] the court upheld the denial of disability benefits sought by a paraplegic, observing:
The question we face in this appeal is “not which side we believe is right, but whether [the insurer] had substantial evidentiary grounds for a reasonable decision in its favor.” … Beyond this, it seems counterintuitive that a paraplegic suffering serious muscle strain and pain, severely limited in his bodily functions, would not be deemed totally disabled. Moreover, it seems clear that Sun Life has taken a minimalist view of the record. But it is equally true that the hurdle plaintiff had to surmount, establishing his inability to perform any occupation for which he could be trained, was a high one. As to that issue, we have to agree with the district court that the undisputed facts of record do not permit us to find that Sun Life acted in an arbitrary or capricious manner in terminating appellant Brigham’s benefits.”
In other situations, rulings based on the same facts and issues have gone one way where the de novo standard of judicial review applies and the exact opposite under deferential review.[17]
Discretionary Language
While Firestone allowed benefit plan sponsors to insert language in their plans that would trigger deferential review, the Court failed to specify what particular language was required. As a result, much confusion resulted as to what language would suffice, and many courts concluded that the inclusion of a requirement that the participant was required to submit “due proof” or “satisfactory proof” of qualification to receive benefits was found sufficient.[18] However, that came to an end based on a series of appellate rulings that mandated more specific, unambiguous language. The first case, Kinstler v. First Reliance Standard Life Ins. Co.,[19] made it clear that the phrase “satisfactory proof” was too ambiguous to establish a reservation of discretion, as did Kearney v. Standard Ins. Co.,[20] which came to the same conclusion. Finally, the Seventh Circuit, in Herzberger v. Standard Ins. Co.[21] recognized the ambiguity in the “satisfactory proof” phrasing, pointing out that contracts enforceable based on the promisee’s satisfaction are rare and a de novo objective standard typically applies to determine a contract’s enforceability.[22] Consequently, the court recommended the following safe harbor language be used before a reservation of discretion would be recognized: “Benefits under this plan will be paid only if the plan administrator decides in his discretion that the applicant is entitled to them.”[23]
Efforts to Rein in Discretionary Clauses
In 2004, the National Association of Insurance Commissioners promulgated a model law to ban the inclusion of discretionary clauses in health and disability insurance policies.[24] Approximately half the states have adopted some form of the model law.[25] The NAIC model law prohibits insurance companies from including discretionary-granting language in health and disability insurance policies sold or delivered within a state or which would apply to a resident of a state.[26]
Although ERISA generally preempts all state laws that relate to employee benefit plans,[27] there is no preemption of state laws that regulate insurance.[28] Notwithstanding the exception applicable to insurance, preemption challenges were brought to strike down state laws, regulations, or rules adopting the NAIC model law; however, none were successful.[29]
As to self-funded plans, though, state laws banning discretionary clauses are preempted, based on an ERISA statutory provision known as the “deemer” clause [30] which states that laws regulating insurance are inapplicable to self-funded benefit plans. In addition, regardless of a state’s prohibition against discretionary clauses, if the policy is issued or delivered in state where no ban exists, the policy’s discretionary clause is operative against any claimant covered by that policy.[31]
The Impact of Discretionary Clauses
Discretionary clauses significantly tilt the legal playing field in favor of insurers and plan administrators. According to Perlman v. Swiss Bank Corp.,[32] “Deferential review of an administrative decision means review on the administrative record.” [33] Thus, claimants are barred from introducing any new evidence in court proceedings. The court reviews only the claim record created by the insurer, even if relevant and material evidence could not have been obtained earlier, and will uphold the benefit plan’s determination so long as it is not found “downright unreasonable.” The meaning of that term was explained as follows by Seventh Circuit in Pokratz v. Jones Dairy Farm:[34]
The ‘arbitrary or capricious’ standard calls for less searching inquiry than the ‘substantial evidence’ standard that applies to Social Security disability cases. Although it is an overstatement to say that a decision is not arbitrary or capricious whenever a court can review the reasons stated for the decision without a loud guffaw, it is not much of an overstatement. The arbitrary or capricious standard is the least demanding form of judicial review of administrative action. Any questions of judgment are left to the agency, or here to the administrator of the Plan.
A later Seventh Circuit case, Holmstrom v. Metro. Life Ins. Co.,[35] clarified that language, pointing out, the “phrase should not be understood as requiring a plaintiff to show that only a person who had lost complete touch with reality would have denied benefits. Rather, the phrase is merely a shorthand expression for a vast body of law applying the arbitrary-and-capricious standard in ways that include focus on procedural regularity, substantive merit, and faithful execution of fiduciary duties.”
ERISA’s deferential standard of review also overcomes a well-accepted principle of insurance law known as contra proferentem, which requires courts, when faced with differing policy interpretations, to adopt the interpretation favoring coverage in order to protect consumers against ambiguities.[36] Although some courts find the principle applicable in ERISA cases, other courts, such as Kimber v. Thiokol Corp.,[37] have found contra proferentem inconsistent with a grant of discretion to interpret policy language. Thus, as unbelievable as it may seem, especially in view of ERISA’s emphasis on fiduciary duties owed by plan administrators to plan participants and their beneficiaries, including a duty of loyalty,[38] discretion permits self-serving interpretations of ambiguous plan terminology by benefit plan administrators.
Against that backdrop, it is easy to see how claimants are placed at the mercy of insurers who are able to utilize discretionary clauses to shield themselves against having to pay both non-meritorious as well as meritorious claims. Particularly due to the Supreme Court’s rejection in Black & Decker Disability Plan v. Nord [39] of a rule giving deference in disability claim adjudications to opinions from treating doctors, insurers are empowered to utilize in-house doctors, rather than independent medical examinations, as a means of denying claims involving medical determinations,[40] a strategy that the Graham ruling shows is sufficient to survive judicial review.
In contrast, under the de novo standard of review, no deference is accorded either party and the court weighs the evidence to determine whether the plaintiff’s burden of proof has been met. In the majority of circuits, the court is still conducting a record review.[41] However, the Seventh Circuit ruled in Krolnik v. Prudential Ins. Co. of Am. that under the de novo standard, courts are to hold trials if the evidence is disputed, explaining:
For what Firestone requires is not “review” of any kind …The Court repeatedly wrote that litigation under ERISA by plan participants seeking benefits should be conducted just like contract litigation, for the plan and any insurance policy are contracts.[42]
The Seventh Circuit’s position is consistent with a string of decisions from the U.S. Supreme Court which have ruled that Congress’ grant of a right to bring a “civil action” denotes a plenary hearing rather than a record review. The Federal Rules of Civil Procedure, which apply to all civil actions brought in federal court,[43] clearly state that there is only one form of action, the civil action.[44] Thus, in Chandler v. Roudebush,[45] which addressed whether federal employees who were victims of employment discrimination were entitled to a trial or a record review proceeding, the Court concluded that a trial was necessary, observing that “nothing in the legislative history indicates that the federal sector ‘civil action’ was to have this chameleon-like character, providing fragmentary de novo consideration of discrimination claims where ‘appropriate,’ and otherwise providing record review.”[46] The Court further elaborated:
In most instances, of course, where Congress intends review to be confined to the administrative record, it so indicates, either expressly or by use of a term like “substantial evidence,” which has “become a term of art to describe the basis on which an administrative record is to be judged by a reviewing court.”[47]
More recently, in Kappos v. Hyatt,[48] the Supreme Court ruled that trials, rather than administrative review proceedings, were required in proceedings brought under the Patent Act to challenge a patent denial. The Court concluded that the patent law “neither imposes unique evidentiary limits in district court proceedings nor establishes a heightened standard of review for factual findings by the PTO [Patent and Trademark Office].”[49]
Another option that has been adopted as the near norm in ERISA litigation conducted under de novo review is a “trial on the papers” pursuant to Federal Rule of Civil Procedure 52, the provision that applies to bench trials.[50] While similar to a summary judgment proceeding, a trial on the papers allows the court to resolve evidentiary disputes, although such proceedings raise the question of how courts can weigh credibility based on a cold paper record.
Conflict of Interest
In the Supreme Court’s 1989 Firestone case,[51] the Court permitted deferential review of benefit denials so long as the benefit plan reserved authority to the plan administrator to exercise discretion in making benefit determinations. However, the Court tempered its holding by noting: “Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a “facto[r] in determining whether there is an abuse of discretion.”[52] (citing Restatement (Second) of Trusts § 187, Comment d (1959)).
It took nearly 20 years for the Supreme Court to explain what it meant, though. In Metropolitan Life Ins. Co. v. Glenn,[53] the Court acknowledged when the same party is responsible both for making the benefit determination and for funding the benefit payment, a structural conflict of interest exists. It further held that such a conflict is a factor that must be taken into consideration even though it would not alter the judicial standard of review, and that the conflict may prove to be a “tiebreaker” in close situations. The Court explained the conflict would be given greater importance “where circumstances suggest a higher likelihood that [the conflict] affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration.”[54] However, the conflict will be less significant if the record shows “the administrator has taken active steps to reduce potential bias and to promote accuracy.”[55]
As a result of the Glenn ruling, courts have had to address the impact of the conflict on potential bias such as an insurer’s frequent retention of the same medical consultants. A conflict may also be found from the size of a claim and the potential cost savings achieved by a claim denial.[56] Without a bright-line test, though, such as automatically applying de novo review in the face of a conflict, which the Supreme Court eschewed, factoring in the conflict of interest is done on a case-by-case basis.
Forfeiture of Discretion
Discretion may also be forfeited in certain situations. For example, claim regulations promulgated by the U.S. Department of Labor to assure that claimants receive a full and fair review of their claims [57] contain deadlines by which claim appeals must be decided[58] Cases that include Fessenden v. Reliance Standard Life Insur. Co.[59] and Halo v. Yale Health Plan [60] have found that benefit plans forfeit their discretion if they issue tardy claim decisions or otherwise deviate from the requirements set forth in the regulations. Following the issuance of those rulings, the claim regulations were amended to provide that non-compliance with the regulations, other than de minimis violations, will lead to the application of the de novo standard of review.[61] Thus, discretion may be forfeited when claimants are denied a full and fair review of their claims as the ERISA statute directs.[62]
The Meaning of Substantial Evidence
When a deferential standard of review applies, most courts review a claim determination to determine whether the denial was based on substantial evidence, a highly deferential administrative law standard of review. Substantial evidence has been defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[63] However, deference is not unlimited according to the Supreme Court’s ruling in Universal Camera v. N.L.R.B.,[64] where the Court made it clear that substantial evidence was not to be used as a rubber stamp of an administrative agency determination. Instead,
[C]ourts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals.[65]
As applied to ERISA, however, courts have been quick to seize on any evidence supporting a decision as sufficient to meet the substantial evidence requirement. However, in Michael J.P. v. Blue Cross & Blue Shield of Texas,[66] Circuit Judge Andrew Oldham, writing in concurrence, admonished his colleagues by pointing out: “Our approach in ERISA cases significantly diverges from this conception of substantial-evidence review. We routinely affirm plan administrator decisions without the holistic review that Universal Camera contemplates.”[67] The concurrence added:
It appears that we’ve wandered far astray. The Supreme Court warned us not to use LMRA principles to review ERISA claims. We did so anyway. And then we adopted a flavor of substantial-evidence review that bears little resemblance to one we’d use in an administrative-law case. All of this makes it particularly difficult for ERISA beneficiaries to vindicate their rights under the cause of action created by Congress. And it does so with no apparent support in law, logic, or history.[68]
A finding that a decision is supported by substantial evidence therefore cannot be made without “taking into account contradictory evidence or evidence from which conflicting inferences could be drawn.”[69] Accordingly, even where a deferential standard of review applies, there needs to be a rational connection between the evidence presented and the decision reached.
Conclusion
In Rush Prudential HMO v. Moran,[70] a case involving a denial of health insurance benefits, the Court referred to ERISA’s deferential standard of review as “highly prized by benefit plans.” While Moran ruled that an independent medical reviewer’s opinion trumped the plan’s determination, the facts of that case were unique. In most instances, ERISA’s deferential review standard is practically outcome-determinative, which is why claimants fight so hard against its applicability. To a great extent, ERISA litigation is sui generis and differs substantially from other types of employment law litigation, not as the result of any statutory provisions, but because courts have said so. It also seems paradoxical that a paternalistic statute like the ERISA law would even permit allowing self-interested plan administrators to have discretionary authority to interpret plan terms and make benefit determinations. However, Firestone opened the floodgates, and the flood followed despite the importance of employee benefits to plan participants and their beneficiaries.
Cases like Michael J.P. suggest that courts are beginning to ask more questions about how we got here. But there have been too few judicial voices that have as yet joined the chorus, and the opposition is entrenched. Congress could easily fix this issue by amending the ERISA statute to state the de novo judicial standard of review applies to all cases involving benefit denials. Efforts have been made in that direction. One such bill was authored by former senator and presidential candidate Robert Dole, who introduced a bill to amend the ERISA law to provide that in any civil action seeking benefits, “if the action involves a matter previously decided by a named fiduciary who has a significant interest which would be adversely affected by a decision in favor of the participant or beneficiary, the court shall review the decision of the fiduciary without according any deference to any findings or conclusions of such fiduciary.”[71] That effort, along with others like it, failed, though. Thus, claimants appear for now to be stuck with ERISA’s deferential standard of review, and the fight to end such a draconian regime goes on.
Mark DeBofsky is a shareholder at DeBofsky Law Ltd.
This article was first published by Bender’s Labor & Employment Bulletin on May 2025.
[1] Mark DeBofsky is the principal member of DeBofsky Law Ltd. located in Chicago, Illinois.
[2] Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (2003).
[3] 29 U.S.C. § 1001(b).
[4] 29 U.S.C. § 1003.
[5] 29 U.S.C. § 1002(1) (defining the scope of “welfare” benefits).
[6] Raybourne v. Cigna Life Ins. Co. of New York, 576 F.3d 444, 449 (7th Cir. 2009).
[7] 836 F.2d 1048 (7th Cir. 1987).
[8] 205 F.3d 327 (7th Cir. 2000).
[9] 205 F.3d at 331.
[10] 944 F.2d 1176 (3d Cir. 1991).
[11] 944 F.2d at 1183.
[12] 489 U.S. 101 (1989).
[13] See Kennedy, “Judicial Standard of Review in ERISA Benefit Claim Cases,” 50 Am. U.L. Rev. 1083,1096-1107 (2001) (discussing the various standards of review applied to ERISA claims and litigation following Firestone).
[14] Study available at http://www.erisa-claims.com/library/Georgetown%20Study.pdf.
[15] 2003 U.S. Dist. LEXIS 17272, *15 (N.D. Tex. Sept. 30, 2003).
[16] 317 F.3d 72 (1st Cir. 2003).
[17] Contrast Day v. AT&T Disability Income Plan, 698 F.3d 1091 (9th Cir. 2012) with Blankenship v. Liberty Life Assur. Co. of Boston, 486 F.3d 620 (9th Cir. 2007) (ruling on whether retirement benefits transferred to a rollover individual retirement account were “received” and therefore deductible form disability insurance payments); Yasko v. Reliance Standard Life Ins. Co., 53 F. Supp. 3d 1059 (N.D. Ill. 2014) and Yasko v. Standard Ins. Co., 2014 U.S. Dist. LEXIS 68601 (N.D. Ill. May 19, 2014) (ruling on whether death due to pulmonary embolism resulting from lengthy airplane travel constitutes a compensable accidental death).
[18] See Kennedy, n. 13, supra.
[19] 181 F.3d 243 (2d Cir. 1999).
[20] 175 F.3d 1084 (9th Cir. 1999).
[21] Supra. at n. 8.
[22] 205 F.3d at 331.
[23] 205 F.3d at 331.
[24] Prohibition on the Use of Discretionary Clauses Model Act (2004); available at https://content.naic.org/sites/default/files/model-law-042.pdf.
[25] See “Prohibition on the Use of Discretionary Clauses Model Act – NAIC Model Laws, Regulations, Guidelines and Other Resources Fall 2024, available at https://content.naic.org/sites/default/files/model-law-statepage-42.pdf.
[26] See, e.g., Cal. Ins. Code § 10110.6 (California also prohibits the inclusion of discretionary clauses in life insurance policies).
[27] 29 U.S.C. § 1144(a).
[28] 29 U.S.C. § 1144((b)(2)(A).
[29] See Standard Ins. Co. v. Morrison, 584 F.3d 837 (9th Cir. 2009); American Council of Life Insurers v. Ross, 558 F.3d 600 (6th Cir.2009); Fontaine v. Metro. Life Ins. Co., 800 F.3d 883 (7th Cir. 2015).
[30] 29 U.S.C. § 1144(b)(2)(B).
[31] Ellis v. Liberty Life Assur. Co. of Boston, 958 F.3d 1271 (10th Cir. 2020).
[32] 195 F.3d 975 (7th Cir. 1999).
[33] 195 F.3d at 981-82.
[34] 771 F.2d 206, 209 (7th Cir. 1985).
[35] 615 F.3d 758, 766 n.5 (7th Cir. 2010).
[36] The history of the contra proferentem rule was traced in Econ. Premier Assur. Co. v. Western Nat’l Mut. Ins. Co., 839 N.W.2d 749, 754 (Minn. App. 2013). The Supreme Court first recognized the doctrine in Mutual Life Ins. Co. v. Hurni Packing Co., 263 U.S. 167, 174, 44 S. Ct. 90 (1923), where it found: “The rule is settled that in case of ambiguity that construction of the policy will be adopted
which is most favorable to the insured. The language employed is that of the company and it is consistent with both reason and justice that any fair doubt as to the meaning of its own words should be resolved against it.”
[37] 196 F.3d 1092 (10th Cir. 1999).
[38] 29 U.S.C. § 1104(a)(1).
[39] 123 S. Ct. 1965, 155 L. Ed. 2d 1034 (2003).
[40] A physician formerly employed by the UnumProvident Corporation characterized his company’s use of physicians in this manner as a “means to an end…The end was denial.” Deposition of Patrick Fergal McSharry, Chapman v. Unum (Cal., Marin. Cnty. Super. Ct.), September 4-6, 2002, at 163-169; reported on Dateline NBC (Oct. 13, 2002).
[41] See, e.g., Jewell v. Life Ins. Co. of No. Am., 508 F.3d 1303 (10th Cir. 2007), and Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510 (1st Cir. 2005).
[42] Krolnik v. Prudential Ins. Co., 570 F.3d 841, 843 (7th Cir. 2009).
[43] Fed. R. Civ. P. 1.
[44] Fed. R. Civ. P. 2.
[45] 425 U.S. 840 (1976).
[46] Chandler, 425 U.S. at 861.
[47] Id. at 862 n.37 (citing United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963), 5 U.S.C. § 706 (governing the Administrative Procedure Act), 12 U.S.C. § 1848 (governing certain orders of the Board of Governors of the Federal Reserve System), 15 U.S.C. § 21(c) (covering certain orders of the Interstate Commerce Commission, the Federal Communications Commission, the Civil Aeronautics Board, the Federal Reserve Board, and the Federal Trade Commission), and 21 U.S.C. § 371(f) (3) (governing certain orders of the Secretary of Health, Education, and Welfare)).
[48] 566 U.S. 431, 132 S. Ct. 1690 (2012).
[49] 132 S. Ct. at 1696.
[50] See Tekmen v. Reliance Standard Life Ins. Co., 55 F.4th 951 (4th Cir. 2022)
[51] See n.12 supra.
[52] 489 U.S. at 115.
[53] 554 U.S. 105 (2008).
[54] 554 U.S. at 16.
[55] 554 U.S. at 16.
[56] See, e.g., Kennedy v. Lilly Extended Disability Plan, 556 F.3d 1136, 1140 (7th Cir. 2017).
[57] 29 C.F.R. § 2560.503-1.
[58] 29 C.F.R. § 2560.503-1(i).
[59] 927 F.3d 998 (7th Cir. 2019).
[60] 819 F.3d 42 (2d Cir. 2016).
[61] 29 C.F.R. § 2560.503-1(l).
[62] 29 U.S.C. § 1133.
[63] Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
[64] 340 U.S. 474 (1951).
[65] 340 U.S. at 490.
[66] 2021 U.S. App. LEXIS 28704 (5th Cir. Sept. 22, 2021) (Oldham, J., concurring)
[67] Id. at *25.
[68] Id. at *27.
[69] Universal Camera, 340 U.S. at 487.
[70] 536 U.S. 335, 384.
[71] S. Bill 3267, 101st Cong., 2d Sess. (1990). Note: The author litigated several of the cases cited in this article: Herzberger v. Standard Insurance, Fontaine v. Metropolitan Life, Holmstrom v. Metropolitan Life, Yasko v. Reliance Standard, Yasko v. Standard, and Kennedy v. Lilly Extended Disability Plan. The author was also a witness for the Defendant in Standard v. Morrison.
